-J I V 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 

 
 >cLOS-ANGEI 
 
 \WEUNIVERS/a 
 
 •LOSANGEI 
 
 ^tilBK 
 
 ACUITY 
 
 -OFCAil
 
 A NEW 
 
 ABRIDGMENT OF THE LAW. 
 
 BY MATTHEW BACON, 
 
 OF THE MIDDLE TEMPLE, ESQ. 
 • WITH 
 
 LARGE ADDITIONS AND CORRECTIONS, 
 
 BY SIR HENRY GWYLLIM, 
 
 AND 
 
 CHARLES EDWARD DODD, ESQ. 
 
 AND WITH 
 
 THE NOTES AND REFERENCES MADE TO THE EDITION PUBLISHED 
 
 IN 1809, 
 
 BY BIRD WILSON, ESQ. 
 
 TO WHICH ARE ADDED 
 
 NOTES AND REFERENCES TO AMERICAN AND 
 ENGLISH LAW AND DECISIONS, 
 
 BY JOHN BOUVIER. 
 
 VOL. X. 
 
 PHILADELPHIA: 
 T. & J. W. JOHNSON & CO., LAW BOOKSELLERS, 
 
 NO. 197 CHESTNUT STREET. 
 
 1860.
 
 / 
 
 3/3 52a. 
 l$i>0 
 M, tO 
 
 Entered according to Act of Congress, in the year 1842, by 
 
 McCAKTY & DAVIS, 
 
 in the Clerk's Offico of the District Court, of the Eastern District of Pennsylvania, 
 
 Recorded according to Act of Congress, in tho year 1S51, by 
 
 T. & J. W. JOHNSON, 
 
 in tho Clerk's Office of tho District Court, of the Eastern District of Pennsylvania. 
 
 X. B. MF.*HH, \ CER.
 
 TABLE OF TITLES. 
 
 J'ythes - 
 
 L'niversities 
 
 Uses and Trusts 
 
 Usury 
 
 Verdict 
 
 v isne or Venue 
 
 Pag* 
 
 
 1'a^e 
 
 5 
 
 Void and Voidable 
 
 - 374 
 
 101 
 
 Wager of Law - 
 
 38? 
 
 - Ill 
 
 Warranty - 
 
 394 
 
 264 
 
 Waste - 
 
 4-20 
 
 - 306 
 
 Wills and Testaments 
 
 • 478 
 
 361 
 
 General Index 
 
 601
 
 TYTHES/ 
 
 The word Tithe is derived from the Saxon word Teoba, which signifies 
 the tenth part of a thing. 
 
 Of every thing, of which tithe is due of common right, tithe is always 
 the tenth part of the tiling. 
 
 But of every thing, of which tithe is only due by custom, more or less 
 than the tenth part of the thing may be due for tithe. 
 
 [For where custom only subjects to tithe, custom must determine the 
 proportion. 
 
 Tithes, in their proper and original nature, are a spiritual and incorporeal 
 inheritance : spiritual, from the uses to which they are consecrated; incor- 
 poreal, from the mode of their existence 
 
 There is no doubt that tithes were originally a mere ecclesiastical re- 
 venue ;(a) ecclesiastical persons only having capacity to take them ;(&) 
 and ecclesiastical courts only having power to take cognisance of them. 
 They were considered, not as any secular duty,(c) or as issuing out of the 
 land, but as collateral to the estate of the land, and were paid, not in re- 
 spect of the land,(rf) but in respect of the persons of the laity, in return 
 for the benefit they derived frcm the ministry and care of their spiritual 
 pastors. They could not pass by copy of court- roll, (c) because things 
 spiritual could not lie in tenure, or be considered as parcel of a manor : 
 unity of possessicn(g-) could not extinguish them, because the spiritual 
 nature could not be merged or extinguished ; in other words, could not 
 coalesce or incorporate with that which was material and temporal : nor 
 could a release of all demands in lands operate as a discharge of them ;(h) 
 for as they would not pass under the denomination of land, neither would 
 they be elfected by a release of all claims arising out of lands. 
 
 (a) Moor, 530; Hob. 296. (b) 9 Co. 43 b; 5 Co. Cawdrie's case, (c) 1 Leon. 300. 
 (d) Day, 5 b, 6 a. (e) Cro. Eliz. 293, 814. (g) Dav. 6 a. (A) 1 Leon. 300. 
 
 Tithes, again, in their essence, have nothing substantial or permanent : 
 they consist merely injure, are merely a right. An estate in tithes is no more 
 than a title to a share or portion of the produce after it shall have been sepa- 
 rated from the general mass: before severance it is wholly uncertain what 
 the amount of that share or portion may be; nay more, its very existence 
 is precarious; this, like its quantity, depending upon the accidents of cli- 
 mate, season, soil, cultivation, and the will and caprice of the several 
 owners or possessors. If the ground be not sown, if the farms be nol 
 stocked, if the fruits be not gathered, no tithe can possibly arise. For tithe 
 is payable, as we have said before, not in respect of the land, but oi die 
 person : it is not an estate in the land, but a right to a determinate propor- 
 tion of the fruits, with all the industry and expense that have been be- 
 stowed in bringing them forward and collecting them. Tithe, then, in 
 itself, is not an object of our external senses: it is neither visible, nor 
 tangible ; its produce, indeed, may be seen and felt, but it exists itself only 
 
 [ ■■ The Editor was induced to transpose this head, in expectation of being able tc 
 make some valuable additions to it. 1 
 
 A2 5
 
 6 TYTIIES. 
 
 Tithes. 
 
 in the mind's eye, and in contemplation of law. It follows, therefore, that 
 it is incorporeal: for the law ascribes corporeity only to those objects 
 which are substantial and permanent. From their incorporeity tithes are 
 said to li" in grant, and not in livery; that is, they could not pass from 
 one man to another by livery of seisin, the ancient mode of transfer, nor 
 could actual possession be given of them ; but the property in them could 
 only In- transferred by deed. In consequence of their incorporeity it was 
 doubted, whether a rent could be reserved upon them ; for being incapable 
 of locality, there was no place where a distress could be taken of them. 
 And to obviate this doubt a statute was passed, which empowers ecclesi- 
 astical persons to grant leases for lives or years of their incorporeal heredita- 
 ment 3. Of tlie king's right to reserve a rent on a demise of tithes no doubt 
 indeed was ever entertained; because by the prerogative the king had a 
 right to distrain upon any lands in the possession of his lessee. 
 - . I lomm., •"> G. ;_;, c. 7. 
 
 But the revolution which took place in our ecclesiastical polity in the 
 time of i tenry the Eighth has almost entirely changed the nature of this 
 of property; and there now seems to be scarcely any difference 
 between an inheritance in lands and an inheritance in tithes. When the 
 benefices which the regular clergy had appropriated to themselves fell, 
 upon the dissolution of the monasteries, into the hands of the king, he was 
 prompted by his profuseness, and induced by policy, to make grants of 
 them to lay-persons. But in order that the tithes might answer the pur- 
 poses of civil life, and accommodate themselves to the exigencies of their 
 new proprietors, it became necessaryto secularize them, and to endue them 
 with all the qualities of real property. For this purpose an act of parlia- 
 ment was passed ; so that tithes in the hands of a lay-person may now be 
 treated like any other kind of property: they may be put in view in an 
 e : they are demandable in a praecipe quod reddat : they are subject to 
 dower: fines may be levied, and recoveries may be suffered of them: 
 ejectments may be brought for them : in short, they have all the properties 
 and all the incidents of a- lay-fee, except that they lie in grant, and not in 
 ry : a distinction which now marks no great difference, since the statute 
 frauds allows no interest of any permanency to pass even in real pro- 
 the grant lie attested by some written instrument. 
 !. 3, ■-. 7. B; 3 Wile. 30.] 
 ler this title it will be proper to show, 
 ' M' u bat Tlni;-- Tithe is in general due. 
 
 e liable to the Payment of a jirrsunal Tithe. 
 Of what Things a predial Tithe is due. 
 1. Of Agistment. 
 •J. Of Corn. 
 
 3. Of Hay. 
 I. Of Wood. 
 
 1 1 1 ' •: v tiat Things a mixed Tithe is due. 
 
 2 Oj E is or Voting of a Bird or Until. 
 
 4. ' 
 
 Po whom ' paid.
 
 TYTHES. 7 
 
 (A) Of -what Things Tithes are in general due. 
 
 (F) To whom parochial Tithes are to be paid. 
 
 (G) To whom extra-parochial Tithes are to be paid. 
 
 (II) Of the Right to a Portion of Tithes in a Parish. 
 
 (I) By whom Tithe is to be paid. 
 
 (K) What Tithea are to be deemed small Tithes. 
 
 (L) How far the Custom of a Parish is to be regarded in the setting out of 
 
 (M) Of the Time and Manner of paying personal Tithes, where there is no I 
 in a Parish. 
 
 (N) Of the Time and Manner of setting out predial Tithes, where there is no Cus- 
 tom in a Parish. 
 
 (0) Of the Time and Manner of setting out or paying mixed Tithes, where there is 
 no Custom in a Parish. 
 
 (P) Of the Time and Manner of paying Tithes due by Custom. 
 
 (Q) In what Cases the Payment of Tithes may be suspended. 
 
 1. Of the Produce of Lands in the King's Hands. 
 
 2. Of the Produce of Lands which have been barren. 
 
 3. Of the Produce of Glebe Lands. 
 
 4. Of Discharge of Payment of Tillies by Composition real. 
 (R) Of a Modus decimandi. 
 
 1. In general. 
 
 2. Of the Certainty required in a Modus. 
 
 3. Of a Modus ichich amounts to a Prescription in non decimando. 
 
 4. Of a Modus tohich has not been constantly paid. 
 
 5. Of a leaping Modus. 
 
 6. Of a Modus which is too rank. 
 
 7. Of a Modus which is liable to fraud. 
 
 8. Of a Modus for such persons as live out of the Parish. 
 
 9. Of the extent of a Modus. 
 
 (S) Of a Prescription in Non decimando. 
 
 (T) Of a Discharge of Tithes by Grant. 
 
 (U) Of a Discharge of Tithes by Bull. 
 
 (W) Of a Discharge of the Payment of Tithes by Order. 
 
 (X) Of a Discharge of the Payment of Tithes by Unity of Possession. 
 
 (Y) Of Agreements and Leases concerning Tithes. 
 
 (Z) Of a Suit in a Spiritual Court for Subtraction of Tithe. 
 
 (Aa) In what Cases a Prohibition lies to a Suit in a Spiritual Court for Subtraction 
 
 of Tithe. 
 (Bb) Of a Suit in a Court of Equity for Subtraction of Tithe. 
 (Cc) Of a Suit in a Court of Equity to establish a Modus, or a customary Manner 
 
 of setting out Tithe. 
 (Dd) Of an Action upon the Statute against Subtraction of Tithe. 
 (Ee) Of recovering in a summary Way the Value of small Tithes subtracted. 
 (Ff ) Of recovering Tithe due from Quakers. 
 (Gg) What Remedy the Occupier has, when the Person entitled to the Tithe Bet out 
 
 does not fetch it away in a reasonable Time. 
 
 (A) Of what Things Tithes are in general due. 
 
 Titties of some things are due of common right, of others by custom. 
 Tithe is not clue of common right of any fruit of the earth which does 
 not renew a-nnually.
 
 8 TYTHES. 
 
 (A) Of what Things Tithes are in general due. 
 
 Tithe, which arises from a fruit of the earth, can never be part of the 
 land from which it arises, but must always be collateral thereto. 
 11 Rep. 13 ; Cro. Eliz. 161, 216; Cro. Ja. 452. 
 
 Nay, tithe is so collateral to the land from which it arises, that if a 
 lease be made of the glebe belonging to a rectory, with all the profits and 
 advantages thereof, and there be a covenant, that the rent to be paid 
 shall be in full satisfaction of every kind of exaction and demand belong- 
 ing to the rectory ; yet, if the glebe be not expressly discharged of tithe, 
 the lessee shall be liable to the payment of tithe for the glebe. 
 
 11 Rep. 13, Priddle v. Napier; Cro. Eliz. 161. \\See post, head (Q).|| 
 
 Tithe is not due of common right of the produce of a mine or quarry ; 
 because such produce does not renew annually, but is the substance of 
 the earth, and has perhaps been so for many years. 
 
 Fitz. N. B. 53 ; Bro. Dism. pi. 18 ; 2 Inst. 651 ; 1 Roll. Abr. 637 ; Cro. Eliz. 277. 
 
 But tithe may be due by custom of the produce of a mine or quarry. 
 2 Vern. 46, Buxton v. Hutchinson ; ||Gwill. Tithe Ca. 535. || 
 Tithe is not due of common right of lime ; the chalk, of which it is 
 made, being part of the soil. 
 
 1 Roll. Abr. 637, pi. 5. 
 
 Tithe is not due of common right of bricks ; because these are made 
 of earth. 
 
 2 Mod. 77, Stoutfield's case. 
 
 Tithe is not due of common right of turf or gravel ; because both 
 these are part of the soil. 
 1 Mod. 35. 
 
 It has been h olden, that tithe is not due of common right of salt ; be- 
 cause this is not a fruit of the earth. 
 1 Roll. Abr. 642, S. pi. 8. 
 
 But every one of these things, and all things of the like kind, may by 
 custom be liable to the payment of tithe. 
 
 1 Roll. Abr. 642, S. pi. 7, pi. 8. 
 
 Tithe is not due of common right of a house; because tithe is only 
 due of common right of such things as renew annually. 
 11 Rep. 16, Graunt's case. 
 
 But houses in London are by a decree,(«) which was confirmed by an 
 act of parliament, made Jiable to the payment of tithe. 
 
 2 Inst. 659 ; 37 E. 8, c. 12. \\(a) This decree, dated 24th February, 1545-6, ordered, 
 that the inhabitants of London should pay tithes to the parsons, vicars, and curates, at 
 the rate of Is. !]</. fur every 10.9. rent, and of 2s. 9d. fur every 20.s\ rent by tbe year. 
 The statute ;;7 II. 8, c. 12, enacted, that the decree, when concluded, " and enrolled in 
 tlie King's High Court of Chancery of record, should stand, remain, and be as an act 
 of parliament." After repeated searches, no enrolment lias ever been discovered. It 
 appears from the authentic edition of the statutes, published by the Commissioners 
 of Public Records, that the decree is not inserted in the earliest printed copies of the 
 Statutes of the year; that it does not form part of the art entered on the enrolment of 
 
 'i Mite in Chancery, nor is it enrolled in Chancery, nor annexed to the original act 
 preserved in the Parliament-office. From a copy of the endorsement on thedecreeen- 
 tered in the Register Book of the Bishop of London in St. Paul's cathedral, it appears 
 
 the decree, signed and sealed, was delivered, the ,\ n y alter the date, to Bonner 
 Bishop of London, by the Archbishop, &c, \\ hose names are signed thereto ; and that 
 the bishop delivered it to his registrar for safe custody. The original instrument has 
 not been found. The binding force of the decree under the statute depending on its
 
 TYTIIES. 9 
 
 (B) Who are liable to the Payment of a personal Tithe. 
 
 enrolment in Chancery, and no enrolment having been found, the question has been 
 mueli agitated, whether an enrolment can, at this distance of time, and after acquies- 
 cence in the decree to a great extent, be presumed. In llallam v. Adams, 23 Car. 1, 
 K. B. Roll. 1834, in an action for assault and false imprisonment, where the defend- 
 ant justified under the decree, and the plaintiff replied the non-enrolment, on which 
 issue was joined, the jury appear to have found that fchedecreewas enrolled in Chan- 
 cery. A like verdict is said to have been found in the Exchequer, (Branston v. 
 Cook, 1657,) but the record has not been found. In Anon. 1 Vent. R. 257, the court 
 are reported to have said, " If a record be lost, it may be proved to a jury by testimony ; 
 as the decree in Henry the Eighth's time for tithes in London is lost, "yet it has been 
 often allowed that there was one." In Macdougall v. Purrier, the plaintiff by his bill 
 claimed tithe of the defendant, an inhabitant of St. Helen's, Bishop-ate street, on the 
 footing of the act of parliament and decree; and on the suit coming on for hearing, 
 Sir John Leach, M. R., directed an issue, whether the decree was duly enrolled : add- 
 ing, that if he were the judge, he should direct the jury to presume an enrolment. 
 An appeal to the House of Lords from this decree is now pending. See 2 Eag. on 
 Tithes, 462 : and see M'Dougall v. Young, 2 Carr. & Pa. Ca. 278 ; Owen v. Nodin, 
 M'Clel. 239 ; 3 Eag. & Youn. 1149; Tyrwhitt's "Argument on the non-enrolment of 
 the decree." (1823.') As the statute and decree create a special jurisdiction before the 
 Lord Mayor for recovery of the tithes under the decree, it is doubtful whether an 
 action at "common law can be maintained for them. Meadhouse v. Taylor, Nov, 130 ; 
 Eag. & Youn. 172 ; M'Dougall v. Young, 2 Carr. & Pa. Ca. 278. But the jurisdiction 
 of the Courts of Chancery and Exchequer is not excluded by the act. Kynaston v. 
 Miller, Dick. 773 : 2 Ves. J. 567 ; Gwill. 903 ; Eag. & Youn. 196 ; Ivatt v. Warren, 
 3 Ea£. & Youn. 1203 : Gwill. 1054 ; Warden of St. Paul's v. Crickett, 2 Yes. J. 303 ; 
 Eag.°& Youn. 417 ; Gwill. 1425. For the decisions in the Court of Chancery and 
 Exchequer as to the construction of the act and decree, see Toller on Tithes, ch. 9 ; 
 Mirehouse on Tithes, p. 2, c. 7 ; Eagle on Tithes, c. 17. And as to the provision for 
 the clergy in those parishes where the churches were destroyed by the fire of London, 
 see 44 G." 3, c. 89. || 
 
 And before this decree many houses in London were by custom liable 
 to the payment of tithe, the quantum to be paid being thereby only set- 
 tled as to such houses for which there was no customary payment. 
 
 2 Inst. 659 ; Hard. 116 ; Gilb. Eq. Rep. 193, 194. 
 
 There is in most ancient cities and boroughs a custom to pay tithe of 
 houses ; without which there would not be in many parishes a proper 
 maintenance for the clergy. 
 
 11 Rep. 16, Graunt's case ; Bunb. 102. 
 
 It was holden by three barons of the Exchequer, Price, Montague, 
 and Page, contrary to the opinion of Bury, Chief Baron, that two tithes 
 may be due of the same thing, one of common right, the other by custom. 
 
 Bunb. 43, Earl of Scarborough v. Hunter. 
 
 (B) Who are liable to the Payment of a personal Tithe. 
 
 Such tithe as arises from the profit of a man's personal labour, in the 
 exercise of an art, trade, or employment, is called a personal tithe. 
 2 Inst. 049. 
 
 A personal tithe is only to be paid of the clear gain which arises from 
 the personal labour of a man, after deducting all charge and expense, 
 according to the estate, condition, or degree of the man. 
 
 2 Inst. G2, 658. 
 
 By the 2 & 3 Ed. 6, c. 13, §17, common day-labourers are exempted 
 from the payment of a personal tithe. 
 
 || By 2 & 3 Eel. 6, c. 13, §7, it is enacted, that all and every person 
 exercising merchandises, bargaining and sellinir, clothing, handicraft, or 
 other art or faculty, being such kind of persons and in such places as 
 heretofore within these forty years have accustomably used to pay such 
 
 Vol. X.— 2
 
 10 TYTHES. 
 
 (B) Who are liable to the Payment of a personal Tithe. 
 
 personal tithes, or of right ought to pay, (other than such as have been 
 common day-labourers,) shall yearly, at or before the feast of Easter, pay 
 for his personal tithes the tenth part of his clear gains ; his charges and 
 expenses, according to his estate, condition, and degree, to be thereon 
 abated, allowed, and deducted. 
 
 And by § 8. Provided always, that in all such places where handi- 
 craftsmen have used to pay their tithes within these forty years, the same 
 custom of payment of tithes is to be observed and continue.|| 
 
 Servants in husbandry are not liable to the payment of a personal 
 tithe ; for by their labour the tithes of many things are increased. 
 
 1 Roll. Abr. 046, pi. 1. 
 
 A miller is liable to the payment of a personal tithe. 
 
 2 Inst. 621 ; 1 Roll. Abr. 641, pi. 19; Cro. Ja. 523. 
 
 And it seems to have been formerly holden, that the occupier of a corn- 
 mill, besides being liable to the payment of a personal tithe, is also liable 
 to pay, as a predial tithe, the tenth part of his toll. 
 
 2 Roll. Rep. 84; Show. 281 ; Brownl. 32. 
 
 It is, however, now settled, by a decree of the House of Lords, upon 
 an appeal from a decree of the Court of Exchequer, that only a personal 
 tithe is due from the occupier of a corn-mill. 
 
 1 Eq. Cas. Abr. 366, Newte v. Chamberlain ; 1 Br. P. C. 157, S. C. ; [2 P. Wms. 
 463, S. C. cited. Vide Dodson v. Oliver, Bunb. 73. 
 
 A mill, it is now clearly settled, is to be considered as a predial tithe, 
 so far as respects its locality and the person to whom it is payable ; but 
 in the mode of payment it is to be treated as a personal tithe. The con- 
 sequence of its being treated as a personal tithe in the mode of payment 
 is, that only a tenth part of the clear profits, after deducting the rent 
 ami other incidental expenses, is due for it. Where no conventionary 
 rent is paid for it, as where it is not in lease, in that case an annual value 
 or rent must be set upon it by the officer of the court. 
 
 Hall v. Macket, E. 37 G. 3, in Scacc. ; ||and see Filewood v. Kemp, per Sir W. 
 Scott, 1 Ilagg. R. 494. And newly erected mills, for which no tithes have been paid 
 for forty years, are not within the seventh section of 2 & 3 Edw. 6, applying to per- 
 sonal tithes. Newte v. Chamberlayne, Dodd's MS. 204; 1 Bro. P. C. 107; Gwill. 
 59G ; 1 Eq. Ca. Ab. 366; 2 Ibid. 731. || 
 
 The occupier of a new-erected mill is liable to the payment of a per- 
 sonal tithe, although the mill be erected upon land discharged of tithes. 
 
 Cro. -I ■.. 129. 
 
 It is Baid in one book, that the occupier of an ancient mill is not liable 
 to the payment of a personal tithe; but that the occupier of a new mill 
 is, by the 9 Ed. 2, st. 1, c. 5, made liable thereto. 
 
 Mar. \~>, pi. 36. 
 
 This seems to be a mistake, for that statute only provides that new- 
 erected mills shall be liable to the payment of tithe; but as nothing is 
 therein said concerning ancient mills, there can be no doubt that such 
 ancienl mills, as before the making of that statute were liable to the pay- 
 ment of a personal tithe, continued afterwards t<> be liable thereto. 
 
 12 Mod. 243, Hart v. Hale; 3 Bulstr. 212. || Scd vide Gwill. Ca. 644, 871, 974, 
 1022, 130, i. by which cases it seems settled thattfor mills, as ancient as the 
 
 Itatute articuli cleri, 9 Edw. 2, st. 1, c. 5, no tithes arc payable.|| 
 
 |j Where the owner of an ancient mill, under the same roof, erects two
 
 TYTHES. 11 
 
 (C) Of what Things a predial Tithe is due. 
 
 new wheels, they are to be considered as two new mills ; and, on a bill 
 being brought for the tithe, he cannot cover them with the same modus. 
 Talbot v. May, 3 Atkins, 17. 
 
 And where it appeared that an ancient corn mill had been rebuilt, and 
 two pair of new stones added, Sir William Grant, M. 11., decreed an ac- 
 count aa to the two pair of new stones, observing that the cases on the 
 subject were not very easily reconcilable. 
 
 Manby v. Taylor, 3 Ves. & B. 71 ; and see 9 Price, 249 ; Gwill. Ca. 1720 ; 1 Ea<de 
 on Tithe, 390. 
 
 Mills used for the purpose of any trade or manufacture are not charge- 
 able with tithe ; as fulling mills, paper mills, lead mills, &c, unless by 
 special custom. And no tithe is payable for corn mills where they are 
 used, not for grinding corn of others for hire, but for grinding the miller's 
 own corn, for the purposes of sale in the business of a mealman or 
 baker ; and it is the same as to corn ground by a distiller for the purpose 
 of distillation. 
 
 Dandridge v. Johnson, 2 Roll. R. 84 ; Cro. Ja. 523 ; Wilson v. Mason, Gwill. 
 Ca. 974 ; 2 Eagle & Y. 240 ; Browne v. Woolsey, Exch. 1826 ; 1 Eagle on Tithe, 
 401. 
 
 Accordingly, the tithe owner has no right to a discovery by the miller 
 of the price at which he has sold meal ground by him ; but he has a 
 right to have a discovery of the quantity. 
 
 Chapman v. Pilcher, Wightw. 15 ; Gwill. 1653. 
 
 If the man who has let a ship to a fisherman receive, for the use of 
 his ship, a parcel of the fish which are caught, the fisherman is not liable 
 to the payment of a personal tithe for these fish, because they are no 
 part of his gain. 
 
 1 Roll. Abr. 656, N. pi. 2. 
 
 || By 2 & 3 Ed. 6, c. 13, § 11, it is provided, that this act shall not ex- 
 tend to any parish which stands upon and towards the sea coasts, the 
 commodities and occupying whereof consisteth chiefly in fishing, and 
 have, by reason thereof, used to satisfy their tithes by fish; but that all 
 and every such parish and parishes shall hereafter pay their tithes 
 according to the laudable customs, as they have heretofore of ancient 
 time, within these forty years, used and accustomed. 
 
 See Eagle on Tithe, ch. 7, § 2. 
 
 If a man purchase a house for three hundred pounds, and after sell it 
 for five hundred, no personal tithe is due, for the personal labour bears 
 no proportion in this case to the profit. 
 
 1 RoU. Abr. 056, N. pi. 3. 
 
 If an innkeeper have such profit out of his kitchen, cellar, and stables, 
 as to make two hundred pounds of what cost him only one hundred, no 
 personal tithe is due, because the profit did not in this case arise from per- 
 sonal labour alone; and so far as it did, it arose perhaps more from the 
 personal labour of servants than from that of the master of the inn. 
 
 2 Bulstr. 141, Dolly v. Davis. 
 
 (C) Of what Things a predial Tithe is due. 
 
 Such tithe as arises immediately from the fruit of the earth, as from 
 corn, hay, hemp, or hops, or from any kind of fruit, seed, or herb, is 
 called a predial tithe. 
 2 Inst. 649.
 
 12 TYTHES. 
 
 (C) Of what Things a predial Tithe is due. 
 
 It is so called because it arises miinediately from a fruit of the farm 
 or earth. 
 Inst. G47. 
 
 Divers things are by the ecclesiastical law liable to the payment of a 
 predial tithe, which by the common law are not. 
 4 Mod. 344. 
 
 The design under this head is to show what things are liable by the 
 common law to the payment of a predial tithe. 
 
 In doing this it will appear that some things, which are in general ex- 
 empted therefrom, become by custom liable to the payment of a predial 
 t i I he. 
 
 1 Roll. Abr, G37, E, pi. 2 ; 1 Roll. Abr. 642, S, pi. 7, 8. 
 
 It will also appear that some things, which are in general liable 
 thereto, are under particular circumstances exempted from the payment 
 of predial tithe. 
 
 1 Roll. Abr. 645, pi. 11 ; Cro. Eliz. 475 ; Freem. 335 ; 12 Mod. 235. 
 
 But wherever any fraud is used to bring a thing under a circumstance, 
 by reason of which it would, if it had come fairly thereunder, have been 
 exempted from the payment of a predial tithe, it is by such fraud 
 rendered liable thereto. 
 
 Cro. Eliz. 475 ; Freem. 335. 
 
 As it would be tedious to enumerate all the things which are liable to 
 the payment of a predial tithe, only those shall be mentioned concerning 
 the tithe of which some question has arisen ; but from those which shall 
 be mentioned, it may be easily collected of what other things a predial 
 tithe is due. 
 
 1. Of Agistment. 
 
 Agisting, in the strict sense of the word, means depasturing a beast the 
 
 property of a stranger ; but, in its legal sense, it means depasturing the 
 
 1 -t of the occupier of the land as well as the beast of a stranger. 
 
 /3 Jones Bailm. 91 ; 1 Bell's Comm. 458; Holt's N. P. Rep. 547 ; Story, Bailm. 
 I 443 ; Bouv. L. D. h. \.£j 
 
 \ Agistment tithe is paid, not for the increase or improvement of the 
 
 animal agisted, but for the grass eaten by it, and is proportioned to the 
 
 value of the grass, not to the value of the actual improvement. But, 
 
 being the tithe of the grass eaten, it arises immediately from the soil, 
 
 and is therefore a predial tithe. 
 
 Scan- v. Trinity College, Anstr. 761 ; Ellis v. Saul, Ibid. 332 ; Holbeach v. Whad- 
 ., [Iardr. 184; Linw. 194; Degge, 217. 
 
 Where, therefore, the occupier of land does not agist his own cattle, 
 but those of strangers, the tithe for the agistment of barren cattle is 
 from the occupier, as being owner of the grass for which the tithe 
 i^ paid : but if the cattle arc profitable, the owner of them is account- 
 able for the tithes. 
 
 ■od v. Gibbon, Bunb. 3 ; Fisher v. Lcman, 9 Vin. Abr. 38, pi. 7. 
 
 Agistment tithe being the tithe of the grass, it follows, that if the 
 gra before paid tithe of hay, no tithe is due for the agistment of 
 
 to'' i iath. 
 
 Saul, ubi iuprd.] ||This doctrine is confirmed by the ease of Batchelor v.
 
 TYTHES. 13 
 
 (C) Of what Things a predial Tithe is due. 
 Smallcombe, 3 Madd. 12, where all the authorities are reviewed. The reasons fur it 
 are not very satisfactory. || 
 
 An occupier of land is not liable to the payment of tithe, for depastur- 
 ing horses or other beasts used in husbandry in the parish in which they 
 are depastured, because the tithe of other things is by the work of such 
 beasts increased. 
 
 1 Roll. Abr. 640, pi. 2, pi. 3, pi. G, pi. 7 ; Cro. Eliz. 446 ; Ld. Raym. 130. 
 
 But, if horses or other beasts are used in husbandry out of the parish 
 in which they are depastured, an agistment tithe is due for such beasts. 
 7 Mod. 114, Harrow's case ; Ld. Raym. 130 ; [Bosworth v. Limbrick, 2 Raym. 809.] 
 
 It seems to be the better opinion, that tithe is not due for depasturing 
 a saddle-horse which an occupier of land keeps for himself or servant to 
 ride upon. 
 
 1 Roll. Abr. 641, pi. 4 ; Cro. Ja. 430 ; Bulstr. 171 ; Bunb. 3. 
 
 But an occupier of land is liable to an agistment tithe for depasturing 
 a horse which he keeps for sale. 
 
 Cro. Ja. 430, Hampton v. Wild ; 1 Roll. Abr. 647, pi. 14. [Coach horses are liable 
 to the payment of an agistment tithe : Thorpe v. Bendlowes, 3 Burn's E. L. 440. J 
 j|But it seems that in this case the horses were occasionally used in drawing coals, 
 manure. &c. ; otherwise it would be difficult to distinguish the case from that of saddle- 
 horses used for pleasure. See 3 Wood, 38 ; Gwill. 899 ; 2 Eag. & Youn. 193 ; and 
 qiuere, whether such occasional employment for profit would render coach-horses sub- 
 ject to agistment tithe? See Stevens v. Aldridge, 5 Price, 350. || 
 
 [Horses kept on one farm for its cultivation, and used occasionally on 
 another farm in a different parish, shall not pay agistment tithe. Seeds, 
 if habitually so used. 
 
 Filewood v. Button, Anst. 498.] ||See 5 Price, 350.|| 
 
 Tithe is not due for depasturing milch cattle, which are milked in the 
 parish in which they are depastured ; because tithe is paid of their milk. 
 
 1 Roll. Abr. 646, pi. 2 ; Cro. Eliz. 446. 
 
 If cows are reserved for calving, tithe is not due for depasturing them 
 whilst they are dry ; but if they are afterwards sold, or milked in another 
 parish, an agistment tithe is due for the time they were dry. 
 
 Hetl. 100. 
 
 Tithe is not due from an occupier of land for depasturing young cattle, 
 which are reared to be used in husbandry, or to be milked. 
 
 Cro. Eliz. 476, Sherington v. Flewood. 
 
 But if such young beasts are sold before they come to such perfection 
 as to be fit for husbandry, or before they give milk, tithe is to be paid 
 for depasturing them. 
 
 Hetl. 86, AVoolmerston's case. 
 
 An occupier of land is liable to tithe for depasturing cattle which he 
 keeps for sale. 
 
 Jenk. 281, pi. 6 ; Cro. Car. 237 ; Show. P. C. 192. 
 
 If cattle, which have neither been used in husbandry nor been milked, 
 are, after having been kept some time, killed to be spent in the family 
 of the occupier of the land on which they were depastured, tithe is not 
 due for depasturing them. 
 
 Jenk. 281, pi. 6 ; Cro. Eliz. 446, 476 ; Cro. Car. 237. 
 
 B
 
 14 TYTHES. 
 
 (C) Of what Things a predial Tithe is due. 
 
 It is in general true, that tithe is due for depasturing cattle which 
 are the property of a stranger. 
 
 Cro. Eliz. 476 ; Bunb. 1 ; Freem. 329. 
 
 If an innkeeper put the horse of his guest into a pasture in his own 
 occupation, he is liable to tithe for depasturing the horse. 
 
 Ilardr. 35, Guilbert v. Eversley ; Poph. 142. 
 
 Tithe is not due for depasturing any beast upon land which has in the 
 same year paid tithe of hay. 
 
 Poph. 142 ; 2 Boll. Bep. 191. [Vide 3 Burn's E. L. 448, and Bateman v. Aistrup, 
 2 Raym. 692;] ||Batchelor v. Smallcombe, 3 Madd. 12; Gwill. 1864; 3 Eag. & Y. 
 909.|| 
 
 Tithe is not due for depasturing any beast upon the headland of a 
 ploughed field, provided the headland be not wider than is sufficient to 
 turn a plough and horses upon. 
 
 1 Boll. Abr. 646, pi. 19. [Vide Baternan v. Aistrup, 2 Baym. contr.~\ 
 
 Tithe is not due for depasturing cattle upon land which has in the 
 same year paid tithe of corn. 
 
 Bro. Dism. pi. 18. 
 
 If land, which has paid tithe of corn in one year, be left unsown the 
 next year, tithe is not due for depasturing a beast upon the land ; because, 
 by its lying fresh, the tithe of the next crop of corn is increased. 
 
 1 Boll. Abr. 642, pi. 9. 
 
 But if land, which has paid tithe of corn, be suffered to lie fresh longer 
 than by the course of husbandry is usual, tithe is due for depasturing a 
 beast upon the land. 
 
 Sheph. Abr. part 4, D. 104. 
 
 As the questions, Whether tithe is due for depasturing sheep, and in 
 what cases it is due, do not seem to be settled, it wall not be amiss to 
 mention the principal cases in which these questions have been agitated. 
 
 It is laid down in one case, that tithe is not due for depasturing sheep, 
 because they are animalia fructuosa. 
 
 1 Boll. Bep. 63, pi. 7, Mascal v. Price, Mich. 12 Ja. 1. 
 
 But in another book of the same author's, where this case is mentioned, 
 there is a dubitatur. 
 
 1 Boll. Abr. 642 B., pi. 8. 
 
 In a case not long after, it was holden, that tithe should be paid for 
 sheep which, after having been depastured in one parish from Michael- 
 mas-day to Lady-day, were removed into another ; for otherwise the 
 parson of the first parish may be defrauded of his tithe ; for the sheep, 
 which have been carried into a second parish, may not be brought back 
 and sheared in the first. 
 
 Poph. 197, Anon., Mich. 2 Car. 1. ||Where sheep were fed in one parish, and for 
 several years were removed into another just before the shearing and lambing season, 
 and afterwards brought back again, it was held a fraud inequity, and an account was 
 decreed of the number so removed. Hall v. Maltby, Price, 240 ; Gwill. 1888 ; 3 Eag. 
 .v fou. 9 
 
 It was, however, said in this case by Whitelock, J., that de animalilus 
 inutilibu8, as horses, oxen, &c, the parson shall have agistment tithe ; but 
 that de animalibus utilibus, as cows, sheep, &c, he shall have tithe in kind. 
 
 in one case it is said to have been holden, that tithe is not to be paid
 
 TYTHES. 15 
 
 (C) Of what Things a predial Tithe is due. 
 
 for depasturing sheep which are afterwards eaten in the house of the oc- 
 cupier of the land. 
 
 Cro. Car. 237, Facey v. Long, Mich. 7 Car. 1. 
 
 It would follow as a necessary implication from the doctrine of this 
 case, that tithe is due for depasturing sheep which are not afterwards 
 eaten in the house of the occupier of the land. 
 
 But in another report of the same case it is said to have been holden, 
 that tithe is not due for depasturing wethers; because they will yield a 
 tithe of wool. 
 
 1 Roll. Abr. 647, pL 13. 
 
 In one modern case in the Court of Exchequer it is said, that it seemed 
 to be admitted, that tithe is due for depasturing yearling sheep. 
 
 Bunb. 90, Baker v. Sweet, Mich. 8 G. 1. 
 
 In another case shortly after in the same court, it appeared, that sheep, 
 after paying tithe of wool, had been fed upon turnips not severed, by 
 which they were bettered to the value of five shillings each ; and that they 
 were then sold. It also appeared, that the defendant had, before the 
 next shearing-time, bought in as many as were sold ; and that of these tithe 
 of wool was paid. It was insisted that if an agistment tithe were to be 
 paid for the sheep sold, and tithe of wool for those bought, this would be 
 a double tithing ; but the court decreed the defendant to account for an 
 agistment tithe for the sheep sold. 
 
 Gilb. Rep. in Eq. 231, Coleman v. Baker, Pasch. 12 G. 1. 
 
 In the latter case, the case of Dummer and Wingfield, H. 1 W. ^ M., 
 was mentioned, in which it had been decreed, that the decree had been 
 affirmed upon a rehearing, that tithe, for depasturing sheep, from the 
 time they were sheared until they were sold, should be accounted for. 
 
 In a still later case, the Court of Exchequer were of a quite different 
 opinion. A bill being brought for the tithe of depasturing sheep four 
 months in a parish after they had been shorn, and tithe of their wool had 
 been paid in that parish, it appeared, that at the end of the four months 
 they were removed into another parish, and that they were shorn there 
 at the next shearing-time. In this case, the cases of Coleman and Baker, 
 and of Dummer and Wingfield, were cited by the plaintiff's counsel : but 
 the court decreed, that tithe should not be paid for depasturing sheep ; 
 because they are animalia fructuosa. 
 
 Bunb. 313, Poor v. Seymour, Ilil. 5 Geo. 2. 
 
 [The doctrine advanced in this case ' has, however, been overruled in 
 later cases, upon this principle, that the tithe of wool being payable only 
 in the parish where the sheep are shorn, they are not animalia fructuosa 
 in the parish wherein they have been only agisted, and therefore shall 
 pay an agistment tithe. 
 
 Bateman v. Aistrup, 2 Ravm. 658 ; Howes v. Carter, Anstr. 560. See Ellis v. Saul, 
 1 Anstr. 332; QwilL 1326; 2 Eag. & Y. 360; Ellis v. Termor, Gwill. 1022, l"i6.] 
 
 || Sheep are prima facie considered animalia fruetuosa, and therefore 
 not subject to agistment tithe ; and if the plaintiff seek.-, to recover such 
 tithes, he must state the special circumstances which entitle him to it. 
 
 Turner v. "Williams, 3 Anst. 829 ; Gwill. 1456. 
 
 "Where a vicar claiming agistment tithe showed that he alone had al- 
 ways taken the other small tithes, he was held entitled to agistment, though
 
 16 TYTHES. 
 
 (C) Of what Things a predial Tithe is due. 
 
 it had never been received or demanded, and although it appeared that 
 the crown, by an ancient grant, had conveyed to certain lay impropriators 
 tithe, not only of grain and hay, but of "herbage ;" for "herbagium" 
 does not necessarily cover agistment tithe, unless perception be proved. 
 Byani v. Booth, 2 Price, 231 ; Scott v. Lawson, 7 Pri. 267, Wood, B., diss.\\ 
 
 2. Of Com. 
 
 It is laid down in divers cases, that tithe is not due of the ratings of 
 corn involuntarily scattered. 
 1 Roll. Abr. G45, pi. 11 ; Cro. Eliz. 475 ; Moor, 278 ; Freem. 335. 
 
 But if more corn be fraudulently scattered, than if proper care had 
 been taken would have been scattered, tithe is due of the rakings. 
 Cro. Eliz. 475 ; Freem. 335. ||Vide 2 Wood, 47. || 
 
 It is said by Holt, C. J., that tithe is due of the rakings of all corn, 
 except such as is bound up in sheaves. 
 12 Mod. 235. 
 
 ||When the course of harvesting pursued by a farmer is such that a 
 considerable quantity of barley rakings is necessarily left after the bar- 
 ley is bound into sheaves, the parson is entitled to tithe of these rakings, 
 although no fraud is imputed to the farmer, and though as little rakings 
 are left as is possible in that mode of husbandry. 
 Glanvill v. Stacey, G Barn. & C. 543 ; and see 1 Hagg. R. 487. || 
 
 [If stubble be used, partly for fodder, and partly for manure, so that 
 the whole of it is consumed in husbandry, it is not subject to the payment 
 of tithe : though it would be otherwise, perhaps, if an unusual quantity 
 of it were left, in order to make a fraudulent profit of it. 
 
 Teunnant v. Stubbing, Anstr. 640;] ||Gwill. 1438 ; 2 Eag. & Y. 425, S. C.|| 
 
 3. Of Emj. 
 
 Hay is liable to the payment of tithe, notwithstanding beasts of the 
 plough or pail, or sheep are to be fed therewith. 
 
 Cro. Ja. 47 ; Webb v. Warner, 1 Roll. Abr. 650, pi. 12 ; 12 Mod. 497. 
 
 But tithe is not due of hay grown upon the headland of a ploughed 
 field, provided the headland be not wider than is sufficient to turn a 
 plough and horses upon. 
 
 1 Roll. Abr. 646, pi. 19. 
 
 It is laid doAvn in one case, that if a man cut grass, and while it is in 
 the swathe, carry it, and feed his plough cattle therewith, not having 
 sufficient sustenance for them othcnvise, tithe is not due thereof. 
 
 1 Roll. Abr. 645 ; ||8 Vin. Ab. (Z,) pi. 7, p. 587 ; Burn's Ecc. L. v. iii, 467 ;|| Craw- 
 ley v. Wells, Mich. 9 Car. 1. 
 
 And in a much later case, the Court of Exchequer seemed to be of 
 opinion, that tithe is not due of vetches or clover cut green and given to 
 cattle used in husbandly. 
 
 l'.mili. 27'), Hayes v. Dowse, Ilil. 3 G. 2. ||The question did not arise on the plead- 
 ings in this case. See 6 Price, 361, note.|| [And the law is so clear, that grass newly 
 mi and i ii ii liv agricultural cattle is nut titheahle, that in a late case, the bill, as to 
 this point, was dismissed with costs. Collier v. Hawse, Anstr. 481.] ||And see Man- 
 tell v. Payne, 4 Gwill. L511 : 3 Bag. & Y. 1380; 6 Price, 302, note. But to exempt 
 such grass, &c, from tithe, it is necessary that there be an insufficiency of other foddei
 
 TYTHES. 17 
 
 (C) Of what Things a predial Tithe is due. 
 
 or sustenance on the farm, and that the cattle fed should be used in husbandry ; and 
 both those are questions of fact -which it is fit to leave to a jury. Stevens v. Aldridge. 
 5 Price, 334. And " fodder," and " sustenance" extend to dry food as well as green : 
 so that the grass, &c, given to cattle used in husbandry is not exempted from tithe, if 
 there is sufficient food of any sort on the farm. Dorman v. Scars, 6 Price R. 338 ; 
 Gwill. 1897 ; and see M'Clel. 113 ; Gwill. 2055 ; 13 Price, 394 ; Eagle on Tithe, 
 v. i. 456.|| 
 
 But in a case some years prior to the latter case, it was liolden that a 
 right to tithe of hay accrues upon the mowing of the grass ; and that 
 the subsequent application thereof, either while it is in grass, or after it 
 is made into hay, shall not, although beasts of the plough or pail are fed 
 therewith, take away the right. 
 
 12 Mod. 498, Selby v. Bank, Pasch. 13 W. 3. ||See Willis v. Stone, 1 Young. & 
 J. 2G2.il 
 
 And the doctrine of the last case coincides with that of an old case, in 
 which it is laid down, that tares cut green, and given to beasts of the 
 plough, may by special custom be exempted from the payment of tithes : 
 from whence it follows, that such tares are not in the general exempted 
 therefrom, (a) 
 
 Cro. Car. 393, Mead v. Thurman, Ilil. 10 Car. \\(a) Unless in the absence of all 
 other sustenance. See the cases supra, and see Toll, on Tithes. 83 ; Gwill. 1511. || 
 
 It is laid down in divers books, that tithe is not due of aftermath hay, 
 because tithe can only be due once in the same year from the same land. 
 2 Inst. G52 ; Cro. Ja. 42 ; Ld. Pvaym. 243. 
 
 But it is in other books laid down, that tithe is due of aftermath hay. 
 Cro. Eliz. 660 ; Cro. Ja. 116 ; Cro. Car. 403 ; 12 Mod. 498 ; Bunb. 10. Bunbury 
 makes a qucere as to this point. 
 
 And it has been holden in two modern cases, that if divers crops are 
 grown upon the same land in the same year, tithe is to be paid of every 
 crop. 
 
 Bunb. 10, Benson v. Watkins, Hil. 3 G. 1 ; Bunb. 314, Swinfen v. Digbv, Ilil. 
 3G. 2. 
 
 || It is now settled that tithe of aftermath is due of common right, and 
 
 that, in order to discharge it, a special custom must be shown ; as, for 
 
 example, that the occupiers had been accustomed to make the first vesture 
 
 into hay, and to pay the tenth cock thereof, well dried, in satisfaction of 
 
 tithe of the first vesture and aftermath, which was held a good discharge. 
 
 Cro. Eliz. 446 ; 1 Roll. Abr. 640 ; Gwill. 531, 473 ; Cro. Eliz. 660 ; Moore, 910 ; 
 Cro. Ja. 116 ; and see Mirehouse on Tit. p. 40. 
 
 As to the mode of tithing hay, see post, p. 43. 
 
 4. Of Wood. 
 
 It is said in one case, that, before the constitution of Stratford, wood 
 was only tithable in particular places by custom ; because wood does not 
 renew annually. 
 
 12 Mod. 111. 
 
 By that constitution, which was made in the seventeenth year of the 
 reign of Edward the Third, it was ordained, that tithes should be paid! 
 within the province of Canterbury of sylva cccdua. 
 
 2 Inst. 642. 
 
 In the next year, the commons complained to the kins: of that constitu- 
 Vol. X.— 3 b 2
 
 18 TYTHES. 
 
 (C) Of what Things a predial Tithe is due". 
 
 tion, as an unprecedented thing; and petitioned, that the people might 
 remain in the same state as they had been under his royal progenitors, 
 and that a prohibition might be granted for all who should be impleaded 
 in court Christian for tithe of wood. 
 2 Inst. 642. 
 
 The answer was, The king willeth that law and reason be done. 
 2 Inst. 642. 
 
 In another petition, presented in the twenty-first year of the same reign, 
 the commons complained to the king, that the clergy, by virtue of the con- 
 stitution made in the seventeenth year of his reign, demanded tithes both 
 of gross wood and underwood, whether the latter were sold or not. 
 
 2 Inst. 642. 
 
 To this the king 1 answered, that the archbishop of Canterbury and the 
 other bishops have answered, that tithe is only demanded by virtue of 
 that constitution, of underwood. 
 
 5 Inst. 642. 
 
 After other petitions had been in vain presented by the commons, the 
 great men of the realm did, in the forty-fifth year of the same reign, 
 join with the commons in a petition. 
 
 j|Vide these Petitions, Gwill. 4, 5.|| 
 
 In consequence of this petition, a statute was in the same year made in 
 the following words : " At the complaint of the great men and commons, 
 showing by their petition, that when they sell their gross wood, of the age 
 of twenty or forty years, or of a greater age, to merchants, to their own 
 profit, and to the aid of the king in his wars, the parsons and vicars of 
 holy church do implead, and trouble the said merchants in court Christian, 
 for the tithes of the said wood, under the denomination of silva ccedua, 
 by reason of which they cannot sell their wood for the real value, to the 
 great damage of themselves and the realm, it is ordained and established, 
 that a prohibition in this case shall be granted, and upon the same an 
 attachment, as it hath hitherto been." 
 45 Ed. 3, c. 3. 
 
 From these petitions and answers and this statute-it appears plainly, 
 that the demand of tithe of wood, by virtue of the constitution made in 
 the seventeenth year of the reign of Edward the Third, was, at least as 
 to gross wood, an encroachment. 
 
 2 Inst. 642 ; 45 Ed. 3, c. 3 ; Plow. 470; Bro. Prohib. pi. 1 ; Cro. Ja. 100. 
 
 After the making of this statute, prohibitions were constantly granted 
 to suits instituted in spiritual courts for tithe of gross wood : but two ques- 
 tions frequently arose ; namely, What is gross wood ? and of what age 
 gross wood must be, before it is exempted from the payment of tithe ? 
 
 2 Inst. 043, 644, 645. 
 
 For the putting of an end to these questions, it has been long settled, 
 that by gross wood is not meant high or large wood, but such wood as is 
 generally, or by the custom of a particular part of the country, used as 
 timber ; and that all such wood, if it be of the age of twenty years, is 
 exempted from the payment of tithe. 
 2 Inst. 642, 643 ; Cro. Eliz. 1 ; 12 Mod. 524. 
 
 The wood of oaken, ashen, and elmen trees being universally used as
 
 TYTHES. 19 
 
 (C) Of what Things a predial Tithe is due. 
 timber, it has been constantly holden, that such trees, if of the age of 
 twenty years, are gross wood. 
 
 2 Inst. G42. 
 
 It was holden upon great deliberation, notwithstanding what is laid 
 down to the contrary in Plow. 470, that hornbeam trees, if of the age 
 o'f twenty years, are gross wood ; because the wood of such trees is fre- 
 quently used in building and repairing. 
 
 2 Inst. G43. 
 
 It has for the same reason been holden, that an aspen tree, if of the 
 age of twenty years, is gross wood. 
 
 2 Inst. 643. 
 
 Tithe is in general due of beechen, birchen, hazel, willow, fallow, alder, 
 maple, and white-thorn trees, and of all fruit trees, of what age soever 
 they are ; because the wood of these trees is not often used as timber. 
 
 Plow. 470 ; Cro. Eliz. 1 ; Cro. Ja. 199 ; 1 Roll. Abr. 640, pi. 5, pi. 6 ; Brownl. 94. 
 
 But if the wood of any of these trees be frequently used, in a particu- 
 lar part of the country where timber is scarce, in building or repairing, 
 tithe is not due of such trees, if they are of the age of twenty years. 
 
 Hob. 219; Brownl. 94; HGwill. 357.|| 
 
 It is laid down in divers cases, that if a timber tree, after it is of the 
 age of twenty years, decay, so as to be of no use for repairing or building, 
 tithe is not due of the wood of this tree ; because it was once privileged. 
 
 11 Rep. 48 ; Cro. Eliz. 477 ; Cro. Ja. 100 ; 1 Roll. Abr. 640, pi. 2. 
 
 But the contrary is laid down in some other cases. 
 
 In two of these it is laid down, that if the wood of a coppice has been 
 usually felled for firing, such wood shall pay tithe, although it stand till 
 it be forty years of age. 
 
 Sid. 300 ; 1 Lev. 189. 
 
 In another it is laid down, that if the wood of a timber tree be sold for 
 firing, it is, although the tree be of the age of twenty years, liable to the 
 p;i}-ment of tithe. 
 
 Bunb. 99 ; ||1 Wood. 479 ; 1 Eag. & Yo. 677 ;|| Greenway v. The Earl of Kent, Hil. 
 7 O. 1. 
 
 The doctrine, however, of the former cited cases has been confirmed in 
 a modern case. 
 
 A bill being brought for tithe of the loppings of timber trees, which had 
 been sold for firing, it was insisted that this wood, which would otherwise 
 have been exempted from the payment of tithes, was liable thereto, because 
 it was sold for firing ; and some of the cases above cited were relied upon. 
 
 MS. Rep., Walton v. Tryon, Mich. 25 G. 2 ; [Ambl. 130.] 
 
 The bill was dismissed ; and by Lord Hardwicke, Chancellor. 
 
 ||Gwill. 827 ; 2 Eag. & Yo. 123, S. C.|| 
 
 In the cases in 1 Lev. 189, and Sid. 300, the wood in question was 
 coppice wood, which had been usually felled for firing ; and consequently 
 these cases do not conclude to the point, because such wood, of what age 
 soever it be, is tithable. "What is laid down in the case of Greenaway and 
 the Earl of Kent, is not now law ; for in the case of Bybe and Huxley, 
 Hil. 11 Geo. 1,(«) which was subsequent thereto, it was agreed that tithe 
 is not due of the wood of a timber tree which has been once privileged 
 from the payment of tithe, although such wood be sold for firing. 
 
 ||(a) 2 Wood, 237 ; I Eag. & Yo. 805 ; Gwill. 657. ||
 
 20 TYTHES. 
 
 (C) Of what Things a predial Tithe is due. 
 
 It is in one book laid down, that the loppings of a timber tree, which 
 are of twenty years' growth, are exempted from the payment of tithe, 
 because loppings of that age may be useful in building. 
 
 Plow. 470, Soby v. Molins ; ||1 Eag. & Yo. 60, S. C.|| 
 
 But it is laid down in divers other books, that if a timber tree of tlft 
 age of twenty years be lopped, tithe is not to be paid of the loppings, 
 although they are not of twenty years' growth ; for that as the tree is 
 exempted from the payment of tithe, the loppings are likewise exempted. 
 
 Bro. Dism. pi. 14 ; 11 Rep. 48 ; Cro. Eliz, 478 ; Godb. 175 ; 1 Roll, Abr. 640, pi. 3. 
 
 And the doctrine of the latter cited books was confirmed in the case 
 of Walton and Tryon. 
 
 In this case, it appeared that the loppings of the trees, for the tithe of 
 which the bill was brought, were not of twenty years' growth : but it ap- 
 peared that the trees were of the age of twenty years, before they had ever 
 been lopped. It was decreed by Lord Hardwicke, that tithe was not due 
 of the loppings ; for that if a tree be once privileged from paying tithe, 
 the privilege extends to all future loppings, of whatsoever age they are. 
 
 [3 Burn's E. L. 452;] ||2 Eag. & Yo. 123; Gwill. 827.|| 
 
 It has been holden, that although a tree was lopped before it was of 
 the age of twenty years, the future loppings of the tree, if they are of 
 twenty years' growth, are not liable to the payment of tithe. 
 
 I Roll. Abr. 640, pi. 1. 
 
 But in the case of Walton and Tryon, it was laid down by Lord Hard- 
 wicke, that if a tree was lopped before it was of the age of twenty years, 
 all future loppings, of how many years' growth soever they may be, are 
 liable to the payment of tithe. 
 
 It has been holden that if a tree, which was privileged from paying 
 tithe, be felled, the germins that spring from the root of the tree are 
 likewise privileged. 
 
 II Rep. 48, Liford's case. 
 
 But in the case of Walton and Tryon it was holden, that all germins, 
 which spring from the roots of trees that have been felled, are liable to 
 the payment of tithe. 
 
 || This decision has been confirmed, (in opposition to the doctrine laid 
 down in 2 Inst. G43,) by recent cases ; in one of which the Court of B. 
 It. decided, that young oak wood of more than twenty years' standing, 
 not springing from acorns, but from old stools of felled timber trees of 
 more than twenty years growth, was not exempted from tithe. 
 
 Ford v. Racster, 4 Maule & S. 130 ; Gwill. 1729 ; and see Chichester v. Sheldon, 
 1 Turner, 245 ; 3 Eag. & Yo. 1102 ; Gwill. 2072, S. C. ; Lewis v. Snell, Gwill. 1720; 
 3 Eag. & Yo. 1388; Evans v. Rowe, 1 M'Clel. & Y. 577. Sed vide the N. P. case of 
 Unde'rwood v. Buckle, 1 Eagle on Tithe, 251 ; and see this subject observed upon at 
 length, 1 Eagle on Tithe, 23 I, et*eg.\\ 
 
 The wood of a coppice, which has usually been felled for firing, is liable 
 to pay tithe, although the same be of the age of forty years. 
 
 1 Lev. 189 ; Sid. 300. 
 
 And in the case of Walton and Tryon it was laid down by Lord Hard- 
 wicke, that if, when the wood of a coppice is felled, some trees growing 
 therein, which are of the age of twenty years, and have never been lopped, 
 are lopped, and the loppings are promiscuously bound up in faggots with 
 the coppice wood, tithe must be paid of the whole ; for that it would be
 
 TYTHES. 21 
 
 (C) Of what Things a predial Tithe is due. 
 
 very difficult to separate the tithable wood from that which is not so, 
 and the owner ought to suffer for his folly, in mixing the latter with the 
 former. 
 
 If a tree, or the lopping of a tree, is exempted from the payment of 
 tithe, the bark of the tree or lopping is likewise exempted. 
 
 11 Rep. 48, Liford's case; Freem. 334. 
 
 The words silva ccedua are sometimes used as if they signified the same 
 as the word underwood: but the former words are of a much larger sig- 
 nification ; for under the words silva ccedua is included every sort of 
 wood, except gross wood of the age of twenty years. 
 
 It appears, from what has been already mentioned, that tithe is in 
 general due of silva ccedua. 
 
 If young trees are taken out of a nursery in one parish, and sold to 
 be planted in another parish, tithe is due thereof; else the parson might 
 be deprived of the tithes of his whole parish, by converting the land 
 into nurseries. 
 
 1 Roll. Abr. 637, pi. ; Cro. Car. 526. 
 
 And it is in one case laid down, that tithe is due of young trees 
 taken out of a nursery} although they are sold to be planted in the same 
 parish. 
 
 Hard. 380, Grant v. Hadding; ||Gibbs v. Wybourne, Gwill. 501. || 
 
 But, although it be in the general true, that silva ccedua is liable to 
 the payment of tithes, yet such wood is, under certain circumstances, 
 exempted therefrom. 
 
 If silva ccedua be used in the parish wherein it grew to burn bricks for 
 the repairing or necessary enlarging of the house of a parishioner, tithe - 
 is not due thereof. 
 
 1 Roll. Abr. 645, pi. 8, pi. 9. 
 
 But, if such wood be used to burn bricks for enlarging a house more 
 than is necessary for the family of the parishioner, tithe is due thereof. 
 
 2 Roll. Abr. 645, pi. 10. 
 
 It is laid down in two cases, that silva ccedua is exempted from the 
 payment of tithe, when it is burnt in the house of an inhabitant of the 
 parish wherein it grew. 
 
 Cro. Eliz. 609, Austin v. Lucas, Pasch. 40 Eliz. ; Ellis v. Drake, Pasch. 14 Jac. 1 ; 
 ||Gwill. 829. See Willis v. Stone, infra.\\ 
 
 But in a case, not many years subsequent to these, it is laid down, 
 that such wood is only exempted from the payment of tithe when it is 
 burnt in the house of a parishioner, who occupies land in the parish 
 wherein it grew. 
 
 Sid. 447, Tilden v. Waller, Pasch. 22 Car. 1 ; 1 Yentr. 75. 
 
 And from a still later case it may be inferred, that such wood is only 
 exempted from the payment of tithe when it is burnt in the house of an 
 occupier of land in the parish in which it grew, for the necessary use of his 
 family ; for it is therein laid down, that if the wood be used for drying 
 hops, of which the parson has no benefit, his tithe of hops having been set 
 out before the hops were dried, tithe must be paid thereof. 
 
 Freem. 335, Anon., Mich. 11 W. 3. 
 
 If an occupier of land, in a parish where tithe of wood and tithe of 
 corn are both due to the same person, use silva csedua for enclosing his
 
 22 TYTHES. 
 
 (C) Of what Things a predial Tithe is due. 
 
 own corn land, which lies in the parish wherein the wood grew, -tithe is 
 not due of the wood, because this is used for the preservation of corn 
 whereof tithe is due. 
 
 1 Roli. Abr. 644, pi. 2 ; Ld. Raym. 130. 
 
 But, if such wood be used for enclosing the corn-land of another per- 
 son, tithe is due thereof; notwithstanding the person who is entitled to 
 the tithe of the wood is likewise entitled to the tithe of the corn grown 
 upon the land enclosed. 
 
 1 Saund. 143, Croucher v. Collins. 
 
 If the tithe of hops and the tithe of wood are both due to the same 
 person, tithe is not due of silva csedua used in poling the hops ; because 
 the tithe of the hops is increased by the use of the poles. 
 
 Freem. 334, Anon. ; Bunb. 20. 
 
 Tithe is not due of silva ccedua used in making or repairing carts or 
 ploughs to be used in husbandry in the parish wherein the wood grew ; 
 because by the use of the carts and ploughs the tithes of other things are 
 increased. 
 
 Goldes, 93, Anon. 
 
 [| But it has lately been decided by Chief Baron Alexander, after re- 
 viewing all the authorities, that wood used for hop-poles on the farm, for 
 hurdles for hurdling sheep, for repairing hedges, for land- draining on the 
 farm, and for fuel in the husbandry house, is not exempted by common 
 law from tithe, though it may be exempted by a special custom. A cus- 
 tom in part of a hundred, exempting hedges and hedge-rows less than a 
 rod in width from tithe of wood and underwood, is bad. 
 
 Willis v. Stone, 1 Younge & J. 262; Page v. Wilson, 1 Jac. & Walk. 513. || 
 
 5. Of divers other Things 
 
 It is laid down in one book, that tithe is to be paid of acorns, although 
 the trees upon which they grew would not be liable to the payment of 
 tithe ; because the acorns are an annual increase. 
 
 11 Rep. 49, Liford's case ; ||1 Eag. & Yo. 152. || 
 
 But in two other books it is laid down, that tithe is not due of acorns, 
 unless they are gathered and sold. 
 
 Litt. Rep. 40; Hetl. 27; ||Gwill. 428, 1554, acc.\\ 
 
 All kinds of flowers and roots, whether they grew in a garden or a field, 
 are liable to the payment of tithes. 
 
 Litt. Rep. 148, Stile's case. 
 
 Fruit of every kind, although it grow upon a tree in the hedge of a 
 field, is liable to the payment of tithe. 
 
 2 Inst. 021 ; Bunb. 184. 
 
 || In the case of the Kensington gardeners and nurserymen, it was much 
 debated, whether hothouse plants, as pine-apples, melons, orange trees, 
 and the like, were subject to tithes. The Court of Exchequer decided in 
 favour of the claim, and directed an account. On an appeal to the House 
 of Lords, the appellants urged, in opposition to the claim, that these tithes, 
 if any were due, must be predial tithes, but that predial tithes arose merely 
 and immediately out of the ground ; that these plants were exotics; that 
 climate and compost must be procured to keep them in a state of vegeta- 
 tion ; that they do not grow in the earth ; that the skill and labour of
 
 TYTHES. 23 
 
 (C) Of what Things a predial Tithe is due. 
 
 several years is requisite to bring pine-apples to perfection, which is only 
 attainable by the skilful management of artificial heat ; and that if tithes 
 ■were added to the expense of cultivating these costly exotics, it must put 
 an end to this species of horticulture. On the other hand it was con- 
 tended, that the arguments drawn from the expense and difficulty, and 
 artificial mode of raising these vegetables would equally prove various 
 tithable productions not to be tithable ; and that if exotics were not titr- 
 able, the land would scarcely yield any tithable matters, as the greatest 
 part of our vegetable productions are not indigenous. The House of 
 Lords gave no decision on this important point, but reversed the decree 
 of the Court of Exchequer on a collateral point, viz., that the defendants 
 had entered into compositions with their vicar for tithes, which had not 
 been determined by a sufficient notice, and, consequently, they were not 
 liable to a claim for tithes in kind. 
 Adams v. Waller, 21 Geo. 3 ; Gwill. 1204. 
 
 In a subsequent case, however, the Court of Exchequer have decided 
 against this claim. An impropriate rector filed his bill against nurserymen 
 for tithes in kind of all the produce of their nursery-grounds, including 
 pines, grapes, and exoties produced or perfected in hothouses. The de- 
 fendants admitted the claim as to the common productions of the nursery- 
 ground, which they had offered to account for ; but denied it as to pines 
 and exotics forced in buildings, which they insisted were not tithable. 
 The Court decreed, that so much of the bill as prayed an account of pine- 
 apples, grapes, and exotics raised in hothouses should be dismissed with- 
 out costs ; and that the rest of the bill should be dismissed with costs. 
 
 Worral v. Miller, 1801 ; Toll, on Tithes, 124, n. (/)-U 
 
 Furze is not liable to the payment of tithe, if it be burnt in the house 
 of a parishioner, who occupies land in the parish wherein it grew. 
 
 Litt. Rep. 368, Rooket v. Gomersel. j| Sed vide Willis v. Stone, supra. || 
 
 But if furze be sold, it is liable to the payment of tithe. 
 
 Litt. Rep. 368, Rooket v. Gomersel. 
 
 If a man gather green peas to eat in his house, tithe is not due thereof. 
 
 1 Roll. Abr. 647, pi. 11. 
 
 But if a man gather green peas to sell, or to feed hogs with, they are 
 liable to the payment of tithe. 
 
 1 Roll. Abr. 647, pi. 12. 
 
 || And potatoes and turnips consumed in the family of the owner are 
 not exempted from tithe. 
 
 Williamson v. Ld. Lonsdale, 5 Price, 25. |j 
 
 In one modern case, it seems to have been the opinion of the court, 
 tnat turnips are only liable to pay tithe when they are drawn. 
 Bunb. 10, Benson v. Watkins, Ilil. 3 G. 1. 
 
 But in a more modern case it was holden, that although turnips are 
 not drawn, but are fed off the ground, tithe is due thereof, in case they 
 are eaten by unprofitable cattle. 
 
 Bunb. 314, Swinfen v. Digby, Hil. 5 G. 2. 
 
 So, it hath been holden, that tithes are due for turnips sown after corn, 
 and eaten by unprofitable cattle. 
 Crow v. Stoddart, 3 Burn's E. L. 465.
 
 24 TYTHES. 
 
 (D) Of what Things a mixed Tithe is due. 
 
 Such tithe as arises from a beast, bird, or fowl, is called a mixed tithe 
 
 2 Inst. G49 ; 1 Roll. Abr. 635. 
 
 Divers things are by the ecclesiastical law liable to the payment of a 
 mixed tithe, which by the common law are not. 
 
 2 Inst. G21 ; 4 Mod. 344. 
 
 The design under this head is to show of what things a mixed tithe is 
 due at common law. 
 
 In doing this, it will appear that some things, which are in general 
 exempted therefrom, become by custom liable to the payment of a mixed 
 tithe. 
 
 1 Roll. Abr. 635 ; Copl. 3, 636, pi. 7 ; Cro. Car. 339 ; 1 Vent. 5. 
 
 It will also appear, that some things, which are in general liable thereto, 
 are under particular circumstances exempted from the payment of a mixed 
 tithe. 
 
 1 Roll. Abr. 645, pi. 14, pi. 16. 
 
 But wherever any fraud is used to bring a thing under a circumstance, 
 by reason of which it would, if it had come fairly thereunder, have been 
 exempted from the payment of a mixed tithe, it is by such fraud rendered 
 liable thereto. 
 
 1 Roll. Abr. 645, pi. 15, 646, pi. 17. 
 
 As it would be tedious to enumerate all the things which are liable to 
 the payment of a mixed tithe, only those shall be mentioned concerning 
 the tithe of which some question has arisen : but from those which shall 
 be mentioned it may be easily collected of what other things a mixed 
 
 tithe is due. 
 
 1. Of the Young of a Beast. 
 
 It is in general true, that tithe is due of the young of a beast which is 
 not ferce naturce. 
 
 But tithe is not due of the young of a hound, an ape, or of any beast 
 which is kept only for pleasure. 
 
 Bro. Dism. pi. 20. 
 
 Tithe is not due of the young of a deer; for a deer is /era? naturse. 
 
 2 Inst. 651. 
 
 And for the same reason, tithe is not due of the young of a coney.' 
 1 Roll. Abr. 635, C. pi. 3; Cro. Car. 339; 1 Ventr. 5. 
 
 2. Of the Eggs and Young of a Bird or Fold. 
 
 It is in general true, that tithe is due of the young of a bird or fowl 
 -which is not ferce naturce, unless the eggs of the bird or fowl have before 
 paid tithe. 
 
 1 Roll. Abr. G42, pi. 6; 2 P. Wms. 463. 
 
 But tithe is not due of the eggs or young of a bird or fowl which is 
 kept only for pleasure. 
 
 Bro. Bism. pi. 20. 
 
 Tithe is not due of the eggs or young of a partridge or pheasant ; be- 
 cause these are ferce naturce. 
 
 Moor, 599 ; 2 P. Wms. 463. 
 
 If a man keep pheasants, whose wings are clipped, in an enclosed wood,
 
 TYTHES. 25 
 
 (D) Of what Things a mixed Tithe is due. 
 
 and from their eggs hatch and bring up young pheasants, tithe is not due 
 of the young pheasants, although none were paid of the eggs ; because 
 the old pheasants are not reclaimed, and would go out of the enclosure 
 if their wings were not clipped. 
 Roll. Abr. 636, pi. 5. 
 
 It was heretofore holden, that neither the eggs nor young of a turkey 
 are liable to the payment of tithe ; because turkeys are ferce natures. 
 Moor, 599, Hugton v. Price. 
 
 But it was holden in a modern case, that, as turkeys are at this day 
 as tame as hens or any other poultry, tithe is due of the eggs or young 
 of a turkey. 
 
 2 P. Wins. 403, Carleton v. Brightwell. 
 
 Tithe is not due of young pigeons, in case they are spent in the house 
 of the occupier of land who breeds them. 
 
 1 Roll. Abr. 644, Z, pi. 4, pi. 6 ; 1 Yentr. 5 ; 2 Mod. 77 ; 12 Mod. 47. 
 
 But if young pigeons are sold, tithe is due thereof. 
 1 Roll. Abr. 644, Z, pi. 5, pi. 6. 
 
 || Tithe is not due of the eggs or young of ducks in a decoy, nor for 
 the eggs of tame ducks kept for the service of a decoy. 
 Gwill. 531.|| 
 
 3. Of Wool. 
 
 If a man pay the tenth lamb as titHe at Mark-tide, and at Midsummer 
 shear the other nine lambs, tithe is due of the wool ; for although there 
 were only two months between the time of paying the tithe lambs, which 
 were not shorn, and the shearing of the residue, there is a new increase. 
 
 1 Roll. Abr. 642, R, pi. 7 ; Bunb. 90. 
 
 If a man shear his sheep about their necks at Michaelmas, to preserve 
 their fleeces from the brambles, tithe is not due of the wool ; for it appears 
 that this, it being done before their wool is much grown, could not be 
 done for the sake of the wool. 
 
 1 Roll. Abr. 045, pi. 16. 
 
 If a man, after their wool is much grown, shear his sheep about their 
 necks, in order to preserve them from vermin, tithe is not due of the 
 wool. 
 
 1 Roll. Abr. 645, pi. 16. 
 
 If a man, a little before shearing-time, cut dirty locks of wool from his 
 sheep, in order to preserve them from vermin, tithe is not due of the wool. 
 1 Roll. Abr. 645, pi. 17. 
 
 But if, in either case, more wool than ought to have been cut off be 
 fraudulently cut off, tithe is due of the wool. 
 1 Roll. Abr. 645, pi. 15, 646, pi. 17. 
 
 || If sheep are removed a short time before shearing-time from the pa- 
 rish where they are fed into another parish, for the purpose of defrauding 
 the tithe-owner of his tithe, equity will make him account for such tithe ; 
 but the fraud must be positively alleged, and clearly proved. 
 
 1 Wood, 409 ; 3 Wood, 108 ; Hall v. Maltby, 6 Price, 240. || 
 
 It is laid down in one case, that tithe is not due of the wool of a 
 Vol. X.— 4 C
 
 26 TYTHES. 
 
 (E) To whom Tithe is in general to be paid. 
 
 sheep killed to be spent in the house, or of the wool of a sheep which dies 
 of itself. 
 
 Lit. Rep. 31, Civil v. Scott, Pasch. 3 Car. 1. 
 
 But in another case, a few years after, it is laid down, that tithe is due 
 of the wool of a sheep killed to be spent in the house. 
 
 1 Roll. Abr. 646, pi. 18 ; Dent v. Salvin, Pasch. 14 Car. 1. 
 
 [Tithe of the wool of lambs is due, though the parson may have re- 
 ceived the tithe of the lambs in their wool. 
 Carthew v. Edwards, 3 Burn's E. L. 474.] 
 
 4. Of divers other Things. 
 
 Fish taken out of a pond, or an enclosed river, are liable to the pay- 
 ment of tithe. 
 
 [This is by no means clear.] 
 
 But no tithe is due of fish taken out of the sea, or an open river, al- 
 though they are taken by a person having a several fishery ; because fish 
 are f era* naturae. 
 
 Noy, 108 ; 1 Roll. Abr. 636, pi. 4, pi. 6, pi. 7 ; Cro. Car. 339 ; 1 Lev. 179 ; Sid. 
 278 ; ||and see 1 Wood, 523; 2 Wood, 283.|| 
 
 Honey and bees' wax are liable to the payment of tithe. 
 
 Fitz. N. B. 51 ; 1 Roll. Abr. 635, C, pi. 1 ; Cro. Car. 559. ||Godolphin ranks these 
 among predial tithes. Rep. Can. 389. || 
 
 But Avherever tithe of the honey and wax of bees has been paid, no 
 tithe is due of the bees ; || for they ureferce naturce.\\ 
 Cro. Car. 404, Anon. 
 
 Tithe is not due of the milk spent in the house of a farmer, in case 
 the house stands in the parish wherein the cows are milked. 
 
 Ld. Raym. 129, Scole v. Lowther. 
 
 || A claim for tithe of mortuaries was made in a late case ; but it was 
 not decided on. 
 
 2 Price, 295. || 
 
 (E) To whom Tithe is in general to be paid. 
 
 It is laid down in divers books, that only spiritual persons were at the 
 common law capable of receiving tithes ; because tithes are an ecclesias- 
 tical inheritance. 
 
 2 Rep. 45 ; 11 Rep. 13 ; Cro. Eliz. 293, 599, 763; Hob. 296. 
 
 As a layman had not before the 32 II. 8, c. 7, any remedy in the case 
 of subtraction of tithe, it follows that a layman was not at the common 
 law capable of acquiring a right to tithe ; for wherever there is a right, 
 there must be a remedy for the recovery thereof. 
 
 2 Rep. 44; 2 Inst. 648 ; Cro. Eliz. 512. 
 
 The king was, indeed, at the common law capable of receiving tithes, 
 becauso he is persona mixta ; but he could only receive them in his spi- 
 ritual capacity, and not as belonging to a manor. 
 
 Cro. Eliz. 293, 599, 763 ; 2 Rep. 44. 
 
 It is laid down, that the king's grantee, although a layman, was at the 
 common law capable, by virtue of the king's prerogative, of receiving 
 tithe. 
 
 2 Rep. 14. Bishop of Winchester's case.
 
 TYTHES. 27 
 
 (F) To whom Parochial Tithes are to he paid. 
 
 But it seems to be the better opinion, that as the king himself is only 
 capable of receiving tithe in his spiritual capacity, and not by virtue of 
 his prerogative, the capacity of receiving tithe, being personal, cannot 
 be conveyed to a layman. 
 
 2 Roll. Abr. G55, J, pi. 2 ; Hardr. 315. 
 
 A layman could at the common law have prescribed, that in considera- 
 tion of an annual sum of money to be paid to the parson, for all tithes 
 arising within a manor, he was entitled to the tenths of all corn growing 
 in the manor. 
 
 Cro. Eliz. 599, 7G3; Bro. Dism. pi. 1, pi. 5 ; 2 Rep. 44. 
 
 At this day a layman is capable of receiving tithes ; for the tithes be- 
 longing to many churches, and some portion of tithes, which upon disso- 
 lution of monasteries were by divers statutes vested in the crown, are 
 become lay-fees, and have all the properties of temporal inheritances. 
 
 1 Inst. 159 ; 11 Rep. 13 ; Fin. Rep. 309. 
 
 (F) To whom Parochial Tithes are to he paid. 
 Before the decretal epistle of Pope Innocent the Third, which was 
 written about the year 1200, and which, from its being dated at Lateran, 
 has been often mistaken for a decree of the council of Lateran, holden 
 not many years before, parochial tithes were not appropriated to any 
 spiritual person in particular ; but it was in the power of every person to 
 pay tithes to such spiritual person or corporation as he pleased. 
 
 2 Inst. G41, 653 ; Bro. Dism. pi. 21 ; Hob. 296. 
 
 By that epistle, which laments the inconveniencies arising from this 
 power, it was directed, that, for the time to come, the tithes of all parishes 
 should be paid to the persons having the cure of souls in the respective 
 parishes, who were called rectors. 
 
 2 Inst. 641. 
 
 That epistle, which would not have been in itself obligatory, being 
 founded in reason and justice, was well received, and soon became part 
 of the law of the land ; and in consequence thereof rectors became enti- 
 tled to all the tithes, except portions of tithes, arising in their respective 
 
 parishes. 
 2 Inst. 641. 
 
 As many advowsons had, before that decretal epistle was written, been 
 granted to divers religious persons, as to abbots, priors, single deans, and 
 single prebendaries, and their successors, the practice of collating them- 
 selves to the churches thereto belonging, and of undertaking personally 
 the cure of souls, was, for the sake of keeping the tithes in their own 
 hands, soon after introduced. As this practice was followed by their 
 successors, the tithes of many parishes were kept perpetually in their 
 own hands. In process of time, in order to avoid a multiplicity of insti- 
 tutions and inductions, such persons obtained licenses, that they and their 
 successors might be perpetual incumbents of the churches. 
 
 Spelm. Eng. Works, 137. 
 
 In this way appropriation to churches began ; but churches were at that 
 time only appropriated to such single spiritual persons as did in person 
 administer the sacraments and perform other divine service. 
 
 Spelm. Eng. Works, 138. 
 
 Deans and chapters afterwards obtained licenses for the appropriation
 
 28 TYTHES. 
 
 (F) To -whom Parochial Tithes are to be paid. 
 
 of churches belonging to their advowsons ; but as they, being a body cor- 
 porate, could not jointly do the duty of a parish priest, and as no one in 
 particular was bound to do it, a deputy, called a vicar, was appointed un- 
 der their common seal to do that duty : but the person so appointed was 
 usually a member of the spiritual corporation to which the church was 
 appropriated. 
 
 Spelm. Eng. Works, 138. 
 
 The practice of appointing vicars being once introduced, prioresses and 
 nuns obtained the like licenses for the appropriation of the churches be- 
 longing to their advowsons ; and they likewise appointed vicars, and took 
 the profits of the advowsons to themselves. 
 
 Spelm. Eng. Works, 138. 
 
 Encouraged by these examples, the abbots, priors, single deans, and 
 single prebends, who had before performed divine service in person, like- 
 wise appointed vicars. 
 
 Spelm. Eng. Works, 138. 
 
 It seems probable that vicars were not at first endowed with any part 
 of the tithes belonging to their respective churches, but received a cer- 
 tain yearly sum of money, by way of a salary ; and it appears that the 
 sum received by some vicars was very small. 
 
 For by the 15 R. 2, c. 6, after reciting that divers damages and hin- 
 dcrances have happened, and daily do happen, to the parishioners of 
 divers places by the appropriation of the benefices of such places, it is 
 agreed and assented, " That in every license, from henceforth to be made 
 in the Chancery, of the appropriation of any parish church, it shall be 
 expressly contained and comprised, that the diocesan of the place upon 
 the appropriation of such churches shall ordain, according to the value 
 of such churches, a convenient sum of money to be paid and distributed 
 yearly of the fruits and profits of the same churches, by those that shall 
 Lave the said churches in proper use, and by their successors, to the poor 
 parishioners of the said churches, in aid of their living and sustenance 
 for ever ; and also that the vicar be well and sufficiently endowed." 
 
 Afterwards, by the 4 H. 4, c. 12, it is ordained, " That from hence- 
 forth in every church appropriated, or to be appropriated, a secular per- 
 son be ordained perpetual vicar, canonically instituted and inducted to 
 the same, and conveniently endowed by the discretion of the ordinary, to 
 do divine service, to inform the people, and to keep hospitality there ; 
 and that no religious person be in any wise made vicar in any church 
 appropriated, or to be appropriated, for the time to come." 
 
 As it is only provided by the 4 II. 4, c. 12, that vicars shall be en- 
 dowed at the discretion of the ordinary, it has of course happened, that 
 the right of a vicar to tithes is very different in different parishes. 
 
 In divers parishes, the vicars are only endowed with some particular 
 tithes arising in their respective parishes. 
 
 Cro. Eliz. 4G2 ; 2 Roll. Abr. 335, pi. 0. 
 
 In other parishes, the vicars are endowed with all tithes arising in 
 their respective parishes, except such as are reserved in the deeds of en- 
 dowment. 
 
 2 Roll. Abr. 335, pi. 1, pi. 4. 
 
 In other parishes, the vicars are endowed with all small tithes arising 
 in their respective parishes.
 
 TYTHES. 29 
 
 (F) To whom Parochial Tithes are to be paid. 
 
 It follows, that as the right of a vicar to tithes always depends upon 
 the endowment of his vicarage, he ought, whenever his right is questioned, 
 to show himself entitled by endowment to the tithe he claims. 
 
 Cro. Eliz. G33 ; 2 Bulst. 27 ; Bunb. 7, 72, 160. 
 
 But, although a vicar cannot produce the deed of endowment if he can 
 show that he and his predecessors have constantly received the tithe by 
 him claimed, this is evidence that he has a right by endowment to tithe. 
 
 2 Keb. 729 ; Bunb. 7, 169. 
 
 || In questions between the rector and vicar, the onus of proving his 
 right to tithe falls on the vicar ; and he must show either an endowment, 
 or prescription which raises a presumption of one. But when the vicar 
 produces his endowment, then the prima facie title to the extent of the 
 endowment is in favour of the vicar ; and if the rector would claim any 
 article of tithes within it, the 07ius probandi is thrown on him, and he 
 must make out his case by strict proof. He must give such evidence as 
 will raise a presumption that the parties had come to some fresh agree- 
 ment, that some different arrangement as to the distribution of the tithes 
 had been made, between the date of the endowment and the disabling 
 statutes 13 Eliz. c. 10, and 13 Eliz. c. 20. 
 
 Awdry v. Smallcomb, Gwill. 1528 ; and see Dorinan v. Curry, 4 Price, 109, and 
 Gwill. 1168; Williamson v. Lonsdale, Dan. 171 ; Gwill. 1860, Williamson v. Thomp- 
 son, 9 Price, 186. 
 
 And where the plaintiff, a lay impropriator, and his ancestors had had 
 uninterrupted enjoyment of the tithe of hay, and there was no evidence 
 of any perception of it or composition for it by the vicar, but an endow- 
 ment of the vicarage with this tithe was shown in 1253 ; the court held, 
 that it might be presumed, in favour of this modern enjoyment, that the 
 tithe had been conveyed into lay hands prior to the disabling statutes. 
 
 Lady Dartmouth v. Koberts, 16 East, 334 ; and see 4 Price, 355. || 
 
 In many deeds of endowment of vicarages a power is reserved to the 
 archbishop to increase the tithes of the respective vicarages ; and if such 
 power be not reserved, an augmentation of the tithes may be made with 
 the consent of or upon citing all parties, but not without notice or citation. 
 
 Hardr. 329, Twisse v. Blunt. 
 
 In consequence of this it has been holden, that if a vicar and his pre- 
 decessors have for a long time received a tithe which they were not enti- 
 tled to under the deed of endowment, this, although the deed of augmen- 
 tation be not produced, is evidence that the vicarage has at some time 
 been augmented with the tithe. 
 
 Hardr. 329, Twisse v. Blunt. 
 
 1 1 And a particular and minute enumeration of several articles in the 
 endowment does not exclude the vicar's right to other small tithes not 
 mentioned in it. 
 
 Manby v. Curtis, 2 Price, 285. 
 
 And in a case where the endowment did not express "small tithes," 
 but the vicar had been in constant perception of all small tithes, except 
 agistment (which was a tithe not formerly paid in the north, where the 
 living was situate,) and turnips and potatoes, (which were not grown in 
 this country at the time of the endowment ;) it appearing that the impro- 
 priate rectors had never claimed more than tithe of corn and grain, and 
 
 c2
 
 30 TYTHES. 
 
 (F) To whom Parochial Tithes are to be paid. 
 
 that there was a pension payable to the impropriators out of the vicarage, 
 the court decreed, in favour of the vicar, an account of the tithe of agist- 
 ment, turnips, and potatoes. Gibbs, C. B., in delivering judgment, ob- 
 served, that where it appears that the vicar has uniformly received all 
 the small tithes, there can be no difficulty in his making out his claim. 
 But that the cases have gone further, deciding that where a title is made 
 out by the vicar to all small tithes, he is entitled to whatever tithes are 
 legally of that description, although not before paid ; and where tithes 
 of modern introduction or other small tithes have not been received, it 
 will be presumed it was because no occasion occurred : that it had been 
 again and again determined, that tithes of modern introduction ar§ vica- 
 rial tithes : that if a vicar is found receiving small tithes, and no one else 
 receiving any portion of the small tithes, it is to be presumed he is en- 
 dowed of all; and that further, where the rector has received some small 
 tithes and the vicar all the others, it has been holden that a mistake may 
 account for the rector's receipt. 
 
 Kennicott v. Watson, 2 Price, 250, n. ; and see Byam v. Booth, 2 Price, 231 ; Cun- 
 llffe v. Taylor, Ibid. 329 ; Williams v. Price, 4 Price, 156 ; Scott v. Lawson, 7 Price, 
 267 ; Leathes v. Newitt, 4 Price, 374. 
 
 And proof of immemorial perception by the vicar of a particular tithe 
 will establish his right to it, when the rector shows no perception on his 
 part, even although the vicar's endowment actually states this species of 
 tithe to belong to the rector ; for in such case a subsequent endowment 
 may be presumed. 
 
 Parsons v. Bellamy, 4 Price, 190. 
 
 Where the plaintiff, as lessee of the impropriate rectory of Bedfont, 
 which had been granted by Queen Elizabeth under the words, " omnes de- 
 cimal nostras garbarum et granorum" claimed tithe of seed-tares in a 
 suit against a parishioner, and the vicar ; and it appeared that the gran- 
 tees had always received this tithe, and that the vicar had received all 
 small tithes, and also the tithes of tares cut green and of hay, and 
 no endowment was produced, the court held, that every thing that was 
 vested in the crown passed to the grantees under the grant of Elizabeth, 
 and that they were entitled to the tithe claimed as a tithe, "garbarum." 
 They also considered the tithe as a great tithe : but whether it were great 
 or small, the vicar could not be entitled to it, since he had never received 
 it ; and his endowment, which was presumed from perception, must also 
 be limited by it. 
 
 Daws v. Benn, 1 Barn. & C. 751 ; 3 Dow. & R. 122 ; Gwill. 2061, S. C.|| 
 
 Upon the dissolution of monasteries, the tithes of all churches appro- 
 priated to the monasteries, and all portions of tithes belonging to them, 
 were by divers statutes vested in the crown. 
 
 11 Rep. 13 ; Hob. 308. 
 
 Much the greater part of these tithes have been since granted in fee 
 by the crown. 
 
 All tithes so granted, except such as have been since given to the re- 
 spective churches, are to this day due to the grantees of the crown, who 
 are called impropriators. 
 
 It is in general true, that a chaplain or a curate is not entitled to tithe. 
 
 [That a curate may hold tithes, was determined in the Exchequer in 1790, in Tam- 
 berlaine v. Humphreys. J ||Gwill. 1345; sed vide Bunb. 273. || 
 
 A suit being brought for tithes by a chaplain to a chapel of ease, which
 
 TYTHES. 31 
 
 (F) To whom Parochial Tithes are to be paid. 
 
 was neither presentative nor donative, it was holden, that he was not en- 
 titled to any tithe. 
 Lit. Rep. 72, Anon 
 
 It was insisted, that by the custom of the parish, the curate, after be- 
 ing appointed by the rector, was entitled to divers kinds of tithes ; but it 
 was holden that these could not be due to him, because the rector might 
 remove him at pleasure. 
 
 Noy, 15, Bott v. Brabalon; Bunb. 273, Price v. Pratt. || Gwill. G77 ; 2 Eag. & 
 Toun. G.|| 
 
 A bill being brought by a perpetual curate for the recovery of divers 
 small tithes, it appeared that the chapel of which he was curate was an- 
 nexed to the church of Hemels Hempstead ; that he was nominated thereto 
 for life, by the vicar of Hemels Hempstead, who, in. the instrument of 
 nomination, had given him the small tithes of the chapelry, with a power 
 to sue him for the same in the vicar's name ; and that he was licensed 
 by the bishop. It was holden that the plaintiff had no right to the tithes, 
 because he had not a permanent interest in them ; for that an appoint- 
 ment to a curacy, although expressly made for life, is revocable by the 
 common law, without any cause being shown ; and by the ecclesiastical 
 law, upon good cause being shown. 
 
 But a curate, who comes in by institution from the ordinary, may be 
 entitled to tithes. 
 
 An impropriator gave the tithes of a parish, all which belonged to his 
 rectory, by will to the maintenance of the minister of the parish for ever ; 
 but did not give either the tithes, or the power of nominating the # minis- 
 ter, to any person. This devise being void in law, because it was to no 
 certain person, the heir at law nominated A to be the minister. After- 
 wards, upon the supposition of a lapse to the crown, B was presented, 
 instituted, and inducted. A question, to whom the tithes of the parish 
 belonged, coming before a court of equity, it was decreed, that as B came 
 in by institution from the ordinary, although he was not, strictly speak- 
 ing, either rector or vicar, they were due to him. 
 2 Ch. Ca. 19, 31, Perne v. Oldfield. 
 
 Personal tithes are to be paid in the parish wherein the person who is 
 to pay them lives. 
 Sheph. Abr. 1013. 
 
 If cattle for which an agistment tithe is due have been sometimes de- 
 pastured in one parish, and at other times in another,- tithe must be paid 
 in each parish, in proportion to the time they were therein depastured. 
 
 Bro. Dism. pi. 16. 
 
 By the 2 Ed. 6, c. 13, § 3, it is enacted, " That every person which 
 shall have any beasts, or other tithable cattle, going, feeding, or depasturing 
 in any waste or common, whereof the parish is not certainly known, shall 
 pay tithes for the increase of the said cattle to the parson, vicar, proprietor, 
 portionary, owner, or other their farmers or deputies of the said parish, 
 hamlet, town, or other place, where the owner of the said cattle dwelleth." 
 
 || This clause does not extend to agistment tithe. Ellis v. Saul, 1 Anst. 332 : Gwill. 
 1326 ; 2 Eag. & Youn. 366 ; sed vide Ellis v. Fermor, Gwill. 1022 ; 3 Eag. & Youn. 
 1244.|| 
 
 The tithe of lambs is to be paid in the parish wherein the sheep yean, 
 although the sheep have been fed in two or more parishes. 
 Bunb. 139, Boys v. Ellis ; 12 Mod. 497.
 
 32 TYTHES. 
 
 (H) Of the Right to a portion of Tithes in a Parish. 
 
 || But if the sheep are fraudulently removed just before the lambing 
 season, to avoid tithe, equity will make the owner account to the parson 
 of the parish whence they are removed for the tithe. 
 
 1 Wood. 469; 3 Wood, 108 ; Hall v. Malthy, 6 Price, 240 ; Gwill. 1888 ; 3 Eag. & 
 Youn. 928.11 
 
 No predial tithe, which would, if the corn or other thing from which it 
 arises had been severed before the death of the rector or vicar of the parish, 
 have been due to the rector or vicar, is due to the executor of the rector 
 or vicar ; but the person who succeeds to the benefice is entitled thereto. 
 
 1 Roll. Abr. G55, pi. 3 ; 2 Bulstr. 184. 
 
 (G) To whom extra-parochial Tithes are to he paid. 
 All tithes, arising in an extra-parochial place, are, by the canon law, 
 to be paid to the bishop of the diocese in which the place lies. 
 
 2 Inst, G47. 
 
 But by the common law all such tithes are to be paid to the king. 
 
 Bro. Dism. pi. 10 ; 2 Inst. 647; 2 Roll. Abr. 657, pi. 2, pi. 5. 
 
 As the appropriation of tithes, in consequence of the decretal epistle 
 of Pope Innocent the Third, extended only to parochial tithes, all the 
 tithes of extra-parochial places continued to be due to the king. 
 
 Ante, p. 27 ; Cro. Elk. 512. 
 
 And consequently, all extra-parochial tithes, of which no grant has 
 been made, are at this day due to the king. 
 
 || And this right is not confined to such extra-parochial lands as were 
 formerly forest lands. 
 
 Attorney-General v. Lord Eardley, 8 Price, 39 ; Gwill. 1943 ; 3 Eag. & Youn. 986. || 
 
 (II) Of the Right to a Portion of Tithes in a Parish. 
 
 Before the tithes of parishes were, in consequence of the decretal epistle 
 of Pope Innocent the Third, appropriated to the persons having cure of 
 souls in the respective parishes, it was a common practiceto grant the 
 tithes of a whole manor, or of a particular farm, to any spiritual person, 
 or to any spiritual corporation, and to his and their successors. 
 Ante, p. 27 ; 2 Inst. 641 ; Bunb. 190. 
 
 A stop was, by the appropriation of parochial tithes, put to this prac- 
 tice ; but as the right to tithes, which had been before thus granted, con- 
 tinued in the spiritual person or corporation, and in his and their succes- 
 sors, (the) tithes thus granted, in order to distinguish them from the other 
 tithes' of the parish, have been always called portions of tithes. 
 
 Some portions of tithes do, at this day, continue in the hands of the 
 successor to the spiritual person or corporation to whom they were at 
 first granted. 
 
 Others, which came to the crown upon the dissolution of monasteries, 
 are at this day in the hands of the king, or the grantees of the crown. 
 
 Hence it frequently happens, that a spiritual person has a right to a 
 portion of tithes, in a parish of which he is neither rector nor vicar ; and 
 that an impropriator has a right to a portion of tithes in a parish of which 
 he is not impropriator. 
 
 2 Inst 641, 642, 653. 
 
 |j In questions between a rector and portionist, touching the extent of 
 their respective rights, the rector is entitled to stand upon his common law
 
 TYTHES. 33 
 
 (Ivj »Vhat Tithes are to be deemed small Titho 
 
 right to all tithes, and to throw the onus probandi on tne portionist of show- 
 ing an exclusive right to a certain portion of them. But if there has been 
 no perception on the part of the rector, then he is not in condition to throw 
 the 07Uis probandi on the portionist : and if the portionist clearly shows that 
 he is entitled, under grants from the crown of possessions of a dissolved 
 monastery, to some of the great tithes of the rectory, but cannot show to 
 what specific portion ; and the rector, on the other hand, has had no per- 
 ception, and cannot show what portion of the tithes belonged to the rectory, 
 and what to the monastery, the court has no means of assisting either party 
 to avail himself of his title. And in such case, the court can only retain 
 the rector's bill to give him an opportunity of taking an issue, or proceed- 
 ing by commission, ejectment, or action on the statute. 
 
 Ferrars v. Pellat, Gwill. 1602; 4 Wood, 331, S. C; Boulton v. Richards, 9 Price, 
 671; 3 Eag. & You. 1068.|| 
 
 (I) By whom Tithe is to be paid. 
 
 It has been holden, that the owner of the cattle is liable to pay the tithe 
 due for depasturing them. 
 Hard. 181, Pory v. Wright, Pasch. 13 Car. 2. 
 
 But in a modern case in the Court of Exchequer, it was holden, that 
 only the occupier of the land is liable to pay tithe for depasturing cattle, 
 although the cattle are the property of a stranger. 
 
 Bunb., 3 Underwood v. Gibson, Hil. 2 G. 1. [Supra.] 
 
 And in a note at the bottom of the latter case it is said to have been 
 settled, in the case of Fisher and Leman, Mich. 7 G. 1, that in general, 
 only the occupier of the land is liable to an agistment tithe ; but that in 
 the case of a common the owner of the cattle is liable thereto, because the 
 owner of the soil has no profit from depasturing the cattle. 
 
 It is laid down in one case, that the person who buys corn of the grower 
 is not liable to pay the tithe thereof, because he may not be known to the 
 parson. 
 
 Noy, 150, Baker's case, Trin. 44 Eliz. 
 
 But it is in another case laid down, that the vendee of standing corn is 
 liable to pay the tithe thereof. 
 
 Cro. Ja. 362, Moyle v. Ewer, Mich. 10 Jac. 1. 
 
 And the latter seems to be the better opinion : for in two other cases it 
 is laid down, that the vendor, who, after selling his corn, had severed it by 
 order of the vendee, should pay tithe thereof, because it was sold in a secret 
 manner. 
 
 Brown, 34; Hele v. Fretenden, 2 Bulstr. 181. 
 
 From whence it may be fairly inferred, that if the corn had been sold in 
 an open manner, the vendee would have been liable to pay tithe thereof. 
 
 (K) What Tithes are to be deemed small Tithes. 
 
 As the vicars are in many parishes endowed with all small tithes, 
 questions frequently arise, whether the tithes of certain things are small 
 tithes. 
 
 But such questions can only arise concerning things of which a predial 
 tithe is due ; for it is universally agreed, that every personal and every 
 mixed tithe is a small tithe. 
 
 Vol. X.— 5
 
 34 TYTHES. 
 
 (K) What Tithes are to be deemed small Tithes. 
 
 It was the opinion of Holt, Chief Justice, that in order to distinguish 
 whether the tithe of a particular thing be a great or small tithe, regard must 
 be had to the place where the thing from which it arises grows ; for that 
 if corn grow in a garden, the tithe thereof is a small tithe ; and vice versa, 
 that if a thing, the tithe of which is in general a small tithe, grow in a field, 
 the tithe thereof is a great tithe. 
 
 12 Mod. 41 ; Wharton v. Lisle, 3 Lev. 305; Skin. 341. 
 
 But it was holden by the opinion of the other Justices, Eyre, Dolben, 
 and Gregory, that the nature of the thing from which the tithe arises is 
 only to be considered ; and that the tithe of corn, although grown in a 
 garden, would, agreeably to what is laid down in Moor, 909, be a great 
 tithe. 
 
 It w r as, however, said in this case by Dolben and Gregory, that if a 
 thing, the tithe of which is in general a small tithe, should be grown in the 
 greater part of a parish, the tithe thereof would, agreeably to what is laid 
 down in Hut. 78, be a great tithe. 
 
 But Eyre was of a different opinion as to this point. 
 
 The opinion of Holt, Chief Justice, was contrary to what is laid down 
 in divers books; and the opinion of the three justices has been adhered to 
 in two modern cases. 
 
 It is in divers books laid down, that the tithe of saffron is a small one, 
 although a field of forty acres be planted therewith. 
 
 Cro. Eliz. 4G7; Bedingfield v. Feak, Hut. 78; Moor, 909. 
 
 In one of the modern cases the question was, whether the tithe of pota- 
 toes, planted in fields in a parish to the amount of three hundred acres, is 
 a small tithe ? It was holden to be so. And by Lord Hardwicke, Chan- 
 cellor — It seems to me, that in the case of Wharton and Lisle, Holt, Chief 
 Justice, did ultimately acquiesce in the opinion of the other three judges ; 
 for if he had not, the judgment would scarcely, as was done, have been 
 given in his absence, and upon the first argument. The distinction betwixt 
 a great and small tithe was at first founded upon the quantity of the thing 
 from which it arose. Thus, the tithes of corn, and some other things, 
 were called great tithes, because these things usually grew in large quan- 
 tities. On the other hand, the tithes of flax, and some other things, which 
 generally grew in small quantities, were called small tithes. Whenever 
 the cultivation of a new thing has been introduced, the method has been 
 to denominate the tithe thereof great or small, from its similitude to other 
 things, the tithes of which are great or small ; but it would be productive 
 of great uncertainty to hold, that a tithe, which has once obtained the de- 
 nomination of great or small, should be liable to a new denomination from 
 the quantity of the thing from which it arises, or from the place where it 
 grows. It has been said, that if neither the quantity of the thing, nor the 
 place in which it grows, ought to be regarded, the value of great tithes 
 may, by growing only those tilings in a parish which are liable to the 
 payment of small tithes, be reduced to almost nothing. This is very true, 
 and it is an inconvenience ; but it is one which must be submitted to by 
 all who have estates in tithes, because it arises from the transitory and 
 fluctuating nature of such estates. 
 
 MS. Rep. Smith v. Wyatt, Trio. It", (J. 2 ; 2 Atk. 365, S. C. 
 
 In the other modern case, it was laid down by Lord Henley, Keeper. 

 
 TYTHES 35 
 
 (K) What Tithes are to be deemed 6mall Titncs 
 
 that the difference betwixt a great and small tithe depends entirely upon 
 the nature of the thing from which it arises. 
 
 MS. Rep. Sims v. Barnett, Mich. 1 G. 3. 
 
 It is said to have been ruled at an assize, that the tithe of clover seed 
 is a great tithe, because clover seed is a species of grain. 
 
 Skin. 3-11. 
 
 But it has been decreed by the Court of Exchequer, that the tithe of 
 clover seed is a small tithe. 
 
 Bunb. 344. 
 
 It has been holden, that the tithe of flax is a small tithe. 
 
 1 Roll. Abr. 643, pi. 11 ; 12 Mod. 41 ; 3 Lev. 365. 
 
 The tithe of hay is not a small tithe, but vicars are in many parishes 
 entitled thereto by endowment. 
 
 Skin. 341 ; 3 Keb. 419 ; Bunb. 79, 344. 
 
 And if a vicar be entitled by endowment to the tithe of hay made of 
 grass, he is likewise entitled to the tithe of hay made of clover, saintfoin, 
 or any other thing of the like kind, although the cultivation of the thing 
 has been introduced since the endowment of his vicarage ; because every 
 one of these things is a species of grass. 
 
 Hut. 78; Skin. 341 ; 3 Keb. 419; Bunb, 79, 344. 
 
 The tithe of hops has been holden to be a small tithe. 
 
 Sid. 443, Crouch v. Risden, Bunb. 79. 
 
 The tithes of peas and beans are in general great tithes ; and if a vicar 
 be entitled to the tithe of either of these, it is by endowment. 
 
 A bill being brought for the tithes of peas and beans, sowed and set in 
 rows, drilled, hoed, and hand- weeded in a garden-like manner, as being 
 small tithes ; the defendant insisted, that peas and beans, cultivated in this 
 manner, had usually been grown in a great part of the parish ; and that 
 tithes thereof had never been paid to the vicar. It was decreed, without 
 going into the consideration of the quantity grown in the parish, that as r.o 
 endowment of these tithes was produced, nor any receipt of them by the 
 vicars proved, the bill should be dismissed. 
 
 Bunb. 170, Gumley v. Birt. 
 
 In a very late case a bill was brought for the tithes of peas and beans, 
 grown in fields, gathered by hand while green, and sold in markets. It 
 was said for the plaintiff, that, although the tithes of the peas and beans 
 would if they had stood till they were ripe have been great tithes, by 
 gathering the peas and beans before they were ripe, and by hand, they be- 
 came small tithes. The decree was, that the tithe was a great tithe. And 
 by Lord Henley, Keeper,— The difference betwixt a great and small tithe 
 depends entirely upon the nature of the thing from which it arises. It 
 would be strange to hold, that the gathering of a thing at one time should 
 make the tithe thereof a small tithe, which would, if the thing had been 
 gathered at another time, have been a great tithe ; it has been expressly- 
 determined in the case of Hodgson v. Smith, Bunb. 279, that the tithe of 
 tares, whether cut green or ripe, is a great tithe. It was holden in the 
 case of Gumley v. Birt, Bunb. 170, that the mode of cultivating land for 
 the growing of peas or beans did not make the tithe thereof a small tithe ; 
 and there is surely less reason to hold, that the mode of gathering peas or 
 beans should make the tithe thereof a small tithe. 
 
 MS. Rep. Sims v. Barnett, Mich. 1 G. 3.
 
 TYTHES. 
 
 (L) How far Custom regarded in setting out Tithes. 
 
 If a vicar be entitled by endowment to the tithe of peas and beans, he 
 is entitled to such tithe, in what way soever the land upon which they grow 
 is cultivated. 
 
 A bill being brought for the tithes of peas and beans, the defendant in- 
 sisted, that the vicar was only entitled to the tithes of peas and beans grown 
 in fields when the ground had been turned with a spade ; but it was de- 
 creed by the Court of Exchequer, that he was also entitled to the tithes of 
 peas and beans grown in fields when the ground had been turned with a 
 plough ; and the decree was affirmed in the House of Lords. 
 
 Bunb. 19, Nicholas v. Elliot; 2 Br. P. C. 31, S. C, under the name of Husten 
 v. Nicholas. 
 
 || It is decided, that the tithe of seed tares is a great tithe. 
 
 Daws v. Benn, 1 Barn. & C. 751 ; 3 Dow. & Ry. 122 ; Gwill. 2061.l| 
 
 It has been decreed, that the tithe of potatoes is a small tithe. 
 
 MS. Rep. Smith v. Wyat, Trin. 1G G. 2 ; 2 Atk. 365, S. C. ; ||GwilL 777; Sims 
 v. Bennett, Gwill. 874; 2 Eag. & Youn. 172.|| 
 
 The tithe of saffron has been holden to be a small tithe. 
 
 Cro. Eliz. 4G7, Bedingfield v. Feak, Hut. 78. 
 
 It has been holden, that the tithe of wood is a small tithe. 
 
 Cro. Car. 28, Udall v. Tindall, Sid. 447. 
 
 The tithe of wood is in general a great tithe, but in some parishes it is 
 a small tithe. 
 
 1 Roll. Abr. G43, U, pi. 2. 
 
 |j Tithe of cole seed is a small tithe. 
 
 Gwill. 533. Sed vide 1 Wood, 45, 528. 
 
 So is tithe of teazel, a plant ussd by clothiers. 
 
 Gwill. 564, 565, n. 
 
 So also is tithe of woad. 
 
 Degge, p. 2, c. 1 ; Gwill. 428. 
 
 It does not seem settled whether tares, clover, artificial grasses, and the 
 like articles, cut and used as green fodder, are in the nature of hay and a 
 great tithe, or in the nature of agistment and a small tithe. 
 
 See Lewis v. Young, M'Clelland, 113; 3 Eag. & Youn. 1135; Lagden v. Flack, 
 2 Hagg. R. 303 ; 3 Eag. & Y. 973 ; Gwill. 1927. 
 
 (I.) How far the Custom of a Parish is to be regarded in the setting out of Tithes. 
 
 It is by divers statutes provided, that tithes shall be paid according 
 to the usages and customs (<t) of the respective parishes in which they 
 arise. 
 
 || (n) The custom must be immemorial. See Knight v. Halsey, 2 Bos. & Pul. 172; 
 Gwill. 1531 ; sed vide Warden of St. Paul's v. Morris, 9 Ves. 155; Bennett v. Trep- 
 pas, Bunb. 106, 143 ; 2 Bro. P. C. 437 ; Gwill. G33 ; 1 Eagle on Tithe, 170.|| 
 
 By the 27 H. S, c. 20, § 1, it is enacted, " That every person, accord- 
 ing to the laudable usages and customs of the parish, or other place 
 w^ere he dwelleth, shall yield and pay his tithes and other duties of holy 
 church." 
 
 By the 32 II. 8, c. 7, § 2, it is enacted, " That all persons shall fully, 
 truly, and effectually divide, set out, yield, or pay all tithes, according to 
 the Lawful customs and usages of (he parishes or places where such tithes or 
 duties shall grow, arise, come, or be due."
 
 TYTHES. 
 
 (L) How far Custom regarded in setting out Tithes. 
 
 By the 2 & 3 Ed. 6, c. 13, § 1, after enacting that (he statutes made in 
 the twenty-seventh and thirty-second years of the reign of the late Kino- 
 Henry the Eighth, concerning the true payment of tithes and other duties, 
 shall abide in their full strength and virtue, it is further enacted, " That all 
 persons shall truly and justly, without fraud or guile, yield and pay all man- 
 ner of predial tithes, in their proper kind, as they rise and happen, in such 
 manner and form as hath been of right yielded and paid within forty years 
 next before the making of this act, or of right or custom ought to have been 
 paid." 
 
 And by § 8, it is enacted, " That in every place the same custom of 
 payment of personal tithes, which had been observed within forty years 
 before the making of this act, shall be observed and continue." 
 
 The limitation in this statute, to forty years before the making thereof, 
 agrees with the ecclesiastical law, by which, if any tithe had been paid in 
 a certain way for the space of forty years, such payment would have made 
 a good custom against the church. 
 
 Cro. Ja. 454, Dobitoshe v. Curteen; ||G\vill. 287; 1 Eagle & Youn. 262. || 
 
 The construction of these statutes has constantly been, that a custom of 
 a parish as to the payment of tithes is not to be regarded unless it be a 
 reasonable one. 
 
 Wherever the tithe of a thing is due of common right, as of wheat, a 
 custom of a parish to pay less than the tenth part for tithe is bad ; because 
 this custom, which amounts to a proscription in non decimando as to part 
 of the thing, is unreasonable. 
 
 1 Sid. 278 ; 1 Lev. 179 ; Ld. Raym. 359 ; 12 Mod. 206 ; 1 And. 99. 
 
 But where the tithe of a thing is due by custom, as of fish taken in the 
 sea, a custom of a parish to pay less than the tenth part is good : and in- 
 deed there seems to be no way, except by the custom, of ascertaining what 
 is to be paid for a tithe which is only due by custom. 
 Noy, 108, Holland v. Heale, 1 Sid. 278; 1 Lev. 19. 
 
 It was alleged, that by the custom of a parish the tenth part was without 
 fraud to be delivered to the rector, in full satisfaction for the tithe of wool ; 
 and that this was to be delivered absque visuet tactic novem partium ejusdem 
 lance per rectorem. The custom was holden to be unreasonable ; for al- 
 though it be alleged that the tenth part of the wool was to be delivered 
 without fraud, yet this is to be delivered in such manner as is extremely 
 liable to fraud. It is moreover contrary to reason, that the person who is 
 to pay tithe should be the sole judge whether it be justly paid. 
 
 Hob. 107; Wilson v. The Bishop of Carlisle, Bunb. 321 ; [jGwill. 279, and Eag. 
 & Y. 250; and see 13 East, 261 ; 2 Taunt. 55. || 
 
 ||It seems that the tithe of wool may be lawfully set out, either by num- 
 ber or weight, according to the custom of the place. 
 Jenkinson v. Royston, 5 Price, 495 ; Gwill. 1878. [| 
 
 The custom was, that the tenth sheaf of such corn as was bound up in 
 sheaves was to be paid in full satisfaction for the tithe of all corn grown 
 upon certain lands. This was adjudged a bad custom, because it admits 
 of the paying as little for tithe of corn as the occupier pleases; for he may 
 choose how much of the corn he will bind up in sheaves. 
 
 1 And. 199, Adam's case. \\Sed vide 13 East, 2G1 -|j 
 
 In a suit for subtracting tithe, the defendant alleged, that by the custom 
 
 D
 
 38 TYTHES 
 
 (L) How far Custom regarded in setting out Tithes. 
 
 of a farm, the occupier of the farm, after having set out the tithe of corn, 
 was to take back thirty sheaves of the tithe. As it was not averred that 
 the farm was a large one, this custom was holden to be bad ; for, if it were 
 a small farm, there might be no more than thirty sheaves set out for tithe, 
 in which case the parson would have no tithe. 
 Godb. 234, Jacks v. Cavendish. 
 
 It was alleged, that by the custom of a parish, when certain lands are 
 sown with corn, the parson is to have for tithe the corn grown upon every 
 tenth land, beginning to reckon from the land next the church. It was 
 holden that this custom, which puts it into the power of the occupier, by 
 neglecting to manure and sow the tenth lands properly, to make the tithes 
 thereof worth very little, is unreasonable, and therefore bad. 
 
 1 Leon. 99, Stebbs v. Goodlake; Moor, 913 ; 2 P. Wms. 569 ; Vin. Ahr. tit. Dismes, 
 B, a, pi. 17. 
 
 [A custom of a parish to tithe wheat by throwing aside every tenth sheaf, 
 as the corn is about to be carried, is bad. 
 
 Tennant v. Stubbing, Anstr. 841.] 
 
 || So, a custom to set out the tithe of hops by the tenth hill, where the 
 rows are unequal, leaving the binds uncut, and the poles standing, cannot 
 be supported ; for, by common law, hops are tithable after they are 
 gathered from the bind ; and this custom gives no equivalent for the addi- 
 tional labour thrown on the parson. 
 
 Knight v. Halsey, 7 Term R. 8G; Gwill. 1538 ; 2 Bos. & Pul. 172. 
 
 But a custom for the parson to take the eleventh shock of wheat was 
 held good, where it appeared that the farmer was always used to put the 
 sheaves into shocks, and in case of bad weather to open them to dry ; 
 since the wheat, which, at common law, is tithable in the sheaf, was thus 
 advanced to a further state of preparation. 
 
 Smith v. Sambrook, I Maule & S. GG. 
 
 The same custom, however, as to barley was held bad, where the farmer 
 merely put it into cocks, without doing any thing further, except opening 
 them in case of wet weather ; since this was too minute a benefit to the 
 parson to amount to a consideration for the deduction. 
 
 Smith v. Sambrook, 1 Maule & S. C6.|| 
 
 The custom of a parish was to pay tithe in kind of sheep, if they were 
 kept a whole year in the parish ; but if they were sold before shearing time, 
 only a halfpenny was to be paid for the tithe of each sheep. This was ad- 
 judged an unreasonable custom ; for thereby the tithe of sheep may, at the 
 owner's pleasure, be made worth very little. 
 
 March, 79, Weedon v. Harding. 
 
 It was alleged, that by the custom of a parish, the tenth lamb was to be 
 paid for the tithe of all lambs yeaned in the parish ; and that in consider- 
 ation of this no tithe was to be paid for ewes d. -pastured in the parish, 
 which did not yean therein. This was holden to be a bad custom ; for, 
 by taking the ewes out of the parish a little before the time of yeaning, the 
 parson may be deprived of his tithe of sheep. 
 
 12 Mod. 498, Selby v. Bank. ||See Boys v. Ellis, Bunb. 139; Gwill. 647; Hall v. 
 Maltby, 6 Price, 240 ; Gwill. 1888.|| 
 
 A custom to pay tithes of lambs upon Saint Mark's day, was holden to.
 
 TYTHES 39 
 
 N) Of setting cut predial Tithes by the Common Law. 
 
 be unreasonable, because, at that time, lambs are in the general so young, 
 
 that they are not able to live without their dams. 
 
 Bunb. 133, Reynolds v. Vincent. ||See Welch v. Uppill, 3 Moo. 330 ; Gwill. 1819; 
 Jenkinson v. Royston, 5 Price, 495. !| 
 
 (M) Of the Time and Manner of paying personal Tithes, where there is no Custom in 
 
 a Parish. 
 
 By the 2 & 3 Ed. 6, c. 13, § 7, it is enacted, " That every person, 
 liable to the payment thereof, shall yearly, at or before Easter, pay for his 
 personal tithe the tenth part of his clear gain, his charges and expenses, 
 according to his estate, condition, or degree, to be therein abated, allowed, 
 and deducted." 
 
 It was determined in the House of Lords, upon an appeal from the Court 
 of Exchequer, that the occupier of a corn-mill is only liable to pay, for his 
 personal tithe, the tenth part of his clear profit, after the charge of erecting 
 the mill, and the expenses of horses, servants, and all other things are 
 deducted. 
 
 1 Eq. Ca. Abr. 366, Newte v. Chamberlain ; 1 Br. P. C. 157, S. C. ; ||Gwill. 596 ; 
 and see Manby v. Taylor, 9 Price, 249; 2 Eag. & Youn. 696.|| 
 
 It is said to have been the opinion of Gilbert, Chief Baron, that Easter 
 ofFeiings were at first a compensation for personal tithes. 
 Bunb. 174. 
 
 And this opinion seems to be confirmed by two late cases in the Court 
 of Exchequer; in which the court unanimously agreed, that Easter offer- 
 ings are due of common right. 
 
 Bunb. 173, 198 ; Ambl. 72, S. P. !;See 1 Eagle on Tithes, c. viii.|| 
 
 For it cannot reasonably be supposed that an Easter offering is due of 
 common right, unless it be at the same time supposed that it was at first 
 paid in lieu of something due of common right : and it seems more pro- 
 bable that it was at first paid in lieu of the tithe of personal labour, than 
 of any other thing. 
 
 |jBy 2 & 3 Ed. 6, c. 13, § 10, it is enacted, that all and every person 
 and persons, which, by the laws and customs of the realm, ought to make 
 or pay their offerings, shall yearly from henceforth well and truly content 
 and pay his or their offerings to the parson, vicar, proprietor, or their 
 deputies or farmers, of the parish or parishes where it shall fortune or hap- 
 pen him or them to dwell or abide, and that at such four offering days as 
 at any time heretofore, within the space of four years last past, hath been 
 used and accustomed for payment of the same ; and in default thereof, U> 
 pay for their said offerings at Easter then next following. The four offer- 
 ing days are most commonly Christmas, Easter, Whitsuntide, and the feast 
 of the dedication of the parish church. 
 
 Gibs. 739.|| 
 
 (X) Of the Time and Manner of setting out predial Tithes, where there is no Custom 
 
 in a Parish. 
 
 It is laid down in divers books, that only one predial tithe can be due 
 in the same year from the same land. 
 
 Fitz. N. B. 5; Bio.Diam. pi. 16; 2 Inst. 652; 11 Rep. lb. 
 
 But it seems to be now settled, that more than one piedial tithe may be 
 due from the same land in the same year.
 
 40 TYTHES. 
 
 (N) Of setting out predial Tithes by the Common Law. 
 
 It was holden many years ago, that tithe is due of aftermath hay. 
 
 1 Roll. Abr. 640, pi. 11, Pasch. 41 Eliz. 
 
 It was holden by the Court of Exchequer in a modern case, that garden 
 grounds shall pay tithes of the different crops produced in the same year ; 
 and that tithe is due of turnips when pulled, although they grow upon land 
 which has in the same year paid tithe. 
 
 Bunb. 10, Benson v. Watkins, Hil. 3 G. 1 ; ||Gwill. 612. See 1 Eagle on Tithes, 
 327.11 
 
 And in a still later case it was holden by the same court, that if land be 
 sown with turnips in the same year that tithe of corn grown thereon has 
 been paid, and be fed with sheep or any unprofitable cattle, tithe is to be 
 paid of the turnips. 
 
 Bunb. 314, Swinfen v. Digby, Hil. 5 G. 2. \\Sed vide Wright v. Elderton, contra, 
 1 Wood, 518; Gvvill. 607.(1 
 
 It was indeed in one case holden, that no tithe is due of aftermath hay ; 
 but the reason given in this case for such hay being exempted from the 
 payment of tithe is, that, by the custom of the parish, the occupier was 
 to bestow some extraordinary labour about the tithe of the first crop 
 of hay. 
 
 Cro. Ja. 42, Hall v. Fettyplace. ||Where there is no special custom to the contrary, 
 founded on consideration, it is now settled that tithe is due of aftermath hay; and the 
 rule seems to have been introduced to prevent fraud in the severance of the first crop. 
 See Toll, on Tithes, 63J| 
 
 It is laid down in one case, that a predial tithe is to be set out as soon 
 after the corn, or other thing of which it arises, is severed, as this can well 
 be done, if there be no custom to the contrary. 
 
 Freem. 335, Anon. 
 
 And it is in another case said, that if a man, either negligently or with 
 design, suffer apples to hang longer upon the trees than they ought to 
 hang, and they should be stolen, he shall account for the tithe thereof. 
 
 Hetl. 100, Anon. 
 
 1p a modern case in the Court of Exchequer it was said by the court, 
 .nat all the wheat growing in a field must be cut down, before the tithe of 
 any part of the wheat can be set out. 
 
 MS. Rep. Mather v. Holmwood, Mich. 5 G. 3. 
 
 In a subsequent case in the same court, wherein a question was, Whether 
 all the wheat growing in a field must be cut down before the tithe of any 
 part of the wheat can be set out, the case of Mather v. Holmwood was 
 cited, and relied upon by the counsel for the plaintiff, as a determination 
 in point. The late Mr. Hussey, after opening for the defendant, observed, 
 that the question was not, according to his recollection, much argued in the 
 case of Mather v. Holmwood ; for that, some circumstances of fraud appear- 
 in" - in that case, he, who was of counsel with the defendant, recommended 
 to his client to submit to a decree, for accounting for the tithe in question 
 without costs. Having observed this, he, with that delicacy and candour 
 for which he was most remarkably distinguished, begged to be informed 
 by the court, whether he was precluded, by any thing which fell from the 
 court in the case of Mather v. Holmwood, from arguing the question in the 
 present case. Hereupon Parker, Chief Baron, said, that it was the desire 
 of the court to have the question, it being a question of the utmost im- 
 portance, fully argued ; and, which showed true greatness of mind as weft
 
 TYTHES. 41 
 
 (N) Of setting out predial Tithes by the Common Law. 
 
 as goodness of heart, he added that, for his own part, he should be glad U 
 reconsider the question, in order to have an opportunity, in case he should 
 see reason for it, of departing from an opinion he had for some time enter- 
 tained. After hearing the question fully argued, and taking time to con- 
 sider, the opinion of the court was, that it is not necessary to cut down all 
 the wheat growing in a field, before the tithe of any part of the wheat is 
 set out ; and that the tithe may be set out, as often as a reasonable quantity 
 of the corn growing in a field is cut down. Another question in this case 
 was, Whether all the barley or oats growing in a field must be cut down, 
 before the tithe of any part of the barley or oats can be set out? The 
 opinion of the court was, — That it is not necessary to cut down all the 
 barley or oats growing in a field, before the tithe of any part can be set 
 out ; and that the tithe may be set out as often as a reasonable quantity of 
 the corn growing in a field is cut down. The court did not ascertain what 
 is a reasonable quantity of corn to be cut down, before any tithe is set out. 
 So far from doing this, it was said, that it could not be done ; inasmuch 
 as it must always depend upon the circumstances of the particular case, 
 whether the tithe was set out before a reasonable quantity of corn was cut 
 down. 
 MS. Rep. Erskine v. Ruffle, Mich. 9 G. 3 ; [Hall v. Macket, E. 37 G. 3, in Scacc] 
 
 || A farmer is not in general at liberty to begin to cut and tithe a part of 
 a field, and then to proceed to another field and cut part of that before 
 finishing the other; though this rule admits of exceptions, in respect of 
 partial ripeness of the corn, uncertainty of weather, &c. ; and there is no 
 rule which obliges him to tithe the whole of that part of a field which lies 
 in one parish, before he proceed to tithe any part of the same field lying 
 in another parish. Therefore, where a farmer cut the whole of a field of 
 barley lying in the parishes of A and B, and after cocking and tithing part 
 in A, proceeded to cock and tithe part in B ; and the weather being catch- 
 ing, he carried that part which was tithed in A the day before the rest of 
 the field in A was cocked and tithed, and without previous notice of his 
 intention to carry such part ; this being done bond Jide, the court held it 
 was lawful. 
 
 Leathes, clerk, v. Levinson, 12 East, 239; Gwill. 1G52.[| 
 
 By the 2 & 3 Ed. 6, c. 13, § 2, it is enacted, " That at all times and as 
 often as predial tithes shall be due, and at the tithing-time of the same, it 
 be lawful to every party to whom any of the said tithes ought to be paid, 
 or his deputy or servant, to view and see their said tithes to be justly and 
 truly set forth and severed from the nine parts." 
 
 But it is not necessary for the occupier of land to give notice to the per- 
 son entitled to a predial tithe, or to give notice in the church, at what time 
 he intends to set the same out. 
 
 1 Roll. Abr. G43, X, pi. 1 ; 2 Ventr. 43. 
 
 And in a modern case, Carter and Comyns, Barons, were of opinion, 
 that even a custom of a parish, to give notice at what time a predial tithe 
 is to be set out, would be unreasonable ; for the person entitled to the tithe 
 may live at the distance of a hundred miles from the parish. 
 
 Bunb. 333, Beaver v. Spratley, Hil. 7 G. 1. 
 
 But Reynolds, Chief Baron, was of opinion, that such a custom would 
 Vol. X.— 6 d 2
 
 42 TYTHES. 
 
 (N) Of setting out predial Tithes by the Common Law. 
 
 be good; (a) because notice to a servant would in that case be suffi- 
 cient. 
 
 || (a) It is now settled, that such a custom is good. Butter v. Heathby, Burr. 1891 ; 
 GwilL 928. An action on the case will not lie against the parson for not taking away 
 the tithe, unless such notice is g-iven ; and as to what notice is sufficient, see Gwill. 
 1439; Kemp v. Filewood, 11 East, 358 ; Sir W. Scott's judgment in Filewood v. 
 Marsh, 1 Hagg. R. 478. || 
 
 The general rule, as to the manner of paying a predial tithe, is, that the 
 tenth part of the thing from which it arises is to be justly and truly set out 
 upon the land upon which it arises. 
 
 In some cases the manner of setting out a predial tithe is ascertained by 
 judicial determination. 
 
 It has been holden, that every tenth sheaf of corn is to be set out for the 
 tithe thereof. 
 
 1 Sid. 283, Ledgar v. Langley. 
 
 And it was said arguendo, that the sheaves set out for tithe of corn ought 
 to be marked with a green bough. 
 
 Bunb. 186, Boughton v. Wright. 
 
 The occupier of land is not of common right obliged to gather the 
 sheaves of corn, which have been set out for tithe, into shocks. 
 
 1 Sid. 283, Ledgar v. Langley. 
 
 But he may by custom be obliged to do this, and the person having a 
 rio-ht to the tithe may at any time bring a bill in a court of equity for the 
 establishment of the custom. 
 
 2 Atk. 136, Archbishop of York v. Sir Miles Stapleton. ||Gwill. 772; 2 Eag. & 
 Youn. 83. || 
 
 Before the nine sheaves of the occupier of the land are put into a car- 
 riage to be carried away, the whole ten are to be set out upon the ground, 
 that the person entitled to the tithe thereof may have an opportunity of 
 judging whether the same be fairly set out. 
 
 Bunb. 186, Boughton v. Wright. 
 
 [jTherefore the farmer cannot legally before tithing put all the sheaves 
 when bound immediately into large shocks, or riders, consisting of eight 
 sheaves, set upon their ends against each other, with two covering sheaves 
 placed roofwise on the top for the purpose of protecting the whole from 
 bad weather, and then draw the tenth sheaf from the shock, without 
 taking the rest of the shock to pieces : for the parson is thus deprived of a 
 reasonable and convenient opportunity of comparing the tenth with the 
 other nine sheaves ; and the corn ought to be tithed in the sheaf, before it 
 is put into shocks or riders. 
 
 Shallcross v. Jowle, 13 East, 261 ; and see 2 Taunt. 35. || 
 
 In a very late case in the Court of Exchequer, the opinion of the court, 
 upon great consideration, was, that unless there be a custom of the parish 
 to set the tithe of barley out in some other manner, the bailey must be 
 gathered into cocks, and every tenth cock must be set out for tithe 
 ' MS. Rep. Ereskine v. Ruffle, Mich. 9 G. 3. ||See 1 Maule & S. 66.l| 
 
 In one book it is laid down, that tithe for depasturing cattle is to be paid 
 for at the rate of two shillings in the pound of the money received for the 
 depasturing. 
 
 Freem. 329, Anon. 
 
 But it seems to be the better opinion, that tithe for depasturing cattle is
 
 TYTHES. . 43 
 
 (N) Of setting out predial Tithes by the Common Law. 
 
 to be paid for at the rate of two shillings in the pound of the annual value 
 of the land whereon the cattle were depastured. 
 
 Hardr. 184. 
 
 It is in one case laid down, that the tithe of grass mowed is to be set 
 out before it is made into grass-cocks. 
 
 Hob. 250, Hide v. Ellis, Hil. 1G .la. 1 ; |;G\vill. 431 ; 4 Eag. & Youn. 303. j| 
 
 But it was in a modern case holden, that the tithe of grass mowed is not 
 to be set out until it is made into grass-cocks. 
 
 [2 I'. Wms. 5-23. In a note on this case by the editor, it is said, the tithes are 
 called the tithes of hay, and not of grass. 3 Burn. Ecel. Law, 441.] 
 
 || It is settled, that the common-law mode of tithing hay is in grass- 
 cocks, after the grass has been tedded in the process of making it into hay. 
 Newman v. Morgan, 10 East, R. 5; Halliuell v. Trapps, 2 Taunt. 55. || 
 
 [Where, by the usual mode of husbandry, clover-hay is not made into 
 cocks at all, the tithe may be set out in the swathe. 
 Collyer v. Howes, Anstr. 481. 
 
 This case has, however, been re-heard by the Court of Exchequer, and 
 the former decree has been reversed. It appeared from the additional 
 evidence introduced upon the re-hearing, that in the usual course of hus- 
 bandry clover does get into the shape of cocks, so that the ground of the 
 former decision failed. The court said that it was like the case of soft 
 corn, which, it had been decided, was not tithable in the swathe. 
 
 Tr. 37 G. 3, Toller, 82.] 
 
 The person entitled to the tithe of grass mowed, is to be allowed a con- 
 venient time for making it into hay upon the land on which it grew. 
 
 Bro. Dism. pi. 12; 1 Roll. Abr. 643, X, pi. 2; Sir. 245. 
 
 It was formerly doubted whether the tithe of hops were to be set out by 
 the tenth hill as soon as the binds were severed from the ground, or by the 
 tenth measure after the hops were picked. 
 
 Sid. 283, Ledgar v. Langley, Pasch. 18 Car. 2. 
 
 But it has been determined in two cases, that the tithe of hops is to be 
 set out by the tenth measure, after they are picked. 
 
 Bunb. 20, Chilly v. Reeves, Trin. 2 Ja. 2 : Bliss v. Chandler, Mich. 7 G. 1. 
 
 The same was determined in a modern case by the Court of Exchequer; 
 and the decree of this court was affirmed upon an appeal to the House of 
 Lord.- - . 
 
 MS. Rep. Tvers v. Walton, in Dom. Proc. 15th May, 1753; [Knight v. Halsey, 
 7 Term R. 86, S. P. ;] ||2 Bos. & Pal. 172 ; 8 Bro. P. C. 233. I| 
 
 In some cases, the manner of paving a predial tithe is ascertained by 
 acts of parliament. 
 
 By the 11 & 12 W. 3, c. 16, it is, for the better ascertaining the tithes 
 of hemp and flax, enacted, " That ever} - person who shall thereafter sow 
 any hemp or flax in any parish or place within England, Wales, or Ber- 
 wick-upon-Tweed, shall pay to the parson, vicar, or impropriator of such 
 parish or place, yearly, the sum of five shillings and no more, for each acre 
 of hemp or flax, before the same is carried off the ground, and so in pro- 
 portion for more or less ground so sown." 
 
 |]This statute is made perpetual b)' 1 G. t, st. 2, e. 26, s. 2.|| 
 
 By the 31 G. 2, c. 12, it is, for the encouragement of the growth of 
 madder, enacted, "That every person who shall thereafter plant or culti-
 
 44 TYTHES. 
 
 (0) Of paying Tithes where there is no Custom. 
 
 vate any madder, in any parish or place within that part of Great Britain 
 called England, shall pay to the parson, vicar, curate, or impropriator of 
 such parish or place, yearly, the sum of five shillings and no more for each 
 acre thereof, and so in proportion for more or less ground so planted or 
 cultivated, in lieu of all manner of tithe of the said madder." 
 
 |]Continued for fourteen years, by 5 G. 3, c. 18, and not since renewed ; so that mad- 
 der is now tithable in kind.fl 
 
 But it is in both these statutes provided, that nothing therein contained 
 shall extend to charge any land which is discharged of tithe by a modus, 
 an ancient composition, or otherwise. 
 
 Although two persons are entitled to moieties of a predial tithe, the oc- 
 cupier of the land is not bound to set it out in moieties ; for it is the duty 
 of the persons to whom the tithe is due to divide it after it is set out. 
 
 Lat. 24, Stilman v. Cromer; ||1 Eag. & Y. 354. || 
 
 || A parson is not entitled to use every road, for carrying away the tithes, 
 which the farmer may use for the occupation of his farm : and the rule 
 seems to be, that he may use only such road as the farmer uses for the oc- 
 cupation of the close in which the tithes grew. 
 
 Cobb v. Selby, 2 New R. 46G.|| 
 
 (0) Of the Time and Manner of setting out or paying mixed Tithes, where there is no 
 
 Custom in a Parish. 
 
 It i ? in general true, that mixed tithes, which arise from things inani- 
 mate, are to be set out or paid as soon as they can conveniently be severed 
 from the nine parts. 
 
 Freem. 335, Anon. 
 
 The general rule as to the manner of setting out a mixed tithe, arising 
 from an inanimate thing, is, that the tenth part of the thing is to be set out 
 at the place where it arises. 
 
 But the manner of setting out mixed tithes has, in some cases, been 
 ascertained by judicial determinations. 
 
 The tenth meal of milk of all a farmer's cows, is to be set out for the 
 tithe of milk; for if the person entitled to tithe of milk should be obliged 
 to send for the tenth part of every meal, it would very often be not worth 
 the sending for. 
 
 Raym. 277, Dod v. Engleton. 
 
 [It is now settled, that the mode of setting out tithe-milk is, that the 
 entire tenth meal of the whole herd of cows should be set forth every tenth 
 day, both morning and evening meal, at one and the same time. 
 
 Beswortli v. Limbrick, 2 Raym. 825; Hutchins v. Full, 3 Raym. 1010.] 
 
 It has been decreed, that ihe tithe of milk is to be carried by the pa- 
 rishioner to the parsonage-house. 
 
 Raym. 277, Dod v. Engleton. 
 
 But Holt, Chief Justice, was of opinion that the parishioner is only 
 obliged to set out the tithe of milk ; and he said that that decree in Dod 
 and Engleton was rather an equitable one, and founded upon the custom 
 of the neighbouring parishes. 
 
 Ld. Raym. 359, Hill v. Vaun. 
 
 And in a modern case, the whole Court of Exchequer were of opinion, 
 that the parishioner is only obliged to set out every tenth meal of milk at 
 the usual place of milking ; — that the person entitled thereto ought to fetch
 
 TYTHES. 45 
 
 (P) Of paying Tithes due by Custom. 
 
 it away in his own pail or vessel ; — and that if he do not fetch it away be- 
 fore the next milking time, the parishioner may pour it on the ground, be- 
 cause he may then have occasion for the pail or vessel in which it was set 
 out. 
 
 Bunb. 73, Dodson v. Oliver, Pasch. 8 G. 1 ; Ambl. 72, S. P. 
 
 The tenth part, by weight, is to be delivered for the tithe of wool. 
 
 12 Mod. 498. 
 
 Such mixed tithes as arise from the young of beasts, birds, or fowls are 
 in general to be set out or paid as soon as the young beasts, birds, or fowls 
 can well live without the old ones. 
 
 Bunb. 133, Reynolds v. Vincent. ||In a late case the court of C. B. decided, that 
 the tithe of calves and lambs accrues when they are dropped ; but that they are not 
 tithable till they can be weaned, and live without their dams. Welch v. Uppill, 3 B. 
 Moo. 384 ; and see Gwill. 630, 1058. I| 
 
 It has been holden, that tithe is not to be paid for any number of young 
 beasts, birds, or fowls under ten ; but that this number is to be carried over 
 to the account of the next year. 
 
 12 Mod. 497, Selby v. Bark, Pasch. 13 W. 3. 
 
 But in a modern case it was decreed by the Court of Exchequer, that if 
 the number of young beasts, birds, or fowls be under ten, this number is 
 not to be carried over to the next year's account : but the tenth part of the 
 value thereof in money is to be paid for tithe. 
 
 Bunb. 198, Egerton v. Still, Trin. 12 G. I. ||See Toll, on Tythes, 143, 144, (3d 
 
 edit.) | 
 
 (P) Of the Time and Manner of paying Tithes due by Custom. 
 
 It is in general true, that where a tithe is due by custom, the time and 
 manner of paying it are ascertained by the custom ; and indeed there seems 
 to be no oiher way, than by the custom, to ascertain the time and manner 
 of paying a tithe, which is only due by custom. 
 
 But the time and manner of paying tithes of houses in London are ascer- 
 tained by statutes. 
 
 By the 37 H. 8, c. 12, § 2, it is enacted, " That the inhabitants of the 
 city of London shall yearly, without fraud or covin, pay their tithes to the 
 parsons, vicars, and curates of the said city, after the rate following ; that 
 is to wit, of every ten shillings rent by the year of every house within the 
 said city sixteen pence halfpenny, and of every rent of twenty shillings of 
 every such house two shillings and ninepence." 
 
 ||Vide the decisions on this statute, Gwill. Ifi4, 329 ; Noy, 130; 2 Inst. 660; Gwill. 
 299,503, 546, 891, 1054; 2 Ves. J., 563; 4 Price, 65; 5 Price, 14; 9 Ves. 155; 
 2 Ves. & B. 1 ; 13 Ves. 9 ; Toll, on Tythes, 229,. (3d edit.) ; and see cure, p. 8, nutd.\ 
 
 And by § 11, it is enacted, " That the said inhabitants shall pay their 
 tithes quarterly, by even portions." 
 
 But by § 18, it is enacted, " That where a less sum than is by this act 
 directed to be paid for tithe, hath been accustomed to be paid for the tithe 
 of any house, that then the inhabitant of such house shall pay tithe only 
 after such rate as hath been accustomed." 
 
 By the 22 and 23 Car. 2, stat. 2, c. 15, § 1 & 2, after reciting that tithes 
 in the city of London were paid with great inequality, and are since the 
 late dreadful fire, in rebuilding the same, by taking away of some houses, 
 altering the foundations of the others, and the new erecting of others, so
 
 46 TYTHES. 
 
 (Q) In what Cases the Payment of Tithes suspended. 
 
 disordered, that in case they should not, for the time to come, be reduced 
 to a certainty, many controversies and suits of law might thence arise, it is 
 enacted, " That an annual certain sum of money therein mentioned shall in 
 lieu of tithes be paid, in all the parishes within the said city, whose churches 
 have been demolished or in part consumed by the late fire." 
 
 And by § 3, it is enacted, " That the respective sums of money to be I 
 paid in the said respective parishes, and assessed as therein is directed, 
 shall be deemed and taken to be the respective certain annual maintenance 
 (over and above glebes and perquisites, gifts and bequests, to the respec- 
 tive parson, vicar, or curate of any parish, or to the successors) of the re- 
 spective parsons, vicars, or curates, who shall be legally instituted, inducted, 
 and admitted into the said respective parishes." 
 
 By § 10, it is enacted, " That the impropriator or impropriators of any 
 of the said parishes shall pay and allow, what really and bond fide they have 
 used and ought to pay and satisfy, to the respective incumbents of such 
 parishes at any time before the said fire, and the same shall be esteemed 
 and computed as part of the maintenance of such incumbent." 
 
 || The tithes of these parishes were augmented by stat. 44 G. 3, c. 89, 
 intituled " An act for the relief of certain incumbents of livings in the city 
 of London," whereby, after reciting that the said first-mentioned act had 
 failed in providing a proper maintenance for the parsons, vicars, and curates 
 in those parishes, inasmuch as the respective incomes being by the said acts 
 fixed at very low rates, the same are, by the decreased value of money, the 
 enhanced price of all the necessaries of life, and by various other circum- 
 stances peculiarly attached to the incumbents of the city of London, become 
 greatly insufficient for the due support of their situation and characters, it is 
 enacted, that instead of the annual tithes of the parishes within the city of 
 London, and the liberties thereof, whose churches were demolished or in 
 part consumed by fire, the annual certain tithes, or sums of money in lieu 
 of tithes, of those parishes shall be increased to certain sums in the act 
 stated. 
 
 Toller, p. 232 ; Mirehouse, p. 295. : | 
 
 (Q) In what Cases the Payment of Tithes may be suspended. 
 1. Of the Produce nf Lands in the King's Hands. 
 
 It is laid down in one case, that the king is exempted, by virtue of his 
 prerogative, from the payment of tithes. 
 Cro. Kliz. 511, Wright v.' Wright. 
 
 But in another case it was holden, that even the demesne lands in the 
 crown are not exempted, by virtue of the prerogative, from the payment 
 of tithes. 
 
 Hard.r. 315, Compost's case. 
 
 Tithes are not due of the produce of lands in the king's hands ; because 
 the appropriation of parochial tithes does not extend to such lands. 
 
 ] Johns. 387, Karl of Hertford v. Leech. 
 
 The privilege, however, of being exempted from the payment of tithes 
 is personal to the king ; and does not extend either to his grantee or lessee. 
 
 1 Jon. 3S7, Karl of Hertford v. Leech ; Cro. Eliz. 511. 
 
 2. Of the Produce »f Lands which have been barren. 
 
 By the 2 & 3 Ed. 6, c. 13, § 5, it is enacted, "That all barren hea+h or 
 waste grounds, other than such as be discharged of the payment of tithes
 
 TYTHES. 47 
 
 (Q) In what Cases the Payment of Tithes suspended. 
 
 by act of parliament, which before this time have paid no titnes by reason 
 of their barrenness, and now be, or hereafter shall be, improved and con- 
 verted into arable ground or meadow, shall from henceforth, after the end of 
 seven years next after such improvement, pay tithes of the corn and haj 
 growing upon the same." 
 
 There is not in this statute an express suspension of the payment of 
 tithes, for the lands therein mentioned ; but there is certainly an implied 
 suspension, for the space of seven years next after the improvement of the 
 lands. 
 
 2 Inst. C5G. 
 
 It has been constantly holden, that only such land is barren, within the 
 meaning of the statute, as produces nothing profitable by reason of its na- 
 tural barrenness. 
 
 2 Inst. G56; Freme. 335; 6 Mod. 96; Ld. Raym. 991; 3 Bulstr. 166; [Stockwell 
 v. Terry, 1 Ves. 115; 2 Ilayn. 445.] 
 
 || The construction of this section of the statute was much discussed in 
 a recent case in the Court of King's Bench, in which the judge at Nisi 
 Prius laid it down, that in order to bring land within the exemption of the 
 statute as barren land, it was necessary that it should be such land as would 
 not bear a crop worth more than the expense of ploughing, sowing, and 
 reaping, without manuring or tillage ; that is, without some manuring or 
 tillage. But the court granted a new trial, and decided that the above rule 
 confined the exemption within too narrow limits ; and that the true rule 
 for determining what is " barren land" within the statute, is whether the 
 land is of such a nature as necessarily to require extraordinary expenditure 
 of manure or tillage in order to bring it into cultivation. The case went 
 to a second jury ; and the judge, upon the second trial, directed the jury 
 according to the rule above established. A second verdict was found for 
 the defendant in favour of the exemption ; and a new trial was then moved 
 for, on the ground of the verdict being contrary to evidence. It appeared 
 that the land was pronounced by several witnesses expressly to be land of 
 good natural quality ; that, on first breaking it up, it was ploughed three 
 times, which was twice more than was usual in breaking up grazing land 
 of that description ; and that it was limed, which was usual in breaking 
 up land not ploughed before, and the quantity of lime used did not appear 
 extraordinary. The crop of the first year was middling, that of the second 
 year was much better, after only one ploughing and without any manure. 
 In the third and fourth years, a witness swore the land was worth forty 
 shillings per acre, to be let for seven years. The court, after argument, 
 decided (Bayley, J., dissentimte) that the evidence was to be considered 
 with reference to the question whether the land was barren in its natural 
 quality, suapte naturd sterilis ; that the onus lay on the defendant to show 
 that it was so ; and that as it clearly appeared that the land was good in 
 its natural quality, and as the lime (even if the quantity were unusual) ap- 
 peared to have been employed for the purpose of getting rid of the inci- 
 dental impediments to cultivation left in the land by the whins and furze 
 which had before covered it, and not for the purpose of overcoming any 
 natural wfecundity in the soil, (and the circumstance of the expense of 
 the lime, being caused by the accidental distance of the pits, could not be 
 'aken into consideration,) the land was not within the description of "bar-
 
 43 TYTHES. 
 
 (Q) In what Cases the Payment of Tithes suspended. 
 
 ren land" in the statute. A new trial was accordingly directed ; but the 
 defendant declined going to another jury. 
 
 Warwick v. Collins, 2 Maul. &S. 349, ace. ; Selseav. Powell, 6 Taunt. 297; Kings- 
 mill v. Bellingley, 3 Price, 465 ; 3 Eag. & Youn. 791, S. C. ; Warwick v. Collins, 
 5 Maul. & S. 166. 
 
 If land, which has from time immemorial been full of bushes, be grubbed, 
 and converted into arable ground or meadow, tithes of the corn and hay 
 thereupon grown are immediately due; because the land was not naturally 
 barren, but became so by negligence. 
 
 Cro. Eliz. 475, Sherington v. Fleetwood. 
 
 If wood-land be grubbed, and converted into arable ground or meadow, 
 tithes of the hay and corn thereupon grown become due immediately. 
 
 Bunb. 159, Beardmore v. Gilbert; 3 Bulstr. 165. 
 
 Tithes are due immediately of the corn and hay grown upon broom-land, 
 which has been grubbed and converted into arable ground or meadow. 
 
 Roll. R. 39, Mascal v. Price. 
 
 If land, which has from time immemorial been overflown by the sea, be 
 drained, the payment of tithes of the corn and hay grown upon this land is 
 not suspended ; because the land was not in its nature barren, but became 
 so by accident. 
 
 3 Bulstr. 165, Wit v. Buck; Cro. Eliz. 475. 
 
 This statute does not suspend the payment of any tithes, which were 
 paid before the improvement of the land. 
 
 For by § 6, it is enacted, " That if any barren heath or waste grouna 
 hath before this time paid any tithes, and the same be hereafter improved 
 and converted into arable ground or meadow, the owner thereof shall, 
 during the seven years next after the same improvement, pay such kind of 
 tithes as were paid for the same before the said improvement." 
 
 3. Of the Produce if Glebe Lands. 
 
 So long as the rector of a parish holds his glebe in his own hands, the 
 payment of small tithes arising thereupon is suspended ; notwithstanding the 
 vicar of the parish is endowed of all small tithes arising in the parish : for 
 the maxim is, ecclesia decimas solvere ecclesice non debet. 
 
 Cro. Eliz. 479, 578 ; Lutw. 1062. |jlt appears that this maxim only applies as be- 
 tween the parson and vicar of the same church, where the ecclesia would be paying 
 tithes to itself; but not to cases of a distinct ecclesiastical person claiming exemption. 
 4 Price, R. 77.|| 
 
 But if a rector let his glebe, the tenant is liable to pay the small tithes 
 arising thereupon to the vicar, and the great to the rector. 
 
 Bro. Dism. pi. 17; Cro. Eliz. 479, 578. 
 
 For the same reason the vicar of a parish shall not, during the time he 
 occupies his own glebe, pay any tithes, arising thereupon, to the rector or 
 impropriator of the parish. 
 
 1 Brownl. 69, Harris v. Cotton. 
 
 But if a vicar let his glebe, the tenant is liable to pay the great tithes 
 arising thereupon to the rector or impropriator, and the small to the vicar. 
 
 1 Brownl. 69, Harris v. Cotton. 
 
 An impropriator is likewise exempted from the payment of the small
 
 TYTHES. 49 
 
 (Q) In what Cases the Payment of Tithes suspended. 
 
 tithes arising upon his glebe to the vicar, so long as it is in his own hands ; 
 for the maxim extends to him also. 
 Hetl. 31, Booth v. Franklin; Fitzg. 7. 
 
 But if an impropriator let his glebe, the small tithes arising thereupon 
 are due to the vicar, and the great to himself. 
 
 Het!. 31, Booth v. Franklin; Fitzg. 7. 
 
 If a rector, vicar, or impropriator, who has sown his glebe, die before 
 the corn is severed, the executor of the rector, vicar, or impropriator must 
 pay tithe thereof; for although an executor be in general the representative 
 of his testator, he is not so in his spiritual capacity. 
 
 1 Brownl. G9, Harris v. Cotton. 
 
 4. Of Discharge of Payment if Tithes by Composition real. 
 
 A composition real is where an agreement is made with the incumbent 
 of any church, together with the patron and ordinary, under their hands 
 and seals, that the lands specified shall be exempt from the payment of 
 tithes for the considerations mentioned in the stipulation. Such ccmposi- 
 '< tions have ever been allowed to be a good discharge of the payment of 
 tithes. But since the statute 13 Eliz. c. 10, for preventing the alienation 
 of ecclesiastical estates, no composition of this kind can be made; and such 
 as appear to be of later date are holden to be of no force. It seems, (a) 
 however, that there have been decrees made in courts of equity to confirm 
 compositions entered into by consent of the parson, patron, and ordinary, 
 though subsequent to the statute ; but only where they have appeared to 
 be for the benefit of the church. But it should appear from later deci- 
 sions, (b) that even compositions confirmed by such decrees are not binding 
 against the succeeding; incumbent. 
 
 Deg-. p. 2, c. 20. («) 1 Wils. 128. (&) Attorney-General v. Cholmley, 3 Burn's 
 E. L. 41G ; Ambl. 510 ; 6 Br. P. C. 332 ; Mortimer v. Lloyd, 7 Br. P. C. 493 ; Cart- 
 wright v. Knowlton, Scacc. 24 Apr. 1779. 
 
 A composition real commencing within time of memory, its commence- 
 ment must be shown : but it is not necessary to produce the actual deeds 
 under which it took place. Presumptions are admitted in this as in other 
 cases : and the existence of such deeds may be inferred from other evi- 
 dence. It is not necessary that the consent of all the parties should be by 
 the same deed. This may frequently not happen : in the case of the king, 
 who consents by letters patent, it never can take place. 
 
 Sawbridge v. Benton, Anstr. 372. 
 
 But a composition real is not supported by evidence of immemorial pay- 
 ment. 
 
 Robertson v. Appleton, Scacc. 22; Feb. 1777, cited in Anstr. 375. 
 
 IJThis doctrine is confirmed by a decision in the House of Lords; and in 
 a recent case the Vice-Chancellor, in deciding that a pecuniary payment 
 for two hundred years in lieu of tithes did not raise any presumption of a 
 deed creating a composition real, says, " There is no case in which a com- 
 position real has been presumed from the mere fact of a pecuniary payment. 
 If such a rule were adopted, every payment which is ranked as a modus might 
 be established as a good composition real. It is not necessary that the 
 deed creating the composition real should be proved by direct evidence. 
 It may be established by presumptive evidence ; but if there be no other 
 
 Vol. X.— 7 E
 
 50 TYTHES. 
 
 (R) Of a Mudus decimandi. 
 
 evidence of the composition than mere payment, the legal inference and 
 presumption is that the composition originates in that deed." 
 
 Knight v. Halsey, 2 Bos. & P. 206 ; Estcourt v. Kingscote, 4 Madd. 140; and see 
 Chatfield v. Fryer, 1 Price, 253; Ward v. Sheppard, 3 Price, C08; Bennett v. Skef- 
 fington, 4 Price, 143. 
 
 A real composition for tithes is now frequently effected by act of parlia-- 
 
 ment. 
 
 Where an enclosure act enacts that the commissioners shall set out, allot, 
 and award portions of common to impropriate rectors and curate in lieu of 
 tithes, and shall distinguish by their award the several allotments given to 
 the impropriate rectors and curate, and the same are declared to be in full i 
 satisfaction of tithes ; the tithes are not extinguished by the mere setting 
 out and allotting parcels of common to the rectors and vicar, but the award 
 of the commissioners is necessary to extinguish them. 
 
 Ellis v. Amison, 5 Barn. & A. -17; and see Cooper v. Thorpe, 1 Swanst. R. 92. || 
 
 (R) Of a Mudus decimandi. 
 
 A modus is a real composition for tithe. 
 
 It is probable, that every modus had its commencement by deed : because 
 a composition for tithe can never become a modus, unless the patron and 
 ordinary be parties thereto, or it be confirmed by them. 
 
 Hardr. 381, Ingolsby v. Ward, 2 P. Wins. 573. |jSee a modus defined, 2 Black. C. 
 29; 13 Co. 12 ; and per Wood, B., in Bennett v. Neale, Wightw. 324; Gwill. 1678.|] 
 
 A vicar and a parishioner had made an agreement, that, for the time to 
 come, a certain sum of money should be paid annually in lieu of tithes; 
 and it was confirmed by the bishop. This was holden to be only a per- 
 sonal contract, and not such a real composition as would bind the successor 
 to the vicar. 
 
 Mar. 87, Hitchcock v. Hitchcock. 
 
 [An agreement by which the rector had an enclosure and allotment in 
 lieu of hfs glebe and tithes, was holden to be no bar to the successor's claim 
 of tithes, though the ordinary was a party to it ; and it was sanctioned by a 
 decree in equity. To this agreement it should be observed, that the patron 
 was not a party, that the decree was by consent, and nothing was allowed 
 as a compensation for tithes upon improvements infuturo. 
 
 Ambl. 510, Attorney-General and Blair v. Cholmley.] 
 
 || So, where a covenant or agreement by deed, intended to operate as a 
 permanent composition in lieu of tithes, was made in 1712, by a dean and 
 chapter, who were seised of a rectory in trust for the support of a grammar 
 school, in consideration of a perpetual rent-charge granted by a lord of a 
 manor; it was held that this covenant, though not relating to the posses- 
 sions of which the dean and chapter were seised in right of their church, 
 was void within the intent and meaning of the disabling statute of 13 Eliz., 
 and consequently did not prevent their successors from demanding tithes in 
 
 kind. 
 
 Dean and Chapter of York v. Middleburgh, 2 Youn. & J., 196J| 
 
 A modus may be prescribed for, without producing the deed by which 
 the composition was at first agreed upon : for wherever there has been, for 
 time immemorial, a constant annual payment in lieu of tithe, it shall be in- 
 tended that the payment had a proper commencement. 
 
 1 1 Rep. 19; Graunt's case, 2 Mod. 321 ; Cro. Ja. 501 ; 2 P. Wms. 573. 

 
 TYTHES. 51 
 
 (R) Of a Modus decimandi. 
 
 A modus is not good, unless the composition were at first reasonable. 
 
 It is not, however, at this day necessary to show that the composition 
 was at first reasonable : for there might be, when the composition was 
 agreed upon, some circumstance which then made it reasonable, although 
 this cannot, at so great distance of time, be shown. 
 
 2 P. Wms. 573, 574, Chapman v. Monson. 
 
 A modus must, at its commencement, have been a recompense to the 
 person to whom the tithe was due in lieu of which it was to be paid. 
 
 If a man prescribe to be discharged of tithe, in consideration of being 
 obliged to repair the body of the church, this is not a good modus ; be- 
 cause, as the parson was never obliged to repair the body of the church, 
 this could never have been a recompense to him. 
 
 1 Roll. Abr. G49, pi. 8. 
 
 But if a man prescribe to be discharged of tithe, in consideration of be- 
 ing obliged to repair the chancel, this is a good modvs ; for this must al- 
 ways have been a recompense to the parson, he being bound to repair the 
 chancel. 
 
 1 Roll. Abr. G50, pi. 9. 
 
 It is not at this day necessary for the party who would avail himself of a 
 modus to show, that it was originally a recompense to the person to whom 
 the tithe was due in lieu of which it was to be paid : for unless it appear, 
 upon the face of the prescription, not to have been so, it shall be intended 
 that it was. 
 
 2 P. Wms. 573, Chapman v. Monson. 
 
 It is laid down, that a modus by prescription may be good against a 
 vicar. 
 
 Godb. 180. 
 
 But the better opinion seems to be, that, as every modus by prescription 
 must have begun at a time whereof there is no memory, no modus by pre- 
 scription can be good against a vicar ; because the endowment of all vicar- 
 ages has been within time of memory. 
 
 2 P. Wms. 522. |jBut if a modus from time immemorial is proved, it must be pre- 
 sumed to have commenced before the endowment of the vicarage, and when the parson 
 was entitled to all the tithes; and when the parson, by consent of the patron and 
 ordinary, afterwards endowed the vicar with these tithes, this did not prejudice the 
 parishioners, or deprive them of the benefit of the modus which they were before entitled 
 to. See 2 P. Wms. 522 ; 1 Ves. & B. 148. In one case, however, where the plaintiff, 
 a vicar, stated in his bill for an account an endowment of the vicarage, in 13G7, and the 
 answer alleged a modus payable to the vicar from time immemorial for vicarial tithes, 
 the Master of the Rolls decreed an account; since it appeared on the pleadings that 
 there was no vicarage till 1367, which was after time of lecral memory. Scott v. .Smith, 
 1 Ves. & B. 142 ; Gwill. 1702; Eag. & Youn. G5S. This, however, is a mere formal 
 defect in stating the modus as payable to the vicar for vicarial tithes; and so it was 
 considered in a previous case, Uhthoff v. Lord Huntingfield, 1 Price, 237, n. ; and in a 
 subsequent case, Prevost v. Benett, 1 Price, 236; Gwill. 1723; Eag. & Youn. 705, 
 the Court of Exchequer permitted the defendant to restate a modus similarly alleged, 
 for the purpose of trying an issue as to the existence of the immemorial payment. And 
 see Lord Redesdale's observations in Bullen v. Michel, 2 Price, 481. || 
 
 It has been holden, that a modus by prescription, to be paid to the rector 
 in lieu of all tithes arising in the parish, is a discharge of tithes as against 
 the vicar. 
 
 1 Mod. 216. 
 
 The thing paid as a modus is usually a sum of money.
 
 52 TYTHES. 
 
 (R) Of a Modus decimandi. 
 
 But the payment of a chattel as a modus is good, because the original 
 agreement might as well have been, that a chattel should be paid in lieu 
 of tithes, as that money should. 
 
 Salk. 656 ;Ld. Raym. 360. 
 
 It is a good modus to prescribe that the parson and his predecessors have, 
 for time immemorial, been seised in fee of one or more closes of land lying 
 in the parish ; and have constantly received the profits thereof, in lieu of a 
 particular species of tithe, or in lieu of all tithes arising in the parish. 
 
 Hob. 42, Cro. Ja. 501 ; Cro. Eliz. 5S7, 736. 
 
 An indirect modus is good. 
 
 A suit being instituted for tithes in kind by the parson of B, the defend- 
 ant moved for a prohibition, and insisted that he was an inhabitant of the 
 parish of A ; that every inhabitant of the parish of A, who held any pasture- 
 land in the parish of B, had, for time immemorial, paid tithes thereof to the 
 parson of A ; and that the parson of A had always paid two-pence for every 
 acre of such pasture to the parson of 13. A prohibition was granted. And 
 by the court, — It is exactly the same thing as if the defendant had pre- 
 scribed directly for a modus of two-pence for every acre of pasture occupied 
 by him in the parish of B. 
 
 Cro. Eliz. 136, Cotford v. Pease. 
 
 Tithe is so absolutely and effectually discharged by a modus, that although 
 this be not paid, the right of taking the tithe in kind cannot be again re- 
 sorted to. 
 
 Hob. 41, 42,44. 
 
 If a man, through ignorance, set out corn for tithe, upon land discharged 
 of tithe by a modus, and the parson take it away, an action of trespass lies 
 against him. 
 
 Hob. 42, Cooper v. Andrews. 
 
 A modus is not destroyed by the payment of tithe in kind for some 
 years. 
 
 2 Bulstr. 240, Price v. Clascal. 
 
 On the other hand, a modus must be paid every year, although no tithe 
 would have been due ; for the modus, it being a recompense for the tithe, 
 becomes a spiritual fee. 
 
 Hob. 42, 44. 
 
 If the land, for which there is a modus, lie fresh, the modus must never- 
 theless be paid. 
 
 Harrlr. 184, Ilolbeacb v. Whadcock. 
 
 If there be a modus in pay thirty o^^, in lieu of the tithe of all eggs, the 
 thirty eggs must at all events he paid. 
 
 1 Roll. Abr. 618, pi. 3; Salk. 657; Lrl. Raym. 3G0. 
 
 [A modus payable by the owners, not the tenants, of the land which is 
 covered by it, is good. The common practice, to be sure, is to make the 
 occupier answerable: but perhaps the parties may have thought this mode 
 more beneficial in point of security : and the courts are not nicely to weigh 
 the validity of that judgment. And the land, in respect of which the modus 
 is claimed, need not he set out by metes and hounds: that it consists of 
 about so many acres, parcel of an ancient estate called R estate, consisting 
 of so many acres, is a description sufficiently certain. 
 
 Ord v. Clarke, Anslr. 638. See also Scarr v. Trinity College, Ibid. 765.
 
 TYTHES. 53 
 
 (R) Of a Modus decimandi. 
 
 A modus was claimed for hay. The terriers described the modus to be 
 for all mowing grass, " except clover and the like." It was objected, that 
 as the article excepted was not known beyond time of memory, a modus 
 containing that exception must be modern. But the court thought that the 
 expression in the terrier was not to be taken as an exception to the modus, 
 but merely as a memorandum that the modus covered natural hay only, and 
 did not extend to modern artificial grasses. 
 
 Tranklyn v. Spilling, Anstr. 760. 
 
 It should seem, that a modus of every tenth day's cheese, during twenty 
 weeks from Holyrood-day, in lieu of tithe of milk, is good. 
 
 Wake v. Russ, Anstr. 295.'] 
 
 2. Of the Certainly required in a Modus. 
 
 A mod us must be certain as to the sum of money, or other thing, which 
 is to be paid. 
 
 A modus to pay two shillings in the pound of the yearly rent of the land 
 is void, because as the yearly rent may be raised or fallen at pleasure, the 
 sum of money to be paid must always be uncertain. 
 
 12 Mod. 563; Salk. (157; Ld. Raym. 697 ; Cunb. 20, 174; ||Gwill. 5S7 ; and see 
 note on this subject, Toll, on Tubes, 1S5.|| 
 
 A modus to pay one penny or thereabouts for every acre of land is void, 
 by reason of the uncertainty of the sum cf money to be paid. 
 
 2 Roll. Abr. 265, D, pi. 2; 2 P. Wms. 572. 
 
 j|So, a modus of three-pence, payable by the occupiers of every ox-gang 
 of land, containing sixteen acres of arable, meadow, and pasture, after the 
 rate of seven yards to the pole or perch, in lieu of the tithe of hay arising 
 on the ox-gang, has been held bad ; for there is no specification of the pro- 
 portions of each different species of land, and there is nothing to pay for an 
 ox-gang of arable only, or an ox-gang of arable and pasture ; and by the 
 fluctuation of lands in 'the parish, it might happen that the arable might be 
 occupied separately from the meadow or pasture. 
 
 Markham v. Laycock, Gwill. 1339 ; and see 17 Ves. 477. 
 
 So, a modus of 21. 8s. Id., payable within a township, the occupier of 
 each farm or tenement therein paving his proportion, is bad for uncertainty, 
 for there is no means of ascertaining the proportion. 
 
 Wolley v. Hadfield, 3 Price, 210; and see Norton v. Hammond, 1 You. & J. 94. || 
 
 [A modus to pay a fother of hay in lieu of tithes is void, for uncertainty. 
 
 Ambl. 365, Fenwick v. Lambe and others. 
 
 A modus of a penny, in lieu of tithe of hay of the lands occupied with 
 each house in the parish, is bad. 
 
 Travis v. Oxton, Anstr. 309, n. ;] l|3 Wood, 523; 3 Gwill. 1066; 7 Bro. P. C. 49, 
 S. C. nomine Whitehead v. Travis. |j 
 
 ||But a modus of two-pence, (by name of hearth silver, garden silver, 
 shot and waxen silver,) payable by every householder or inhabitant in lieu 
 of tithe of fuel, fruits, agistment, and wood, has been held good. And 
 this case was distinguished by Eyre, B., from that of Travis y. Oxton ; 
 since there, the payment being confined to houses having mowing lands, 
 if the mowing lands were taken from the house, the house paid nothing, 
 and the share to which thev were added paid no more than before. In 
 
 e2
 
 54 TYTHES. 
 
 (R) Of a Modus decimandi. 
 
 this case, let the occupation vary as it might, the recompense would remain 
 the same. 
 
 Bennett v. Read, Gwill. 1272. 
 
 But in a case where a modus of one penny for the tithes of all hay of 
 every inhabitant and occupier having land producing hay was set up, Sir, 
 W. Grant, M. R., doubted the distinction drawn between the above cases, 
 and considered the question of law so doubtful that he declined to decide 
 it till the existence of the modus had been established by an issue. How- 
 ever, in a subsequent case, the same learned judge decided in favour of a 
 similar modus, on the authority of Bennett v. Read ; saying, that as there 
 was no distinction between the principal case and Bennett v. Read, if that 
 case was distinguishable from Travis v. Oxton, so was the principal case. 
 If those cases were not to be distinguished, Bennett v. Read, being the 
 more recent authority, ought to be followed. The next case on the ques- 
 tion is that of Williamson v. Lord Lonsdale, where neither the court nor 
 counsel appear to have adverted to the last decision of Sir W. Grant ; and 
 the Lord Chief Baron, again questioning the distinction between Travis v. 
 Oxton and Bennett v. Read, followed the example of Sir W. Grant in 
 Blackburn v. Jepson, and directed an issue to try the existence of the 
 modus. 
 
 Blackburn v. Jepson, 17 Ves. 473; reversed, vide infra ,- Leyson v. Parsons, 18 Ves. 
 173. It does not appear in what way the mudus was laid in this case. Williamson v. 
 Lord Lonsdale, 5 Price, 25. 
 
 In a subsequent case, however, Sir Thomas Plumer, M. R., on the au- 
 thority of Travis v. Oxton, which he considered in point, held, that a modus 
 of one penny, payable by every occupier of land in lieu of the tithe of hay, 
 was bad ; and he thought the cases of Travis v. Oxton and Bennett v. Read 
 clearly distinguishable from each other, since, in the former case, the modus 
 depending on the occupation of land, without reference to quantity, and 
 being open to the possibility of being reduced to a single penny by the con- 
 solidation of farms, could not stand. In Bennett v. Read, the sum of two- 
 pence annually was payable by every householder, whether occupying land 
 or not ; it could not, therefore, be affected by consolidating the lands, but 
 depended on the number of inhabitants. 
 
 Busk v. Lewis, Jacob R. 3G3. 
 
 The above case of Blackburn v. Jepson afterwards came before Lord 
 Chancellor Eldon, on appeal from the Master of the Rolls, when his lord- 
 ship, after argument and examination of the cases, reversed the decree, 
 directing an issue ; and, on the authority of Scott v. Fenwick, Travis v. 
 Oxton, Williamson v. Lord Lonsdale, and Buske v. Lewis, held the modus 
 to be bad ; and his lordship distinguished the ease of Bennett v. Read from 
 that of Travis v. Oxton, on similar grounds to those assigned by Sir Thomas 
 Plumer, M. R. 
 
 Blackburn v. J< -pscn, 3 Swanst. R. 123.] 
 
 It has been holden, that a modus to deliver nine cart-loads of logwood in 
 lieu of all tithes is certain enough. 
 
 Bunb. 279, Wolferston v. Manwarin£; [{Gwill. G79 ; 2 Eag. & Youn. ll.j| 
 
 The thing for which a modus is to be paid must likewise be certain 
 
 The defendant in a suit for tithe insisted, that the inhabitants of a certain 
 tenement had been accustomed to pay a sum of money as a modus, for the 
 tithe of all corn grown upon the lands usually enjoyed therewith. The mo- 

 
 TYTHES. 55 
 
 (R) Of a Modus decimandi. 
 
 dus was holden to be void for uncertainty ; because the words usually en- 
 joyed therewith imply, that the same lands had not been constantly enjoyed 
 with the tenement. 
 
 2 P. Wms. 462, Carleton v. Brightwell. 
 
 || A modus, in lieu of tithe of lambs, and of the wool of the first shearing 
 of such lambs, or in lieu of tithe of such lambs, is ill pleaded, being alter- 
 native and uncertain. 
 
 Leech v. Bailey, 6 Price, 501. J| 
 
 [A modus of two-pence, payable by every householder or inhabitant in 
 the parish for all tithe of fuel, of fruits, of agistment, and of wood, is 
 good. 
 
 Bennett v. Read, Anstr. 222, n.] ||See the cases of Travis v. Oxton, Williamson 
 v. Lonsdale, Leyson v. Parsons, Busk v. Lewis, Blackburn v. Jepson, supra. || 
 
 It has been holden, that a modus for a farm is void ; because a farm does 
 not consist of any certain quantity of land. 
 
 Bunb. 129, Burwell v. Coates. 
 
 But if, in prescribing for a modus for a farm, the quantity of land of 
 which the farm consists be specified, the modus is good. 
 
 Bunb. 160, Finch v. Malsters. [See Scott v. Allgood, Anstr. 16.] 
 
 And it. is not necessary that the thing for which a modus is to be paid 
 should be always described with certainty in prescribing for the modus; 
 because, if from what is alleged the thing can fairly be ascertained, the mo- 
 dus is good, it being a maxim of law, that certum est quod cerium reddi 
 potest. 
 
 |j A modus for the parson to enjoy a certain meadow, and also various 
 beast grasses, in the parish, in lieu of tithes, is void for uncertainty. 
 
 Birch v. Stone, Gwill. 649. 
 
 So is a modus for occupiers of certain ancient tenements to carry a cart- 
 load of peat and turf from a certain place to the parsonage-house, for the 
 use of the parson, on such a day, or within the space of every two years, as 
 the parson should require the same, in lieu of tithe of hemp, flax, and hay 
 arising on these tenements ; for a cart-load is uncertain, and may be drawn 
 by two or six horses ; and there is no right of turbary in the parson alleged. 
 
 Tully v. Killner, Gwill. 644; and see Jenkinson v. Royston, 5 Price, 495, where 
 various moduses were held bad for uncertainty. 
 
 Where defendants set up a modus of two-pence for each load of hay of 
 the weight of one ton, payable at Easter by the several occupiers, in lieu of 
 tithe of hay; and by their answer further stated, that the amount of the 
 modus payable to the rector under such custom had been usually ascer- 
 tained by a person on behalf of the rector inspecting the ricks of hay made 
 within the parish in each year, and forming an estimate of the number of 
 loads of one ton weight contained in each rick, upon which estimate the 
 whole of the annual modus payable to the rector was calculated, but that 
 this mode of estimating the weight formed no part of the custom, the modm 
 was held bad for uncertainty ; the time of weighing being uncertain, and 
 there being a difference in the weight of old and new hay ; and the Lord 
 Chancellor Eldon refused an issue. 
 
 Goodenourrli v. Powell, 2 Russell, 21 9. [| 
 
 A modus to pay twelve-pence for every acre of upland, was holden to be 
 good ; because what is upland may be ascertained. 
 
 2 P. Wins. 572.
 
 5G TYTHES. 
 
 (R) Of a Modus decimandi* 
 
 The prescription was, that every person living out of a parish should pay 
 fourpence for every acre of meadow or pasture, occupied by him in the 
 parish. This was decreed to be a good modus; Lord King Chancellor, 
 and Reynolds and Fortescue, the two justices who assisted him, being of 
 opinion that it was certain enough ; for that there is no great difficulty in 
 ascertaining the number of acres of meadow or pasture occupied by a per- 
 son in a parish. 
 
 2 P. Wins. 572, Chapman v. Monson; ||S. C. nnm. Chapman v. Bishop of Lincoln, 
 Mos. R. 200, 279 ; Gwill. 070 ; 2 Eag. & Y. 17; and see this case cited by Thompson, 
 B., 3 Anst. 038; Gwill. 1427. || 
 
 A modus for a park is good, although the quantity of land of which it 
 consists be not mentioned; for a park is sufficiently ascertained by its 
 boundaries. 
 
 1 Roll. Abr. 051, pi. 3. 
 
 But if a park be disparked, the modus, unless the occupier of the dis- 
 parked land allege that it is to be paid for a certain quantity of land, is 
 void. 
 
 1 Roll. Abr. 051, pi. 4. 
 
 [A modus for every ancient orchard is good. 
 
 Anstr. 10.] 
 
 The time of paying what is to be paid as a modus must likewise be 
 certain. 
 
 8 Mod. 375; Bunb. 105, 171, 173. 
 
 If the modus be to pay a sum of money yearly, in lieu of tithe, on or 
 about the first day of May, this is not a good modus, because the time of 
 payment is uncertain. 
 
 Bunb. 198, Blacket v. Finn. 
 
 The prescription was, to pay a sum of money as a modus for the tithe of 
 sheep at Easter, or when the sheep shall be sold. The modus was holden 
 to be void, by reason of the uncertainty of the time of payment. 
 
 Bunb. 173, Phillips v. Simes. 
 
 || But it is held sufficient to state in pleading that a modus is payable at or 
 about a particular day ; and a modus may be established though proved to 
 be payable at a different day from that laid in the bill. 
 
 Gwill. 802, 1208. 
 
 A modus for one penny for every turkey laying eggs, or every tenth egg 
 laid by such turkey, at the option of the vicar, in lieu thereof, has been 
 held void for uncertainty, as no certain time was given if the option were 
 made to take it in money ; and therefore, if there were a change of vicars, 
 it would be uncertain to which it would belong. 
 
 Roberts v. Williams, 12 East, 33; Gwill. 1050; and see Scott v. Carter, 1 Young. 
 & .T. 45-2. But quasre, whether it is not sufficient to state the modus as payable yearly, 
 and supply the time by evidence'! See 2 Eag. on Tith. 1 1 1, and cases there cited. 
 
 3. Of a Modus which amounts to a Prescription in Non decimando. 
 
 A modus to pay the tithe of part of a thing, which is tithable of common 
 right, in discharge of the tithe of the whole thing, is void. 
 
 Cro. .Ta. 47, Webb v. Warner, Ld. Raym. G77. 
 
 If the modus be, to pay the tithe of hay grown upon some lands, in dis- 
 charge of the tithe of hay grown upon all other lands in the parish, the
 
 TYTHES. 57 
 
 (R) Of a Modus decimandi. 
 
 modus is bad ; for, as it is only a recompense as to part, it amounts to a 
 prescription in non decimando as to the residue of the hay grown in the 
 parish. 
 
 A modus to pay the tithe of milk part of the year, in discharge of the 
 tithe of milk for the whole year, was holden to be void ; because it is, in 
 effect, a prescription in non decimando as to milk for part of the year. 
 
 Ld. Raym. 360, Hill v. Vaux; Cro. Eliz. 609; Salk. 656; 12 Mod. 206; Bunb. 307. 
 
 But if the tithe of a thing, as of wood, be only due by custom, a modus 
 to pay the tithe of part thereof, in discharge of the tithe of the whole, is 
 good ; because there may be a prescription in non decimando as to part of 
 such a thing. 
 
 Salk. 656; Ld. Raym. 137; 12 Mod. 111. 
 
 If the tithe of part of a thing, which is tithable of common right, be by a 
 modus made more valuable, the modus, although it is to be paid in dis- 
 charge of the tithe of the whole thing, is good ; because such modus may 
 be a recompense for the tithe of the whole thing. 
 Hob. 250; Salk. 656 ; 12 Mod. 206 ; Ld. Raym. 360 ; 2 P. Wms. 521. 
 
 A modus to pay the tenth cheese from the first day of May until the first 
 day of August, in discharge of the tithe of milk for the whole year, is good ; 
 because, by the labour of making it into cheese, the tithe of milk is made 
 more valuable so long as it is paid. 
 
 Cro. Eliz. 609, Austin v. Lucas. 
 
 A modus to pay a quantity of a thing, which is tithable of common right, 
 in discharge of the tithe of the whole thereof, which a man may happen to 
 have, is a good modus. 
 
 A modus to pay thirty eggs of the produce of a man's own hens, in dis- 
 charge of all tithe of eggs, would be void ; for, as thirty eggs may not be 
 the tithe of all the eggs a man has, such a modus may amount to a prescrip- 
 tion in non decimando as to some ep-o-s. 
 
 Ld. Raym. 3G0, Hill v. Vauxin; [5 Price, 512.[| 
 
 But a modus to pay thirty eggs, in discharge of the tithe of all the eggs 
 a man may happen to have, is good ; for these eggs, which are not to be 
 considered as tithe, must be paid at all events, whether the person who is 
 to pay them have hens or not. 
 
 1 Roll. Abr. 648, pi. 3 ; Ld. Raym. 360. 
 
 A modus for the tithe of one thine;, which is tithable of common risrht, 
 can never be a discharge of the tithe of another thing, which is likewise 
 tithable of common right. 
 
 The modus was, to pay one penny for every mare ; and it was alleged, 
 that this was to be a satisfaction for the tithe of horses, mares, and colts. 
 This modus was holden to be void ; because a modus for one thing which 
 is tithable of common right, it being in fact only a recompense for the tithe 
 of that thing, can never be a recompense for the tithe of another thing which 
 is likewise tithable of common right ; and, consequently, such modus, which 
 amounts to a prescription in non decimando as to the other thing, is void. 
 
 Uro. Eliz. 446, Grysman v. Lewes. 
 
 4. Of a Modus which has not been constantly paid. 
 
 It is laid down, that if a modus have not been constantly paid it is de- 
 stroyed. 
 Salk. 656, The Archbishop of York v. The Duke of Newcastle. 
 Vol. X.— 8
 
 58 TYTHES. 
 
 (R) Of a Modus (lecimandi. 
 
 And it has been holden in one case, that if a modus be for the tithe of 
 hay grown upon a certain piece of land, and the land be converted into 
 arable land, the modus is destroyed. 
 
 1 Roll. Abr. 651, Sharp v. Coult. 
 
 But it is in other cases laid down, that although the payment of a modus 
 be suspended or cease for a time, it may be revived again. 
 
 In one case, the contrary to what was holden in the case of Sharp and 
 Coult is laid down expressly ; for it is laid down, that if there be a modus 
 for the tithe of hay grown upon a certain piece of land, the modus is only 
 suspended by converting the land into arable land, and revives again when- 
 ever hay is grown thereupon. 
 
 Godb. 194, Brown's case. ||1 Eag. & Y. 203; Gwill. 9S2 ; and see Cart v. Ilodg- 
 skin, 3 Swanst. 1G0; Gwill. 815; 3 Eag. & Youn. 1241. || 
 
 In another it is laid down, that if an orchard, for which there is a modus, 
 be disorcharded, the modus is suspended ; but that, whenever the same 
 ground is again converted into an orchard, the modus is revived. 
 
 1 Roll. R. 121, Hooper v. Andrews. 
 
 In another it is laid down, that a modus is not destroyed by the payment 
 of tithes in kind for some years. 
 
 2 Bulstr. 240, Price v. Mascal. 
 
 And the doctrine of these three cases is adhered to, and confirmed in a 
 
 modern case. 
 2 P. Wms. 572, Chapman v. Monson, Hil. 3 G. 2. 
 
 5. Of a leaping Modus. 
 
 It is not, as has been already observed, necessary that a modus should 
 have been constantly paid, yet a modus must, when paid, have been con- 
 stantly paid in the same manner; otherwise it is called a leaping modus, 
 and is therefore void. 
 
 I Eq. Ca. Abr. 369. 
 
 The modus was, to pay a cer'ain sum of money for the tithe of certain 
 premises, whilst they continue in certain hands; but if the premises should 
 come into other hands, then the said sum or tithes in kind were to be paid 
 at the election of the parson. This modus was holden to be bad. And by 
 the court — There cannot be a leaping modus. 
 
 Select Ca. in Chan. 52, Webber v. Taylor; | Gwill. G5G; 1 Eag. & Y. b02.|j 
 
 6. Of a Modus which is too rank. 
 
 Wherever the sum of money, or other thing paid as a modus, is of greater 
 value than it can be fairly supposed the tithes for which it is paid were at 
 the time of its commencement worth, such modus, which is called a too 
 rank modus, is void. 
 
 A prohibition was refused because the modus appeared to be too rank. 
 And by Holt, C. J.,— Wherever a modus runs too high, the presumption is 
 strong that it is not a modus. 
 
 II Mod. 60, Startup v. Dodderidw, Pascb. 1 Ann. 
 
 In a case about two years after the contrary was laid down. 
 
 The modus appearing too rank, it w as decreed by the Court of Exchequer 
 to be a temporary composition, ;uu! not a modus: but the decree was re- 
 versed ; for churches may have been endowed with more than the value of 
 the tithes. 
 
 Vin. Abr. tit. Dimes, D, a. pi. 17 ; Pole v. Gardiner, Mar. 5, 1707.
 
 TYTHES. 53 
 
 (R) Of a Modus dccimandi. 
 
 But it has been since holden in divers cases, that a modus which is too 
 
 rank is void. 
 
 In one case, a modus of five shillings for every acre of wheat was holden 
 to be void, as being too rank ; because five shillings is very near, if not 
 quite, the value of the tithe of an acre of wheat at this day. 
 
 Bunb. 10, Benson v. Watkins, Hil. 3 G. 1. 
 
 |jOne shilling and sixpence, and two shillings and sixpence, an acre for 
 tithe, have been severally held void as too rank. 
 
 Heaton v. Cook, Wightw. -281 ; 2 Eag. & Youn. G10.l| 
 
 In another, a modus of one shilling for a milch cow was holden to be 
 void, because it is too rank. And by the court— A shilling was, at^the 
 time this modus must be supposed to have had its commencement, half the 
 yearly value of the milk of a cow. 
 
 Bunb. 73, 79, [JFranklyn v. The Master of St. Cross.[l 
 
 And in the same case, a modus of sixpence for a calf was holden to be 
 too rank. 
 
 The reporter of this case does indeed say, in a note, that since this case 
 a modus of sixpence for o calf has been holden to be good. 
 
 And in another case, not two years before that of Bonnet v. Jenkins,(a) 
 a modus of eleven-pence for a milch cow, and one of sixpence for a calf, 
 were both holden to be good. 
 
 Bunb. 57, Roe v. The Bishop of Exeter, Hil. 6 G. I ; i'Jenkinson v. Royston, 5 Price, 
 495; Gwill. 1878 ; Holwell v. Blake, MClell. 559. (a)This case is Fraiiklyn v. The 
 Master, &c, of St. Cross ; Bennet their lessee, and Jenkins the vicar, &c. The report 
 in Bunb. 78, seems not much to be relied upon.]| 
 
 It may, upon comparing the two last cases, be doubtful whether a 
 shilling be too rank a modus for a milch cow, and sixpence for a calf: but 
 they both confirm the doctrine, that a modus which is too rank is void ; for 
 the two questions, Whether a particular modus be too rank, and whether 
 a modus which is too rank be void, are quite distinct and independent of 
 each other. 
 
 ||In a late case, where a modus cf one shilling for every milch cow, in 
 lieu of the tithe of milk of such cow, was set up, the Court of Exchequer 
 directed an issue on the modus. 
 
 Leathes v. Newitt, 4 Price, 3.35. It appears the occupiers succeeded on the issue. 
 8 Price. 562 ; and see Tennant v. Wilsinore, 4 Wood, 181, ncc. In Busk v. Lewis, 
 Jacob. .363, Sir Thomas Plumer, M. R., overruled a modus of one shilling for a milch 
 cow, in lieu of tithe of milk, as too high. 
 
 A modus of three-pence a year for every cow, and sixpence for every 
 calf, in lieu of tithes of cows, calves, and milk, is gcod. 
 
 Prevost v. Bennett, 2 Price, R. 272. 
 
 So, a custom to pay for every foal one penny, and for every milch cow 
 two-pence, and for every heckforth, or heifer that had had but one calf, 
 one penny, in lieu of milk and all profit arising from such cow or heifer, 
 except the calf, is good. 
 
 Jenkinson v. Royston, 5 Price, 495; Gwill. 1878. 
 
 A modus of one shilling for every tenth fleece, in lieu of the tithe of the 
 ten fleeces, was held rank. 
 
 Lavn<j v. Yarborougfh, 4 Price. 383. 
 
 A modus of one shilling for every seventh pig, on the ninth day, was 
 held good after some doubt. 
 
 Bertie v. Beaumont, 2 Price, 303.
 
 60 TYTHES. 
 
 (R) Of a Modus decimandi. 
 
 But, in a later case, a modus of one shilling for every tenth pig, in lieu 
 of tithe of such pig, was held rank, and also objectionable; because 
 nothing was stated to be payable for the numbers above or below ten. 
 
 Layng v. Yarborough, 4 Price, 383 ; Gwill. 1841. 
 
 A modus of one shilling for every tenth fleece, in lieu of the tifheof 
 the ten fleeces, was adjudged void by the Court of Exchequer, as being 
 rank. 
 
 Layng v. Yarborough, 4 Price, 383 ; Gwill. 1841. See Eag. on Tith. 356, notd. 
 
 A modus of three-pence for a lamb, in lieu of tithe of lambs, has been 
 held not rank. 
 
 Bertie v. Beaumont, 2 Price, 303 ; and see Layng v. Yarborough, ubi supra; Drake 
 v. Smith, 5 Price, 3G9; and see Askew v. Greenhow, 2 Price, 314. 
 
 A modus of eight-pence for every colt has been established by the Court 
 of Exchequer. 
 
 Hockmore v. Richards, 1 Wood, 485; 1 Eag. & Youn. 081. 
 
 So, modusss of one penny for every brood of goslings not exceeding 
 five, and two-pence for every brood above that number and under ten ;(«) 
 of one farthing for every goose and gosling under seven ;(b) of three half- 
 pence for every goose, where they do not amount to a tithable number, 
 and tithes in kind where they do;(c) a young goose with the feathers, 
 payable on the first of August, in lieu of all tithes of geese and feathers ;(rf) 
 a custom to pay geese in kind, to be delivered before Midsummer; and 
 if there be less than seven geese, for every goose a halfpenny ; and if there 
 be seven and under ten, to pay one, and be allowed a halfpenny for each 
 •nose wanting to make up the number often, and so for any odd number 
 of geese ;(e) — have been severally adjudged good moduses. 
 
 fa) Popplewell v. Canby, 2 Wood, 390. (b) Isaack v. Portbury, E. 1711 ; I Wood, 
 525; 1 Eag. & Y. 097. (c) Hoseawen v. Roberts. 5 Wood, 174; 2 Eag. & Y. 2-38; 
 Gwill 946. (V) Huit v. Hill, 3 Keb. 705; 1 Eag. & Y. 511. (e) Jenkinson v. 
 Royston, II. 1818; 5 Price, 495; 3 Eag. & Y. 9G ; Gro. 1S7SJJ 
 
 [A modus of five shillings an acre for all land sown with wheat, in lieu 
 of all tithes of wheat, is too rank. So, of two shillings and sixpence an 
 acre for all land sown with other grain, in lieu of all tithe of such grain. 
 S >, of two shillings an acre for all meadow mowed, and one shilling and 
 four-pence for upland grass-ground mowed, in lieu of all tithes of grass 
 and pasture. So, of two shillings and sixpence for every farrow of pigs 
 littered, in lieu of all tithes of them. So, of eight shillings a score of 
 Iambs, in lieu of the tithe of lambs. So, of one penny a fleece of all wool 
 shorn in the parish, in lieu of all tithe wool. 
 
 Torriano v. Legge, 1 Bl. R. 420; 2 Rayn. 519.] 
 
 The court will not decree against a farm modus on the ground of rank- 
 ness: for there is a very material difference between a farm-payment, and 
 one for a particular species of produce. In the former, many reasons may 
 have prevented the tithes from being agreed for at their proper price. _ The 
 owner may have meant a bounty to the clergyman ; or he may have wished 
 to pay for an exemption from tithes for the sake of improvements. Besides, 
 it is hardly possible to ascertain the comparative value of the land, or of 
 the produce, in former times: and the court should not be nice in judging 
 of the value or the goodness of the bargain, where, by any probable cir- 
 cumstances, the modus may have been a real agreement between the parties 
 before time of memory. More especially will they be extremely cautious
 
 TYTHES. 61 
 
 (R) Of a Mudus dccimandi. 
 
 in deciding such a question without the intervention of a jury, if the least 
 doubt arise as to the fact of rankness. 
 
 Atkyns v. Lord Willoughby de Broke, Anstr. 402. 
 
 II Where the rankness of a modus is apparent on the face of it, a court 
 of equity will decide against it, without directing a trial at law, although 
 the question of rankness is purely one of fact, and not of law ; as where 
 the amount of the moduses appeared to be equal to the tithes in kind 
 demanded by the bill. So, also, Lord Hardwicke, in one case, said he 
 should be ashamed to send it to a jury, to try a question of modus of 
 thirty pounds per annum, where the whole value of the tithes did not 
 exceed sixty pounds ; and he decreed accordingly for the parson, with 
 costs. 
 
 Gvvill. 1058, 1192, 1238, 1320, Moore, v. Beckford, cited 2 Bl. R. 1257. 
 
 But the cases where the court of equity has allowed the objection of 
 rankness, without the intervention of a jury, are principally with reference 
 to the value of particular things for which the modus has been set up ; as 
 where it is so much for a sheep or lamb, or a particular kind of product, 
 the value of which may be shown at those times: but moduses depending 
 on the value of lands at particular times, present a much more complicated 
 question ; since such value varies by different means, by fluctuations of 
 traffic and commerce, by improvements in cultivation, by accidental rise 
 or depreciation, and various other circumstances, which render such 
 moduses more uncertain, and consequently more fit subjects for the inves- 
 tigation of a jury. 
 
 Chapman v. Smith, Gwill. 847 ; O'Connor v. Cook, 6 Ves. 6G5 ; 8 Ves. 535; Gwill. 
 1C24 ; and see Toll, on Tithes, 204, 205 ; 2 Eag. on Tith. 190.|| 
 
 7. Of a Modus which is liable to Fraud. 
 
 A modus of one penny for the tithe of all hay arising upon a farm being 
 prescibed for, it was objected, that the modus is liable to fraud ; for that 
 all the land may be turned into meadow, and then only one penny will be 
 paid for the tithes of the whole farm: but the modus was holden to be 
 good. 
 
 Bunb. 162, Finch v. Masters; ||Gwill. G52 ; vide ante, p. 53. It seems doubtful 
 whether the word "hay," in some of the moduses of " hay-penny," does not mean 
 something quite distinct from tithe of hay. 2 Eag. on Tith. 81, note.|| 
 
 The modus was, that every person who lived out of a parish should pay 
 four-pence for every acre of meadow or pasture occupied by him in the 
 parish. It was objected, that such a modus is liable to great fraud ; for 
 that many persons would live out of the parish to avoid paying tithes in 
 kind ; and others would, by threatening to leave the parish if he did not 
 do it, compel the parson to take less than the worth of his tithes. It was 
 answered, that if the being liable to fraud is an objection to the goodness 
 of a modus, scarce any modus will be good, because every one is in some 
 degree liable to fraud. The modus was holden to be good. 
 
 2 P. Wms. 569, 571, 572, Chapman v. Monson ; ||S. C.nom. Chapman v. Bishop 
 of Lincoln, Mos. R. 2G6 ; Gwill. 679 ; 2 Eag. & Y. 11. || 
 
 S.Ofa Mod us for such Persons as live out of the Parish. 
 
 It has been holden, that a modus for such persons as live out of the parish 
 is unreasonable ; for that the inhabitants of the parish, as being liable to 
 
 F
 
 62 TYTHES. 
 
 (R) Of a Modus decimandi. 
 
 the charge of the repairs and vestments of the church, ought to be most 
 favoured in the payment of tithes. 
 
 1 Lev. 11(3, Bawdry v. Bushell. 
 
 But in a modern case such a modus was holden to be good ; and the 
 opinion of the court, in the case of Bawdry v. Bushell, is not only said to 
 have been a hasty one, but the ground of it, namely, that only parishioners 
 are liable to the charges of repairs and vestments of the church, is expressly 
 denied to be law. 
 
 2 P. Wins. 5G7, 574, Chapman v. Monson ; |JS. C. nam. Chapman v. Bishop of 
 Lincoln, Mos. R. 2GG ; Gwill. 679; 2 Eag. & Y. ll.|| 
 
 9. Of the Extent if a Modus. 
 
 A modus for a garden extends only to the ancient ground of the garden ; 
 for, if more ground be laid to the garden, the modus does not extend 
 thereto. 
 
 Bunb. 79, Perrot v. Markworth. 
 
 If a modus be to pay at the rate of a certain sum by the acre for the tithe 
 of all hay grown in the parish, the modus extends to clover, saintfoin, and 
 all other things of the grass kind, ahhough the cultivation of some of these 
 has been lately introduced into the parish. 
 
 Lutw. 1071 ; Bunb. 79, 344. 
 
 But if a modus be for the tithe of ail hay grown in the parish, or for the 
 tithe of all hay grown upon a pardcular farm in the parish, the modus 
 extends only to the ancient meadow of the parish or farm. 
 
 Filzgib. 53, Fox v. Aide. 
 
 It has been holden, that if a mill be erected upon a piece of land, for 
 which there is a modus, the modus extends to the mill. 
 
 1 Roll. Abr. 651, Russel v. More, Trin. 39 Eliz. 
 
 But this case does not seem to be law ; for in a later case it was holden, 
 that a mill, although it be erected upon land discharged of tithes, is liable 
 to the payment of tithe. 
 
 Cro. Ja. 429, Anon., Trin. 15 Ja. 1. l|See C. B. Dodd's MS. 204 ; 1 Eag. & Y. ; 
 Talbot v. May, 3 Atk. 17; Gwill. 782; 2 Eag. & Y. 93; and see 1 Eag. on Tith. 
 396.H 
 
 || Where a mill was erected on land discharged by an enclosure act from 
 ;ill small tidies payable in respect thereof, it was held, that the mill was 
 exempted from tithes under the act. 
 
 Caches v. Haynes, Gwill. 125G; 4 Wood, 588; 3 Eag. & Y. 132G.|| 
 
 If there be a modus for a mill, in which there has always been but one 
 pa'n- of stones, and a second pair of stones be added to the mill, the modus 
 extends to these. 
 
 4 Mod. 45. Grimley v. Falk'mgham. ||See 3 Atk. 17; 3 Yes. & B. 71. || 
 
 If the stream of a mill, for which there is a modus, be by the act of 
 God changed from its usual course, and afterwards the owner pull that mill 
 down, and erect a new mill upon the new stream, the modus extends to 
 the new mill. 
 
 1 Roll. Abr. Gil, pi. 1. 
 
 But if the stream had been changed by the act of the owner, the new 
 mill would have been liable to the payment of tithe. 
 
 1 Bull. Abr. Gil, pi. 1.
 
 TYTHES. 63 
 
 (S) Of a Prescription in Nan decimando. 
 
 || Where a defendant in a tithe suit set up a farm modus, and an issue 
 was directed to try whether the ancient farm consisted of the lands men- 
 tioned in the answer, and whether a certain modus had been immemorially 
 payable for the tithes arising upon it ; and the jury found that the farm 
 consisted of those lands, together with four other closes, and was covered 
 by a modus : the circumstance of the farm consisting of other lands than 
 those mentioned in the pleadings, was held no ground for a new trial, 
 unless the plaintiff could show that he had evidence respecting those four 
 closes, which, on the supposition that they were parcels of the alleged 
 ancient farm, might materially vary the substance of the case. 
 Bailey v. Sevvell, 1 Russ. R. 239.|| 
 
 (S) Of a Prescription in Nun decimando. 
 
 A spiritual person ma}" prescribe in nan decimando ; because every 
 such person was, at the common law, capable of receiving a grant of tithes. 
 
 1 Roll. Abr. 653; Cro. Eliz. 206, 216, 511; Cro. Car. 423. 
 
 Another, and the principal reason, is, that the church does not lose 
 any thing by such prescription ; a spiritual person having the benefit 
 thereof. 
 
 The churchwardens of a parish, although they hold land for repairing 
 the church, cannot prescribe in non decimando for the land ; because they 
 | are not spiritual persons. 
 
 1 Roll. Abr. 653, pi. 6. 
 
 If a layman be tenant for years, to a spiritual person, of land which is 
 discharged of tithes, he may prescribe in non decimando for the land ; be- 
 cause, as the possession of the tenant is in point of law the possession of 
 the landlord, the prescription in this case would be in the right of a spiritual 
 I person. 
 
 I Roll. Abr. 653, pi. 4; Cro. Eliz. 216, 512, 785; Moor. 219. 
 
 But if a spiritual person grant an estate of inheritance in land, for which 
 [the spiritual person might himself have prescribed in non decimando, to a 
 I layman, the grantee cannot prescribe in non decimando; because the pre- 
 'scription would be in his own right. 
 
 Cro. Car. 423; Hardr. 315; 2 Keb. 29; 1 Sid. 320. 
 
 It has, however, been holden, that a layman, who holds land by copy 
 I of court-roll of a manor discharged of tithes, may prescribe in non deci- 
 hnundo for the land, although he has an estate of inheritance therein. 
 
 | Cro. Eliz. 7S4; Crouch v. Fryer, Yetv. 2 ; j]Gwill. 218; 1 Eag. & Y. 167. See 
 IMonck v. Hoskisson, Simon's R. 280.j| 
 
 A layman may presciibe in modo decimandi, but he cannot prescribe in 
 \non decimando, for any thing which is tithable of common right ; because 
 a layman was not, at the common law, capable of receiving a grant of 
 'tithes ; and it has been holden in favour of the church, that the right of 
 tithes cannot be taken away, unless an actual recompense be paid for the 
 I same, or unless the instrument by which the land has been thereof dis- 
 j charged be produced. 
 
 II Rep. 13; 1 Roll. Abr. 653; Cro. Eliz. 293, 512, 599, 763; Hob. 296; 2 P. 
 'Wms. 573. 
 
 It has been holden, in two modern cases, that a layman can no more
 
 64 TYTHES. 
 
 (S) Of a Prescription in Non decimando. 
 
 prescribe in non decimando against an impropriator than against a rector ; 
 for that both are equally entitled of common right to tithes. 
 
 Bunb. 3-25, Charlton v. Charlton; Ibid. 345, The Corporation of Bury v. Evans. 
 || This doctrine, which has been frequently doubted, and regretted, by 
 able judges, is now completely established as law; and it is settled, that 
 evidence of long and uninterrupted retainer of tithes by a layman can no 
 more raise a presumption of grant as against a lay impropriator than against 
 a spiritual rector. In Fanshaw v. More, Gwill. 781, 13. Clarke observed, 
 that though the authorities against such a prescription w T ere great, the rea- 
 son of them grew weaker every day. Before the Reformation, all tithes 
 were ecclesiastical ; and a laym.in could have tithes by way of discharge 
 only, by grants of parson, patron, and ordinary. Since that time, there 
 were many other ways both of having tithes, and being discharged from 
 them. Since tithes have been in the hands of lay impropriators, many 
 persons have purchased discharges for their particular lands : yet if these 
 grants are lost, by the common fate of things, those persons must lose the 
 benefit of their purchases. It is very hard that time, which strengthens all 
 other rights, should weaken this. Lord Loughborough, in an extra-judicial 
 opinion, expressed himself strongly against the doctrine in Rose v. Calland, 
 5 Ves. J. 186, as did C. B. Macdonald in Petre v. Blencoe, 3 Anst. 945; 
 and Lord C. Eldon, in Berney v. Harvey, 17 Ves. 127, observed, that 
 there was a decision against it in the Court of Exchequer in 1727 ; and 
 that both Lord Talbot and Lord Hardwicke had struggled against it; and 
 in Meade v. Norbury, 2 Price, 347, Wood, B., strongly controverted it. 
 The courts, however, have decided, that it is too firmly settled to be now 
 overthrown. 
 
 Fanshaw v. Rotheram, 1 Eden, R. 270, 302, note (a) ; Nagle v. Edwards, Gwill. 
 1442; Berney v. Harvey, 17 Ves. 119; Heathcote v. Aldridge, 1 Madd. 236; Meade 
 v. Lord Norbury, 2 Price, R. 338. 
 
 To establish a grant from a lay impropriator, it is not, however, neces- 
 sary to produce it; it is sufficient to prove that such a grant did in fact exist. 
 Ibid.; and see Gwill. 1313; 1 Price, 253. 
 
 There is, however, a settled distinction between mere non-payment of 
 
 tithes (which amounts only to von decimando,) and actual pernancy and 
 
 possession of them, separate from and independent of any interest in the 
 
 land. In the former case the possession has been unlawful, and the court 
 
 can pay no regard to the length of it ; in the latter, the title is not unlawful, 
 
 and long possession may therefore raise a presumption of grant. 
 
 Scott v. Airey, Gwill. 1174; Strutt v. Baker, 2 Ves. J. G25; Heathcote v. Aldridge, 
 I Madd. 230; and see 1 Eden, R. 303, note; Bacon v. Williams, 1 Sim. & Stu. 415; 
 3 Russell, 525.11 
 
 It is said to have been holden in one case, that the inhabitants of two 
 
 hundreds may prescribe in non decimando, for a thing which is tithable of 
 
 common right. 
 
 1 Roll. Abr. 054, Kidden v. Edwards, Pasch. 15 Car. 1. ||This was a claim not to 
 pay tithe of grain ground by a common baker in his trade; and on this ground he would 
 seem exempted from tithe at common law without any prescription. See Gwill. 
 974; 3 Wood, 285; 2 Eag. & Y. 210; Wightwick, 15; Gwill. 1053; 1 Eag-. on 
 Tnh. 400J| 
 
 Hut iii a subsequent case it is laid down, that neither of the inhabitants 
 of two hundreds, nor of a whole county, can prescribe in non decimando 
 for a thing which is tithable of common right; ami ii is added, that as no
 
 TYTHES. 65 
 
 (U) Of a Discharge of Tithes by Bull. 
 
 single inhabitant of a hundred or county can in such case prescribe in 
 non decimando, it would be absurd to hold, that all the inhabitants of a 
 hundred or county may. 
 
 Lrl. Raym. 137; Hicks v. Woodson, Ilil. 8 W. 3 ; 12 Mod. Ill ; Salk. 055. ||See 
 Naele v Edwards. 3 Anst. 702 ; Gwill. 1442 ; Smith v. Johnson, Gwill. 606 ; Page v. 
 Wilson, 2 Jac. & AV.513.II 
 
 It is indeed true, that a prescription in non decimando for wood by 
 the inhabitants of a hundred has been holden good ; but no inference can 
 be drawn from hence ; because tithe of wood, which does not renew an- 
 nually, is not due of common right, for in ancient times it was only paid 
 in particular places by custom. 
 
 Ld. Raym. 137 : 12 Mod. Ill ; Salk. 656 ; Comb. 404. ||It is settled, that such a 
 prescription is good ; but it can only be claimed by a well-known division of the coun- 
 try. See Nas;le v. Edwards, 3 Anst. 702; Page v. Wilson, 2 Jac. & W. 513 ; Chi- 
 chester v. Sheldon, 1 Turner, 245 ; and it seems a liberty cannot so prescribe. John- 
 son v. Bois, Gwill. 373 ; 3 Eag. & Y. 1210. || 
 
 (T) Of a Discharge of Tithes by Grant. 
 
 A layman was not, at the common law, capable of receiving a grant 
 of tithes. 
 
 1 Rep. 45 ; 11 Rep. 13 ; Cro. Eliz. 293, 599, 763 ; Hob. 296. 
 
 But the land of a layman could, at the common law, have been dis- 
 charged of tithes by grant, provided the parson, patron, and ordinary 
 were all parties thereto. 
 
 2 Rep. 44, Bishop of Winchester's case. 
 
 And a discharge of tithes by such grant, in case it were obtained be- 
 fore the restrictive statutes, is at this day good. 
 2 P. Wms. 573, Chapman v. Monson ; Cro. Car. 423. 
 
 A layman cannot avail himself of a discharge of tithes by grant, unless 
 he produce the deed of grant ; for if this be not produced, tithes must 
 be paid, although none have been paid within time of memory ; because 
 a layman cannot prescribe in non decimando. 
 
 2 P. Wms. 57. Chapman v. Monson ; 11 Rep. 13 ; 1 Roll. Abr. 653 ; Cro. Eliz. 293, 
 512, 599, 763 ; Hob. 296. ||It is sufficient to give evidence of the existence of such a 
 grant without producing it. 1 Eden, R. 302, note (a) ; 1 Price, 253. || 
 
 (U) Of a Discharge of Tithes by Bull. 
 
 Spiritual persons heretofore frequently purchased bulls from the 
 pope, for discharging their lands of the payment of tithes. 
 
 2 Inst. 652, 653. 
 
 The practice of doing this seems to have been more prevalent after the 
 ordinance of Pope Pascal the Second, by which it was ordained, that only 
 the lands of the Cistercians, Hospitallers, and Templars, should be ex- 
 empted from the payment of tithes. 
 
 Cro. Ja. 454 ; 2 Rep. 44. 
 
 It was the opinion of Coke, C. J., that the pope never had the power 
 rf discharging any land, belonging to a subject of this realm, of the 
 payment of tithes. 
 
 2 Inst. 653. 
 
 For the sake of removing all doubt as to this, and of putting a stop to 
 ::he practice of purchasing bulls for discharging land of the payment of 
 Vol. X.— 9 f 2
 
 66 TYTHES. 
 
 (W) Of a Discharge of the Payment of Tithes by Order. 
 
 tithes, it is by the 2 II. 4, c. 4, after reciting that the order of the Cister- 
 cians in this realm had purchased certain bulls, to be discharged of the 
 tithes of their lands let to farm, enacted, " That the religious of the order 
 of Cistercians shall be in the state they were in before such bulls were 
 purchased ; and that if they of the said order, or any other, religious or 
 seculars, of whatsoever state or condition they be, do put the said bulls 
 in execution, or do from henceforth purchase other such bulls ; or by colour 
 of the same bulls, purchased, or to be purchased, do take advantage in 
 any manner, a writ of praemunire facias shall go against them." 
 
 (W) Of a Discharge of the Payment of Tithes by Order. 
 
 In ancient times, monks of all orders were discharged of the payment 
 of tithes. 
 
 But as monks, in process of time, increased to a great degree, and had 
 such large possessions, that holy church was thereby greatly impoverished, 
 et filia devoravit matrem, Pope Pascal the Second ordained, that monks' 
 orders, except the Cistercians, Templars, and Hospitallers, or of St. 
 John of Jerusalem, should be liable to the payment of tithes. 
 
 Cro. Ja. 454 ; 2 Rep. 44; Cro. Ja. 57 ; 2 Inst. 652. 
 
 This ordinance being found insufficient to prevent the impoverishment 
 of the church, another was some time after made by Pope Adrian the 
 Fourth ; by which even the lands of those three orders, except the lands 
 quse propriis manibus excoluntur, were rendered liable to the payment 
 of tithes. 
 
 2 Rep. 44 ; Cro. Ja. 454 ; 2 Inst, 652 ; Cro. Ja. 57. 
 
 The privilege of being discharged of tithes extended only to such lands 
 as those three orders were possessed of about the year 1200; for all 
 parochial tithes being at that time appropriated to the persons who had 
 the cure of souls in the respective parishes, it followed that if land in a 
 parish were afterwards granted to either of these orders, it would be 
 liable to the payment of tithes. 
 
 || It extends only to such lands as the three orders were possessed of at the time of 
 the last general council of Lateran, in the seventeenth year of King John, 1215 ; the 
 exemption being granted by the council, and allowed by the general consent of the 
 realm. 2 Inst. 651; Stavely v. Ullithorne, Hard. 101. || 
 
 || The privilege of exemption was also granted, by Pope Innocent the 
 Third, in the year 1198, to the order of Premonstratenses (canons of St. 
 Austin, who established their order at Premonstratum in Picardy ;) and the 
 privilege appears to have been allowed in the twelfth year of Edward the 
 Third, and a decree made accordingly : but it is now clearly settled, that 
 as this bull of exemption was never received as law in England, like the 
 privilege granted to the other orders by the council of Lateran, a title to 
 exemption cannot be derived from the possession of lands of this order. 
 
 Dirkenson v. (ireenhill, Gwill. 400: Townley v. Tomlinson, Gwill. 1004, 1017; 
 Toller, 171.|| 
 
 As a discharge of tithes by order was personal, every such discharge 
 must, upon the dissolution of the religious houses to whose persons it was 
 annexed, have been at an end, if it had not been continued by one or; 
 more statutes. 
 
 Cro. Ja. 608, Gerrard v. Wright. 
 
 By the 31 II. 8, c. 13, § 21, it is enacted, "That the king, his heirs 
 

 
 TYTHES. 67 
 
 (W) Of a Discharge of the Payment of Tithes by Order, 
 and successors, and every person, his heirs and assigns, which hath, or 
 hereafter shall have, any manors, lands, tenements, or other hereditaments 
 whatsoever, which belonged, or now belong, unto any monasteries, abba- 
 thies, priories, nunneries, colleges, hospitals, houses of friars, or other re- 
 ligious and ecclesiastical houses or places, shall have, hold, and enjoy the 
 said manors, lands, tenements, and other hereditaments whatsoever, and 
 every of them, discharged and acquitted of the payment of tithes, as freely, 
 and in as ample a manner, as the said late abbots, priors, abbesses, prior- 
 esses, and other ecclesiastical governors and governesses, or any of them, 
 had, held, occupied, possessed, or enjoyed the same, or any parcel thereof, 
 at the days of their dissolution, suppression, renouncing, relinquishing, 
 forfeiting, giving up, or coming to the king's highness, of such monasteries, 
 abbathies. priories, nunneries, colleges, hospitals, houses of friars, or other 
 religious or ecclesiastical houses or places, or any of them. ' 
 
 By this statute, the privilege of being discharged of tithes, Avhich the 
 monks of the order of Cistercians, Templars, Hospitallers, or of St. John 
 of Jerusalem, had enjoyed for all the lands quamdhi propriis manibus 
 excolunfur, which they were possessed of before the appropriation of 
 parochial tithes, was continued to such of these lands as were thereby 
 vested in the crown. 
 
 Cro. Ja. 57, 008 : Cro. Car. 24 ; Hob. 300. 
 
 It has been holden, that if land, heretofore discharged by order of tithes, 
 be at this day discharged of tithes, a right of common, either appendant 
 or appurtenant to the land, is likewise discharged thereof. 
 
 Bunb. 138, Lambert v. Gumming. ||So, also, under a grant of the tithes arising out 
 of farms, lands, &c, the tithes arising in respect of rights of common appurtenant to 
 such farms or lands will pass ; and, consequently, allotments awarded under an enclo- 
 sure act, in respect of such rights of common, are tithe free. Lord Gwydyr v. Foakes, 
 7 Term R. 041 ; Steele v. Mans. 5 Barn. & A. 22 ; and see Stockwell v. Terry, 1 Ves. 
 117; Moncaster v. Watson, 3 Burr. 1375; White v. Lisle, 4 Madd. 214; Gwill. 
 1920.H 
 
 Evidence of a great tithe having been paid for land, whilst it was in the 
 hands of the monks of an order capable of a discharge of the payment of 
 tithes, is the best evidence which can at this day be given, that the monks 
 were not possessed of the land before the appropriation of parochial tithes. 
 Bunb. 122. Lord v. Turk. ||See Donnison v. Elslcy, 1 M'Clel.. & Y. 24 ; Carysfort 
 v. Wells. Ibid. GOG. However, proof of payment of tithe by the land-owners will Dot 
 destroy the exemption ratione ordinis, if it' is clearly proved that the lands belonged 
 to the monastery before the council of Lateran : for the abbot or prior could nut per- 
 manently dispense with the privilege by any agreement to pay tithe. Stavely v. Ulli- 
 thorne, Hard. 101; 1 Wood, 24; Gwill. 502.|| 
 
 But evidence of the payment of a small tithe for land, whilst it was in 
 the hands of the monks of an order capable of a discharge of the payment 
 of tithe, is not evidence of this ; because lands discharged by order were 
 only discharged of the payment of great tithes. 
 
 Clayt. 53, pi. 92. 
 
 A tenant for life of land which was discharged by order of the payment 
 of tithes at the time of the dissolution of the religious house to which it 
 belonged, is not at this day discharged of the payment of tithes ; for the 
 construction of the 31 H. 8, c. 13, has always been, that the privilege 
 of being thereby discharged of the payment of tithes, is only continued 
 to those who have an estate of inheritance in the land. 
 
 Ilardr. 174, 190 ; Wilson v. Redman, Clayt. 53.
 
 68 TYTHES. 
 
 (W) Of a Discharge of the Payment of Tithes hy Order. 
 
 || It has been since decided, that a tenant for life under a settlement 
 is entitled to such discharge. Quaere, as to a mere lessee for life ? 
 
 Hett v. Meads, Gwill. 1515 ; 3 Eag. & Y. Ca. 1384.|| 
 
 It was found by a special verdict, that the lands in question, heretofore 
 belonging to an abbey of the Cistercian order, were discharged of the pay- 
 ment of tithes quamdiu propriis manibus excoluntur ; that these lands 
 were in lease for years at the time of their being vested in the crown by 
 the 31 H. 8, c. 13, and that the lease was now expired : and the question 
 was whether the grantee in fee of the crown should be discharged of the 
 payment of tithes quamdiu propriis manibus excoluntur f It was holden, 
 that he should : and by the court — Although the tenant for years paid 
 tithes for the lands at the time of the dissolution of the abbey ; yet as 
 the abbot would have holden them, in case the lease thereof had expired 
 before the dissolution, discharged of the payment of tithes quamdiu 
 propriis manibus excoluntur, the grantee of the crown ought to hold 
 them in the same manner. 
 
 Cro. Ja. 559, Porter v. Bathurst, Cro. Ja. 454 ; Hardr. 190 ; [|Cowley v. Keys, 
 Gwill. 1308.|| 
 
 By the 27 II. 8, c. 28, § 1, all religious and ecclesiastical houses, 
 whose possessions were not of the value of more than two hundred pounds 
 a year, were to be dissolved; and the lands, tenements, tithes, and 
 other hereditaments of such religious and ecclesiastical houses were to 
 be vested in the crown. 
 
 And by § 2, it is enacted, " That every person who now hath, or here- 
 after shall have, any letters patent of the king's highness of the lands, 
 tenements, tithes, or other hereditaments which appertained to any religious 
 house heretofore dissolved, or which appertained to any religious house 
 that shall be suppressed or dissolved by the authority of this act, shall 
 have and enjoy the said lands, tenements, tithes, and other hereditaments, 
 specified in their letters patent, in like manner, form, and condition as the 
 abbots, priors, abbesses, prioresses, and other chief governors, had or 
 ouo-ht to have the same, if they had not been suppressed or dissolved." 
 
 It has been frequently determined, that no land, heretofore discharged 
 by order of the payment of tithes quamdiu propriis manibus excoluntur, 
 which in pursuance of this statute was vested in the crown, is discharged 
 of the payment of tithes. 
 
 Hub. 306 ; Cro. Ja. 57, G08 ; Cro. Car. 24. 
 
 There is in the 31 II. 8, c. 13, a clause in the third paragraph to the 
 same eifect, concerning the lands of religious houses thereby vested in 
 the crown : but it is plain, from a subsequent clause in the twenty-first 
 paragraph of the 31 II. 8, c. 13, by which such lands are discharged of 
 the payment of tithes, that the legislature were sensible that such lands 
 were nut discharged thereof by the former clause ; for if they had been 
 thereby discharged, the inserting of another clause of discharge would 
 have been altogether nugatory. 
 
 By the twenty-first paragraph of the 31 II. 8, c. 13, only such lands, 
 heretofore discharged by order of the payment of tithes quamdiu propriis 
 manibus excoluntur, arc discharged of the payment of tithes as came to 
 the hands of Henry the Eighth, after the fourth day of February, in the 
 twenty-seventh year of his reign. 
 
 In consequence of this, it has been holden, that no lands, heretofore dis-
 
 TYTHES. G9 
 
 (W) Of a Discharge of the Payment of Tithes by Order. 
 
 charged by order of the payment of tithes quamdiu propriis manibus ex- 
 cohuitur, which were vested in the crown in pursuance of the 27 II. 7, c. 
 28, were discharged of the payment of tithes by the 31 II. 8, c. 13 ; for as 
 the lands vested in the crown by the former of these statutes, were by 
 relation vested upon the fourth day of February, in the twenty-seventh 
 year of the reign of King Henry the Eighth, that being the first day of 
 the session of parliament in which the 27 II. 8, c. 28, was made, the lat- 
 ter statute cannot extend to those lands. 
 Hob. 306 ; Cro. Ja. 57, 608 ; Cro. Car. 24. 
 
 It has been holden in two cases, that lands heretofore discharged by 
 
 order of the payment of tithes quamdiu propriis manibus ezcoluntur, 
 
 which were vested in the crown by the 32 II. 8, c. 24,(a) are not at this 
 
 day discharged of the payment of tithes. 
 
 2 Rep. 40, The Archbishop of Canterbury's case, Trin. 38 Eliz. ; Cro. Ja, 58, Corn- 
 -wallis v. Spalding, Hil. 44 Eliz. \\(a) These were the possessions of the order of St. 
 John of Jerusalem. || 
 
 As there is no discharging clause in this statute, such lands must, if 
 they are discharged of the payment of tithes, be discharged by the 31 
 H. 8, c. 13. 
 
 2 Rep. 46, The Archbishop of Canterbury's case. 
 
 It appears, indeed, upon comparing the discharging clause in the twenty- 
 first section of the 31 H. 8, c. 13, with the third section of the same 
 statute, that the discharge extends to the lands of religious houses 
 " which thereafter shall happen to be dissolved, suppressed, renounced, 
 relinquished, forfeited, given up, or by any other means come to the kings 
 highness." But the construction in one of the cases was, that the words, 
 or by any other means come to the king's highness, do not include a coining 
 by act of parliament ; for if the legislature had intended to include a 
 coming to the king by act of parliament, this, which is the highest way 
 of coming, would have been mentioned before the coming by dissolution, 
 or by the other inferior ways which are therein particularly mentioned. 
 And in support of this construction, a case was relied on, in which it had 
 been holden, that bishops are not included under these words of the 13 
 Eliz. c. 10, " Colleges, deans and chapters, parsons, vicars, and others 
 having ecclesiastical livings;" because as persons of an inferior rank are 
 expressly mentioned, bishops, if it had been intended to include them, 
 would have been likewise expressly mentioned. 
 
 But it has been holden in a subsequent case, by three judges against 
 one, that lands heretofore discharged by order of the payment of tithes 
 quamdiu propriis manibus excoluntur, which were vested in the crown by 
 the 32 H. 8, c. 24, are at this day discharged of the payment of tithes ; 
 for that the words in the third paragraph of the 31 H. 8, c. 13, which 
 thereafter shall happen to be dissolved, include every kind of dissolution, 
 and consequently a dissolution by act of parliament ; and that the words, 
 or by any other means come to the king's highness, include as well a 
 coming by act of parliament as a coming by any other way. 
 
 1 Jon. 187, Whitton v. Weston, Trin. 4 Car. 1. 
 
 And in a still later case it is said, that, although there may have been 
 : formerly a difference of opinion as to this point, it is now settled, that the
 
 70 TYTHES. 
 
 (X) Of a Discharge by Unity of Possession. 
 
 discharging clause of the 31 H. 8, c. 13, extends to lands vested in the 
 crown by the 32 H. 8, c. 24. 
 
 Freem. 299, Star v. Elliot, Mich. 31 Car. 2 ; ||and see Urrey v. Bowyer, Gwill. 250 ; 
 Fosaet v. Franklin, Gwill. 1579 ; Dennison v. Elsley, 1 M'Clel. & Y. 1 ; 2 Bligh, 94, 
 N. S. ; 3 Eag. & Y. 1398 ; Toller, 174, and cases there cited. 
 
 || It is to be observed, that the orders of Cistercians and Hospitallers 
 were capable of other discharges, besides the qualified exemption of their 
 lands, whilst they retained them in their own occupation ; and that the 
 grant, and the subsequent confirmation of that privilege by the council of 
 Lateran, did not deprive them of the benefit of any absolute discharge for 
 their lands to which they were then entitled, and particularly of the right 
 of prescribing in non deeimando(ci) for themselves, their farmers and 
 tenants, which they enjoyed in common with all other spiritual persons. (b) 
 Thus in a case,(e) in which it appeared that the lands of which tithes were 
 demanded were part of lands called Bromley Grange, which belonged, at 
 the time of the dissolution, to the Abbey of Fountains, which was one of 
 the greater monasteries of the Cistercian order, and that they had never 
 paid tithes ; the court presumed an absolute, not a qualified discharge 
 ratione ordinis, although it was proved that other lands in Bromley 
 Grange paid tithes while they were in the hands of tenants, and that the 
 lands in question had always been in the occupation of the owners. 
 
 (a) To support such a prescription, it is necessary to show that the lands were in 
 the hands of the religious house before the time of legal memory, and not merely that 
 they wore so at the time of the dissolution. Markham v. Smyth, 11 Price, 126, 3 
 Eag. & Y. 1071. Where there is evidence of the possession of the land at the dis- 
 solution, accompanied by proof of an immemorial usage of non-payment of tithes, it 
 seems this will be good presumptive evidence that the land belonged to the monastery 
 before the time of legal memory. Donnison v. Elsley, 1 M'Clel. & Y. 24 ; Carysfort 
 v. Wells, Ibid. GOG ; Norton v. Hammond, 1 Younge & J. 103 ; Pritchall v. Honey- 
 borne, Ibid. 149. The presumption may be strengthened by ancient documents, 
 showing that the monastery held the lands at any remote period before the dissolution, 
 although after the commencement of legal memory. Norton v. Hammond, supnl. 
 (I,) Fosset v. Franklin, M. 1673 ; T. Raym. 225 ; 3 Keb. 208, 217 ; 1 Eag. & Y. 501 ; 
 .Matthew v. Fitch, Serjeant Hill's MSS. vol. 25, p. 152 ; 3 Eag. & Y. 1238 ; Gwill. 778 ; 
 Ingram v. Shaekstow, Tr. 1748 ; Joddrell's MSS. ; 3 Eag. & Y. 1242 ; Gwill. 819 ; 
 Donnison v. Elsley, M. 1824; 1 M'Clel. & Younge, 24; 2 Bligh, 94, N. S. ; 3 Eag. & 
 Y. 1402; Norton v. Hammond, M. 1826; 1 Younge & Jervis, 103. (c) Ingram v. 
 Thackstow, sttprd. 
 
 In order to establish' this ground of discharge, the land-owner must 
 show satisfactorily that the lands were in the hands of the monastery be- 
 fore the council of Lateran, and also at the dissolution of the monastery. 
 If he fails in either point, the exemption is not established. 
 
 Norton v. Hammond, 1 Younge & J. 94. || 
 
 (X) Of a Discharge of the Payment of Tithes by Unity of Possession. 
 
 So long as land in a parish was in the possession of an abbot, who was 
 also possessed of the rectory of the parish, the payment of tithes for the 
 land was necessarily suspended; because the abbot could not pay tithes 
 
 to himself. 
 2 Rep. 47, 48, The Archbishop of Canterbury's case. 
 
 But the land was not discharged of tithes by the unity of possession; 
 because tithes do not issue out of land, but arc collateral thereto. 
 1 1 Rep. 14. Priddle v. Nipper; 2 Rep. 47, 49 ; Cro. Ja. 454 ; Com. 503. 
 
 And consequently, so soon as the possession of the land was severed
 
 TYTHES. 71 
 
 (X) Of a Discharge by Unity of Possession. 
 from that of the rectory, the land became again liable to the payment 
 of tithes. 
 Com. 511, Fox v. Bardwell, 2 Rep. 47, 49 ; Cro. Ja. 454 ; 11 Rep. 14. 
 
 Nay it has been holden, that although there had been, previously to 
 the dissolution of the religious house, a perpetual unity of possession of 
 the land and the rectory in the abbot and his predecessors, this is not 
 an absolute discharge of the tithes of the land; inasmuch as the words 
 of the discharging clause in the 31 H. 8, c. 3, are not discharged of 
 tithes, but discharged of the payment of tithes. 
 
 2 Rep. 47, The Archbishop of Canterbury's case ; Hob. 298. 
 
 Great doubt was formerly entertained whether a perpetual unity of 
 possession of land and the rectory of the same parish is primd facie a 
 discharge of the tithes of the land, within the meaning of the discharg- 
 ing clause in the 31 H. 8, c. 13. 
 
 11 Rep. 13, 14, Priddle v. Napper; 2 Rep. 48; Hob. 298, 311; Cro. Eliz. 578. 
 
 But it was at length determined, that if the land and the rectory had 
 been in the possession of the abbot and his predecessors for time im- 
 memorial, and was so at the dissolution of the monastery, and it do not 
 appear that tithes had ever been paid for the same, such land is primd 
 facie discharged of tithes by the 31 H. 8, c. 13. The reason given for 
 this determination is, that, as it would be very difficult, if not impossi- 
 ble, to show at so great a distance of time in what manner the land was 
 at first discharged'of tithes, it shall be intended, that it was discharged 
 by grant, in which case the discharge runs with the land. 
 
 2 Rep. 48, The Archbishop of Canterbury's case ; 11 Rep. 13, 14 ; Hob. 298, 311 ; 
 Cro. Eiiz. 578; ||G\vill. 859, 1354.|| 
 
 If it appear, however, that a farmer of the land had at any time before 
 the dissolution of the monastery paid tithes for the same, this destroys 
 the presumption arising from the perpetual unity of possession ; and is 
 evidence that, although the payment of tithes was suspended by reason 
 of the unity of possession, the land was not discharged thereof by grant- 
 Hob. 298; Slade v. Drake, 2 Rep. 48; 11 Rep. 14; Hob. 311; Cro. Ja. 454 ; 
 Comb. 511. 
 
 It has already been observed, that lands, heretofore discharged by 
 order of the payment of tithes quamdiu propriis manibus excoluntur, 
 which were vested in the crown by the 27 H. 8, c. 28, are not discharged 
 of the payment of tithes by the 31 H. 8, c. 13. 
 
 Ante. 
 
 It is sufficient in this place to say, that land which was vested in the 
 crown by the former of these statutes, is not by the latter absolutely dis- 
 charged of the payment of tithes ; notwithstanding there had been a per- 
 petual unity of possession of the land and the rectory of the same parish 
 in the abbot and his predecessors. 
 
 It has been determined in two cases, that land which was vested in the 
 crown by the 32 H. 8, c. 24, is not discharged of tithes by the 31 II. 8, 
 c. 13, although there had been, before the dissolution of the monastery to 
 which the land belonged, a perpetual unity of possession of the land and 
 : the rectory of the same parish in the abbot and his predecessors ; and it 
 do not appear that any tithes have ever been paid for the same. 
 
 2 Rep. 4G ; Cro. Ja. 58.
 
 72 TYTHES. 
 
 (Y) Of Agreements and Leases concerning Tithes. 
 
 As the reasons upon which these determinations were founded have 
 been already mentioned, it is not necessary to repeat them. 
 ||Seea/itt, p. 68, 69. || 
 
 But, as has already been observed, the determinations in two subsequent 
 cases have been, that the discharging clause of the 31 H. 8, c. 31, does 
 extend to lands which were vested in the crown by the 32 If. 8, c. 24. 
 
 It has been holden, that, although there had been a perpetual unity of 
 possession of land and the rectory of the same parish in a dean and chapter, 
 and their predecessors, or in any other corporation which was not religious, 
 as well as ecclesiastical, and it do not appear that any tithes have ever 
 been paid for the land, it is not absolutely discharged of tithes by the 31 
 H. 8, c. 13 ; for that, whenever the houses dissolved, or to be dissolved, 
 are mentioned in that statute, they are always called religious and eccle- 
 siastical houses. The discharging clause in the twenty-first paragraph 
 of that statute does indeed say, that the lands of the houses dissolved, 
 and to be dissolved, shall be holden and enjoyed " discharged of the pay- 
 ment of tithes, as freely and in as ample a manner as the late abbots, 
 priors, abbesses, and other ecclesiastical governors and governesses, or 
 any of them, had, held, occupied, possessed, or enjoyed the same, or any 
 parcel thereof;" but the construction has been, that as no houses, except 
 such as were religious as well as ecclesiastical, had been dissolved, these 
 words, ecclesiastical governors, only mean governors of houses which 
 were religious as well as ecclesiastical. 
 
 2 Rep. 48, 49, The Archbishop of Canterbury's case; Cro. Eliz. 511. 
 
 || Where lands exempted from tithes, as being part of the demesne of 
 an ancient monastery, were enclosed by act of parliament, it was held, 
 that they were not rendered liable to tithes by a clause in the act, pro- 
 viding that the rector or impropriator of the parish, or his lessee, should 
 receive all kinds of tithes from the new enclosures, notwithstanding any 
 modus, or pretence of a modus, or composition in any other parts of the 
 parish, or any exemption whatever ; since such general words could not 
 operate to destroy a clear legal exemption, when the whole scope of the 
 clauses was merely to preserve such right as the impropriator had at the 
 passing of the act. 
 
 Pratt v. Hopkins, 3 Bro. P. C. 521 ; see Gwill. 1387. || 
 
 [A lease of tithes for so long time as the lessor shall continue vicar of 
 A, is good, and conveys a freehold. But an agreement to accept a rea- 
 sonable composition for tithes, not exceeding three shillings and sixpence 
 per acre, is not a lease of the tithes, for the uncertainty of the render. 
 
 Brewer v. Hill, Anstr. 414.] 
 
 (Y) Of Agreements and Leases concerning Tithes. 
 
 It seems to be settled, that if a parol agreement be made for tithes, 
 by way of sale thereof for a term of years, or for the life of the parson, 
 in case he so long continue to be parson, the agreement is binding. 
 
 Bro. amir. pi. L3; Yelv. 94; 1 Browul. 98; Palm. 377 ; Gtodb. 354; 8 Mod. 62. 
 
 But the law does not seem to be settled as to the validity of a parol 
 agreement for tithes, by way of retainer thereof. 
 
 It is laid down in some books, that a parol agreement for tithes, by 
 way of retainer thereof, for a term of years, is good. 
 
 Yelv. 95; Noy, 121; 2 Browul. 11 ; 3 Leon. 247; Hctl. 128.
 
 TYTHES. 73 
 
 (Y) Of Agreements and Leases concerning Tithes. 
 
 In other books it is laid down, that if a parol agreement be made for 
 the retaining of tithes during the life of the parson, in case he so long 
 continue to be parson, the agreement is good. 
 
 Cro. Ja. 669, Honeycomb v. Sweet, 1 Lev. 24. 
 
 But it seems to be the better opinion, that such an agreement, either 
 for years, or during the life of the parson, in case he so long continue to 
 be parson, is not good. 
 
 It is in divers books laid down, that such an agreement is not good for 
 
 more than one year ; because it is in the nature of a lease of tithes, which 
 
 is not good unless it be by deed. 
 
 Nov, 28; 1 Brownl. 98 ; Owen, 103; 1 Roll. R. 174; Godb. 354; Cro. Eliz. 249; 
 Cro. Ja. 137, 3G0 ; Hard. 203. 
 
 And in one of these it is said expressly, that such an agreement is only 
 good, even for one year, because it is quasi a sale of the tithes. 
 Cro. Ja. 137, Hawkes v. Bray field. 
 
 And in a modern case, two out of three of the barons of the Exchequer 
 were of opinion, that a parol agreement, by way of retainer of tithes, 
 can only be good for one year. 
 
 Bunb. 2, Keddington v. Bridgman, Ilil. 2 G. 1. 
 
 || It is perfectly settled, that parol compositions for the land-owner to 
 
 retain his tithes, and in lieu thereof to pay a sum certain to the parson, 
 
 are good as personal contracts without deed or writing ; for they do not 
 
 pass an interest in the tithes, which can only be done by deed. 
 
 Wyburn v. Tuck, 1 Bos. & Pul. 458 ; Gwill. 1517 ; Manby v. Taylor, 9 Price, 249 ; 
 Brooksby v. Watts, 6 Taunt. 334 ; Gwill. 1743 ; Adams v. Waller, Gwill. 1204 ; 
 7 Bro. P. Ca. 65. 
 
 Such parol compositions, being mere personal contracts, cease on a 
 change of occupation of the land, and cannot operate to discharge a new 
 occupier from setting out the tithe. In such case, the amount of the for- 
 mer composition is prima facie evidence of the value of the tithes. 
 
 Bennett v. Snell, Palm. 377 ; 1 Eag. & Y. 327 ; Peyton v. Kirkly, 3 Chitty, 405 ; 
 Gwill. 1988 ; 3 Eag. & Y. 1391 ; sed vide Huline v. Pardoe, M'Clel. 393; 3 Eag. & 
 Y. 1164. 
 
 And such compositions are determined by the death or change of the 
 
 incumbent ; since the incumbent cannot, by any such agreement, bind 
 
 his successor. 
 
 Brown v. Barlow, Gwill. 1001 ; 2 Eag. & Y. 19; Hawkins v. Kelly, 8 Yes. 308; 
 Williams v. Powell, 10 East, 270; Aynsley v. Wordsworth, 2 Yes. & B. 331. 
 
 But if the successor accept the composition, this amounts to a revival 
 
 of the agreement, and he cannot then determine it without the proper 
 
 notice. 
 Machin v. Moulton, 2 Lutw. 1057; Lloyd v. Mortimer, 7 Bro. P. C. 493 ; Gwill. 
 
 1060.|| 
 
 If a parson, who has made a parol agreement, by way of retainer of 
 tithes, for a term of years, or for the term of his life, in case he so long 
 continue to be parson, afterwards bring an action upon the statute for 
 subtraction of tithes, without having first given notice of his dissent to 
 the agreement, the parishioner, although the agreement be not binding, 
 shall not be liable to the penalties of the statute, nor to costs. 
 
 Hardr. 203, Bramer v. Thornton. 
 
 Vol. X.— 10 G
 
 74 TYTHES. 
 
 (Y) Of Agreements and Leases concerning Tithes. 
 
 || Nor is the parishioner, in such case, liable to a proceeding in the 
 ecclesiastical court, or to a suit in equity for tithes. 
 
 Chapman v. Hurst, 1 Leon. 151 ; 1 Lag. & Y. 98 : Adams v. Waller, 7 Bro. P. Ca. 
 C5 ; Gwill. 1204 ; Hilton v. Heath, Gwill. 845 ; 2 Eag. & Y. 128 ; Bennett v. Snell, 
 Palm. 377; 1 Eag. & Y. 327. || 
 
 And notice of his dissent is not good, unless it be given before the land, 
 of which he means to take tithes in kind, is manured and sown ; because, 
 perhaps, the land would not, if an earlier notice had been given, have 
 been manured and sown. 
 
 Hardr. 203, Bramer v. Thornton. 
 
 || It is now settled, that the notice for the determination of a composition | 
 for tithes is analogous to the notice from the landlord to a tenant from 
 year to year of land ; that is, it is necessary to give half a year's notice, 
 expiring with the year of the agreement for composition. And, therefore, 
 if a composition be made with A, as proprietor of the tithes, and he grants 
 a lease of them to B for a term, whose interest is afterwards determined 
 before any alteration is made in the composition, A cannot determine the 
 composition without six months' notice to the occupier. 
 
 Hewitt v. Adams, Dom. Proc, 12 East, 81, n. ; Wyburn v. Tuck, 1 Bos. & P. 458 ; 
 Bishop v. Chichester, 3 Bro. C. R. 162. 
 
 The notice must be to determine the composition in toto ; for it cannot 
 be determined as to part, and continue as to the residue. 
 See 3 Taunt. 95 ; Gwill. 012. 
 
 And the notice must be so unequivocal that the party may know on 
 what he is to depend : therefore, a mere demand by the vicar, in con- 
 versation, of his vicarial tithes, and a refusal to take the amount of the 
 annual composition which was tendered by the occupier, without assign- 
 ing any reason for the refusal, is not a sufficient notice to determine the 
 composition. 
 
 Fell v. Wilson, 12 East, 83. 
 
 Where a house, lands, and tithes were held by parol at a joint rent, it 
 was held, that a notice to quit the house, lands, and premises, with the 
 appurtenance, sufficiently included the tithes. 
 
 Hoc v. Church, 3 Camp. 71; 2 Eag. & Y. G49 ; and see 16 East, 53. 
 
 The question has been agitated in several cases, Whether such a notice 
 
 is necessary where an occupier has set up a claim of modus? In Hume v. 
 
 Wright, the Court of Exchequer decided that in such case a notice was 
 
 not necessary ; because, by insisting on a modus, the parishioner was 
 
 setting up an adverse title. The decision of the Court of Exchequer, in 
 
 Adams v. Waller, confirmed this doctrine : but the decree in this last case 
 
 being reversed in Dom. Proc, (though without any discussion on this 
 
 point,) Lord Thurlow, in the case of Bishop v. Chichester, considered the 
 
 • of 11 nine v. Wright as overruled ; and therefore, contrary to his own 
 
 opinion against the necessity of a notice in such case, considered himself 
 
 bound by t lie authority of the Dom. Proc, in Adams v. Waller, to decide 
 
 that a parishioner was entitled to such a notice, notwithstanding that he 
 
 denied the parson's right to tithes by setting up a modus. The question 
 
 was again discussed in Atkins v. Willoughby ; but the case was decided 
 
 on another point. In the case of Fell v. AVilson, Chambre, J., at the trial 
 
 V a of opinion that no such notice was necessary where the defendant set 
 
 up a modus, since the case was analogous to that of a tenant from year to
 
 TYTHES. 75 
 
 (Y) Of Agreements and Leases concerning Tithes. 
 
 year disclaiming to hold of his landlord ; and the court afterwards, on a 
 motion for a nonsuit, appear clearly to have been of the same opinion : 
 but as there was no distinct evidence of a modus being set up till the 
 trial, the court decided that the defendant was entitled to object to the 
 want of notice. In a late case in the Common Pleas, (Bower v. Major,) 
 in which it appeared that the parishioner had for two years refused to 
 set out tithe of hay, on the ground of a modus, the court held the case 
 analogous to that of a tenant disclaiming his landlord's title, and that no 
 notice was therefore necessary. 
 
 3 Wood, 320 ; Gwill. 1217 ; Gwill. 1204 ; 2 Bro. C. C. 1G1 ; Anstr. 397 : 12 East, 
 83 ; 1 Bro. & B. 4 ; ||3 Moo. 217 ; 3 Eag. & Y. 956 ; and see Wolley v. Brownhill, 
 M'Clel. 317 ; but see Wolley v. Hadfield, 3 Price, 210; Gwill. 1790; and see 2 Eag. 
 on Tithes, 31, 32. || 
 
 (As to the apportionment of money received on compositions, as between 
 the executors of a deceased incumbent and his successor, see tit. " Rent," 
 Vol. viii., and 10 East, R. 2G9 ; 8 Ves. R. 308 ; 2 Ves. & B. 331.)|| 
 
 If a parol agreement by way of retainer of tithes, be made by a par- 
 son, and he refuse to abide thereby, the parishioner, although the agree- 
 ment be not binding as to the tithes, may maintain an action against the 
 parson for non-performance of the agreement. 
 2 Leon. 73, Wellock's case ; Cro. Eliz. 249 ; Godb. 273 ; ||1 Eag. & Y. 89. || 
 
 But if a parol agreement for years be made with A, that he and his 
 assigns shall retain the tithes of certain land, and the land be afterwards 
 assigned over to B, B cannot maintain an action for non-performance of 
 the agreement, inasmuch as the benefit of a parol agreement cannot be 
 assigned. 
 
 Cro. Eliz. 240, Nelson v. Woodward. 
 
 On the other hand, if a parishioner refuse to pay the money due upon 
 
 a parol agreement, by way 6f retainer of tithes, the parson, although the 
 
 agreement be not binding as to the tithes, may maintain an action for 
 
 the money agreed for. 
 
 2 Show. 307, Eaton v. Shenvin; ||Brooksby v. Watts, 6 Taunt. 334; Hulme v. 
 Pardoe, M'Clel. 393 ; 3 Eag. & Y. 1104. || 
 
 It is laid down in some cases, that a lease of tithes by parol is not 
 good ; because tithes, which lie in grant, cannot pass without deed. 
 Latch, 176 ; Bellamy v. Balthorp, 2 Brownl. 11. 
 
 In other cases it is laid down, that a lease by parol of tithes is good 
 
 for one year, because the lease enures quasi a sale of the tithes. (a) 
 
 Cro. Eliz. 249 ; Godb. 354, 374 ; Freem. 234. ||(«)But a parol lease of tithe.?, not 
 yet severed from the nine parts, cannot operate as a sale ; for the parson has no pos- 
 sessory interest capable of being sold until the tithes are severed. See Bex v. Ellis, 
 3 Price, 323 ; 3 Eag. & Y. 776 ; Chase v. Calmel, 3 Burr. 1873 ; Wyburd v. Tuck, 
 lBos. &Pul. 458; Gwill. 1517. || 
 
 But the doctrine of the former cases is adhered to in two modern 
 cases. 
 
 In one of these it was holden, that a lease by parol of tithes, even for 
 one year, is not good. 
 
 Bunb. 2, Keddington v. Bridgman, Hil. 2 G. 1. 
 
 In the other it is laid down, that tithes which lie in grant cannot pass 
 without deed. 
 
 8 Mod. 63, The King v. Fairclough, Mich. 8 G. 1. ||See Paynton v. Kirkby, 3 Chitt. 
 405 ; 3 Eag. & Y. 1391 ; Adams v. Waller, Gwill. 1220 ; Jackson v. Benson,'! M'Clel.
 
 76 TYTHES. 
 
 (Z) Of Suits for Tithes in the Spiritual Court. 
 
 62 ; Gwill. 2074 ; from which, and various other cases, it is clear, that no interest in 
 tithes can be granted without deed, unless, indeed, where they pass as parcel of a rec- 
 tory, which being considered a corporeal hereditament, may be demised for three years 
 without deed. Bro. Ab. tit. Lease, 1, 15, 20 : 2 R. A. G3 ; Bellamy v. Balthorpe, God- 
 bolt, 373 : Latch, 17G ; 1 Eag. & Y. 355 ; Brewer v. Hill, 2 Anstr. 413 ; Gwill. 1418 ; 
 2Eag. & Y. 412.|| 
 
 A lease of tithes, to commence at a future day, is void ; for, although 
 the tithes arc not parcel of, but collateral to, the land, the same rules are 
 to be observed in leases of tithes as in leases of land. 
 
 Yelv. 131, Edmonds v. Booth. 
 
 (Z) Of a Suit in a Spiritual Court for Subtraction of Tithe. 
 
 At the common law there was no other remedy against a person who 
 had neglected to set out or pay his tithe, than by suit in a spiritual court. 
 Bro. Dism. pi. 1, pi. 5, pi. 0, pi. 10 ; 2 Rep. 44; Vaugh. 195. 
 
 If tithe, which had been severed by a proper person from the nine 
 parts, were afterwards carried away by a stranger, the parishioner was 
 not answerable for it ; but the remedy against the person carrying it 
 away was by an action in a temporal court ; for, by the severance, it 
 was vested in the parson, and become lay chattel. 
 
 Bro. Dism.; Noy, 4; 2 Bulstr. 184; Cro. Eliz. G07. 
 
 But if the severance of the tithe were by a stranger, who had no 
 colour of title to the land upon which it arose, this did not take away the 
 right of the parson to sue the parishioner in a spiritual court for subtraction 
 of tithe ; because there was not such a property in the tithe vested in the 
 parson by this severance, as would have enabled him to maintain an 
 action at law against the person who should afterwards carry it away. 
 
 3 Bulstr. 337, Mountford v. Sidley; Latch, 8. 
 
 By the 32 H. 8, c. 7, § 2, it is enacted, " That in case any person 
 shall detain and withhold any tithe, the party having cause to demand 
 or have the same may sue for the same in a spiritual court." 
 
 The construction of this clause has been, that if the person who has 
 legally set out tithe afterwards carry it away, the party to whom the tithe 
 was due may sue for it in a spiritual as well as in a temporal court ; for 
 that the words detain and withhold fairly extend to a carrying away of 
 tithe after it has been set out. 
 Cro. Eliz. 007, Leigh v. AVood. 
 
 But it was in the same case holdcn, that this clause does not give 
 jurisdiction to any spiritual court, where tithe, which has been legally 
 set out by a proper person, is afterwards carried away by a stranger. 
 Cro. Eliz. 007, Leigh v. Wood. 
 
 If any doubt did remain, as to the carrying away of tithes by the person 
 who had legally set it out, this is, as to predial tithes, entirely removed by 
 the 2 & :\ Ed. 6, c. 13, § 2, it being thereby enacted, " That if any person 
 do willingly withdraw his tithe of corn or hay, or of such other things 
 whereof predial tithes ought to be paid, by reason whereof the said tithe is 
 lost, impaired, or hurt ; that then, upon due proof thereof made before the 
 spiritual judge, or any other judge to whom heretofore he might have 
 made complaint, the party so withdrawing shall pay the double value of 
 the tithe so withdrawn, over and above the costs, charges, and expenses
 
 TYTHES. 77 
 
 (Z) Of Suits for Tithes in the Spiritual Court. 
 
 of the suit; the same to be recovered before the ecclesiastical judge, ac- 
 cording to the king's ecclesiastical laws." 
 
 The construction of this clause has been, that if a stranger carry away 
 the tithe, after it has been legally severed from the nine parts, an action 
 upon the statute does not lie against the stranger. 
 
 Noy, 44, Webb v. Potts. 
 
 Only spiritual persons could, at the common law, sue in a spiritual 
 court for subtraction of tithe. 
 
 Bro. Dism. pi. 9 ; 2 lust. G4S ; 2 Rep. 44 ; Cro. Eliz. 512. 
 
 But as laymen, soon after the dissolution of monasteries, became pos- 
 sessed of estates in tithes, it was necessary that they should be enabled 
 to sue for subtraction thereof. 
 
 For the sake of enabling them to do this, it is by the 32 H. 8, c. 7, 
 § 2, enacted, " That in case any person shall detain and withhold any 
 tithe, the party being ecclesiastical or lay person, having cause to demand 
 or have the said tithe, shall and may convene the person so offending 
 before the ordinary, his commissary, or other competent minister or law- 
 ful judge, of the place where such wrong shall be done, according to the 
 ecclesiastical laws ; and in every such cause or matter of suit the same 
 ordinary, commissary, or other competent minister or lawful judge, shall 
 and may, by virtue of this act, proceed to the examination, hearing, and 
 determination of every such cause or matter, according to the course and 
 process of the ecclesiastical laws ; and thereupon may give sentence ac- 
 cordingly." 
 
 It was heretofore usual to cite persons from all parts of England to 
 answer for subtraction of tithe in the prerogative courts of Canterbury 
 and York. 
 
 12 Mod. 252, Machin v. Malton. 
 
 In order to put a stop to this great vexation, it is, by the 23 II. 8, c. 
 9, § 2, enacted, " That no person shall be from henceforth cited, sum- 
 moned, or otherwise called, to appear before any ordinary, or other spi- 
 ritual judge, out of the diocese or peculiar jurisdiction wherein the person, 
 who shall be cited, summoned, or otherwise called, shall be inhabiting, 
 at the time of the awarding or going forth of the same citation or sum- 
 mons," except in certain cases mentioned in this statute, of which sub- 
 traction of tithes is not one. 
 
 It is moreover enacted, by the 32 H. 8, c. 7, §2, " That every suit for 
 subtraction of tithe shall be brought in the court of the ordinary, com- 
 missary, or other competent minister or lawful judge, of the place where 
 the wrong shall be done." 
 
 It has been holden, that the direction of the latter statute is to be fol- 
 lowed, as to the spiritual court in which a suit for subtraction of tithe is 
 to be instituted. 
 
 A person who lived in the diocese of A had subtracted tithe in the dio- 
 cese of B. Being cited to answer for this in the court of the bishop of 
 B, a prohibition was moved for ; and it was insisted, that by virtue of 
 i the 23 H. 8, c. 9, every citation for subtraction of tithe must be to a 
 I court belonging to the jurisdiction in which the person cited lives. The 
 | court being doubtful, a prohibition was, for the sake of having the point 
 \ settled, granted ; but afterwards the whole court were, upon deliberation, 
 of opinion that a consultation ought to be awarded. 
 2 Mod. 352, Machin v. Malton.
 
 78 TYTHES. 
 
 (Z) Of Suits for Tithes in the Spiritual Court. 
 
 At the common law only the tithe, or the value thereof, with costs of 
 the suit, could be recovered in a suit for subtraction of tithe. 
 2 Inst. 651. 
 
 But a better remedy is given by the 2 & 3 Ed. 6, c. 13, § 2, in the 
 case of predial tithes, (one clause of which is above set out :) it being 
 thereby enacted, " That if any person do carry away his corn, hay, or other 
 things of which predial tithes are due, before the tithe thereof be set forth; 
 or do willingly withdraw any of his said predial tithes ; or do stop (a) or 
 let the parson, vicar, proprietor, owner, or other their deputies or farmers, 
 to view and see all manner of their predial tithes to be justly and truly 
 set forth, and severed from the nine parts, and the same quietly to take 
 and carry away, by reason whereof the said tithe is lost, impaired, or hurt ; 
 that then the party so carrying away, withdrawing, stopping, or letting, 
 shall pay the double value of the tithe so taken, lost, withdrawn, or car- 
 ried away, over and above the costs, charges and expenses of the suit ; 
 the same to be recovered according to the king's ecclesiastical laws." 
 
 ||(a) As to what road may be used by a parson for fetching away his tithes, see 
 Cobb v. Selby, 2 New R. 466.|| 
 
 It is laid down, that the double value, which may be recovered under 
 this statute in a spiritual court, is to be over and above the value of the 
 tithe ; and, consequently, that a suit in a spiritual court for subtraction 
 of predial tithe is more advantageous than an action upon the statute in 
 a temporal court for the treble value ; inasmuch as the treble value of 
 the tithes may be recovered in the spiritual court, together with the costs 
 of the suit. (b) 
 
 2 Inst. 651. H(6) By the 8 & 9 Will. & M. c. 11. the plaintiff is entitled to costs in 
 a temporal court, where the value of the tithes does not exceed the sum of twenty 
 nobles, (0/. 13s.4J.)|| 
 
 But it seems to be the better opinion, that only the double value of 
 the tithe and the costs of the suit can be recovered, in a suit in a spiritual 
 court for subtraction of a predial tithe. 
 
 In a suit in a spiritual court for subtraction of tithe, the sentence was, 
 that the plaintiff, besides the double value of the tithe and the costs of 
 the suit, should also recover the single value thereof. A prohibition was 
 awarded. And by the court — The spiritual court is not empowered by 
 the 2 & 3 Ed. G, c. 13, to give more than the double value of the tithe 
 and the costs of the suit, in a suit for subtraction of tithe. 
 
 Godb. 245, Baldwin v. Gecry. 
 
 If the defendant die, pending a suit upon the 2 Ed. G, c. 13, in a spi- 
 ritual court for subtraction of tithe, and afterwards another suit be com- 
 menced against his executor, a prohibition lies ; for the double value, 
 given by that statute, is given by way of punishment for the personal 
 wrong in subtracting the tithe ; and an executor is not answerable for a 
 personal wrong done by his testator. 
 
 Sid. 181, Wcekes v. Trussel. 
 
 It is in general true, that there is no method of enforcing obedience 
 to a sentence of a spiritual court by fine, imprisonment, or amercement. 
 
 1 Inst. 324; 11 Rep. 44. 
 
 But by the 32 II. 8, c. 7, §4, it is enacted, "That if any person, after 
 a definitive sentence given against him in an ecclesiastical court for sub- 
 traction of tithe, obstinately and wilfully refuse to pay his tithe, or such
 
 TYTHES. 79 
 
 (Aa) Of prohibitions to Suits in the Spiritual Court. 
 
 sums of money wherein he shall be condemned for the same, that then 
 two justices of the peace shall have authority by this act, upon informa- 
 tion, certificate or complaint to them made in writing, by the ecclesiasti- 
 cal court that gave the same sentence, to cause the party so refusing to 
 be committed to the next jail, and there to remain without bail or main- 
 prise, until he shall have found sufficient sureties, to be bound in recogni- 
 sance or otherwise before the same justices, to the use of our sovereign 
 lord the king, to perform the said sentence." 
 
 || In a modern case in the Consistory Court of London, the question was 
 discussed, Whether a bankrupt's certificate was a bar to a demand for 
 subtraction of tithes in the ecclesiastical court, the tithes having become 
 clue before the act of bankruptcy, and the certificate having been obtained 
 a few days before the affirmative issue had been given to the libel ? Sir 
 "William Scott, not being satisfied that the demand was not barred, de- 
 clined to decree excommunication against the defendant. 
 
 Braithwaite v. Hollingshead, 1 Haggard, 11. 470. || 
 
 (Aa) In -what Cases a Prohibition lies to a Suit in a Spiritual Court for Subtraction 
 
 of Tithe. 
 
 Notwithstanding the general jurisdiction which spiritual courts have 
 in the matter of tithes, a prohibition in many cases lies to a suit in a 
 spiritual court for subtraction of tithe. 
 
 But it is sometimes difficult to determine, whether a prohibition does 
 or does not lie to such suit. 
 
 It is a rule of law, that questions concerning temporal matters are 
 only to be tried in temporal courts. 
 
 Fitz. N. B. 40 ; 2 Inst. 613 ; Cro. Eliz. 228 ; 2 Roll. Abr. 291. 
 
 But there is another rule of law, that ubi cognitio principalis est, ibi 
 debet esse cognitio aceessorii. 
 
 A desire of reconciling these two rules of law, together with the diffi- 
 culty of doing it, has been productive of determinations which are not 
 easily to be reconciled. 
 
 As some of these determinations are founded upon nice distinctions, 
 the law, concerning the awarding of a prohibition to a suit in a spiritual 
 court for substraction of tithe, will be much better collected from sub- 
 mitting the principal cases to the reader's judgment, than from any 
 general rules which can be laid down. 
 
 If payment be pleaded to a libel in a spiritual court for subtraction of 
 tithe, a prohibition does not lie ; because the question, whether there was 
 such payment, is such an incidental one as may be well tried in the 
 spiritual court. 
 
 Cro. Eliz. GOG, Mallory v. Mariot. 
 
 If to a libel in a spiritual court for subtraction of tithe of wood there 
 be a plea of gross wood, a prohibition does not lie ; for the question, 
 whether the wood of which the tithe is demanded be gross wood, may 
 be well tried in the spiritual court. 
 
 Ld. Raym. 835, Bike v. Brown. 
 
 If the validity of letters patent, or of a feoffment or release, come in 
 question in a suit in a spiritual court for subtraction of tithe, a prohibition
 
 80 TYTHES. 
 
 (Aa) Of Prohibitions to Suits in the Spiritual Court, 
 does not lie ; because the validity of either of these may be well tried 
 in the spiritual court. 
 
 Ld. Raym. 74, Chamberlain v. Hewitson. 
 
 If a suit be in a spiritual court for subtraction of tithe due by custom, 
 a prohibition does not lie; for tithe due by custom may as well be sued 
 for in a spiritual court as tithe which is due of common right. 
 
 Hob. 247 ; Latch, 125 ; 3 Lev. 103 ; Bunb. 8. 
 
 A suit may be in a spiritual court for that which is to be paid as a 
 modus : for as the tithe, in lieu of which it is to be paid, is so absolutely 
 discharged, that the parson cannot resort to the taking thereof in kind, 
 the modus becomes a spiritual fee, and, consequently, it is recoverable 
 in a spiritual court. 
 
 Hob. 42, 247 ; 1 Ventr. 274 ; Bunb. 8. 
 
 Nay, it is said in one case, that a suit for that Avhich is to be paid as 
 a modus can only be instituted in a spiritual court. 
 
 12 Mod. 41G, Johnson v. Ryson. 
 
 It was heretofore holden, that a prohibition would lie to a suit in a 
 spiritual court for subtraction of tithe, upon the bare suggestion of a cus- 
 tomary method of tithing, or of a modus ; although the customary method 
 of tithing, or the modus, had not been pleaded in the spiritual court. 
 
 2 Hep. 45, The Archbishop of Canterbury's case; Cro. Eliz. 511. 
 
 It has been since holden, that a prohibition does not lie in such case, 
 unless the cause suggested for obtaining the prohibition has been pleaded 
 in the spiritual court ; for that, as the court has a general jurisdiction in 
 the matter of tithes, the modus, by which it is to be deprived of that 
 jurisdiction, must be pleaded specially. 
 
 Lord Raym. 835 ; Dike v. Brown, Salk. 655. 
 
 But if a bill be filed in a court of equity to establish a modus, and it 
 appear that a suit is instituted in a spiritual court for subtraction of the 
 tithe, for which the modus is alleged to be a recompense, an injunction 
 is usually granted ; although the modus have not been pleaded. 
 
 Bunb. 176, Blackctt v. Finny. || But see Rotheram v. Fanshaw, 3 Atk. 628 ; 1 
 Eden, R. 276. || 
 
 If a customary method of setting out tithe, or a modus, be pleaded to 
 
 a suit in a spiritual court for subtraction of tithe, a prohibition does not 
 
 lie, unless the spiritual court have refused to admit the plea, or the truth 
 
 thereof be denied. 
 
 Bunb. 17, Offlcy v. Whitehall ; Hob. 247 ; 1 Ventr. 165, 274 ; 1 Sid. 283 ; Bunb. 8. 
 
 || However, in a subsequent case, a prohibition was granted on a mere 
 affidavit, that the defendant in the spiritual court had answered on oath 
 or pleaded a modus, though it did not appear that the modus was regu- 
 larly put in issue. 
 
 French v. Trask, 10 East, 348 ; and see per Baylcy, J., 5 Barn. & C. 22, and tit. 
 Prohibition, Vol. viii. p. 225. || 
 
 But if the customary method of setting out tithe, or the modus, which 
 is pleaded to a suit in a spiritual court for subtraction of tithe, appear 
 plainly to be bad, a prohibition docs not lie, although the truth of the plea 
 be denied ; for it would be quite nugatory to award a prohibition in order 
 to try the existence of a thing, which, if it do exist, is bad. 
 
 12 Mod. 200 ; Hill v. Vaux, Salk. 656.
 
 TYTHES. SI 
 
 (Aa) Of Prohibitions to Suits in the Spiritual Court. 
 
 It is in general true, that if the existence of a customary method of 
 
 setting out tithe, or the validity of a modus, come in question in a suit 
 
 in a spiritual court for subtraction of tithe, a prohibition lies ; because 
 
 the existence of the custom or the validity of the modus cannot be well 
 
 tried in such court. The reason is, that in some cases a usage of ten 
 
 years, in others a usage of twenty years, in others a usage of thirty years, 
 
 and in all a usage of forty years, does, by the ecclesiastical law, make a 
 
 custom ; whereas there cannot be a customary method of setting out tithe, 
 
 or a valid modus, unless the tithe has time immcmorially been set out in the 
 
 method prescribed for, or the modus has been paid time immemorially. 
 
 2 Inst. 643 ; Hob. 247 ; Latch, 48 ; Cro. Ja. 454; 1 Ventr. 274; 2 Lev. 103 ; Lord 
 Raym. 436 ; Bunb. 8, 17. 
 
 If, after a. prohibition have been awarded, issue he taken upon the 
 existence of a customary method of setting out tithe, or the validity of a 
 modus, which has been pleaded in the spiritual court, and the verdict in 
 prohibition be, that there is not such a customary method of setting out 
 tithe, or such a modus, a consultation ought to be awarded, inasmuch as 
 the reason of tying up the hands of the spiritual court does no longer exist. 
 Hob. 192, 247 ; Godb. 245 ; Cro. Car. 113 ; 2 Lev. 103 ; Hardr. 510. 
 
 But if the verdict in prohibition find the customary method of setting 
 out tithe, which has been pleaded in the spiritual court, to be good in 
 part, a consultation ought not to be awarded ; because, as the custom is 
 in part good, the suit ought not to proceed in the spiritual court. 
 
 Hob. 192, Berrie's case. 
 
 If one modus be suggested as a cause of prohibition, and a verdict in 
 prohibition find a different modus, a consultation ought not to be 
 awarded ; because the validity of the modus which is found, cannot be 
 weH tried in a spiritual court. 
 
 Cro. Eliz. 736 ; Austin v. Pigot, Hetl. 100. 
 
 If the bounds of a parish come in question in a suit in a spiritual 
 
 court for subtraction of tithe, a prohibition lies. 
 
 2 Roll. Abr. 282, E, pi. 3 ; 1 Ventr. 335 ; 1 Lev. 78 ; II Stainbank v. Bradshaw, 
 10 East, 349 ; 2 Eag. & Y. 568. || 
 
 But it is said, that although a spiritual court cannot try the bounds 
 of a parish, the bounds of a vill in a parish may be tried in such court. 
 
 1 Sid. 89 ; 1 Lev. 89. 
 
 And in one case it is laid down, that a spiritual court can try the 
 bounds of a vill in a parish. 
 
 2 Roll. Abr. 312, pi. 7, Ives v. Wright. || See Reeves v. Bould, 1 Keb. 945 ; 1 Ea#. 
 & Y. 447 ; Butler v. Yateman, 1 Keb. 354 ; 1 Eag. & Y. 437. Quccre, Whether there 
 is any sound distinction between the case of a vill and of a parish ?|| 
 
 But if the reason of the determination in this case, which is, that the 
 dispute was between two spiritual persons, be attended to, it by no means 
 follows, that the bounds of a vill in a parish can in general be tried in a 
 spiritual court. 
 
 If the right of carrying away tithe by a particular way come in ques- 
 tion in a suit in a spiritual court for subtraction of tithe, a prohibition 
 lies ; because a right of way generally depends upon usage. 
 
 1 Bulstr. 68, Anon. 
 
 Wherever a spiritual court tries a temporal matter, which is incidental 
 Vol. X.— 11
 
 82 TYTHES. 
 
 (Bb) Of Suits in Equity for Tithes. 
 
 to a question concerning subtraction of tithe, the temporal matter must 
 be tried according to the rules of the common law ; otherwise a prohibi- 
 tion lies. 
 
 Hob. 188 ; 1 Ventr. 291 ; 2 Lev. 64 ; Salk. 547 ; Ld. Rayra. 74. 
 
 If a party, who has pleaded payment to a suit in a spiritual court for 
 subtraction of tithe, offer to prove this by one witness, and the proof be 
 not admitted, a prohibition lies ; for, although two witnesses are necessary 
 by the ecclesiastical law in every case, the common law requires but one 
 in this case. 
 
 Cro. Eliz. GG6, Mallory v. Mariot. || See tit. Prohibition, (L), 5, and cases there 
 cited. || 
 
 But, if a spiritual court in such case admit proof by one witness to be 
 sufficient, that court is to judge by its own rules of the competency of 
 the person adduced as a witness. 
 
 Salk. 547, Shotter v. Friend. 
 
 It is laid down generally in some books, that a prohibition lies to a 
 suit in a spiritual court for subtraction of tithe after sentence. 
 Salk. 547 ; Ld. Raym. 835. 
 
 In other books it is laid down, that although a prohibition does lie after 
 sentence, in a case wherein the spiritual court had not jurisdiction in the 
 principal matter, none lies to a suit for the subtraction of tithe after sen- 
 tence ; because, as the spiritual court had jurisdiction in the principal 
 matter, the defect can only have been of jurisdiction to try some inci- 
 dental matter, in which case a prohibition does not lie after sentence. 
 
 Salk. 548 ; Bunb. 17. 
 
 || It is now settled, that the application for a prohibition to the spiritual 
 court, on the ground of a modus being pleaded, must be made before 
 sentence ; since such a prohibition is granted solely pro defectu triationis, 
 and not pro defectu jurisdictionis ; in which latter case only can a pro- 
 hibition be had after sentence. 
 
 Full v. Hatching, Cowp. 422 ; Darby v. Cousins, 1 Term R. 552 ; Stainbank v, 
 Bradshaw, 10 East, 349. || 
 
 But, if the sentence of a spiritual court be illegal, a special prohibi- 
 tion may be obtained to a suit in a spiritual court for subtraction of tithe 
 after sentence. 
 
 In a suit upon the 2 E. G, c. 13, for subtraction of a predial tithe, the 
 sentence of the spiritual court was, that the plaintiff, besides the double 
 value of the tithe and the costs of the suit, should likewise recover the 
 single value of the tithe by way of damages. As a spiritual court is not 
 empowered by that statute to give more than the double value of the 
 tithe and the costs of the suit, the sentence was holden to be illegal ; ; 
 and a special prohibition was awarded. 
 
 Godb. 124"), Baldwin v. Geery. || See Sandford v. Porter, 2 Chitt. R. 351 ; 3 Eag. 
 & Y. 1392.|| 
 
 || See, on the subject of prohibitions, Vol. viii. tit. " Prohibition. "|| 
 
 (Bb) Of a Suit in a Court of Equity for Subtraction of Tithe. 
 
 The courts of Chancery and Exchequer have both jurisdiction in the 
 case of subtraction of tithe.
 
 TYTHES. 83 
 
 (Bb) Of Suits in Equity for Tithes. 
 
 A bill in equity may be filed for subtraction of tithe, however small 
 the value of the tithe subtracted is. 
 
 Bunb. 28, Anon. ||See 4 Bro. P. C. 314; 2 Eag. & Y. 52; Gwill. 73G; 1 Wood, 
 441 ; 1 Eag. & Y. 660; Gwill. 549.|| 
 
 If a bill in equity be filed for subtraction of tithe belonging to a por- 
 tion of tithes, or of the tithes of a particular thing, every person entitled 
 to any tithe arising in the parish in which the tithe is claimed by the bill, 
 must be a party thereto ; because the right of every such person may be 
 affected by the decree. 
 
 Bunb. 115, Bailey v. Worrallj Bunb. 263. 
 
 A sequestrator cannot file a bill in equity for subtraction of tithe dur- 
 ing the vacancy of the benefice, without making the bishop of the diocese 
 a party ; because the sequestrator is accountable to the bishop for what 
 he receives. 
 
 Bunb. 192, Jones v. Barrett. 
 
 If a bill in equity be filed by a sequestrator, during the insanity of an 
 incumbent, for subtraction of tithe, the incumbent or his committee must 
 be a party to the bill ; otherwise, if the incumbent should recover his 
 senses, and file another bill for the same tithe, a recovery by the seques- 
 trator could not be pleaded in bar to the second bill. 
 
 Bunb. 141, The Bishop of London v. Nicholls. 
 
 If a rector or impropriator file a bill in equity, for subtraction of tithe 
 belonging to a rectory, it is sufficient to show a title to the rectory ; the 
 right of tithe being incident to the right of rectory. 
 Bunb. 225, Charlton v. Charlton. 
 
 But an impropriator must in such a bill show that either himself, or 
 the person under whom he claims, has an estate in fee in the rectory 
 Bunb. 115, Penny v. Hooper 
 
 It is not, however, necessary for an impropriator to derive his title in 
 such bill from the original grant of the rectory by the crown ; it being 
 sufficient to show that he is seised thereof in fee. 
 
 Bunb. 296, Leigh v. Maudesley. 
 
 || And it has been determined by the House of Lords, that a lay impro- 
 priator in possession of a rectory, and in perception of the tithes, has a 
 sufficient title to sustain a suit against occupiers for an account of tithes, 
 although the rectory is subject to mortgages, and the legal estate is in 
 trustees. 
 
 Glegg v. Legh, 1 Bligh, P. C. 302, new series; and see 4 Madd. 193, S. C.|| 
 
 If a vicar file a bill in equity for subtraction of tithe, he must show 
 himself entitled by endowment or augmentation to the title claimed ; be- 
 cause a vicar can have no right to tithe, except by endowment or aug- 
 mentation. 
 
 Cro. Eliz. 633 ; 2 Bulstr. 27 ; Bunb. 7, 72, 169. ||See on«.|| 
 
 It is not, however, necessary for a vicar to set out in such bill the deed 
 by which his vicarage Avas endowed or augmented with the tithe claimed ; 
 for if he can show, that he and his predecessors have constantly received 
 the tithe, it shall be intended that the vicarage has been endowed or aug- 
 mented therewith. 
 
 2 Bulstr. 27 ; 2 Keb. 729 ; Ilardr. 329 ; Bunb. 7, 169.
 
 84 TYTHES. 
 
 (Bb) Of Suits in Equity for Tithes. 
 
 If a bill be filed for subtraction of tithe belonging to a portion of tithes, 
 the plaintiff must not only show a title to the tithe claimed, but he must 
 likewise shoAV a receipt of the tithe by himself and those under whom he 
 claims. 
 
 Bunb. 325, Charlton v. Charlton; Bunb. 262, ||See Crayhorne v. Taylor, 2 Bro. 
 P. Ca. 517 ; Gwill. G50 ; Lowther v. Bolton, Gwill. 1120 ; 3 Eag. & Y. 1271. || 
 
 If the defendant, in his answer to a bill in equity for subtraction of 
 tithe, admit the plaintiff's title to the tithe claimed, and only insist upon 
 being discharged of the tithe, or of the payment thereof, the want of 
 having set out a title in the bill is thereby cured. 
 Bunb. 72, Pye v. Rea ; Hardr. 130. 
 
 If a bill in equity be filed for subtraction of a predial tithe, without 
 waiving the penalty of the treble value given by the statute, a demurrer 
 lies ; for a court of equity will never compel a defendant to discover any 
 thing, by the discovery of which he may become liable to a penalty. 
 
 1 Vera. GO, Anon. ; Hardr. 137, 190. 
 
 But, if the plaintiff* in such bill only pray relief as to the single value 
 of the tithe subtracted, it is not necessary to waive the penalty. 
 
 Bunb. 193, The Attorney-General v. Vincent; || Wools v. Wallev, 1 Anstr. 100; 
 Gwill. 1383.|| 
 
 || And if an executor file a bill for tithes, although he do not offer to 
 accept the single value, it is sufficient ; for an executor not being entitled 
 to the penalty, he is not obliged to waive it. 
 
 Anon., Gwill. 532. || 
 
 A bill in equity having been filed for subtraction of tithe, the de' 
 ant stood out till a sequestration was granted, and the bill was of • 
 taken fro eonfesso. The defendant afterwards moved for a rule, i. 
 upon paying costs the value of the tithe might be ascertained by the tax- 
 ation of the master, or by the oath of the plaintiff. This was refused: 
 but a rule was made for the plaintiff to show cause why he should not 
 consent to make oath of what value the tithe was. 
 
 Bunb. 2G, Baily v. Peasly. 
 
 If a tender were made before the bill in equity for subtraction of tithe 
 was filed, and a tender be again made by the answer, the defendant is 
 not liable to costs. 
 
 Bunb. 28. Anon. 
 
 But, if the defendant did not make a tender before the bill was filed, he 
 must, notwithstanding he make a tender by his answer, account for the 
 tithe, and pay costs, how small soever the value of the tithe subtracted is. 
 
 Bunb. 28, Anon. 
 
 If a bill be filed in the Court of Exchequer for subtraction of tithe, 
 and the defendant plead, that a modus for the tithe thereby claimed has, 
 after directing an issue, been established by a decree of the Court of 
 Chancery, the plea is good in bar to the bill in the Court of Exchequer. 
 
 Bunb. 211, Geale v. Wintour. 
 
 A plea of non-residence is good in bar to a bill in equity, brought by 
 a rector or vicar for subtraction of tithe. 
 
 Bun!). 211, Geale v. Wintour; ||Quilter v. Mussendine, Gilb. Exch. R. 228. || 
 
 But it must be shown that the non-residence was before the time in 
 which the tithe claimed by the bill became due. 
 Bunb. 211, Geale v. Wintour. 

 
 TYTHES 85 
 
 (Bb) Of Suits in Equity for Tithes. 
 
 The statute of limitations cannot be pleaded in bar to a bill in equity 
 for subtraction of tithe; because the defendant is considered as a bailiff 
 or receiver of the plaintiff, and that statute does not extend to demands 
 upon such persons. 
 
 Bunb. 213, Marston v. Cleypole. || See Meade v. Norbury, 2 Price, 338 ; 3 Eag. & 
 Y. 74G ; Carysfort v. Wells, M'Clel. & Yo. 636.|| 
 
 || But by the 53 Geo. 3, c. 127, §5, it is enacted, that no action shall 
 be brought for the not setting out tithes, nor any suit instituted in any 
 court of equity, or in any ecclesiastical court, to recover the value of any 
 tithes, unless such action shall be brought, or such suit commenced, -within 
 six years from the time when such tithes became due.)! 
 
 If a bill in equity be filed for subtraction of tithe due of common right, 
 the defendant cannot avail himself of a discharge of the tithe, or of the 
 payment thereof, unless the discharge be specially pleaded. 
 
 Bunb. 61, Jordan v. Colley. 
 
 A discharge of the tithe of one thing, or of the payment thereof, may 
 be insisted upon, in an answer to a bill in equity for subtraction of tithes 
 of divers things. 
 
 Bunb. 297, Leigh v. Maudsley. 
 
 But if the defendant, in his answer, insist upon a discharge of all 
 tithes, or of the payment thereof, and prove only a discharge of some 
 tithes, or of the payment thereof, he cannot derive any benefit from the 
 discharge proved. 
 
 Bunb. 297, Leigh v, Maudsley. 
 
 Divers moduses for the tithes of divers things may be insisted upon in 
 an answer to a bill in equity for subtraction of tithes : but they must be 
 pleaded severally ; for one modus cannot be pleaded distributively for 
 the tithes of divers things. 
 
 Bunb. 80, Tarton v. Clayton. 
 
 If a modus be insisted upon, in an answer to a bill in equity for sub- 
 traction of tithe, the day upon which it is to be paid ought to be set out. 
 
 And in three modern cases the moduses were disallowed ; because the 
 days of paying them were not set out in the respective answers. 
 
 Bunb. 105, Goddard v. Keeble, Pasch. 8 G. 1 ; Pemberton v. Sparrow, Trin. 8 G. 
 1 ; Eloy v. Prior, Hil. 10 G. 1. 
 
 But in another modern case, wherein a modus, the day of paying 
 which was not set out, had upon an issue directed been found for the 
 | defendant, it was holden, that the defect of having set this out was cured 
 I by the verdict ; and the modus was established. 
 Bunb. 280, Woolferston v. Manwaring, Hil. 3 G. 2. 
 
 In a still later case, the following distinction was taken by Reynolds, C. 
 
 B., namely, that the want of having set out the day upon which a modus 
 
 is to be paid, in an answer to a bill in equity for subtraction of tithes, 
 
 may be so supplied by evidence as to be a foundation for the court to 
 
 : direct an issue to try whether there be the modus, with liberty to endorse 
 
 i the day of payment upon the posted ; but that if a bill in equity be brought 
 
 I to establish a modus, the day of paying it must be expressly set out. (a) 
 
 Bunb. 328, Gibb v. Goodman, Trin. 7 G. 2. || (a) It seems clear that greater cer- 
 tainty is required in the statement of a modus in a bill than in an answer ; but it seems 
 '■that in either case it is sufficient to state the modus to be payable on or about a particu- 
 • lar day. Richards v. Evans, 1 Ves. 30 ; Gwill. 802 ; Baker v. Athill, 2 Anst. 491 ; 
 
 H
 
 86 TYTHES. 
 
 (Bb) Of Suits in Equity for Tithes. 
 
 Gwill. 1422; Atkins v. Hatton, 4 Wood. 410; Atkins v. Lord Willoughby, 4 Wood, 
 410 ; Cart v. Hodgkin, 3 Swanst. 100 ; Gwill. 814. But some time of payment ought 
 to be specified. Roberta v. Williams, 12 East, 33 ; and see Scott v. Carter, 1 Younge 
 & J. 452. The court will establish a modus, though proved to be payable on a day 
 different from that alleged in the bill. Anderdon v. Davies, Gwill. 12G8; sed vide con- 
 tra, Goodwin v. Wortley, 2 Wood, 331 ; Gwill. 715. || 
 
 It was holden in one case, that it is incumbent upon the plaintiff to 
 prove the quantity and value of the tithe claimed by a bill in equity for 
 subtraction of tithe. 
 
 Hardr. 4, The Attorney-General v. Straite. 
 
 But the authority of this case has been often denied ; and it is now con- 
 stantly holden, that the defendant must in all cases,(a) even where a modus 
 is pleaded, set out, in his answer to a bill in equity for subtraction of tithe, 
 the quantity and value of the tithe claimed by the bill ; because it fre- 
 quently happens that no person except himself knows these things. 
 
 Bunb. GO, Gumley v. Fontleroy. || (a) Not, however, in cases where the plea abso- 
 lutely denies the plaintiff's title, (which a modus does not;) as where the defendant 
 pleads non-residence of the incumbent as a bar under the 13 Eliz. c. 20 ; Mills v. Eth- 
 eridge, Bunb. 210 ; Eag. & Y. 806 ; Quilter v. Mussendin, Gilb. Eq. R. 228 ; Gwill. 
 667.|| 
 
 It was not heretofore the practice of the Court of Exchequer to decree, 
 that the defendant should account for tithe which became due after the 
 filing of the bill fur subtraction of tithe. 
 
 2 P. Wms. 403, Carleton v. Brightwell. 
 
 But the practice, at that time, of the Court of Chancery, was to de- 
 cree that an account should be taken of all tithes due at the time of 
 making the decree. 
 
 2 P. Wms. 4G3, Carleton v. Brightwell. [So, Abp. of York v. Stapelton, 2 Atk. 
 13G ; Bell v. Read, 3 Atk. 592.] 
 
 And it was said in a case in the Court of King's Bench, by Lord 
 Mansfield, C. J., that the practice of the Court of Exchequer is at this 
 day the same as that of the Court of Chancery. 
 
 MS. Rep. Robinson v. Bland, Mich. 1 G. 3. ||In the Exchequer, the decree is, to 
 account for tithes due to the filing of the bill : in the Court of Chancery, to the time 
 of the Master's report. 2 Atk. 136 ; Gwill. 773 ; 3 Atk. 590 ; Gwill. 804 ; 2 P. Will. 
 4G2; Gwill. 670. || 
 
 The right of a court of equity to decree an account and payment of 
 tithes, at the suit of a person claiming such tithes, must be grounded on a 
 clear, unquestionable, legal right of tithes in the plaintiff, or in some person 
 in trust for him ; the right to the account being merelg consequential in the 
 legal rigid to the tithes. The courts of equity, therefore, have constantly 
 made a distinction between those cases in which the title of the plaintiff to 
 the tithes claimed is not generally disputed, but it is objected only that the 
 lands from which they are claimed are exempt or discharged from pay- 
 ment of tithes ; or, that the tithes claimed arc not payable in kind, but are 
 to be satisfied in some other manner, as by a payment of a modus or com- 
 position real : and these cases, in which the title to the tithe claimed is 
 denied to the plaintiff, and a title is set up in another person. In the first 
 description of cases, the defendant claiming the benefit of an exemption or 
 discharge, or of a modus, or real composition, acknowledges the original 
 title of the plaintiff, as alleged by him, but qualifies that title, cither by an 
 absolute discharge from payment of the tithes demanded, or by a right to 
 satisfy that demand, otherwise than by payment of the tithes in kind. In
 
 TYTHES. 87 
 
 (Bb) Of Suits in Equity for Tithes. 
 
 the second description of cases, the existence of that title to the tithes in 
 question is absolutely and totally denied, and it is objected, that the title 
 is in some other person : and in these cases, if the person in whom the title 
 is thus stated has had the pernancy of the tithes claimed, the bill is in effect 
 an ejectment bill; and where the legal title of the plaintiff is disputed on 
 bills, which may be properly called ejeetment bills, it is not the ordinary 
 practice of courts of equity to make any decree whatever, except for the 
 purpose of assisting the trial at Jaw, where such assistance may be neces- 
 sary. Thus, where a bill was filed by Dr. Scott, as rector of Simonburne, 
 claiming tithes of corn and hay against the defendants, several of whom 
 were occupiers of lands within the parish, and the Aireys were owners of 
 part of the lands, and claimed the tithes of corn and hay of their own lands, 
 and of those occupied by the other defendants ; and it appeared that the 
 Aireys, and those under whom they claimed, had received the tithes in 
 question, and made them the subject of settlement for above 160 years, 
 although they could show no original lawful title to such tithes ; the Court 
 of Exchequer dismissed the bill, refusing to give the rector any relief, 
 until he had established his title to the tithes at law. And in Edwards v. 
 Lord Vernon, Hil. 21 G. 3, where, to a bill by the spiritual rector, the 
 defence set up was, a title to the tithes under family settlements, and pos- 
 i session for seventy-one years, the Court of Exchequer followed the 
 authority of Scott v. Airey, and dismissed the bill with costs. 
 
 Sop the argument for the appellant in the ease of Barnard v. Gannons, Dom. Proc. 
 •June 3, 1797 : Scott v. Airey, Tr. 19 G. 3 ; ||6wiU. 1174 ; 2 Eag. & Y. 342.|| See 
 also Strutt v. Baker, 2 Ves. J. 625 ; ||Gwill. 1430.|j 
 
 In a subsequent case, where Sir Joseph Mawbey claimed, as impropriate 
 rector, tithes of land, of which some of the defendants also claimed the 
 tithes ; it was objected that the plaintiff's title was a legal title, and that 
 he must first demand the tithes at law. The Court of Exchequer said it 
 was a question of title, the evidence of possession was doubtful, and a 
 court of equity would therefore not make any decree till the right had been 
 settled at law, the account prayed being merely consequential to the right, 
 and the proper tribunal for the trial of right, if the possession was equivo- 
 cal, and for construction of deeds under which parties claimed, was a 
 court of law; and although the counsel for the plaintiff pressed to have 
 an issue directed, in order to have the right tried at law, with the assist- 
 ance of the court, the court refused it, and dismissed the bill. 
 
 Mawbey v. Edmead, Hil. 24 G. 3 ; ||Gwill. 1205 ; 3 Eag. & Y. 132G.|| 
 
 To a claim by a vicar of the tithe of hay under an endowment, the de- 
 fendants, the terre-tenants, set up a payment to the vicar in lieu of such 
 tithe. This was holden by the Court of Exchequer to be a bad modus, 
 and they thereupon gave judgment for an account of tithes, considering 
 the vicar's claim as established by the payments. But upon a writ of 
 error the House of Lords directed an issue to try the nature of the pay- 
 ments, Lord Mansfield declaring his opinion that on a vicar's title being 
 disputed, unless it is perfectly clear, a court of equity ought not to make 
 a decree without having the fact ascertained by a jury. 
 
 Travis v. Oxton, Anstr. o08 ; 2 Raym. 762. 
 
 "Where a vicar sued for all small tithes under an endowment, which he 
 produced, and also gave in evidence a decree in the Exchequer for an 
 account of all small tithes in a suit by his predecessor, in the reign of 
 Charles the First, yet as the endowment was not supported by usage, &c,
 
 88 TYTHES. I 
 
 (Bb) Of Suits in Equity for Tithes, 
 the decree was not binding, the patron not being a party, and as it bad 
 never been acted under, the Court of Exchequer thought the case not so 
 clear as to warrant a decree in favour of the vicar, and directed an issue 
 to try whether he was entitled under the endowment or not ; and that 
 decision was affirmed in the House of Lords. 
 
 Can- v. Henton, Anstr. 313 ; ||Gwill. 1258 ; 7 Bro. P. Ca. 140 ; 3 Eag. & Y. 1320 ;|| 
 March 5, 1788. 
 
 The account being consequential to the legal title, and a rector having 
 primd facie the title to all the tithes in him, it should seem to follow that, 
 in questions between the rector and vicar, a court of equity cannot make a 
 decree in derogation of the rector's title, merely as consequential to the 
 legal title of the vicar, until that title has been established by the decision 
 of & a jury, unless it be most clearly and satisfactorily made out. Perhaps 
 it may be questioned whether a court of equity can decide between rector 
 and vicar, that the former has no title, however clear the proofs may be 
 against it, without the intervention of a jury, if the rector insist upon 
 referring it to that tribunal, any more than they can make a decree without 
 reference to a jury, where the rector demands such a reference, in a ques- 
 tion of modus between the rector and the owner or occupier of the land. 
 For the primd facie title which gives the rector a right to the discussion 
 of the question in a court of law in one case, should seem to give him the 
 like right in the other case. A vicar should appear to be as much bound 
 to make out his title against that of his rector by pleading and by evi- 
 dence, as an occupier is to make out his exemption or qualification : they 
 both alike claim in derogation of a common law right. 
 
 See the case Garnons v. Barnard, Anstr. 29G,and printed case in the House of Lords, 
 June 3, 1797 ; Bantley v. Walters, 1 Wils. 170. ||it is now settled, that in questions 
 between the rector and vicar, though the rector is the party suing, he is not entitled, 
 as a matter of right, to an issue. The court will dismiss his bill at once, if the vicar 
 makes out a clear case under his endowment, or by evidence of perception sufficient 
 to found a presumption of an endowment. Dorman v. Curry, 4 Price, 109 ; Gwill. 
 1822; 1 Wils. E. R. 46; and see AVilliams v. Price, 4 Price, 156; Gwill. 1827; 
 Parsons v. Bellamy, 4 Price, 190 ; Gwill. 1829. It seems that a vicar is not entitled 
 to an issue as of course. Patch v. Dalton, 6 Price, 232 ; Gwill. 1938. || 
 
 It has, indeed, been urged, that a decree in favour of the vicar for an 
 account does not bind the right, and therefore it is not necessary for the 
 court to direct an issue. But it may be very much doubted, whether such 
 a decree would not in effect bind the right : for the distinction which has 
 been set up between decrees binding the right, and decrees not binding 
 the right, has been confined to a very different case ; namely, where a de- 
 fendant sets up a defence by way of modus to a bill for tithes, which prays 
 an establishment of the right, as well as an account ; and the defendant 
 in his answer has made some mistake in laying the modus, so that the 
 cunt cannot upon those pleadings direct an issue. There, the court, un- 
 able to direct an issue, for want of sufficient matter on the record, has 
 made a decree for an account only, to give the defendant an opportunity 
 of trying his title upon a future suit. And most clearly such a decree 
 cannot be pleaded in bar to a bill for establishing the modus. But if the 
 decree for an account does not in general bind the right, then this absurdity 
 might follow, that the court might from time to time make similar de- 
 crees, without directing any issue to try the fact of title, upon the allega- 
 tion that no one of such decrees actually binds the right. 
 
 Collins v. Gough, Dom. Proc. 16 Feb. 1785.
 
 TYTHES. S9 
 
 (Bb) Of suits in Equity for Tithes. 
 
 || A court of equity may, in general, decide conclusively in the first in- 
 stance, in tithe-suits, as well as others, without directing an issue. The 
 direction of an issue is discretionary, in order to inform the conscience 
 of the court. 
 
 Bullon v. Michel, 2 Price, 399 ; and see Ilawtrey v. Daniel, 7 Bro. P. C. 21 ; Short 
 v. Lee, 2 Jac. & W. 4G4 ; Gwill. 1998; Fisher v. Lord Graves, 1 M'Clel. & Y. 302; 
 3 Lag. & Y. 1180; Sanders v. Longden, 4 Price, 117 ; Gwill. 1824. 
 
 Where the effect of certain ancient documents was such as to create an 
 equivocal case, the court directed an issue, in order that more satisfactory 
 information might be furnished than could be obtained from depositions 
 on paper. 
 
 Leathes v. Newitt, 4 Price, 355 ; 8 Price, 5G2. 
 
 So, where the case depended on inference to be drawn from a com- 
 parison of conflicting testimony, the court would not draw the inference 
 without reference to a jury. 
 
 Taylor v. Cook, 8 Price, G50 ; Stokes v. Edmeads, 1 M'Clel. & Youn. 43G. 
 
 It is equally in the discretion of the court to grant or refuse a new 
 trial ; and it may order evidence to be received, though not strictly admis- 
 sible, on a trial at law ; and it will send the issue down as often as the result 
 is unsatisfactory; and it will not grant a new trial, merely on the ground 
 that evidence not strictly admissible has been received, if, independently 
 of such evidence, the court is satisfied with the verdict ; nor on the 
 ground of the rejection of admissible evidence, if, taking such evidence 
 into consideration, it is satisfied the verdict ought still to stand. 
 
 Bowsher v. Morgan, 2 Anst. 404 ; Potts v. Durant, 3 Ibid. 797 ; Barnard v. Gar- 
 nons, 7 Bro. P. C. 105 ; Foxcraft v. Paris, 5 Yes. 221 ; Sanders v. Longden, 4 Price, 
 117 ; White v. Lisle, 4 Madd. 214. 
 
 "Where the rector sues as plaintiff, he is in general entitled to an issue 
 as matter of right, but not where he is defendant ; and where the plain- 
 tiff's claim as rector is defeated, by the defendant's clearly proving him- 
 self entitled to the rectorial tithes, there the plaintiff is not entitled to 
 an issue : he is only entitled of right to an issue where the defence 
 amounts to a recognition of his primd facie right as rector. 
 
 Williams v. Price, 4 Price, 1G0 ; Cockburn v. Hughes, 3 Price. 430 ; Wilmot v. 
 Hellabv, 5 Price, 355 ; Gwill. 1874; and see Barker v. Barker, Wightw. 398; Gwill. 
 1695 ; Strutt v. Baker, 4 Gwill. 1430; 2 Yes. J. G25.|| 
 
 A suit may be maintained in a court of equity for an account of tithes 
 in London, notwithstanding the statute and decree of 87 II. 8, c. 12 ; for 
 an act of parliament creating a special jurisdiction never ousts the juris- 
 diction of the courts of Westminster Hall. Nor is it true, that if a 
 statute creates a new right, one cannot go beyond it : for if a statute 
 creates a new right, it creates a new duty: if the performance of that 
 duty requires the interference of a court of equity, the execution of the 
 statute must of course be with the necessary circumstances. 
 
 Canons of St. Paul's v. Crickctt, 2 Yes. J. 563 ; ||Gwill. 1425 ; 2 Eag. & Y. 417. 
 As to the question, whether the decree under the statute 37 H. 8, c. 12, must now be 
 presumed to be enrolled, see Owen v. Nodin, M'Clel. 239; 3 Eag. & Y. 1149; 
 M'Dougall v. Young, 2 Carr. & Pa. Ca. 278 ; M'Dougall v. Purrier, 2 Eag. on Tithes, 
 458 ; and Tyrwhitt's Argument on the non-enrolment of the decree, &c. (1823), and 
 ante.\\ 
 
 Vol. X.— 12 11 2
 
 90 TYTHES. 
 
 (Cc) Of a Suit in a Court of Equity to establish a Modus, or a customary Manner of 
 
 setting out Tithes. 
 
 It was formerly doubted, whether a bill could be filed in a court of 
 equity to establish a modus by prescription, or a customary manner of 
 setting out tithes ; and such bills have frequently been dismissed. 
 
 1 Vera. 185 ; Nels. Ch. R. 10 ; 1 Chan. Ca. 187. 
 
 But it is now the practice of courts of equity to retain such bill, which 
 is in reality no more than a bill to perpetuate the testimony of witnesses 
 as to the modus or customary manner of setting out tithes. 
 
 1 Vera. 485 ; 1 Eq. Ca. Abr. 3G7 ; 2 P. Wms. 505. 
 
 If a bill in equity be filed against the lessee of a rector, vicar, or im- 
 propriator, to establish a modus, the rector, vicar, or impropriator must 
 be a party ; for a court of equity will never bind the right of any person, 
 without giving him an opportunity of being heard. 
 
 Bunb. 70, Glanville v. Trelawney; ||Gwill. 022; 1 Eag. & Y. 753.|| 
 
 The day on which the modus is to be paid must be expressly set out 
 in a bill in equity to establish a modus. 
 
 Bunb. 328, Gibb v. Goodman. ||But it seems sufficient to state it on or about a par- 
 ticular day. Richards v. Evans, 1 Ves. 30; Gwill. 802 ; Baker v. Athill, 2 Anst, 491 ; 
 Gwill. 1422; Atkins v. Ilatton, 4 Wood, 410; Atkins v. Willoughby, 4 Wood, 410; 
 and see ant£.\\ 
 
 But, if the setting out of the day of payment be omitted in a bill to 
 establish a modus, the court will give the plaintiff leave to amend his 
 bill, upon paying the costs of the day. 
 
 Bunb. 199, Blackett v. Finny. 
 
 A court of equity never establishes a modus, or a customary manner 
 of setting out tithe, until the validity thereof has been tried at law ; in case 
 a party, whose right may be thereby affected, desire to have it so tried. 
 
 Sel. Ca. in Chan. 53, Webber v. Taylor; ||Gwill. G5G ; 1 Eag. & Y. 802; Robinson 
 v. liarroby, Gwill. 1173 ; 3 Eag. & Y. 1283 ; Markham v. Huxley, Gwill. 1499.|| 
 
 If a bill in equity be filed to establish a modus, and the modus be not 
 proved in the manner it is set out in the bill ; yet, if the defendant admit 
 that there is a modus, and the difference betwixt him and the plaintiff 
 be only as to the extent of the modus, the court will direct an issue at 
 law to try how far it does extend, with liberty to endorse the posted as it 
 may be necessary. 
 
 Bunb. 340, Laithes v. Christian. ||See Provost v. Bennett, 2 Price, 272: Gwill. 
 723 • 3 Ea»\ & Y. 720; Williams v. Williams, Gwill. 1165 ; 3 Eag. & Y. 1270; Ben- 
 nett v. Read, Gwill. 1291 ; 3 Eag. & Y. I338.|| 
 
 || A bill to establish a modus cannot be brought on a simple demand of 
 tithes being made by the parson, without any suit for enforcing payment. 
 
 Coventry v. Burslem, 2 Anstr. 567, n.; Gordon v. Simkinson, 11 Yes. 509; De 
 Whelpdale v. Milburn, 5 Price, 483; Hales v. Pomfret, Dan. 141; Gwill. 1884. 
 
 But if an action is brought by the lessee of tithes for subtraction, it is 
 a sufficient ground for such a bill. 
 
 Stawell v. Atkyns, Anstr. 564; Gwill. 1434 : and see Wollaston v. Wright, 3 Anstr. 
 sol. 
 
 The patron and ordinary are necessary parties to such a bill; and 
 therefore the defendant, in a suit in equity for tithes, cannot set up mo- 
 duses, as established by a previous decree, to which the patron and 
 ordinary were not parties. 
 
 Jenkinson v. Royston,5 Price, 495 ; and see Cook v. Butt, 6 Madd. 55 ; Gwill. 2029. ||
 
 TYTHES. 91 
 
 (DJ) Action on the Statute for Subtraction of Tithes. 
 
 A bill to establish a farm modus, sotting foitli the abuttals of the farm, 
 
 and averring that the modus had immemorial Iy been paid for the said 
 
 farm, is sufficient, without expressly averring it to be an ancient farm. 
 
 Lord Stawell v. Atkyns, Anstr. 564; ||GwiIl. 1434: 2 Eag. & You. 410 ; and see 
 Scan- v. Trinity College, 3 Anstr. 7G0 : Gwill. L445 ; 2 Eag. & Yuu. 429.|| 
 
 But a bill to establish a modus for every ancient farm, stating the 
 whole parish to consist of ancient farms, but not setting forth the abuttals 
 of each, is bad. 
 
 Scott v. Allgood, Anstr. 1G ; |Gwill. 1369 ; 3 Eag. & You. 1372. In this case the 
 modus was stated in the same terms in the answer to the original bill for tithes ; and 
 it was held well pleaded in the answer but ill in the bill to establish the modus ; this 
 being an application for the extraordinary assistance of the court. || 
 
 (Dd) Of an Action upon the Statute against Subtraction of Tithes. 
 
 An action lay at the common law for tenths ; because a layman was at 
 all times capable of having tenths. 
 
 lire. Dism. pi. 1, pi. 5, pi. G ; Cro. Eliz. 599, 7G3. 
 
 An action also lay at the common law against the person carrying 
 away tithe which had been legally severed ; for by the severance it be- 
 came a lay-chattel. 
 
 Bro. Dism. pi. G ; Cro. Eliz. G07 ; Latch. 8 : 3 Bulstr. 337. 
 
 But no action lay at the common law for subtraction of tithe; the 
 remedy being only in the spiritual courts. 
 Bro. Dism. pi. 1, pi. 5, pi. G, pi. 10 ; 2 Rep. 44; Yaugh. 195. 
 
 Coke, C. J., was of opinion, that a power is given by the 82 IT. 8, c. 
 7, to sue for subtraction of tithe in the temporal courts. 
 2 Inst. 141. 
 
 But this is denied by Vaughan, C. J. : and it appears, upon looking 
 into this statute, that the. power given to sue for tithe in a temporal court 
 is only a power to sue for an estate in tithe. 
 
 Yaugh. 195, Holden v. Smallbrooke. 
 
 Nay, so far from giving a power to sue in temporal courts for subtrac- 
 tion of tithe, it is by § 8, of this statute, expressly provided, " That it 
 shall not extend to give any remedy, cause of action, or suit, in the 
 temporal courts, against any person who shall refuse to set out his tithes, 
 or who shall detain, withhold, or refuse to pay his tithes," 
 
 By the 2 & 3 Ed. 6, c. 13, § 1, it is enacted, " That every of the king's 
 subjects shall from henceforth truly and justly, without fraud or guile, 
 divide, set out, yield, and pay all manner of predial tithes in their proper 
 kind, as they rise and happen, in such manner and form as hath been of 
 right yielded and paid within forty years next before the making of this 
 act,(«) or of right or custom ought to have been yielded or paid : and that 
 no person shall from henceforth take and carry away any such tithes, which 
 have been yielded or paid within forty years, or of right ought to have 
 been yielded or paid in the place or places tithable of the same, before he 
 hath justly divided or set forth for the tithe thereof the tenth part of the 
 same, or otherwise agreed for the same tithe with the parson, vicar, or 
 other owner, proprietor, or farmer of the same tithes ; under the pain 
 of forfeiture of the treble value of the tithes so taken or carried away." 
 
 [(a) Where the declaration stated, that tithes were within forty years next before 
 the statute of right yielded, and payable, and yielded and paid, evidence that the land
 
 92 TYTHES. 
 
 (Dd) Action on the Statute for Subtraction of Tithes. 
 
 had always been remembered to be in pasture, and had never within memory paid 
 any tithe, was not thought sufficient to defeat the action. Mitchell v. Walker, 5 Term 
 B,. 260. Secies, where there was no evidence of any payment of tithe, and the de- 
 claration only stated that tithe had been yielded and paid forty years before the statute. 
 Lord Manslield v. Clarke, Ibid. 264. || A declaration on the statute omitting to allege 
 that the tithes have been of right yielded and payable, and yielded and paid within 
 forty years before the passing of the statutes, is defective, and not cured by verdict. 
 Butt v. Howard, 4 Barn. & A. 655. || 
 
 || Where the plaintiff alleges in a declaration on the statute, that a par- 
 ticular species of tithes was granted, yielded and paid, and of right due 
 and payable, on the land forty years before the making of the statute, 
 he is not bound to prove that the particular article was cultivated there 
 at that time, but it is for the defendant to prove the contrary ; and, in 
 the absence of such proof, the court will not presume that they were not 
 cultivated, although the articles are such as are generally considered to 
 be of subsequent introduction into this country. 
 
 Hallewell v. Trappes, 2 New Rep. 173. 
 
 By the fourth section of the above statute, 2 & 3 Edw. 6, c. 13, § 4, it 
 is provided and enacted, that no person shall be sued or compelled to 
 yield, give, or pay any manner of tithes for any manors, lands, tene- 
 ments, or hereditaments, which by the laws of the realm, or by privilege 
 or prescription, are not chargeable with the payment of any such tithes, 
 or that be discharged by any composition real. 
 
 A prescription or modus must be good in laiv, as well as established in 
 fact, in order to exempt lands from tithe within this section ; the validity 
 of it may be tried in an action for treble value on this statute, and unless 
 Borne certain and good modus is established, the rector cannot be ousted 
 of his common law right; proof of varying modes of payment, in lieu 
 of tithes, is not sufficient for that purpose ; and the rector may recover 
 on his common law right, even although he himself tries to establish a 
 customary mode of tithing, and fails in the proof of it. 
 
 Phillips v. Davies, 8 East, R. 178; Blundell v. Mawdesley, 15 East, 641. || 
 
 An information qui tarn does not lie for the forfeiture given by this 
 statute ; because no part of the forfeiture is given to the king. 
 
 2 Inst. 650; 8 Hep. 119; Cro. Eliz. 621. 
 
 But it is said that an information qui tarn may be upon this statute, if 
 the forfeiture be waived ; for that the king would then be entitled to a fine. 
 
 Hetl. 121, Luvered v. Owen ; ||1 Eag. & Y. 368.|| 
 
 Although the penalty given by the 2 & 3 E. 6, c. 13, be not a certain 
 sum of money, it has been holden that an action of debt lies upon the 
 
 statute. 
 Cro. Eliz. 021, Johns v. Came. 
 
 ]| The statute is considered remedial rather than penal ; and, there- 
 fore, the courts will grant a new trial in an action upon it, if the verdict 
 be against evidence. 
 
 Lord Selsca v. Powell, 6 Taunt. 297.|| 
 
 If the owner of corn, before the corn is severed, grant it to a stranger, 
 •with an intent to defraud the parson of his tithe, this is such fraud and 
 guile, that an action upon the statute will lie against the first owner of 
 the corn. 
 
 2 Bulstr. 184, Moyle v. Ewer ; 2 Inet. 649.
 
 TYTHES. 93 
 
 (Dd) Action on the Statute for Subtraction of Tithes. 
 
 If a man, who has fairly set out his tithe, do in a short time after carry 
 away the same, this is fraud and guile within the meaning of the statute. 
 
 2 Inst, 649. 
 
 In an action of debt upon the statute, the plaintiff declared for the sub- 
 traction of mixed tithes, as well as predial ones, and had a verdict as to 
 the whole. It was insisted, that an action does not lie upon the statute 
 for the subtraction of any tithes except predial ones; and the judgment 
 was arrested. 
 
 Brownl. 65, Pain v. Nicols. 
 
 || The action only lies for such predial tithes as are capable of being 
 set out, and therefore not for the subtraction of agistment tithe. 
 
 Scarr v. Trinity College, Camb., 3 Anst. 760 ; Gwffl. 1445 ; 2 Eag. & Yo. 429. || 
 
 An action is not by the express words of the statute given to a farmer 
 of tithes. 
 
 But it has been holden, that as every farmer of tithes has a right to 
 the tithes, the remedy given by the statute ought to be extended by 
 equity to every such farmer. 
 
 Moor. 915 ; Day v. Peckwell, Cro. Ja. 70 ; ||Gwill. 221 ; 1 Eag. & Y. 154 ; Wy 
 burd v. Tuck, 1 Bos. & Pul. 458. || 
 
 An executor may bring an action upon the statute for subtraction of 
 tithe due to his testator ; this case being within the equity of the 4 E. 3, 
 c. 7, by which an action is given to an executor for the goods of his tes- 
 tator, which were carried away during the life of his testator. 
 
 1 Yentr. 30 ; Moreton's case, Sid. 407 ; 1 Yern. 60 ; ||G\vill. 1578 ; 1 Eag. & Y. 
 480.|| 
 
 || But an executor cannot recover the penalty of treble value. 
 Anon., 1 Yern. 60; Gwill. 532; 1 Eag. & Y. 540.|| * 
 
 An action does not lie upon the statute against an executor ; for the 
 treble value thereby given is by way of punishment for the personal 
 wrong ; and an executor is not answerable for a personal wrong done by 
 his testator. 
 
 Sid. 181 ; Weekes v. Trussel, Sid. 407. 
 
 In an action upon the statute against Hancock and two others, the 
 defendants all joined in the plea of nil debent. The verdict was, that 
 Hancock owed eighteen pounds ; but that the other two owed nothing. 
 It was moved in arrest of judgment, that the action ought not to have 
 been a joint action ; but after great debate and deliberation ; the court 
 were unanimously of opinion, that the action was well brought ; for that, 
 as it is founded upon a tort and not upon a contract, one of the defend- 
 ants may, as is frequently done in other actions founded upon torts, be 
 found guilty, and the others may be acquitted. 
 
 Comb. 301, Bastard v. Hancock ; ||1 Eag. & Y. 614.|| 
 
 In an action upon the statute, the plaintiff declared that the defendant 
 was occupier of the land, upon which the tithe arose, from the tenth day 
 of March, for the space of six months ; that in the August following, he 
 cut the corn growing thereupon ; and that after the expiration of his term, 
 he carried away the corn without having set out the tenth part thereof. 
 An objection was taken, that it appeared, from the plaintiff's own show- 
 ing, that the defendant was not occupier of the land at the time of the sup-
 
 94 TYTHES. 
 
 (Dd) Action on the Statute for Subtraction of Tithes. 
 
 posed subtraction of the tithe : but it was holden, that as he was the 
 owner of the corn at that time, the action was well brought. 
 Cro. Ja. 324, Kipping v. Swaine ; ||Gwill. 258 ; 1 Eag. & Y. 219. || 
 It is not necessary for the person, who brings an action upon the sta- 
 tute, to set out a title to the tithe in question ; because, as the action is 
 in the nature of an action of trespass founded upon a tort, it is sufficient 
 to show a possession of the tithe in the plaintiff. 
 2 Lev. 1 ; Cro. Ja. 68, 361, 437 ; 1 Ventr. 126 ; 2 Bulstr. 67. 
 
 || Mere evidence of an incomplete treaty by the parishioners with a 
 proprietor, for a composition, is not sufficient to establish his possession 
 of the tithes in an action on the statute. 
 
 Wyburd v. Tuck, 1 Bos. & P. 458. 
 
 But proof of payment of a composition by the parishioner to the pro- 
 prietor, in the preceding year, is sufficient. 
 
 Gamson v. Wells, 8 Taunt. 542. 
 
 And the plaintiff's title to the tithes cannot be disputed after a general 
 payment of money into court. 
 Broadhurstv. Baldwin, 4 Price, 58. || 
 
 If a certain lease of the tithe be declared upon in an action upon the 
 statute, and the jury find a different lease, the variance is not fatal, be- 
 cause the allegation of the lease is only inducement to the action ; the 
 wrong in carrying away the tithe being the ground thereof. 
 
 Cro. Ja. 328 ; Wheeler v. Haydon, 2 Bulstr. 86 ; ||Gwill. 258 ; 1 Eag. & Y. 219. 
 If one only of two joint-tenants of tithes execute an assignment of alease of the tithes, 
 qu if the person claiming under such lease can maintain an action for not setting 
 them out. See Wyburd v. Tuck, 1 Bos. & Pul. 458 ; Gwill. 1517. || 
 
 || But it seems that a lessee and farmer must not state himself in the 
 declaration as owner and proprietor of the tithes. 
 Stevens v. Aldridgc, 5 Price, 334 ; Gwill. 1865. 
 
 It is necessary for the person who brings an action upon the statute 
 to show, that the defendant was one of the king's subjects at the time of 
 subtracting the tithe. 
 
 Cro. Ja. 324, Kipping v. Swaine. 
 
 But, if it be alleged that the defendant was occupier of the land at the 
 time of subtracting the tithe, it is well enough ; because it may be fairly 
 inferred that he was one of the king's subjects at that time. 
 
 Ilardr. 173, Phillips v. Kettle. 
 
 The declaration in an action upon the statute must show, that the de- 
 fendant had made no agreement with the plaintiff for the tithe before he 
 carried it away ; for the statute has these words, or otherwise agreed for 
 the mine tithe. 
 
 Cartb. 304, Alston v. Buscougb, Cro. Ja. 70. ||But the objection was held to bo 
 cured by verdict ; since, if an agreement had been shown, the plaintiff could not have 
 recovered. But micere as to this ; and see Butt v. Howard, 4 Barn. & A. 655 ; Gwill. 
 2030; :; Eag. &Y. 1061. || 
 
 In an action upon the statute, the plaintiff declared for a certain quan- 
 tity of grain. It was objected, that the word grain, which comprehends 
 seeds of divers sorts, is of too general signification, and that the particu- 
 lar kind of grain ought to have been alleged: but the declaration was 
 holden to be good ; for that the word grain does, in its usual signification, 
 mean corn. 
 
 Sty. 103, 108 ; Southcot v. Southcot ; ||Gwill. 884.||
 
 TYTHES. 95 
 
 (Dd) Action on the Statute for Subtraction of Tithes. 
 
 It is sufficient, in an action upon the statute, to allege the value ot the 
 whole tithe subtracted, without showing the quantity or value of the par- 
 ticular kinds of tithes. 
 
 Cro. Ja. 433, Sanders v. Sanders. 
 
 The plaintiff may recover, in an action of debt upon the statute, not- 
 withstanding the sum found by the verdict be less than the sum alleged 
 in his declaration to be due ; for although it be in the general true, that 
 the plaintiff cannot recover, in an action of debt, a less sum than he de- 
 clares for, he may, as no certain penalty is given by the statute, recover 
 in this action the value of the tithes subtracted. 
 Cro. Ja. 498, Pemberton v. Shelton ; || 1 Eag. & Y. 297. || 
 
 The statute of limitations cannot be pleaded in bar to an action upon 
 the statute, because the occupier is considered as a bailiff or receiver ; 
 and the statute of limitations is no bar to a demand upon such persons. 
 Cro. Car. 513 ; Talory v. Jackson, Bunb. 213. 
 
 || But by the 53 Gr. 3, c. 127, § 5, it is enacted, that no action shall 
 be brought for the recovery of any penalty for the not setting out tithes ; 
 nor any suit instituted in any court of equity, or in any ecclesiastical 
 court, to recover the value of any tithes, unless such action shall be 
 brought, or such suit commenced, within six years from the time when 
 such tithes became due.|| 
 
 The more proper plea, in an action of deot upon the statute, is nil 
 debet : but it has been holden, that as the action is founded upon a tort, 
 not guilty is a good plea. 
 
 2 Inst. 051 ; Moor, 914; Cartb. 3G1. 
 
 If a defendant, against whom an action upon the statute is brought, 
 would avail himself of a modus by deed, the deed must be pleaded ; and 
 the deed is pleadable, although the date thereof be be3^ond time of me- 
 mory, and it was not allowed in a court of eyre ; for an allowance before 
 justices in eyre was not necessary in the case of a private deed. 
 
 2 Mod. 321, 322, James v. Trollope; || S. C. Pollex. 623; Skin. 51, 239; 2 Show. 
 439; Eag. & Y. 532.]] 
 
 A prescription in non decimando cannot be pleaded in the negative to 
 an action upon the statute ; but the plea must be, that the defendant, 
 and all those whose estate he has, have, for time whereof the memory of 
 man is not to the contrary, enjoyed the premises without paying tithe 
 for the same. 
 
 Bro. Preset: pi. 17. 
 
 If the plea to an action upon the statute be, that the premises of which 
 tithe is claimed were discharged thereof in the hands of an abbot, it must 
 be shown in what manner they were discharged ; for, as a discharge of 
 tithes is against common right, it shall be intended, unless the contrary 
 appear, that the discharge was personal. 
 
 1 Jo. G ; Slade v. Drake, 1 Lev. 185 ; || Gwill. 394 ; 1 Eag. & Y. 320.]| 
 
 If a discharge of tithe, by reason of unity of possession in the hands 
 of an abbot and his successors, be pleaded to an action upon the statute, 
 the unity of possession is traversable. 
 
 Cro. Eliz. 584, Button v. Long.
 
 96 TYTHES. 
 
 (Ee) Of Recovering the Value of small Tithes subtracted. 
 
 In an action upon the statute, the plaintiff was not heretofore in any 
 case entitled to costs of suit. 
 
 2 Inst. G51. 
 
 But by the 8 & 9 W. 3, c. 11, § 3, it is enacted, "That in all actions 
 of debt upon the 2 & 3 E. 6, c. 13, wherein the single value found by the 
 jury shall not exceed the sum of twenty nobles,(a) the plaintiff obtaining 
 judgment, or any award of execution, after plea pleaded or demurrer 
 joined therein, shall recover his costs of suit." 
 
 ||(a) 6Z. 13s. 4cZ.|| 
 
 || The language of this statute does not apply to a case where the de- 
 fendant suffers judgment by default. In a case where the declaration 
 contained counts for the treble value, for tithes bargained and sold, and 
 on an account stated, and the defendant suffered judgment by default, 
 and the jury assessed the plaintiff's damages at £171, 4s. Qd. on the 
 count for treble value, and £9 for single value on the other counts, but 
 omitted to find costs ; the court ordered the return of the inquisition to 
 be amended, by inserting nominal damages as to the last counts, on 
 which costs de incremento might be added. 
 
 Ball v. Hodo-etts, 1 Bing. 182 ; 7 Moo. 602 ; Eag. & You. 1089 ; and see Barnard 
 v. Moss, 1 H. Bl. 107 ; 2 Eag. & You. 357.|| 
 
 It has been holden, that the defendant, in an action upon the statute, 
 is not entitled to costs ; because as the action is not an action of debt 
 upon a specialty, nor an action for a personal wrong done immediately 
 to the plaintiff, the wrong in this case arising from a non-feasance and 
 not from a mal-feasance, it is not within the meaning of the 23 II. 8, c. 
 15, by which costs are in divers cases given to a defendant. 
 
 2 Inst, 651. 
 
 But by the 8 & 9 W. 3, c. 11, § 3, it is enacted, "That if the plaintiff, 
 in any action of debt upon the 2 & 3 E. 6, c. 13, shall become nonsuit, 
 or suffer a discontinuance, or a verdict shall pass against him, the de- 
 fendant shall recover his costs of suit." 
 
 (Ee) Of Recovering in a summary Way the Value of small Tithes subtracted. 
 
 By the 7 & 8 W. 3, c. G, § 1, it is, for the more easy recovery of small 
 tithes, where the same do not amount to above the yearly value of forty 
 shillings from any one person, enacted, "That if any person shall subtract 
 or withdraw, or fail in the payment of such small tithes, by the space of 
 twenty days after demand thereof, that then it shall be lawful for the 
 person, to whom the same shall be due, to make his complaint in writing 
 to any two justices of the peace within the county or place where the same 
 shall grow' due; neither of which justices is to be patron of the church 
 whence the said tithes arise, or any ways interested in such tithes." 
 
 But by § G it is provided, "That no complaint shall be heard as afore- 
 said, unless it shall be made within two years after the same tithes be- 
 come due." 
 
 And by § 13 it is provided, "That no person, who shall begin any 
 suit for the recovery of such small tithes in the Court of Exchequer, or 
 in any ecclesiastical court, shall have any benefit of this act for the same 
 matter." 
 
 P>y § 2 it is enacted, "That the said justices shall summon in writing 
 under their hands and seals, by reasonable warning, every person against
 
 TYTHES. 97 
 
 (Ee") Of recovering the Value of small Tithes subtracted. 
 
 whom any complaint shall be made as aforesaid, and after his appearance, 
 or upon default of appearance, the said warning being proved before them 
 upon oath, the said justices shall proceed to hear and determine the said 
 complaint, and shall in writing under their hands and seals adjudge the 
 case, and five such reasonable allowance for such tithes as they shall juuge 
 to be just, and also such costs and charges, not exceeding ten shillings, as 
 upon the merits of the cause shall appear just." 
 
 And by § 4, the justices are empowered to administer an oath to any 
 witness produced. 
 
 But by § 8 it is enacted, " That if any person complained against shall 
 insist upon any prescription, composition, modus decima?idi, or other title 
 whereby he ought to be discharged of tithes ; and shall deliver the same 
 in writing to the said justices; and shall give to the party complaining 
 sufficient security, to pay all such costs as shall be given against him upon a 
 trial at law, in case the said title shall not be allowed ; that then the said 
 justices shall forbear to give judgment." 
 
 By § 3, "A distress is given, in case of refusal or neglect, by the space 
 often days after notice given to pay such sum as upon such complaint shall 
 be adjudged as aforesaid." 
 
 By § 12 it is enacted, " That the said justices shall have power to give 
 costs, not exceeding ten shillings, to the party prosecuted y if they find the 
 complaint false and vexatious." 
 
 By § 5 it is provided, " That this act shall not extend to tithes within 
 the city of London, or in any other place where the same are settled by 
 act of parliament." 
 
 By § 7, an appeal is given to the sessions, and it is moreover enacted, 
 " That if the justices there present, or the majority of them, shall confirm 
 the judgment of the two justices, they shall decree the same by order of 
 sessions, and proceed to give such costs against the appellant as to them 
 shall seem just and reasonable." 
 
 By the same section it is enacted, " That no proceeding or judgment, 
 had by virtue of this act, shall be removed or superseded, by any writ 
 of certiorari, or other writ out of his majesty's courts at Westminster, or 
 any other court whatsoever, unless the title to such tithes shall be in 
 question." 
 
 ||By the 53 G. 3, c. 127, two or more justices are authorized to deter- 
 mine all complaints touching tithes, oblations, and compositions subtracted, 
 where the same shall not exceed ten pounds in amount, in all such cases 
 and by all such means, and subject to such provisions and remedies, by 
 appeal or otherwise, as are contained in the 7 & 8 W. 3, c. 6, respecting 
 tithes not exceeding forty shillings ; and one justice shall be competent to 
 receive the original complaint and summon the parties to appear before 
 two or more justices. 
 
 A party summoned under the above acts, and who resists the payment 
 of tithe on the ground of modus, under the eighth section of the 7 & S W. 
 3, c. 6, must set up the modus before the justices in the first instance ; and 
 if he neglect to do so, and an order is made by the justices, he cannot on 
 appeal to the sessions give evidence of the modus ; and it would seem that 
 the eighth section takes away from the justices the power of trying a ques- 
 tion of modus in any case. 
 
 Rex v. Jeffreys, 1 Bam. & C. 604 ; 9 Dow. & Ry. 860 ; Gwill. 2065.| 
 
 Vol. X.— 13 I
 
 98 TYTHES. 
 
 (Ff ) Of recovering Tithes due from Quakers. 
 
 By the 7 & 8 W. 3, c. 34, § 4, it is enacted, " That where any Quaker 
 shall refuse to pay or compound for his great or small tithes, it shall be 
 lawful for the two next justices of the peace of the same county, other than 
 such justice of the peace as is patron of the church or chapel to which the 
 said tithes belong, or any ways interested in the said tithes, upon the com- 
 plaint of the person who ought to have and receive the same, by warrant 
 under their hands and seals to convene before them such Quaker, and to 
 examine upon oath, which oath the said justices are empowered to adminis- 
 ter, or iu such manner as by this act is provided, the truth and justice of 
 the said complaint, and to ascertain what is due from such Quaker to the 
 party complaining, and by order under their hands and seals to direct the 
 payment thereof, so as the sum ordered as aforesaid do not exceed <£10 ; 
 and upon refusal by such Quaker to pay according to such order, it shall 
 be lawful for any one of the said justices, by warrant under his hand and 
 seal, to levy the money thereby ordered to be paid, by distress and sale 
 of the goods of such offender." 
 
 By the same section i: is enacted, " That any person finding himself 
 aggrieved by any Judgment given by such two justices of the peace, may 
 appeal to the next general quarter-sessions, and the justices of the peace 
 there present, or the major part of them, shall proceed finally to hear and 
 determine the matter; and if the justices then present, or the major part 
 of them, shall find cause to continue the said judgment, they shall then 
 decree the same by order of sessions, and shall proceed to give such costs 
 against the appellant as to them shall seem just and reasonable." 
 
 And bv the same section it is enacted, "That no proceeding or judg- 
 ment, had by virtue of this act, shall be removed or superseded by any 
 writ of certiorari, or other writ, out of his majesty's courts at Westminster, 
 or any other court whatsoever, unless the tide to such tithes shall be in 
 question." 
 
 By the 1 G. 1, st. 2, c. 6, § 2, the like remedy is given for the recovery 
 of all tithes, and all other ecclesiastical dues, from Quakers, as is by the 
 7 & S W. 3, c. 34, given for tithes to the value often pounds. 
 
 And it is thereby further enacted, " That any two or more justices of 
 the peace of the same county or place, other than such justice as is patron 
 of the church or chapel to which the said tithes or dues belong, or any ways 
 interested in ih ■ said tidies, upon complaint of any parson, vicar, curate, 
 farmer, or proprietor of such tidies, or other person who ought to have, 
 receive, or collect any such tithes or due-;, are hereby required to summon 
 in writing under their hands and seals, by reasonable warning, such Quaker 
 or Quakers against whom such complaint shall be made; and after his or 
 their appearance, or upon default of appearance, the said warning or summons 
 being proved before them upon oath, to proceed to hear and determine the 
 said complaint, and to make such order therein as in the said act is limited 
 or directed ; and also to order such costs and charges, not exceeding ten 
 shillings, as upon the merits of the cause shall appear just; which order 
 shall and may he appealed to, and on such appeal may be reversed or 
 affirmed by the general quarter-sessions of the county or place, with such 
 costs and remedy for the same, and shall not be removed into any other 
 court, unless the title to such tithes shall be in question, in like manner as 
 in and by the 7 & 8 W. 3, c. 34, is limited and provided." 
 
 || By the 53 G. 3, c. 127, § 6, the provisions of the two statutes 7 & 8
 
 TYTHES. 99 
 
 (Gg) What Remedy an Occupier has, &c. 
 
 W. 3, c. 34, § 4, and 1 G. 1, stat. 2, c. 6, § 2, are extended to any value 
 not exceeding fifty pounds; and one justice is made competent to receive 
 the original complaint, and summon the parties to appear before two or 
 more justices. || 
 
 (Gg) What Remedy an Occupier has, when the Person entitled to-Tithe does not 
 fetch it away in a reasonable Time. 
 
 If the person entitled to the tithe of milk do not fetch it away before 
 the next milking-time, the parishioner may pour it upon the ground ; be- 
 cause he may then have occasion for the pail, or other vessel, in which it 
 was set out. 
 
 Bunb. 73, Dodson v. Oliver. 
 
 Although a predial tithe be not fetched away in a reasonable time by 
 the person entitled thereto, the occupier of the land, upon which it is set 
 out, cannot justify the distraining thereof damage-feasant ; but he may 
 have an action for the damage sustained by its lying too long upon the 
 land. 
 
 3 Bulstr. 337, Mountford v. Sidley ; Latch, 8. flSee 8 Term R. 72.|| 
 
 The occupier of the land, upon which tithe is set out, cannot justify the 
 putting of his cattle upon the land, before the tithe is fetched away ; for it 
 is probable, that the person entitled thereto would sustain more damage be- 
 having his tithe destroyed by the cattle, than the occupier^ would by being 
 deprived for some time of the use of his land : and it is much more rea- 
 sonable to leave the occupier to his remedy by action, than to suffer him 
 to judge when the tithe has lain there too long. 
 
 Ld. Raym. 187, Shapcott v. Mugford, (2d edit.,) 1765; Ld. Raym. 198; Shapcott 
 v. Mugford, Com. 24. 
 
 || This doctrine is confirmed by a modern case, in which Lord Kenyon 
 also said that the occupier might distrain the tithes damage-feasant. 
 Williams v. Ladner, 8 Term R. 72; and see Baker v. Leathes, Wightw. 113.|| 
 
 But, if the person entitled thereto have neglected to fetch away tithe in a 
 reasonable time, and cattle, either of the occupier of the land upon which 
 the tithe is set out, or of a stranger, do without the default of the occupier 
 come upon the land, and destroy the tithe, the loss must fall upon the per- 
 son who neglected to fetch it away. 
 
 2 Leon. 101, Bennet v. Shortwright; Cro. Eliz. 206. 
 
 An action of trespass does not lie against the person entitled to tithe for 
 not having fetched it away in a reasonable time ; because the injury to 
 the occupier of the land does not arise from a mal-feasance but from a non- 
 feasance. 
 
 Latch, 8, Stilman v. Chanot; Ld. Raym. 189. 
 
 But the remedy of the occupier of the land, in case the tithe be not 
 fetched away in a reasonable time, is by an action upon the case. 
 
 3 Bulstr. 337; Mountford v. Sidley, Latch, 8; Ld. Raym. 188. 
 
 An action for not having fetched away tithe in a reasonable time doe& 
 not lie, unless the tithe were set out by a person who had some colour of 
 title to the land upon which it arose ; because, as the severance of tithe bf 
 « stranger does not vest such a property in the person entitled thereto, as 
 to enable him to maintain an action against a person who afterwards carries 
 it away, it is not reasonable that he should be liable to an action for not 
 having fetched it away. 
 
 3 Bulstr. 337, Mountford v. Sidley ; Latch, 8.
 
 100 TYTHES. 
 
 (Gg) What Remedy an Occupier has, &c. 
 
 Before the occupier of the land can maintain an action against the person 
 entitled thereto for not having fetched away tithe in a reasonable time, he 
 must give notice of its being set out; because, as the former was not 
 obliged to give notice at what time he intended to set the tithe out, the 
 latter may not know that it is set out. 
 IRoll.Abr. 643, (X), pi. 1. 
 
 || The notice that the tithes are set out, and requiring the parson to fetch 
 them away, must be reasonable according to the circumstances. Where 
 due notices were given to the parson of the setting out of the tithe of fruit 
 and vegetables in a garden, which were accordingly set out ; and the tithes 
 not having been removed at the distance of a month afterwards, when 
 they had become rotten, a notice then given to remove the tithe fruits and 
 vegetables within two days, otherwise an action would be commenced 
 against the parson, was held sufficient notice whereon to found an action. 
 
 Kemp v. Filewood, 11 East, 358; Gwill. 1649. 
 
 The action for not removing tithes will lie not only where the tithes 
 have been set out in the mode prescribed by the common law, or by the 
 special custom of the place, but also where they have been set out in a par- 
 ticular manner agreed on by the tithe-owner and the farmer. 
 
 Facey v. Hurdom, 3 Bam. & C. 213; 5 Dow. & Ry. 68; 3 Eag. & You. 1172; and 
 see Pigott v. Bayley, 6 Barn. & C. 16. 
 
 If there is no "special custom or private agreement, the action cannot be 
 maintained, unless the tithes are set out according to common law. 
 
 Moyes v. Willett, 3 Esp. Ca. 31 ; Gwill. 1526 ; and see Hooper v. Mantle, 1 M'Clel. 
 388; Eag. & You. 1162.|| 
 
 And after the person entitled thereto has had notice of tithe being set 
 out, he must, before an action can be maintained against him for not 
 having fetched the tithe away, have a reasonable time to fetch it away ; 
 and the question, What is a reasonable time ? is proper for the determina- 
 tion of a jury. 
 
 3 Bulstr. 336, Mountford v. Sidley; Bro. Dism. pi. 12; Ld. Raym. 189; Str. 245, 
 246, South v. Jones ; (JFacey v. Hurdom, 3 Barn. & C. 213; 5 Dow. & Ry. 68; Eag. 
 & You. 1172.U 
 
 >
 
 101 
 
 UNIVERSITIES. 
 
 (A) Universities, what. 
 
 (B) Of their Courts and Privileges of Jurisdiction. Wherein, 
 
 1. How they are to demand Conusance. 
 
 2. By whom it may be demanded. 
 
 3. At what time it may be demanded. 
 
 (C) Of their Privileges with regard to their Right of Presentation to the Livings of 
 
 Papists. Wherein, 
 
 1. In what cases they shall present. 
 
 2. Whom they shall present. 
 
 3. How their Right of Presentation may be prevented. 
 
 4. How Trusts made to prevent their Eight of Presentation may be discovered. 
 
 5. How their Right of Presentation may be divested. 
 
 6. How it may be avoided. 
 
 (A) Universities, what. 
 
 By universities in general, we understand those seminaries of learning 
 where youth are sent to finish their education, and to be instructed in the 
 liberal sciences. With us, by universities, are more particularly denoted 
 those two learned bodies of Oxford and Cambridge, which are invested 
 with several peculiar privileges. 
 
 [It is, indeed, from their being invested with such privileges, or rather, 
 from their being incorporated, (for they would not otherwise be capable of 
 receiving them,) that they were called Universities; Universitas being the 
 proper Latin word for a corporation. Considered as corporations, these 
 learned bodies are merely the creatures of the crown. The power of grant- 
 ing degrees flows from that source ; for, if the crown erects an university, 
 the power of conferring degrees is incident to the grant ; and in point of 
 fact, they never affected to confer degrees till they were incorporated. 
 They were formerly considered as ecclesiastical, or at least as clerical, cor- 
 porations ; for they were composed chiefly of ecclesiastics, and denominatio 
 sumenda a majori ; and they had, as ecclesiastical bodies, ab initio ecclesi- 
 astical jurisdiction. Hence the claim of the Archbishop of Canterbury to 
 \ isit them jure metropolitico, which was allowed in the reigns of R. 2, H. 
 4, and Car. 1, and established by parliament in the reign of H. 4. It is 
 now settled, however, that they are merely lay corporations, and as such, 
 subject to no visitation, properly so called ; the appeal, if any one feels 
 himself aggrieved, being to the Court of King's Bench ; which court, as its 
 judgments are revisable by the Lords in Parliament, seems to want that 
 definitiveness of sentence which is essential to visitatorial power. The 
 universities being bodies corporate by prescription, it follows, that it is not 
 competent to the crown, of itself, and without their consent, to make any 
 innovations in their constitution, or to abridge any of those rights which
 
 102 UNIVERSITIES. 
 
 (B) Of their Courts and Privileges of Jurisdiction. 
 
 the) enjoy either by prescriptive usage or under old charters; and that they 
 may, like other civil corporations under these circumstances, accept a new 
 charter, in part and upon such terms as they may think proper. 
 
 See Sir P. Yorke's argument, 1 Burn's P. L. 420. See also 8 Mod. 163; 3 Burr. 
 1656; 1 Bl. R. 517; 1 Bl. Com. 481.] 
 
 (B) Of their Courts and Privileges of Jurisdiction. 
 
 Each of the universities had several powers and privileges by -charters 
 from the kings of this realm, particularly one in the eighth of Hen. 4, where- 
 by they were authorized to hold plea of all causes arising within the uni- 
 versity according to the course of the civil law : but in the opinion of all 
 the judges of England the grant was held not to be good; for that the king 
 could not by his grant alter the law of the land. ' To remedy this and other 
 defects respecting their powers and privileges, a special act of parliament 
 was made in the 13 Eliz., confirming all former letters patent, and all nlan- 
 ner of liberties, franchises, &c, which they had held, or of right ought to 
 
 have enjoyed, &c. 
 
 4 Inst." 227; Godb. 201, pi. 287; Archbishop of York v. Sedwick. 
 
 By letters patent (not confirmed by parliament) dated thirtieth March, 
 11 Car. 1, granted to the University of Oxford, their old privileges are ex- 
 plained, and larger granted. 
 
 1 Mod. 164, Magdalen College case; Wood's Inst. 548. 
 
 Their courts are called the Chancellors' Courts. The chancellors are 
 usually peers of the realm, and are appointed over the whole university. 
 But their courts are kept by their vice-chancellors, their assistants, or depu- 
 ties : the causes are managed by advocates or proctors. 
 
 1 Mod. 164. By charter of 14 Hen. 8, The Chancellor, his commissary, and his 
 deputy, that is, the pro-vice-chancellor, are justices of the peace for the vill of Oxon, 
 county of Oxon and Berks; and their authority does not depend on the common com- 
 mission only, they being justices of the peace by virtue of their offices. 
 
 These courts have jurisdiction in all causes ecclesiastical and civil (ex- 
 cept mayhem, (a) felony, and freehold,) where a scholar, servant, or minis- 
 ter of the university is one of the parties in suit. 
 
 1 Mod. 161, and Cro. Car. 73, Wilcocks v. Bradell. But see the petition against the 
 grant of Hen. I, in Prinn's Animad. p. 368, 369. («)[The trial of treason, felony, and 
 mayhem, is committed in both universities to the university-jurisdiction in another court; 
 namely, the court of the Lord High Steward of the university. The cognisance of 
 offences of this nature has not been claimed by this court in either university for many 
 years, though instances have unhappily occurred in which the claim might have been 
 made.] 
 
 Their proceedings are in a summary way, according to the practice of the 
 civil law; and in their sentences they follow the justice and equity of the 
 civil law, or the laws, statutes, privileges, liberties, and customs of the uni- 
 versities, or the laws of the land, at the discretion of the chancellor. 
 
 Cro. Car. 73, Wilcocks v. Bradell ; lletley, 25, Thomas Wilcock's case; Hard. 
 508, Castle v. Litchfield. 
 
 If there be an erroneous sentence in the chancellors' court of the Univer- 
 sity ot Oxford, an appeal lies to the congregation, thence to the convoca- 
 tion, and from thence to the king in Chancery, who nominates judges dele- 
 gates to hear the appeal. (b) The appeal is of the same nature in Cam- 
 bridge, (c) 
 
 Wood's Inst. 519 ; 2 Ld. Raym. 1346, The King v. The Chancellor, &c, of Cam 
 bridge. [(6) According to Sir Win. Blackstone, the appeal in Uie first instance is to
 
 UNIVERSITIES. 103 
 
 (B) Of their Courts and Privileges of Jurisdiction. 
 
 delegates appointed by the congregation; thence to other delegates of the house of 
 convocation; and if they all three concur in the same sentence, it is final, at least by the 
 statutes of the university, according to the rule of the civil law. But, if there be any 
 discordance or variation in any of the three sentences, an appeal lies in the last resorl 
 to judges delejntes appointed by the crown under the great seal in Chancery. 3 Bl. 
 Comm. 85. (c)The appeal from the vice-chancellor's court in Cambridge is to certain 
 delegates appointed by the senate; but the editor is informed, that from the sentence 
 of these delegates there is no appellate university-jurisdiction.] 
 
 As by charter confirmed, as above mentioned, by act of parliament, cog- 
 nisance is granted to the university of all suits arising anywhere in law or 
 equity against a scholar, servant, or nii/iisfer of the university, depending 
 before the justices of the King's Bench, Common Pleas, and others there 
 mentioned, and before any other judge, though the matter concern the king: 
 if an indebitatus assumpsit is brought by quo minus in the Exchequer against 
 a scholar or other privileged person, the university shall have conusance ; 
 for the Court of Exchequer is included in the general words. 
 
 Cro. Car. 73, Wilcocks v. Bradell ; Hard. 505, 508, Castle v. Litchfield. There is 
 some disagreement in the books as to the recital of this charter; in Cro. Car. they are 
 said to have 'conusance, ita qund justiciarii dc banco regis sivede communi banco, veljusti- 
 ciarii de assists rum sc intromittant. In Hard, it is said that conusance is given them of 
 all suits, &c, depending before the justices of the King's Bench, Common Pleas, and 
 others there mentioned, and before any other judge, though the matter concern the 
 king. These latter words would, no doubt, warrant the resolution in the case of Castle 
 v. Litchfield ; for it is said, that no charter of exemption shall be allowed without these 
 or the like words, licet tangat nos. But see Hardr. 189, where it is affirmed, that the 
 exemption granted to the university hath not these words, licet tangat nos. And see t' - ° 
 following authorities, by which it is held, in opposition to the ease of Castle v. Litch- 
 field, That — 
 
 If a debtor and accountant to the king sues a scholar by bill in equit" in 
 the Exchequer, or if an attorney sues a scholar by writ of privilege, an 1 
 universities shall not have conusance ; for a general grant shall not take 
 away the special privilege of any court. 
 
 Hard. 189 ; Wilkins v. Shalcroft, Lit. R. 304; Oxford Letters Patent, S. P. ; 3 Leon. 
 149; The Lord Anderson's case, 2 Danv. Abr. 164- || Welles v. Trahern, Willes, R. 
 233.|| 
 
 But in cases where privilege is allowable, a scholar, &c, cannot waive 
 his privilege, and have a prohibition in the courts of Westminster, for the 
 university by right has the conusance of the plea, where one is a privileged 
 person ; and a stranger is forced to sue a privileged person in their courts 
 by reason of that right vested in them. 
 
 Cro. Car. 73, Wilcocks v. Bradell ; Hetl. 28, Thomas Wilcock's case. This privi- 
 lege was granted to scholars that their studies might not be interrupted by their being 
 forced to attend suits in other courts. 
 
 But a scholar ought to be resident(a) in the university at the time of the 
 
 suit commenced, and no other ought to be joined in the action with him ; 
 
 for in such cases he shall not have privilege. 
 
 Hetl. 28, Thomas Wilcocks'e case, [(a) Actual residence must be certified by the 
 chancellor, Hayes v. Long, 2 Wils.310; and his certificate must be supported by 
 affidavit. Paternoster v. Graham, 2 Stra. 810; 1 Ld. Raym. 428, S. C; Boot v. Gra- 
 ham, 1 Barnardist. K. B. 49, 65.] IJSee Thornton v. Ford, 15 East, 634. || 
 
 Though it is said that servants of the university are privileged, yet it 
 .has been holden, that a bailiff of a college was not capable of privilege. 
 Brownl. 74, Carrell v. Paske. 
 
 jJBut the claim was allowed when it was made on behalf of a proctor, 
 a pro-proctor, and tire marshal of the university, though the affidavit of the
 
 104 UNIVERSITIES. 
 
 (B) Of their Courts and Privileges of Jurisdiction. 
 
 latter, describing him as of a parish in the suburbs of Oxford, only verified 
 that he then was and had for fourteen years been a common servant of the 
 university called marshal, and that he was sued for an act done by him in 
 discharge of his duty, and in obedience to the orders of the other two de- 
 fendants, without stating that he resided in the university or was matri- 
 culated. 
 
 Thornton v. Ford, 15 East, 634. || 
 
 Neither is a townsman entitled to privilege, to exempt him from an 
 office in the town, if he keeps a shop and follows a trade, though he is 
 matriculated as servant to a scholar. (a) 
 
 2 Vent. 106, The City of Oxford's case. [(«) That a townsman so circumstanced 
 was not entitled to the privileges of the university, this case did not determine; for the 
 decision turned upon the matriculation having been collusive, merely for the purpose 
 of procuring an exemption from a corporate office. And it has been lately adjudged, 
 that a college barber at Oxford, though he resides in the city out of the college, is en- 
 titled to the privileges of the university. Rex v. Rowledge, Dougl. 531.] 
 
 It is to be observed, that though mayhem, felony, and freehold appear 
 as above to be the only causes excepted in the charter, yet it has been 
 held, that in actions for the recovery of the possession of a term, without 
 claiming title to the freehold, they shall have no privilege, because the 
 freehold may come in question. 
 
 Cro. Car. 87, 88, Hayley's case ; Litt. R. 252, Cripps v. Webb's case. 
 
 [Although the charter of the university extends to actions arising in any 
 part of England, yet it cannot intend that scholars, as plaintiffs, shall have 
 the liberty of suing in the university in causes of action arising in any part 
 of England ; but, when they are defendants, this privilege extends all over 
 England. 
 
 Per Lord Camden, 2 Wils. 311.] 
 
 It has been disputed how far the words of the grant entitled them to pri- 
 vilege in matters of equity. And the general principle of construction 
 seems to be, that where chattels only are concerned, or where damages 
 only are to be given, there their privilege is allowable; but, where the suit 
 is for the thing itself, there their privilege cannot be allowed. As in the 
 following cases. 
 
 A bill was brought setting forth a contract under seal with the defendant, 
 for making a lease of certain lands in Middlesex, and to have execution 
 of the agreement. The defendant pleaded the privilege of the university, 
 to proceed in all quarrels in law and equity, except concerning freehold ; 
 and concluded to the jurisdiction of the court. But Lord Keeper Guild- 
 ford overruled the plea, because in this case they can only excommunicate 
 or imprison, but cannot sequester lands in Middlesex, and so can give no 
 remedy; and because the charier of the University of Oxford, empowering 
 them to proceed in all pleas and quarrels in law and equity, &c, ought 
 properly to be extended to matters at common law only, or to proceedings 
 in equity that might arise in such cases, and not to mere matters of equity, 
 which are originally such, as to execute agreements in specie. 
 
 2 Ventr. 362, Draper v. Crowther. ([See 1 Vern. 212. ]| 
 
 So likewise on a bill in Chancery to be relieved against a bond of the 
 penalty of 100/. given by the plaint iifs father to the defendant, who pleaded 
 his privilege, that he is a doctor in divinity, scholar and residentiary stu- 
 dent in the University of Oxford, and that be ought not to be sued but be-
 
 UNIVERSITIES. 105 
 
 (B) Of their Courts and Privileges of Jurisdiction. 
 
 fore the chancellor of that university, or his deputy or commissary for the 
 time being ; the plea on debate was overruled. 
 Fin. R. 45; Williams v. Roberts. 
 
 But, on a bill to have a bond delivered up of 100Z. penalty, the money 
 being paid, defendant pleaded, that he was a privileged person of the Uni- 
 versity of Oxford, viz., a doctor of laws, and resident there, which the 
 chancellor certified, and demanded conusance of the matter in question as 
 determinable before him, or before the vice-chancellor, &c, and not else- 
 where. The court dismissed the bill, and allowed the plea. 
 
 Fin. R. 162, Bushby v. Cross. 
 
 So likewise, on a bill by administrator for an account of intestate's estate, 
 which defendants had got in their possession, on pretence of some debts 
 due to them from the intestate ; defendants pleaded, they are privileged 
 persons of the University of Oxford, and there resident ; which the chan- 
 cellor certified, and demanded conusance of the matter as examinable be- 
 fore him, his vice-chancellor, &c, and not elsewhere. And the plea was 
 allowed. 
 
 Fin. R. 292, Powell v. Mine and Adams. 
 
 Lastly, on a bill brought in this court for a discovery of the personal 
 estate of Dr. Aldridge, deceased, and an injunction granted thereupon, the 
 University of Oxford claimed conusance of the cause, for that both plaintiff 
 and defendant were scholars of the university. And Harcourt, C, ordered 
 the bill to be dismissed, and allowed an exclusive conusance in equity 
 touching chattels to the university. 
 
 Per Harcourt, Chan. MS. R., Trin. 12 Ann. in Chan., Aldridge v. Stratford, Vin. 
 Abr. (V), 22, p. 11. 
 
 It is ^said, that the chancellor of the University of Oxford, or his vice- 
 chancellor, may inflict ecclesiastical censures of the greater excommunica- 
 tion on offenders even for temporal offences, and certify the excommuni- 
 cation into the High Court of Chancery to obtain the writ de excommunicato 
 capiendo, as if the offender had been excommunicated in an ecclesiastical 
 cause and certified by a bishop. The University of Cambridge hath also 
 this privilege. 
 
 Wood's Inst. 549. 
 
 In the construction of their privileges with respect to the assize of beer 
 and ale, it has been contested that they have not assisam ipsam, that is, 
 they cannot appoint another assize than what is set down by statute, but 
 that they have only cvstodiam assize, that is, a power to enforce the execu- 
 tion of it, as well in the price as in the measure. 
 
 3 Leon. 214; hut see 12 W. 3. c. 11, § 19. which recognises the right of the two 
 universities to size and mark measures for ale and beer; and by a errant of the 29th 
 Ed. 3, the University of Oxford hath the assize and assay of wine and ale, as well as 
 the custody of it. Wood's Inst. 550. 
 
 [On a motion for a prohibition to a suit in the vice-chancellor's court 
 against certain brewers, for selling ill beer and false measure, the particular 
 excess of jurisdiction alleged was, the exacting of juratory caution ; and it 
 was insisted, that though they have the assize of bread and beer by charter, 
 yet a power to punish by fine, and proceed according to the civil law, can- 
 not be by charter. Holt, C. J.— Before the 14 H. 8, the university had 
 'he jurisdiction of a leet, and exercised it in the vice-chancellor's court; 
 
 Vol. X.— 14
 
 106 UNIVERSITIES. 
 
 (B) Of their Courts and Privileges of Jurisdiction. 
 
 bat the charter grants them the power of trespasses, and that over all per- 
 sons whomsoever, if a scholar be a party. Jldjournatur. 
 
 Rush v. Chancellor. &c, of Oxford, Salk. 343. That both the universities have the 
 J urisdiction of a leet, has been acknowledged in subsequent cases. 3 Burr. 1647; 
 1 Black. R. 517; Dougl. 5:>7 ; but whether a tradesman of Oxford, entitled to the pri- 
 vileges of the university as a college servant, but residing without the walls of the col- 
 lege in the citv, be therefore exempt from serving the office of constable for the city, is 
 a question which has been moved, but not absolutely determined. Rex v. Routledge, 
 Dougl. 530. It should seem, however, from the language of the court, and the subse- 
 quent conduct of the prosecutors in that case, that there can be little doubt that the law 
 is in favour of the exemption.] 
 
 Such are their general privileges of jurisdiction ; it remains now to 
 consider, 
 
 1. How they are to demand Conusance. 
 
 It is said that conusance may be demanded by certificate only, without 
 special pleading upon an indictment of a privileged person for an assault 
 and battery. 
 
 Wood's Inst. 530. 
 
 But it has been hoi den, that the claim of conusance ought to be entered 
 upon a roll, and an affidavit made to verify the certificate. 
 
 2 Stra. 810, Paternoster v. Graham, per cur. S. P. 1 Barnard. 49,65, under the name 
 of Boot and Graham. [The charter, the act of parliament which confirms it, and all 
 the proceedings, so far as they have gone, must be entered on the roll ; and, therefore, 
 where the charter and statute were shortly but not fully set forth, and the declaration 
 which had been delivered in the cause was wholly omitted, the claim was disallowed 
 as not made in due form. Leasingby v. Smith, 2 Wils. 406. See the case of Wood- 
 cock v. Brooke, Ca. temp. Hardw. 241, an instance of a claim allowed.] |)And see 
 Browne v. Renouard, 12 East, R. 12. |j 
 
 In equity, however, a bill being filed against defendant, a fellow of 
 Exeter College in Oxford, for an account of several sums of money; the 
 chancellor of Oxford claimed privilege by instrument in writing. But the 
 Lord Keeper disallowed the claim, saying it must be put in by way of plea. 
 He declared nevertheless that it should not {a) be on oath, but that it should 
 be sufficient to aver the defendant to be a scholar resident, &c. 
 
 1 Cases in Can. 237, Pratt v. Taylor. Lord Keeper added, that in case of outlawry 
 defendant should not be put to aver the plea on oath, [(a) Mitf. Ch. PI. 231, acc.~] 
 
 In some cases the claim of conusance by plea ought to conclude with a 
 traverse: as, in trespass for an assault and battery at B in com. Hertford, 
 the defendant pleads, that he was servant to a scholar in Saint John's Col- 
 lege, Cambridge; and that they are to have conusance there. The plain- 
 tiff demurs, because the defendant takes no traverse, that he was culpable 
 in any place extra universitatem Cantabrigice, that thereupon they might 
 have taken issue. The whole court were clearly of opinion, that the de- 
 fendant here ought to have concluded his plea with a traverse. 
 
 3 Bulstr. 282, Payn v. Worth. 
 
 2. By whom it may be demanded. 
 
 The vice-chancellor, by his attorney or deputy appointed in writing, may 
 demand it, though the vice-chancellor is but a deputy himself; for a bailiff 
 may properly demand conusance, and upon notice of the patent the court 
 ought to supersede. 
 
 Hardr. 505, 510, Castle v. Litchfield ; 2 Danv. Abr. 174.
 
 UNIVERSITIES. 107 
 
 (C) Right of Presentation to the Livings of Papists. 
 || And in the vacancy of the office of chancellor, the vice-chancellor may- 
 make the claim. 
 
 Williams v. Brickenden, 11 East, 543.|| 
 
 3. .fit what time it may be demanded. 
 
 The rule is that conusance must be demanded the first day ; [on the re- 
 turn of the writ, if the cause of action appears therein ; if not, then upon 
 the first day given upon the declaration. After full defence made or im- 
 parlance prayed, it is too late.] 
 
 3 Bl. Com. 298; 2 Wila. 406; 5 Burr. 2823; |jand see Browne v. Renouard, 
 12 East, 12.l| 
 
 In an action on the case against a member of the University, the bill 
 was of Easter term 11 Anne, and the defendant had an imparlance till the 
 first day of Trinity term following; after which, and before plea pleaded, 
 the University of Cambridge by their attorney demanded conusance, and 
 the claim was disallowed because it was not made the first day. 
 
 2 Ld. Raym. 1339, in case of The King v. Cambridge University, alias Dr. Berkley's 
 case, cited as so held, Hil. 1 1 Ann. B. R. Perne v. Manners. [See the cases of Lea- 
 singby v. Smith, 2 Wils. 406, and Rex v. Agar, 5 Burr. 2823, where claims of conu- 
 sance were disallowed as not made in due time.] 
 
 ||In an action of assault and battery brought by an attorney against a 
 proctor of the University of Oxford and a jailer there, the chancellor put 
 in a claim of cognisance, after replication and before the rejoinder, and the 
 Court of Common Pleas held on a review of the cases that the claim was 
 not made in time, being after imparlance. On the question also raised, 
 Whether the claim could be made against the privilege of the plaintiff 
 as an attorney, it was therefore unnecessary to give an opinion ; but Willes, 
 C. J., expressed an opinion against the claim in such a case, saying, 
 " Whenever this case comes judicially before us, though I shall be as ten- 
 der of the privileges of the University of Oxford as any man living, having 
 the greatest veneration for that learned body, yet I hope I shall always, as 
 far as I can by law, endeavour to support the common law of the land and 
 that excellent method of trial by juries, upon which all our lives, liberties, 
 and properties depend ; and that I shall endeavour, as far as I can, to pre- 
 vent the encroachment of any jurisdiction whatever that proceeds by an- 
 other law and another method of trial." 
 
 Welles v. Trahern, Willes R. 233, where see the claim stated at length. In Litt. 
 R. 304, the claim was denied in an action by an attorney of C. P. against a member 
 of the University of Oxford. || 
 
 (C) Of their Privileges with regard to their Right of Presentation to the Livings of 
 
 Papists, (a) 
 
 1 . In what Cases they shall present. 
 
 3 Jac. 1, c. 5, enacts, that every papist recusant convict, during the time 
 that he shall remain a recusant convict, shall from and after the end of this 
 present session of parliament be disabled to present to any benefice or ec- 
 clesiastical living, or to nominate to any free school, hospital, or donative ; 
 and shall likewise be disabled to grant any avoidance to any benefice. 
 
 ||(a) By the act for relief of Roman Catholics, 10 G. 4, c. 7, § 16, it is provided, that 
 nothing therein shall alter the laws in force in respect to presentation to ecclesiastical 
 benefices. See Vol. vii. tit. Papists, (C).|| 
 
 § 19. The chancellor and scholars of the University of Oxford shall
 
 108 UNIVERSITIES. i 
 
 (C) Right of Presentation to the Livings of Papists. 
 
 have the presentation, &c, to every such benefice, school, hospital, and 
 donative, in the counties of Kent, Middlesex, Sussex, Surry, Hampshire, 
 Berkshire, Buckinghamshire, Gloucestershire, Worcestershire, Stafford- 
 shire, Warwickshire, Wiltshire, Somersetshire, Devonshire, Cornwall, 
 Dorsetshire, Herefordshire, Northamptonshire, Pembrokeshire, Carmarthen- 
 shire, Brecknockshire, Monmouthshire, Cardiganshire, Montgomeryshire, j 
 the city of London, and in every city and town being a county of itself, 
 within the limits of the counties aforesaid. 
 
 § 20. The chancellor and scholars of the University of Cambridge shall 
 have the presentation, &c, to every such benefice, school, hospital, and 
 donative in the counties of Hertfordshire, Cambridgeshire, Huntingdon- 
 shire, Suffolk, Norfolk, Lincolnshire, Rutlandshire, Leicestershire, Derby- 
 shire, Nottinghamshire, Shropshire, Cheshire, Lancashire, Yorkshire, 
 Durham, Northumberland, Cumberland, Westmoreland, Radnorshire, Den- 
 byshire, Flintshire, Carnarvonshire, Anglesey, Merioneth, Glamorganshire, 
 and in every city and town being a county of itself, lying within the limits 
 of the counties last mentioned. 
 
 By the 1 W. & M., c. 26, § 2, every person refusing to make, or to 
 appear for the making the declaration against transubstantiation, and whose 
 name shall be recorded at the quarter-sessions, is disabled to make any pre- 
 sentation, donation, or grant of avoidance of any ecclesiastical living, as 
 fully as if he were a popish recusant convict, and the chancellor, &c, of 
 the "universities shall have the presentation in the respective limits men- 
 tioned in the act of 3 Jac. 1, c. 5. 
 
 And farther by 12 Ann. c. 14, papists and their children under the age 
 of twenty-one years, not being protestants, though not convicted, and their 
 mortgagees and trustees, shall lose their presentations ; and the respective 
 universities shall present. 
 
 2. Whom they shall present. 
 
 By 3 Jac. 1, c. 5, § 21, it is provided, that neither of the universities 
 shall present to any benefice any such person as shall then have any other 
 benefice with cure of souls; and such presentation shall be void. 
 
 It was agreed that a layman may he presented to a prebend, for non habet curam 
 animarum,CTo. Eliz. 79. And for the same reason a dean, archdeacon, prebendary, 
 &c, may be presented or nominated by the university; for their promotion is not a 
 benefice with cure of souls. Yin. Abr. v. 2, p. 5. But see 3 Inst. 155, contra. 
 
 3. How their right of Presentation may be prevented. 
 
 If patron recusant grants the patronage in fee to another, in such case 
 the university shall not have the presentment ; and in the same manner, if 
 he grants it in tail for life or years, during the continuance of this grant, he 
 is not patron in possession, and therefore the university shall not present 
 by the words of the statute of 3 Jac. 1, c. 5. 
 
 Sir William Jo. 19,Standen v. The University of Oxford and Whitton. 
 
 But, if a patron makes a lease for years of an advowson, and afterwards 
 becomes a recusant, the university shall have the presentation, as a future 
 interest given to them. 
 
 Sir William Jo. 26, Standen v. The University of Oxford and Whitton, S. P. arg. ; 
 10 Rep. 50 a. 
 
 So likewise, if a patron acknowledges a statute merchant, and after be-
 
 UNIVERSITIES. 109 
 
 (C) Right of Presentation to the Livings of Papists. 
 
 comes recusant convict, and then the statute is extended, the university 
 notwithstanding shall have the presentment. 
 
 Sir William Jo. 26, Standen v. The University of Oxford and Whitton, S. P. arg. ; 
 10 Rep. 56 a. 
 
 [It was determined by Lord Hardwicke, on the statute of Anne here- 
 after mentioned, that that statute doth not make the whole trust void, but 
 only the turn upon an avoidance ; so that if the party conforms before any 
 avoidance happens, nothing can vest in the universities. 
 
 Cottington v. Fletcher, 2 Atk. 155.] 
 
 4. Hotu Trusts made to prevent their Bight of Presentation may be discovered. 
 
 Where secret trusts are made to prevent their right of presentation, the 
 following statutes point out a method for discovering such trusts. 
 
 By 1 W. & M. c. 26, § 3, trustees of recusants are disabled to present 
 or grant any avoidance of any ecclesiastical living, free school, or hospital, 
 and the respective universities are to have the presentations. 
 
 And if any trustee, mortgagee, or grantee of any avoidance shall present, 
 &c, to any such ecclesiastical living, &c, where the trust shall be for any 
 recusant convict, or disabled, without giving notice of the avoidance in 
 writing to the vice-chancellor of the university, to whom the presentation 
 shall belong, within three months after the avoidance, he shall forfeit 500/. 
 to the university to which the presentation, &c, shall belong. 
 
 § 7. Persons making the declaration, and taking the oaths before the 
 justices at the quarter-sessions, where their names are recorded, shall be 
 discharged of the disability. 
 
 Farther, by 12 Ann. st. 2, c. 14, § 2, presenter is to be examined by 
 the ordinary, whether he be a papist or a trustee for such, 
 
 § 3. Presentee is to be examined upon oath by the ordinary, if he 
 knows, or believes the presentor to be a papist, or a trustee for a papist, 
 or for the children of such, or any other person ; and if he answers not 
 directly, the presentation to be void. 
 
 § 4. Universities and their presentees may bring a bill in Chancery for 
 discovery ,(«) and upon neglecting to answer, the bill to be taken pro con- 
 fesso. 
 
 (a) A bill founded upon this statute can only be for discovery, not for relief. So 
 determined by Lord Talbot, supra, Vol. vii. p. 393. 
 
 § 5. Patrons and their clerks, contesting the right of the university in 
 quare impedit, may be examined in court, or by commission or affidavit, is 
 the court shall think proper, as to secret trusts ; and if upon discovery who 
 is the cestui que trust, he shall, upon a rule made for him to come into 
 court, or before commissioners, to make the declaration against transub- 
 stantiation, neglect so to do, he shall be esteemed convict in respect to his 
 presentation. 
 
 It was moved in a quare impedit, that the plaintiff claiming right of patronage might 
 be examined upon oath touching secret trusts for papists pursuant to this act, and a 
 commission for such examination was ordered to issue, directed to the three protho- 
 notaries, or any two of them. Barnes, King v. Bishop of Carlisle, and Masters and 
 Scholars of the University of Cambridge. See likewise where the court ordered a 
 commission for the like purpose, and directed the prothonotary to strike the commis- 
 sioners' names, and to settle the interrogatories. Barnes, R utter v. Bishop of Hereford 
 and the University of Cambridge. 
 
 § 6. And the answer of such patrons, and the person for whom they are 
 intrusted, and his and their clerks, and their examinations and affidavits 
 
 K
 
 110 UNIVERSITIES. 
 
 (C) Right of Presentation to the Livings of Papists. 
 
 taken as aforesaid by order of any court, or by the ordinary, shall be al- 
 lowed as evidence against such patron so presenting, and his clerk. 
 
 § 8. No lapse shall incur nor plenarty be a bar, till three months after 
 the answer put in, or the bill taken pro confesso, or the prosecution deserted, 
 provided such bill be exhibited before any lapse incurred. 
 
 § 10. Upon confession or discovery of trust, the production of deeds 
 may be enforced. 
 
 Lastly, The 11 G. 2, c. 17, § 5, enacts, That every grant of any ad- 
 vowson of any ecclesiastical living, school, hospital, or donative, and every 
 grant of any avoidance thereof, by any papist or person making profession 
 of the popish religion, or any mortgagee or person intrusted for any papist, 
 &c, shall be void, unless such grant shall be made bona fide, and for a 
 full consideration, to a protestant purchaser, and only for the benefit of 
 protestants ; and such grantee shall be deemed a trustee for a papist, and 
 they and their presentees shall be compelled to make such discovery relat- 
 ing to such grants and presentations as by the act 12 Ann. st. 2, c. 14, is 
 directed. And every devise to be made by any papist of any such advow- 
 son &c, with intent to secure the benefit thereof to the heirs or family of 
 such papist, shall be void; and such devisees and persons claiming under 
 such devisees, and their presentees, shall be compelled to discover whether 
 such devisees were not made with the said intent. 
 
 |jSee Vol. vii. tit. Papists, (C).|| 
 
 5. How their Right of Presentation may be divested. 
 
 When once the presentation pro h,dc vice is vested in the university, 
 thouo-h the recusant conforms himself afterwards or dies, yet the university 
 shall present. 
 
 10 Rep. 58 a, in the Chancellor, &c, of Oxford University's case. 
 
 So likewise if a recusant is attaint of felony or prcemunire, the interest of 
 the university shall not be divested. 
 
 Per Hutton, Sir William Jo. 26, in the case of Standen v. The University of Ox- 
 ford and Whitton. 
 
 6. How it may be avoided. 
 
 The 1 W. & M. sess. 1, c. 26, § 6, enacts, that the benefice to which 
 persons are presented by the universities for the recusancy of the patron, 
 shall become void in case of absence from the same above the space of 
 sixty days in any one year.
 
 Ill 
 
 USES AND TRUSTS. 
 
 /SPART I.-OF USES.g/ 
 
 A use at common law was an equitable right which he who conveyed 
 a legal estate to another reserved to himself, upon trust and confidence 
 that the person to whom he so conveyed it, would nevertheless suffer him 
 to take the rents and profits of the land, and that he would execute estates 
 according to his direction. 
 
 Gilb. Law of Uses, 175; 1 Rep. 121, Chudleigh's case. £See Bac. Tr. 306 ; Cor- 
 nish on Uses ; Sanders on Uses ; 1 Fonbl. Eq. 363 ; Co. Lit. 272 b.g/ 
 
 The feoffee, therefore, or terre-tenant, (that is, the person to whom the 
 legal estate was conveyed,) had the freehold or sole property in him : and 
 the person who had conveyed the legal estate to him, (that is, the cestui 
 que use,) had neither jus in re ; nor ad rem, ; for if he had entered upon 
 the land without the consent of the feoffee, he had been a trespasser ; so 
 that nothing remained in him but a bare confidence or trust; for which, if 
 it was broken, he had no remedy but by subpoena in Chancery. 
 
 But this equitable right extended itself to all persons who claimed in 
 privity under the feoffee ; that is, who came into the same estate which 
 the feoffee had in the use, and by contract with him ; for a disseisor came into 
 the same estate, but not by contract or agreement ; and therefore, claiming 
 not by or from the feoffee, he consequently did not claim the estate as it 
 was subject to the uses ; but he claimed an estate above that free from 
 and discharged of the uses, and it would in a manner have defeated his 
 title, should he have been compelled to stand seised to a use, when he did 
 not claim the estate which was charged with a use ; for confidence in the 
 person was requisite as well as privity of estate. 
 
 Confidence in the person was cither express or implied ; as, if a feof- 
 fee to a use had, for good consideration, enfeoffed one who had no notice of 
 the use, the use was destroyed ; for the person enfeoffed not knowing 
 that there were any uses, no trust could be reposed in him to let the cestui 
 que use take the profits ; but if'he had notice, a trust might well be said to 
 be reposed in him, since he took the land, knowingly charged with the 
 uses. So, also, if the feoffment had been made ivithout consideration, 
 though the person enfeoffed had no notice of the use, yet he would never- 
 theless have stood seised to the use ; for the law in that case would have 
 implied notice of the use, and consequently the trust would have re- 
 mained. 
 
 Hence it may be collected, that to every use at common law there 
 were two inseparable incidents, — a privity in estate, and a confidence in 
 the person ; and where either of these failed, the use was suspended or 
 destroyed. 
 
 But for the better understanding of the law relative to this head, we 
 shall consider, — 
 
 (A) The Origin and first Introduction of Uses. 
 
 (B) The several Properties of an Estate in Use at Common Law, which are, —
 
 112 USES AND TRUSTS. 
 
 Uses and Trusts. 
 
 1. That it is alienable; wherein, of the Power of Cestui que Use. 
 
 1. At Common Law. 
 
 2. By the Statute of 1 R. 3, c. 1. 
 
 2. That it is descendible ; wherein, 
 
 1. Of the Descent of a Use in Possession. 
 
 2. Of the Descent of a Use in Reversion. 
 
 3. That it is devisable. 
 
 4. That it is not extendible, or Assets, 
 
 5. That it is not forfeitable. 
 
 6. That a Woman is not dowable of a Use. 
 
 (C) The Inconveniences of Uses. 
 
 fD) The Alterations introduced with respect to Conveyances to Uses by the 27 H 
 8, c. 10. 
 
 (E) The several Sorts of Conveyances to Uses ; wherein, 
 
 1. Of those which raise Uses by Way of Transmutation of Possession ; such as, — 
 
 1. Feoffment: 2. Fines; 3. Recoveries, of which before, under their respec- 
 tive Titles. Cut herein farther, — 
 
 Of Deeds declaring the Uses of Feoffments, Fines, and Recoveries wherein, 
 
 1. Who may declare Uses. 
 
 2. To whom they may be declared. 
 
 3. In what Manner they may be declared. 
 
 4. At what Time they may be declared. 
 
 5. In what Cases Averments may be made of Uses. 
 
 2. Of those Conveyances which raise Uses without Transmutation of Possession ; 
 
 such as, — 
 1. Covenants to stand seised to Uses ; wherein, 
 
 1. Who may covenant to stand seised, and to whom. 
 
 2. What Consideration is necessary to a Covenant to stand seised, and how 
 
 far it extends. 
 
 3. By what words a man may covenant to stand seised. 
 
 4. The Effect of a Covenant to stand seised. 
 
 3. Of Bargain and Sale, of which before under its proper Title. 
 
 (F) What Kind of Property may be conveyed by Way of Use. 
 
 (G) The several Kinds of Uses executed by the Statute ; such as, 
 
 1. Uses in esse. 
 
 2. Uses in Possibility ; wherein, 
 
 1. Of executory Fees; and the Difference where they rise by way of Use, 
 
 and where by Devise. 
 
 2. Of contingent Remainders, of which before under Title "Remainder:" 
 
 But herein farther, 
 
 1. In what Manner they are to be executed. 
 
 2. How they may be defeated. 
 
 1. Where there is no power of Revocation. 
 
 2. Where there is an express Power of Revocation. 
 
 3. How they may be suspended, revived, or extinguished. 
 (H) The Cases out of the Statute ; as, 
 
 1. Where Uses are limited upon Uses. 
 
 2. llliere Terms are raised and limited in Trust ,• v>herein, 
 
 1. Of Terms which wait on the Inheritance. 
 
 2. Of Terms in Gross. 
 
 3. Where Lands are limited to Trustees to pay over the Rents and Profits.
 
 USES AND TRUSTS. 113 
 
 (B) Properties of an Estate in Use at Common Law. 
 
 (I) Resulting Uses, or Uses by Implication. 
 
 (K) Second or shifting Uses. 
 
 'L) The Manner of pleading Uses. 
 
 (A) The Origin and first Introduction of Uses. 
 
 The original of uses was from a title under the civil law, which allows 
 )f an usufructuary possession, distinct from the substance of the thing 
 itself; and it was brought over to us from thence by the clergy, who were 
 masters of the civil law. For when they were prohibited from taking any 
 thing in mortmain, after several evasions by purchasing lands of their own, 
 tenants suffering recoveries, and purchasing lands round the church and 
 making them churchyards by bull from the pope, at last this way was in- 
 vented of conveying lands to others to their own use ; and this being proper 
 matter of equity, it met with a very favourable construction from the judge 
 of the Chancery court, who was in those days commonly a clergyman ; 
 and the clergy thought this a statute contrary to natural justice, and so 
 could easily tolerate any act for evading it. Thus this way of settlement 
 began ; and was often used for other fraudulent purposes, as to defeat just 
 debts, wardships, escheats, &c. ; but it more generally prevailed amono - 
 all ranks and conditions of men, by reason of the civil commotions between 
 the houses of Lancaster and York, to secrete the possessions, and to pre- 
 serve them to their issue, notwithstanding attainders. (a) 
 
 Gilb. Law of Uses, 3. (a) Sir William Jones, 127, Lord Willoughby's case. ||The 
 analogy between the origin and progress of the fidei commissi/) of the Romans and of 
 our uses is remarkable, and shows how " states and commonwealths have common 
 accidents." Bacon says : " I find that in the civil law that which cometh nearest in 
 name to the use is nothing like in matter, which is usus fructus ,• for usus fructus and 
 dominium is with them as with their particular tenancy and inheritance. But that 
 which resembleth the use most is fidei commission and therefore you shall find in Justi- 
 nian, lib. 2, that they had a form in testaments to give inheritance to one to the use of 
 another, Hxredem constUuo Caium, rogo autem te, Caie, ut hserediiaiem restituos Seio ; 
 and the text of the civilians saith, that for a great time if the heir did not as he was re- 
 quired, cestui que use had no remedy at all, until about the time of Augustus Caesar, 
 there grew in custom a flattering form of trust, for they penned it thus : Jiogo te per 
 salutem Jugusti, or per fortunam Jugusti, &c. ; whereupon Augustus took the breach 
 of trust to sound in derogation of himself, and made a rescript to the pra;tor to give 
 remedy in such cases. Whereupon within the space of one hundred years-, these trusts 
 did spring and speed so fast, as they were forced to have a particular chancellor only 
 for uses, who was called praetor fidei commissarius ,• and not long after, the inconveni- 
 ence of them being found, they resorted unto a remedy much like unto this statute ; for 
 by two decrees of senate, called Senatus Consultum TrebeUianum et Pegasianum, they 
 made cestui que use to be heir in substance." Bacon on Stat, of Uses. || /SCruise. 
 Dig. 388; 1 Madd. Ch. Pr. 446; Inst. 2, 32,2; Code, 6, 42; Bouv. L. D. Fidei 
 commissum. In Louisiana, fidei commissa were abolished by the code. 5 N. S. 302.g- 
 
 (B) The several Properties of an Estate in Use at Common Law. 
 
 Under this head it will be sufficient to observe in general, 1. That at 
 common law a use is alienable ; 2. that it is descendible ; 3. that it is devi- 
 sable ; 4. that it is not extendible, or assets ; 5. that it is not forfeitable ; 
 6. that a woman is not dowable of a use. 
 
 1. That it is alienable : wherein, of the Power of Cestui que Use. 
 
 1. At Common Law. 2. Bv the Statute of 1 R. 3, c. 1. 
 
 Vol. X.— 15 k 2
 
 114 USES AND TRUSTS. 
 
 (B) Properties of an Estate in Use at Common Law. 
 
 1. Jit Common Law. 
 
 It has been said in the definition of a use, that cestui que use had neither 
 jus in re, nor ad rem; for, if the feoffee broke his trust, he had no remedy 
 against him but by subpoena in Chancery. 
 
 This subpoena commenced in the time of E. 3, but it was always against 
 the feoffee in trust himself, and was never allowed against his heir till H. 6, 
 and in this point was the law changed by Fortescue, C. J. So that if the 
 feoffee had died, his heir was seised to his own use, as the law was taken 
 to the time of H. 4, till at length the subpoena was granted both against the 
 iheir, and the feoffee of the feoffee, about the time above mentioned, or, ac- 
 cording to some, later. 
 
 Kelw. 42 b, 46 b. 
 
 But, though at common law cestui que use had no power over the land, 
 vet might he alien the use, because every one may dispose of the rights 
 that were in him ; or he might prefer a bill in Chancery to make the terre- 
 tenant execute the use in himself. 
 
 Gilb. Law of Uses, 26. 
 
 But, at common law, if cestui que use had entered and made a feoffment 
 in fee of the lands, this had not been good to pass the estate to the feoffee ; 
 because cestui que use had not the freehold in him, and so could not pass it 
 to another ; but by his entry he was a disseisor : yet in this case, if the 
 feoffees of cestui que use had re-entered upon the purchaser, the feoffees 
 would not have had the lands to their own use ; and they would not have 
 stood seised to the use of cestui que use, because he had transferred the use 
 to another. 
 
 Plow. 352 b. The feoffees upon their re-entry would, it seems, stand seised to the 
 use of the last feoffee. See Plow. loc. cit. ||In a similar case at this day the trustees 
 would be compelled to convey to the feoffee of the cestui que trust. Gilbert by Sug- 
 den, 50.|| 
 
 If cestui que use make a lease for years, rendering rent, the reservation 
 is void, unless it be by deed ; for the rendering of rent to a man is an 
 acknowledgment of the holding of lands from him ; but here the lands are 
 not held of cestui que use, but of the feoffees who have the reversion. But, 
 if the reservation be by deed, the feoffees shall not have the rent reserved, 
 but cestui que use shall have it. 
 
 Bro. F. to Uses, 338, § 23, 339, § 26. |jThese cases, and those opposite tbe next 
 paragraph, arose after the statute 1 Ric. 3, c. l.|| 
 
 If cestui que use make feoffment, with a letter of attorney to give livery, 
 and the attorney give livery accordingly ; qu. whether the feoffment was 
 good, or whether it was not a disseisin ? 
 
 Bro. F. to Uses, 339, § 28. 
 
 But by the statute of 1 R. 3, c. 1, a power was annexed to a use that 
 cestui que use should alien the lands. 
 
 The reason of that statute was, because cestui que use in possession often 
 aliened the lands, and then the feoffees entered, which caused a great deal 
 of vexation and Chancery suits ; and therefore the statute gave cestui que 
 use an immediate power of alienation, without the concurrence of the feof- 
 fees; which leads us more particularly to examine the power of cestui que 
 use. 
 
 Gilb. Law of Uses, 27.
 
 USES AND TRUSTS. 115 
 
 (B) Properties of an Estate in Use at Common Law. 
 2. By the Statute of 1 R. 3, c. 1. 
 
 The statute of 1 R. 3, c. 1, enacts, that every estate, feoffment, gift, release, 
 grant, lease, and confirmation of lands, tenements, rents, services, or heredita- 
 ments, made or had, or hereafter to be made or had, by any person or persons, 
 being of full age, of whole mind, at large, and not in duress, to any person 
 or persons ; and all (a) recoveries and executions (b) had or made, shall be 
 good and effectual to him to whom it is so made, had, or given, and to all 
 other to his rise, against the seller, feoffor, donor, or grantor thereof and 
 against the sellers, feoffors, donors, or grantors, his or their heirs, claiming 
 the same only as heir or heirs to the same sellers, feoffors, donors, or grant- 
 ors,^) and every of them, and against all ot/iers having or claiming any title 
 or interest in the same,(d) only to the use of the same seller, feoffor, donor, or 
 grantor, sellers, feoffors, donors, or grantors, or his or their said heirs, at the 
 time of the bargain, sale, covenant, gift, or grant made :(e) saving to every 
 person or persons such right, title, action, or interest, by reason of any gift 
 in tail thereof made, as they ought to have had, if this act had not been 
 made. 
 
 (a) By this word (all) feint recoveries, as well as recoveries upon good title, are com- 
 prehended. But they are good only against the grantors, &c, and their heirs claiming 
 only as heirs to such grantors, &c. So that they are not good against him that claims 
 as heir to the grantor and his feme in tail perforatum doni. Arg. PI. C. 4 a, b, Mich. 
 6 Eliz. in Maxwell's case, (b) If a man recovers by erroneous judgment, and makes 
 feoffment to his use, and the other brings writ of error, and reverses the judgment, he 
 may enter without scire facias against the feoffees ; for it is a recovery, and therefore it 
 shall bind him and his heirs and feoffees by the statute 1 R. 3 Bro. Feoffment to Uses, 
 337, § 3. (c) Yet if cestui que use grants a rent-charge, and the feoffees are disseised, 
 the grant shall be good against the disseisor; and yet he does not claim only by the 
 cestui que use. Arg. 2 Le. 153, pi. 185, in case of CordePs Executors v. Clifton, (d) This 
 statute did not take away the power of feoffees, for they may yet make feoffments, but 
 enlarged the power of cestui que use, who may now make feoffments likewise. Godb. 
 303, in case of Lord Sheffield v. Ratcliff. (e) It was agreed per cur. that these words 
 are taken for tenant in tail in possession, and not tenant in tail in use; for cestui que use 
 in tail has no right or interest. Bro. Feoffment al Use, 339 b, § 40. ||Sir E. Sugden 
 observes, several statutes were passed as well before this act as after it, and previous 
 to the great statute, in order to remedy the abuses arising out of uses. By this act the 
 conveyances of cestui que use were made binding against him and his heirs, and also 
 against all persons claiming to his use. Although the act has now, it is apprehended, 
 ceased to have any operation, it forms an essential part of a work on uses. Gilb. by 
 Sugden, 52.(| 
 
 Here it is observable, that there is a difference between a feoffment ac- 
 cording to this statute, and a feoffment at common law. In case of feoff- 
 ments at the common law, the feoffor ought to be seised of the lands at the 
 time of the feoffment ; but, if a feoffment be according to the statute of 
 1 R. 3, in such case the feoffor did not need to be in possession. Feoff- 
 ments at the common law give away both estates and rights ; but feoff- 
 ments by the statute of R. 3 give the estates, but not the rights. In case 
 of feoffments at common law, the feoffee is in the per, viz., by the feoffor; 
 but in case of feoffments by the statute of R. 3, the feoffees are in the post, 
 viz., by the first feoffees. 
 
 Godb. 318, Ld. Sheffield's case; 2 Roll. R. 334, S. C. 
 
 Another difference likewise is taken in Plowden between the feoffment 
 of the feoffees and of cestui que use; for if the cestui que use for life or in 
 tail made a feoffment in fee, either with or without consideration, all the 
 old uses were discontinued, and the ancient estate which the feoffees had 
 is gone, and a new estate created, subject to those new uses raised by the
 
 116 USES AND TRUSTS. 
 
 (B) Properties of an Estate in Use at Common Law. 
 
 feoffment ; for when cestui que use makes a feoffment in fee, which by this 
 statute he might lawfully do, he passeth an use in fee-simple to the feoffee ; 
 which being a new use to the feoffee, all the old uses are discontinued, and, 
 consequently, the estate of the feoffee must be altered : for, were it the 
 ancient estate, it were still subject, by the former and elder limitation of 
 uses, to the old uses ; therefore have the feoffees, by construction, a new 
 estate to the new uses. But, if the feoffees themselves had made a feoff- 
 ment without consideration, the feoffees had stood seised to the old uses, 
 for here was no use nor new estate. 
 
 Gilb. Law of Uses, 180, cites PI. C. 350. 
 
 By the statute, cestui que use has no power of alienation, when he has a 
 naked right to a use, and not a use in esse, unless it be in order to confirm 
 an estate in being ; because the intent of the statute was only to give cestui 
 que use a greater power to transfer his estate, and not any other remedy to 
 regain and revest it ; and unless he has the use, he cannot pass the use, 
 much less the possession, to another. 
 
 Gilb. Law of Uses, 27; Plow. 351. 
 
 But, if the feoffee to a use in fee be disseised, and cestui que use release 
 to the disseisor, this extinguishes the use, and, by the statute, bars the entry 
 of the feoffee. 
 
 Plow. 351. For by the words of the act, the release is good against all claiming any 
 title or interest to the use of releasor. Ibid. Ibid. 
 
 Also, where feoffees to a use are disseisees, and after the disseisor enfeoffs 
 cestui que use, who enfeoffs a stranger ; this is good, and shall bind the 
 feoffees ; for the feoffment is good to pass the possession, and right of the 
 use, which he had in him : and the feoffees cannot enter to revive a use, 
 which the party himself by his own act has extinguished. 
 
 Gilb. Law of Uses, 28. 
 
 The statute likewise is to be understood of ceshd que use that has a use 
 in esse, in opposition to him that has only a reversion or remainder of 
 a use. 
 
 If a feoffment be made to the use of A for life, remainder to B in fee, A 
 may alien in fee, because the feoffees claim the whole estate for the use of 
 A during his life, and he has the whole advantage of it ; and the statute 
 that gives the present possessor of the use a power of alienation, has pro- 
 vided an immediate remedy for the remainder-man. 
 
 Gilb. Law of Uses, 28 ; Plow. 330. 
 
 But, if the tenant for life of a use aliens in fee, and dies, the feoffees may 
 enter on the alienee ; for, by the words of the statute, the alienation is good 
 against cestui que use and his heirs, and persons claiming only to his use. 
 So, when feoffees claim to the use of the remainder-man, the feoffment of 
 tenant for life, according to the authority given by the statute, is no longer 
 valid to bar the feoffees of the entry ; for their right is by the common law. 
 
 Gilb. Law of Uses, 29; Plowd. 348, Delamere and Barrard's case, the point re- 
 solved. 
 
 If there be a feoffment in fee to the use of A for life, the remainder to B 
 in fee, B has no power of alienation by the statute, during the continuance 
 of the estate for life, because the possession is, as is said, to the use of A 
 only, during his life, and so the remainder-man has nothing to do with the 
 possession : and if the remainder-man should enter on the feoffees and make 
 a feoffment, either the use of tenant for life would be destroyed, or the
 
 USES AND TRUSTS. 117 
 
 (B) Properties of an Estate in Use at Common Law. 
 
 feoffees must re-enter and create a particular estate to themselves, without 
 being subject to dower ; (a) for by the common law, every particular estate 
 is derived out of the fee-simple by the agreement of the parties in interest; 
 but here are no parties to such agreement, and the statute has not altered 
 the law in this case. 
 
 Gilb. Law of Uses, 29; Plow. 350; 1 Co. 128 b. But, though B cannot make a 
 feoffment during the continuance of the estate for life, yet, it seems, he may sell his 
 remainder during the life of A. Bro. Feoff, to Uses, 339 b, 44. ||(o) Qu. a "donor."|| 
 
 But if there be a feoffment for life, remainder in fee, he in remainder 
 may make a lease for years, or grant a rent-charge to begin after the death 
 of tenant for life ; for he cannot enter and take the possession out of the 
 feoffee ; but it is an executory contract on which the statute operates after 
 the death of tenant for life. 
 
 Gilb. Law of Uses, 30 ; Plow. 350 b. 
 
 So likewise, if a lease for life is made to the use of A, and afterwards the 
 reversion is granted to another for life to the use of B, and attornment is 
 had, and afterwards the reversion is granted to another in fee to use of C 
 in fee, and attornment is had ; in this case A may give the first estate for 
 life to whomsoever he pleases, and B may grant the reversion for life to 
 whomsoever he pleases, and C may grant the reversion in fee to whomso- 
 ever he pleases. 
 
 Plow. 350. The reason is, that here the estates are several, and the uses go out of 
 the several estates, whereas in the case of a feoffment to the use of one for life, &c, all 
 the several uses issue out of one estate, viz., out of the fee-simple, which is one same 
 estate without division, and the several possessors of the several uses cannot sever the 
 estate which is entire. Plow. he. cit. 
 
 Where a feme covert was cestui que use, and she and her baron made 
 feoffment ; this was good but during the life of the baron only by equity 
 and reason, though the statute of 1 R. 3 says nothing of a feme covert. 
 
 Plow. 350. 
 
 It is to be observed farther, with regard to the power given over estates 
 in use, that if cestui que use makes a feoffment in fee upon condition, and 
 after enters for the condition broken, he shall be seised of the estate in the 
 land ; for the whole estate is divested out of the feoffee by the feoffment, 
 and they cannot enter for the condition broken, because no parties to it. 
 
 Gilb. Law of Uses, 32 ; 1 Inst. 202 a. But, if husband seised in right of bis wife 
 make such feoffment, and re-enter for the condition broken, there he shall be seised in 
 right of his wife, as before. Bro. Fenff. to Uses, 338 b, § 23. 
 
 But, if cestui que use in tail aliens the land by lease and release, or feoff- 
 ment ; this only binds the feoffees during his life, because he has no longer 
 power of alienation. If the cestui que use, however, aliens by fine, this is 
 good, and bars the entry of the feoffees after his death, for that would dis- 
 possess the estate in tail by the statute of 4 H. 7. Yet if he aliens by re- 
 covery, it does not bind the issue, because he is not tenant to the prcecipe; 
 so that would be no bar at common law : and this is not helped by any 
 statute : for though a recovery here be expressly mentioned, and so it bind 
 the party himself, yet the right of the estate in tail is saved. [b) 
 
 Bro. Fag. to Uses, 337, § 2, 338, § 22, ||340 a, § 56.|| (ft)Ibid. § 7; Gilb. Law of 
 Uses, 32. ||The references to Broke show how the law fluctuated on this head. It 
 appears, however, to have been at last settled, that the recovery of cestui que use was 
 binding on his issue. j| 
 
 If tenant in tail of a trust levy a fine, or suffer a recovery, this is an
 
 118 USES AND TRUSTS. 
 
 (B) Properties of an Estate in Use at Common Law. 
 
 equitable bar of the estate, though the trustees do not join in the recovery 
 to make a legal tenant to the prcecipe : for as the fine and recovery pass 
 the entail in a legal estate at common law, so they pass the entail of a trust 
 in the court of equity.(a) 
 
 1 Ch. Cas. 49, 213 ; 2 Ch. Cas. 63, 64. ||(a)The author is here speaking of a trust 
 since the statute of uses. It is new settled, that a fine or recovery by an equitable 
 tenant in tail has precisely the same operation as a fine or recovery by a legal tenant 
 in tail, but no greater. 1 Ch. Cas. 213; 1 Vern. 440; 2 Vern. 131, 344; and a fine 
 cr recovery is essential to bar an equitable entail. 1 P. Will. 87; 3 Atk. 815; and 
 see Gilbert by Sugden, 58. || 
 
 But, if tenant in tail of a trust makes a mortgage, or acknowledges a 
 : udgment or statute, and then levies a fine and settles a jointure, the join- 
 tress shall hold it subject to the mortgage or judgment in the same man- 
 ner as if the mortgagor or conusor had been tenant in tail of the legal 
 estate, and after the mortgage or judgment had levied a fine and made a 
 jointure ; because the subsequent declaration of the use of the fine is 
 merely the act of tenant in tail, and he cannot by any act of his own make 
 a subsequent conveyance take place of one precedent ; and the rather, 
 because the feme claims under that fee which tenant in tail got by the 
 recovery or fine ; and that fee was subject to all the charges he had laid 
 upon it. 
 
 iCh. Cas. 119, 120. 
 
 If cestui que use makes a lease for years, reserving a rent, he shall have 
 an action upon the contract; but he shall not avow, because the legal 
 estate of the reversion is still in the feoffees, since he has put the estate 
 out of them but for a term ; but the equitable estate is in him, and he may 
 dispose of it, and the rent passes ; but the feoffees shall punish for waste 
 done by the tenant, and enter for a forfeiture, &c. 
 Bro. Feoff, to Uses, 337, § 6, 338, § 18. 
 
 Also, if cestui que use makes a lease for years, reserving a rent, this shall 
 go to his heirs ; for since the statute has given him power to make estates 
 at law, they are governed by the rules of common law. 
 Bro. F. a! Uses, 338 b, § 18, 23, 39 ; Gilb. Law of Uses, 34. 
 So, likewise, if cestui que use makes a lease for years, reserving a rent 
 with a clause of re-entry for non-payment of the rent, and the rent is be- 
 hind, cestui que use may enter; for he only can take advantage of his own 
 condition. And since the statute allows the act of re-entry by allowing 
 him power to make leases, he shall for ever keep the possession against 
 the feoffees. Quaere tamen. 
 
 Bro. F. to A/ses,338, § 18; Gilb. Law of Uses, 34. ||It seems clear, that the above 
 statute of Richard the Third does not apply to cestui que trusts of terms, but only to 
 seisins in fee; a question of importance; since, if the statute did so apply, the assign- 
 See Sir E. 
 
 is applicable. 
 
 A gift of land for years, or of a lease for years, 1o a use, is good, not- 
 withstanding the statute of R. 3. For the statute is intended to avoid 
 gifts in chattels to uses, to defraud creditors only ; and so is the preamble 
 and intent of this statute. 
 
 Bro. Feoff, to Uses. 340, § 60.
 
 USES AND TRUSTS. 119 
 
 (B) Properties of an Estate in Use at Common Law. 
 
 But the statute does not give cestui que use any power to devise the land. 
 Gilb. Law of Uses, 32. 
 The next property is, 
 
 2. That it is descendible ,- wherein. 
 With respect to the descent of uses, we must consider, 
 
 1. Of the Descent of a Use in Possession. 
 
 2. Of the Descent of a Use in Reversion. 
 
 Concerning the first, it is a principle, that if a use be limited to a man 
 
 and his heirs, the Court of Chancery will direct it to go to such persons as 
 
 .the common law has appointed to represent him, for the Chancery cannot 
 
 alter the common import of words, or set up rules of property opposite to 
 
 the rules of law. 
 
 Gilb. Law of Uses, 16. 
 
 As the Court of Chancery cannot alter the descent of the land, so it can- 
 not alter the law and custom of a place ; for all immemorial usages are part 
 of the laws of the land : and so if a man makes a feoffment in fee of lands 
 in gavelkind or Borough-English, without a consideration, to the use of 
 the feoffor and his heirs, this shall go to all the sons, or to the youngest, 
 according to the custom. 
 
 i Rep. 101, Shelley's case; Dy. 179; 2 Roll. Ab. 780; 1 Inst. 23; 13 Rep. 56, 
 Samme's case. See Hob. 31, Counden v. Clerke; Bro. Feoff, to Uses, 339, § 32. 
 
 So also, if there is a custom, that lands shall go to the eldest daughter 
 
 only, where there is no son, and a trust in equity descends upon the heir, 
 
 it shall go to the eldest daughter only. 
 
 2 Roll. Ab. 780; 10 Car. Jones v. Reasby. It was in the same term decreed in 
 Chancery accordingly. Ibid. 
 
 As the Chancery is governed by rules of inheritance, therefore none can 
 make himself heir but he that represents the person that was last in posses- 
 sion ; for he that last possessed it had the entire dominion and property, 
 which none else can have but by standing in his place ; and no man can 
 stand in his place but one of the whole blood. 
 
 1 Inst. 14; 4 Rep. 22, Copyhold Cases. 
 
 Thus, if lands descend on the part of the mother, and the party makes a 
 
 feoffment in fee, without consideration, or reserving this use to him and 
 
 his heirs, the use shall descend to the heirs of the part of the mother ; for 
 
 the land would have gone to the heirs of the part of the mother, and a use 
 
 is but an estate in equity, part of the estate in the land ; for the rule of law 
 
 hat tends to the establishment of families and encouragement of industry, 
 
 is, that those that take benefit as representatives shall convey it all along 
 
 in the blood of the first purchaser, from whom the benefit was derived ; 
 
 and the use and possession was derived from the mother, and the use was 
 
 never parted with, but the possession only ; so the use must be all along 
 
 conveyed to the heirs on that side. 
 
 1 Inst. 13 a; 2 Ro. Ab. 780; 13 Rep. 56, Samme's case; Bro. Feoff, to Uses, 338 a, 
 § 10. But see Hob. 31, Counden v. Clerke, and Dy. 134. 
 
 It is to be observed, likewise, that there is a possessio fratris of a use, 
 which follows the analogy of descents at law ; and so if a man seised in 
 fee of a use had issue a son and a daughter by one venter, and a son by 
 another venter, and devises it for years, and dies, and the son dies during
 
 120 USES AND TRUSTS. 
 
 (B) Properties of an Estate in Use at Common Law. 
 
 the term, the daughter shall have it, and not the son : otherwise it had 
 been, if he had devised it for life. 
 
 Gilb. Law of Uses, 18 ; 1 Rep. 121, Chudleigh's case. ||See Bac. on Uses, p. 11 ; 
 1 Black. Com. 137.|J 
 
 Also, if a man for a valuable consideration purchases lands, or the use 
 of them to himself, they shall descend to his heirs : for there wants not the 
 word heirs to create an inheritance in a use : for it is equity, that a person 
 who gave a consideration for the fee should have it ; and that is not setting 
 up any other rules of property opposite to the rules of law, but mitigating 
 and dispensing with the rules of law, in particular cases, where they should 
 happen to shelter dishonesty and oppression ; but now, since the statute, 
 no inheritance can be raised without the word heirs, because now the uses, 
 as will be shown, are transferred into possession, and must be governed by 
 the rules of possession at common law, as to the words that create new 
 estates.(a) 
 
 Bro. Feoff, to Uses, 337 b, 4 ; 1 Rep. 100 b, Shelley's case ; Gilb. Law of Uses, 17, 
 18. ||(a) But yet, as before the statute, if A agree to sell a fee-simple estate to B, the 
 purchaser, immediately after the contract, is seised of the fee in view of equity, although 
 no words of inheritance were inserted. Gilb. on Uses, by Sugden, 30.|j 
 
 2. Of the Descent of a Use in Reversion. 
 
 In regard to descents of this kind, they are governed by the following 
 rules : 
 
 Where a man has an estate in himself, and limits an estate to his right 
 heirs, he is seised of the whole estate. 
 
 In the same manner, where a man has a use in himself, and limits a use 
 
 to his own right heirs, the same use is in him still. The reason is, because 
 
 ancestor and heir are correlative ; and so whoever represents me as to my 
 
 estate vested in him after my death, I represent him during my life as to 
 
 that estate ; and, consequently, giving an estate, already in me, to my heir, 
 
 is not departing with it, for it is a disposition, in other words, to myself, 
 
 and so all things remain in statu quo. 
 
 1 Vent. 380; Pibus v. Mitford, Gilb. Law of Uses, 19; |jCo. Lit. 22 b; 15 Ves. J. 
 365.|| 
 
 Thus, if a man seised of lands in fee, makes a gift in tail, or a lease for 
 life, remainder to his own right heirs, they take by descent, as in the old 
 reversion. 
 
 1 Inst. 22 b; Gilb. Law of Uses, 20. [jThis rule applies equally to a derisebys. 
 man to his own right heirs, though termed a remainder, and it will require a clear and 
 manifest intention to make the words operate as words of purchase. 11 East, 548; 
 12 East, 589 ; Gilb. on Uses, by Sugden, 32. || 
 
 Also, if A, seised of lands in fee, grants them by fine during his own life, 
 the remainder to his own right heirs, the reversion is in him, and he may 
 grant it. 
 
 Gilb. Law of Uses, 20. ||See edit, by Sugden, 33, n. 6. 
 
 So likewise, in the case of a fine sur conuzance de droit que il et sa feme 
 ad de son done to the husband, with a remainder to the conusor for life, re- 
 mainder to the right heirs of the husband, they are in of the old reversion, 
 and the wife surviving shall have it for life. 
 
 Gilb. Law of Uses, 20 ; Dy. 237. 
 
 Also, if a man makes a feoffment without a valuable consideration, to 
 the use of himself, for forty years, the remainder to B in tail, the remainder
 
 USES AND TRUSTS. 121 
 
 (B) Properties of an Estate in Use at Common Law. 
 
 to his own right heirs ; the feoffor is in of the old reversion, and he may 
 
 devise it, for a feoffment without consideration does not dispose of the use 
 
 thereof; the old use is in him still. 
 
 E. of Bedford's case, Poph. 3; 1 Moor, 718, 719, S. C. ; 1 Rep. 130, Chudleigh's 
 case. 
 
 But it hath been held, that if the feoffment were made upon a valuable 
 consideration, inasmuch as that it is a disposition of the use, there is an estate 
 m the feoffees to retain it till the death of the feoffors ; and this is an estate 
 of freehold, and affords a tenant to the prcecipe, and an estate to support a 
 contingent remainder. 
 
 1 Inst. 22 b, 23 a; Gilb. Law of Uses, 21. 
 
 Also, where I limit a use, already in me, to my own representatives, and 
 add a qualification to those representatives ; though this be no departing 
 with the estate, because there are not words to convey it out of myself, yet 
 there is an alteration of the estate in myself; and the use shall alter and 
 descend to my heirs that came under that particular distinction and qualifi- 
 cation ; because the use has always been changed and modified according 
 to the intent of the parties who have the interest ; and such a particular 
 estate shall be supposed in them, as may best answer the intent, ut res 
 valeat. 
 
 Gilb. Law of Uses, 20. 
 
 It is to be observed, likewise, with respect to remainders, that where a 
 man limits an estate of freehold to me for life, with a remainder to my heirs, 
 though after ever so many particular estates, the remainder is vested in me 
 for three reasons. First, because otherwise you construe the grant most in 
 favour of the grantor, and let him into the reversion during die contingency, 
 to punish waste and enter for the forfeiture. Secondly, because the whole 
 advantage must be intended to me when I am first named to take the same 
 sort of estate in the conveyance, and the benefit is not designed to any other 
 particular conveyance, but to all other persons that bear the character of my 
 representatives ; so that the limitation is for my sake, and only intends to 
 enlarge my estate after the particular estates are worn off, yet cannot be 
 construed in the same manner as where an estate is limited to A, the 
 remainder to the right heirs of B, because there is nothing in the last case 
 to lead the mind to such an interpretation ; for there is no benefit originally 
 designed to B, but to his heirs primarily ; and so the heir takes as a pur- 
 chaser. But, if the same sort of estate be not limited to the ancestor as to 
 the heir, the heir must take by purchase ; for it is plain the donor designed 
 him an original benefit, quite different from what he designed the ancestor. 
 Thirdly, because when the particular estates are worn off, they are as if 
 they had never been ; and so the heir should claim by descent, as in his 
 better title, and as of the dying seised of his ancestors. Another reason of 
 this law is, because it must be a contingent remainder, or a remainder vested; 
 but it would not be a contingent remainder, because of necessity it must be 
 in the ancestor and the person that represents him, and so construed a re- 
 mainder vested. Thus, — 
 
 1 Vent. 372 to 382 ; Gilb. Law of Uses, 21. 
 
 If J S makes a feoffment to the use of A, the remainder to B, the 
 remainder to the right heirs of A, the remainder is vested in A, and his heirs 
 claim by descent. 
 
 Gilb. Law of Uses, 23; Cro. Car. 24 a. 
 
 Vol. X.— 16 L
 
 122 USES AND TRUSTS. 
 
 (B) Properties of an Estate in Use at Common Law. 
 
 But if J S makes a feoffment to the use of A for a term of years, the 
 remainder to B T, the remainder to the right heirs of A ; the remainder is 
 not vested in A, but his right heirs take by purchase. (a) 
 
 Moor. 720, Earl of Bedford's case; Gilb. Law of Uses, 23. ||(a) Because A takes 
 a chattel interest only, and not a freehold. I| 
 
 If an estate be limited to A for life, remainder to the heirs male of the 
 body of A, and to the heirs male of such heir male, there is a trust executed 
 in A, because this is within the rule ; for here an estate is limited to A for 
 life, with a remainder to his heirs ; and so the word heirs is not a name of 
 purchase, but of limitation. 
 
 1 Inst. 22 b ; 2 Rep. 91 b, cites Fenwick v. Mitford. |]See Sir E. Sugden's learned 
 note on this passage, Gilb. Law of Uses, 39. || 
 
 But if an estate be devised, or, per Hale, be conveyed to A for life, the 
 remainder to his next heir male, and to the heirs male of the body of such 
 heir male ; there is an estate only for life in A, and a contingent remainder 
 in his heir, as a purchaser, which vests so instante that the particular estate 
 determines ; for though there be an estate for life in A, yet the remainder 
 is limited to his heir only, in the singular number only ; and heir in the 
 singular number only is a word of purchase, and not of limitation. 
 
 1 Rep. 66, 67, Archer's case ; Gilb. Law of Uses, 24 ; 1 Inst. 22 b. ||The decision 
 depended principally on the superadded words of limitation. || 
 
 Likewise, if an estate be limited to a man and his heir, he has only an 
 estate for life ; for it cannot go in perpetual possession, because no more 
 representatives than one only is expressed. The heir cannot take by way 
 of remainder, because it is limited by a conjunction copulative ; and a joint- 
 tenant he cannot be, because nemo est hares viventis. 
 
 Gilb. Law of Uses, 24 ; 1 Inst. 8 b. 
 
 But if one devises an estate to a man and his heir, a fee-simple passes, 
 and heir there is taken as nomen collectivum, to answer the intent of the 
 party, which appears to be, that he intended to pass a fee, as if it had been 
 limited to the devisee and his heirs for ever. 
 
 Gilb. Law of Uses, 24; 1 Inst. 8 b. 
 
 || Where there was a devise to a woman and her heirs during their lives, 
 and she had two children born before, and a third born after making the 
 will, it was held, that the latter words were repugnant to the others, and 
 that she took an estate of inheritance. 
 
 Doe dem. Cotton v. Stenlake, 12 East, R. 515. || 
 
 So, if an estate be devised to A during the life of B, in trust for B, and 
 after the decease of B to the heirs male of the body of him the said B now 
 living, that is a remainder vested in the heirs of B ; for heir now living, in 
 that devise, must be taken as a periphrasis of the heir apparent, who is 
 called heir in law, as may be observed by the words quarejllium et heeredem 
 rapuit. 
 
 Gilb. Law of Uses, 24 ; 2 Vent. 311, Burchett v. Durdant. ||See Sir E. Sugden's 
 note, Gilb. Law of Uses, 47. || 
 
 The next property of a use is, 
 
 3. That it is devisable. 
 
 The reason why lands were not originally devisable, was, because the 
 ceremony of livery was required to the transmutation of the possession, 
 which is not necessary to the disposal of a use ; for livery is to give notice
 
 USES AND TRUSTS. 123 
 
 (B) Properties of an Estate in Use at Common Law. 
 
 against whom the prcecipe is to be brought, and the prcecipe is only of an 
 estate of freehold. 
 
 Treatise of Tenures, 77 ; 1 Rep. 123 b ; Gilb. Law of Uses, 35. But by 32 H. 8, 
 c. 1, and 34 H. 8, c. 5, lands, &c, are devisable by will. 
 
 If a man makes a feoffment in fee to the use of his last will, the feoffor 
 has it to the use of himself and his heirs ; for until a man has actually dis- 
 posed of the use, the use is in him only ; and if he devises, the parties must 
 claim their interest by the devise. 
 
 6 Rep. 18 ; Sir Edw. Clere's case; 1 Inst. Ill b ; Bulst. 200, Semain's case. 
 
 But if a man makes a feoffment in fee to the use of such person and 
 persons, and of such estate and estates as he shall appoint by his last will ; 
 there, by the words of the conveyance he has a qualified fee, till declara- 
 tion and limitation according to his power reserved ; and it is only the 
 office of the will to nominate ; for the interest is transferred and disposed 
 of by the feoffment. But, where there are no words of disposition, &c, 
 in the feoffment, there the parties must claim by the devise. 
 
 fi Rep. 18, Sir Edward Clere's case; 1 Inst. 111b; Gilb. Law of Uses, 33. ||This 
 is a case since the statute of uses. The fee results, and is vested, subject to be di- 
 vested by an appointment. In what cases a disposition shall take effect under the 
 power or by force of the interest, see Sug. Treat, of Powers, p. 231.|| 
 
 If a copyholder surrenders to the use of his last will, the land is still in 
 the copyholder, and he may dispose of it by an act in his lifetime ; if he 
 does not by any will, it shall go to his heirs ; if he makes a will, it passes 
 by the surrender, and not by the will ; for the property of the copyhold is 
 not altered by a private act of the tenant, but by an open and solemn act 
 in the lord's court.(a) But at common law, the use of the land may pass 
 by a devise, as is said ; and the freehold itself since the statute || of wills. || 
 
 4 Rep. 23, Copyhold cases; 1 Leon. 174, Bulleyn and Grant's case; Cro. Eliz. 
 441, Fitch v. Hockley. \\(a) This has no relation to the subject before us. Copy- 
 holds are not within the statute of uses, because the transmutation of possession by 
 the sole operation of the statute, without allowance of the lord, would tend to the 
 lord's prejudice. Rowden v. Malster, Cro. Car. 44; and see 5 Term R. lll.|| 
 
 Also, if a man suffers a recovery to the use of his last will, he may dis- 
 pose of the estate by a conveyance de novo during his life ; but he cannot 
 during his life limit new uses on the old recovery, so as to be thereby bound 
 from any alteration : because the whole interest of the recovery was declared 
 to be to the use of his will ; which is changeable in its nature. 
 
 Hob. 349, Earl of Ormond's case; Gilb. Law of Uses, 36. 
 
 Likewise, if a man makes a feoffment in fee to the use of his last will, 
 
 and in the deed he expresses the use of the will to be to himself for life, 
 
 and then to his son in tail, and afterwards makes a lease for years, and 
 
 dies, this shall bind the son ; for it being expressly declared to the use of 
 
 his will, it supposes a power in him to change it. 
 
 Bro. F. al Uses, 337, § 1 ; 19 H. 8, c. 12. But where the use is declared upon the 
 livery without the word " will," there, he cannot alter his will. Bro. loc. cit. 
 
 If cestui que use devises, that his feoffees may alien the land to J S, the 
 feoffees may enfeoff A, and B may alien to J S. 
 
 Bro. F. 338, § 12. 
 
 Likewise if cestui que use devises, that his feoffees should alien the land 
 for payment of his debts, the creditors may compel him in the Court of 
 Chancery to do it. 
 
 Bro. F. 338, § 12.
 
 124 USES AND TRUSTS. 
 
 (B) Properties of an Estate in Use at Common Law. 
 
 So also, if cestui que use devises that his feoffees should alien the land, 
 the heir shall take the profits till alienation, and if they do not alien, he 
 shall have the land for ever. 
 
 Bro. F. 338, § 12. ||See a translation of this case from the Year-Books, Sug. on 
 Pow. App. No. 1, p. 535.|| 
 
 4. That it is not extendible, or Jlssets. 
 
 The reason why a use was not extendible is, because there is no process 
 at law but upon estates at law ; and uses are merely creatures of equity, 
 on which the common law can award no execution ; and they were not 
 assets, because they go in the course of inheritance, and not to executors. 
 
 1 Rep. 121 b, Chudleigh's case; 1 Ch. Cases, 14, Bennet v. Box; Ibid. 128, Pratt 
 v. Colt. 
 
 But if a term be limited to attend a fee-simple, this shall be assets for 
 the payment of just debts ; for the Court of Chancery will not carry it out 
 of its due course, where there is any prejudice or inconvenience. 
 
 Hardr. 489, The Attorney-General v. Sir Geo. Sands. |]The term shall be equally 
 charged with the inheritance, but not to a greater extent; therefore it shall not be per- 
 sonal assets for payment of debts. Thmxton v. Attorney-General, 1 Vern. 340; Tif- 
 fin v. Tiffin, 1 Vern. 1. The rule is the same, though the term is attendant only by 
 construction of equity. Baden v. Earl of Pembroke, 2 Vern. 52, 213.1] 
 
 Likewise by the stat. of R. 3, it is held extendible upon a statute staple, 
 or merchant ; for this is in the nature of a grant, or lease for years ; and 
 grants of leases are made good against cestui que use and the feoffees, by 
 the statute. 
 
 Bro. F. al Uses, 339, § 25 ; 1 Co. 131 b, Chudleigh's case. 
 
 But since the statute of frauds and perjuries, uses seem to be assets in 
 the heir for the payment of just debts, the heir being obliged to pay all 
 just debts out of a real estate that descends from the ancestor. 
 
 1 Chan. R. 128, Pratt v. Colt; Gilb. Law of Uses, 38. ||But it is questionable 
 whether execution can be sued after the trustee, in whom the estate was vested, has 
 conveyed it to a purchaser. See Gilb. Law of Uses, by Sug. 77. || 
 
 5. That it is not forfeitable. 
 
 A use in fee could npt be forfeited for felony ; for in case of felony the 
 lands are cast on the lord of whom they are holden, for want of heirs ; 
 but a use is holden of nobody. 
 
 Hardr. 4G6, 4G7, 488, -189; Gilb. Law of Uses, 38. 
 
 Neither could it be forfeited for treason ; for all tenures are forfeited by 
 the breach of fidelity and duty owed to the lord ; for under that condition 
 the tenants take their estates, and consequently all breaches of allegiance 
 forfeit the estate to the king, since it originally came from, and is still 
 holden of him ; but a use is holden of nobody. 
 
 Hardr. 492, 495; Gilb. Law of Uses, 39. But the law in this point is altered by 
 26 H. 8, c. 13; 33 H. 8, c. 20. And see Hale's P. C. vol. i. 240, 247, et sequent. ||In 
 Burgess v. Wheate, 1 Blackst. 123, it was decided by Lord Keeper Henley, and Sir 
 Thomas Clarke, against Lord Mansfield, that upon the death of cestui que trust with- 
 out heir the estate does not escheat, but shall be retained by the feoffee. || 
 
 But, if a term be limited in trust, and cestui que trust commit treason or 
 felony, the term is forfeited ; for the personal property goes with the per- 
 sons ; and when the possession is forfeited, the party is incapable of per-
 
 USES AND TRUSTS. 125 
 
 (C) The Inconveniences of Uses. 
 
 sonal property, consequently, the right is in the public, and the king has 
 the use of the term in this case. 
 
 Allen, 16, Holland's case; Hardr. 366, 495 ; Gilb. Law of Uses, 39. 
 
 Yet, if a term be limited to attend the inheritance in trust, it is not for- 
 feited for felony, because it does not vest in his person and go to his execu- 
 tors, but belongs to the inheritance, like the charters which are not forfeited. 
 
 Hardr. 495, Attorney-General v. Sands ; Gilb. Law of Uses, 39. 
 
 But no use can be forfeited at this day, unless it be of a chattel or a 
 lease ; for all uses of frank-tenement are, by the statute of 27 H. 8, executed 
 in possession, as will be shown hereafter ; and so there is no use which 
 can be forfeited, and it would be in vain to give uses where no use exists 
 at the time. 
 
 And. 294, pi. 302, Sir Francis Inglefield's case. 
 
 6. A Woman is not dowahle of a Use. 
 
 A feme was not dowable of a use, for the privilege of dower was only 
 to freeholders' wives ; now a use, being no freehold, was not within that 
 law, and the Chancery allows the feoffees to be seised to nobody's use but 
 those that are particularly named in the trust. (a) 
 
 1 Rep. 122 a; Gilb. Law of Uses, 25. Neither can a husband be tenant by the 
 curtesy of a use. 1 Rep. 122. ||(ffi)This rule still prevails as to trusts, of which the 
 wife is not dowable. 2 P. Will. 708; Forr. 138; Sug. Ven. & P. 605, (3d edit.;) 
 2 Atk. 525 ; 1 Black. 123. But it is firmly settled that a husband shall have curtesy 
 of a trust. 1 P. Will. 108 : and even of money directed to be laid out in land, because 
 in equity it is considered as laid out. 2 Vern. 536 ; 1 Ves. 174. The rule as to the 
 exclusion of dower appears to have arisen from the common practice among convey- 
 ancers to place the legal estate in trustees, to prevent dower; and, therefore to let in 
 dower would have created confusion. 3 P. Will. 234 ; and see Gilb. Law of Uses by 
 Sug. 49.|| 
 
 And that being the case, it became a practice for the father and friends 
 of the woman to procure the husband to take an estate from the feoffees, 
 or others seised to his own use, for life ; and then to the use of his wife, 
 for life, before or after the marriage ; which was the original jointures. 
 
 4 Rep. 1 b, Vernon's case. After the 27 H. 8, for transferring uses into possession, 
 the wives would have been entitled to their dower of the husband's seisin, as well as 
 to their jointure, which occasioned the adding of the branch concerning jointures to the 
 27 H. 8. See title Dower and Jointure, Vol. iii. ; ||and see note, 4 Co. 1 b, edit. 
 Thomas and Fraser; Co. Lit. 36 b, 37 a; 1 Cru. Dig. tit. 7, c. 1, § 27. || 
 
 (C) The Inconveniences of Uses. 
 
 Such was the nature, property, and operation of uses at common 
 law, and since the statute of R. 3. And though these uses had a very 
 equitable beginning, yet, like all new models of general schemes of order- 
 ing property, they introduced a great many unforeseen inconveniences, and 
 subverted in many instances the institution and policy of the common law. 
 For — 
 
 Estates passed by way of use, from one to another, by bare words only, 
 without any solemn ceremony or permanent record of the transaction : 
 whereby a third person that had right knew not against whom to bring 
 action. 
 
 See the preamble to stat. 27 H. 8, c. 10 ; 1 Rep. 123, 124 ; 1 And. 323 ; Poph. 73. 
 
 Uses likewise passing by will, the heirs were disinherited by the inad- 
 
 l2
 
 126 USES AND TRUSTS. 
 
 (D) Alterations introduced by 27 Hen. 8, c. 10. 
 
 vertent words of dying persons. Lords also lost their wardships, reliefs, 
 marriages, and escheats ; the trustees letting cestui que use continue the 
 possession, whereby the real tenants that held the lands could not be dis- 
 covered. The king likewise lost the estates of aliens and criminals ; for 
 they made their friends trustees, who kept possession, and secretly gave 
 them the profits so as the use was undiscovered. Purchasers were inse- 
 cure ; for the alienation of cestui que use in possession was at common law 
 a disseisin, and though the 1 R. 3, c. 1, gave him power to alien what he 
 had, yet the feoffees might still enter to revest a remainder or contingent 
 use, which were never published by any record or livery, whereby the 
 purchaser could know of them. Estates likewise created by law in con- 
 sideration of marriage, such as tenancies in dower and by curtesy, were 
 defeated, notwithstanding the 1 R. 3. Add to these, that the use was not 
 subject to the payment of debts, and that many lost their rights by perjury, 
 in averment of secret uses. And lastly, that uses might be allowed in 
 mortmain. 
 
 Gilb. Law of Uses, 72. 
 
 To remedy these inconveniences, the legislature framed the statute of 
 27 H. 8, c. 10, which leads us to consider, 
 
 (D) The Alterations introduced with respect to the Conveyances to Uses by the 
 
 27 H. 8, c. 10, which 
 
 Enacts that, Where any person or persons (a) stand or be seised,(b) or 
 at any time hereafter shall happen to be seised of or in any honours, castles, 
 manors, lands, tenements, rents, services, reversions, remainders, or other 
 hereditaments, (c) to the use, confidence or trust of any other person or per- 
 sons, or of any body politic, by reason of any bargain, sale, feoffment, fine, 
 recovery, covenant, contract, agreement, will, or otherwise by any manner of 
 means whatsoever it be; in every such case, all and every such person and 
 persons, that have or shall have any such use or trust in fee-simple, tail, for 
 life, or years, or otherwise, or any use, confidence, or trust in remainder or 
 reverter, (d) shall from henceforth stand and be seised and be deemed and 
 judged in lawful seisin, estate and possession (e) of and in the same honours, 
 fyc, to all intents, Sfc, of and in such like estate as they had or shall have 
 in the use, Sfc, of and in the same; and the estate, title, right, and posses- 
 sion of such person or persons, as were or hereafter shall be seised of any 
 lands, tenements, or hereditaments, to the use, confidence, or trust of any 
 such person or persons, or of any body politic, be from henceforth clearly 
 deemed and adjudged to be in him or them that have or hereafter shall have 
 any such use, confidence, or trust, after such quality, manner, form, and con- 
 dition as they had before in or to the use, confidence, or trust that was in 
 them. 
 
 (a) 27 H. 8, c. 10. The word "person" excludes all corporations. Lord Bacon's 
 Reading on the Statute of Uses, 334, 335 ; ||Gilb. Law of Uses, 7, and Sir E. Sudden's 
 note.|| (i) This word "seised," excludes chattels and rights. ||See Gilb. on Uses, 
 by Sugden, 78, 79; and see 1 Comyn, 270. I| It likewise excludes contingent uses, 
 because the seisin cannot be but to a fee-simple of a use ; and when that is limited, the 
 seisin of the feoffee is spent. Lord Bacon's Reading on the Statutes of Uses, 335. 
 (c) This word "hereditaments," is to be understood of those things whereof an in- 
 heritance is in esse; for if I grant a rent-charge dc novo for life to a use, this is good 
 enough; yet there is no inheritance in being of this rent. It likewise excludes annui- 
 ties and uses themselves; so that a use cannot be to a use. Lord Bacon's Reading on 
 the Statute of Uses, 335. (d) The statute having spoken before of uses in fee-simple,
 
 USES AND TRUSTS. 127 
 
 (D) Alterations introduced by 27 Hen. 8, c. 10. 
 
 in tail, for life or years, addeth, or otherwise " in remainder or reverter," whereby it is 
 manifest that the first words are to be understood of uses in possession. Lord Bacon's 
 Reading on the Statute of Uses, 337. (e)The words "lawful seisin, state, and pos- 
 session/' intended not a possession in law only, but a seisin in tail ; not a title to 
 enter into the land, but an actual estate. Lord Bacon's Reading on the Statute of 
 Uses, 338. 
 
 § 2. Where divers persons shall be jointly seised to the use or trust of any 
 of them, those which shall have such use or trust shall be adjudged to have 
 only such estate, possession, and, seisin of the lands, #c, as they had in the 
 use or trust, saving to all persons other than those which be seised to any use 
 or trust, all right, fyc. 
 
 § 3. Mso saving to all those persons which shall be seised to any use, all 
 such former rights as they might have had to their own proper use. 
 
 Upon this saving clause the following case has been determined. The husband 
 being seised in fee°made a lease to O and S, but it was in secret confidence for the 
 preferment of his wife ; and afterwards he made a feoffment to O and others of the 
 same land to other uses. It was decreed by the advice of Wray, Anderson, and Man- 
 wood, that the term was not extinguished by this feoffment, by reason of the proviso; 
 and because O had this lease to his own use, it is not extinguished by the feoffment 
 which he took to the use of another. Mo. 196, pi. 345, Cheyney's case ; 2 And. 192, 
 pi. 9, S. C. says, the lease was made really in trust to the use of the wife, and edu- 
 cation of their sons and daughters, notwithstanding that divers covenants were therein 
 contained, and a rent was reserved ; and says, that the feoffment made afterwards was 
 to the use of the husband himself and his said wife for their lives, with remainder 
 over; and that the same was held accordingly. 
 
 § 4, 5. Where any be seised to any use or intent that another shall have 
 a yearly rent out of the same lands, cestui que use of the rent shall be 
 deemed in the possession thereof of like estate as he or she had that use. 
 
 A man, in consideration of natural love and affection, covenanted to stand seised to 
 the use of himself for life, the remainder to B his son in tail, and to the intent that B 
 should have a rent issuing out of the lands, during the life of A ; B the son dies, and 
 his executors brought debt for the arrears of the rent. It was resolved and adjudged, 
 that by these word's of the statute B in this case had a good rent, as well upon cove- 
 nant as by a feoffment, or bargain and sale. Sir W. Jo. 179, Rivetts v. Godson. 
 
 The design of this law was utterly to abolish and destroy that pernicious 
 way of conveyance to uses.(a) And the means they took to do it was to 
 make the possession fall in with the use in the same manner as the use 
 was limited ; and where they were all freeholds, it was thought they would 
 be then subject to the rule's of common law. But the method has not 
 answered the legislature's intent; for it has introduced several sorts of 
 conveyances quite opposite to the rules of common law ; for now, when- 
 ever a use is raised, the statute gives cestui que use the possession ; so that 
 it is only necessary to form a use, and the possession passes, without any 
 livery or record, and the reversions, without the attornment of particular 
 tenants ; and now the use (by the name of trust, which were one and the 
 same before the statute) remains separately in some persons, and the pos- 
 session separately in others, as it did before the statute, and are not brought 
 together but by decree in Chancery, or the voluntary conveyance of the 
 possessor of the land to cestui que trust. So that the principal use of the 
 stat. of 27 H. 8, especially upon fines levied to uses, is not to bring to- 
 gether a possession and use, but to introduce a general form of convey- 
 ance, by which the conusors of the fine, who are as donors in the case, 
 may execute their intents and purposes at pleasure, either by transferring 
 their estates to strangers, by enlarging, diminishing, or altering them, to
 
 128 USES AND TRUSTS. 
 
 (D) Alterations introduced by 27 Hen. 8, c. 10. 
 
 and amongst themselves, at their pleasure, without observing that rigour 
 and strictness of law for the possession of the conusee, as was requisite 
 before the statute. 
 
 Vaugh. 50, Dixon v. Harrison. ||(a) Bacon supports at length the contrary opinion. 
 Uses, p. 39 ; and see l)y. 3G2 b, pi. 31.|| Notwithstanding- this statute, there are, as 
 will be shown more particularly, three ways of creating a use or a trust which still 
 remain as at common law, and is a creature of the courts of equity, and subject only to 
 their control and direction. 1st, Where a man seised in fee raises a term for years, 
 and limits it in trust for A, for this the statute cannot execute, the termor not being 
 seised. ||But if A, being seised in fee, bargains and sells to B for 500 years, the sta- 
 tute will execute the use in B ; but if B afterwards assign the term to C, to the use of 
 D, the lewal estate will remain in C, and D will take a mere trust in equity. Gilb. 
 on Uses, by Sugden, 80. || 2dly, Where lands are limited to the use of A in trust, to 
 permit B to receive the rents and profits ; for the statute can only execute the first use. 
 3dly, W T here lands are limited to trustees to receive and pay over the rents and profits 
 to such and such persons: for here the lands must remain in them to answer these 
 purposes; and these points were agreed to. I Abr. Eq. Cases, 383, Simpson v. Tur- 
 ner; || Doe v. Biggs, 2 Taunt. 109, 113 ; Kenrick v. Beauclerck, 3 Bos. & Pul. 175; 
 Doe v. Ironmonger, 3 East, 533 ; Harton v. Harton, 7 Term R. 652 ; Keene v. Dear- 
 don, 8 East, 218°; Gregory v. Henderson, 4 Taunt. 172 ; Knight v. Smith, 12 East, 
 455,|| 
 
 But before we consider the particular alterations introduced in the mode 
 of conveying property by the 27 H. 8, it may be necessary to premise in 
 general, that, since the statute, the limitation of uses is, in many cases, 
 governed by the rules of law. As, if a feoffment is made to the use of J 
 S and his heirs male lawfully begotten, with remainder over ; this does 
 not pass an estate tail, but a fee-simple, since the statute ; for since the 
 statute has brought uses into possession, they ought to be governed by the 
 rules of estates in possession, as to the words that are essential to the 
 creating of such uses. Now if there be no words essential to the creating 
 of an estate, there is no such estate at common law, and the statute has 
 not abrogated the common law so far as to allow an estate in being, with- 
 out words necessary to create it ; and here nobody is limited from whence 
 the heirs of the tail may proceed. Also, no fee-simple can be created in 
 uses, without the word heirs, since the statute, for the same reason. 
 
 Gilb. Law of Uses, 75 ; 1 Rep. 87 b. Before the statute the word heirs was not ne- 
 cessary to create an inheritance in a use, but now uses are turned into possession, they 
 are governed by the rules of possessions at common law. {Willes, 180, Tapner v. 
 Merfott; 1 Dall. 137, Vanhorn's Lessee v. Harrison.} See ante, with respect to the 
 descent of uses. ||And see Gilbert, by Sugden, note, p. 143. || 
 
 So, if a man makes a feoffment to the use of himself for years, the. re- 
 mainder to B in tail, remainder to his own right heirs, and after B dies 
 without issue, living the feoffor ; the remainder to his right heirs is void, 
 because it being contingent, there is no estate of freehold to support it, for 
 there is no tenant to the prcecipe, and the not having a perpetual tenant to 
 the praecipe was an inconvenience the statute expressly designed to re- 
 dress, and consequently to this rule the statute has submitted all uses. 
 
 2 Roll. Abr. 791 ; Gilb. Law of Uses, 76. Gilbert makes a qu. whether, to make 
 this remainder contingent, the limitation should not be to the use of A for years, re- 
 mainder to B in tail, remainder to the right heirs of C, for the case as above reported 
 in Rolle does not appear to be contingent remainder. ||The foregoing note is by Gil- 
 bert. Sir E. Sugden says, the answer to the query is, that as the remainder was 
 limited to the right heirs of the settlor, it was the old and not the new use, and conse- 
 quently not a continarent remainder; but upon the death of B without issue, the estate 
 revertr (1 to the settlor. This appears from the correct report of the case in Mo. 718. 
 Gilb. by Sugden, 115.||
 
 USES AND TRUSTS. 129 
 
 (E) Of the several Sorts of Conveyances to T s. 
 
 Likewise, if a man makes a feoffment in fee to the use of A for life, 
 the remainder to his first son in tail, the remainder to B in fee ; if A dies, 
 his wife being privement enseint, and a son is afterwards born, he shall 
 take nothing ; for if the remainder does not vest at the determination of 
 the particular estate, it shall never vest ; for as it is said before, the sta- 
 tute does not change the nature and being of estates that were settled at 
 common law, and a remainder ex vi termini supposes a particular estate, 
 of which it doth remain. 
 
 Gilb. Law of Uses, 77. But see 10 & 11 W. 3, c. 10, for preserving contingent 
 remainders to after-born children, || which statute was occasioned bv the decision in 
 Reeve v. Long, 1 Salk. 227.11 
 
 ^C5» 
 
 So, if a man makes a feoffment in fee to the use of A his son for life, 
 and afterwards to the use of every person that shall be his heir, for life 
 only, it is not good to the heir ; for it is against the rules of common law, 
 that a perpetual freehold for life only should descend, because it creates 
 a perpetuity. But it seems in this case, as if the Chancery (since there 
 is supposed a good consideration) would have executed a fee in A, accord- 
 ing to the intent of the parties. 
 
 1 Rep. LIS a, Chudleigh's case; Gilb. Law of Uses, 77. If such a limitation were 
 good, the inheritance would be in nobody. 
 
 In some cases, however, the statute operates against the rules of law. 
 As, 
 
 If a man makes a feoffment in fee, to the use of A in fee ; but upon 
 payment of 100?. or any other contingency, to the use of B in fee, if the 
 contingency happens, the fee shall be executed in B ; for though, accord- 
 ing to the rules of common law, a fee cannot be limited on a fee, because 
 a fee-simple is the largest estate that can be limited, and therefore will 
 not bear a remainder over, by way of limitation ; and though this cannot 
 be construed a conditional estate, because to avoid maintenance, the com- 
 mon law allows no stranger to take advantage of a condition ; yet the 
 necessities of commerce and family settlements induced the Chancery to 
 pass by this rule, and the statute has executed the possession in the same 
 manner and form as the party had the use. Now since he had but a con- 
 ditional fee in the use before the statute, he cannot have an absolute and 
 unconditional estate, since the statute ; for that is to set up an estate di- 
 rectly contrary to the express words of the statute. 
 
 Gilb. Law of Uses, 78. || See Sir E. Sugden's summary of the operations of the 
 statute in altering the common law. 1st, In the transfer of the legal estate by a mere 
 secret deed ; 2dly, in the creation of estates not allowed by the common law. Gilb. 
 by Sugden, p. 148. || 
 
 It has been observed, that the statute of the 27 H. 8, introduced 
 several sorts of conveyances quite opposite to the rules of common law ; 
 and this leads us to consider the several sorts of conveyances to uses,, 
 with their respective operations. 
 
 (E) Of the several Sorts of Conveyances to Uses. * 
 
 There are but three sorts of conveyances to uses ; the two first of 
 which only will feed a contingent use, viz. : 1. Feoffment, fine, or com- 
 mon recovery to uses. 2. Covenant to stand seised to uses. 3. Bargain 
 and sale to uses. By this last conveyance only no contingent use can 
 be supported. 
 2 Sid. 158, Heyns v. Villars 
 
 Vol. X.— 17
 
 130 USES AND TRUSTS. 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 It is to be observed, concerning the operation of these conveyances, 
 that by those under the first division, such as feoffment, fine, or common 
 recovery, uses are raised by transmutation of possession ; but by the se- 
 cond and third, that is, by covenant to stand seised, and by bargain and 
 sale, uses arise without transmutation of possession, for the possession is 
 still retained by the covenantor pr bargainor, but for the use of another. 
 Therefore, 
 
 Plow. 301, Sharrington v. Stotton. The covenantee or bargainee cannot have the 
 land, because they had not livery of seisin, therefore reason vests the use in them, 
 which is but a right in conscience to have the profits. Plow. loc. cit. 
 
 1. Of those which raise Uses by way of Transmutation of Possession, such as, 1. Feoff- 
 ment. 2. Fines. 3. Recoveries. 
 
 The general nature and effect of these several assurances have been 
 already explained under their respective titles. It may not be improper 
 here, however, to take notice of this general rule, viz., That 
 
 On these conveyances which raise uses by way of transmutation of pos- 
 session, no consideration is necessary. 
 * Per Holt, C. J., 12 Mod. 161, 102, and 1 Rep. 170, Mildmay's case. 
 
 A use declared on an estate executed, needs no consideration. 
 
 Moor, 102, pi. 247, Calthorpe's case. It may be added, that when a use arises upon 
 a consideration, the consideration must be presently executed. Arg. Cart. 140, in 
 case of Garnish v. Wentworth. On the other hand it has been argued that if J cove- 
 nant to stand seised to the use of J S and his heirs, in consideration that he shall be 
 my counsellor, it is good, and the land passed presently, though it is not executed. 
 Arg. Cart. 142, says this case was put by Popham in B. R. in one Pepplewell's case. 
 || See note (8), Harg. Co. Litt. 123 a.|| 
 
 It remains in the next place to consider, 
 
 Dieds declaring the Uses of Feoffments, Fines, and Recoveries. 
 
 And herein it is to be premised, that uses may be declared or averred 
 on a feoffment, fine, or recovery of land ; but on a bargain and sale of 
 land no use may be declared or averred, but what the law doth make. 
 
 1 Rep. 176, Mildmay's case. || Because a use cannot be declared upon a use ; and 
 see Gilb. by Sugden, p. 149. || 
 
 Likewise on a covenant to stand seised to uses, no use may be declared 
 or averred but Avhat is contained within the deed. 
 1 Rep. 176, Mildmay's case ; Dyer, 169, pi. 21. 
 
 It remains therefore to consider, 
 
 1. Who may declare uses. 2. To whom they may be declared. 3. In 
 what manner they may be declared. 4. At what time they may be de- 
 clared. 5. In what cases averments may be made of uses. 
 
 1. Who may declare Uses. 
 
 As the Court of Chancery does not set up rules of property contrary 
 to the rules of law, they who have not a disposing power by the law can- 
 not raise a use ; and consequently baron and a feme covert cannot declare 
 uses upon a feoffment so as to bind the wife. 
 
 Gilb. Law of Uses, 39. 
 
 But baron and feme may levy a fine which will bind the wife ; for here 
 the law allows her a disposing power, because she is privately examined ; 
 consequently, the Chancery must allow them to declare what is the design
 
 USES AND TRUSTS. 131 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 of that fine ; and therefore such declaration by them both shall hind the 
 wife. 
 
 Moor, 197 ; 2 Rep. 57 a, Beckwith's case ; 2 Roll. Abr. 798. 
 
 Likewise, if the husband only declare the uses, this shall bind the 
 wife ; for since she joins in the fine, she must be presumed to concur in 
 the design of that fine, unless the contrary appears by some manifest 
 sign of dissent. 
 
 2 Rep. 57 a ; Roll. Abr. 798. 
 
 But, if the husband declares the uses of the fine one way by deed, and 
 the wife another way by deed, this binds the husband during the coverture, 
 but not the wife afterwards ; for the husband cannot declare the uses with- 
 out concurrence of the wife, because he has no estate ; and she cannot be 
 presumed to concur where the contrary appears by her deed : and she can- 
 not declare the uses alone, because during marriage she is not sui juris, 
 and without the husband she has no disposing power : and if there be no 
 use declared upon this fine, it is to the use of the wife : for where there 
 is no other intent of a fine declared, it is supposed to be designed as a 
 farther security to the present possessor ; and the use is still in the wife, 
 since in this case she has not departed with it. 
 
 2 Rep. 57 ; Moor, 197, Beckwith's case. Quaere, whether the declaration be not 
 merely void. Gilb. Law of Uses, 40. A fine shall bind the wife, though she be within 
 age ; but it is said that such a fine is reversable for the nonage of the wife during her 
 nonage. Cro. Eliz. 129 ; Charnoicke et Ux. v. Worsley, 2 Rep. 77 b ; Lord Crom- 
 well's case, Gilb. Law of Uses, 41. 
 
 A man of non sane memory may declare the use of a fine levied. 
 
 2 Rep. 58 a, Beckwith's case. So, an infant may limit a use upon feoffment, fine, 
 or recovery, and he cannot countermand or avoid the use, without first avoiding the , 
 conveyance. Lord Bacon on the Statute of Uses, 355. 
 
 It is observable in general, that every man may declare and dispose 
 of the use according to the estate and interest he has in the land : and 
 therefore if two joint-tenants levy a fine, and declare the uses severally, 
 each man disposes of his own moiety ; but, if they declare no uses, they 
 are seised as before. 
 
 2 Rep. 58 a, Beckwith's case. 
 
 So, if tenant for life and he in remainder in fee join in a fine, without 
 declaring any uses, they are seised as they were before. 
 
 2 Rep. 58 a, Beckwith's case. 
 
 [If the remainder-man seals, and is party to a deed, wherein the tenant 
 for life alone covenants to suffer a recovery, &c, to certain uses, this 
 does not bind the remainder-man, though he in the remainder after join 
 in suffering the recovery, &c. 
 
 3 P. Wms. 210, note B. " 
 
 If tenant for life, remainder-man in tail, and reversioner in fee levy a 
 fine, a declaration of uses by the tenant for life and remainder-man does 
 not bind the reversioner, without his privity. 
 
 Roe v. Popham, Dougl. 25.] 
 
 If A seised of certain lands, and B a stranger join in a fine, without 
 consideration, it shall be to the use of A, for since there is no considera- 
 tion to part with the land, the use is still in him. 
 
 2 Rep. 58 a. 
 
 In like manner if A, seised in fee of certain lands, and B, a stranger,
 
 132 USES AND TRUSTS. 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 join in a common recovery, without declaring any uses, the use shall 
 arise to him that had the interest in the land, and not to the stranger. 
 
 2 Roll. Abr. 789. 
 
 So, where the father was tenant for life, remainder to the son in tail ; 
 a prcecipe was brought against the father, who vouched the son, and a 
 common recovery was had ; and the indenture recited, that the recovery 
 was made between the father and others: but, inasmuch as no proof was 
 of the consent of the son to such declaration, nor was he party to the 
 indenture, the court directed the jury to find the uses according to the 
 estate which the parties had at the time of the recovery.(a) 
 
 Lat. 82, Argol v. Cheney; Palm. 405, S. C; Noy, 7, S. C. {a) See farther letter 
 (I) of Resulting Uses. 
 
 [The king may declare uses upon his letters patent, though indeed the 
 patent of itself implies a use. But, if the king gives lands to J S and his 
 heirs by letters patent to the use of J S for life: here, J S has only an 
 estate for life, and the king has the inheritance without any office found ; 
 for implication out of matter of record ever amounts to matter of record. 
 
 Bac. Uses, 66 ; Sand. Uses, 208. 
 
 The queen may also declare uses. 
 
 Bac. Uses, 66 ; Sand. Uses, 208. 
 
 2. To -whom they may be declared. 
 
 A use, it is said, cannot be raised to aliens. For an alien could not 
 compel the feoffees to execute a use ; for it is contrary to the policy of 
 the law that an alien should plead, or be impleaded, touching lands, in 
 any court of the kingdom. 
 
 Gilb. Law of Uses, 43. By Rolle, C. J. — The Chancellor cannot compel one to exe- 
 cute a trust for an alien. Sty. 21, The King v. Holland ; All. 15 & 16. But accord- 
 ing to Broke, a feoffment or gift to the use of an alien born is good, for a use is only 
 a matter in conscience. Bro. Feoffment to Uses, pi. 29. 
 
 The king shall have the use of an alien ; for the advantage which a 
 man receives from his duty can extend no farther than the obligation of 
 that duty reaches ; but the allegiance of an alien is temporary, therefore 
 so is his property; and since he is incapable of perpetual subjection, he 
 cannot be protected in any estate that is of perpetual continuance ; and 
 the inconvenience is the same if this be a freehold at law, or a trust. 
 
 All. 15 & 16 ; Sty. 40 ; Gilb. Law of Uses, 43. But in this case it is said, the kinp 
 shall not seize the land of an alien, unless it be executed in him by a decree in Chan 
 eery ; for there was no right in cestui que use himself to seize the lands without a decree 
 and the king has only the rights of the cestui que use. Sty. 40 ; Gilb. Law of Uses, 44 
 || A trust for an alien will be executed for the benefit of the king. All. 14; Sty. 40 
 3 Cha. R. 19.|| 
 
 Also, though the king cannot have feoffees to his use, because he can- 
 not take but by matter of record, yet he may take it when the use is 
 found of record, where an office is found of the whole matter. 
 
 Gilb. Law of Uses, 44. 
 
 Likewise, the limitation of a use to the poor of the parish of Dale is 
 good, though no corporation : for though they are capable of no property 
 at' common law in the thing trusted, because the rules of pleading require 
 persons claiming to bring themselves under the gift : and no indefinite multi- 
 tude, without public allowance, can take by a general name ; yet they are 
 capable of a trust; for here the complainants do not derive to themselves
 
 USES AND TRUSTS. 133 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 any right or title to the estate, but show that it has been abused and mis- 
 employed by the owners, contrary to conscience.(a) 
 
 Bro. F. to Uses, pL 29; 1 Rep. 23-25; Gilb. Law of Uses, 44. \\(a) There must 
 in every case be a use capable of taking effect. Therefore, as was gravely observed 
 in the reign of Edward the Fourth, a use in favour of Salisbury Plain, or of the Moon, 
 is void. Bro. Abr. 339 b, pi. 37. j| 
 
 3. In what Manner they may be declared. 
 
 Before the statute of frauds, 29 Car. 2, c. 3, even a parol declaration 
 of the uses of a fine was good. And 
 
 4 Mod. 269, Jones v. Morley. 
 
 Uses, even since that statute, may be declared by writing only with- 
 out any seal. 
 
 7 Mod. 76, Shortridge v. Lamplugh. || A written declaration, if not by deed, will 
 not control a prior declaration by deed ; but where the first declaration is by writing 
 merely, it may be controlled by a subsequent writing. Gilb. by Sugden, 101. jj 
 
 |3A grant to A, for the use of B, is a use executed in B. 
 Willson v. Killcannon, 4 Hayw. 196.gf 
 
 If a use is declared by indenture, yet the parties may alter the use by 
 other indenture at any time till the estate is executed, and the last in- 
 denture shall guide the use. 
 
 Moor, 107, pi. 249. Agreed by the justices in Andrew's case. 
 
 [But such other indenture must be by the 'consent of all the parties in- 
 terested, (b) else it cannot control the first indenture. Thus, A was ten- 
 ant for ninety-nine years, if he so long lived, remainder to trustees to 
 support contingent remainders, remainder to the first and other sons of 
 A in tail, remainder to A in fee. A having two sons, B and C, they all 
 joined in a lease and release of the estate to certain uses, and there was 
 a conveyance to suffer a recovery within twelve months to those uses : 
 afterwards they, with the heir of the surviving trustee, joined in a lease 
 and release to make a tenant to the prcecipe, in order to suffer a recovery 
 to the uses of the first indenture ; but before any recovery was suffered, 
 B the eldest son died, and after the death of B, and before the recovery 
 was suffered pursuant to the above deeds, A and C by another deed co- 
 venanted to suffer a recovery to certain other uses ; and before the expi- 
 ration of the twelve months specified in the first deed, a recovery was 
 suffered. The question was, Whether the first deed, declaring the uses 
 of the recovery, and made by A, B, and C, should stand, in preference 
 to that made by A and C alone ? Lord Hardwicke clearly held, that 
 the first deed by A, B, and C was a good deed to lead the uses of the 
 recovery : that when A, B, and C, and the heir of the surviving trustee, 
 made a tenant to the prcecipe, they passed a defeasible estate to serve 
 the uses of the first deed ; and that the recovery suffered within the 
 twelve months rendered that defeasible estate indefeasible, though one 
 of the parties was dead before the recovery suffered : that the last deed 
 was not sufficient to alter the uses declared by the first deed, because not 
 made by the agreement of all the parties. 
 
 Stapilton v. Stapilton, 1 Atk. 2. See Durnford v. Lane, 1 Bro. Ch. R. 100;] {8 
 Term, 211, Doe v. Wichelo. } || (b) Who shall come within this description is in many 
 cases a question of difficulty. || 
 
 Where there is a deed, and a last writing by husband and wife, the last 
 writing, though not a deed, amounts to a sufficient declaration of uses 
 upon the fine, the fine being levied at a time different from the deed. 
 
 Comb. 429, Jones v. Morley. This writing was only between the husband of the 
 
 M
 
 134 USES AND TRUSTS. 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 one part, and the -wife of the other part. But the deed was between them and others. 
 Carth. 410, S. C. ; 2 Salk. 677, S. C. ; 4 Mod. 261, S. C. ; Parliament Cases, 143, S. 
 C.j and judgment affirmed. 
 
 A declaration of the use, either express or in laiv, is sufficient ; as, if 
 f A covenants with B for money to do all acts which B shall require for 
 assurance to A and his heirs, and then levies a fine to B, this covenant 
 and fine will give B the whole land. 
 Hob. 275, Clanrickard's case. 
 
 Where a bastard was seised of a manor and made his will, by which he 
 devised the manor ; and after he made a feoffment of the same manor to 
 the use of such persons, and for such estates as he had declared by his last 
 will, bearing date, &c, though this was now a countermanded will, it was 
 sufficient to declare the use of the feoffment, and so no escheat. 
 
 Moor. 789, pi. 1090, in the Exchequer-chamber, Hussey's case. 
 
 It is not necessary in declaring a use, if there be a transmutation of 
 possession, to use the very word use ; any expression whereby the mind 
 of the party may be known, that such an one shall have the land, is suffi- 
 cient. Per Holt, C. J., in delivering the opinion of the court. 
 
 12 Mod. 162, case of Jones v. Morley. 
 
 4. At what Time they may be declared. 
 
 A declaration of uses may be made either before or after the time of 
 making the assurance ; for a subsequent declaration may direct the uses 
 of a precedent assurance ; and by 
 
 4 & 5 Ann. c. 16, §15, it is enacted, that all declarations or creations 
 of uses or trusts of any fines or common recoveries manifested by deed(a) 
 after the levying or suffering thereof shall be as good in laiv as if the act of 
 29 Car. 2, c. 3, for prevention of frauds or perjuries, had not been made. 
 
 In an ejectment on a special verdict the following case was determined : — A and B 
 his wife levied a fine, and four years afterwards declare the uses ; in which deed are 
 the words following, viz., "All and every fine or fines levied, or to be levied, shall be 
 to the uses of this deed." Holt, C. J., delivered the opinion of the court, that the 
 uses were sufficiently declared (the jury having found, that the fine was levied to the 
 uses therein declared.) And that, notwithstanding the Statute of Frauds and Per- 
 juries, a subsequent deed is now as good as it was before the statute. And that it 
 was doubtful whether the statute extends to uses, because they are not mentioned there, 
 but only trusts, yet that they took trusts and uses to be the same, in respect of trusts 
 in their larger extent, &c, so within the statute of uses. Holt's Rep. 733, Bushel v. 
 Burland ; |[and 11 Mod. 197, S. C. In both books the case is loosely reported, (a) It 
 would seem from the preamble to the 4 & 5 Ann. c. 16, §15, and from the terms of 
 the Statute of Frauds, to which it refers, that the word " deed" was inserted in the 
 act by mistake ; and Sir E. Sugden observes, that it is open to contend that uses may 
 still bo declared by writing only without seal, even after the assurance is made. 
 Gilbert by Sugden, 115.[| 
 
 If A covenants to levy a fine before such a day, though the fine levied 
 differs from the indenture in time, place, quantity of acres, or in the 
 , person that occupied it ; yet, when the fine is levied, it shall be intended 
 to be to the same uses in the indenture. 
 
 Ary. 3 Bulst. 251, Hagervil v. Hare, cites 2 Rep. 69, Lord Cromwell's case. But 
 it may in such case be averred by parol to be toother uses. But, if the fine be levied 
 in all things pursuant to the indenture, no averment can be but by writing; for in 
 tlii< case the indenture is directory i<> the fine, and in the other case it is but evidence. 
 Cro. J a. 29, Countess of Rutland v. The Earl of Rutland. 
 
 If a precedent indenture be* made to direct the uses of a subsequent as- 
 surance, it is but directory till the assurance is made, and then the land is
 
 USES AND TRUSTS. 135 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 bound, and the conusor or recoveree cannot by any act of his, after the 
 recovery had, charge or avoid it : but, if the declaration be subsequent, if, 
 in the interim between the assurance had and the declaration of the uses, 
 the conusor or recoveree sells, gives, or charges the lands to others, this 
 subsequent declaration will not subvert the mesne estates, charges, or in- 
 terests, unless it can be otherwise proved, that by a certain and complete 
 agreement of the parties, the assurance was had and made to these uses. 
 2 Kep. 26, Countess of Rutland's case; 9 Rep. 10, 11, &c, Dowman's case. 
 
 But the distinctions between precedent and subsequent declarations 
 will best appear from the consideration of the following head, viz., 
 
 5. In what Cases Averments may be made of Uses. 
 
 With regard to averments it is to be observed, that where a use is ex- 
 pressed upon any feoffment, &c, there no averment shall be received to 
 prove any use contrary to the use expressed ; but in case no use is ex- 
 pressed in the assurance, there, other uses than what the law would make 
 upon the assurance may be averred, and proved to have been agreed 
 upon, and the assurance shall be to such uses. 
 
 9 Rep. 10, Dowman's case. 
 
 If by the words of a deed, upon a valuable consideration, a man takes 
 it to his own use, or to the use of another, there can be no averment that 
 he takes it as a trustee in any other manner ; for there is such a sanction 
 given to all solemn acts of contracting, that they cannot be construed 
 directly contrary to their own expressions. 
 
 Gilb. Law of Uses, 6 ; 1 And. 313. Where the deed is not upon a valuable con- 
 sideration, it is looked upon as a fraudulent conveyance against the trust. 
 
 Thus, if a feoffee to uses makes a feoffment in fee by deed, upon an 
 equitable consideration, to J S and his heirs, to the use of his heirs ex- 
 pressly, J S shall be seised to his own use, though he had no notice of 
 the former trust ; for where the deed expresses the use, an implied one 
 cannot be averred, (a) 
 
 Gilb. Law of Uses, 7. (a) It seems at common law a use might have been raised 
 by word, upon a conveyance that passed the possession by some solemn act as a feoff- 
 ment ; but, where there was no such act, there, it seems, a deed declaratory of the 
 uses was necessary ; for as a feoffment which passed the estate might be made at 
 common law by parol, so by the same reason might the uses of the estate be declared 
 by parol : but where a deed was requisite to the passing of the estate itself, it seems 
 it was requisite for the declaration of the uses, as upon a grant of rent, or the like. So. 
 it seems, a man could not covenant to stand seised to a use without a deed, there being 
 no solemn act ; but a bargain and sale by parol has raised a use without, and it has 
 been held to do so since the statute. In cities exempted out of the statute, it has been 
 held, that if a fine be levied of a rent, no use can be limited of it without deed ; but now 
 by 29 Car. 2, c. 3, all declarations of trusts, other than such as arise by implication of 
 law, are to be in writing, and signed by the party, who is by law enabled to declare 
 such trust, or else it must be by his last will in writing. Gilb. Law of Uses, 270, 27 1 . 
 
 Where the uses of a recovery are declared by deed precedent, no new 
 or other use can be averred by parol, unless there was some variance be- 
 tween the deed and the recovery ; but in case of a deed precedent, if the 
 party set up other uses, he must confess and avoid : but, Avhere they are by 
 deed subsequent, new or other uses may be averred without showing the 
 deed, though there be no variance, &c, because there was an intermediate 
 time when there might be such agreement made, and the uses arise by the
 
 136 USES AND TRUSTS. 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 recovery according to that agreement ; and if a deed subsequent be set 
 up, the other may traverse those uses. 
 2 Salk. 676, Tregame v. Fletcher. 
 
 But, where there' is a variance between the deed and the recovery or 
 other assurance, and no averment of the uses can be made, there, they 
 must be left to the construction of law. 
 
 There is a difference likewise with respect to averments between parties 
 and strangers. Thus, 
 
 If a declaration of uses be subsequent to a fine or recovery, it is good ; 
 but there may be an averment, that they were to other uses ; yet with this 
 difference, that where the declaration is subsequent, there, the heir of the 
 conusor is estopped to aver other uses, but a stranger is not. But, where 
 the deed is precedent, there, neither the heir nor the stranger is estopped 
 to aver other uses, in case the fine varies in amy circumstance : but, if 
 the fine was levied pursuant to the deed, no proof whatsoever, either by 
 writing or parol, shall be admitted, that the fine was to other uses than 
 what are contained in the deed, that being an estoppel to the parties. 
 Per Holt, C. J. 
 
 Comb. 429, Jones v. Morley. 
 
 It has been held, that a deed of uses precedent to a recovery may be 
 explained by a deed subsequent, as in the following instance : — Feme, be- 
 fore the 27 H. 8, of uses, being seised of land, suffered a common recovery, 
 and intending to marry A B, she, before the marriage, declared by inden- 
 ture that the feoffees should be seised to the use of herself and A B, whom 
 she intended to marry, and their heirs. The feoffees executed an estate 
 after the marriage to the husband and wife, and their heirs in fee, without 
 any use expressed. Afterwards the baron and feme by other indenture 
 declared, that the first indenture was mistaken; for that it should have 
 been to the heirs of their tivo bodies, and for default to the heirs of the 
 wife. And they covenant, bargain, and agree, to stand seised to the use 
 of themselves in special tail, and after, to the right heirs of the wife ; and 
 the husband covenanted, if the wife died without issue, during his life, 
 that he would execute an estate accordingly. The wife died without issue, 
 and after the statute of uses the baron died seised ; and it was held, that 
 the first indenture was corrected by the second, and the first use is suffi- 
 ciently altered without estate executed, and the considerations are reason- 
 able and sufficient, and adjudged for the heir of the wife. 
 
 Dy. 3U7 b, pi. 71, A'avasor's case. 
 
 A consideration which stands with the deed and not repugnant to it 
 may be averred. 
 
 Rep. 40, Bedel's case. 
 It now remain to consider, 
 
 2. Those Conveyances which raise Uses without Transmutation of Possession, such as, 
 1. Covenants to stand seised to Uses. And, 2. Of Bargain and Sale. 
 1. Covenants to stand seised to Uses. 
 This convcyarce not having been hitherto treated of, it will be neces- 
 sary to inquire more fully into its nature and effect. 
 
 The original of it was in this manner. Before 27 H. 8, when any man 
 covenanted to stand seised to the use of another, the remedy was two- 
 fold. 
 
 Gilb. Law of Uses, 110.
 
 USES AND TRUSTS. 137 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 First, By action at common law upon the covenant, and thereby damages 
 only were recovered. 
 Gilb. Law of Uses, 110. 
 
 Secondly, in Chancery ; and there the remedy arose thus : When any 
 man covenants to do a thing, the party is first bound in conscience to per- 
 form the thing itself; and if that cannot be, then to render damages for 
 not doing it ; therefore the Chancery that examines the conscience of 
 men's actions requires a specific performance of the thing itself, where it 
 can be had : but the common law could not carry this covenant so far 
 without offering violence to its own rules ; for the common law requires 
 livery ; and to allow an action for a specific performance makes the agree- 
 ment binding without it; but by the 27 H. 8, these uses are executed, 
 and therefore no action lies ; for there can be no complaint for not trans- 
 ferring the thing, when the statute transfers it to the party himself. 
 
 {All the circumstances necessary to make a good deed of covenant to 
 stand seised to uses are these : 1. That there be a sufficient and proper 
 consideration. 2. That there be a deed. 3. That the grantor or cove- 
 nantor be actually seised of the land at the time of the grant. 4. That 
 there be apt words to convey lands. 
 
 1 Dall. 138, Vanhorn's Lessee v. Harrison ; Willes, 685, Roe v. Traninarr.} 
 
 1. Who may covenant to stand seised, and to whom. 
 
 2. What Consideration is necessary to a Covenant to stand seised, and how far it 
 
 extends. 
 
 3. By what Words a Man may covenant to stand seised. 
 
 4. The Effect of a Covenant to stand seised. 
 
 1. Who may covenant to stand seised, and to whom. 
 
 The king cannot be seised to a use, because there is no means to com- 
 pel him to perform ; for the Chancery has only a delegated power from 
 the king over the consciences of his subjects ; and the king, who is the 
 universal judge of property, ought to be perfectly indifferent, and not to 
 take upon him the particular defence of any man's estate, as a trustee. 
 
 Poph. 72, Dillon v. Fraine ; Hardr. 4G8, Pawlett v. Attorney-General : 1 Roll. Rep. 
 332, Cooper v. Franklin and another. But see Vern. 439, per Master of the Rolls, in 
 case of Lord Kildare v. Eustace, relating to the Irish forfeitures, where he says he takes 
 the king tc he in nature of a trustee, notwithstanding the general received opinion to 
 the contrary. The king cannot he seised to use, because he cannot be obliged to 
 execute the possession to the use by a subpoena, since if he disobeys he cannot be 
 compelled to obedience by imprisonment. Jenk. 195, pi. 1. [The king cannot be 
 seised to a use ; no, not where he taketh in his natural body, and to some purpose as 
 a common person ; and, therefore, if land be given to the king and J D, pour terme de 
 leur vies, this use is void for a moiety. Bac. Uses, 5G. Like law is, if the king be 
 seised of land in the right of his duchy of Lancaster, and covenant by his letters 
 patent under the duchy seal to stand seised to the use of his &on, nothing passeth. 
 Ibid. 57. Like law, if King Richard the Third, who was feoffee to divers uses before 
 he took upon him the crown, had, after he was king, by his letters patent granted the 
 land over, the uses had not been renewed. Ibid. The king shall not stand seised to a 
 use ; for all the lands he is seised of, he is seised in jure corona? for the maintenance 
 and support of his crown and dignity, and the well-government of the commonwealth, 
 which is a use the law designed him primitus, and, consequently, it is exclusive of all 
 other uses. Neither can it be imagined that the king should, in point of honour, 
 stand seised of lands only to the benefit and advantage of another, and so be a sort 
 of bailiff to him. Gilb. Uses, 170, 171. 
 
 The queen (speaking not of an imperial queen, but by marriage) cannot 
 be seised to a use ; for though she be a body enabled to grant and pur 
 Vol. X.— 18 ■ m2
 
 138 USES AND TRUSTS. 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 chase without the king, yet, in regard to the government and interest the 
 king hath in her possession, she cannot be seised to a use. 
 
 Ld. Bacon on the Statute of Uses, 347. 
 
 Bodies politic are not capable of a use or trust, because they are bodies 
 framed at the will of the king, and are no further capable than he wills 
 them ; and it is his will that they should purchase for the common benefit, 
 and for the ends of their creation, and not that they should take anything 
 in trust for others. Besides, being incorporate, the Chancery had no pro- 
 cess on the persons to compel them to discharge their trust.(a) 
 
 Gilb. Law of Uses, 5 ; 1 Rep. 122 ; Poph. 72. || See Sir E. Sugden's note, Gilbert, 
 p. 7. || [(a) But bodies politic may be trustees, and in such case are considered in a 
 court of equity as individuals. Mayor, &c. of Coventry v. The Attorney-General, 2 
 Bro. P. C. 230 ; 2 Yes. J. 4G.J 
 
 Aliens, and persons attainted, are not capable of a use, for they can 
 
 take for no man's benefit but the king's. 
 
 Gilb. Law of Uses, 5 ; 1 Rep. 122 ; Poph. 72. The king shall have the use of an 
 alien, because as his allegiance is temporary, so ought his property to be. All. 15 & 
 1G : Sty. 40 ; Gilb. Law of Uses, 43. || See ante, p. 132. || 
 
 A disseisor, abator, or intruder, cannot be seised to a use, for they take 
 it under no trust, but defeat the estate to which the trust was subjoined; 
 and the Chancery had no power to try the right of inheritance between 
 them, for the right of that title is triable only at common law. But, if he 
 who has the use exhibits a bill against the feoffee to a use, the Chancery 
 will order him to try the title with the disseisor at common law. 
 
 1 Rep. 122, a, 139 b. 
 
 A lord by escheat shall not be seised to a use, because he is in by a title 
 paramount, and seised of an estate antecedent to that to which the use is 
 annexed. Lord of a villain, a lord that enters for mortmain, or recovers 
 by cessavit, or a tenant by the courtesy cannot be seised to a use, for they 
 claim by the general laws and statutes of the kingdom, which the Chancery 
 has no power to alter, and do not take as substitutes under those private 
 contracts, to which trusts are annexed, and so cannot be punished as cor- 
 rupt breakers of that trust which they never undertook. 
 
 1 Rep. 122 a ; Bro. Feoff. 138 a. 
 
 Tenant in tail cannot covenant to stand seised so as to change a use, 
 unless during his own life. 
 
 Cro. Jac. 400, Cooper v. Franklin ; Hetl. 110, Bromfield's case. None can be seised 
 to the use of another, but such as can execute an estate according to the directions of 
 cestui que use, which tenant in tail cannot ; for it was the intent of the statute de donis 
 that he should have the lands and the profits of them ; and if he should execute an 
 estate to a use, his issue would be entitled to their formedon. Bro. Feoff, al Uses, pi. 
 40 ; 2 Roll. Abr. 780 ; 1 Inst. 19 b ; Gilb. Law of Uses, 11, and 205, &c. [Whether 
 tenant in tail can stand seised to a use, has been vexata qucestio, and, indeed does not 
 appear to be quite settled at this time. On the one hand, Lord Coke, (Co. Litt. 19 b; 
 2 Co. 78 a;) Sir G. Croke, (Cro. Ja. 400, 401 ; Bulstrode, (3 Bulstr. 186;) Sir F. 
 Moore, (Moore, 848;) and Rolle, (1 Roll. R. 384; 2 Roll. Abr. 780,) expressly tell 
 us, that it was settled in the case of Cooper and Franklyn, that a tenant in tail neither 
 hi' fore nor since the statute could stand seised to the use of another person, expressly or 
 impliedly. Whilst on the other hand, Godbolt directly asserts, that the case of Cooper 
 and Franklyn was determined quite the contrary ; viz., that a tenant in tail could stand 
 seised to an express use, though nut to an implied one, (Godb. 209.) And Lord Bacon, 
 in his Reading on the Statute of Uses, gives it as his decided opinion, that a tenant in 
 tail may stand seised to an express use since the statute; for the statute, says he, does 
 not save the right of tenant in tail ; and the reason why a contrary construction was had 
 before the statute, was because the right of tenant in tail was expressly saved by 1 R. 3,
 
 USES AND TRUSTS. 139 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 C. 1. (Bac. Uses, 57.) Of this opinion seem also Perkins, (Perk. \ 534, 537 :) Man- 
 wood in Walsingham's case, (Plowd. 555,) and Dyer, (Dy. 311 b, 312 a;) and Mr. 
 Saunders inclines to the same opinion, in his Essay on the Nature and Laws <>(' Uses 
 and Trusts, (Saund. 144, 145, &c.)] ||See Gilb. Law of Uses by Sugden, p. 19, note, 
 and Cornish on Uses, p. 118. || 
 
 If tenant in tail by indenture, on consideration of marriage, covenants 
 with another that A and B shall be seised to his use for term of his life, 
 and after his decease to the use of his son and heir apparent ; by this 
 covenant there is no use changed, unless only during the life of tenant 
 in tail. 
 
 Per cur. Het. 110, Bromfi eld's case. 
 
 So, if tenant in tail covenants to stand seised to the use of himself for 
 life, remainder to his eldest son in tail ; since he had only the power of 
 disposing of an estate for life by the statute de donis, which he hath not 
 passed out of himself, it is still in him as it was before ; and the remain- 
 der is void in its creation, and .therefore can be no execution of it, for 
 the execution must be immediate by the statute of uses ; and therefore a 
 fine afterwards levied cannot help it. 
 
 Cro. Eliz. 895, Bedingfield's case. 
 
 But, if tenant in tail covenants to stand seiscd(a) to the use of A and 
 his heirs, or to the use of A for life, (b) remainder to B in fee, the cove- 
 nant is not void, but puts the estate out of the covenantor. Per Holt, 
 C. J., in delivering the opinion of the court. 
 
 2 Salk. 620, Machil v. Clark, (a) The covenant is good, and passes a base fee to A. 
 Per Holt, C. J., Comyn's R. 121, pi. 84, S. C. ; [Stapilton v. Stapilton, 1 Atk. 8, S. 
 P. ; Goodright v. Mead, 3 Burr. 1703, S. P.] {b) And the remainder is good, though 
 the tenant in tail dies during the life of A, until it is avoided by the issue. Comyns's 
 R. 121. Per Holt, C. J., in S. C. 
 
 Yet, if tenant in tail covenants to stand seised to the use of A and his 
 
 heirs after his death, it is void. 
 
 2 Salk. 620, Machil v. Clark, 7 Mod. 26, S. C. & P., because it is to commence at 
 a time when the right of the estate out of which it would issue is in another person 
 by a title paramount the conveyance, viz., per formam doni. 
 
 So, if tenant in tail covenants to stand seised to the use of himself 
 for life, remainder to J S and his heirs, it is void ; for the remainder is 
 to take effect after his death, when by his death the title of his issue com- 
 mences ; and the covenant, as to the estate for life to himself, is void, in 
 this case, because there is no transmutation of possession. Such a cove- 
 nant is in any case good only in respect of the remainders ; and since the 
 remainders are void, the covenant and the first estate are likewise void. 
 
 2 Salk. 620, Machil v. Clark ; 7 Mod. 18-28, S. C. accordingly. 
 
 Likewise a tenant for years, since the statute of uses, cannot be seised 
 to any use ; for a tenant for years has only a possession, and not a seisin 
 which the statute requires. 
 
 Jenk. 195, pi. 1. 
 
 But a tenant in dower may be seised to a use, for a tenant in dower 
 claims by the marriage agreement, and a sufficient provision is made for 
 her by law, which is a third part of her husband's estate ; and since a 
 private contract is the original of her title, she continues the estate of her 
 husband as he purchased it, and under the same trust and agreement. 
 
 Ilardr. 469 ; Co. Lit. 239 ; 4 Rep. 122 ; contrcl, Bro. F. to Uses, 338, \ 40. On this 
 point we find several contradictory opinions in the books. Some say that tenant in
 
 140 USES AND TRUSTS. 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 dower claims in the per, that is, by or from her husband ; according to others, she is 
 in, in the post, and claims by disposition of law, and does not come in by privity of 
 estate. Therefore qu., and consult the authorities in the margin ; and see farther 
 Gilb. Law of Uses, pi. 11 and 171. 
 
 An occupant also may be seised to a use, for an occupant continues 
 the estate of tenant for life, as his substitute, and so must take it as he 
 had it. 
 
 Hardr. 468. But see Bro. Feoff, to Uses, 338 a, \ 10, contra. 
 
 It is a rule, that a man cannot covenant that another shall stand seised 
 of lands whereof the seisin is in himself, for this will not raise any use, but 
 will stand merely on covenant. Thus, where A seised in fee, in considera- 
 tion of the marriage of B, his son, and a marriage portion, covenanted to 
 levy a fine to B, and that B should stand seised to the use of A the father, 
 and his heirs, till the marriage had, and after to B's own use in tail, with 
 divers remainders over ; and A covenanted in the same deed, that he was 
 seised in fee, and so should be till the use vested in B the son ; it was 
 resolved by Powell and Rooksby, Js., the only judges then in court, that 
 A could not covenant that the son should stand seised of lands whereof 
 the father is seised ; and the subsequent covenant was intended against 
 encumbrances only, as is usual in such cases, and not to raise any use. 
 
 3 Lev. 306, Barrington v. Crane. 
 
 2. What Consideration is necessary to a Covenant to stand seised, and hoicfar it extends. 
 
 i It has been already shown, that on those conveyances by which uses 
 are raised by transmutation, no consideration is necessary ; but convey- 
 ances by covenant to stand seised, or by way of bargain and sale, will not 
 operate to uses without a consideration. (a) 
 
 Cart. '143, Garnish v. Wentworth. (a) Considerations to raise uses are threefold, 
 as considerations of blood or of marriage, (which, as will be shown, are good consider- 
 ations on covenants to stand seised,) and consideration of money, which is the only 
 good consideration on a bargain and sale. See title Bargain and StUe, letter (D). 
 
 Lord Bacon says, there is no reason in the law why a deed should not raise a use 
 without any consideration. But he adds, that it is a reason of Chancery, because no 
 court of conscience will enforce donum gratuitum. But where money is paid whereby 
 a man's fortune is lessened, or where it is for the establishment of his family, then 
 it is good in Chancery. Lord Bacon's Head, on Stat, of Uses, 310, &c. 
 
 With respect to covenants to stand seised, considerations of blood or 
 of marriage are good considerations to raise uses. 
 
 { In New York a deed from a father to his son for a pecuniary consideration has been 
 holden to be a covenant to stand seised. In England, it is only since the statute of en- 
 rolments (27 II. 8, c. 16) that it has been established that no considerations but blood 
 or marriage are sufficient to raise a use by way of covenant to stand seised ; before 
 that statute covenants to stand seised could be supported by pecuniary considerations. 
 And as that statute was never in force in New York, because local in its provisions, 
 the law continues there as it was previously in England. 1 Johns. Ca. 91, Jackson 
 v. Dunsbagh. Sanders on Uses, 434 — 440. } 
 
 And first, Of consideration of blood. If a man parts with any lands 
 in advancement of his issue, and to provide for the contingencies and 
 necessary settlements of his family, it is fit the Chancery should make 
 them good conveyances, though they want the ceremonies of law ; for it 
 is the design and intent of the Court of Equity to mitigate the severities 
 of law, so as they may best comply with the peace of families ; for their 
 establishment is part of the nature and end of government. 
 
 Gilb. Law of Uses, 47 ; Cart. 139, Garnish v. Wentworth.
 
 USES AND TRUSTS. 141 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 Therefore, if a man, in consideration of natural love and affection, cove- 
 nants to stand seised to the use of his son or brother, this is a good u-c. 
 
 Gilb. Law of Uses, 47 ; Cart. 139, Garnish v. Wentworth. 
 
 A consideration of natural affection expressed to one child will, by con- 
 struction of law, be extended to others. Thus, if a man having issue 
 three sons, covenants in consideration of natural affection to the eldest 
 son, to stand seised of certain land to the use of himself for life, and after 
 to his eldest son, and the heirs male of his body ; and for default of such 
 issue, to the use of his second son and the heirs male of his body ; and 
 for default of such issue, to the use of the third son, &c. ; this is a good 
 consideration to raise the use to his younger sons ; for though the con- 
 sideration of natural affection be limited only to the eldest, yet this is 
 equal to all the sons, and therefore the law will supply it without expres- 
 sion ; for if nothing had been expressed, it had been a good consideration 
 by implication of law. 
 
 2 Roll. Abr. 782, 783, between Bond and Edmonds, per curiam. 
 
 The consideration of natural affection is good likewise to raise a use to 
 children unborn. Thus, consideration of affection to the heirs male of 
 the covenantor which he should beget on the body of A his wife, is a 
 good consideration to raise a use by way of covenant to the said heirs of 
 his body, for every one is bound in nature to provide for his children. 
 
 Plow. R. 303, Sharlington et al. v. Strotton. || This important case is full of legal 
 learning, and of the scholastic conceits and pedantries peculiar to the times. || 
 
 So, for advancement of his heirs male, a man may covenant to stand 
 seised to the use of himself and the heirs male of his body ; and thus shall 
 raise a good estate-tail : for though all the estate-tail is in himself, yet this is 
 for the benefit of the heir male though it is in futuro, and not in prcesenti, 
 for none can know who shall be his heir; for solus Deusfacit hceredes. 
 
 7 Rep. 13 b, [14 a,] Englefield's case. The reason is, for that a man may modify 
 a fee that continues in him, though he cannot take a fee as de novo when he has the 
 old one in him. Gilb. Law of Uses, 209. 
 
 But if a man, in consideration of his care and love which he bears to 
 J S, called, named, and reputed one of his sons, (where he was his bas- 
 tard son,) covenants to stand seised to the use of the said J S, this is no 
 good consideration to raise any use. 
 
 2 Roll. Abr. 785 ; Dyer, 374, pi. 16, "Worseley's case. The reason is, for that in 
 law he is not supposed to be of the blood of his father, but is considered as a mere 
 stranger, for whom no one is presumed to have a natural affection. See the case 
 last mentioned, and see Gilb. Law of Uses, 48 and 206. But a bastard may take by 
 feoffment, though not by covenant to stand seised in consideration of natural affection. 
 1 Leo. 197, Lord Pagett's case. 
 
 So, likewise, if a man covenants, in consideration of blood and of the 
 marriage of his bastard daughter, to stand seised to the use of the bastard 
 daughter, this is not a good consideration to raise a use, because in the 
 law she is not his daughter, but filia populi. 
 
 2 Roll. Abr. 785, between Frampton and Gerard. But, if a man covenants, in con- 
 sideration of natural love and affection, blood and marriage of his bastard daughter, 
 to levy a fine, and that the conusee shall stand seised to the use of the bastard daughter, 
 though this be not a sufficient consideration to raise a use upon a covenant, yet it ia 
 expressive of the intent of the party, and therefore shall serve as a sufficient declaration 
 of a use upon the fine, where there needs no consideration. Gilb. Law of Uses, 207. 
 
 Fraternal love, and continuance of the land in such of the blood of the 
 covenantor, is a good consideration to raise a use by way of covenant ; for
 
 142 USES AND TRUSTS. 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 this is a consideration of blood, and the brother is one of the next de- 
 grees after his parents and children ; and they who are next in blood are 
 next in love by intendment of the law. 
 
 2 Roll. Abr. 785, cites PL Cr. 307, [Sherington and Pledat v. Stratton. 
 
 Thus if A by indenture made between him of the one part, and B his 
 brother, (naming him so in the deed,) and C and D who are strangers to 
 him, in consideration of love and affection which he bears towards his 
 wife and children, and for their maintenance and stay of living, and to 
 the intent to settle his land in his name and blood, covenants with the 
 said B, C, and D, to stand seised to the use of himself for life, and after 
 to his wife for life, and after to the said B, C, and D, and their heirs 
 upon trust, that they should make such uses as he himself shall appoint, 
 and after to raise portions for his children, and after to Gr his second son 
 in tail, &c, though no use can arise by this indenture to C and D, who 
 are strangers to the consideration of blood, and so this is void as to them ; 
 yet the use shall arise for all to B, who is his brother, and so named in 
 the deed, which is within the consideration. Trin. 14 Car. This was a 
 special verdict between Fox and Wilcocks, and argued at the bar, but it 
 abated by death. And after, upon a new special verdict between Smith 
 and Busbie, it was adjudged per curiam, that the use shall well arise to 
 B to perform the trusts specified in the indenture. 
 
 2 Roll. Abr. 783 ; S. C, Cro. Car. 529, by the name of Smith v. Risley et al. ; S. 
 C, Sir Wm. Jo. 41S, by the name of German v. Risley. 
 
 But consideration of ancient acquaintance, or of being chamber fellows, 
 or entire friends, shall not raise any use. Agreed per cur. between Ward 
 and Tuddingham. 
 
 2 Roll. Abr. 783. 
 
 Also, if a man, in consideration that B was bound in a recognisance for 
 him, bargains and sells land to the other, that is not good. 
 
 2 Roll. Abr. 783, adjudged between Ward and Lumbard. 
 
 Neither will the consideration of a surname raise a use, as was resolved 
 in Sir Christopher Hatton's case, who had a sister's son called Newport, 
 and in consideration of his changing his name to Hatton, he covenants by 
 deed to raise a use to him, this consideration was adjudged not sufficient 
 
 to raise a use. 
 Jenk. 81, pi. 60. 
 
 2. With respect to considerations of marriage, — A man may covenant 
 to stand seised to the use of A his wife, and the consideration that she 
 is his wife will raise a good estate to her, for this is a good consideration 
 in law. 
 
 Thus, if in an indenture between A and his wife of the first part, and 
 B their son of the second part, and C their son of the third part, the 
 said A, in consideration of natural affection and paternal love which he 
 has to his said sons, and for their better advancement, and to the intent 
 that the lands should continue in his name and blood, covenants to stand 
 seised to the use of himself for life, the remainder to his said wife for 
 life, the remainder to his said sons ; here, the use limited to the wife 
 imports a consideration of itself. 
 
 7 Rep. 40, Bedall's case. 
 
 Likewise a man may covenant to stand seised to the use of A, the wife 
 of his brother, in consideration that she is the wife of his brother, and this
 
 USES AND TRUSTS. 143 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 shall raise a good estate to her ; for the love -which he bears towards his 
 brother, extends in his right to his wife. 
 Plow. R. 307, Sharington v. Strotton. 
 
 So also, the consideration of marriage to be had, will raise a use, be- 
 cause the present estate is to the baron, and what is limited to the feme 
 is only a remainder ; per Twisden, J. 
 
 Sid. 83, in case of Stephens v. Brittridge. 
 
 Likewise, if a man covenants in consideration of natural love and affec- 
 tion to his son, to stand seised to the use of his son for life, the remainder 
 to such wife as the son shall afterwards have for life, the remainder to the 
 first son of the son and wife begotten, &c. ; though the wife be a stranger 
 to the consideration, (admitting it,) yet the estate limited to her is well 
 raised for the subsequent estate which is within the consideration. 
 
 2 Roll. Abr. 786, between Bould and Winston ; Nov, 122, S. C. The wife is within 
 the consideration, because the covenantor intended the advancement of his posterity, 
 and without a wife the son cannot have a lawful posterity. 
 
 But, if a man, in consideration that B shall marry his daughter, cove- 
 nants to stand seised to the use of B and his daughter, the remainder to C, 
 this is a void remainder to C, because he is a stranger to the consideration. 
 
 Plow. R. 307, Sharington v. Strotton. 
 
 It is to be observed farther with regard to the extent of these consi- 
 derations, that if a man covenants upon consideration to be seised to the 
 use of himself for life, and after to the use of his son ; but he says further, 
 that his meaning is, that his wife shall have it for her life ; per Periam, 
 J. — This is not a void clause, but good to the wife. 
 
 Ow. 85, in Carter v. Kingsted. 
 
 So also, where A, in consideration of love, and for settling the land in 
 his name and blood to his eldest son, covenants to convey before Easter 
 in trust for himself for life, remainder to B his eldest son in tail, &c, and 
 also covenants to stand seised from and after Easter, of so much of the 
 said lands as should not be sufficiently conveyed, to the said several uses, 
 intents, and purposes, and no assurances were made before Easter ; it 
 was resolved, that the uses and estates raised by this covenant being in 
 consideration of love to his son, &c, (no estate at all being executed 
 before Easter,) the covenant extended to all : though it was objected that 
 the words being, that of so much of the lands, &c, the intent was that 
 he would stand seised when part was executed and sufficiently conveyed, 
 but when no part was executed, it was not his intent that all should be 
 raised by covenant ; but this was not allowed, for the consideration being 
 sufficient, the covenant well extends to all, there being nothing conveyed 
 by the estate executed. 
 
 Cro. Ja. 180, pi. 19, Cross v. Faustenditch. 
 
 There is a difference between a covenant to stand seised and a feoff- 
 ment ; for if a man covenants to stand seised to the use of A, a stranger, for 
 years, &c, remainder to B his son in tail, this is void as to A for want 
 of a consideration, and the use vests immediately in B, and a void use is 
 as if no use be limited; and if no use be limited, B must take immediately, 
 and not by way of remainder, else he cannot take at all ; for a remainder 
 ex vi termini supposes a particular estate, and B must not be excluded, 
 because uses being creatures of equity, the intent of the parties must be 
 

 
 144 USES AND TRUSTS. 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 made good as far as possible, where there is a just and good ground fci 
 any part of the conveyance. 
 
 1 Leon. 195, et sequent., Lord Paget's case. But see Plow. Com. 307, contrcl. And 
 a distinction is there taken, that if the limitation to the stranger precedes the limita- 
 tion to the blood of the covenantor, there it is good to the stranger ; but that if it is 
 subsequent, it is void. Therefore Qu. Gilb. Law of Uses, 113. 
 
 But, if a man makes a feoffment in fee to the use of A and a stranger, 
 or bastard for life, the remainder to his son in tail, this is good to A; 
 for upon a feoffment there needs no consideration to raise the use, as has 
 been said. 
 
 1 Leon. 197, Lord Paget's case. 
 
 There is another difference likewise observable ; for if a man raises 
 uses upon a fine, feoffment, or recovery, he may reserve to himself a 
 power of making leases ; but he cannot do it on a covenant to stand 
 seised, or on a bargain and sale ; for upon a fine, feoffment, or recovery, 
 a use may be raised without a consideration, and therefore will arise to 
 the lessees without consideration ; and the former estates which were 
 raised without consideration, may be defeated without it ; but in a bar- 
 gain and sale, and covenant to stand seised, no uses will arise without 
 consideration, therefore not to the lessees ; for where the persons are 
 altogether uncertain, and the terms unknown, there can be no consider- 
 ation ; for which reason, the former estates, raised upon good consider- 
 ation, cannot by such lessees be defeated. 
 
 1 Pep. 170 b, Mildmay's case. 
 
 [Where there is a feoffment by deed to a relation and his heirs, but 
 nothing can pass by the feoffment for want of livery of seisin ; yet as 
 there is an agreement by deed, and the parties are relations, the law holds 
 that a consideration for raising a use, and construes it a covenant to 
 stand seised to the use of the person specified in fee ; and the estate 
 passes, not by feoffment, as the deed says, but by virtue of the statute 
 of uses ; and ut res magis valeat, <fc, that instrument called a feoffment 
 shall operate as a covenant to stand seised. 
 
 Per Wilson, J., 2 Ves. J. 22G. |] This construction has prevailed even in a case 
 where the land was conveyed by lease and release, but the release, as such, was void, 
 because it limited a freehold to commence infuturo. Lord C. J. Willes, in delivering 
 judgment, said, that although formerly, according to some cases, the mode or form of 
 it conveyance was held material, yet in later times, where the intent appears that the 
 land shall pass, it has been ruled otherwise, and he approved of the rule. As to Samon 
 v. -Tones, and llore v. Dix, he said he did not understand them; and if he had sat in 
 judgment on those cases he should have been of a different opinion. See Roe v. Tran- 
 mer, 2 Wils. 75; Willes, G02; and he expressed an opinion against those cases in 
 Doe v. Salkeld, Willes, 073; and see Thompson v. Attfield, 1 Vera. 40; Shove v. 
 Pincke, 5 Term It. 124, 310; Ex parte Earl of Ilchester, 7 Ves. 374.|| 
 
 3. By what Words a Man may covenant to stand seised. 
 
 It is a general rule, that words shall be construed so that the deed 
 may stand if possible. 
 March, 50. 
 
 Thus, if a man, in consideration of natural love, and for augmentation 
 of his daughter's portion, gives, grants, bargains, and sells, aliens, en- 
 feoffs, and confirms, certain lands to J S his daughter, with a special war- 
 ranty, and the deed is enrolled, this enures by way of covenant to stand 
 seised in respect to the consideration. 
 
 Vent. 138, et sequent., Crossing v. Scudamore.
 
 USES AND TRUSTS. 145 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 But, if the consideration be not expressed in the deed, it seems nn 
 use arises. 
 
 Gilb. Law of Uses, 115. 
 
 Likewise if a man, in consideration of marriage of his son's daughter, 
 covenants that his land shall descend, come, and remain to him or her, 
 this is only a covenant executory, upon which an action lies, and the force 
 of the covenant is not to alter the descent ; but it is no covenant to stand 
 seised, whereby he may be entitled in Chancery to a specific performance. 
 
 Moor, 122, pi. 267; Cro. Eliz. 279 ; Blitheman v. Blitheman, Gilb. Law of Uses, 
 115. Here the seisin of the father is not appropriated to the several uses, but only a 
 remainder limited after the father's death, which cannot be without a particular estate, 
 nor that without a particular contract, and no man can contract with himself. Gilb. 
 Law of Uses, 00. 
 
 Also, if a man seised of a reversion expectant upon an estate for life, 
 gives, grants, and confirms the same to his son in fee, in consideration of 
 natural love and affection expressed in the deed, to the use of himself 
 for life, the remainder to his son in tail, the remainder to a daughter, 
 without attornment or enrolment, this conveyance is void, and cannot 
 endure by way of covenant to stand seised, for if it enures by way of 
 covenant to stand seised, the legal estate, out of which the uses rise* 
 remains in the covenantor : but the intent of the conveyance is to raise 
 the uses by way of transmutation of possession, and to transfer the free- 
 hold, out of which the uses are to rise to the son ; but this conveyance 
 will not pass that freehold for want of attornment, and so the uses can 
 never arise by this deed. 
 
 2 Vent. 38 ; Samon v. Jones, Sid. 25 ; Hore v. Dix, Gilb. Law of Uses, 115. ||See 
 observations of Willes, C. J., on these cases. 2 Wils. 75 ; Willes, 673, 682; and see 
 Gilb. on Uses by Sugden, 253, notd.\\ 
 
 So, where A, seised of land in possession and in use, covenanted on 
 the marriage of his son with the daughter of J S that the son, immediately 
 after his decease, should have in possession or in use all his lands accord- 
 ing to the same course of inheritance they then stood in ; and that all' 
 persons then seised, or thereafter to be seised, should be seised to the 
 same use and intent ; it was held, that the fee-simple of the use was not 
 out of the father, nor was it changed, and that, as it was, it was only a 
 covenant : but perhaps it might be otherwise, had the words been, that 
 immediately after his decease the land should enure and remain to the son. 
 Dy. 55, Lord Burgh's case. 
 
 So, where the father, in consideration of marrying his son, covenants, 
 &c, that he, &c, has not made, nor shall make any grant, &c, of the 
 said lands, but that all the said lands, &c, shall descend, remain, and 
 come in possession and use to the said son and the heirs male of his 
 body, &c, no use is created or altered by those words. 
 
 And. 25, pi. 55. ||See Gilbert by Sugden, p. 109.|| 
 
 Bridgman, C. J., took a difference between covenants obligatory and 
 covenants declaratory ; for covenants declaratory serve to limit and 
 direct uses, but covenants obligatory (as for enjoyment free of encum- 
 brances) shall never be construed to raise a use> inasmuch as they have 
 another effect. 
 
 Sid. 27, pi. 7, in case of Hore v. Dix. 
 
 Vol. X.— 19 N
 
 146 USES AND TRUSTS. 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 4. The Effect of a Covenant to stand seised. 
 
 It is a rule, that no covenant to stand seised can pass a use unless the 
 covenantor has seisin of the estate at the time of the contract. Thus, 
 
 If a man covenants to stand seised of the manor of D, which he shall 
 hereafter purchase, to the use of J S, and he afterwards purchases the 
 manor, yet this is void. 
 
 2 Roll Abr. 790. 
 
 So, if a man covenants to stand seised of the land that he shall here- 
 after purchase to the use of his son, and after purchases land to the use 
 •of himself and his heirs, the fee is in the father. 
 
 Noy, 19, Yelverton v. Yelverton ; Cro. Eliz. 401, S. C. 
 
 For if a man binds any lands, you must suppose him to have a power 
 to oblige them ; but he that hath no interest, hath no power to oblige 
 them ; and therefore such a covenant in equity, before the statute, could 
 not oblige "him to a specific performance, for that were in equity to bind 
 the land, which is absurd; and since the covenant is void in equity, there 
 can be no execution by the statute ; for the rules of law are equally strict 
 in avoiding this repugnancy ; for in law, every disposal supposes a pre- 
 cedent property; and, by consequence, every covenant to stand seised 
 presupposes a precedent seisin. 
 
 Gill). Law of Uses, 116. 
 
 || So, if there are two joint-tenants in fee, and one covenants that after 
 the death of his companion he will stand seised of the moiety of his com- 
 panion to certain uses, although the covenantor survives, no use shall 
 arise ; because at the time of the covenant he could not grant or charge 
 his moiety. 
 
 Barton's Ca., 2 Roll. Abr. 790, pi. 9.|| 
 
 Another reason why the use declared upon the covenant is bad, is this: 
 because the use must be limited by the donor or feoffor ; for he must limit 
 the use, who at the time of the limitation had the disposal : now in this 
 case the donor limits the fee to the purchaser, which controls the intent 
 of the covenant. 
 
 Cro. Eliz. 401 ; Noy, 19. 
 
 By the same rule it is said, that if the mortgagor, in consideration of 
 so much money paid by J S, covenants, that after redemption he will 
 stand seised to the use of J S and his heirs,(a) this is a void covenant : 
 but, if a feoffment be made to A to enfeoff B, to the use of C, and A en- 
 feoff B without the limitation of any use : jet it shall be to the use of C. 
 
 Cro. Eliz. 402, Yelverton v. Yclvertqn ; Noy, 1, S. C. (a) The reason is, for that 
 at the time of the contract he had no estate or interest. 
 
 So, if a man covenant to purchase land by Michaelmas next, and before 
 Easter following to levy a fine to such uses, and accordingly purchase land, 
 and levy a fine, without expressing any use, or without a consideration, 
 notwithstanding the law says it shall be to the use of the conusor, yet it 
 may be averred to be to the uses limited in the first covenant. 
 
 Cro. Eliz. 401 ; Noy, 19. But it is said in Noy, that if another use had been ex- 
 pressed in the fine, that should have controlled the first declaration of the use. 
 
 For a man may declare the intent of a future act which he had no 
 power to do at the time of the declaration ; for to declare the intent of a 
 future act, doth not suppose an immediate power of doing it ; but the do-
 
 USES AND TRUSTS. 147 
 
 (E) Of the several Sorts of Conveyances to Uses. 
 
 ing any act itself, which the law allows to be good and effectual, presup- 
 poses the power of doing. 
 Gilb. Law of Uses, 117. 
 
 If a man seised of three acres, makes a lease of one to A for life, and 
 of another to B for life, and of another to C in tail, and then, reciting 
 the several estates, covenants, after all the estates finished, to stand 
 seised to the use of his brother in fee ; if A dies, the brother shall have 
 the reversion of that acre immediately, and not expect till the other 
 estates, that is, the other estate for life and the estate-tail, are determined ; 
 for it must be construed secundam subjectam materiam ; and the cove- 
 nantor hath three distinct reversions in him. 
 
 5 Rep. 8 b ; Justice Windham's case, Gilb. Law of Uses, 114. 
 
 It is a rule, likewise, that a fee cannot be raised by way of purchase 
 to a man's right heirs, for wherever the heir takes by purchase, the 
 ancestor must depart with his whole fee. Thus, A seised in fee had issue 
 two sons, B and C ; A covenanted to stand seised to the use of B and 
 the heirs male of his body on M his wife to be begotten ; and for want 
 of such issue, to the heirs male of the covenantor ; and for want of such 
 issue, to his own right heirs for ever. B had issue of M a son and a 
 daughter ; A dies, and then the son dies ; the daughter shall not take as 
 heir general, but the uncle, viz. C, shall be taken per for mam doni, and 
 not by purchase, but by descent. 
 
 2 Mod. 207, 211 ; ||1 Freem. 225, || Southcot v. Stowel. 
 
 It is to be observed, likewise, that uses may arise on covenants to 
 stand seised by implication ; as, 
 
 If a man covenants to stand seised to the use of the heirs male of his 
 body, omitting himself, per three justices, but Twisden, J., contra, it is 
 good, and he himself takes by implication : and so judgment was given 
 for the defendant. 
 
 Vent. 372, Pibus v. Mitford. ||See Gilb. on Uses, by Sugden, 119, nota.\\ 
 
 But, where A made a feoffment to the use of himself for life, and after 
 his death and the death of M his wife, to B his son in tail ; it was held 
 in this case, that no implied use did arise to M, and therefore the estate 
 to B was contingent. 
 
 Pollex. 94, Carpenter v. Smith. 
 
 It has been held, likewise, that a covenant to stand seised to the uses 
 in the indenture, and to no other, cannot exclude uses by implication, 
 but only express uses. 
 
 2 Lev. 76, Arg. in case of Pibus v. Mitford. 
 
 || A covenant to stand seised is an innocent conveyance, and therefore 
 will not create a discontinuance, or operate as a forfeiture. 
 
 Gilbert, by Sugden, p. 258. || 
 
 3. Of the Nature and Operation of a Bargain and Sale to Uses. 
 
 The nature and effect of this kind of assurance has been already ex- 
 plained ;(«) and having thus treated of the several sorts of conveyances 
 to uses, we proceed to show — 
 
 (a) See title Bargain and Sale, Vol. ii. p. 1. 
 
 pThe bargain and payment of the money vests the use; and the 
 statute of uses, the possession. 
 
 Kussel v. Stinson, 3 llayw. 5.gf
 
 148 USES AND TRUSTS. 
 
 (F) What Kind of Property may be conveyed by way of Use. 
 
 All lands and inheritances local, as rents in esse, advowsons in gvoss 7 
 common for so many beasts, liberties, franchises, visible or local, may be 
 conveyed by way of use. 
 
 Sir Win. Jo. 127, by Dodderidge, J., in Pari, in Lord Willoughby's case. 
 
 But inheritances personal, which have no relation to lands or local 
 hereditaments, cannot be conveyed by way of use, as annuities. 
 
 Sir Wm. Jo. 127, by Dodderidge, J., in Pari, in Lord Willoughby's case. 
 
 A seigniory, however, consisting of homage and fealty, the service 
 being merely personal, and to be performed by the person of a man, and 
 resting in feasance, may be granted to a use in respect of the possibility 
 that the tenancy may escheat, which perhaps never will be. 
 
 Per Crew, C. J., Sir Wm. Jo. 117, in Lord Willoughby's case. 
 
 So, a stewardship or bailiwick in fee-simple of a manor may be granted 
 to a use, being personal offices in point of service. 
 
 Per Crew, C. J., Jo. 117, in Ld. Willoughby's case. 
 
 So, a liberty of retorna brevium, which is personal, consisting in 
 execution of process. 
 
 Per Crew, C. J., Jo. 118, in Ld. Willoughby's case, cites it as ruled, 42 Eliz. B. R. 
 in the Countess of Warwick's case. 
 
 So, of a shrievalty of a county. And, 
 
 Where it is said, that a trust cannot be raised out of a trust, and there- 
 fore a bargain and sale by deed indented and enrolled cannot be limited 
 to a use, because a use cannot be limited to a use, yet, notwithstanding, 
 when a man is seised of an estate of an inheritance of an office holden by 
 grand serjeantry, wherein there is required trust in the person, yet a use, 
 which is a pernancy of the profits belonging to that office, may be raised 
 out of the estate of inheritance, otherwise no land holden by grand ser- 
 jeantry could be transferred to a use, nor any use raised out of the same. 
 
 Per Crew, C. J., Jo. 117, in Ld. Willoughby's case. And it is there farther said, 
 that there is a diversity between a mere and a naked trust, wherein he that hath it, 
 hath neither jus in, re, nor jus ad rem, nor remedy by the common law, but only a 
 mere perception of the profits by the permission of the terre-tenant ; and an estate of 
 inheritance, wherein the owner hath both /us in re, and jus ad rem, by the rule of the 
 common law, and for the profit whereof the law giveth the owner remedy by writ of 
 assize, and & praecipe quod reddat, as the case requireth ; and the confidence required 
 in the person for executing the office may be an objection (though a weak one) that 
 it cannot be transferred over ; but that a use, that is, a pernancy of the profits, cannot 
 be raised out of the estate ; the trust in the person is no objection at all ; for the use 
 respecteth the estate of inheritance, and not the person. 
 
 Nothing that passes by way of extinguishment can be granted to a use. 
 Gilb. Law of Uses, &c, 2bl. 
 
 Neither can a use be raised out of a power. 
 Arg. Le. 147, pi. 205, in case of Read v. Nash. 
 
 Neither can things which are mere rights be conveyed by way of use, 
 as commons, 8fc, ways in gross, for a man cannot walk over ground to 
 the use of a third person. 
 
 Sir Wm. Jo. 127 ; Uilb. Law of Uses, 281. 
 
 In case the plaintiff declared that the defendant, seised in fee of the lands 
 over which there was a way, and of other lands by indenture of bargain 
 and sale enrolled, conveyed his lands to J S in fee, with a way over his 
 lands, and that J S leased the premises to the plaintiff, and that the defend- 
 ant disturbed him. The court were all of opinion, that by this bargain
 
 USES AND TRUSTS. 149 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 and sale the land only passed, and not a way over the same, because no- 
 thing but the use passed by the deed, and there cannot be the use of a 
 filing which is not in esse, as a way, common, &c, newly created, and 
 until they are created no use can be raised by bargain and sale, and, 
 consequently, nothing passed by the indenture. 
 Cm. Ja. 189, pi. 13, Bewdley v. Brookby; || Jones, 127, S. C.|| 
 
 A uae may be of a lease or chattel. 
 And. 204, Inglefield's case. 
 
 But it is said, that the property of money cannot be changed by a gra- 
 tuitous delivery to a use. Thus, 
 
 A sum of money was delivered to J S, to the use and behoof of a wo- 
 man, to be delivered to her at the day of her marriage, and before the 
 marriage the bailor revoked it. Two justices held the money counter- 
 mandable, and two e contra. But Dyer says, it seems that the property 
 of the money cannot be changed by the words to the use and behoof. 
 
 Ly. 49 a, b, pi. 7, &c, Lyte v. Penny. But if the money had been delivered by 
 way of consideration, satisfaction, or recompense, there the property would alter, and 
 the bailor could not countermand it. ■ Dyer, loc. citat. 
 
 One seised in fee may bargain and sell, grant and demise land to others 
 and their heirs to the use of one for years, because he has a fee-simple. 
 But lessee for years cannot grant and sell his lease to the use of one for 
 years. 
 
 Brownl. 40. 
 
 We have thus shown how uses may be raised according to the nature 
 of the respective assurances, and what kind of property may be conveyed 
 by way of use : it remains now therefore more particularly to inquire, 
 
 1. What kind of uses are executed by the statute ; 2. What cases are 
 out of the statute. 
 
 (G) Of the Several Kinds of Uses executed by the Statute,(«) which in their more 
 
 general Division are Twofold, viz. : 
 
 1. Uses in esse. 2. Uses in Possibility. 
 
 (a) Concerning the execution of Jointures by the latter clauses of the 27 H. 8, c. 
 10. See title Dower and Jointure, Vol. iii. 
 
 1. Uses in esse. 
 
 With regard to uses in esse, they are raised either by transmutntion 
 of possession, or without such transmutation ; and the manner in which 
 they are executed has been already explained in treating of the several 
 sorts of conveyances to uses, and their respective operations. It remains 
 therefore to consider of — 
 
 2. Uses in Possibility ; tcherein, 
 1. Executory Fees. 2. Contingent Remainders. 
 
 1. Of Executory Fees. 
 Though a remainder of a fee cannot, by the rule of law, be limited after 
 a fee-simple, yet that rule hath of late been evaded by distinguishing be- 
 tween an absolute fee-simple and a fee-simple which depends on a con- 
 tingency ; and how such executory fees may be limited, is here to be con- 
 sidered ; and they are to be governed by the following rules : 
 
 See ante; letter (D), p. 127. In what case the statute operates against the rules 
 of law. 
 
 n2
 
 150 USES AND TRUSTS. 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 1st, That all limitations that tend to the provision of the family, and 
 to secure against contingencies which are within the party's own imme- 
 diate prospect, are to be favoured. 
 
 Gilb. Law of Uses, 118. 
 
 2dly, All limitations that perpetuate, or tend to perpetuity, are in 
 themselves void and repugnant to the policy of the law. 
 
 And therefore it is to be seen what is a perpetuity. 
 
 Gilb. Law of Uses, 118. 
 
 A perpetuity is the settlement of an interest descendible from heir ts 
 heir, so that it shall not be in the power of him in whom it is vested to 
 dispose of it, or turn it out of the channel. 
 
 Case of Perpet. 31 ; 1 Rep. 138. || A perpetuity may at this day be described to be 
 such a limitation of property as renders it unalienable beyond the period allowed by 
 law ; that is, beyond a life or lives in being, and twenty-one years after, and a few 
 months allowed for gestation. Gilbert by Sugden, 260 ; and see Sand, on Uses, 196. || 
 
 The inconveniences of which are, that the estate is made incapable of 
 answering the ends for which the perpetuity is maintained and established ; 
 for it puts it out of the power of the owner to provide for the necessities 
 of his family, or the extremity and various changes of his own affairs out 
 of the estate ; besides, it would be of universal damage to the common- 
 wealth ; for it would shut up all converse, by making the way of commu- 
 nication between land and money utterly impracticable. To know, there- 
 fore, how far a limitation may be allowed, without the danger of being 
 construed a perpetuity, it is to be considered what limitations are consist- 
 ent with the rules of reason and policy. 
 Cas. of Perpet. 31 ; 1 Rep. 138. 
 
 1st, The law in all cases allows the limitations of estates for life, U 
 persons in being ; for there can be no danger in such a common limita- 
 tion, nor any design to perpetuate ; and therefore here the party is re- 
 strained from alienation farther than for his own life. 
 
 Gilb. Law of Uses, 119. 
 
 2dly, The law allows of no estate of inheritance, that goes in lineal 
 succession, but what is under the power of that person to whose repre- 
 sentatives the estate must descend ; and to establish a right of succession, 
 and to restrain the power of alienation, is to perpetuate ; and therefore 
 to limit an estate of succession, determinable upon a remote contingency, 
 tends to a perpetuity ; since none can purchase, with security, while such 
 a cloud hangs over the estate. 
 
 Gilb. Law of Uses, 120. || It is a settled rule, that no executory foes or springing 
 uses can be valid if limited, so as by possibility to take effect at a more remote period 
 than a life or lives in being and twenty-one years afterwards, and a few months al- 
 lowed for the gestation of a child in the womb ; a limit which appears gradually to 
 have become fixed by analogy to the period during which an estate may at common 
 law be prevented from being aliened, by an entail. Stephens v. Stephens, For. 232, 
 reported by name of Steavens v. Steavens ; Vivian's MS. Rep. Line. Inn, Lib. Vol. ii. 
 ' p. 1 ; Fearne's Ex. Dev. 430, (7th edit.) Whether, in addition to lives in being, the 
 estate may, by an executory devise or a springing use, be prevented vesting during a 
 term of twenty-one years in gross, independent of the infancy of the devisee, does not 
 appear to be settled. Sir E. Sugden is of opinion that it cannot, and that the period 
 must be confined strictly to the minority of the party to take under the limitation. 
 Sec his note to Gilbert's Law of Uses, p. 260, and cases there collected. Mr. San- 
 ders considers the contrary rule to be at least settled in practice. Sand, on Uses, 
 198. And in Beard v. Westcott, 5 Taunt. 39:',,, the Court of Common Pleas seem to 
 have held accordingly. In the same case in B. R., 5 Barn. & Aid. 801, the point was
 
 USES AND TRUSTS. 151 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 discussed, but not decided ; and see 1 Turn. R. 25, S. C. ; Burton's Law of Real Pro- 
 perty, p. 251. It is to be lamented that the value of the judgments on the important 
 cases sent from Chancery, is much diminished by the court's habit of not pronounc- 
 ing judgment at length, or giving any reasons in the certificate. || 
 
 Before we proceed to the application of these principles, it is necessary 
 to observe, that 
 
 As to executory fees, there is a difference, where they rise by way of 
 use, and where by way of devise. 
 
 1st, If they rise by way of use, there must be a seisin in somebody to 
 be executed in the grantee of the contingent use, whensoever the contin- 
 gency happens ; for if there be not a person that can be seised of a use, 
 there can be no use ; and, consequently, there can be no execution of it : 
 therefore if a man covenants to stand seised to the use of himself in fee, 
 till such a marriage takes effect, and then to the use of himself for life, 
 the remainder to his wife, his son, &c, and before the marriage he makes 
 a feoffment in fee, gift in tail, or lease for life, upon good consideration, 
 without notice of the uses, the estates limited after the marriage shall 
 never arise ; because there is nobody seised to such uses. And the same 
 law is of feoffments to such contingent uses. (a) 
 
 Cro. Eliz. 765, Wood v. Reignold ; Moor, 731, Strangway v. Newton. \\(a) Sir E. 
 Sugden thinks that such uses cannot be barred, at least where they are limited by a 
 conveyance operating by transmutation of possession, and he cites a MS. of Serjeant 
 Hill to the same effect. Gilbert's Law of Uses, by Sugden, 288.|| 
 
 But if in this case he had made a lease for years, he would not have 
 destroyed the future use, but only have bound it; because there is a seisin, 
 out of which the use arises ; and at common law, if the feoffees had made 
 a lease upon good consideration, as in this case, it would have bound the 
 lands, and consequently cestui que use must have the profits of the land 
 thus leased ; and in this case, since the statute, the covenantor has the same 
 power of obliging the fee ; and therefore those to whom the contingent 
 estates are limited must take it under the charge.(6) 
 
 Cro. Ja. 168, Bould v. Winston. ||(6) Serj. Hill says, that if the conveyance is a 
 conveyance to uses, and not a covenant to stand seised, there seems no legal principle 
 to warrant saying that a lease by him who has a qualified use or base fee, should bind 
 the future use. Note Gilb. Law of Uses, 289.|| 
 
 So in case of feoffment to the use of A in fee, and if B pays so much, 
 &c, then to B in fee ; if A devises his land and dies, it destroys the con- 
 tingent estate : otherwise it is, if he had devised portions out of the land, 
 for that would not alter the freehold. 
 
 Moor, 733, Strangway v. Newton, Gilb. Law of Uses, 126. 
 
 A recovery doth not bar an executory fee ; for the recoveror, with no- 
 tice, and without consideration, is seised to the former uses. 
 
 Cro. Ja. 592, 593, Pells v. Brown. ||By three judges against Dodderidge, J. The 
 reasons stated in the text seem immaterial. The ground of the decision was, that he 
 who suffered the recovery had a fee, and the other had but a possibility which could 
 not be touched by the recovery. || 
 
 Secondly, With regard to executory devises. 
 
 They have been already treated of under title " Devise ;"(c?) yet it 
 may not be improper to take notice of some circumstances more particu- 
 larly applicable to the title under consideration. 
 
 (c) See title Devises, letters (I) and (K), and Remainder, letter (D). 
 
 If a man devise lands to A in fee, and upon contingency to B in fee,
 
 152 USES AND TRUSTS. 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 and A makes a feoffment in fee, this cloth not destroy the contingency; 
 for by a devise the freehold itself is transferred, and there needs no per- 
 son to be seised to execute an estate in the devisee, as must be where a 
 feoffment is made to executory uses. 
 Gilb. Law of Uses, 127. 
 
 But if a man devise to A for life, with a contingent remainder, if A 
 
 makes a feoffment in fee, this destroys the contingent remainder, because 
 
 there is no particular estate to support it. 
 
 Gilb. Law of Uses, 127. AVith regard to executory devises of fee-simple in con- 
 tingency, after an absolute fee, they stand upon the reason of the old law, which ad- 
 mits favourable distinctions to supply the intent of the testator, that being always to 
 be observed in wills ; and where there is such an executory devise, there needs not 
 any particular estate to support it, because the testator did not part with his whole 
 estate in the first limitation, for something still remained in him to give, which ac- 
 cordingly he gave to another, but upon a contingency which might happen upon the 
 first limitation ; therefore, because the person who is to take upon him such a con- 
 tingency, hath not a present, but a future interest, his estate cannot be barred by a 
 common recovery ; and that which remained in the testator to give, after the first fee 
 thus limitod upon a contingency, shall descend after his death to his heir, till the 
 contingency happens. 2 Nels. Abr. 797. 
 
 It remains now to apply the principles above laid down. 
 
 1. With regard to FreeJiolds. 
 The first remainder which was allowed to be good by a devise, after a 
 conditional fee-simple, limited before in the same will, was anno 20 Eliz., 
 where the devise was to the son and his heirs, and if he die before twenty- 
 four, and without heirs of his body, remainder over : now this was a plain 
 remainder limited after a fee-simple to the son, but not upon his dying 
 without heirs of his body generally, for that had been too remote an ex- 
 pectancy ; but it was upon his dying without heirs of his body before he 
 was twenty-four years old ; so that it being a remainder to arise upon a 
 contingency, which might happen in a few years, it was adjudged good ; 
 but the son living many years after he was twenty-four years old, this 
 contingency never happened ; and therefore it was adjudged he had an 
 estate in fee, and not in tail. 
 3 Leon. 64 ; Hind v. Lyons, Dyer, 124, pi. 38. 
 
 But there can be no executory devise of a fee-simple, after an estate- 
 tail ; because that would tend to a perpetuity ; therefore the first limitation 
 must always be in fee ; as, for instance, the father having two daughters, 
 devised a house to the eldest and her heirs, and another house to the 
 youngest and her heirs, and if the youngest died before she was sixteen, 
 living the eldest, then the house to the eldest and her heirs ; and if both 
 his daughters died without issue, then both the houses to his grand-daugh- 
 ters and their heirs. Adjudged, that this last clause, viz., if both his 
 daughters died without issue, did not make cross remainders to them in 
 tail by implication ; but that each of them had a fee-simple conditionally, 
 immediately, viz., the eldest if she survived, her sister dying before she 
 was sixteen, and the youngest, if she outlived that age ; that the estate-tail 
 was not vested in the eldest but upon a contingency, viz., if the youngest 
 daughter had died before she was sixteen, which contingency never hap- 
 pened, because the youngest daughter outlived that age ; and then this 
 case was no more than a devise of a house to the youngest daughter and 
 her heirs ; and if she die before she was sixteen, living the eldest, then to
 
 USES AND TRUSTS. 153 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 her and her heirs ; which is a remainder in fee limited, after a conditional 
 fee ; and good by way of executory devise. 
 Dyer, 330, pi. 20; 2 Nels. Abr. 797. 
 
 Nevertheless, we meet with some contrary resolutions as to this point, 
 till at length the law seems to have been settled by the following case, 
 viz. : the father devised his lands to his youngest son and his heirs ; and 
 if he died without issue, living the eldest, then to him and his heirs ; 
 afterwards the youngest son, imagining he had an estate-tail by these, 
 words, "if he died without issue," suffered a common recovery, and sold 
 the lands, and died without issue, his eldest brother being still living ; 
 and the question was, whether he had a good title or not against the pur- 
 chaser? It was adjudged for him, that he had a good title, because the 
 youngest son had neither an estate-tail, nor an absolute fee-simple, but a 
 conditional fee ; for the devise to him and his heirs, and if he die without 
 issue, is not absolute and indefinite, but it is tied up to a contingency of 
 his dying whilst his eldest brother was living ; now he being living when 
 the youngest brother died, the fee-simple determined by his death with- 
 out issue, and immediately arose in the eldest brother, who had the re- 
 mainder in fee, depending upon the possibility that he might be alive 
 when his' youngest brother died without issue, which remainder did not 
 depend upon any particular limitation, but upon a collateral determination 
 of the estate of the youngest son dying without issue whilst he was living ; 
 and because it was a remainder not in being when the recovery was suf- 
 fered, nor until the said contingency did happen, therefore it could not 
 be barred by that recovery. 
 
 Godb. 282, Pells v. Brown ; Cro. Ja. 590, S. C. But if an estate be limited to J S, 
 in fee, while J N hath issue, remainder to J D, this is void to J D, for this comes within 
 the danger of a perpetuity, and doth not determine within the common compass of an 
 estate for life. Vaugh. 272, Gardner v. Sheldon. 
 
 So, where there was a devise to T P and his heirs, and if he die with- 
 out issue, living W C, or if he die before he is of the age of twenty-one 
 years, remainder over to another in fee ; it was adjudged, that this was 
 a conditional fee in T P immediately, and that the words "if he die with- 
 out issue" make an estate-tail if he had gone no farther; but it is dying 
 without issue, living W 0, so that though it was an estate-tail, it was not 
 to vest in T P but upon that contingency ; so that there is a plain differ- 
 ence, where the limitation is upon a dying without issue generally, and 
 a dying without issue in the lifetime of another ; for in the first case there 
 can be no executory devise after an estate-tail, because that would tend 
 to a perpetuity ; for that contingency is too remote, where a man must 
 expect a fee upon another's dying without issue generally ; but dying 
 without issue living another, may happen in a little time, because it de- 
 pends but upon one life ; and therefore a devise of a fee-simple to one, 
 but to remain to another upon such a contingency, is now held good by 
 way of executory devise ; but not upon a dying without issue generally ; 
 as for instance, the father devised lands to his eldest son and his heirs, 
 and other lands to his youngest son and his heirs ; and that if either of 
 them died without issue, the survivor should be heir to the other : ad- 
 judged, this was an estate-tail in them, because it is limited to them upon 
 their dying without issue generally. 
 
 Nels. Abr. 798 ; Cro. Ja. G95, Chadock v. Cowley. 
 
 ||The difficulty in most cases of this sort is, to ascertain from the whole 
 Vol. X.— 20
 
 154 USES AND TRUSTS. 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 context of the will, whether the gift over is generally upon failure of heirs, 
 which is void, unless where the preceding estate can be cut down to an 
 estate-tail ; Wood v. Baron, 1 East, 259 ; Doe v. Ellis, 9 East R. 382 ; 
 or whether it is confined to a failure of heirs within the period allowed 
 by law, in which case it is good. 
 
 Where the devise over was "in case the first devisee should happen 
 to die leaving no issue behind him," the two last words were held to tie 
 up the event to the time of the devisee's death ; and, consequently, the 
 devise was held good. 
 
 Porter v. Bradley, 3 Term R. 143. 
 
 So, also, where the devise was to A and his heirs for ever, and in case 
 he should depart this life, and leave no issue, then over : this was held a 
 good devise, since the words implied a dying without issue at the time of 
 the death of the first devisee. 
 
 Roe v. Jeffery, 7 Term R. 589. 
 
 So, where the bequest of a term was to A and the heirs of his body, 
 and to their heirs and assigns for ever, but in default of such issue, then 
 after his decease to B and his heirs, the limitation over to B was held 
 good by way of executory devise. 
 = Wilkinson v. South, 7 Term R. 555 ; and see 2 Bos. & Pul. 324 ; 2 Marsh. R. 161. 
 
 So, where there was a devise to A B, her heirs, &c, for ever ; and in 
 case A B happen to die and leave no child or children, then to C D and 
 her heirs for ever, paying the sum of 1000Z. to the executors of A B, or 
 to such persons as A B should by will appoint ; it was held that the de- 
 vise over to CD was a good executory devise, in case A B died leaving 
 no issue living at her death, the payment of the 1000/. to the executor 
 of A B, being considered to indicate that the estate was meant to go over 
 on failure of children at A B's death, and not on the remote event of an 
 indefinite failure of issue. 
 
 Doe v. Webber, 1 Barn. & Aid. 713. 
 
 So, where a testator having a son and daughter, and the latter having 
 several children, devised to his son W F in fee, and if he should leave no 
 children, child, or issue, the estate was, on the decease of W F, to become 
 the property of the heir at law, subject to such legacies as W F might 
 leave to the younger branches of the family ; it was held, that W F took 
 an estate in fee with an executory devise over to the person who should 
 be heir at law on the death of W F without leaving any issue. 
 
 Doe v. Frost, 3 Barn. & A. 546 ; and see 4 Maule & S. 61. 
 
 The words "leaving no issue," when standing alone, and not explained 
 by any words in the context of the will, are held to mean indefinite failure 
 of issue, when applied to a freehold estate ; but in case of a bequest of a 
 chattel interest, these words are considered as referring to a failure of 
 issue at the death of the party ; the reason of the difference being, that 
 in the former case the courts lean in favour of the heir at law, whose in- 
 •fp-pncf" ic concerned. 
 
 Forth v Chapman, 1 P. Wil. 664 ; Porter v. Bradley, 3 Term R. 143 ; Daintry v. 
 Daintry, 6 Term 11. 307 ; Crooke v. De Vandes, 9 Ves. 197 ; Fearne Ex. Dev. 471, 
 477, (7th edit. )|| 
 
 2. With respect to Chattels. 
 
 Not long after a fee-simple was adjudged to arise to one, after a contin- 
 gent fee limited to another, it became a question, whether a term for years
 
 USES AND TRUSTS. 155 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 might be limited in the same manner ; and it was objected that it could 
 not, because it being no more than a chattel, it was so poor and mean an 
 interest, that it could not be limited over in remainder ; for by the rules 
 of law, the devise of a chattel for an hour, is a devise of it for ever. No*w 
 in answer to the poverty and meanness of a chattel interest, it is certain, 
 there is no material difference between it and an inheritance, in respect 
 to the owner of the lands himself, but only in respect of the duration of 
 his estate ; for the proprietor of a lease for years hath as absolute a power 
 over it, as the owner of an inheritance hath over that estate, and since great 
 part of the lands in this nation is held under leases, it seems very absurd, 
 for any one to affirm that such lessees cannot provide for the contingen- 
 cies of their families, because their estates and interest in such lands are 
 accounted poor and mean in law, being compared to those who held in 
 fee-simple absolutely. 
 
 2 Nels. Abr. 801 ; Ld. Not. Arg. Cas. of Perp. 32, 33. 
 
 It is true, this reason hath prevailed ; for formerly, wherever there was 
 a devise of a term of years to one, and that if he die, living another per- 
 son, (particularly named in the will,) that it should remain to the other 
 person, during the residue of the term, such a remainder was held void. 
 Dyer, 74, pi. 18. 
 
 But about the beginning of the reign of Queen Elizabeth, the judges 
 were of another opinion ; for there being a devise of a term for years to 
 one for so long a time as he should live, remainder over to another ; this 
 was adjudged good. At length it was adjudged, that a remainder of a 
 term to one, after it was limited to another for life, was good, viz., the 
 testator being possessed of a term for sixty years devised, that his wife 
 should have all his lands in lease for so many years as she should live, and 
 that after her death, the residue thereof should be to his son and his as- 
 signs, and made her sole executrix, and died: this remainder was adjudged 
 good upon this distinction, viz., that there was jus possessionis and jus 
 proprietatis of a term for years ; that it might be collected out of the 
 words of this will, that the testator did not intend the absolute property 
 of it to his wife,* but only the possession for so many years as she should 
 live, though it is true there was a possibility she might survive the whole 
 term, but that it is plain he intended the right and property of the resi- 
 due of the term to his son. And this my Lord Nottingham tells us, in 
 the Duke of Norfolk's case, was the first time that an executory remain- 
 der of a term for years was adjudged good. 
 
 Dyer, 277, pl/59 ; Dyer, 358, pi. 50; 4 Leon. 192; Ld. Not. Arg. Cas. of Perp. 33. 
 
 Afterwards some distinctions were made, where the devise was of the 
 occupation and profits of the land, &c, in lease, and where the devise was 
 of the lease or term itself; but these distinctions were set aside in the fol- 
 lowing case. Where a lessee for years of a farm devised the use and oc- 
 cupation thereof to his wife for life, and after her decease to his son 
 Matthew Manning, for the residue of the term, and made her sole execu- 
 trix, and died : it is true one judge was of opinion, that the residue of the 
 term thus devised to the son was void, because his mother had the whole 
 by the devise to her for life, and there being only a possibility that she 
 might die before the term expired, the residue could not be devised over 
 to another, to vest in him upon such a possibility; but adjudged, that 
 Matthew Manning the son did not take this term by way of remainder,
 
 156 USES AND TRUSTS. 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 but by way of an executory devise to hirn, viz., upon the contingency of bis 
 mother's death within the term : and that there was no difference where 
 the devise is of the lease itself, or of the land, or farm in lease, or of the 
 use, occupation, or profits of the land, for the law will make such con- 
 struction of those words, as may consist with the intent of the testator. 
 
 8 Rep. 94, Matthew Manning's case. But a grant of the lease for years to J S for 
 life, remainder to J N, is not good to J N, for leases for years being under the power 
 of the freeholder, they are recovered as chattels, and go to the executors ; and a chattel 
 cannot be limited for life with a remainder over ; because this would create great in- 
 security in common traffic. Gilb. Law of Uses, 121. ||But they may at this day, by 
 deed of trust, be as effectually settled to one for life, with remainder over, as an estate 
 of inheritance, if it is not attempted to render them unalienable beyond the period 
 allowed by law. Iiarg. Co. Lit. 20 a, note.|| 
 
 The law seems to be now settled, that executory devises are good, pro- 
 vided the contingency is to happen within a life, or several lives,(a) so that 
 they are all in being ; for there can be no tendency to a perpetuity, which 
 was one great mischief apprehended from those kinds of limitations. 
 
 1 Vol. Cas. in Eq. Ab. 191. (a) If there are ever so many lives, there must be a 
 survivor, so that in effect it is but the length of one life. 2 Vol. Cas. in Eq. Abr. 337 ; 
 || Woodford v. Thellusson, 1 New R. 357. || 
 
 As the legal estate of a term may be devised, so the trust of a term 
 may be limited ; the trust of a term in equity being governed by the 
 same rules which govern the devise of a term at law. 
 , Gilb. Law of Uses, 124; 1 Vern. 235, Massenburgh v. Ash. 
 
 A limitation of a term to years for twenty distinct persons in esse is 
 good,(6) as has been said ; but the limitation of a term to A for life, the 
 remainder to the right heirs of B, a person in esse, is a void remainder ; 
 and after the death of A it shall revert to the donor ; because this might 
 tend to the establishment of an estate of inheritance in a chattel, and 
 putting it out of the course the law had settled for it, whereby it ought 
 to go to the personal representative. 
 
 Gilb. Law of Uses, 124; Chan. Cas. 8, Goring v. Bickerstaff. \\(b) It seems now 
 Bettled that whatever number of limitations there may be after the first executory de- 
 vise of the whole interest, any one of them which is so limited that it must take effect 
 if at all within twenty-one years after the period of a life then in being, maybe good 
 in event, if no one of the preceding executory limitations, which would carry the 
 whole interest, happens to vest. But where once any preceding executory limitation, 
 which carries the whole interest, happens to take place, that instant all the subse- 
 quent limitations become void, and the whole interest is then become vested. See 
 Fearne's Ex. Dev. p. 415 ; Gilb. by Sugden, p. 282, and cases there cited. || 
 
 So, if a term be limited to A for life, the remainder is in the donor; 
 and if a term be limited to A for life, the remainder to the right heirs 
 of the donor, this is a void limitation, because the reversion is in him. 
 Gilb. Law of Uses, 124. 
 
 But, if the trust of a term be limited to A for life, the remainder to B, 
 B may dispose of the remainder ; yet, if a term be devised to A for life, 
 the remainder to B, B cannot dispose of this remainder ; for by the rules 
 of the common law, a possibility cannot be granted over, for a man that 
 only may have a right, has at present no right in him ; and while the rules 
 of law say he has no right, it is contradictory and repugnant to allow him 
 to act as a person having right, by transferring an interest to another. B, 
 in this case, has only a possibility to have a right, because the estate of A, 
 being of uncertain duration, may outlast the term for years ; but in Chan- 
 cery, where the trust is examined, they allow a man to provide for his pre-
 
 USES AND TRUSTS. 157 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 sent occasions out of what he may possibly have ; and a purchaser of it 
 shall not lose the probable advantage, since he hath given for it a valu- 
 able consideration. 
 
 Gilb. Law of Uses, 124 ; 4 Rep. 66, Fulwood's case. 
 
 2. Of contingent Remainders. 
 
 The law respecting this title has, in part, been already explained ;(«) 
 it may be necessary, however, more particularly to consider, 
 (a) See title Remainder, letter (D), et sequent. 
 
 1. In what Manner they are to be executed. 
 
 If a feoffment be made to J S in fee, to the use of A for life, remainder 
 to his first, second, and third son, the remainder to B in fee, from these 
 limitations the three following observations may be drawn : 
 
 Gilb. Law of Uses, 127. 
 
 1st, That there ought to be a person seised to the use at the time when 
 the use is executed ; and this is plain by the words of the statute, viz., 
 if any person stand or be seised. 
 
 1 Rep. 126, a, Chudleigh's case. || Anderson's report of this case seems the best ; 
 and see an abstract of a translation of it, Sugden's Gilbert on Uses, App. ; and see the 
 notes to the case in 1 Rep. (Ed. Thomas and Fraser.)|| 
 
 2dly, That the estate for life is immediately executed in A with the 
 remainder in fee to B by the statute ; because the use is immediately in 
 them, and they have the possession in the same manner they have the use. 
 
 Poph. 74. 
 
 3dly, That no possession can be immediately executed in the sons, be- 
 canse they are not in being: and therefore capable of no property, 
 neither in use nor possession. 
 
 1 Rep. 126 a ; Poph. 72 ; 1 Rep. 136 a. 
 
 The inattention to these particulars caused two false opinions in this 
 matter in the debate of Chudley's case. 
 
 1st, Some thought, according to the second rule, that the whole pos- 
 session must be 'executed in A and B, and therefore the contingent use, 
 when it falls, was executed out of the first livery ; and the estate formerly 
 in the feoffees; and this by the words of the statute declaring that the 
 estate that was in the feoffee shall be in cestui que use ; and hence they 
 inferred, that since the estate was executed by the power of the statute, 
 it must be preserved till such execution by the same power ; and there- 
 fore they said, the contingent remainders were in abeyance, and not ex- 
 tinguishable by the alienation of tenant for life. 
 
 Poph. 73 ; 1 Rep. 132, 133, 134. 
 
 But this is a mistake ; first, because this is contrary to the first rule ; 
 for that supposes an estate in J S at the time of the execution. 
 , 1 Rep. 136 a ; 1 And. 332. 
 
 2dly, Because it is contrary to the nature of an abeyance by the rules 
 of law ; for if there be tenant for life, remainder to the right heirs of J 
 S living, if tenant for life dies, or aliens, during the life of J S, the re- 
 mainder is destroyed. 
 
 1 Rep. 135. 
 
 3dly, Because it would create a perpetuity. 
 
 Gilb. Law of Uses, 129. 
 

 
 158 USES AND TRUSTS. 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 Some add another consequence of this doctrine, that a use would rise 
 out of a use. 
 
 Gilb. Law of Uses, 129. 
 
 Others held a different opinion ; and they thought there was an imme- 
 diate remainder vested in J S to serve the contingent use when it falls, 
 and that this estate was determinable upon the rising and execution of 
 the estate in the sons, &c. 
 
 Gilb. Law of Uses, 129 ; 1 Rep. 128, 129. 
 
 But this could not be ; first, because this is contrary to the second 
 rule ; for thereby an estate is immediately vested in A and B, but by this 
 opinion, the estate in B is only executory ; for it arises to him upon the 
 same contingency that the estate of J S rises, for he could not have a 
 fee before ; for then there would be a double fee. 
 
 Gilb. Law of Uses, 129; 1 Rep. 128, 129. 
 
 2dly, Because J S would have a remainder without any grantor, and 
 the law leaves it to parties to limit their own estates ; and where nobody 
 has limited an estate, there can be no legal limitation. 
 
 Gilb. Law of Uses, 129 ; 1 Rep. 128, 129. 
 
 Sdly, If a remainder be vested in J S he must punish waste, and enter 
 for a forfeiture ; but the party designed him no such benefit, but made 
 him only an instrument to convey it to others. 
 Gilb. Law of Uses, 129 ; 1 Rep. 128, 129. 
 
 ' The true opinion is, that the legal estate is executed in A and B, but 
 
 the contingent remainders are not utterly lost, because the possession by 
 
 the statute must be executed in the same manner as the use is limited ; 
 
 therefore there remains a possibility of possession by the feoffees, to this 
 
 purpose only, that when the contingency happens, then the possession 
 
 may be transferred to the remainder-man ; and if this is an estate not 
 
 known before, and so has no determination at common law, yet it is such 
 
 an one as must be raised by the intent of the statute, and all its ends 
 
 could not be answered without it ; and therefore to suppose, as in the other 
 
 opinions, no estate in the feoffees, or to reduce it to the standard and 
 
 rules of the common law, is equally false and impracticable. 
 
 Gilb. Law of Uses, 130, 131. [j As to the much controverted question on the mode 
 in which the statute executes contingent uses, whether by means of a scintilla juris in 
 the feoffees, or by transferring the whole seisin to the vested uses, and letting in the 
 contingent uses when they arise, see Gilb. on Uses, by Sugden, note, p. 296 ; Sanders 
 on Uses, 232 ; Sugden on Powers, 11, 45, where the cases are analyzed ; Rowe's 
 Scintilla Juris, Co. Lit. Butler's note, 271 b; Butler's Fearne, 291. The question 
 seems now unimportant in practice. || 
 
 2. How they may be defeated. 
 1. Where there is no Power of Revocation. 
 
 How they may be defeated, where there is no power of revocation nas 
 been already explained ;(a) it may not be improper, however, to take 
 notice of the following distinctions. 
 
 (a) See title Remainder, letter (G). 
 
 If a man covenants for a good consideration to stand seised to the use 
 of his son for life, the remainder to such feme as the son afterwards shall 
 take to wife, for her life, with remainder over, and after the covenantor 
 makes lease for years of the land, reserving certain rent, and after the son
 
 USES AND TRUSTS. 159 
 
 (G) The several Kinds of Uses executed by the Statute, &.c. 
 
 takes a wife and dies ; this lease for years is a revocation and destruction 
 of the contingent use for so much of the time as the lease is to continue ; 
 for the estate of the land is disturbed before the contingent happened ; 
 but this is not any revocation for more than the lease, for the feme shall 
 have the reversion, and the rent reserved upon the lease. 
 
 2 Roll. Abr. 793, Bould v. Wiston ; Noy, 122; || Cro. Ja. 168. || Gilb. Law of Uses, 
 &c, 138, cites S. C. and says, that this will not prevent the raising of the contine 
 remainder, nor bind it; for the covenantor has no power to demise anything but the 
 reversion, and consequently the freehold remains unaltered to support the contingent 
 remainder. But he adds, that if the covenantor in this case had reserved to himself 
 a power of making leases, this lease would have been good, and a revocation of the 
 former uses. || Vide suprci, Vol. viii. p. 357, S. C.|| 
 
 If A, seised in fee, in consideration of natural love and affection to his 
 
 wife and children, covenants with B to stand seised thereof to the use of 
 
 himself for life, and after to the use of his wife for life, and after to the use of 
 
 C his daughter for life, and after to the first son of the body of C begotten, 
 
 and so after to the other sons of C in tail, and after to his own right heirs, 
 
 and after A, by indenture between him and F reciting the said conveyance 
 
 and estates, grants his said reversion in fee without any consideration to F 
 
 and his heirs, to the use of F and his heirs ; this grant of the reversion in 
 
 fee to F is not any destruction of the contingent use limited to the first 
 
 son of C, but that the use of the first son of C born after this grant, and in 
 
 the life of A or C, shall arise well enough, because by the grant of F of 
 
 the reversion, the first uses and estates being recited in the deed of grant, 
 
 and this being without any consideration, the grantee shall stand seised 
 
 to the first uses, inasmuch as he has conusance of the first uses; ami 
 
 though he limits it to the use of the grantee and his heirs, yet this does 
 
 not alter the trust any more now than at the common law. 
 
 2 Roll. Abr. 796. This was upon a conveyance made by Sir Edward Coke. 2 Sid. 
 64, 129, 157, Heyns v. Villars. Gilb. Law of Uses, 136, cites S. C. and says, that 
 this doth not destroy the contingent remainder to the son of C for life, who had a right 
 of entry for the forfeiture, and a particular estate in right, on which the contingent 
 remainder will depend. || Vide supra, Vol. viii. p. 346, S. C. ; Gilb. on Uses, by Sugden, 
 395, notd. || 
 
 But, if in this case the wife had entered after the husband's death, this 
 would not only have revived her estate, but the estate of C and the con- 
 tingent remainder thereon, which had never been put out of being ; other- 
 wise it is, as is said, in Sampson Shelton's case, if the contingent re- 
 mainder had depended upon the estate of B. 
 
 Gilb. Law of Uses, 136. || The reason of this is not very obvious : the rule is, that 
 a right of entry to support a contingent remainder must be a present right ; a mere 
 future right, arising at the same instant with the contingent remainder, will not be 
 effectual. Now in this case the feoffment of the husband passed his estate and the 
 estate of the wife during the coverture ; so that no right of entry existed during the 
 marriage ; and the wife's right, which would not take effect till after the coverture, 
 when the contingent remainder itself was to vest, would not support it ; and see Bigot 
 v. Smith, Cro. Car. 102; Thompson v. Leach, 1 Ld. Raym. 316; Fearne's C. R. 369, 
 370 ; Gilb. on Uses, by Sugden, 309, notd.\\ 
 
 If a feme covert or an infant be enfeoffed to any use precedent since 
 the statute, the infant or baron comes too late to discharge or root up the 
 feoffment ; but, if an infant be enfeoffed to the use of himself and his 
 heirs, and if J D pay such a sum of money to the use of J G and his 
 heirs, the infant may disagree and overthrow the contingent use. 
 
 Lord Bacon's Readings on the Statute of Uses, 348. 
 
 But it is otherwise, if an infant be enfeoffed to the use of himself for
 
 160 USES AND TRUSTS. 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 life, the remainder to the use of J S and his heirs, for he may disagree 
 to the feoffment as to his own estate, but not to divest the remainder, but 
 it shall remain to the benefit of him in remainder. 
 
 Lord Bacon's Readings on the Statute of Uses, 348. 
 
 2. "Where there is an express Power of Revocation. 
 
 A feoffment or fine, &c., with power of revocation, is void at common 
 law, as to all power of revocation ; for the words of enfeoffing or grant- 
 ing, &c.j transfer the whole right, pr.operty, and power of disposal to the 
 feoffee, &c. ; and therefore for the party to limit to himself a power of 
 revocation and disposal, is repugnant to the force of the precedent words, 
 and would introduce a double power seated in distinct persons over the 
 same thing, which the common law disallows. But this rule of law was 
 set aside by the same construction that hath brought in executory fees ; 
 for when, before the statute, uses were limited with power to revoke, as 
 the occasion, circumstances, and mind of the party altered, it was thought 
 reasonable that the parties should have liberty to revoke according to 
 their own apparent intent, by which uses are ever governed ; and since 
 the possession is executed by the statute as the party had the use, the 
 estate continues revocable. 
 
 1 Inst. 237 ; Gjlb. Law of Uses, 141. 
 
 A power of revocation is twofold : 
 
 1. A power relating to the land. 
 
 2. A power simply collateral to the land. 
 
 Hard. 415, per Hale, Edwards v. Slater; || Sugden on Pow. 46, (4th edit.) |] 
 
 1st, A power relating to the land is, where a power is limited to one 
 that had, hath, or shall have an estate or interest in the land. 
 This is again twofold : 
 
 1. Appendant or annexed to the estate in the land. 
 
 2. In gross. 
 
 Hard. 414 ; Gilb. Law of Uses, 141. 
 
 1st, Appendant or annexed to the estate in the land, is, when a man 
 hath an estate in the land, and a power of revocation, and the execution 
 of the power falls within the compass of the estate in the lands ; as if the 
 tenant for life with power to make leases, or to revoke, grants a rent-charge, 
 and then makes a lease according to his power, the lessee shall hold it 
 charged during the life of the tenant for life ; for he hath power to charge 
 his own interest, which by his own act cannot be avoided. 
 
 Hard. 414 : Gilb. Law of Uses, 141. 
 
 And if in this case he covenants to stand seised to the use of a stranger, 
 he cannot, by any after act, revoke the uses ; for since, as is said, the 
 execution of this power falls within the compass of the estate, so that, 
 unless it be executed during the continuance of the estate, it can never 
 be executed ; therefore, whatever act passes away the estate, hinders the 
 execution of this power of demising ; for a man cannot demise that estate 
 which he hath passed away to another. 
 
 2dly, In gross is, where a man hath an estate and power of revocation, 
 and the execution of the power falls out of the compass of the estate ; as, 
 if there be a tenant for life, remainder in tail, with a power lodged in tenant 
 for life to make a lease for thirty-one years to commence after his death, to
 
 USES AND TRUSTS. 161 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 raise portions to his daughters, this is a power in gross ; and if tenant for 
 life bargains and sells the lands in fee, this doth not destroy the power; 
 for since the execution of the power doth not fall within the compass of his 
 own estate, the selling of his own estate only doth not hinder the making 
 use of the power. 
 
 Hard. 414; Gilb. Law of Uses, 141. 
 
 But, if he had levied a fine, or made a feoffment in fee, this power had 
 been destroyed, for here he absolutely passes the entire estate, and devests 
 all the remainders ; and thus, by passing the whole estate to another, and 
 limiting new uses to his own benefit, he hath destroyed all the powers of 
 revocation ; for this power cannot be executed but out of the remainders ; 
 and he hath prevented the execution of it by having already disposed of 
 the whole estate to another. 
 
 Hard. 416. 
 
 He may likewise release such a power of revocation to the remainder- 
 man ; for he that is to have an interest by any possibility may release the 
 same to the present possessor, as well as if he had a future right, for it 
 is according to the policy of the law, for the quiet and peace of the pos- 
 sessors. 
 
 Hard. 41G; and see 10 Rep. 48, Lampet's case; Gilb. Law of Uses, 143. 
 
 2dly, Where the power of revocation is simply collateral. 
 
 Hard. 415. 
 
 And that is, where a man hath no present interest in the land, and by 
 the revocation of the estate is to have nothing. 
 
 Gilb. Law of Uses, 144. 
 
 In this case, a fine or feoffment of the land is no extinguishing of the 
 party's power ; for though every man is estopped to claim an interest con- 
 trary to his own act, whereby he passes an estate to another, yet, if a man 
 makes a feoffment, or levies a fine, and then revokes, whereby a stranger 
 claims an interest, the stranger, who is the only person that can claim, is 
 not estopped to claim it, for no man is estopped from demanding his own 
 right by the act of another ; and if there be no estoppel in this case, the 
 stranger- hath a right by the contract. 
 
 Gilb. Law of Uses, 144; 1 Rep. 174, Digge's case. 
 
 It remains lastly to consider of the manner of invocation. 
 
 1st, If a covenantor is tenant for life, having a power of revocation, upon 
 
 revoking he is seised of his former estate, without entry or claim ; for he 
 
 is in possession already ; and therefore there can be no entry, and the claim 
 
 where the party is already in possession is a void solemnity ; for it doth not 
 
 make any change of property notorious. 
 
 1 Inst. 237; 1 Rep. 173, 174, Digge's case; ||15 H. 7, fo. 11 b; and see a transla- 
 tion of the case, Sugden on Powers, Append. No. L(| 
 
 2dly, If there be a tenant for life, with a power to revoke the remain- 
 ders, and limit new ones, he may do both by the same conveyance. 
 
 1 Inst. 237; 1 Rep. 173, 174, Digge's case. 
 
 For since upon revocation the former uses are void ipso facto, without 
 any solemnity, there is nothing to hinder why the same conveyance should 
 not create new ones, and the law, to support the contract, would suppose 
 the destruction of the ancient uses to precede the creation of the new 
 uses. 
 
 Vol. X.— 21 o 2
 
 162 USES AND TRUSTS. 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 [But, where a revoker limits new uses, not being expressly warranted by 
 his power so to do, or, if warranted, then not exactly pursuant to the terms 
 of the power, such uses cannot inure upon the original conveyance, but 
 must take effect out of his interest; they must, consequently, be limited on 
 a new grant, or by covenant upon a consideration expressed ; the consider- 
 ation of the original uses not extending to the new uses limited upon the 
 
 revocation. 
 
 Powell on Powers, 281. 
 
 R B, having issue only one daughter married to E, levied a fine, and by 
 indenture declared the uses to R B and his heirs male, remainder to several 
 of his brothers, and the heirs male of their bodies, remainder to the said 
 daughter, &c. In the indenture there was a power of revocation of those 
 uses, and also a power to declare new uses. An indenture was made ac- 
 cordingly, revoking the first uses, in which also there was a power of revo- 
 cation, but no power to limit new uses. Then another indenture of revo- 
 cation, and also declaring new uses, was made ; which indenture contained 
 a clause, that all other fines afterwards to be levied should inure to those 
 uses. Upon this case it was argued, and also agreed by the court, that if 
 an indenture declared the uses of a fine, and further that it should be lawful 
 to revoke, &c, and also to limit new uses, &c, the party might, by such 
 deed, revoke and limit new uses as often as he pleased, and all the estates 
 should arise out of the fine. But if upon any such indenture, wherein he 
 declared new uses and reserved power of revocation, he omitted expressly 
 to reserve a power to limit new uses, he could then only revoke, and could 
 not limit new uses by virtue of the estate raised by the first fine. And 
 thereupon the counsel, in support of the last indenture, showed another fine 
 levied the term after the date thereof, by which it was agreed that the 
 estates limited by the last indenture were well raised. 
 
 Ward v. Lenthal, 1 Sid. 343; ||Sugden on Pow. 325; Gilb. on Uses, by Sugden, 320.|| 
 
 || If a power require the deed of revocation and limitation of new uses 
 to contain a power to revoke by deed, yet on the execution of such re- 
 served power of revocation the donee need not reserve another power to 
 revoke. 
 
 Phillips v. Phipps, Sugden on Pow. 325, (4th ed.)!| 
 
 A suffered a recovery to the use of himself for life, remainder to B in 
 tail, remainder to C in tail, remainder to D in tail, remainder to A in fee, 
 with power to revoke the three remainders in tail by any writing under his 
 hand and seal. He revoked them within the terms of the power, and, by 
 the same deed, declared new uses in favour of the plaintiff without any 
 words of conveyance, covenant to stand seised, or consideration expressed. 
 The question was, Whether this new declaration of uses was good or not ? 
 It was insisted in support of it, that A, having revoked the intermediate re- 
 mainders, had the whole fee in himself, and might dispose of it as he 
 pleased : and whether it was by the same deed or a different deed was 
 not material. But it was answered, and resolved by the court, that true it 
 was, he might by will, or any new conveyance, have made such new dis- 
 position, and even this deed would have been sufficient for such purpose, 
 if there had been a new grant, or a new covenant on consideration ex- 
 pressed : but, here, he had declared new uses as under the recovery ; 
 whereas the uses of the recovery were full before, and the power was only 
 to revoke and not to declare new uses. 
 
 Anon., 1 Stra. 584.]
 
 USES AND TRUSTS. 163 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 3dlv, He may revoke part at one time, and part at another ; for this is 
 not entire, like a condition, for a condition is entire, because the estate- 
 must be defeated in the same manner that it is made ; for otherwise the 
 solemnity of the entry will not be equivalent to the solemnity of livery; 
 but a revocation is in the nature of a limitation, and there is no solemnity 
 necessary to the defeating of the estate : and therefore it may be done by 
 parts ; consequently, if a fine be levied of part, that is a revocation only of 
 that part. 
 
 1 Inst. 215 a, 237 a; Gilb. Law of Uses, 145. 
 
 [He may revoke too conditionally. Thus, where A, seised in fee, made 
 a settlement of the estates in question, with power of revocation, and 
 seven years afterwards mortgaged the same in fee to one of the remainder- 
 men in the settlement, and the condition of the redemption was, that, if 
 the mortgagor or his heirs paid the money at the day, he should have the 
 lands in his former estate ; the question was, Whether this mortgage was a 
 total revocation, or only pro tanto'l The Lord Keeper declared, that it 
 was a revocation pro tanto only, the mortgagor being to have the lands on 
 payment, as in his former estate ; and it was decreed accordingly. 
 
 Thome v. Thome, 1 Vera. 141, 182 ; Perkins v. Walker, Ibid. 97. 
 
 But, Sir Joseph Jekyll, in giving his opinion in the case of Fitzgerald 
 and Lord Fauconberge, said, that he knew of no case but that, of a mort- 
 o-ao-e, wherein equity controlled a power of revocation ; and the reason of 
 that case was, because the mortgagor in equity continued to be still owner 
 of the estate, it being considered there but as a pledge for the money. 
 And the decision in that case seems to go a great way in support of the 
 opinion. 
 
 Powell on Pow. 265. 
 
 There, F, being unmarried, and having no child, and being seised of 
 estates of large annual value, did by lease and release, dated the 2d and 
 3d of July, 1712, as well for settling the said premises in his name and 
 blood, to the several uses, trusts, and purposes, and in such manner as 
 thereinafter limited, "with liberty nevertheless, to and for him the said F, 
 freely and clearly at his will and pleasure, to dispose of, charge, or alienate 
 the said premises, or any part thereof, for any estate or estates whatsoever, 
 as he should think fit ; and to revoke, recall, and make void all and every 
 the use and uses, trusts, limitations, and appointments thereby raised, 
 limited, and appointed, mentioned, and declared concerning the same, as 
 also in consideration of 5s., convey to trustees and their heirs all the es- 
 tates, to the use of himself for life, with remainders over." There was 
 also a term created, among other things, by sale, mortgage, or demise thereof, 
 for the term, or any part thereof, to raise all such sums as F should owe 
 at his decease, and also all such sums as he, by his last will, or any other 
 deed or writing executed under his hand and seal, in the presence of two 
 or more witnesses, should give and appoint to be paid, or charge the pre- 
 mises with, to any person or persons whatsoever : but, if the person next 
 in remainder expectant on the term should pay all the said debts, annuities, 
 and moneys so to be devised or appointed, then the term was to cease. 
 Then followed these provisoes: first, "A proviso or power for the said b , 
 from time to time, by any deed or writing under his hand and seal, to be 
 signed and duly sealed and delivered in the presence of two or more wit- 
 nesses, to demise, lease, limit, or appoint the said premises, or any o,
 
 164 USES AND TRUSTS. 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 them, to any person or persons whatsoever for any term or terms whatso- 
 ever, for so much yearly rent as the said F should think fit, and with such 
 other conditions and agreements as the said F should please." Secondly, 
 "A proviso, that if any female, who, according to the limitations, ought 
 to inherit the premises, should marry any person without the consent of 
 the trustees, or should marry any person that should be a protestant, and 
 not of the communion of the church of Rome ; that then, and immedi- 
 ately after such marriage, all the estates before created and appointed for 
 the benefit of such person so marrying should cease and be void." 
 Thirdly, a proviso, " That it should and might be lawful to and for the 
 said F, at any time or times during his natural life, at his will and plea- 
 sure, to grant, sell, or demise, the thereby granted premises, or any part 
 thereof; or by any deed or writing under his hand and seal, or by his last 
 will and testament in writing, signed, sealed, delivered, and published, in 
 the presence of three or more credible witnesses, to revoke, repeal, and 
 make void, all, every, or any of the use and uses, estate and estates, trusts, 
 and limitations before raised, created, limited or appointed ; and to de- 
 clare and limit the same, or such other new uses as should seem most 
 meet and convenient to the said F ; and then and from thenceforth the 
 estates and uses before limited and appointed, and so revoked and re- 
 pealed, to cease and determine and be utterly void, as if the same had 
 never been made, limited, and appointed; and that the said F should and 
 might dispose of the said premises, and every part and parcel thereof, to 
 such other person and persons, use and uses, as he should think fit, any 
 thing before mentioned to the contrary in anywise notwithstanding." 
 
 Fit'zoeraldetal. v. Lord Fauconberge etal., 3 Bro.' Pari. Ca. 513 ; S. C, Fitzgib. 207. 
 
 By other indentures of lease and release, dated the 25th and 26th of 
 September, 1715, made between F of the one part, and T and W of the 
 other, reciting, that F stood indebted to several persons named in a sche- 
 dule thereunto annexed in the several sums therein mentioned ; he, as well 
 for securing the said debts, and more speedy payment thereof, and in con- 
 sideration of bs., as also for other good causes, conveyed to T and Wand 
 their heirs, the premises, upon trust that they or the survivor of them, &c, 
 should, out of the rents and profits of the premises, or by mortgage, §*c, 
 raise so much money as should be sufficient to pay all the debts mentioned in 
 the said schedule, with interest, over and above the several anntiities, rents, 
 and rent charges in the said schedule mentioned, wherewith the said premises 
 stood charged, and pay the same in full discharge of the said debts and 
 interest ; and, after payment thereof and their own charges being satisfied, 
 that " they should pay the overplus thereof, (if any,) and reconvey such part 
 of the premises as should remain unsold, to the said F, or to such person and 
 persons, and to such use and uses, estate and estates, as the said F should 
 by any deed or writing under his hand and seal, attested by two or more 
 credible witnesses, limit, direct, and appoint the same." This indenture 
 was attested only by two witnesses, and remained in the custody of W, the 
 trustee, till his death. 
 
 Then, by indenture dated the 26th of September, 1715, executed by all 
 the said three parties, reciting the lease and release of the 25th and 26th 
 of September, 1715, it was declared, that it should and might be lawful for 
 the said F, at any time or times thereafter during his life, at his will and 
 pleasure, by any deed or writing under his hand and seal, attested by two 
 or more witnesses, or by his last will in writing, attested by three or more
 
 USES AND TRUSTS. 1G5 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 witnesses, to revoke, repeal, and make void, all or any of the trusts and 
 estates in the said indenture of release of the 26th September, 1715, raised, 
 created, limited, and appointed of the said premises, and every part there- 
 of; and to declare, limit, and appoint the same to such other use and uses 
 as should seem most meet and convenient to hirn ; and that, from thence- 
 forth, the trusts and estates so revoked and repealed, should cease and be 
 void, as if the same had never been created, limited, or appointed ; and 
 that it should and might be lawful for the said F to dispose of the same 
 premises, or any part thereof, to such other person and persons, use and 
 uses, as he should think fit. 
 
 F died on the 24th of January, 1716, having made no appointment or 
 disposition of the estate after the execution of the deeds of 1715. 
 
 And, upon these several instruments, a question arose between the heir 
 at law of F and the claimants under the settlement of 1712, whether the 
 deed of September, 1715, for securing the creditors of F was not a revoca- 
 tion of the settlement of 1712, pursuant to some or one of the provisoes 
 therein contained. It was contended on the part of the claimants under 
 the settlement of 1712, that if these deeds of 1715 were deemed to be a 
 revocation of that settlement, (which upon other grounds it was argued 
 they could not be,) yet they could not be a total revocation ; because it was 
 admitted, that those deeds operated only as an implied revocation, by 
 reason of their inconsistency with the settlement of 1712 ; and, therefore, 
 were no further a revocation than such inconsistency extended : then, the 
 release having conveyed the premises in trust to raise money for paying the 
 debts mentioned in a schedule thereunto annexed, and afterwards to reconvey 
 to F, or such persons or uses as he should appoint, without saying to F or 
 his heirs, or limiting the estate in default of appointment, which was the 
 case that had happened, it was apprehended that the release of 1715 was 
 no further inconsistent with the settlement of 1712, than as to the particular 
 uses specified in that deed, and, consequently, as to the rest of the estate, 
 did not revoke the settlement of 1712 ; and that, under those circumstances, 
 a court of equity ought to restrain it from operating any further than to 
 satisfy the particular purpose. It was argued on the other side as to this 
 point, that F, having, by the deeds of 1715, conveyed the fee and inheritance 
 of the whole estate to T and W upon trusts and for uses utterly inconsist- 
 ent with those of the settlement of 1712, this latter conveyance must, con- 
 sequently, be a complete revocation of the former ; the legal estate being 
 vested in new trustees, who could be seised thereof upon no other trusts 
 than the new ones, and F having made no subsequent appointment of such 
 part as should remain unsold, after the particular purposes were answered, 
 a trust must therefore necessarily result for the benefit of him and his heirs, 
 according to the established rules both of law and equity ; consequently, 
 there could be no foundation for a court of equity to control or abridge the 
 operation of the deeds of 1715, by confirming them to be only a revoca- 
 tion pro tanto, merely to disinherit one of the coheirs at law ; and of this 
 opinion was Lord Chancellor King, assisted by Sir Joseph Jekyll, and Lord 
 Chief Baron Reynolds: and it was decreed accordingly. And on appeal 
 to the House of Lords, the judges having delivered their opinions seriatim 
 upon the question, Whether the deed of 1715 were a revocation of the deed 
 of 1712 ; and if so, whether the said deed of 1715 were a total revocation, 
 or a revocation pro tanto ? it was ordered, that the appeal should be dis- 
 missed, and the decree affirmed.]
 
 1GG USES AND TRUSTS. 
 
 (G) The several Kinds of Uses executed by the Statute, &c. 
 
 4thly, The power of revocation follows the estate. 
 
 Thus, in a covenant to stand seised to the use of A for life, remainder to 
 B and his heirs, with power of revocation upon payment of money by A or 
 his assigns, to B or his assigns; if B dies, A may tender to the heir, who 
 is in law the assignee to this purpose. 
 
 Gilb. Law of Uses, 145, cites Ley, 55, 57, Allen's case. 
 
 5thly, A power of revocation is in some cases ||the subject of || a forfeiture. 
 
 If there be tenant for life, with power of revocation over the estates in 
 remainder, and the revocation depends upon circumstances inseparably 
 annexed to the person of tenant for life, this cannot be forfeited ; but, if it 
 depend upon circumstances which may be performed by another, the king 
 shall take advantage of it, and revoke the uses : as, if the revocation is to 
 be by writing under the parties' own hands and seals, this cannot be for- 
 feited to the king ; but, if the revocation is to be upon tender of a ring by 
 himself, or any other for him during his life, this power is forfeitable. 
 
 1 Vent. 128, 132; Smith v. Wheeler, Gilb. Law of Uses, 146. 
 
 6ihly, If a man makes a feoffment with power of revocation, when he hath 
 executed that power he cannot limit new uses upon the same feoffment; but 
 otherwise it is, if he had power to revoke and limit new ones on the same 
 feoffment, for then he might revoke and limit new uses, with a second power 
 of revocation, &c, and so in infinitum,. (a) 
 
 1 Vent. 193, Jones v. The Countess of Manchester; 2 Roll. Abr. 262; ||S. C. 3 Keb. 
 7, nomine Fowler v. .Tones. («') A deed executed under a power is not revocable, un- 
 less a power of revocation is reserved ; and every power reserved in a deed executing a 
 power will be strictly construed; and therefore a mere power of revocation in such a 
 deed will not authorize a limitation of new uses. Ward v. Lenthal, 1 Sid. 343. But 
 it seems that though, in an original settlement, a power of revocation only be reserved, 
 yet a power to limit new uses is implied. Fowler v. North, 3 Keb. 7. Anon., 1 Chan. 
 Ca. 242 ; Colston v. Gardner, 2 Chan. Ca. 46, unless a contrary intention can be col- 
 lected from the whole settlement, Anon., Stra. 584 ; or theestate is expressly limited 
 to other uses. Atwaters v. Birt, Cro. Eliz. 856. Sir E. Sugden's note, Gilb. on 
 Uses, 319.|| 
 
 Where a conveyance to uses inures by way of transmutation of posses- 
 sion, the uses may be revoked without deed. 
 
 2 Salk. 677, Jones v. Morley. 
 
 [Where a power of appointment is given, a power of revocation is like- 
 wise given, although no express power of revocation be reserved in the 
 deed creating the power of appointment. And where there is a power of 
 revocation, the law also gives a power to limit new uses, (b) though no 
 power of new limitation be expressed in the deed ; for he who has power 
 to revoke has also power to limit. 
 
 Adams v. Adams, Cowp. 651. (b) Colston v. Gardner, 2 Ch. Cas. 46; Lady Hast- 
 ings's case, 3 Keb. 7 ;] ||6ilb. on Uses, by Sugden, 319, 429. || 
 
 I By a marriage settlement made by tenant in tail, he settles the premises 
 to himself for life and to the children of the marriage in strict settlement; 
 with a proviso that it shall be lawful for him by deed or instrument in writ- 
 ing attested by three witnesses, and to be enrolled, with the consent in 
 writing of certain trustees, to revoke the old and to declare new uses. A 
 deed of revocation executed by him and all the trustees in person except 
 one, whose consent was given by means of a general power of attorney be- 
 fore made by him to the settler to consent to any such deed he might think 
 proper to make, by virtue of which the settler executed the deed for and 
 in the name of that trustee, is bad, though properly attested and enrolled: 
 for the consent so given is not sufficient, because it would operate as a total
 
 USES AND TRUSTS. 1G7 
 
 (H) Of the Cases out of the Statute. 
 
 destruction of the check intended by requiring the personal approbation of 
 the trustees. And another deed of revocation properly executed and as- 
 sented to, but not enrolled till after the settler's death, will also be void : 
 for every thing required to be done in the execution of such a power must 
 be strictly complied with, and must be completed in the lifetime of the 
 person by whom it is to be executed. Neither can the defect of one deed 
 be supplied by the other. 
 
 3 East, 410, Hawkins v. Kemp. 
 
 A power of appointment under a marriage settlement unto and among 
 all or any the child or children of the marriage, for such estates as the hus- 
 band and wife or the survivor of them, should from time to time, either 
 with or without power of revocation, direct, limit, or appoint, may be exe- 
 cuted by the survivor, after a joint appointment reserving to them and the 
 survivor a power of revocation and appointment. 
 
 1 East, 442, Brudenell v. Elwes.} 
 
 3. How they may be suspended, revived, or extinguished. 
 
 It has been shown that where a feoffment, &c, is made to feoffees to 
 contingent uses, and the feoffees make a feoffment over before the contin- 
 gent uses happen to be in esse, that thereby the uses are destroyed forever. 
 3 H&rfvide Gilbert by Sugden, 288.|| 
 
 But if, in case of a feoffment to contingent uses, the feoffees are disseised 
 before the contingent uses vest, hereby these contingent uses are only sus- 
 pended; and by the re-entry (a) of the feoffees the ancient uses will be revived. 
 
 ||(a) The doctrine contended for by Sir E. Sugden and Mr. Fearne, that contingent 
 uses are not executed by means of a scintilla juris in the feoffees, does away with the 
 necessity of an actual entry in such case, and makes the right sufficient to support the 
 contingent uses. See Fearne's Cont. Rem. 294, 295 ; Gilbert by Sugden, note, p. 296 ; 
 Sugden on Pow. c. 1, § 3.|| 
 
 And therefore, if the feoffees release to the disseisor, and thereby bar 
 themselves of their entry, the uses are extinguished, and shall not be re- 
 vived ; and the party grieved has no remedy but in Chancery against the 
 feoffees for breach of trust. 
 
 (H) Of the Cases out of the Statute. 
 
 It has been observed, that there are three ways of creating a use or trust, 
 which the statute cannot execute ; as, where uses are limited upon uses ; 
 or where a term is raised and limited in trust ; or, lastly, where lands are 
 limited to trustees to pay over the rents and profits. 
 
 See ante, letter (D.) ||The leading case deciding that a use cannot be limited on a 
 use in Tyrrell's Ca., Dyer, 155 a. See Sir E. Sugden's remarks on this narrow con- 
 struction of the statute, Gilb. on Uses, 348, and Blackstone's Com. 335. |j 
 
 1. Jfnere uses are limited upon Uses. 
 
 Thus, if a man bargains and sells his lands to A to the use of B, the sta- 
 tute cannot execute the use in B ; for by the bargain and sale, which implies 
 a consideration, there is a use in A ; and before the statute it was impossi- 
 ble that two distinct persons should have the use of the same land. 
 
 Gilb. Law of Uses, 162. & The statute of uses does not execute a use upon a use. 
 M'Cartee v. Orphan Asylum Society, 9 Cowen, 437.g/ 
 
 /3The statute does not execute a use upon a use, nor a chattel interest, 
 nor where the trustee not only holds the estate, but has some act to do, as 
 to receive the rents and profits, or to convey, &c. 
 
 Wilson v. Cheshire, 1 M'Cord's Ch. 238.gr
 
 168 USES AND TRUSTS. 
 
 (H) Of the Cases out of the Statute. {Attendant Terms.) 
 
 And by the statute, the first use cannot be executed in A, since there 
 could not be two plenary possessors, and the second use being contrary to 
 the disposition to A, must be null and void. But the Chancery that looks 
 upon the interest of the parties in conveyances, construes A only as an in- 
 strument to take the legal estate ; and that in conscience he is bound to 
 answer the trust to B which he hath taken. Qucere tamen, if the consider- 
 ation moves from A ? 
 
 Chan. Ca. 114, 115, Ash v. Gallen; Gilb. Law of Uses, 162. 
 
 If a man enfeoff another to the use of J S and his heirs, and upon this 
 consideration, that if J N shall pay so much money, then the said J S and 
 his heirs shall be seised to the use of J N and his heirs, J N pays the mo- 
 ney, the use is not executed to him by the statute ; but the Court of Chan- 
 cery will undoubtedly support such trust. 
 
 Gilb. Law of Uses, 162; Poph. 81, Dillon v. Fraine. 
 
 A devise supposes a consideration ; and therefore it cannot be averred 
 to any other use than to the use of the devisee ; for that were an averment 
 contrary to the design of the will appearing in the words. 
 
 4 Rep. 4, Vernon's case. |]See Gilbert, by Sugden, 333, n.|| 
 
 But if a use be expressed, it shall be to the use of cestui que use, and 
 will execute ; for the will has only an implied use where no other is limited, 
 and expressum facit cessure taciturn. 
 
 2 Vent. 312, Burchett v. Durdant. [jThe point in the text (though not a point ad- 
 judged in Burchett v. Durdant) is correctly stated, for though it has been questioned, 
 it is now quite clear that the statute does extend to devises to uses. See Hartop's ca., 
 1 Leo. 253; Andrews's ca.. Mo. 107; Popham v. Bampfield, 1 Vern. 79; Brourrhton 
 v. Langley, 2 Ld. Raym. 873 ; Hopkins v. Hopkins, 1 Atk. 589 ; Bagshaw v. Spencer, 
 1 Ves. 143; Perry v. Phelps, 1 Ves. jun. 255; Thompson v. Lawley, 2 Cos. & P. 
 311; Butl. Co. Lit. 271 b, 3, § 5; Pow. on Dev. 272; 1 Sand, on Uses, 195; Sug- 
 den on Pow. 118 ; Gilb. on Uses by Sugden, 356. In one of the main points actually 
 adjudged in Burchett v. Durdant, that case has been overruled by subsequent cases, viz., 
 in deciding that a devise to A in trust to permit B to receive the rents and profits, car- 
 ried the legal estate to A, and only a trust to B, whereas it is now settled that in such 
 case the trust is executed in B. See Shapland v. Smith, 1 Bro. C. C. 74; Silvester 
 v. Wilson, 2 Term R. 414 ; Harton v. Harton, 7 Term R. 652 ; Kenrick v. Beauclerk, 
 3 Bos. & Pul. 175; WagstafT v. Smith, 9 Ves. jun. 524; Right v. Smith, 12 East, 
 455. Where the devise is unto and to the use of the trustees, it carries the legal estate 
 to them. 15 Ves. 371 ; Gilb. on Uses, by Sugden, 47, n. See post, p. 174.|| 
 
 But if lands be devised to A during the life of B, in trust for B, the re- 
 mainder to the heirs of B now living, this is a Chancery trust in B, and 
 not executed by the statute ; for this was the design of limiting an estate to 
 A, that a tail might not be executed in B, whereby he might have a power 
 to dock it. 
 
 2 Vent. 312, Burchett v. Durdant ; Gilb. Law of Uses, 162. 
 
 2. Where Terms are raised and limited in Trust ; and these Limitations are twofold, 
 
 1. Of such as wait on the Inheritance. 
 
 2. Of Terms in Gross. 
 
 1. Of Terms which wait on the Inheritance. 
 
 The original of these was in the time of Queen Elizabeth, when mort- 
 gaging by way of raising terms was invented ; and then if a marriage settle- 
 ment was made, or a purchase upon a valuable consideration, and the 
 mortgage was discharged by the purchase-money, or the marriage portion,
 
 USES AND TRUSTS. 169 
 
 (H) Of the Cases out of the Statute. {Attendant Terms.) 
 
 it was thought fit (a) to take an assignment of the term in trust to the same 
 persons to whom the inheritance was limited, to protect it against latter 
 mortgages. 
 
 Gilb. Law of Uses, 163. [(a) The reason of this was, that the terms do not deter* 
 mine, unless there be a special proviso, by the performance of the trusts for which they 
 were created. In these cases the legal interest, during the continuance of the term, is 
 in the trustee, but the owner of the estate is entitled to the equitable and beneficial in- 
 terest. As courts of common law had determined, that the possession of the lessee for 
 years was the possession of the owner of the freehold, courts of equity determined, that 
 where the tenant for years was buta trustee for the owner of the inheritance, he should 
 not oust his cestui que trust, or obstruct him in any act of ownership, or in making any 
 assurances of his estate. In these respects, therefore, the term is consolidated with the 
 inheritance; it follows the descent of the heir and all the alienations made of the inhe- 
 ritance, or of any particular estate or interest carved out of it, by deed, will, or act in 
 law. Whitchurch v. Whitchurch, 2 P. Wms.236; Gilb. R.168; 9 Mod. 124; Charl- 
 ton v. Low, 3 P. Wms. 330; Villiers v. Villiers, 2 Atk. 72 ; Willoughby v. Wil- 
 loughby, Ambl. 282 ; but more fully reported 1 Term R. 763 ; Goodright v. Sales, 
 2 Wils. 329; Scott v. Fenhoulet, 1 Bro. Ch. R. 69; {7 Ves. J. 567. Maundrell v. 
 Maundrell; 10 Ves. J. 246, S. C. ; 9 Ves. J. 509, Capel v. Girdler.} But, though the 
 trust or benefit of the term is annexed to the inheritance, the legal interest of the term 
 remains distinct and separate from it at law; and the whole benefit and advantage of 
 the term arises from this separation, by affording the means of protecting honafide pur- 
 chasers of real estates, and also of enabling courts of equity to keep real estates in the 
 right channel ; courts of equity considering such terms as creatures of equity. See 
 Mr. Butler's note, Co. Lit. 293, and Willoughby v. Willoughby, ubi supra ; and Nourse 
 v. Yarworth, Finch's R. 160. And though it seems to be now settled at law, that a 
 plaintiff in ejectment ought not to be nonsuited by a term standing out in his own trus- 
 tee, or a satisfied term set up by a mortgagor against a mortgagee, yet to effect this the 
 jury must presume in either of these cases the term to be surrendered ; for without a 
 surrender, the estate of the trustee must prevail at law. Goodtitle v. Knott, Cowp. 46 ; 
 Doe v. Pott, Dougl. 721 ; Lade v. Holford, Bull. N. P. 110; Doc v. Pegge, 1 Term 
 R. 758 ; Doe v. Staple, 2 Term R. 698; Doe v. Sybourn, 7 Term R. 3 ; Goodtitle v. 
 Jones, Ibid. 47; {8 Term, 2, Doe v. Wharton; Ibid. 122, Roe v. Reade; 12 Ves. J. 239, 
 251, Hillary v. Waller; 5 East, 138, Doe v. Wroot ; 6 Ves. J. 184, Evans v. Bicknell ; 
 9 Ves. J. 31, Walwyn v. Lee; 10 Ves. J. 262, Maundrell v. Maundrell ; 2 Johns. Rep. 
 81, Jackson v. Chase; Ibid. 221, Jackson v. Pierce; 3 Johns. Rep. 422, Jackson v. 
 Deyo. Vide 1 Hen. & Mun. 228 ; 1 Binn. 133.} At law every term standing out is a 
 term in gross. The difference in equity is produced by affecting the person holding 
 the term with a trust to attend the inheritance, which may be either by express decla- 
 ration, or by implication of law. If it be by express declaration, it is immaterial 
 whether the term, if in the same hand with the inheritance, would or would not merge, 
 or whether it be subject to some ulterior limitation, to which the inheritance is not sub- 
 ject; for the express declaration is sufficient to make it attendant upon the inheritance. 
 If it is to be made attendant upon the inheritance by implication of law, then it is neces- 
 sary that it should not be subject to any other limitation, and that the owner of the in- 
 heritance should be entitled to the whole interest in the trust of the term ; so that ac- 
 cording to the rule laid down in Best v. Stamford, Pr. Ch. 253; 2 Freem. 288, if the 
 term and inheritance had been in the same hand, the term would have merged. The 
 intent to purchase the whole interest will not, it seems, be sufficient to make the term 
 attendant on the inheritance by implication of law. Scott v. Fenhoulet, 1 Bro. Ch. 
 R. 69. But any limitation, though void in law, which shows an intention to sever the 
 term from the inheritance, will be sufficient for that purpose. Hayter v. Rod, 1 P. 
 Wms. 359. And therefore a term, though limited in trust for A and his heirs, will de- 
 volve on the personal representative of A. Hunt v. Baker, 2 Freem. 62 ; Attorney- 
 General v. Sandys, Ibid. 131. And though a term raised for a particular purpose, will, 
 when such purpose is answered, vest in the heir, yet he must take it as a term, and it 
 will go in a course of administration, and not in a course of descent. Levit v. Need- 
 ham, 2 Vern. 138.] 
 
 And hence it is, that if the inheritance was limited in tail, with remain- 
 der over, the trust of the term might be limited in the same manner ; and, 
 therefore, if the tail was docked by fine and recovery, the trust of the tail 
 and remainders ceased, and attended the inheritance in fee ; for the trusts 
 
 Vol. X.— 22 P
 
 170 USES AND TRUSTS. 
 
 (H) Of the Cases out of the Statute. {Attendant Terms.) 
 
 could not protect or attend these estates that were not in being ; and the 
 trustee, who is but an instrument to protect others, cannot have it to his 
 own use. 
 . Cas. of Perp. 3, 4, 5, 11. 
 
 ||The earlier cases, as to presuming surrenders of outstanding terms, are 
 referred to in the note, p. 169, supra. Where the trustee ought to convey 
 to the beneficial owner, it seems now clear that in general a court of law 
 will leave it to the jury to presume that he has conveyed, where such a 
 presumption may reasonably be made, in order to prevent a just title from 
 being defeated by a mere matter of form. 
 
 Doe v. Sybourn, 7 Term R. 2; and see Bartlett v. Dowries, 3 Barn. & C.616.JJ 
 
 But in such cases the court must first see that there is nothing but the 
 form of a conveyance wanting ; and in no case can such a presumption be 
 made where it would have been contrary to the duty of the trustee to have 
 conveyed to the party. 
 
 Keane v. Deardon, 8 East, 267. 
 
 Where Lord Oxford had executed in 1727 a mortgage for 1000 years, 
 and in 1751 he executed a marriage settlement, reciting that 27,000/., part 
 of the lady's fortune, was to be applied to the discharge of the mortgage ; 
 and since that time no mention was made of the term, till in a mortgage- 
 deed of 1802 it was assigned to secure the mortgage-money : on an eject- 
 ment being brought by a party claiming under the assignees of the term, 
 it was objected for the defendant that it must be presumed to be surren- 
 dered, — first, since the recital in the deed of 1751 showed that an adequate 
 sum was to be applied to discharge the mortgage, and there was no evi- 
 dence of the term having been recognised till 1802 ; and secondly, that 
 the deeds could not have come into the possession of Lord Oxford, unless 
 the money had been paid off. The Court of King's Bench and the learned 
 baron who tried the cause held, that a surrender could not be presumed, 
 since there was no purpose of justice to be answered by presuming it ; nor 
 was it for the interest of the owner of the inheritance : it might have been 
 his intention to keep alive the term. 
 
 Doe dem. Graham v. Scott, 11 East, 478. 
 
 Where a term was assigned in 1735 to raise an annuity, and subject 
 thereto to attend the inheritance, and no act had been subsequently done 
 to recognise the term, except that on sale in 1801 of a small part of the 
 estate, for redeeming the land-tax, the owner had covenanted to produce 
 to the purchaser the deeds creating and assigning the term; the term 
 w r as presumed, in 1819, to be surrendered. It is to be observed, that this 
 was an ejectment brought by a party claiming as heir at law, against an- 
 other person claiming the same character; and the court distinguished this 
 from Doe v. Scott, since there the term had been dealt with as subsisting; 
 and it would have been prejudicial to the owner of the inheritance, if a 
 surrender had been presumed : here it was considered for the interest of 
 the owner of the inheritance, (a) that the term should be treated as surren- 
 dered. 
 
 Doe v. Wrighte, 2 Barn. & Aid. 719. (a) Independent of the event of the particular 
 suit in which the question arises, it seems that in all cases it is for the benefit of the 
 owner of the inheritance that the term should be outstanding as a protection against 
 encumbrances; while, on the other hand, there is in all cases the inconvenience of 
 being obliged to find out the termor or his representative, and incur the expense of an 
 assignment, which inconvenience of course increases as the term grows older.
 
 USES AND TRUSTS. 171 
 
 (H) Of the Cases out of the Statute. (Attendant Terms.) 
 
 In a recent case, the doctrine of presuming surrender appears to have 
 been carried to a greater extent than in former cases. In 1762, a mort- 
 gage-term of 1000 years was created by Francis Hare Naylor, the owner 
 of the fee ; and several other charges were made previously to and in the 
 year 1770. In 1771, Naylor devised the estate to trustees to sell. In 
 1779 they sold and conveyed to J. Newman in fee ; and the 1000 years' 
 term was, in consideration of the payment of the mortgage-money, as- 
 signed by a separate deed in 1779 to Denman, his executors, administra- 
 tors, and assigns, in trust for the said John Newman, his heirs and assigns, 
 and to be assigned, conveyed, and disposed of as he or they should direct 
 and appoint, and in the mean time, and until such appointment, to attend 
 the inheritance. In October, 1790, John Newman died intestate, leaving 
 Richard his brother and heir. In November, 1797, Richard died, leaving 
 Richard his son his heir, then a minor. In 1808, the last-named Richard, 
 gave a warrant of attorney to the lessor of the plaintiff", to enter up judg- 
 ment, which was immediately done. In 1810, Mr. Denman, the trustee 
 of the term, died intestate, leaving J D his son and next of kin. In 1814, 
 Richard Newman, on his marriage, settled the estate to the use of himself 
 for life, with remainder in strict settlement. In 1816 he sold and con- 
 veyed his life-estate to his mother, and she devised the estate to certain 
 persons under whom the defendant was tenant. In 1818, the lessor of 
 plaintiff revived the judgment by scire facias , and issued an elegit ; and, 
 on the 13th of March, 1818, an inquisition was taken thereon, and then 
 the ejectment was brought. In 1819, (after the commencement of the 
 ejectment,) John Denman, as son and next of kin of Mr. D., took out ad- 
 ministration to him ; and by direction of the devisees of the purchaser, in 
 the usual way assigned the term to John Newman, a trustee for them, to 
 attend the inheritance. The learned judge left it to the jury to presume a 
 surrender of the term, which they did, and found a verdict for the lessor 
 of the plaintiff. And the Court of King's Bench afterwards confirmed the 
 direction, the Chief Justice, in his judgment, relying principally on the 
 length of time elapsed, during which the term was never dealt with or re- 
 cognised ; especially on its not having been in any way noticed on the 
 marriage settlement made in 1814, and the conveyance by Richard New- 
 man to his mother in 1816. The above decision powerfully attracted the 
 attention of the profession. 
 
 Doe dem. Putland v. Hilder, 2 Barn. & A. 782. Lord Eldon is stated to have dis- 
 approved of this decision on several occasions, Sugden Ven. & P. 410, 443, 445 ; and 
 see Sir E. Sugden's observations on it, Ibid. ; and see the observations of Lord Eldon 
 on this doctrine, 6 Ves. 184; and of Sir Thomas Plumer, 2 Jac. & W. 158; and 
 1 Cm. Dig. 486. 
 
 An ejectment was afterwards brought by the Newmans and Denman 
 against Putland, the lessor in the former case, to recover back the estate. 
 On the trial, the lessors of the plaintiff' proved a mortgage in fee to one 
 Markwick, in August, 1814, by R. Newman the son, who afterwards made 
 the marriage settlement. By this mortgage, which was not produced on 
 the former ejectment, all deeds were granted ; and it contained a general 
 declaration of trust of all terms for the mortgagee ; and it appeared that 
 the assignment of the term in 1779 was delivered over to Markwick, and 
 was contained in a schedule of title-deeds, made at the time of the mort- 
 gage, and signed by Markwick; and also, that by a deed in 1819, New- 
 man the trustee of the 1000 years' term, declared that he would stand
 
 172 USES AND TRUSTS. 
 
 (H) Of the Cases out of the Statute. {Attendant Terms.) 
 
 possessed of it in trust for Markwick, to secure the mortgage money. 
 The learned judge said the facts were very different from those proved on 
 the former trial. Here the deeds were handed over to the mortgagee be- 
 fore the settlement and conveyance, which accounted for the term not 
 being mentioned in those securities : and the circumstance of the deed 
 having been scheduled and handed over to Markwick, showed that the 
 term had not been surrendered ; and under his direction the jury found 
 that the term was subsisting and reserved any question of law. On a mo- 
 tion for a new trial, the Chief Baron said he did not think the doctrine of 
 presumption a correct doctrine. It was a very serious point ; and of late 
 the doctrine had been carried to a very frightful extent. The court gave 
 (he defendant leave to state a case for argument on another question ; but 
 the point as to the surrender of the term was put at rest ; and the suit was 
 afterwards compromised to the advantage of the Newmans. 
 
 Doe v. Putland, Sugden Ven. & P. 421, (6th edit.) 
 
 Where a term was created in 1711 for raising portions, and there was 
 no evidence of the payment of the portions, and a settlement of the estate 
 took place in 1744, containing a covenant that it was free from encum- 
 brances, and it did not appear that an assignment had ever been made, 
 Sir John Leach, V. C, held, that a surrender might be presumed ; and 
 that in matters of presumption the court would bind a purchaser, where it 
 could give a clear direction to a jury in favour of the fact. 
 
 Emery v. Grocock, G Madd. 54; and see Ex parte Holman, Sugden Ven. & P. 447, 
 (8th edit.) 
 
 It has been decided that, to protect a purchaser against dower, it is ne- 
 cessary to take an actual assignment of the term to a trustee for him ; but 
 this appears to be rather an excepted case. 
 
 Maundrell v. Maundrell, 10 Ves. 259.|| 
 
 The entailing of a term is not within the statute de donis condit., for that 
 statute extends only to estates of inheritance, and not to chattels, which the 
 rules of the common law have carried into another channel. 
 
 Cas. of Perp. 3, 11. 
 
 And therefore in this case the trustee and tenant in tail may dispose of 
 it without a fine or recovery ; and this, upon valuable consideration, will 
 bind the issue; because, since the Chancery are not bound by the statute, 
 they are at liberty to direct the rules of equity, and it is not equity to set 
 up the trust to the issue when the ancestor has received for it a valuable 
 consideration. 
 
 Cas. of Perp. 3: Gilb. Law of Uses, 164. 
 
 It will likewise be assets to pay intestates' debts, for all chattels of 
 intestates are assets at common law ; and it is not equity to direct it other- 
 wise. 
 
 Cas. of Perp. 3; Gilb. 164. [A term to attend the inheritance is real assets in the 
 hands of the heir; for the statute of frauds having made a trust in fee assets in the 
 hands of the heir, the term which follows the inheritance, and which is subject to all 
 charges which affect the inheritance, must be so also. Attorney-General v. Sir G. 
 Sandys, Ilardr. 489; Willoughby v. Willoughby, 1 Term R. 766.] 
 
 But, if the inheritance of a use be entailed, the alienation of tenant in 
 tail will not devest it out of the issue ; for it is within the intent of the 
 statute de donis, which says, that if an estate be thus limited, the donee 
 shall not alien to prejudice his issue ; and the Chancery interpreting men's 
 contracts, is bound by the intent of an act of parliament. 
 
 Gilb. Law of Uses, 165; ||Co. Lit. 20.||
 
 USES AND TRUSTS. 173 
 
 (H) Of the Cases out of the Statute. 
 
 If a term be given to A in trust for B in tail, with remainder over, 
 attendant on an inheritance, and A surrender to 13, this shall not destroy 
 the remainder ; for though the surrender destroys the estate at law, yet the 
 trust remains in equity, if the party had notice. 
 
 Gilb. Law of Uses, 1G5. 
 
 But in case A or B had aliened upon valuable consideration, without 
 notice, this would have destroyed the equity of the issue and the remain- 
 der-man. 
 
 Gilb. Law of Uses, 1G5. 
 
 2. Of Terms in Gross. 
 
 Concerning terms in gross much hath been said already ; it only remains 
 to add, that 
 
 If a lease be limited in trust, and the trustee renew the lease, it shall be 
 to the benefit of cestui que trust ; for if the trustee lake on him the trust, he 
 takes upon him to act for the benefit of the party to whom the advantage 
 of the term was originally designed. 
 
 1 Ch. Cas. 190, Holt v. Holt; ||Keech v. Sandford, Sel. Chan. Ca. CI; Abney v. 
 Miller, 2 Atk. 593; Edwards v. Lewis, 3 Atk. 538; James v. Dean, 11 Ves. 383; 
 15 Ves. 236. So, if a mortgagee renew a lease, it inures to the benefit of the mort- 
 gagor, 2 Freem. 13. If partners hold a lease, and one obtain a renewal, both shall have 
 the' benefit of it, 10 Ves. 29; and the rule is the same as to joint lessees. Palmer v. 
 Young, 1 Vern. 276; and see Gilb. on Uses by Sugden, 360, nota.\\ 
 
 3. Where Lands are limited to Trustees to pay over the Rents and Pmfits. 
 
 | Where something is to be done by the trustees, which makes it neces- 
 sary for them to have the legal estate, such as payment of the rents and 
 profits to another's separate use, or of the debts of the testator, or to pay 
 rates and taxes and keep the premises in repair, or to make a conveyance, 
 or the like, the legal estate is vested in them, and the grantee or devisee 
 has only a trust estate. 
 
 2 Saun. 11, n. 17, by Serj. Williams ; 3 Bos. & Pul. 178; 7 Ves. J. 201.} 
 
 If lands are devised to trustees and their heirs, in trust for a feme covert, 
 and that the trustees shall from time to time pay and dispose of the rents 
 and profits to the said feme covert, or to such persons as she, whether sole 
 or covert, shall appoint, and that her husband shall have no benefit thereof; 
 and as to the inheritance, in trust to such persons as she by will, or other 
 writings under her hand, shall appoint ; and for want of such appointment, 
 to her and her heirs ; this shall be a trust, and not a use executed by the 
 statute. 
 
 1 Vern. 415, Nevil v. Saunders; /SM'Cartee v. Orphan Asylum Society, 9 Cowen, 
 437, acc.$ 
 
 But, where a man devised the rents and profits of certain lands to T B 
 the wife of W B during her natural life, to be paid by his executors, into 
 her own hands, without the intermeddling of her husband, and after her 
 decease he devised them to others ; it was held by Rokeby and Eyre, 
 Justices, that the lands themselves belonged to the wife, against Holt, 
 C. J., who held strongly, that the executors were only trustees for the 
 wife. 
 
 1 Salk. 228, South v. Alleine; Comb. 375, S. C; and 5 Mod. 63, by the name of 
 Bush v. Allen. Adjudged by two justices against the opinion of Holt, C. J. ; but the 
 reporters differ as to the opinion of the Chief Justice. {This case was overruled in 
 Harton v. Harton. 7 Term, 652.} 
 
 p2
 
 174 USES AND TRUSTS. 
 
 (H) Of the Cases out of the Statute. 
 
 Likewise where lands were devised to trustees and their heirs, in trust 
 to pay several legacies and annuities, and to pay the surplus of the rents 
 and profits to a married woman, during her life, for her separate use, or as 
 she should direct ; and after her death the trustees to stand seised to the 
 use of the heirs of her body, with remainders over ; the question was, 
 Whether this devise to pay the surplus of the rents and profits to the wife, 
 was such a use or trust as was executed by the 27 H. 8 ; for if it was, then 
 it was urged, that she, being tenant for life, the limitation after to the heirs 
 of her body being coupled with it, gave her an estate-tail, according to 
 Shelly's case, 1 Rep. ; but, if it did not, then the eldest son was to take 
 as a purchaser. It was held by the court, that she had only a trust for 
 life, and, consequently, the heirs of her body must take by purchase ; and 
 the rather in this case, because it was limited to the heirs of her body seve- 
 rally and successively, as they should be in seniority of age and priority 
 of birth, and the heirs of their respective bodies issuing. And a difference 
 was taken between this case and that of Broughton and Langley, 2 Salk., 
 for there it was to permit A to receive the rents and profits for life ; but 
 here it is a trust in the trustees to pay over the rents and profits to such 
 and such persons ; and therefore the estate must remain in them to answer 
 these trusts ; otherwise she must be the trustee, contrary to the express 
 words of the will. 
 
 1 Cas. Eq. Abr. 383; Jones v. The Lord Say and Seal, [3 Bro. P. C. 458, S. C] 
 
 But, if lands are devised to trustees and their heirs, on trust to permit 
 A to take the profits for his life, and after the trustees to stand seised to 
 the use of the heirs of the body of A, A has an estate-tail executed in 
 him ; for this being a plain trust at common law, what is so, must be ex- 
 ecuted by the statute, which mentions the word trust as well as use. 
 
 2 Salk. 079, Broughton v. Langley. And per Holt, C. J., the same point cont. in 
 the case of Burchett v. Durdant, 2 Vent. 312, is not law. 
 
 [A testator devised lands to trustees upon trust, that they, their heirs and 
 assigns, should yearly, by equal quarterly payments, by and out of the 
 rents and profits of the premises, after deducting rates, taxes, repairs, and 
 expenses, pay such clear sum as should then remain to his brother C S, 
 and his assigns, during his natural life, and afi er his decease to the use and 
 behoof of the heirs male of the body of the said C S lawfully to be begot- 
 ten, as they should be in priority of birth ; and in default of such issue, 
 remainder over. Eyre, B., and Master Holford, thought that the estate 
 for life was executed in C S ; but Master Hett differed. And upon a re- 
 hearing Lord Chancellor Thurlow expressed his opinion, that the trustees 
 being to pay the taxes and repairs, they must have an interest in the pre- 
 mises ; and therefore that the legal estate for the life of C S was in them ; 
 and that C S had only an equitable estate for life, and the subsequent estate 
 being executed could not unite ; and of course that a recovery suffered by 
 C S was void. 
 
 Shapland v. Smith, 1 Bro. Ch. R. 75. 
 
 Again, lands were devised to trustees and their heirs, upon trust to 
 stand seised thereof during the natural life of testator's son J S, to such 
 use and behoof as after mentioned, viz., that the trustees should yearly 
 and every year, during the natural life of the said J S, take and receive 
 the rents, issues, and yearly profits of the premises ; and the testator or- 
 dered, that such rents, issues, and yearly profits should be applied for the
 
 USES AND TRUSTS. 175 
 
 (H) Of the Cases out of the Statute. 
 
 subsistence and maintenance of the said J S during his natural life ; and 
 immediately from and after his decease he devised the same premises unto 
 the heirs of the said J S lawfully to be begotten, and for default of such 
 issue, then to his own right heirs. The court held, that the use was not 
 executed in the testator's son, but in the trustees during his life, from the 
 nature of the trust to receive and pay over the profits, and the application 
 directed for the subsistence and maintenance of the son, by which the tes- 
 tator seemed to invest the trustees with some degree of discretionary power 
 in that respect. And there being nothing in the nature of the trust to pre- 
 vent the limitation to the heir of his body from being a use executed, they 
 held the two limitations did not unite so as to give J S an estate-tail. 
 
 Silvester v. Wilson, 2 Term It 414.] |jSee Kenrick v. Beauclerk, 3 Bos. & Pul. 
 178; Tenny v. Moody, 3 Bingh. 3; Houston v. Hughes, 6 Barn. & C. 403.|j 
 
 ||So, where a devise was to trustees and their heirs, upon trust to permit 
 a married woman to receive the rents and profits during her life, for her 
 own sole and separate use, notwithstanding her coverture, and without 
 being in anywise subject to the debts or control of her then or after-taken 
 husband, and her receipt alone to be a sufficient discharge with remainder 
 over, it was held, that the legal estate was vested in the trustees; for it 
 being the intention of the testator to secure to the wife a separate allow- 
 ance, free from the control of her husband, it was essentially necessary 
 that the trustees should take the estate with the use executed in order to 
 effectuate that intention. 
 
 Harton v. Harton, 7 Term R. G52; and see Doe v. Simpson, 5 East, 1G2; Robinson 
 v. Grey, 9 East, 1. 
 
 In general the distinction is, that where the limitation to trustees and 
 their heirs is in trust to receive the rents and profits and pay them over to A 
 for life, this use to A is not executed by the statute, but the legal estate is 
 vested in the trustees, to enable them to perform the will ; but where the 
 limitation is to trustees and their heirs in trust, to permit and suffer A to 
 receive the rents and profits for his life, the use is executed in A, unless it 
 be necessary the use should be executed in the trustees, to enable them to 
 perform the trust, as in the case of Harton v. Harton, suprh. 
 
 2 Will. Saund. 11 d. 
 
 Where the devise was to the trustees and their heirs, in trust to pay 
 unto, or permit and suffer the testator's niece to have, receive, and take 
 the rents and profits for her life ; it was held, that the use was executed in 
 the niece, because the words to permit, §*c., came last : and in a will, the 
 last words shall prevail. 
 
 Doe dem. Leicester v. , 2 Taunt. 109. 
 
 Where something is to be done by the trustees which makes it neces- 
 sary for them to have the legal estate, such as payment of the rents and 
 profits to another's separate use, or of the debts of the testator, or to pay 
 rates and taxes, and keep the premises in repair, or the like, the legal 
 estate is vested in them, and the grantee or devisee has only a trust-estate. 
 
 Somerville v. Lethbridge, 6 Term R. 213; Keene v. Deardon, 8 East, 248 ; Wright 
 v. Smith, 12 East, 455; Gregory v. Henderson, 4 Taunt. 772; Murthwaite v. Bar- 
 nard, 2 Bro. &B. 623. 
 
 {A devised thus: " As to my real and personal estate, subject to my 
 debts and funeral expenses, I give and devise the same as follows, viz., 
 my real estates, and also my personal estate unto J M and O W and their
 
 176 USES AND TRUSTS. 
 
 (I) Of resulting Uses, or Uses by Implication. 
 
 heirs on the following trusts, viz., to the intent that they dispose of my 
 personal estate in discharge of my debts, funeral expenses, and such 
 legacies as I may direct ; and as to my real estates, subject to my debts 
 and such charges as I may make, I give and devise the same to R P for 
 life." It was held that under this devise the legal estate in the realty 
 vested in R P for his life, and J M and W took no estate therein. For 
 unless it appeared manifestly that the testator intended that the trustees 
 should be active in paying the debts, the legal estate would not vest in 
 them. And as to the real estate, he did not direct the payment to be made 
 by the trustees, but only devised it subject to his debts. 
 3 Bos. & Pul. 175, Kenrick v. Lord Beauclerk.} 
 
 (I) Of resulting Uses, or Uses by Implication. 
 
 Here it is to be premised that the mere alteration of possession does 
 not, in equity, give a right, but it shall be to the use of the donor, &c, 
 unless the use is expressed, or there is a valuable consideration. Thus, 
 
 i| Resulting uses are expressly excepted out of the Statute of Frauds, which requires 
 declarations of trusts to be in writing. 29 Car. 2, c. 3, § 7, 8. But for this exception 
 there could have been no resulting use upon a fine, feoffment, or recovery, though made 
 without consideration. But as a use only results by presumption of law, it may be 
 rebutted by even a parol declaration in favour of the person to whom the assurance is 
 made. See Gilb. by Sugden, 118.|| 
 
 If a man makes a feoffment without consideration, and expresses no 
 use, the feoffment is intended by the law to be to the use of the feoffor 
 and his heirs. 
 
 Bro. Feoff, al Uses, pi. 32. In this case the law makes not any consideration, be- 
 cause the feoffee shall not hold of the feoffor, &c, but of him of whom the feoffor 
 held : and this by the statute of quia emptores, &c. Dy. 14G b, pi. 71, S. P., Arg. in 
 
 case of Villers v. Beaumont. But before the statute of quia emptores terrarum, if 
 
 a man made a deed of feoffment without any consideration or cause, the feoffee should 
 have had this to his own use, because there was tenure between feoffor and feoffee. 
 Dy. 146 b, pi. 71, Villers v. Beaumont; and see Barnard. Chan. R. 387, Lloyd 
 v. Spillit. 
 
 But, if one, without any consideration, enfeoffs another by deed, to 
 hold to the feoffee and his heirs to his own use, and the feoffee suffers the 
 feoffor to occupy the land several years, yet the right is in the feoffee ; be- 
 cause express use is contained in the deed, which is sufficient without other 
 consideration. The same law is, when a feoffment is made to the use of 
 a stranger and his heirs. 
 
 And. 37, pi. 95, Anon. There is a difference between raising uses by fine, feoff- 
 ment, or other conveyance, which operates by transmutation of possession, and uses 
 raised by covenant; for upon the first, if no uses were expressed, it is equity that 
 assigns the feoffor to have the use; for by the law the feoffor has parted with all his 
 interest ; but, where he expresses uses, there can be no equity in giving him the use 
 against his own will ; and there can be no presumption that the conveyance was to the 
 use of the feofibr against his own declaration. But in case of a covenant, it is equity 
 that must give a use, for the person can have no right by law ; therefore, in such case 
 there can be no use without a consideration ; for there is no equity that there should. 
 Gilb. Law of Uses, &c, 222, 223. 
 
 That which cannot vest in him to whom it is limited, shall return to the 
 feoffor ; as, if I make a feoffment in fee to the use of myself for life, and 
 after to the use of my second wife, all the fee is now in me ; and when I 
 take a second wife, then the feoffees shall be seised to the use of such wife 
 in remainder for her life; per Manwood, J. 
 
 2 Le. 19, pi. 25, in Brent's case.
 
 USES AND TRUSTS. 177 
 
 (I) Of resulting Uses, or Uses by Implication. 
 
 Likewise, if one seised of land of the part of his mother makes feoffment 
 in fee without consideration, he shall be seised as he was before, viz., of 
 the part of the mother. 
 
 2 Rep. 58 a, Beckwith's case. 
 
 In like manner, if a man suffers a common recovery, or levies a fine (a) 
 
 of land, and limits no use, this shall be to the use of him who suffers the 
 
 recovery or levies the fine. 
 
 Godb. 180, Bury v. Taylor. Where one seised in tail suffers a recovery, and de- 
 clares no use, the use results to the tenant in tail, and lie becomes seised in fee by vir- 
 tue of the recovery, because the recoveror is tenant in foe-simple, and then no uses are 
 declared of that recovery; and where no consideration appears from the recoveror, the 
 recovery can be to no other purpose than to dock the entail. Gilb. Law of Uses, 61. 
 [(«) But there is a difference between a fine or recovery as to the operation on the de- 
 scent. If tenant in tail by descent ex parte maternd suffer a recovery, in that case, it is 
 true, the estate will continue notwithstanding the recovery in the same line, and de- 
 scend to the heirs ex parte maternd ,• but if tenant in tail by purchase, with a reversion in 
 fee by descent, both ex parte maternd, suffer a recovery, he must take the resulting fee 
 as a purchaser. For the estate that passes by the recovery is the estate-tail, the old es- 
 tate-tail, now considered as a fee: the party comes in in continuance of that estate-tail ; 
 which, being by purchase, must of course descend to the heir at law. But it is other- 
 wise, where tenant in tail, with remainder to himself in fee, levies a fine; for the fine 
 extinguishes the estate-tail, and passes a base or qualified fee; and that fee becomes 
 merged in the other fee; and the reversion being so let in, the estate continues in the 
 same line. Martin v. Tregonwell, 2 Stra. 1 179 ; 1 Wils. 2, 6G, S. C. ; 4 Bro. P. C. 
 480, S. C; {Willes, 444, S. C.;} 5 Term R. 107, S. C; Roe v. Baldwere, 5 Term 
 R. 104; Symonds v. Cudmore, 1 t-'alk. 338; Carth. 258, S. C; Skin. 339, S. C; 
 1 Show. 370; 4 Mod. 1, S. C.j 
 
 Likewise, if two join in a common recovery where one has nothing in 
 the land, and no use is limited upon it, this shall be to the use of him only 
 who had the interest in the land, and no use shall arise to the stranger. 
 
 2 Roll. Abr. 789. 
 
 Also, if A, tenant for life, and B in reversion or remainder, levy a fine, 
 generally, the use shall be to A for life, the reversion or remainder to B in 
 fee ; for each grants that which he lawfully may, and each shall have the 
 use which the law vests in them according to the estate which they convey 
 over. 
 
 2 Rep. 58 a, Beckwith's case. 
 
 So, if there are two joint-tenants, the one for life, and the other in fee, 
 and they levy a fine without declaring any use, the use shall be to them of 
 the same estate as they had before in the land. 
 
 2 Rep. 58 a, Beckwith's case. 
 
 [Where a person seised in fee makes a feoffment in fee without valuable 
 consideration to divers particular uses, so much of the uses as he disposes 
 not of is in him as his ancient use in point of reverter. Therefore, where 
 A, seised in fee, covenanted to stand seised to the use of his heirs male be- 
 gotten or to be begotten on the body of his second wife, it was upon this 
 principle holden by Hale, C. J., and two other judges, that A took an 
 estate for his own life by implication. 
 
 Co. Lit. 23 a; Pibus v. Mitford, 1 Vent. 372. 
 
 So, where the immediate use is limited away for years only, and no use 
 limited of the freehold till the grantor's death, the use of the freehold shall 
 in that case result to the grantor, and he shall take an estate for life by im- 
 plication. As, where an estate was conveyed by A to the use of trustees 
 for seventy years, if A should so long live, remainder to trustees for 3000 
 
 Vol. X.— 23
 
 178 USES AND TRUSTS. 
 
 (I) Of resulting Uses, or Uses by Implication. 
 
 years, and from and after the death of A, to B his son for life ; it was object- 
 ed, that the limitation to B together with the remainders over were void, 
 beino- an estate of freehold to commence in futuro ; for the first freehold 
 estate was limited to B, which was not to arise until the death of A, and no 
 estate for life was limited to A unless an eslate for life should be supposed 
 to result to him. After solemn argument upon the point, and a case stated 
 to the judges, it was decreed, that an estate for life resulted to A, which 
 supported the limitation over. 
 
 Penhay v. Hurrell, 2 Vern. 370. 
 
 In a subsequent case, where the use was limited to the grantor himself 
 for ninety-nine years, remainder to the use of the trustees for twenty-five 
 years, remainder to (the use of) the heirs male of his own body, remainder to 
 his own right heirs ; the court held the limitation to the heirs male of the 
 body to be void, because there was no preceding freehold limited to sup- 
 port it, and that it should not be implied contrary to the intent of the con- 
 veyance ; that there the estate took effect by transmutation of possession 
 out of the seisin of the trustees, and not like Fenwick (should be Pibus) 
 and Mitford's case, where the owner covenanted to stand seised to the use of 
 the heirs of his body ; and Powell, J., held, that even in that case, if there 
 had been an express estate limited to the covenantor, it had been different. 
 
 Adams v. Savage, 2 Salk. 679; and vide Dyer, 111, in margin. 
 
 And so where A by marriage settlement conveyed certain lands to the 
 use of himself for ninety-nine years, if he so long lived, and after to the use 
 of trustees for two hundred years, remainder to the use of the heirs male 
 of his oion body, remainder to his own right heirs ; upon a case referred to 
 the judges of C. B. from the Court of Chancery, they held the limitation to 
 the heirs male of the body of A, void, no freehold being limited to any per- 
 son precedent to that estate ; and that no estate of freehold could result to 
 A, for his life by implication, because another estate, viz., for ninety-nine 
 years, if, &c, was expressly limited to him, which would be inconsistent 
 with a freehold by implication. 
 
 Rawley v. Holland, Vin. v. 22, p. 189, c. 11; 2 Eq. Abr.753. |jSeeGoodtitlev.Bur- 
 tonshaw, app. to Butler's edit, of Fearne, No. 1 ; Jackson v. Jackson, Fitzo-. 146. The 
 case in the text, and that of Adams v. Savage, supru, settled the rule, that a contingent 
 use, like a contingent remainder, must have a preceding estate to support it; and that 
 where a use is limited by way of remainder, it cannot take effect as a springing use; 
 and see Sir E. Sugden's note, Gilb on U. 167, Sand, on U. 142, (4th edit.)!] 
 
 And where the use was expressly limited away during the life of the 
 grantor instead of for years only, it has been held, that the freehold could 
 not result to him, so as to unite with the subsequent limitation to the heirs 
 of his body. 
 
 Thus, E C, on his intended marriage, settled lands by deed and fine, to 
 the use of himself and his heirs till the marriage, and afterwards to the use 
 of his wife for life, remainder to the use of the cognisees in the fine, and 
 their heirs, during the life of E C, upon trust to permit him to receive the 
 rents and profits, remainder to the sons of the marriage successively in tail 
 male, and for want of such issue to the heirs of the body of the said E C, 
 and for want of such issue, to the said E C and his heirs. It was agreed 
 that the case differed from that of Fenwick v. Mitford, for there, no use at 
 all was limited for the life of the feoffor, which left a vacancy the law 
 would supply by implication ; but in the principal case, there being an ex- 
 press estate limited to the cognisees during the life of E C, there was no 
 
 g2
 
 USES AND TRUSTS. 179 
 
 (I) Of resulting Uses, or Uses by Implication. 
 
 room left for any implication. Besides that in Mitford's case, it was held 
 to be no other than the old reversion subsisting in the feoffor ; but the limi- 
 tation in the principal case being of a new estate, viz., an estate-tail, could 
 not be any part of the old estate, which was a fee-simple. And though it 
 was contended, that the law would imply an estate for life in E C, interme- 
 diate between the estate of the cognisees and that to the first son of the 
 marriage, because it was possible that the cognisees might forfeit or sur- 
 render ; yet the whole court was clearly of opinion, that the limitation to 
 the heirs of the body of E C was a contingent remainder, and such as the 
 heir would take by purchase, and not by descent ; and that the case differed 
 from that of Fenwick v. Mitford for the reasons before given. And judg- 
 ment was given accordingly. 
 
 Tippin v. Cosin, Garth. 272; 4 Mod. 380; Moor, 284. 
 
 So, where A made a settlement to the use of himself for ninety-nine 
 years, if he should so long live, remainder to the trustees and their heirs 
 during his life, Sfc, remainder to the use of the heirs of his body ; remainder 
 to himself in fee ; Lord Chancellor Cowperheld this limitation to the heirs 
 of the body to be plainly a contingent remainder. 
 
 1 P. W. 387, Else v. Osborne. 
 
 And in a case where A, having two sons C and D, covenanted to stand 
 seised to the use of C and the heirs male of his body on M his wife to be 
 begotten, and for want of such issue to the heirs male o/7ns(A's) ownbody, 
 and for want of such issue to his own right heirs for ever; C the eldest 
 son died, leaving issue one son and several daughters, A died, and then 
 the son of C died without issue ; the court held the limitation to the 
 heirs of the body of A to be words of purchase, and to vest in the son of C 
 upon the death of A as heir male of his body by purchase; and that on the 
 death of C's son it descended to his uncle D as heir male of the body of 
 A per formam doni; and not by purchase as heir male of the body of A, he 
 not being heir, as his nieces were living. They allowed no estate for life 
 in A by implication, and seemed to doubt the doctrine in the case of Pibus 
 and Mitford. But this difference is observable between the two cases ; in 
 that of Pibus and Mitford, the covenantor had not limited any use at all 
 during his own life; whereas, in Southcot v. Stowell, the covenantor had 
 limited a present use to his son C in tail. 
 
 Southcot v. Stowell, 1 Mod. 226, 237; 2 Mod. 207, 211; vide Mandevile's case, 
 Co. Lit. 26 b; Fearne's C. R. 
 
 Archdale Palmer and his son John Palmer, upon the marriage of the son 
 with A, settled certain lands to the use of Archdale and his heirs until the 
 marriage ; and afterwards, as to part of the lands to the use of John Palmer 
 for life, and after intermediate remainders, (to the use of his wife for life 
 and of his sons by her or any other woman successively in tail-male,) to 
 the use of the heirs male of the body of the said Archdale Palmer, remainder 
 to the use of the heirs of the body of John Palmer, remainder to the use of 
 John Palmer, his heirs and assigns ; and as to the residue of the lands to 
 the use of Archdale for life, and after several intermediate limitations, (to 
 the use of John for life and to his wife, in part, for life, and of the sons of 
 the marriage successively in tail-male,) to the use of John and the heirs 
 male of his body, remainder to the use of Archdale, his heirs and assigns. 
 John died without issue male in the lifetime of his father, leaving A his 
 widow and one daughter by her, named Ann. Archdale afterwards, by
 
 180 USES AND TRUSTS. 
 
 (I) Of resulting Uses, or Uses by Implication. 
 
 his will, noticing that by the death of his eldest son John without issue 
 male, that part of his estate then in possession was, by the said marriage 
 settlement, vested in him in fee-simple, devised the said estate to his son 
 William Palmer for life, with remainder to his sons successively in tail- 
 male, and for want of such issue, to the heirs male of his (testator's) body 
 begotten, and for want of such issue to his own right heirs for ever. 
 
 Wills et al. v. Palmer, 5 Burr. 2615; 2 Black. 687. 
 
 Archdale died, leaving his said grand-daughter Ann his heir at law, and 
 his son William Palmer, who (as well as John his deceased brother) was 
 the testator's issue by a first wife, and also leaving Henry, an eldest son, 
 and several other children by his second wife. Afterwards William Pal- 
 mer, who at his father's death was heir male of his body, died, leaving a 
 son, who died leaving a son Henry John, who died an infant without issue; 
 and no recovery was suffered by William or his son. Upon the death of 
 Henry John, Henry, the eldest son and heir male of the body of Archdale 
 by his second wife, entered upon that part of the estate which was by 
 Archdale's will devised to the heirs m.ale of his body. And afterwards, 
 upon the death of Ann the widow of John, Henry took possession, as heir 
 male of the body of Archdale, of the lands which she had held for her life 
 under the settlement. Upon a bill filed by Ann the daughter of John, and 
 heir general of Archdale and her husband, claiming in her right, as heir at 
 law and heir of the body of John Palmer, to be entitled, on failure of issue 
 male of the whole blood, to that part of the estate which was limited by 
 the settlement to John Palmer in fee ; and also claiming in her right, as 
 heir at law of Archdale, to be entitled to the estates of which the reversion 
 in fee was limited to him by the settlement, as not devised by his will ; a 
 case was made for the opinion of the judges of the King's Bench, upon the 
 question, Whether any and what estate passed by the settlement to the de- 
 fendant Henry Palmer, as heir male of the body of Archdale Palmer the 
 grantor 1 ) And whether any and what estate passed to the said defendant 
 Henry Palmer as heir male of the body of the said Archdale Palmer, by 
 his will ? Upon which the judges certified they were of opinion, that the 
 defendant Henry Palmer, by the settlement, took by descent as heir male of 
 the body of Archdale Palmer the grantor. That in case a third person had 
 been the grantor, they should have thought that Henry Palmer would have 
 taken an estate in tail-male by purchase, under the description of heir male 
 of Archdale Palmer. And that they were of opinion, that an estate in tail- 
 male passed to the defendant Henry Palmer, as heir male of the body of 
 Archdale Palmer by his will. 
 
 No estate for life can arise by implication, or by way of resulting use, to 
 a person who was not the owner of the estate granted. As, where husband 
 and wife levied a fine of the wife's land to the use of the heirs of the body 
 of the husband on the wife begotten, and for default of such issue to the use 
 of the right heirs of the husband ; they had issue ; the wife died, then the 
 issue died, and then the husband died ; and the question was, Whether 
 the heir of the husband or the heir of the wife should have the lands ? And 
 the court held, that no estate for life could arise to the husband by implica- 
 tion, because the estate was the wife's, to which he was a stranger ; there- 
 fore the limitation to the heirs of the husband, &c., was void, for w r ant of 
 a preceding freehold to support it. An implied estate in the wife for her
 
 USES AND TRUSTS. 181 
 
 (I) Of resulting Uses, or Uses by Implication. 
 
 life would not do, as she died before her husband, and, consequently, before 
 the remainder to his heir could commence. 
 
 2 Salk. 675, Davies v. Speed, Show. Cas. Pari. 104. 
 
 So, where a marriage settlement was made by a third person to the use 
 of A the husband for ninety-nine years, remainder to trustees during his life, 
 to support contingent remainders, remainder to the wife for life, remainder 
 to the first, &c, son of the marriage, remainder to the heirs of the body of 
 A, remainder to his right heirs ; here the freehold during A's life being 
 limited to trustees, and he taking only a term of years, and the estate not 
 moving from him, (for if it had, the limitation to his right heirs would have 
 been the old reversion,) the remainder to his heirs was a contingent re- 
 mainder. 
 
 Vide I P. W. 359, Sir T. Tippin's case there cited; and vide Jenk. Cent. 248, 
 c. 18. 
 
 And where lands were devised to C for the term of ninety years if he 
 should so long live, and afterwards to the heirs of C's body, it was held, 
 that it vested in the heir by purchase. 
 
 Harris v. Barnes, 4 Burr. 2157. 
 
 Indeed, in a case where the testator devised in remainder (after limita- 
 tions to his brother W and his heirs male) to the heirs male of his brother 
 N's sons, (who then had two sons living,) without any antecedent devise 
 to those sons themselves, and by a schedule annexed to the will and referred 
 to in it, (which the special verdict found to be part of the will,) purporting 
 to be an account how the testator had disposed of his estates by his will, 
 he said, and for want of his brother W's having sons, then to his brother 
 N's sons, and for want of sons, then over : Upon the question, Whether one 
 of the sons of N took an estate for life or in tail ? the Court of King's Bench 
 in Ireland held he took only for life. But on an appeal to the King's 
 Bench in England, Lord Mansfield, in delivering the opinion of the court, 
 observed, that the only doubt was, whether by the words of the will the 
 sons of N took any estate by implication ; that such doubt was removed 
 by the schedule, which expressly gave an estate to the sons of N; and 
 therefore the son of N took an estate for life by implication thus explained, 
 which being conjoined with the estate expressly given to his heirs male by 
 the will, would by the known rule of law give him an estate in tail male. 
 But this case turned on the operation of the schedule. 
 
 Hayes v. Foorde, 2 Black. R. 698. 
 
 It has been doubted, Whether there can be a resulting use on the con- 
 veyance by lease and release ; that is to say, if a bargain and sale in consi- 
 deration of money is made to J S for a year, and then a release is made to 
 him in fee, without any further consideration or declaration of the use, 
 whether in this case the use will result to the releasor. — Thus, where A 
 brought covenant as assignee of a reversion, and showed that the lessor, 
 in consideration of five shillings, bargained and sold to B for a year, and 
 afterwards released to him and his heirs, virtute quorundam indentur. bar- 
 ganice ve?iditionis et relaxationis, necnon vigore statuti de usibus, §c, he was 
 seised in fee ; it was objected, that the use must be intended to the releasor 
 and his heirs, because no consideration of the release, nor express use, ap- 
 peared by the pleadings. It was argued in this case, that there could be 
 no resulting use on a lease and release ; that nothing passes to the lessee 
 in possession, but by way of enlargement of the estate of such lessee ; for 
 it does not operate to give a new estate of the reversion, but to increase the 
 
 Q
 
 182 USES AND TRUSTS. 
 
 (I) Of resulting Uses, or Uses by Implication. 
 
 estate in possession, according to the words of it : so it does not work by 
 merger of the first interest, but by enlarging it : that if the release inure 
 only to enlarge the estate, the interest enlarged must be to the use of the 
 lessee, else it cannot be said to be an increase of it : that if the practice had 
 not prevailed to the contrary, it were odd to limit the use of a release to any 
 but the lessee ; for which reason it is, that we find it expressed in the clause 
 in the lease, on which the lessor intends to build his release, that the intent 
 of the lease was to pass an estate by release upon it, for the use of a third 
 person : that it would be absurd to say, that my conveyance should have 
 no other operation but to extinguish or merge the estate, which the grantee 
 has already, in order to have brought it back to me ; and what need could 
 there be of such a way ? if the party had any such intent, it might soon be 
 done by a surrender : that if it had been expressed in the deed of release, 
 that he had already made him a lease for years, and that for the enlarge- 
 ment of that estate he made the release, there could be no doubt but that 
 it would be to the use of the releasee ; and there is no difference between 
 the cases, since this release, in its own nature, inures by way of enlarge- 
 ment ; besides, here is also a valuable consideration ; for the lease and 
 release being but one conveyance, the five shillings, expressed to be the 
 consideration of the lease, shall extend to the release ; and also the accept- 
 ance of the release is in its own nature a consideration, for it implies an 
 alteration of the estate of the lessee, the consent to which is a consideration 
 moving from the lessee ; and the only motive of the lessee's parting with 
 the old estate was to get. a new one. On the other side it was urged, that 
 before the statute of 27 H. 8, c. 10, if A made a feoffment, levied a fine, 
 or suffered a recovery without a use declared, and without any considera- 
 tion, the feoffee, conusee, and recoveror stood seised of those lands to the 
 use of A : that since the statute the law as to this matter is not altered; for 
 the statute only intended to execute the use to the possession, and by that 
 means to destroy the use, but it did not intend to make any other thing pass 
 by the conveyance than that which passed before ; that there was the same 
 reason the use should not pass in a release without consideration or express 
 declaration, as in a feoffment, fine, and recovery ; because the use and 
 estate are distinct, and though the estate passes, yet the use does not, with- 
 out a consideration or express limitation of it ; and they are as much distinct 
 things in a release as in any other conveyance : and the precedents are, that 
 when a release is pleaded, there always mention is made of a consideration 
 or express use. 2 Saund. 11, 277 ; 2 Ventr. 120; Co. Entr. 220, 264, 
 474. To the objection that this release inured by way of enlargement of 
 the lease for a year, and therefore would participate of the consideration 
 of it, and that the lease and release made but one conveyance, it was 
 answered, that though the lease and release made but one conveyance as 
 to the passing of the fee, yet they were in truth distinct conveyances, and 
 had different operations, the one by the statute of uses, and the other by 
 the common law : that as to what was said, that the release inures by way 
 of enlargement of the estnte of the lessee, it is true that it gives him a 
 greater estate than he had before, but that notwithstanding it destroyed the 
 estate for years by merger, and it cannot participate of the consideration 
 which is contained in the lease, which is perfectly distinct. However, 
 Holt, C. J., without considering the operation of the conveyance, and 
 admitting there might be a resulting use on it, held, that the manner of 
 pleading the release, as above, to the releasee was good ; and that if a
 
 USES AND TRUSTS. 183 
 
 (I) Of resulting Uses, or Uses by Implication. 
 
 feoffment be pleaded in the same manner, without showing the use or a 
 consideration, with an averment virtute cujus the feoffee was seised, the 
 use shall be intended to be to the feoffee : that that was the form of plead- 
 ing before the statute ; and the statute has not altered, but rather confirmed, 
 this manner of pleading. 
 
 Sand, on Uses, 480; Shortridge v. Lamplugh, 2 Salk. 678; 7 Mod. 71 ; 2 Lord 
 Raym. 798; 1 Lutw. 351. ||See Sand, on Uses, 2, CO— 70, (4th edit.); Gilbert by 
 Sugden, 233.|| See Sand. 95, 96, 485.] 
 
 It is to be observed likewise, that when one takes a feoffment, having 
 notice of the several uses and trusts, there, the party is supposed to take it 
 under those uses and trusts ; for the law will suppose a man's actions rather 
 just than otherwise. 
 
 Gilb. Law of Uses, 7. 
 
 Therefore, if a feoffee to a use make a feoffment in fee upon a valuable 
 consideration with notice, the second feoffees shall be seised to the former 
 uses ; for the consideration imports a seisin to his own use, the notice a 
 seisin to the former uses: and where the act is capable of a double inter- 
 pretation, that must be taken which consists most with equity. 
 
 Gilb. Law of Uses, 7. The reason is, for that it argues a corrupt conscience to bar- 
 gain for an estate which the purchaser knows to be another's in equity ; therefore as 
 consideration or no consideration is an issue at law, so notice or no notice is an issue in 
 Chancery. Lord Bacon's Read, on Stat, of Uses. But Qu. If the use is expressed to 
 the second feoffee, for there it seems notice or no notice is immaterial. 1 And. 314. 
 
 Likewise, if A agrees with B to lease Blackacre to him for certain years, 
 and afterwards, before he has made the lease, according to the promise, he 
 enfeoffs C of the land for a valuable consideration, C having notice of the 
 promise before the feoffment made ; C shall be compelled in Chancery to 
 make the lease to B, according to the promise, because of his notice. 
 
 2 Roll. Abr. 781. 
 
 But, where a man takes upon a valuable consideration without notice, 
 there, he is supposed to take it to his own use, for otherwise he would not 
 have given an equivalent. 
 
 Therefore, if a feoffment be made with consideration, and without notice, 
 the feoffee shall be seised to his own use, for here the act is capable of no 
 other construction. 
 
 1 Rep. 122, Chudleigh's case. ||This is the rule in equity at this day. If a man 
 purchases from another bona fide for a valuable consideration, and without notice, it is 
 unimportant that the seller was merely a trustee. As to what amounts to notice to a 
 purchaser, see Sugden's Vend. & P. 742, el seq. (8th edit.)|| 
 
 Also, if feoffee in use makes a gift in tail, the donee shall be seised to 
 his own use; for there is a consideration, viz., a tenure between them, un- 
 less he express a use upon the gift, or in the gift ; per Brooke, J. 
 
 Bro. F. al Uses, pi. 10. 
 
 If the feoffee in use makes a lease for life, he shall have fealty ; for this 
 is to the use of the lessee, if a use be not expressly reserved, &c. ; per 
 Brooke, J. 
 
 Bro. F. al Uses, pi. 10. 
 
 In like manner, if he devises by testament, the devisee shall be seised to 
 his own use, unless it be otherwise expressed ; for there is a consideration 
 implied. 
 
 Bro. F. al Uses, pi. 10.
 
 184 USES AND TRUSTS. 
 
 (K) Of second or shifting Uses. 
 
 So, if a feoffment be made to A to enfeoff B to the use of C, and A en- 
 feoff B without limiting any use, yet it shall be to the use of C. 
 
 Noy, 19, per Popham, C. J., in case of Yelverton v. Yelverton. 
 
 (K) Of second or shifting Uses. 
 
 If a man made a feoffment in fee before the statute of uses, 27 H. 8, c. 
 10, or after the statute, to the use of W and his heirs till A paid 40/. to the 
 said W, and then to the use of the said A and his heirs, and after comes the 
 statute of uses and executes the estates in W, and after A pays W the 40/., 
 there A is seised in fee if he enters, by several. But by some, A shall not 
 be seised in fee by the said payment, unless the feoffees enter; qucere hide. 
 And therefore it seems to be the surest way to enter in the name of the 
 feoffees, and in his own name, and then the one way or the other the entry 
 shall be good, and it shall make A to be seised in fee : and therefore a 
 man at this day may make a feoffment to uses, and the use shall change 
 from one to another by act ex post facto by circumstance, as well as it should 
 before the statute 27 H. 8, of uses. 
 
 Bro. F. al Uses, pi. 30, cites 6 E. 6. 
 
 So, if I limit a use jointly to two persons not in esse, and the one comes 
 to be in esse, he shall take the entire use ; and yet if the other afterwards 
 comes in esse, he shall take jointly with the former. 
 
 Ld. Bacon on the Statute of Uses, 351. As, if I make feoffment to the use of my 
 wife that shall he, and my first begotten son for their lives, and I marry, my wife takes 
 the whole use; and if 1 afterwards have a son, he takes jointly with my wife. Lord 
 Bacon on the Statute of Uses, 351. 
 
 Where a conveyance was made by fine to A B to the use of C D and M 
 his wife for life, and the longer liver of them, remainder after their de- 
 cease to the use of Ch executors for six months, and after the six months 
 ended, to the use of E and F, his wife, and the heirs male of their bodies, 
 remainder to C and his heirs, provided if C at any time after have issue of 
 his body, or any wife of C at his decease be enseint with any issue begot- 
 ten by C, then after such issue had, and after 500/. paid to G or tendered 
 and refused, within six months after the birth of such issue, then the use of 
 the said lands, immediately after the decease of the said C D and M the 
 six months expired, shall be to C and the heirs of his body, and in default 
 of such issue, to the right heirs of the said CD; M dies, and C marries 
 N. Per Plowden and Dyer — Before the performance of the contingent, 
 C has no larger estate than he had before. 
 
 Dy. 314, pi. 9(5, Anon. 
 
 So, where A made a feoffment to the use of himself for life, remainder 
 to his wife for life, remainder to his right heirs, with a proviso if his son 
 interrupted his wife, it should be to the use of the wife and her heirs : A 
 made a lease for years, to begin after (a) his decease, and died : The son 
 disturbed the wife ; Resolved, that the use will not arise to give the wife 
 the fee. 
 
 Cro. Eliz. 766, case of Wood v. Reynolds, cites it as the case of Leigh v. Burton. 
 And Godfrey, Arg. said, he conceived the reason thereof to be, because the use limited 
 to the right heirs was the ancient reversion, and no new estate, and a condition cannot 
 
 be annexed thereto. Ibid. Mo. 742, pi. 1022. Barton's case says, it was to begin 
 
 after the (a) wife's, decease. Resolved, by Popham and Anderson, C. J., clearly, that 
 the future use was checked by the lease, and never shall arise; for since it could not 
 arise at the death of the wife, by reason of the lease for years, it is destroyed for ever.
 
 USES AND TRUSTS. 185 
 
 (K) Of second or shifting Uses. 
 
 Yet rwta, (says the reporter,) that the lease was only an interessc termini all the time 
 of the wife's life, and the disturbance which ought to raise the use in fee to the wife, 
 
 was made in her life, before the commencement of the lease. Gilb. Law of Uses, 
 
 &c, 138, 139, cites S. C. ; and says, the wife shall not have the reversion, because 
 the lease has altered it ; for there is the same estate to be executed in the wife as 
 was in being at the disposition of the particular estate. 
 
 Likewise, where A bargained and sold land to B and his heirs for 500/., 
 upon condition that if A paid B 500/. he might re-enter and be seised to the 
 use of himself and his heirs, until he attempt to alien without the assent 
 of B, and then to the use of B and his heirs, and a fine was levied to those 
 uses : A paid the 500/. and entered ; afterwards A aliened to J S without 
 the assent of B. Per Lord C. Egerton, — No use will arise to B, because 
 B, entering for the condition broken, ought to be in of the old use and 
 estate, and cannot be seised to any other use. 
 
 Moor, 761, pi. 1054, in Chancery, Holloway v. Pollard. 
 
 || Provisoes defeating estates actually created are commonly introduced 
 in settlements, where it is wished that on accession of another estate, the 
 one settled shall go over to another branch of the family, and the validity 
 of such provisoes is now well established. 
 
 Thus, Thomas Heneage devised his estate to trustees, to the use of his 
 son G. F. Heneage for his life, remainder to the use of trustees, to support 
 contingent remainders during the life of the said G. F. H., and to permit 
 G. F. H. to receive the rents during his life, remainder to the first and 
 other sons of G. F. H. successively in tail-male, remainder to devisor's 
 son J. Heneage for life, remainder to trustees, &c, remainder to J. Hene- 
 age's sons in tail successively, remainder to the third and other sons of 
 the devisor in tail, with an ultimate remainder to the devisor's right heirs — 
 Provide^, that in case it should happen that G. F. Heneage, or any of 
 his sons, should ever inherit or take the estate of testator's brother, 
 George Heneage, or so much thereof as should exceed the devised estate 
 by 100/. per ann., then the uses and estates thereby limited in favour of 
 G. F. Heneage, or any son of his, should cease, determine, and be void ; 
 and in such case, his will was, that the next in remainder, according to 
 the uses of that his will, should succeed to and enjoy his said estate 
 thereby devised, as if his said son G. F. Heneage, or any such son or sons 
 of his, was or were respectively dead. On the testator's death, G. F. Hene- 
 age entered on the premises, and enjoyed the same till his death in 1782. 
 George Heneage, the devisor's brother, died in 1753, leaving a will, 
 whereby he devised his estates (exceeding in value the estates devised by 
 Thomas Heneage by 100/. and upwards) to his nephew, G. F. Heneage, 
 for life, with remainder to his first and other sons in tail ; and on his un- 
 cle's death, G. F. Heneage entered upon the estates of his uncle, and en- 
 joyed the same till his own death in 1782, when he left issue the defendant 
 his eldest son, and the lessor of the plaintiff, his second son. At the time 
 of his uncle's death, G. F. Heneage had no son ; but the defendant and 
 the lessor of the plaintiff were afterwards born. Thomas Heneage, the 
 son of the testator Thomas Heneage, died unmarried, and without issue, 
 in the lifetime of George Heneage ; and the devisor, Thomas Heneage, 
 had no other son. The ultimate limitation in the will of Thomas Hene- 
 age was vested in G. F. Heneage, as heir of his father, Thomas Heneage, 
 at the death of George Heneage the uncle. On the death of G. F. Hene- 
 age, the defendant, his eldest son, took, under the devise in G. H's, the 
 Vol. X.— 24 Q 2
 
 186 USES AND TRUSTS. 
 
 (K) Of second or shifting Uses. 
 
 uncle's, will, an estate in tail-male in his uncle's estates, and was still in pos- 
 session thereof. Upon the death of G. F. Heneage, the defendant as his 
 heir also entered upon the premises in question, and was still in possession 
 thereof. For the defendant, it was contended, that G. F. Heneage having 
 had no son at the time of his uncle George's death, when he became enti- 
 tled to his uncle's estates, there was no person then m esse to take under the 
 contingent use limited by the will of Thomas Heneage, and, consequently, 
 that the use was void, and the defendant was entitled as heir at law to the 
 devisor, his grandfather ; but the Court of King's Bench held, that, under 
 the limitation to trustees to preserve contingent remainders during the life 
 of G. F. Heneage, their estate continued during the whole life of G. F. 
 H., and, consequently, preserved the contingent uses to his son. 
 
 Doe dem. Heneage v. Heneage, 4 Term R. 13. 
 
 In the above case, effect was given to the limitation to trustees during 
 the life of G. F. Heneage, in order to effectuate the clear intention of the 
 testator, — that his estate, and that of his brother George, should not unite 
 in the same son of G. F. Heneage. But where there was a person in esse 
 to take the contingent use at the time of the determination of the particu- 
 lar estate, the same words in a will were construed not to give the trustees 
 an estate during the whole life of the particular devisee, since such a con- 
 struction would, in that case, defeat the clear intention of the testator. 
 The case was: — Sir W. Carr, Bart., devised estates to trustees to the use 
 of his grandson, W. Hay, second son of his daughter the Countess of Er- 
 roll, for life, subject to the provision after mentioned, with remainder to 
 trustees during the life of W. Hay to preserve contingent uses thereafter 
 limited, but to permit W. Play to receive the rents and profits during his 
 life, remainder to the use of the first son of the body of W. Hay, and then 
 to his second, third, fourth sons, &c, in tail-male, subject to the provi- 
 soes, &c. ; and in default, &c, to the use of the third, fourth, and fifth, 
 and every other son of the Countess of Erroll in tail-male, subject to the 
 provisoes, &c. ; and in default, &c, to the use of the second son of George 
 Lord Hay, testator's grandson, and the heirs male of his body, subject 
 to the provisoes, &c. : and in default, &c, to the use of the third, fourth, 
 fifth, and other sons, of the said George Lord Hay in tail-male, subject, 
 &c. ; and in default, &c, to the use of his grand-daughter Lady Charlotte 
 Hay (afterwards Lady C. Carr,) for life, subject to the provisoes, &c, 
 with remainder to trustees, to preserve contingent remainders, remainder 
 to the first son of Lady C. H's body, and his heirs male, &c, subject to 
 the provisoes, &c. — Provided that, in case his grandson W. Hay, or his first 
 or any other son, or the issue male of their bodies, or the third or any other 
 son of Lady Erroll, or other issue, or the second or any other son of G. Lord 
 H.j or their issue, or his grand-daughter Lady C. H. or their respective first 
 or any other son, or the issue male of their respective bodies, or any of them, 
 should become entitled to the said estates, and the person so entitled 
 should afterwards become entitled to the earldom of Erroll, then, and 
 from thenceforth, the use and estate thereby limited to such person so be- 
 coming entitled, should cease and be void as if such person were dead 
 without issue ; and the estates thereby devised should go and remain to 
 the use of the person next in remainder, to such person so becoming en- 
 titled as aforesaid. At the decease of the testator, his grandson William 
 Hay, the second son of Lady Erroll, was an infant ; but, on his attaining
 
 USES AND TRUSTS. 187 
 
 (L) Of the Manner of pleading Uses. 
 
 twenty-three years of age, he was let into enjoyment of the mansion-house 
 and estates devised. George Lord Hay, the eldest son, became, at his 
 father's death, Earl of Erroll, but he died without issue ; and thereupon 
 William Hay became, and then was, Earl of Erroll. The testator's daugh- 
 ter, the Countess of Erroll, having no other issue male except the said 
 William Earl of Erroll, the defendant Lady Charlotte Hay, the testator's 
 grand-daughter, named in the will, (who had intermarried with W. Hol- 
 well Carr, clerk,) claimed to be entitled to the possession of the estates, as 
 if her brother William Earl of Erroll was dead without issue male ; and, 
 on her death, she left a son, the present plaintiff, an infant. The defend- 
 ant, W. Earl of E., insisted that the estates were vested in the trustees, to 
 preserve contingent remainders, for the benefit of himself during his life. 
 For the plaintiff, it was contended, that, on the event which had happened, 
 of the title of Earl of Erroll devolving upon William Hay, the plaintiff 
 took an estate-tail in possession, such devolution of the title being, by the 
 proviso in the will, equivalent to the natural death of William Hay with- 
 out issue male ; and that though the estate to the trustees was not, in 
 words, made subject to the proviso, it must be so in effect ; and that if 
 W. Hay's life-estate was gone, it would be inconsistent to say, that the per- 
 mission to the trustees to let him take the rents and profits during his life 
 applied to the case. The Court of King's Bench, on a case sent by the 
 Lord Chancellor, was of opinion, that the plaintiff, William Holwell Carr, 
 was entitled to an estate in tail-male in the premises. 
 
 Carr v. Earl of Erroll, 6 East, 75 ; and see Nicholls v. Sheffield, 2 Brown, C. C. 
 215 ; Stanley v. Stanley, 16 Ves. 494 ; Gilb. on Uses, by Sugden, 153, notd. || 
 
 (L) Of the Manner of pleading Uses. 
 
 If a man pleads that A, B, and others were seised to his use in fee, this 
 is good pleading, without showing the commencement of the use. 
 
 Bro. Pleadings, pi. 170, cites 13 H. 7, c. 18. 
 
 But it is otherwise, where he says that they were seised to the use of 
 him and the heirs of his body, because this is a particular estate. (a) 
 
 Bro. Pkudings, pi. 170, cites 13 H. 7, c. 18. |j(«) That the commencement of estates- 
 tail and all particular estates must be shown in pleading, unless when alleged by way 
 of inducement. See Co. Lit. 303 b; 2 Salk. 562; 3 Wils. 72; Rast. Ent. S56.|| 
 
 If a man makes a feoffment in fee to A to the use of B, B may plead 
 this feoffment, and show that J S disseised him without laying any actual 
 entry, for the statute executes the possession in him : he may also plead it 
 without showing any agreement thereto, because the freehold is in him, 
 unless he disagree, and then it must be shown on the other side, for thereby 
 the freehold is immediately out of him. 
 
 Owen, 86, Green v. Wiseman ; Gilb. Law of Uses, 81. 
 
 But in trespass he must show an actual entry ; for this action is grounded 
 on the disturbance of his possession, or the violation of his right, by taking 
 the actual profits, which no man could hinder him from, or disturb him in, 
 till he shows he was in possession. 
 
 Owen, 87, Green v. Wiseman. 
 
 If a man pleads that he bought land for 20/., without showing the money 
 paid, or a day alleged for the payment of it, this is good ; for the buying 
 implies payment of the money ; and if there was none paid, the plaintiff 
 may reply, that he did not buy, &c. 
 
 Bro. F. al Uses, 338 b, pi. 15.
 
 188 USES AND TRUSTS. 
 
 Of Trusts. 
 
 In debt the plaintiff counted upon a lease for years made by his father, 
 rendering rent. The defendant said, that the father and others were seised 
 in fee to the use of the father, absque hoc that the reversion descended to 
 the plaintiff. And it was held a good plea to the count, for the plaintiff 
 ought to have counted specially that they were seised to the use, &c, and 
 that the father leased, and because he did not, the writ and count shall 
 abate; per Rede, C. J., and Kingsmill, J.; former Rede, — The defend- 
 ant may say that the father had nothing at the time of the demise, and then 
 the plaintiff cannot maintain the declaration by the use, but it is a depar- 
 ture : for he ou^ht to have shown it at first. 
 
 Bro. Count, pi. 49, cites 21 H. 7, c. 25. 
 
 The tenant of the land cannot plead a release made by cestui que use to 
 the feoffee, without showing the release. 
 
 Bro. Monstrans de faites, &c, pi. Gl, cites 14 H. 8, c. 4. 
 
 In waste, the writ set forth a feoffment to several persons to several uses. 
 After verdict, exception was taken to the writ, because it did not say the 
 feoffment was to them and their heirs, without which there could be no in- 
 heritance in cestui que use, and so no disherison, as the action of waste im- 
 ports. But the plaintiff had judgment, because all the forms of the writs 
 had been so since the making of the statute ; and the declaration laid the 
 seisin in fee, as it must ; and yet the plaintiff might have had a general 
 writ, and declared specially. 
 
 Hob. 81, pi. 112, Sheat v. Oxenbridge. 
 
 We proceed now to treat more particularly of the latter branch of this 
 title, and to consider the law respecting 
 
 /SPART II.-OF*/ TRUSTS. 
 
 A trust is a right to receive the profits of the land, and to dispose of 
 the land in equity ; per Pemberton, Jirg. Mod. 17, in the case of Smith v. 
 Wheeler. And holding the possession and disposing thereof at his will 
 and pleasure, and making leases thereof when the legal estate is in others, 
 are signs of a trust. 
 
 1 Mod. 27, Smith v. Wheeler; Ibid. 33. Arg. in S. C; Chan. R. 52, Earl of New- 
 castle v. Earl of Suffolk. As to what will constitute a trust, see Foy v. Foy, 2 Hayw. 
 131 ; Elliott v. Armstrong:, 2 Blackf. 198 ; Fisher v. Fields, 10 Johns. 494*; Benzien 
 v. Lenoir, 1 Car. Law Repos. 508; Taylor v. Mavrant, 4 Desaus. 505; Chamberlain 
 v. Thompson, 10 Conn. 213; Dey v. Dunham, 2 Johns. Ch. 182; S. C.15 Johns. 555; 
 Rutted™ v. Smith, 1 M'Cord, Ch. 119; Letcher v. Letcher's heirs, 4 J. J. Marsh. 593; 
 Rutherford v. Ruff, 4 Desaus. 350; Smith v. Executor of Smith, 1 M'Cord, Ch. 134; 
 Armstrong v. Campbell, 3 Vera;. 201 ; Donalds v. Plumb, 8 Conn. 447; Page v. Broom, 
 4 Russ. 6; S. C. 2 Russ. & Ry. 214 ; Wright v. Atkyns, Turn. & Russ. 157; Mac- 
 cubbin v. Cromwell's ex'ors, 7 Gill & Johns. 157; Rainsford v. Rainsford, Rice's Eq. 
 R. 343; De Bevoiso v. Sandford, 1 Doff. 192; Sheldon v. Sheldon, 13 Johns. 220; 
 Johnson v. Fleet, 14 Wend. 170; Jackson v. Moore, Cowen, 70fi ; Ingles v. The 
 Trustees of the Sailors' Snug Harbour, 3 Pet. 119; Bull v. Bull, 8 Conn. 47 ; Cham- 
 berlain v. Thompson, 10 Honn. 243; Homer v. The Savings Bank, 7 Conn. 478; 
 Cowles v. Whitman. 10 Conn. 121 ; Dean v. Dean, fi Conn. 285; Peebles v. Read- 
 ing, 8 S. & R. 192 ; Graham v. Donaldson, 5 Watts, 451 ; Hoge v. Hoge, 1 Watts, 163; 
 Smiley v. Dixon, 1 Penns. 441. 5/
 
 USES AND TRUSTS. 189 
 
 Of Trusts. 
 
 Trusts are of the same nature now that uses were at common law. Arg. 
 Allen, 15, in case of The King v. Holland. 
 
 Allen, 15, The King v. Holland ; Abr. Eq. Case, 220, S. P. Symson v. Turner.. 
 
 S. P. Arg. Vent. 130, in case of Smith v. Wheeler. A trust is but a new name given 
 
 to a use, and invented to defraud the statute of uses.* Arg. Sti. 40, in case of The 
 King v. Holland. /3 Fisher v. Fields, 10 Johns. 495.J? 
 
 * It has already been observed, that now the use by the way of trust (which were 
 one and the same before the statute) remains separately in some persons, and the pos- 
 session separately in others, as it did before the statute, and are not brought together 
 but by decree in Chancery, or the voluntary conveyance of the possessor of the land to 
 cestui que trust. 
 
 [The legislature, by the stat. of 27 H. 8, c. 10, are thought by Lord 
 Coke (1 Rep. 125) to have intended to abolish uses and trusts, though 
 this opinion is controverted by Lord Bacon in his Readings on the Statute. 
 If such was the intention, courts of law, by too strict a construction of its 
 provisions, defeated it, and rendered it necessary for courts of equity to 
 retain that jurisdiction, of which a more liberal interpretation of the statute 
 by courts of law would probably have deprived them ; so that, as Lord 
 Hardwicke observed, " A statute made upon great consideration, and in- 
 troduced in the most solemn manner, by a strict construction, has had no 
 other effect than to add at most three words to a conveyance." Courts of 
 equity have, however, in the exercise of this jurisdiction, wisely avoided, 
 in a great degree, those mischiefs which made uses intolerable. They 
 now consider a trust-estate (either when expressly declared or resulting by 
 necessary implication) as equivalent to the legal ownership, governed by 
 the same rules of property, and liable to the same charges in equity, except 
 dower, to which the other is subject at law : and by a long series of uni- 
 form determinations for a century past, with some assistance from the legis- 
 lature, they have raised a new system of rational jurisprudence, by which 
 trusts are made to answer in general all the beneficial ends of uses, without 
 their inconvenience or frauds. 
 
 2 Fonbl. E. Tr. 15 ; 1 Atk. 591 ; 2 Black. Com. 337.] 
 
 Trust-estates are subject to the same rules as legal estates, in every 
 case, dower excepted. 
 
 Danforth v. Lowry, 3 Hayw. 68.tf 
 
 But for the better understanding of this head, we shall divide it into the 
 following branches; and consider, 
 
 (A) By what general Rules Trusts are governed. 
 
 (B) What amounts to a Declaration of Trust, and when a Trust shall be raised. 
 
 (C) What shall be deemed a resulting Trust, or Trust by Implication. 
 
 (D) What shall be deemed an Advancement, and what a Trust. 
 
 (E) What Acts of a Trustee shall be a Breach of Trust, &c, or shall be deemed to 
 
 alter or vary the Nature of it. 
 
 (F) What Acts of the Trustee jointly with Cestui que Trust, or by Cestui que Trust 
 
 only, shall defeat the Trust, or destroy contingent Remainders. 
 
 (G) In what Cases Equity will decree Trustees to join in a Recovery, &c, with 
 
 Cestui que Trust. 
 (H) When a Trust is to be executed, what Estate or Interest is to be conveyed, and 
 
 to whom. 
 (I) Trustee in what Cases favoured, and in what Cases decreed to account. 
 (K) How far Trustees are answerable for each other.
 
 190 USES AND TRUSTS. 
 
 (A) By what general Rules Trusts are governed. 
 (L) In what Cases Trustees shall give Security, and whenhe discharged or removed 
 (M) The Power of Cestui que Trust. 
 (N) Of Forfeitures by Cestui que Trust. 
 ,5(0) Compensation to Trustees. 
 (P) Of Suits in Equity and Actions at law by and against Trustees and Cestuis que 
 
 Trust. 
 (Q) Miscellaneous Cases.5 1 
 
 (A) By what general Rules Trusts are governed. 
 
 Trusts and legal estates are to be governed by the same rules ; and this is 
 a maxim which has universally prevailed. It is so in the rules of descent, 
 as in gavelkind, and borough English lands ; there is a possessio fratris of 
 a trust, as well as of a legal estate. The like rules in limitations, and also 
 in barring eiitails of trusts, as of legal estates; per the Master of the Rolls, 
 who said he thought there was no exception out of this general rule, nor is 
 there any reason that there should ; and that it would be impossible to fix 
 boundaries, and show how far, and no farther, it ought to go ; and that 
 perhaps in early times the necessity of keeping thereto was not seen, or 
 thoroughly considered. 
 
 2 P. Wms. R. G45, Sutton v. Sutton; /SDanforth v. Lowry, 3 Hayw. 68; Cudworth 
 v. Hall's Adm'r., 3 Desaus. 261 ; Fisher v. Field, 10 Johns. 494.j> ||See Cholmondeley 
 v. Clinton, 2 Jac. & Walk. I, 189.|| 
 
 A trust is now what a use was before the statute of uses. It is an in- 
 terest resting in equity and conscience, and the same rules apply to trusts 
 in Chancery as were formerly applied to uses. 
 
 Fisher v. Field, 10 Johns. 494.g/ 
 
 [But there is a difference between trusts executed, and trusts executory; 
 for though the former are construed in the same manner as legal estates ; 
 yet it is otherwise with the latter ; for they are so moulded by the courts 
 of equity, as best to answer the intent of the parties creating them. How- 
 ever, it must be acknowledged, that even with these, where it does not 
 violate such intent, the same rule of construction is applied as to legal 
 estates. 
 
 Lord Glenorchy v. Bosville, Ca. temp. Talb. 19 ; Garth v. Baldwin, 2 Ves. 655; 
 Roberts v. Dixwell, 1 Atk. 608.] 
 
 A being seised in fee of certain lands devised them to trustees in fee, in 
 trust to pay his debts, and to convey the surplus to his daughters equally: 
 the younger married and died, leaving an infant son, and her husband 
 surviving : the eldest daughter brought a bill for a partition ; and the only 
 question was, Whether the husband of the younger daughter should have 
 an estate for life conveyed to him as tenant by the curtesy ? Upon which 
 it was decreed by Lord Chancellor, that trust estates were to be governed 
 bv the same rules, and were within the same reason, as legal estates ; and 
 as the husband should have been tenant by the curtesy, had it been a legal 
 estate, so should he be of this trust estate ; and if there were not the same 
 rules of property in all courts, all things would be, as it were, at sea, and 
 under the greatest uncertainty. 
 
 1 P. Wins. 108, Watts v. Ball. [So, Chaplin v. Chaplin, 3 P. Wms. 234; Cash- 
 borne v. Scarfe, 1 Atk. 603; Burgess v. Wheate, 1 Black. R. 138, 161.] ||And the
 
 USES AND TRUSTS. 191 
 
 (A) By what general Rules Trusts are governed. 
 
 husband shall have his curtesy of money agreed to be laid out in land, because in equity 
 it is considered as land. Sweetapple v. JBindon, 2 Vern. 53G ; Cunningham v. Moody, 
 ) Ves. 174.|| 
 
 [But, where a father devised lands to trustees, in trust to apply the rents 
 and profits to the sole and separate use of the daughter during her life, not 
 subject to the debts and control of her husband, and also to permit his 
 daughter by deed or writing to devise the lands to such persons as she 
 should think proper ; Lord Hardwicke held, that the husband should not 
 be tenant by the curtesy of the trust ; because, though the daughter had 
 the benefit of a trust of inheritance, yet she had neither a legal nor equitable 
 seisin during the coverture. 
 Hearle v. Greenbank, 3 Atk. 715; \\sed vide 1 Atk. G07; 2 Bro. C. C. 51. || 
 It is established, that there shall not be tenant in dower of a trust. 
 
 3 P. Wms. 234; 2 Atk. 525; Ca. temp. Talb. 138; @ Danforth v. Lowry, 3 Hayw. 
 68; Derush v. Brown, 8 Ohio, 412.^ 
 
 It hath also been holden, that a trust is not liable to escheat to the lord 
 in consequence of attainder or want of heirs ; because the trust could never 
 be intended for his benefit. 
 
 Burgess v. Wheat, 1 Black. R. 123. ||See Gilb. on Uses by Sugden, p. 17, 
 note (10). || 
 
 \ A copyhold is devised to A and his heirs in trust for B and his heirs, B 
 dies without heirs. Chancery will not compel the lord to admit the heir 
 of the trustee, who is only entitled to a legal estate without any beneficial 
 interest : Chancery has not jurisdiction to support the legal title by com- 
 pelling the lord to admit. 
 
 3 Ves. J. 752, Williams v. Lord Lonsdale. 
 
 Bank stock was purchased in England by the government of Maryland 
 before the American war, and vested in trustees in England, for the dis- 
 charge of certain bills of credit. The last trustees appointed were Han- 
 bury, Russel, and Grove. In 1779, the government of the state of Mary- 
 land passed an act for calling in the bills of credit ; and the mode proposed 
 was by giving to the holders bills of exchange drawn upon the trustees in 
 London ; and it was provided that those trustees should be discharged 
 from the trust ; they were directed to transfer the stock, and five persons 
 resident in Maryland were appointed to be trustees of the stock in England 
 in their place. That act having no effect, another was passed in 1780, 
 directing bills to be drawn upon the trustees in England, and to be sold in 
 America, and that in case the trustees should refuse to act, or should suffer 
 the bills to be protested, or in case the British government should interfere, 
 the holders of those bills should have a right to attach the property of the 
 three trustees, each of whom had property in Maryland, and the property 
 of Lord Baltimore's representatives. After the peace, the state of Maryland 
 assigned part of the stock to the partnership in which Hanbury was a 
 partner, as a compensation for a mortgage which they had on confiscated 
 lands in Maryland, and under that assignment they brought a bill in Chan- 
 cery. The fund, subject to that assignment, was claimed by the new 
 state; and, there being no claim by the holders of the bills of credit, the 
 whole was claimed by Grove, the surviving trustee, beneficially, and also 
 by Mr. Harford, the devisee of Lord Baltimore, the proprietary ; a specific 
 lien was also insisted on by the representatives of Russel for the loss of 
 property attached under the act of 1780, in consequence of the refusal of 
 the trustees to transfer. Lord Loughborough decided that there was no
 
 192 USES AND TRUSTS. 
 
 (A) By what general Rules Trusts are governed. 
 
 such lien : that the new state was not entitled to the fund, as it could take 
 only such rights of the old as were within its jurisdiction; that it could 
 therefore make no assignment to the plaintiffs : that the claims of the plain- 
 tiffs, the state, and the others were the subjects of treaty, not of municipal 
 jurisdiction ; and that this was the common case of a trust without any 
 specific purpose to which it could be applied, and consequently the fund 
 must be at the disposal of the crown. 
 
 3 Ves. J. 424, Barclay v. Russel. See 10 Ves. J. 352, Dolder v. Bank of England ; 
 11 Ves. J. 294, Dolder v. Lord Huntingfield.} 
 
 Trusts in general are not barred by the statute of limitations. Thus, a 
 trustee has been decreed to account and re-convey after a possession of 
 twenty years.(c) So, where a trust is created for payment of debts, it will 
 not only take a debt out of the statute of limitations, incurred since its crea- 
 tion,^) but will also revive a debt barred by the statute before it was 
 raised. (c) But this rule, that a trust estate is not within the statute of 
 limitations, holds only as between cestui que trusts and trustees, not betw r een 
 cestui que trust and trustees on one side, and strangers on the other. {d) 
 And it is said, that a fine and five years' non-claim will, in favour of a 
 purchaser, bar a trust term, though cestui que trust be an infant. (e) So, if 
 a trustee neglects to sue within the time prescribed by the statute of limita- 
 tions, cestui que trust, though an infant, is bound by it.(^r) 
 
 Sand, on Uses, 250. (a) Berrington v. Mason, Finch, R. 2G2; /2 Prevost v. Gratz, 
 6 Wheat 498.g/ (ft) Norton v. Turville, 2 P. Wms. 144. (c) Blakeway v. Earl of 
 Strafford, 2 P. Wms. 373 ; Jones v. Earl of Strafford, 3 P. Wms. 89 ; Lacon v. Briggs, 
 3 Atk. 107. (d) Llewellin v. Mackworth, 2 Eq. Ca. Abr. 579; Townshend v. Towns- 
 hend, 1 Bro. Oh. R. 551 ; ||15 Vin. 155, pi. 1 ; Cholmondeley v. Clinton, 1 Meriv. 
 257; 2 Jac. & Walk. 1, 189; and see 1 Sand, on Uses, 280.|| (e) 3 P. Wms. 310, 
 note (G). (g) Wych v. East India Company, 3 P. Wms. 309.] 
 
 £ Express trusts are not within the siatute of limitations ; implied 
 trusts are. 
 
 Shelby v. Shelby, 1 Cooke, 182; Lyon v. Marclay, 1 Watts, 275. See ante, Limi- 
 tation of J}c<iom, (D) 2, Vol. vi. p. 378; Maury's Adm'r v. Mason's Adm'r, 8 Port. R. 
 211 ; Allen v. Woolley, 1 Green's Oh. R. 209, Wisner v. Barnett, 4 Wash. C. C.R. 
 G31 ; Prevost v. Gratz, 6 Wheat. 481 ; Boone v. Chiles, 10 Pet. 177; Walton v. 
 Coulson, 1 M'Lean, 132. 
 
 Length of time is no bar to a trust clearly established. But a trust proving 
 strong circumstances once to have existed, was presumed, after the lapse 
 of forty years and the death of all the original parties, to be discharged and 
 extinguished. 
 
 Prevost v. G»atz, 6 Wheat. 481, 504.g/ 
 
 { Where the equitable and legal estates unite in the same person, and are 
 co-extensive and commensurate, the former is universally absorbed in the 
 latter, and is wholly gone. Therefore, where the equitable estate descends 
 ex parte paterna, and the legal estate ex parte materna, upon their union 
 the maternal heir is entitled, and the paternal heir will not be relieved in 
 equity. 
 
 1 Bro. C. C. 3G3, Wade v. Paget; 3 Ves. J. 12G, Phillips v. Brydges ; Ibid. 339, 
 Selby v. Alston ; Doug. 771, GooduVht v. Wells. 
 
 Where there is a devise to trustees to sell for the payment of debts, and 
 to divide the surplus among several legatees, it is not necessary that those 
 legatees should be parties to the conveyance. 
 
 3 Ves. J. 233, 504, Wakeman v. The Duchess of Rutland.} 
 
 £ A trust being an incident to the legal estate in lands, is of necessity
 
 USES AND TRUSTS. 193 
 
 B) What amounts to a Declaration of Trust, &c. 
 
 destroyed or suspended by whatever destroys or suspends the legal 
 estate. Therefore the lord by escheat, the abater, intruder, disseisor, 
 and the like, are not subject to a trust. 
 Benzein v. Lenoir, Dev. Eq. 225. 
 
 A trust for the separate use of a woman, whether single or married, 
 is valid. 
 
 Davies v. Thornycroft, 6 Sim. 420. 
 
 A. secret trust will not be recognised. To entitle it to the protection 
 of the court, it must be disclosed. 
 Hamilton v. Cummings, 1 Johns. Ch. 124. 
 
 Where a trust is created for the benefit of a person without his 
 knowledge at the time, he may afterwards affirm the trust, and affirm 
 the performance. 
 
 Moses v. Murgatroyd, 1 Johns. Ch. 119 ; Cumberland v. Codrington, 3 Johns. Ch. 
 261 ; Shepherd v. M'Evers, 4 Johns. Ch. 136 ; Neilson v. Blight, 1 Johns. Cas. 205. 
 
 The assent of creditors is not requisite to give legal validity to a deed 
 of trust for their benefit. 
 
 Nicholl v. Mumford, 4 Johns. Ch. 529. See Neilson v. Blight, 1 Johns. Cas. 205. 
 
 When one of several trustees refuses to accept and execute the trust, 
 the whole estate vests in the others, as if he were dead or had not been 
 named as trustee. 
 
 King v. Donnelly, 5 Paige, 46. 
 
 It is a rule in equity, that if one comes into possession of trust pro- 
 perty, with notice of the trust, he shall be considered a trustee, and, with 
 respect to that property, bound to the execution of the trust. 
 
 Chaplin v. Givens, Rice's Eq. 132 ; Manning v. Gloucester, 6 Pick. 6 ; Stafford v. 
 Rantoul, 12 Pick. 233. 
 
 And a trustee, with notice of his appointment as such, who interferes 
 with the subject-matter of the trust, shall not be allowed to repudiate the 
 trust. 
 
 Rice's Eq. R. 132. 
 
 If, at the time of the testator's death, there is any specific property in 
 his possession which belongs to others, which he holds in trust, and it 
 can be clearly traced or distinguished from the testator's own, such pro- 
 perty is not assets for the payment of his debts, or to be distributed to 
 his heirs, but it is to be holden as the testator himself held it. 
 
 Maury's Adm'r v. Mason's Adm'r, 8 Port. 212.0 
 
 (B) What amounts to a Declaration of Trust, and when a Trust shall be raised. 
 
 The statute of 29 Car. 2, c. 3, § 7, enacts, That all declarations or 
 creations of trust shall be manifested by some ivriting signed by the party , 
 or by his last will in writing, or else shall be void. 
 
 [It has been holden, that this provision does not extend to declaration of trusts of 
 personalty. Nab v. Nab, 10 Mod. 404 ; sed vide Fordyce v. Willis, 3 Bro. Ch. R. 
 577.] || See Bayley v. Boulcott, 4 Russell, 347. || 
 
 And by § 9, Assignments of trusts shall be in writing signed by the 
 party assigning the same, or by his last will, or else shall be of no effect. 
 
 But words which are not altogether artificial, will serve to direct a 
 trust, which will not serve to limit an estate ; per Lord Keeper. 
 
 Fin. R. 159, Nourse et al. v. Yarmouth. 
 
 Vol. X.— 25 R
 
 194 USES AND TRUSTS. 
 
 (B) What amounts to a Declaration of Trust, &c. 
 
 || It is not necessary that the trust should be constituted by writing; 
 it is sufficient to show by written evidence the existence of the trust. 
 
 Randall v. Morgan, 12 Yes. R. 74.|| |3The proof of a trust lies on the party who 
 alleges it. Prevost v. Gratz, 1 Pet. C. C. R. 366. gf 
 
 PA written acknowledgment by an executor of a trust created by 
 parol, held to be a lien on the estate of the testator, conveyed by the 
 executor or trustee to a voluntary purchaser with notice. 
 
 Rutledge's Adm'r v. Smith's Ex'r, 1 M'Cord's Ch. 119. 
 
 Parol evidence is admissible to establish a trust. 
 
 Letcher v. Letcher's heirs, 4 J. J. Marsh. 593. £/ 
 
 Where A devised all his lands to B and the heirs of his body ; and in 
 another part of his will, reciting that he owed B money upon account, he 
 therefore devised to him all his personal estate, and made him executor, 
 willing him to pay his debts ; upon the reading of the will, though the 
 clause as to the payment of debts seemed to relate to the personal estate 
 only ; and though the lands were devised to B in tail, with a remainder 
 over to another, and it was objected, that a tenant in tail could not be a 
 trustee ; yet the court decreed both real and personal estate to be sold 
 for payment of the testator's debts; and the decree, it is said, was 
 affirmed in the House of Lords. 
 
 1 Vern. 411, Clowdesley v. Pelham. 
 
 So, if J S devises his lands to his brother, who is his heir at law, in 
 fee, and likewise devises several legacies, and makes his brother executor, 
 desiring him to see his will performed according to the trust and confi- 
 dence he had reposed in him ; this makes the real estate liable ;for the 
 testator needed not to have devised the estate to his brother, being heir 
 at law, unless he intended that he should take it chargeable with the 
 debts and legacies. Decreed, and affirmed by the House of Lords. 
 
 2 Vern. 228, Alcock v. Sparhawk. 
 
 A trust was decreed of a term for years assigned, though the_ trust 
 was not expressed in the deed ; it having been so declared by the assignee, 
 who had given bond to perform the trust. 
 
 Fin. R. 356, Goodwin v. Cutler. [So where a bond was given to cestui quetrust to 
 assign as he should direct. Moorecroft v. Dowding, 2 P. Wins. 314. So, where a 
 bond was given by a mother to her son to surrender a copyhold estate to him : the 
 mother's brother, whose heir-at-law she was, having been disappointed of devising the 
 estate to the son from the impracticability of surrendering it to the use of his will, 
 and having taken this method of securing it to him. Parks v. Wilson, 10 Mod. 515; 
 9 Mod. 62, S. C] 
 
 [A covenant to make conveyances, or to purchase lands to certain uses, 
 hath been holden to be a good declaration of trust, and binding upon the 
 
 estate. 
 
 Earl of Plymouth v. Hickman, 2 Vern. 167 ; Blake v. Blake, 2 Bro. P. C. 350 ; Deg 
 v. Deg, 2 P. Wms. 415.] 
 
 || Where a testator bequeathed a legacy to A and B, in trust for cer- 
 tain purposes, and on the same day a paper was signed by the trustees, 
 declaring a trust for six named persons, and afterwards some lives were 
 added by the testator, by which a seventh person was admitted to a share : 
 on a bill filed by one of the six persons, the court recognised the paper 
 as a valid declaration of trust, though not proved as a testamentary paper. 
 
 Smith v. Attersoll, 1 Russell's R. 266. 
 
 Where a mother, entitled to personal property under a will, in conversa-
 
 USES AND TRUSTS. 195 
 
 (B) What amounts to a Declaration of Trust, &c. 
 
 tion with the executor, expressed an intention to make a settlement of part 
 of that property which was standing in his name on her daughter, and re- 
 quested the executor to instruct her solicitor to prepare such a settlement, 
 and afterwards refused to sign such settlement when prepared, it was held 
 that her intention expressed to the executor did not amount to a declaration 
 of trust, though writing was not necessary, the property heing personal. 
 
 Bayley v. Boulcot, 4 Russell, 345 ; and see G Ves. 663 ; 12 Ves. 39. 
 
 Where a debtor by a deed-poll directed, inter alia, the receiver of the 
 rents of his- estate to keep down the interest of a certain debt, Sir John 
 Leach, M. R., held that the direction did not create a trust in favour of the 
 creditor, if it was without consideration and without the privity of the 
 
 creditor. 
 Page v. Broom, 4 Russell, 6. 
 
 If a man devises 1500?. to A and B, for such uses as the testator had 
 declared to them, and by them not to be disclosed, and he discloses the 
 trust to A, who by letter discloses it to B, this shall be a trust, and the 
 letter is a good declaration thereof. 
 
 2 Vera. 106, Brooke v. Brooking ; [2 Bro. P. C. 39, O'llara v. O'Neill, S. P.] 
 
 But if a man devises 40?., to be paid to his cousin J S, and by him to 
 be disposed of in such manner as the testator should by a private note 
 acquaint him with, and he dies without having made any such appoint- 
 ment, this shall be a good bequest to J S, and shall not go to the execu- 
 tors, from whom it was intended to have been given away. 
 
 1 Chan. Cas. 198, Martin v. Douch. 
 
 A lent B 100?., and in the note which was given for it, mention was 
 made that it should be disposed of as A should direct : on a bill exhibited 
 for it, the court declared it was a depositum or trust, and decreed pay- 
 ment of it, though it was barred by the statute of limitations. 
 
 2 Vent. 345, Ld. Hollis's case. 
 
 A, in consideration of 80?., conveys an estate absolutely to B, and after- 
 wards A brings a bill to redeem, and B by answer insists that the convey- 
 ance was absolute, but confesses it was in trust ; that after the 80?. paid 
 with interest, he was to stand seised for the benefit of the wife and child- 
 ren of A, though no trust was declared in writing, and A replies to the 
 answer. It was insisted, that A having replied, and defendant having 
 made no proof of the trust, no regard ought to be had to the matter set 
 forth in avoidance of the plaintiff's demand; yet the court decreed the 
 trust for the benefit of the wife and children. 
 
 2 Vera. 288, Hampton v. Spencer ; [2 Atk. 155, Cottington v. Fletcher, S. P.] 
 
 So, if J S makes his will, and his wife executrix, and the son afterwards 
 prevails on his mother (by telling her that the executorship would be 
 troublesome to her, &c.) to get J S to make a new will, and name him 
 executor therein, he promising to be a trustee for the mother, which is 
 done accordingly; and in that will there is but a small legacy given the 
 wife, this will be decreed a trust for the wife on the point of ^ fraud, not- 
 withstanding the statutes of frauds and perjuries, which requires a decla- 
 ration of trust in writing. 
 
 1 Vera. 296, Thynn v. Thynn. [1 Roll. Abr. 378, pi. 1 ; 4 Vin. Abr. 395, pi. 3, 
 Roswell v. Every; 5 Vin. Abr. 521, pi. 31, Sellack v. Harris; Pr. Ch. 3, Davcmsh v. 
 Baines ; 2 Vera. 506, Oldham v. Litchford ; Ambl. 67, Reech v. Rennigate ; 3 Ves. 
 jun. 152, Barrow v. Greenough ; Anstr. 343, Newcomb v. Burdon. Similar decisions 
 on the ground of fraud.] {And vide, 9 Ves. J. 519.}
 
 196 USES AND TRUSTS. 
 
 (B) What amounts to a Declaration of Trust, &c. 
 
 But where one possessed of leases for years devised them to his wife, 
 
 and hoped she would leave them to his son, and died ; and her second 
 
 husband granted the leases away, and the son sued to be relieved: his 
 
 bill was dismissed, for it was no trust for the son. (a) Cited by Lord 
 
 Chancellor as a case he remembered in Lord Egerton's time. 
 
 Chan. Cas. 310, Civil v. Rich, [(a) So other cases have said, that words merely 
 of recommendation will not be sufficient to create a trust. Bland v. Bland, 24th Feb- 
 ruary, 1745 ; Le Maistre v. Bannister, 26th November, 1770, stated in Finch's note to 
 Eales v. England, Pr. Ch. 200; Cunliffe v. Cunliffe, Ambl. 626. However, notwith- 
 standing these decisions, it now seems to be settled, that words of desire, request, or 
 recommendation (for request and recommendation are considered as convertible terms) 
 are sufficient to create a trust, provided that the property be certain, and the objects 
 distinctly marked. Where any person gives property, and points out the objects, the 
 property, and the way in which it shall go, that does create a trust, unless he shows 
 clearly that his desire expressed is to be controlled by the party, and that he shall have 
 an option to defeat it. Eales v. England, Pr. Ch. 200, 2 Vern. 486 ; Glynn v. Hard- 
 ing, 1 Atk. 469 ; Vernon v. Vernon, Ambl. 4 ; Palmer v. Scribb, 8 Vin. Abr. 289, pi. 
 25, Harland v. Trigg; 1 Bro. Ch. R. 142; Nowlan v. Nelligan, Ibid. 489, Pierson v. 
 Garnett, 2 Bro. Ch. R. 38, 226 ; Richardson v. Chapman, Burn's E. L. tit. Bishop, p. 
 220; Massey v. Sherman, Ambl. 520 ; Wynne v. Hawkins, 1 Bro. Ch. R. 179 ; Malini 
 v. Keighley, 2 Ves. jun. 333 ; Barrow v. Greenough, 3 Ves. jun. 152. In Pushman 
 v. Filliter, 3 Ves. jun. 7, where a testator gave the residue of his personal estate to 
 his wife, desiring her to provide for his daughter A out of the same, as long as she, his 
 wife, should live, and at her decease to dispose of what should be left among his chil- 
 dren, in such manner as she should judge most proper; upon a bill filed by the children 
 against the wife's representative to have the benefit of this residuary bequest, the Master 
 of the Rolls said, that it is now clearly settled, that any words of recommendation by 
 any person having a right to command, do create a trust, if the person and property 
 are defined ; but the question in this case, he added, is merely a question of construc- 
 tion upon the words, " what should be left ; and those words he construed to convey 
 an absolute gift to the testator's wife of any part of his property to any use she might 
 think proper, clothed only with a trust for his daughter A.] [| And see 1 Sand, on Uses, 
 317, (4th ed.,) and cases there collected ; and tit. Legacy, (B,) Vol. vi. p. 166. || 
 
 [An estate was devised to a body corporate in trust to sell, and that the 
 money arising from the sale, and the receipt and profits till the sale, should 
 be divided between the testator's nephews and nieces. The question was, 
 Whether the devise to the corporation being void, the heir at law took 
 beneficially, or subject to the trust ? And by Eyre, B. — Although the de- 
 vise to the corporation be void at law, yet the trust is sufficiently created 
 to fasten itself upon any estate the law may raise. This is the ground on 
 which courts of equity have decreed in cases where no trustee has been 
 named. Decreed, that the heir at law is a trustee to the uses of the will. 
 
 Sonley v. Clockmaker's Company, Bro. Ch. R. 81.] 
 
 || Where a testator by a codicil required and entreated the executor 
 and residuary legatee, by will or deed, to settle and secure the sum of 
 500?., to be paid at his decease, to his relation Mrs. Elizabeth Taylor, 
 wife of Mr. Taylor, to be paid at the executor's decease, the testator de- 
 claring that he had omitted to express it in his will, not doubting that 
 the executor would comply with his request, it was held a trust by way 
 of legacy out of the assets, and not a condition imposed upon the execu- 
 tor independent of assets. 
 Taylor v. George, 2 Ves. & Bea. 378. 
 
 Where the testator gave to his wife A C 500?., and declared it was his 
 will and desire that A C might dispose of the same amongst her relations 
 as she by will might think proper, it was held a trust for the relations for 
 A C ; and the 500?. was held well bequeathed by the will of A C to her
 
 USES AND TRUSTS. 197 
 
 (B) What amounts to a Declaration of Trrtst, &c. 
 
 sister and her sister's children, though made without reference to the will 
 
 of the first testator. 
 
 Forbes v. Ball, 3 Meriv. 437 ; and see 1 Sim. & Stu. 387, and the cases under 
 Legacy, (B), Vol. vi. p. 166. j| 
 
 With respect to the raising of trusts, it has been held, that where a 
 trust is created by marriage settlement or will, or a trust of a term to raise 
 money at twenty-one or marriage, and the person dies b fore the time, a 
 court of equity will not suffer the trustee to raise the money at law. 
 MS. Hep. Fry v. Fry, in Chan. Trin. 27 G. 2. 
 
 A by his will devised his real estate to his wife for life, with remainders 
 over, and gave a legacy to his daughter, to be paid within one month after 
 the death of his wife, and charged it upon the real estate. The daughter 
 died in the life of the wife, unmarried ; and after the wife's death the repre- 
 sentative of the daughter brought his bill to have this legacy paid out of 
 the real estate. For the plaintiff it was insisted, that this was different 
 from the common case of a legacy payable out of the lands ; for here the 
 time of payment was postponed out of regard to the circumstances of the 
 fund, and not of the person. But by Lord Chancellor, — The general rule 
 is, that where a legacy or portion is given to be raised out of lands, pay- 
 able at a certain time, if the legatee or child dies before that time comes, 
 and before the time when, in the view of the testator, he could be supposed 
 to want the legacy or portion, it shall sink in the land for the benefit of the 
 heir or devisee ; and this rule has only been broke into in favour of the 
 husband or children of such legatee, &c, where she has married. But 
 that is not the present case ; and as to the argument made use of from the 
 circumstances of the fund, that is only brought as an auxiliary reason ; and 
 no case has been determined upon such circumstances alone. If it had 
 been given on a more remote contingency, as on the failure of issue of A, 
 &c, there might have been some reason to have given it to* the representa- 
 tive, as the testator might probably think the legatee could not be living at 
 such a distant period. But here it depends on the death of his wife, which 
 might happen in a reasonable time. In cases where it has been given to 
 A, his executors and administrators, it shows the intention of the testator 
 to make it transmissible : and where it has been charged by a condition, 
 or a conditional limitation, and the legatee has had a remedy at law to de- 
 feat the devise of the estate to the devisee, this court will not interpose to 
 take that remedy from him, but will leave the devisee to take the estate 
 cum onere. But in the case of a trust created by marriage settlement or 
 will, or a trust of a term to raise money at twenty-one or marriage, where 
 the person dies before, this court will not suffer the trustee to raise the mo- 
 ney at law, where there might be a remedy at law contrary to the rule of 
 this court. The testator here, in the latter part of his will, gives legacies 
 to his two daughters, and if either of them die, her share to go to the sur- 
 vivor ; this looks as if he did not intend that the representative should have 
 it even in the first bequest, and is a farther circumstance to confirm the 
 opinion given against raising the legacy out of the real estate. — Bill dis- 
 missed, but without costs. If this had been the case of a child who had 
 married, and left children, it might have been otherwise. 
 
 Fry v. Fry, in Chan. Trin. 27 Geo. 2, MS. Kep. 
 
 || If a testator expressly says he gives upon trust, and says no more, it 
 has been long established that the next of kin will take. Then, if he 
 
 r2
 
 19S USES AND TRUSTS. 
 
 (B) What amounts to a Declaration of Trust, &c. 
 
 proceeds to express the trust, but does not sufficiently express it, or 
 expresses a trust that cannot be executed, it is exactly the same as if he 
 had said he gave upon trust, and stopped there. Where a trust is clearly 
 imposed, the trustee cannot take beneficially, though the trust may be 
 too indefinite for execution. 
 
 See Morrice v. Bishop of Durham, 9 Yes. 399, 10 Ves. 537 ; Langham v. Sandford, 
 17 Ves. 435 ; Gibbs v. Rumsey, 2 Ves. & Bca. 297 ; Vesey v. Jamson, 1 Sim. & Stu. 
 69.|| 
 
 )3 The owner of a tract of land agreed to give a lot for the purpose of 
 erecting a school-house upon it by contribution, for the benefit of the 
 neighbourhood. Held that this created a trust for the purpose in those 
 who contributed. 
 
 Martin v. M'Cord, 5 Watts, 493. 
 
 Where a purchase of land was made by A, who made an agreement 
 before the purchase with B, that the latter should be equally concerned ; 
 held, that A in equity must be considered as holding for B and himself 
 as tenants in common. 
 
 Stewart v. Brown, 2 S. & R. 461. 
 
 A bequest to A of " all the residue and remainder of my estate, of what- 
 soever kind the same may be, subject to the maintenance of my son B, 
 during his natural life ;" the residue consisted of personal estate ; held, 
 to create a trust for the benefit of B, and to make A the trustee. 
 Pierce v. M'Keehan, 3 Watts & S. 280. 
 
 When partnership funds are employed by a partner in the purchase 
 of lands, and a deed is taken in his own name, a resulting trust will arise 
 as to the other partners. 
 
 Phillips v. Crammond, 2 Wash. C. C. R. 441. 
 
 Declarations of a testator, made contemporaneously with the execution 
 of his will, are sufficient evidence to establish his trust in the devisee, 
 when fraud is alleged ; and if the testator has executed his will on the 
 faith of a promise by the devisee to perform the trust, the devisee shall 
 be compelled to make it good. 
 
 Hoge v. Hoge, 1 Watts, 163, 215. 
 
 Testator directed that the profits arising from his share in a certain 
 vessel should be paid to his wife for her use and for the bringing up of 
 his two sons, and, after the lapse of a certain time, his interest in the 
 vessel should be sold ; and he then bequeathed the proceeds to his two 
 sons, and appointed his friend, A B, "guardian in trust," to receive the 
 money thus arising, and invest it on interest until his sons should come 
 of full age. Held, that A B should be considered as a trustee, and not 
 as guardian for the children. 
 Ex parte Potts, 1 Ashm. 340. 
 
 Where one directed a sum of money to be carried to a joint account 
 of herself and the plaintiff, as trustee for the plaintiff, and the bankers 
 gave her a promissory note for the amount, expressing that it was given 
 to her as trustee, and was so entered on their books, which note after 
 her death Avas received by her executors ; held, that a trust Avas com- 
 pletely declared, and that the executors were trustees of the money 
 received for the party in whose favour the trust was declared. 
 
 Wheatley v. Purr, 1 Keen, 551.
 
 USES AND TRUSTS. 199 
 
 (C) Resulting Trust, or Trust by Implication. 
 
 A trust need not be created in writing. It is sufficient if it be proved 
 
 under the hand of the party to be charged. 
 
 Second Unitarian Society v. Woodbury, 14 Maine, 281. See Jackson v. Sternbergh, 
 1 Johns. Cas. 153 ; Whelan v. Whelan, 3 Cowen, 537. 
 
 The holder of a note endorsed to him as secm*ity for a debt, recovered 
 judgment against the promisor, and levied on the rents and profits of his 
 land, for a term of years, signed a writing not under seal, promising to pay 
 to the plaintiff all the rents he should receive after his debt should be paid, 
 or allow the plaintiff the use and improvement of the land after such pay- 
 ment. Held that this constituted a sufficient declaration of trust. 
 Arms v. Ashley, 4 Pick. 71. 
 
 Where the owner of certain real estate gave a bond to secure the same 
 to another, who entered thereon and received the rents and profits of the 
 same : held, that this created a trust, or a sufficient declaration by the 
 obligor that he held the estate in trust for the obligee. 
 
 Orleans v. Chatham, 2 Pick. 29. 
 
 Where two persons, A and B, sold personal property with the assent 
 of its owner ; took bonds in their own names from the purchasers ; col- 
 lected part of the money ; proffered themselves ready to account for such 
 sales ; made a return thereof as trustees : a court of equity will infer 
 some conventional arrangement between the parties, in the nature of a 
 trust, which may be enforced in that court. 
 Ringgold v. Ringgold, 1 Har. & Gill, 11. 
 
 A deed of assignment of goods, which does not identify them, and re- 
 fers only to a non-existing schedule, for a description of them, is invalid 
 as a conveyance ; but such a deed, containing a declaration of the trust, 
 under which the goods were intended to be assigned, may be effectual to 
 declare the trust. 
 
 Drakely v. Deforest, 3 Conn. 272. 
 
 A trust estate in real property, as separate from legal ownership, may 
 be created by an express declaration of trust, or raised upon certain facts 
 by implication of law. 
 
 Elliott v. Armstrong, 2 Blackf. 198. £f 
 
 (C) What shall be deemed a resulting Trust, or Trust by Implication. 
 
 It has been shown under the last head, that by the statute against 
 frauds and perjuries, the 29 Car. 2, c. 3, all declarations of trusts were 
 to be made in writing ; but there is a saving in the act with regard to 
 trusts resulting by implication of law, which are left on the footing where- 
 on they stood before the act ; now a bare declaration by parol before the 
 act, would prevent any resulting trust. Arg. and the court seemed to 
 be of that opinion. 
 
 2 Vern. 294, pi. 285, Lady Bellasis v. Compton and Frankland. [That parol evi- 
 dence is admissible to rebut a resulting use is fully established by the case of Lord 
 Altham v. Earl of Anglesea, 2 Salk. 676 ; Dougl. 26.] || Finch v. Finch, 15 Ves. 43 ; 
 Bartlett v. Pickersgill, 1 Eden R. 515. || 
 
 It was likewise ruled by Lord Chan. Cowper, that the statute of frauds, 
 § 8, which says, " that all conveyances where trusts and confidences shall 
 arise or result by implication of law, shall be as if that act had never 
 been," must relate to trusts and equitable interests, and cannot relate to 
 a use which is a legal estate. 
 
 1 P. Wins. 112, Lamplugh v. Lamplugh. 
 
 If a man purchases lands in another's name, and pays the money, it
 
 200 USES AND TRUSTS. 
 
 (C) Resulting Trust, or Trust by Implication, 
 
 ■will be a trust for him that paid the money, though there be no deed 
 made declaring the trust thereof; for the statute of frauds and perjuries 
 extends not to trusts raised by operation of law. 
 
 2 Vent. 361, Anon. ; 1 Vera. 366, S. P. Gascoigne v. Thwyng. Admitted ; but 
 there said, "that the proof must be clear that he paid the purchase-money." j| Finch 
 v. Finch, 15 Yes. 43; Mackreth v. Symmons, Ibid. 350 ;j| /3Jaekman v. Ringland, 
 4 Watts & Serg. 257 ; Doyle v. Sleeper, 1 Dana, 536; Letcher v. Letcher's heirs, 4 
 J. J. Marsh. 592; Perry v. Head, 1 A. K. Marsh. 47; M'Guire v. M'Gowen, 4 
 Desaus. 491 ; Elliott v. Armstrong, 2 Blackf. 198 ; Jenison v. Graves, 2 Elackf. 440 ; 
 Forsyth v. Clark, 3 Wend. 637 ; Jackson v. Bateman, 2 Wend. 270 ; Jackson d. Fel- 
 ler v. Feller, 2 Wend. 265 ; Jackson v. Matsdorff, 11 Johns. 91 ; Jackson d. Kane v. 
 .Sternbergh, 1 Johns. Cas. 153 ; S. C. 1 Johns. 45, n. ; Jackson v. Mills, 13 Johns. 
 463 ; Jackson v. Morse, 16 Johns. 197 ;£f {10 Ves. J. 360, Rider v. Kidder ; 1 Johns. 
 Ca. 153, Jackson v. Sternbergh; 1 Johns. Rep. 45, n. S. C. ; 3 Johns. Rep. 216, 
 Foote v. Coldin.} 
 
 || In order to raise a trust of this kind, the fact of the ownership of the 
 money should appear on the face of the deed, either by a recital, or by ex- 
 pressions which amount to a necessary implication or presumptive proof 
 of it. (a) If, however, it be expressly stated in the conveyance that the 
 money was paid by the nominal purchaser, and nothing shall appear to 
 explain the nature of the transaction, then if in his lifetime such nominal 
 purchaser shall by any note or memorandum, in writing,(6) or by his an- 
 swer to a bill filed against him for a recovery thereof, (though he shall at 
 the same time plead the statute of fraud.s,)(<?) confess the purpose for which 
 the purchase was made ; or if, after his death, he shall leave any papers 
 disclosing the real circumstances of the case,(cZ) in all these cases the court 
 will raise the trust, even against the express declaration of the deed. 
 
 (a) 2 Vern. 168 ; Prec. Ch. 104 ; Kirk v. Webb, Ibid. 84 ; Denton v. Davis, 18 Ves. 
 499. {b) Bellamy v. Burrow, Ca. temp. Talb. 97 ; O'Hara v. O'Neil, 2 Eq. Ca. Abr. 
 745 ; Vin. tit. Trust, (E). (c) Cottington v. Fletcher, 2 Atk. 155 ; sed vide 4 Ves. 23. 
 {d) Ryall v. Ryall, Ambr. 413 ; Lane v. Dighton, Ibid. 409. 
 
 If, indeed, upon a bill filed against him for a discovery, the nominal 
 purchaser deny the facts by his answer, and insist upon the statute of 
 frauds, it should seem that parol proof cannot be admitted to prove the 
 trust. 
 
 Skett v. Whitmore, 2 Freem. 352; Newton y. Preston, Prec. Ch. 103; Willis v. 
 Willis, 2 Atk. 71 ; Cooth v. Jackson, 4 Ves. 12 ; Rowe v. Teed, 15 Ves. 374 ; Evans 
 v. Harris, 2 Ves. & Bea. 361 ; Haines v. O'Conner, 10 Watts, 313. £f 
 
 No rule is more certain than that if a man makes a conveyance in trust 
 for such persons and such estates as he shall appoint, and makes no ap- 
 pointment, the resulting trust must be to him and his heirs. The trust 
 in equity must follow the rules of law in the case of a use, and that it 
 would be so in the case of a use is undoubtedly true ; and that was Sir 
 Edward Cleer's case in 6 Rep. per Lord Chancellor. 
 
 Fitz. Gibb. 223, Fitzgerald v. Lord Fauconbridge ; {10 Ves. J. 527, 537.} f| Where 
 a tenant for life of a college lease, having a power of appointment, renewed it in his 
 own name, and his appointee died in his lifetime, it was held a resulting trust for the 
 representative of the author of the power. 1 Ball. &■ Be. 45. || 
 
 But trusts arising by operation of law have been but of two kinds, (first) 
 either where the conveyance has been taken in the name of one man, and 
 the purchase-money paid by another ; or, (secondly,) where the owner of 
 an estate has made a voluntary conveyance of it, and made a declaration 
 of the trust with regard to one part of the estate, and has been silent 
 with regard to the other ! 1 } part of it.(e) Per Lord Chancellor. 
 
 Barnard. Rep. in Cane. 388, Lloyd v. Spillit. The reason why the court has al-
 
 USES AND TRUSTS. 201 
 
 (C) Kesulting Trust, or Trust by Implication. 
 
 lowed a trust by operation of law to arise in the latter case, has been, that the pi 
 by declaring part of the trust to be for another, and by saying nothing, with regard to 
 the other part of it, shows his intention to be, that the other was to have only one pair 
 of the trust; and consequently he himself ought to have the benefit of the other part 
 of it. These have beon the only two instances of trust allowed of, to arise by opera- 
 tion of law, since the statute of frauds, unless there has been a plain or express fraud. 
 Where there has been a fraud, in gaining a conveyance from another, that may be a 
 reason for making a grantee in that conveyance to be considered merely as a tru 
 Per Lord Chancellor, Ibid. { x } 2 Binn. 387, Lessee of Huston v. Hamilton.} [(e) We 
 cannot help suspecting the fidelity of the reporter in this passage, as the Chancellor i< 
 not made to deliver himself with his usual precision and accuracy. For there certainly 
 have been other cases, besides those which are here put by my Lord Ilardwicke, 
 wherein constructive trusts have been admitted. For instance, where there were three- 
 lessees under a church, and one of them surrendered the old lease, and took a new one 
 in his own name, it was holden to be a resulting trust for them all. Palmer v. Young, 
 1 Vern. 27G. || Whether the principle extends to the purchase of the reversion expect- 
 ant on the lease, see Randall v. Russell, 3 Meriv. 190 ; Hardman v. Johnson, Ibid. 
 347. The rule has been adopted by the legislature in several statutes relating to the 
 redemption and purchase of land-tax. 39 G. 3, c. 108, \ 8 ; 42 G. 3, c. 116. || So, if a 
 guardian or trustee for an infant renew a lease, the renewed lease will be to the use 
 of the infant, Whalley v. Whalley, 1 Vern. 484; Lee v. Vernon, 7 Bro. P. C. 432 ; 
 | See title Leases, U. } || Or to the trust of the old lease, whatever it may be. Holt v. 
 Holt, 1 Chan. Ca. 191 ; Pierson v. Shore, 1 Atk. 480 ; Abney v. Miller, 2 Atk. 597 ; 
 Edwards v. Lewis, 3 Atk. 538 ; Featherstonhaugh v. Fenwick, 17 Ves. 228 ; Brook- 
 man v. Hales, 2 Ves. &Bea. 45 ; Milner v. Harewood, 18 Ves. 259, 274. But if there 
 be a guardian or trustee for an infant, to whom lands are descended or devised, but 
 the title is really in a third person, and the trustee or guardian buy in the title of the 
 third person, this shall not be a trust for the infant. Lesley's case, 2 Freem. 52 ; and 
 see 1 Scho. & Lef. 123. || So, if a trustee purchase lands with his trust-money, and 
 take the conveyance in his own name without declaring the trust ; but reciting or 
 otherwise admitting that the purchase was made with the profits of the trust estate, a 
 trust will result for the person entitled to the profits. Deg v. Deg, 2 P. Wms. 414. 
 || See Perry v. Phillips, 4 Ves. 108 ; 17 Ves. 173. So, if two persons make a joint pur- 
 chase in the name of one, it is a resulting trust for the other. Wray v. Steele, 2 Ves. 
 & Bea. 388; Anon., 2 Vent. 361. || So, if a mortgagee, whose mortgage was taken 
 in the name of a trustee, buys in the equity of redemption, in the name of the same 
 trustee, without any declaration of the trust, yet there is a good resulting trust to the 
 mortgagee. Acherley v. Acherley, 4 Bro. P. C. 67. So, if a term is created to pay 
 debts, or devised for a specific purpose, after the debts paid, or purpose answered, 
 there is a trust for the heir. Countess of Bristol v. Hungerford, 2 Vern. 645 ; Levet 
 v. Needham, Ibid. 138. So, a grant of the next avoidance of a church to a person, 
 without his privity, is a resulting trust for the grantor. Duke of Norfolk v. Brown, 
 Pr. Ch. 80 ; 1 Eq. Ca. Abr. 381, pi. 4, S. C. Nor is there a resulting trust only in 
 those cases where part of the estate only is disposed of or conveyed ; for though the 
 whole estate be conveyed, yet if it be for particular purposes, or on particular trusts, 
 which by accident or otherwise cannot take effect, a trust will result ; as, where a 
 testator devises real estates to trustees to sell and convert into personalty for particular 
 purposes specified in the will, and those purposes cannot be effectuated, the real 
 estates, or the produce thereof, will in such case result to the heir. Cruse v. Barley, 
 3 P. Wms. 20; Randall v. Bookey, Pr. Ch. 162; Emblyn v. Freeman, Ibid. 541; 
 Stonehouse v. Evelyn, 3 P. Wms. 252 ; Arnold v. Chapman, 1 Ves. 108 ; Digby v. 
 Legard, Tr. 1774, reported in the note in 3 Cox's P. Wms. 22 ; Akerovd v. Smithson, 
 Ibid, and 1 Bro. Ch. R. 503 ; Robinson v. Taylor, 2 Bro. Ch. R. 589 ; Spink v. Lewis, 
 3 Bro. Ch. R. 355 ; sed vide Ogle v. Ogle, 1 Bro. Ch. R. 501. Neither is it universally 
 true, as is observed by Mr. Fonblanque, (2 Eq. Tr. 122, note,) that what is not con- 
 veyed will result ; as, where the grantor limits an estate for years to himself, and an 
 estate to another, by way of use, upon a contingency which may not happen within 
 the term of years, an estate of freehold will not result to the grantor. Adams v. Savage, 
 2 Salk. 079, et suprd.] 
 
 Where it plainly appeared upon the evidence of both sides, that the 
 consideration-money paid on a purchase was the proper money of A, 
 (though mentioned in the conveyance to be paid by B ;) in such case, had 
 
 Vol. X.— 26
 
 5202 USES AND TRUSTS. 
 
 (C) Resulting Trust, or Trust by Implication. 
 
 it not been for the statute of frauds, this would have been made a result- 
 ing trust ; and B after A's death executing a declaration of trust, this 
 plainly took it out of the statute. Per Lord Chancellor Cowper. 
 
 I P. Wms. 323, Ambrose v. Ambrose. {But see 3 Johns. Rep. 21G, Foote v. Col- 
 vin, that the trust may be proved by parol. { 
 
 Wherever there is a consideration there can be no resulting trust. 
 But if a lease be made for years without a consideration, there will be a 
 resulting trust to the lessor. (a) 
 
 [(a) Rut it should seem, that there can be no implied trust between a lessor and 
 lessee ; because every lessee is a purchaser by his contract and his covenants, which 
 excludes all possibility of implying a trust for the lessor ; and therefore in that case, 
 if there be any trust at all, it must be declared in writing. Pilkington v. Bayley, 
 7 Rro. P. C. 526. Rut between an assignor and an assignee there may be an implied 
 trust. Hutchins v. Lee, 1 Atk. 447.] || Where a term of years was created, and no 
 trust of it declared, but the estate devised to tenants for life with remainder over, the 
 court decided that there was no resulting trust of the term, but that it attended the 
 inheritance. Sidney v. Miller, Coop. Chan. Ca. 206. || 
 
 Where a daughter's portion was charged upon the father's land, she, at 
 the request of her father, had released her interest in the land, to the intent 
 that he might be enabled to make a clear settlement thereof upon his son. 
 It was declared by the Lord Keeper, that if this was done by the daughter 
 without any consideration, there would be a resulting trust in the father, 
 whereby he should be chargeable to the daughter for so much money. 
 
 Freem. 305, Lady Tyrrell's case. 
 
 But where a trustee purchases lands out of the profits of the trust- 
 estate, and takes the conveyance in his own name ; though probably, if 
 he cannot make other satisfaction for the misapplication, these lands may 
 be sequestered, yet they cannot be decreed to be a trust for cestui que 
 trust, any more than if A borrows money of B, and purchases land with 
 it, (b) those lands are no trust for B, for it is not a trust in writing ; and 
 a resulting trust it cannot be, because that would be to contradict the 
 deed, by parol proof, directly against the statute of frauds. But if this 
 purchase had been recited to have been made with the profits of the trust- 
 estate, this appearing in writing might ground a resulting trust. On 
 appeal to the House of Lords, this decree was affirmed. 
 
 Ch. Prec. 84, pi. 77, Kirk v. Webb; [Show. P. C. 83. {Vide 2 Dick. 593, Wilson 
 v. Foreman, and the remarks on it in 10 Ves. J. 519. Also 8 Ves. J. 46, Lord Ched- 
 worth v. Edwards. } (b) The result of the different cases upon this point is well 
 stated by Mr. Sanders in his edition of Atkyn's Reports, 2 vol. 150, note (2) ; || and see 
 1 Sand, on Uses, 322, (4th edit.) || [If the consideration-money is expressed in the deed 
 to be paid by the person in whose favour the conveyance is taken, and nothing appears 
 in such conveyance to create a presumption that the purchase-money belonged to an- 
 other, parol proof cannot be admitted after the death of the nominal purchaser to prove 
 a resulting trust; for that would bo contrary to the Statute of Frauds and Perjuries. 
 See the principal case; Walter uV ('hirton's case, Pr. Ch. 88; Heron v. Heron, Ibid. 
 163 ; Newton v. Preston, Ibid. 103 ; Gascoigne v. Thwyng, 1 Vern. 366 ; Hooper v. 
 Eyles, 2 Vern. 480 ; Crop v. Norton, 2 Atk. 75.] || Rut it seems now settled other- 
 wise. _ See Lench v. Lench, 10 Ves, jun. 511 ; Sugd. Vend. 598 ; Sand, on Uses, 325. || 
 [But if the nominal purchaser in his lifetime gives a declaration of, or confesses the 
 trust, that takes it out of the statute. Ambrose v. Ambrose, 1 P. Wms. 322; Ryal v. 
 Ryal, 1 Atk. 59. In Lane v. Dighton, Amid. 409, there was evidence, in Mr. Digh- 
 ton's own handwriting, that ///'■ trust stocks had been sold, and the money laid out from 
 time to time in the purchase of land.'] || See Liebman v. Harcourt, 2 Meriv. 513. || [So, 
 if it appears on the face of the conveyance (whether by recital or otherwise) that the 
 purchase was made with money of a third person, that will create a trust in his 
 favour. As in the principal case, Deg. v. Deg, 2 P. Wins. 414 ; Ryal v. Ryal, ubi 
 supra; Young v. Peachy, 2 Atk. 257.]
 
 USES AND TRUSTS. 203 
 
 (C) Resulting Trust, or Trust by Implication. 
 
 So, where a testator empowered the executor to lay out the 'personal estate 
 in land, and settle it on A and his heirs ; and the executor being about to 
 purchase, told A's mother of it, and asked her consent, but took the con- 
 veyance in his own name, and no trust in writing was declared; but it 
 was proved that he at several times declared it must be sold to make A 
 satisfaction ; yet the court (though inclined to decree a conveyance to A. 
 the executor being dead insolvent) declared it could not, because there 
 was no express proof of the application of the trust money. 
 Ch. Prec. 168, pi. 139, Halcot v. Markant. 
 
 {R. Sowden by marriage settlement covenanted to pay money to trus- 
 tees to be laid out in the purchase of lands. He did not pay the money, 
 but purchased, at a price but little above the amount of it, a freehold estate, 
 which was conveyed to him and his heirs. And Lord Kenyon decreed 
 that it should be subject to the trust, and said he conceived the principle 
 established to be, that where a man is bound I 1 } to do an act, and he does 
 what mav enable him to do the act, it shall be taken to have been done 
 by him with the view of doing that which he was bound to do. 
 
 1 Bro. C. C. 582, Sowden v. Sowden ; C. T. T. 80, Lechmere v. Lechmere, S. P. ; 
 3 P. Will. 211, S. C. {i{ See 4 Ves. J. 108, Perry v. Phelps ; 10 Yes. J. 510, Lench 
 v. Lench.} 
 
 [It is a general rule, that where lands are devised for a particular pur- 
 pose, what remains after such purpose is satisfied shall result to the heir 
 at law of the testator. Thus if lands are devised to executors for payment 
 of debts and legacies, after payment of debts and legacies, the executors 
 will be trustees, as to the surplus, for the heir at law ; (a) though the ex- 
 ecutors have no legacy, and the heir at law has an express one. (b) 
 
 (a) Hobart v. Countess of Suffolk, 2 Vern. 645. (6) Starkey v. Brooke, 1 P. Wms. 
 390. || See Stanley v. Stanley, 16 Ves. 491 ; Chambers v. Brailsfurd, 18 Ves. 368 ; 
 2 Meriv. 25 ; Stansfield v. Habergham, 10 Ves. 273 ; 1 Sand, on Uses, c. 3, \ 7. || 
 
 So where A devised lands to trustees to sell, and to dispose of the 
 money as he should appoint, and for want of appointment to his four 
 nephews, A appointed several sums to be paid to different persons, which 
 sums did not amount to the value of the land, it was holden that the sur- 
 plus resulted to the heir. 
 
 City of London v. Garway, 2 Vern. 571. 
 
 So where A devised to his wife a rent-charge for thirteen years for 
 payment of debts, and devised lands to his wife in augmentation of her 
 jointure, it was holden that the surplus of the rent-charge, after the 
 debts were paid, resulted to the heir. 
 Wych v. Packington, 11 Br. P. C. 372. 
 
 So, where a rent-charge was devised to be sold for payment of legacies 
 to the amount of 800?. ; but if the rent-charge sold for 1000?., then an 
 additional legacy of 100?. was given to B, and another of 100?. was given 
 to C, it was holden, that if the rent-charge sold for above 800?. and less 
 than 1000?., the residue, above 800?., would result to the heir at law, and 
 not be divided between B and C. 
 
 Stonehouse v. Evelyn, 2 P. AVms. 253. 
 
 So, where A devised her real and personal estates to trustees in trust, to 
 sell and pay debts, and to pay the residue to five persons, to be equally 
 divided between them, share and share alike, (which words in a will create 
 a tenancy in common, 1 P. Wms. 700, 2 P. Wms. 282 ;) and one of the re-
 
 204 USES AND TRUSTS. 
 
 (C) Resulting Trust, or Trust by Implication. 
 
 siduary legatees died in the lifetime of the testatrix, the court held that this 
 was a resulting trust (as to the share in the real estate of the residuary lega- 
 tee, who died in the testatrix's lifetime) for the benefit of the heir at law. 
 And upon a similar bequest of personal estate, it seems the share of the 
 legatee so dying would go according to the statute of distributions. 
 
 Digby v. Legard, 3 Cox's P. Wms. 22 ; Akerold v. Srnithson, Ibid. S. P. ; Sand, on 
 Uses, 245 ; 1 P. Wms. 700 ; 2 P. Wms. 532. 
 
 So, where lands were devised to be sold, and part of the money arising 
 by the sale was given to charitable uses, and the residue of the money was 
 given over, it was holden that the part given in mortmain should result 
 to the heir at law, and not go to the residuary legatees. 
 
 Gravenor v. Hallum, Ambl. 643 ; ||Gibbs v. Rumsey, 2 Ves. & Bea. 294. || 
 
 So, where a testator gave a legacy to his executors by name, and then 
 devised his copyhold to A, he paying his executors 1000/., and after 
 payment of debts and legacies, gave the residue to a charity, it was 
 holden that the 1000/., being a charge on the real estate, and not well 
 disposed of by reason of the mortmain act, the heir at law was entitled 
 to it by way of resulting trust. 
 
 Arnold v. Chapman, 1 Ves. 108. 
 
 So, where the testator directed the rest and residue of his real and per- 
 sonal estates to be sold by trustees, and thereout to pay annuities and lega- 
 cies, and then to pay the surplus to A B for her life ; upon the death of A 
 B it was holden, that so much of the surplus as arose from the real estate 
 was a resulting trust for the heir at law, and the rest for the next of kin. 
 
 Robinson v. Taylor, 2 Bro. Ch. R. 589 ; {11 Ves. J. 87, Berry v. Usher, S. P.} 
 
 So, where a testatrix, having an estate which came to her ex parte ma- 
 ternti, on her marriage conveyed the same to trustees to such uses as she 
 should direct, with remainder to her own right heirs ; and afterwards by 
 will directed the estate to be sold, the money to be paid out of the funds, 
 and the trustees to permit the husband to receive the interest for his life ; 
 and then, after deducting 3500?. to certain uses which vested in C D, and 
 after paying 1000/. to A B, to pay the residue to three persons ; and by a 
 codicil gave her husband a power of appointing the 3500/. in case C D 
 should many without his consent; A B died in the testatrix's lifetime be- 
 fore the codicil made, but the testatrix took no notice thereof in the codicil ; 
 it was holden, that the 1000/. were to be considered as real and not personal 
 estate, and resulted to the heir at law of the testatrix ex parte maternd. 
 
 Ilutcheson v. Hammond, 3 Bro. Ch. R. 128. 
 
 So, where a testator directed real estate to be sold, and the money arising 
 from the sale to be invested in the funds, and then ordered the residue 
 of his personal estate to be laid out in the funds, to remain there for ten 
 years, and at the end thereof gave the same to his next of kin ; the Chan- 
 cellor held, that the next of kin in that case must mean next of kin at 
 the time of the death ; and the testator having but one brother who fell 
 within that description, and he having died within the ten years, the 
 legacy was lapsed, and so much as was produced by the real estate must 
 revert to the heir at law of the testator, and so much as was personalty 
 to the representatives of the brother. 
 
 Spink v. Lewis, 3 Br. Ch. R. 355. 
 
 So, where a testator devised his real and personal estate to his executor
 
 USES AND TRUSTS. 205 
 
 (C) Resulting Trust, or Trust by Implication. 
 
 in trust to pay debts and legacies, and afterwards gave the rest and re- 
 sidue to the executor, but declared, that the only purpose for which he 
 devised his real estate was, that he might subject it to his debts ; it was 
 holden, that so much of the real estate as was not applied to the debts 
 should go to the heir. 
 
 Halliday v. Hudson, 3 Ves. jun. 210. 
 
 || So where B, Earl of Harborough, devised all his manors, advowsons, 
 &C, to trustees to pay to the succeeding earl 1000Z. per annum for life, 
 and directed that the surplus rents during the life of the earl (annuitant) 
 should be laid out in the purchase of lands, to be settled to such uses as the 
 testator's other lands stood settled after the death of the said earl ; and after 
 the demise of the annuitant the trustees were to stand seised to the use of 
 the first and second sons of the earl in tail successively with remainder 
 over, the question was, Who was to present to the advowsons during the 
 life of the annuitant ? The Lord Chancellor determined that the trustees 
 had no pretence of right, and that the right of presentation not being dis- 
 posed of during the life of the earl (annuitant) resulted to the heir. 
 
 Sherrard v. Ld. Harborough, Anibl. 165 ; and sec Townsend v. Bishop of Norwich, 
 1821, 1 Sand, on Uses, 330. And as to cases of resulting trusts, see Wright v. 
 Wright, 16 Ves. 188 ; Nash v. Smith, 17 Ves. 29 ; Williams v. Coade, 10 Ves. 500 ; 
 Hill v. Cock, 1 Ves. & Bea. 173 ; Maugham v. Mason, Ibid. 410; Hooper v. Goodwin, 
 18 Ves. 156.11 - 
 
 But this rule, that where lands are devised for a particular purpose, 
 after the purpose satisfied, there is a resulting trust for the heir at law, 
 admits of several exceptions. Thus, Lord Hardwicke said, if J S de- 
 vised lands to A to sell them to B for the particular advantage of B, 
 that advantage is the only purpose to be served according to the intent 
 of the testator, and to be satisfied by the mere act of selling, let the 
 money go where it would ; and that there was no precedent of a result- 
 ing trust in such a case. So, if A devised lands to J S to sell to the 
 best price to B, or to lease for three years at such a fine, there could be 
 no resulting trust to the heir of the testator. 
 
 1 Atk. 619. 
 
 Again, a testator devised to trustees to sell, and to dispose of the money 
 arising by the sale, as they, or the major part of them, should think pro- 
 per ; he having previously intimated an intention of giving the money to 
 charitable uses. Here the heir at law can have no resulting trust ; for a 
 man empowering others to sell may disinherit his heir, as well as by his 
 own actual disposition. Nor can his trustees have any beneficial inte- 
 rest ; for his giving his estates to persons whom he names trustees to such 
 purposes as they, or the major part of them, shall judge fit, plainly shows 
 he intended them no benefit, but only an authority. 
 
 Cook v. Duckenfield, 2 Atk. 562. 
 
 So, a testator devised to his cousin T M, by name, all his messuage, 
 &c., in trust to sell for the payment of all his debts and legacies within 
 a year after his death, and made him executor, but gave him no legacy, 
 though he was as nearly related to him as his heir at law. It was holden 
 by two Lords Commissioners against one, that there should be no result- 
 ing trust ; for then the executor, who was taken notice of as his cousin, 
 would have nothing but his labour for his pains. 
 
 Coningham v. Mellish, Pr. Ch. 31; 1 Eq. Co. Abr. 273, S. C. ||See Dawson v. 
 Clark, 15 Ves. 409. || 
 
 S
 
 206 USES AND TRUSTS. 
 
 (C) Resulting Trust, or Trust by Implication. 
 
 . So, a testator by his will made his dearly beloved wife sole heiress and 
 executrix of all his real and personal estate, to sell and dispose thereof 
 at her pleasure, and to pay his debts and legacies, and gave his brother 
 (who was his next of kin and heir) five pounds. It was decreed, that the 
 testator's wife was entitled to the premises devised for her own benefit, 
 and that there was no resulting trust to the heir at law of the testator : 
 that the devise, that the wife should be sole heiress of the real estate, 
 did in every respect place her in the stead of the heir, and not as a trustee 
 for him : that it was the plainer by reason of the language of tenderness 
 and affection, his dearly beloved wife, which must intend to her something 
 beneficial, and not what would be a trouble only : and what made it still 
 stronger was, that the heir was not forgotten, but had a legacy of 5?. 
 left him. 
 
 Rogers v. Rogers, 3 P. Wins. 193 
 
 So, a testator devised his real estate to his sister in trust, tosell, and 
 with the produce of the sale to pay his debts and certain pecuniary lega- 
 cies ; and after payment of his debts and legacies, gave her the residue 
 of his personal estate. Lord Talbot held, that there was no resulting 
 trust for the heir ; and that the sister should have the whole residue, 
 after the sale of the estate, both of the money arising by the sale, and 
 of the personal estate. 
 
 Mallabar v. Mallabar, Ca. temp. Talb. 78. 
 
 A testator devised the advowson of a church to his mother-in-law, 
 willing and desiring her to sell and dispose of the same to Eaton College, 
 and on their refusal, to Trinity College in Oxford ; and on the refusal of 
 both those Societies, to any of the Colleges in Oxford or Cambridge. It 
 was decreed, that there was in this case no resulting trust to the heirs at 
 law of the testator, but a devise of the beneficial interest to the testator's 
 mother-in-law, with an injunction to sell to particular societies. 
 
 Hill v. Bishop of London, 1 Atk. 018. || See the cases collected in Mr. Sanders's 
 note ; and see 1 Sand, on Uses and Trusts, 333, (4th edit.)|| 
 
 A by his will gave all his real estate to trustees to sell and dispose of 
 the whole, with his personal estate, for payment of his debts, legacies, 
 and performance of his will ; and gave several legacies, and, among the 
 rest, 1200/. to be applied to charitable uses within the mortmain act ; 
 and then directed the trustees to place out all the residue of his estate 
 and interest therein upon securities, and divide among several persons. 
 The whole of the 1200/. being a void devise, the question was, Whether 
 it should go to the heir at law, or to the residuary legatees ? Lord Hard- 
 wicke was of opinion, that the money which should arise by sale of the 
 real estate, was turned into personal by the testator, and so intended ; 
 and therefore the heir at law had no claim to it. 
 
 Durour v. Motteux, 1 Ves. 320. 
 
 A devise was in trust, among other things, to pay 4?. a year, arising 
 out of real estate, to a charity. This charge being void by the statute 
 of mortmain, it was holden that it did not go to the heir at law, but sunk 
 for the benefit of the specific devise, as arising out of his estate. 
 
 Wright v. Row, 1 Bro. Cli. R. 01 ; {4 Ves. J. 811, Kennell v. Abbott; 12 Ves. J. 
 497, Baker v. Hall, ace. j 
 
 A devised freehold estates to trustees in trust by rents and profits, or by 
 sale or mortgage, to pay debts and legacies which his personal estate should
 
 USES AND TRUSTS. 207 
 
 (C) Resulting Trust, or Trust by Implication. 
 
 not be sufficient to discharge, and subject thereto, in case T B should 
 attain twenty-one, in trust for him and his heirs. It was contended, that 
 the surplus profits of the estates, after payment of the annuities left by 
 the will and the interest of the debts, were undisposed of until T B should 
 attain twenty-one; and consequently, the heir at law was entitled to 
 them. But the court held this a complete devise to the trustees until T 
 B should attain twenty-one ; and that the surplus profits, after the lega- 
 cies, annuities, and interest of debts paid, should be applied to sink the 
 principal of the debts. 
 
 Pophaui v. Lady Aylesbury, Ambl. 68.] 
 
 { The vendor of lands, even after he has completed the title to the vendee, 
 has an equitable lien on the land for the purchase-money which remains 
 unpaid, though there is no special agreement to that effect. A bargain and 
 sale must be for money paid, otherwise it is in trust for the bargainor. If 
 an estate is sold, and no part of the money paid, the vendee is a trustee ; 
 and if part be paid, he is a trustee, as to that which is unpaid. _ This lien 
 is good, not only against the vendee himself, but also against his heirs, or 
 any claiming under him as purchaser with notice of the equity. And if 
 the vendee becomes a bankrupt, his assignees take the land subject to the 
 lien, even though they have no notice of it ; for they take the land only as 
 the bankrupt himself held it. The lien, however, will not exist, if it ap- 
 pears to have been the intention of the parties that there should be none! 1 }. 
 As where the vendor takes a mortgage on the land for part, and a note 
 for the residue ; or where he takes a pledge of distinct property, as of 
 stock, or a mortgage upon other land : for these circumstances show that 
 the parties intended there should be no security, or that other property 
 should be substituted as the security in the place of the land itself. 
 
 1 Vern. 267, Chapman v. Tanner; 3 Atk. 272, Pollexfen v. Moore: 9 Mod. 153, 
 Charles v. Andrews ; 2 Ves. 622, Walker v. Preswick ; 2 Dick. 730, Smith v. Ilib- 
 bard; 1 Bro. C. C. 301, Cator v. Bolingbroke ; Ibid. 420, Blackburn v. Gregson : 
 6 Ves. J. 475, Austen v. Halsey ; 9 Ves. J. 209, Trimmer v. Bayne ; 3 Bos. & Pul. 
 183, Elliott v. Edwards ; 2 Wash. 141, Cole v. Scott, }i} 2 Vern. 281, Bond v. Kent ; 
 6 Ves. J. 752, Nairn v. Prowse. In Fawell v. Heelis, Ambl. 724, Lord Bathurst held 
 that a vendor who executed a deed and took a bond for the purchase-money had no 
 lien. Sed qucere; and see the cases above referred to, and 2 Eq. Abr. 682, n., tiil- 
 bons v. Baddall ; Sugden, 353 — 357.} 
 
 || So, where a testatrix devised all her real estate to her cousins, M A 
 and A J, their heirs and assigns for ever, subject nevertheless to and 
 chargeable with the payment of several annuities, all of which annuities 
 she directed to be paid quarterly ; and she charged her real estate with 
 the payment thereof; and she gave her personal estate to R A, E B, and 
 Gr A, their executors and administrators, subject to and chargeable with 
 the payment of her just debts and legacies, thereinafter mentioned ; and 
 gave the surplus rents of her estates to several persons, for their lives 
 only ; Lord Chancellor Eldon held, that on the intention to be collected 
 from the whole context of the will, this was a beneficial devise _ to- M A 
 and A J in fee, subject to the charges, and not a resulting trust in favour 
 of the heir, as to the surplus beyond the charges. His lordship said that 
 the principles applicable to the case were very well settled. He adopted 
 those of Hill v. The Bishop of London, as affording the grounds on which 
 Lord Hardwicke proceeded ; " but I will point out the nicety of distinc- 
 tion, as it appears to me, upon which this court has gone. If I give to 
 A and his heirs all my real estate, charged with my debts, that is a de-
 
 208 USES AND TRUSTS. 
 
 (C) Resulting Trust, or Trust by Implication. 
 
 vise to him for a particular purpose, but not for that purpose only. If 
 
 the devise is upon trust to pay my debts, that is a devise for a particular 
 
 purpose, and nothing more ; and the effect of these two modes admits 
 
 just this difference : the former is a devise of an estate of inheritance 
 
 , for the purpose of giving the devisee the beneficial interest, subject to a 
 
 particular purpose ; the latter is a devise for a particular purpose, with 
 
 no intention to give him any beneficial interest." 
 
 King v. Dennison, 1 Ves. & Bea. 273. See Southouse v. Bate, 2 Ves. & B. 396, 
 where the words of the will were held to give a resulting trust. 
 
 So, where there was a bequest of the residue of moneys, arising out 
 of the sale of a real estate, and the residue of personal estate, unto trus- 
 tees and executors, to be disposed of unto such persons and in such man- 
 ner as they in their discretion should think proper, it was held that they 
 had an absolute interest, and not a trust. 
 
 Gibbs v. Rumsey, 2 Ves. & Bea. 294 ; and see on this subject the cases of Attorney- 
 General v. Wansey, 15 Ves. 231 : Dawson v. Clarke, Ibid. 409 ; Wright v. Wright, 
 ,16 Ves. 188 ; Nash v. Smith, 17 Ves. 29; Sneddon v. Goodrich, 8 Ves. 481 ; Williams 
 v. Coade, 10 Ves. 500 ; Hill v. Cock, 1 Ves. & B. 173 ; Maugham v. Mason, Ibid. 410; 
 
 Hooper v. Goodwin, 18 Ves. 156. |[ 
 
 pWhen title to land is taken in the name of one person and the money 
 is paid by another, there is a resulting trust, which the law implies in 
 favour of him who pays the money; and this fact may be established by 
 parol evidence. 
 
 Jackman v. Ringland, 4 Watts & S. 149. See M'Guire v. M'Gowen, 4 Desaus. 491 ; 
 Rotsford v. Burr, 2 Johns. Ch. 409 ; 3 A. K. Marsh. 477. 
 
 Where there is a resulting trust under a conveyance, it must arise' at 
 the time of the execution of the deed. 
 Rogers v. Murray, 3 Paige, 390. 
 
 A resulting trust cannot be raised against the intention of the parties. 
 White v. Carpenter, 2 Paige, 217. 
 
 If a joint purchase be made in the name of the co-purchasers, parol 
 evidence is admissible to prove the fact, and he will be considered a trus- 
 tee for a moiety for the other. 
 
 Powell v. The Monson and Brimfield Man. Company, 3 Mason, 347 ; 3 Litt. 399 ; 
 4 Desaus. 486. 
 
 But parol evidence of a resulting trust must be very clear to sustain 
 the trust. 
 
 Snelling v. Utterback, 1 Bibb, 609. 
 
 A resulting trust is never raised in favour of a grantor, in opposition 
 to the express terms of his conveyance. 
 
 Squire v. Harder, 1 Paige, 494; Leggett v. Dubois, 5 Paige, 114. 
 
 An attorney is bound to give sufficient advice to his client ; and if any 
 advantage or property come to him by his ignorance or the neglect of the 
 attorney, he shall be trustee therefor for the benefit of the person who 
 would be entitled to it, had he known and done his duty. 
 
 Dulkcy v. Wilford, 2 Clark & Fin. 177. See Giddings v. Eastman, 5 Paige, 561. 
 
 A trustee cannot acquire an outstanding title to the trust property ; 
 and a conveyance to him in his own right will enure to him as trustee. 
 
 Morrison v. Caldwell, 5 Monr. 435 ; Morgan's Heirs v. Boon, 4 Monr. 297. 
 
 If one of several devisees in remainder buy in the particular estate, 
 avowedly for the benefit of all the devisees, he holds that particular es- 
 tate in trust for those in remainder. 
 
 Anderson v. Bacon, 1 A. K. Marsh. 51.
 
 USES AND TRUSTS. 209 
 
 (D) What shall be deemed an Advancement, and what a Trust. 
 
 Chancery will relieve against a fraud, by converting the person guilty 
 of it into a trustee for those who have been injured by such fraud. 
 
 Brown v. Lynch, 1 Paige, 47 ; Perkins v. Hays, 1 Cooke, 16G. See 2 Clurk So Fin. 
 177 ; Giddings v. Eastman, 5 Paige, 561. 
 
 If an agent employed to purchase an estate becomes the purchaser for 
 himself, he is to be considered a trustee for his principal. 
 
 Lees v. Nuttall, 1 Russ. 1- My. 53 ; S. C, Tarn. 282 ; 1 My. & Keen, 819 ; 5 Paige, 
 501 ; 2 Clark & Fin. 177 ; Sweet v. Jacobs, 6 Paige, 355 ; Carter v. Palmer, 1 Irish 
 Eq. R. 289. 
 
 If land be purchased by one party and the conveyance be made to 
 another, a trust will result to the person paying the money. 
 
 Newton v. Morgan, 2 Harr. 225 ; Bank of the United States v. Carrington, 7 Leigh, 
 366 ; Henderson v. Hoke, 1 Dev. & Bat. 149. 
 
 But when the purchase is made, and the money paid by the same per- 
 son, and the transaction involves nothing more than a violation of a 
 parol agreement to purchase for another, equity will not decree the pur- 
 chaser to be a trustee. 
 
 4 Watts & S. 149. 
 
 If one undertakes to procure a deed of land for another, who pays the ' 
 consideration or purchase-money, in accordance with a previous agree- 
 ment, but fraudulently takes the conveyance to himself, such agent may 
 be compelled, by bill in equity, to convey the land to him who made the 
 contract and paid the consideration. 
 
 Pillsbury v. Pillsbury, 17 Maine, 107. 
 
 A resulting trust cannot be claimed by a party who pays only a part 
 of the consideration on the purchase of land conveyed to another, unless 
 it be some definite part of the whole consideration, as one-third, one- 
 half, or the like. 
 
 Sayre v. Townsend, 15 Wend. 647. 
 
 If an agent locate land for himself, which he ought to locate for his 
 principal, he is in equity a trustee, and liable to account to his principal. 
 
 Massie v. Watts, 6 Cranch, 148. See Phillips v. Crammond, 2 Wash. C. C. R. 
 441. 
 
 Where the grantee in a conveyance of a tract of land, in an account 
 between himself and the grantor, made out subsequent to the execution of 
 the deed, had given the grantor credit for part of the proceeds of the land 
 conveyed by deed ; held, that this amounted to a declaration of trust. 
 
 Prevost v. Gratz, Pet. C. C. R. 364.0 
 
 (D) What shall be deemed an Advancement, and what a Trust. 
 
 It is a settled rule, that whenever a father purchases in the name of a 
 child unprovided for, it is intended as a provision, and not a trust, unless 
 it be otherwise proved, and the proof lies on the plaintiff. This was held 
 80 before the statute of frauds, &c, and is stronger since, because declara- 
 tions of trusts ought to be in writing ; though in other cases a trust will 
 result where it appears that another paid the money. 
 
 2 Freem. 252, Shales v. Shales ; [|Glaister v. Hewer, 8 Ves. 199. || /3When a parent 
 purchases lands in the name of his child under age, it will be generally considered as 
 an advancement. Jackson v. Matsdorf, 11 Johns. 91. See Stileman v. Ashdown, 
 2 Atk. 479 ; Hamilton v. Bradley, 5 Hayw. 137. gl 
 
 And a distinction has been taken where a parent makes a purchase in 
 Vol. X.— 27 s 2
 
 210 USES AND TRUSTS. 
 
 (D) What shall be deemed an Advancement, and what a Trust. 
 
 the name of an unadvanced child, and where in the name of a child 
 already advanced. In the former case, it was only an advancement for 
 the child ; in the latter, a trust for the parent. 
 
 2 Chan. Ca. 231, Elliot v. Elliot. 
 
 The reason why, where the father purchases in the name of a son unad- 
 vanced, without any express declaration of the trust, this is an advance- 
 ment of the son, and not a trust for the father, is because between father 
 and son the blood is a sufficient consideration to raise a use to the son ; and 
 that in all cases whatsoever, where a trust shall be between the father and 
 son, contrary to the consideration and operation of law, the same ought to 
 appear upon very plain, and coherent, and binding evidence ; and not by 
 •any argument or inference from the father's continuing in possession, and 
 receiving the profits, which sometimes the son may not in good manners 
 contradict, especially where he is advanced but in part. And if such in- 
 ference shall not be made by the father's perception of profits, it shall 
 never be made from any words between them in common discourse; for in 
 those there may be great variety, and sometimes apparent contradictions. 
 Now, where there is no clear proof of any trust between the father and son, 
 the law will never imply a trust, because the natural consideration of blood, 
 and the obligation which lies on the father in conscience to provide for his 
 son, are predominant, and must overrule all manner of implications. And 
 herein the law of trusts does (as it ought to do) agree with the laiu of uses 
 before the statute of H. 8 ; and therefore, if before that statute the father had 
 made a feoffment to a stranger, without any consideration, the law raised 
 a use without any implication to himself; but if he made a feoffment to his 
 son, no use arose to the father by implication, because the blood, which is 
 a sufficient consideration, fixed and settled the estate in the son. It is true, 
 where the son is married in the lifetime of his father, and by him fully 
 advanced, and in a manner emancipated, there a purchase by the father, 
 and in the name of his son, may be a trust for the father, as much as if 
 it had been in the name of a stranger, because in that case all presump- 
 tions or obligations of advancements cease. But where the son is not ad- 
 vanced, or but advanced or emancipated in part, in such case there is no 
 room for any construction of a trust by implication ; and without clear 
 proofs to the contrary, it ought- to be taken as an advancement of the son. 
 
 Finch, 338, Grey v. Groy; ||1 Eq. Abr. 381; 2 Swanst. 594, S. C. ; and see Red- 
 ington v. Redington, 3 Ptidg. P. Ca. 176. || 
 
 || The son cannot, on his sick-bed, make a declaration of trust in favour 
 of his father, so as to prevent his wife from having her dower of the 
 estate. The evidence to repel the presumption of advancement must be 
 contemporaneous with the purchase. 
 
 Bateman v. Bateman, 2 Vera. 406; Murless v. Franklin, 1 Swanst. 13. || 
 
 So, where the father purchases in the name of the son, it has frequently 
 oecn decreed an advancement, and not a trust, though the father takes 
 the profits and keeps possession ; and though the father, after such pur- 
 chase, declares the trust, yet it is not good, unless the trust be declared 
 before or at the time of the purchase ; and so the Lord Chancellor agreed. 
 
 2 Chan. Ca. 231, Elliot v. Elliot. 
 
 Likewise, where a father purchased in a younger sons name and a ne- 
 phew's, lands of inheritance ; and also purchased a term for years (of which 
 he himself had the inheritance) in the same son's and the father's mother's
 
 USES AND TRUSTS. 211 
 
 (D) What shall be deemed an Advancement, and what a Trust. 
 
 name ; though the whole purchase-money was mentioned to be paid by 
 the father, and though he took the profits during his life, and died leaving 
 the son about eight years old; and though a reversion, expectant on It is 
 mother s death, was settled upon him, yet the trustees disclaiming any 
 interest in the estate, Lord Chancellor held the son to be unprovided for, 
 notwithstanding such reversion after his mother's death ; for that he might 
 starve in the mean time ; and that the trustees having disclaimed, made 
 it all one as if the purchase had been in the son's name only. 
 
 1 P. Wins. R. Ill, 112, Lamplugh v. Lamplugh. It was farther said in this case, 
 that the father's taking the profits, must be intended to have been done by him as 
 guardian to the son. 
 
 [A father purchased a copyhold in the name of the defendant, his eld- 
 est son, an infant of eleven years old, and enjoyed it during his life; and 
 afterwards, having surrendered it to the use of his will, devised it to his 
 wife for life, remainder to his younger children, and made other provisions 
 for the defendant, who having recovered in ejectment, the bill was to be 
 relieved against it. Lord Chancellor Jeffries conceived, that as he was 
 but an infant at the time of the purchase, the purchase was an advance- 
 ment for him, and not a trust, notwithstanding the father enjoyed it 
 during his life. 
 
 Mumma v. Mumma, 2 Vern. 19. • 
 
 So, where a father purchased a copyhold in his son's name, who was 
 then eighteen years of age, and the father continued in possession till his 
 death, Lord Hardwicke said, — I am of opinion it should be considered as 
 an advancement for the son, and found my opinion greatly on the case 
 of Mumma v. Mumma (supra) ; and though two receipts are produced 
 under the son's hand for the use of the father, I think that will not alter 
 the case ; for the son, being then under age, could give no other receipt 
 in discharge of the tenants who held by lease from the father. 
 
 Taylor v. Taylor, 1 Atk. 386.] 
 
 But it seems it had been otherwise, if the father had taken the profits 
 after the child 's coming of age, and when of discretion to claim his right — 
 
 As, where A, a grandmother, purchased an annuity in the 14/. per cent, 
 annuities for lives, for 100Z. in the name of E, her grand-child, the father 
 of E gave A, the grandmother, a bond to repay her the 100?. in case E 
 should die in the grandmother's life ; A kept the tally, and received the 
 annuity during her life, and disposed of it by her will to F another grand- 
 child ; it was decreed by the Chancellor, that the receiving of the income, 
 and keeping the tally, and no claim having ever been made by E, showed 
 that E was but a trustee for A, and that the bond given by the father, in 
 which no mention was made of a trust, did not make it to be so. 
 
 P. Wms. II. 607, 608, Loyd v. Read. 
 
 Likewise where a father purchases the reversion and inheritance in his 
 own name of lands of which a lease for three lives was then in being, and 
 afterwards purchases the lease for three lives in his son's name, it is de- 
 creed a trust, and not an advancement. 
 
 Finch. 373, Hodgkinson v. Moor. 
 
 [In the manor of II, it is the custom to grant copyholds for three lives 
 successive. S D purchased copyhold premises holden of this manor, and 
 took the grant to himself and M, his wife, and W his eldest son, to take in 
 succession for their lives. — By his will he devised all his interest in these 
 copyholds (amongst others) to his youngest son. There were no other cir-
 
 °V2 USES AND TRUSTS. 
 
 (D) What shall be deemed an Advancement, and -what a Trust. 
 
 cumstances in this case; and the question was, Whether this was an ad- 
 vancement to W, or, whether he was a trustee for his father ? The court, 
 after full consideration, determined, that this was to he taken as an advance- 
 ment for the eldest son. — The Chief Baron, in delivering the judgment 
 of the court, observed, that in the cases cited the circumstance of the nomi- 
 nee heing a child of the purchaser, had been considered as a circumstance 
 of evidence to rebut the resulting trust, and not as raising a consideration 
 in itself, which seemed a more simple way of treating it. That the cir- 
 cumstance of the custom of the manor requiring two nominees besides the 
 purchaser had been insisted upon in the present case, as taking off the in- 
 ference of an intended advancement, and had been relied upon in that view 
 by the Lords Commissioners in Dickinson v. Shaw in Chancery, 22d May, 
 1770, in which case also the grant was for three lives successive. But 
 that, notwithstanding that authority, the court was of opinion, this cir- 
 cumstance was not sufficient to turn the presumption against the child. 
 
 Dyer v. Dyer, in the Exchequer, Nov. 1788, Cox's P. "Wins. 112, note;] || Watk. 
 216 ; 2 Cox, 92, Finch v. Finch, 15 Ves. 43 ; and see 2 Eden, 15. )| 
 
 But, where a purchase is made by a father in his own and his son's 
 name, it shall primd facie be intended an advancement for the son, and 
 not presumed a trust, unless declared so. 
 
 Chan. Ca. 28, Scroope v. Scroope. It was said in this case, that it was anciently 
 the way to join the son in a purchase, to avoid wardship. 
 
 [But this is a weaker case than where the purchase is made in the son's 
 name only ; and therefore the son shall not have the benefit of survivor- 
 ship as against a judgment creditor of the father. 
 
 A father upon his son's marriage gave him a considerable advancement ; 
 and having several younger children who were unprovided for, he sold an 
 estate ; but 500/. only of the purchase-money being paid, he took security 
 for the remainder in the name of himself and his son. The father re- 
 ceived the interest and great part of the principal without any opposition 
 from the son, as did his executrix after his death, the son writing receipts 
 for the interest. A question being made, Whether the son should be con- 
 sidered as trustee for his father, or interested in his own right ? Lord 
 Hardwicke said, — No doubt, where a father takes an estate in the name 
 of his son, it is to be considered as an advancement ; but that is liable to 
 be rebutted by subsequent acts. So, if the estate be taken jointly, so as 
 the son may be entitled by survivorship ; that is weaker than the former 
 case, and still depends on the circumstances. The son knew here that 
 his name was used in the mortgage-deed, and must have known whether 
 it was for his own interest, or only as trustee for his father ; and instead 
 of making any claim, his acts are very strong evidence of the latter. 
 Nor is there any colour why the father should make him any further ad- 
 vancement, when he had so many children unprovided for ; and in using 
 his son's name, the father might have a view that his son should be a 
 trustee rather than another. 
 
 Pole v. Pole, 1 Ves. 70. 
 
 A bill was brought by an executor to have satisfaction out of the estate 
 of the defendant's late father upon a judgment given by him to the plain- 
 tiff's testator. It appeared, that in 1700 the father made a small purchase 
 jointly with the defendant to them and their heirs : that in 1708 he made 
 another joint purchase with his youngest son, and settled it by way of pro- 
 vision for younger children, and paid the purchase money for both estates,
 
 USES AND TRUSTS. 213 
 
 (E) What Acts of a Trustee shall be a Breach of Trust, &c. 
 
 and continued in possession till his death, which happened in 1735. The 
 sons afterwards entered upon these estates. It was insisted on the part 
 of the defendants, that these two purchases were to be considered with re- 
 spect to a moiety and on account of the survivorship, as an advancement 
 of the sons, and, consequently, they were entitled to retain the estate, and 
 not liable to the plaintiff's judgment. But Lord Hardwicke, after observ- 
 ing, that he thought the cases had gone full far enough in favour of ad- 
 vancements, and that he ought not to carry it further, said, — Here, the 
 purchase is in the names of the father and son as joint-tenants : now this 
 does not answer the purpose of an advancement, for it entitles the father 
 to the possession of the whole till a division, and to a moiety absolutely 
 even after a division, besides the father's taking a chance to himself of 
 being a survivor of the other moiety : nay, if the son had died during his 
 minority, the father would have been entitled to the whole by virtue of the 
 survivorship, and the son could not have prevented it by severance, he 
 being an infant. Suppose a stronger case, that the father had taken an 
 estate in the purchase to himself for life, with remainder to his son in fee, 
 should this prevail against the creditor ? No, certainly ; for the father 
 having the profits for life, and the son only a remainder, the estate would 
 have been liable. A material consideration for the plaintiff is, that the 
 father might have other reasons for purchasing in joint-tenancy ; namely, 
 to prevent dower upon the estate, and other charges, &c. Then consider 
 how it stands in respect of the creditor. A father was in possession of 
 the whole estate, and must necessarily appear to be the visible owner of 
 it ; and the creditor too would have had a right by virtue of an elegit to 
 have laid hold of a moiety, and so it differs extremely from all the other 
 cases. Now, it is very proper that this court should let itself loose as far 
 as possible, in order to relieve a creditor, and ought to be governed by 
 particular circumstances of cases. I shall therefore decree the creditor 
 in this case to be let in upon these estates. 
 
 Stileman v. Ashdown, 2 Atk. 477.] jjSee Hargr. Co. Lit. 246 a, n. (1).|| 
 
 || If a person purchase lands in the name of his wife, the wife shall not 
 be a trustee for the husband. 
 
 Kingdom v. Bridges, 2 Vera. 67 ; Buck v. Andrews, Prec. Cha. 1 ; 2 Vera. 120. || 
 
 (3 Where negroes were purchased and paid for by a debtor, and the 
 title made to his sons, under the circumstances it was held that a trust 
 resulted to the debtor in favour of creditors, and the negroes were liable 
 for his debts. 
 
 Brown v. McDonald, 1 Hill's Ch. 3O6.0 
 
 (E) What Acts of a Trustee shall be a Breach of Trust, &c, or shall be deemed to alrer 
 
 or vary the Nature of it. 
 
 Trusts are so far regarded and supported in equity, that regularly no 
 act of the trustee shall prejudice the cestui que trust; for though a pur- 
 chaser for a valuable consideration, without notice, shall in no case have 
 his title impeached in equity ; yet the trustee must, especially in equity, 
 make good the trust ; and my Lord Hobart is of opinion, that an action 
 lies against him at common law.(a) But if one purchases with notice, then 
 he becomes the trustee himself, and shall be accountable for every act of 
 his, as the trustee was ; and if either become insolvent, the cestui que trust 
 has his remedy against the other. The trustee of a legacy dying before
 
 214 USES AND TRUSTS. 
 
 (E) What Acts of a Trustee shall be a Breach of Trust, &c. 
 
 the legacy is paid shall not prejudice the legatee. So, if a trustee of 
 land die without heir, though the lord by escheat will have the land at 
 law, yet it will be subject to the trust in equity. (b) 
 
 1 Abr. Eq. Ca. 384 ; Pr. Ch. 200, Eales v. England. [(a)But this opinion of Lore 1 
 Hobart is directly contradicted by my Lord Hardwicke, who says, that " a trust is 
 where there is such a confidence between the parties, that no action at law will lie ; 
 but it is merely a case for the consideration of this court," meaning a court of equity. 
 2 Atk. 612.] ||(6)This point appears not to have been directly determined. See the 
 arguments in Burgess v. Wheate, 1 Eden, 177. || 
 
 When all the remainders are vested remainders in tail, the trustees may 
 join in making a tenant to the praecipe, in order to the suffering a com- 
 mon recovery. But if any remainder is in contingency, the trustees ap- 
 pointed to preserve contingent remainders ought not to join in suffering 
 a recovery to bar any such remainder ; as, where the remainder was to the 
 use of the body of A, (still living,) and A had issue C a son, and D a 
 daughter, and the trustees join with C in a bargain and sale enrolled, for 
 making a tenant to the praecipe to suffer a common recovery, which is 
 suffered accordingly, and C dies, leaving an infant son : now if the son 
 should die without issue, in the life of A, in such case D would be heir 
 of A's body. This would be a breach of trust ; and in case of a purcha- 
 ser having notice, his title would not be good. 
 
 2 P. Wms, 201. It was so said by Talbot, Solicitor-General, in the case of Marlow 
 v. Smith. 
 
 Where a settlement on the marriage of A with M tvas made by J S to 
 the use of A for ninety-nine years, remainder to E and F, trustees, for 
 ninety-nine years, remainder to trustees during the life of A, to support 
 contingent remainders, remainder to M for life, remainder to the first, $c, 
 son of the marriage, remainder to the heirs of the body of A, remainder to 
 the right heirs of A; there being no issue of the marriage, and the re- 
 mainder in fee being contingent, in regard the limitation to A was for 
 years only ; and the estate not moving from A (for if so, the remainder 
 limited to A had been the old reversion,) the trustees joined to destroy 
 this contingent remainder. On a bill brought by a remote relation, the 
 court refused to punish the trustees, as distinguishing between a volun- 
 tary settlement and one made on a valuable consideration. And the Mas- 
 ter of the Rolls said, that if a son had been afterwards born it would have 
 been a breach of trust ; but this remainder to the right heirs of A being 
 a remote limitation, and not within the consideration of the settlement, 
 equity would not punish it as a breach of trust. 
 
 1 P. AVms. 358, 359, Sir Thomas Tippen's case ; [1 Eq. Ca. Abr. 385, S. C. ; Gilb. 
 Eq. R. 34, S. C] 
 
 So, where a remainder in tail being vested in the first son, the trustees 
 joined with him in suffering a common recovery ; it was held no breach 
 of trust, though against the consent of the father ; for when such remain- 
 der was vested in one of full age, a subsequent remainder was not to be 
 regarded ; neither was it assets in law or equity. Cited per Mr. Vernon, 
 and so held since the case of Sir Thomas Tippin, supra. 
 
 1 P. Wms. 537, Winnington v. Foley. [Note, this decision was upon an applica- 
 tion to the court to direct the trustee to join. J 
 
 But where J S, seised in fee of lands, devised the same to A and B and 
 their heirs, to the use of D his sister, for life, remainder to A and B and 
 their heirs, during the life of D, in trust to preserve contingent remainders,
 
 USES AND TRUSTS. 215 
 
 (E) What Acts of a Trustee shall be a Breach of Trust, &c. 
 
 remainder to the use of the first, &c., sons of D, in tail-male successively, 
 remainder to the use of E M in fee : testator dying without issue, D en- 
 tered and married C ; afterwards C and D his wife, and E M, the reniain- 
 er-man in fee, join in a feoffment to (new) trustees to the use of C and 
 is heirs, and covenant to levy a fine to the (new) trustees to the same 
 ses ; and a fine (as it seems, though not stated in the case) was accord- 
 igly levied ; afterwards A and B (the trustees for preserving, &c, in the 
 will,) by lease and release, convey the lands to C in fee, D being then en- 
 seint of a son, who was soon afterwards born, and named G, and D had after- 
 wards several other children ; subsequent to which, C, the father, devised 
 all his lands in general words to the said G for life, remainder to his first, &c, 
 sons in tail-male successively, remainder to his (C,) the testator's, second 
 son by D for life, remainder to his first, &c, sons in tail-male successively, 
 and died, leaving several sons, and D also died ; on a bill by G it was re- 
 solved by King, C, assisted by Lord Chief Justice Raymond and Chief 
 Baron Reynolds, that the joining of the trustees to destroy the contingent 
 remainders was a plain breach of trust ; and that though this had not been 
 before judicially determined, yet it seemed to the court, in common sense, 
 reason and justice, to be capable of no other construction : and all parties 
 were decreed to join in making such an estate to G as he would have 
 been entitled to under the will of J S, if these contingent remainders had 
 not been destroyed, i. e. an estate in tail-male, &c. 
 
 2 P. Wins. 678, Mansell v. Mansell ; Cases in Eq. temp. Talbot, 232, S. C. |J See 
 Moody v. Walter, 16 Ves. 283 ; Osbury v. Bury, 1 Ball. & B. 58.|| In this case it was 
 said, that where an estate is limited to A for life, remainder to his first, &c, sons in 
 tail, though it be a plain wrong and tort in him to do any act which will destroy those 
 contingent remainders before the birth of a son, notwithstanding his legal power of 
 doing so ; yet as in this case there is no trustee, there can bo no trust, nor consequently 
 any breach of trust, and therefore this court can have no conusance of such a case, nor 
 handle for relief, the matter being left purely to the common law. But to prevent this 
 inconvenience has the remedy of appointing trustees been invented, on purpose to dis- 
 able the tenant for life from doing such injury to his issue, which is not a very old in- 
 vention. Per Lord Ch. J. King, assisted ut supra. 2 P. Wms. 612, 613. ||As to the 
 cases in which trustees will be ordered to make conveyances, in order to defeat the con- 
 tingent estates, see Moody v. Walters, 16 Ves. 283 ; Biscoe v. Perkins, 1 Ves. & B. 485. || 
 
 If A, seised in fee, in trust for B, for full consideration conveys to C, 
 who has notice of the trust, and afterwards C, to strengthen his own estate, 
 levies a fine ; B, the cestui que trust, is not bound to enter within five 
 years ; for C having purchased with notice, notwithstanding any con- 
 sideration paid by him, is but a trustee for B, and so the estate not 
 being displaced, the fine cannot bar. 
 
 1 Vera. 149, Bovev v. Smith ; [2 Atk. 630, Story v. Ld. Windsor ; 3 Atk. 563, 
 Shields v. Atkina, S. P.] 
 
 So, if an executor, in trust for an infant residuary legatee, renews a 
 lease, part of the testator's personal estate, in his own name, and first 
 mortgages it, and then assigns the equity of redemption to a trustee, to 
 sell for payment of his own debts, and his trustee sells to one who has 
 notice of the infant's title, the purchase will be set aside. 
 
 1 Vera. 484, Walley v. Walley. 
 
 [If a trustee conveys to one who has no notice of the trust, and the 
 grantee levies a fine, and five years pass, and afterwards the trustee pur- 
 chases the same lands again for a bond fide consideration ; still he shall 
 be a trustee, as he was before. 
 
 Bovey v. Smith, 1 Vera. 70.]
 
 216 USES AND TRUSTS. 
 
 (E) What Acts of a Trustee shall be a Breach of Trust, &c. 
 
 || But a stranger who purchases with notice from a person who purchased 
 
 for valuable consideration without notice, may, it is conceived, shelter 
 
 himself under the first purchase. 
 
 See Lowther v. Carlton, 2 Atk. 242 ; and the case in note to Mr. Sanders's edition, 
 11 Ves. 478, Macqueen v. Farquhar.|| 
 
 [But if a trustee, when in possession, alienates for a valuable consider- 
 ation, and without notice, the sale will be good, and the purchaser will 
 not be a trustee in his stead. The cestui que trust may indeed compel 
 the trustee to make satisfaction in such case ; but the breach of trust is 
 considered but as a simple contract debt, and can only fall upon the 
 personal estate of the trustee, unless the trustee has acknowledged the 
 debt to the trust-estate under hand and seal. 
 
 Millard's case, 2 Freem. 43 ; Hardr. 469 ; 1 Ch. R. 245 ; Vernon v. Vaudrey, Bar- 
 nardist. Ch. R. 280 ; 2 Atk. 119, S. C. ; Gifford v. Manley, Ca. temp. Talbot, 109.] 
 
 A bare trustee cannot alter the nature of the trust by turning land into 
 
 money, or money into land, so as to make it vest in different persons, by 
 
 his act than it would otherwise have done. 
 
 Farlam v. Sanders in Chanc. Mich. 28 G. 2, MS. Rep. ; and see 3 P. Wms. 100, 
 Witter v. Witter. 
 
 j3 Where trustees are empowered by deed to sell real estate, and with 
 the proceeds to pay debts and make investments in stocks, they are not 
 authorized to exchange the trust property for other real estate. 
 
 Ringgold v. Ringgold, 1 liar. & Gill, ll.fif 
 
 [So, where an executor in trust for an infant on a lease for ninety-nine 
 
 years, determinable on three lives, upon the lord's refusing to renew but 
 
 for lives absolutely, complied with the lord and changed the years into 
 
 /lives ; this, upon the infant's dying under twenty-one and intestate, was 
 
 adjudged to be a trust for his administrator, and not for his heir. 
 
 Witter v. Witter, 3 P. Wins. 99. ||See Milner v. Hare wood, 18 Yes. 274. || 
 
 But, where a feme purchased a church lease to her and her heirs for 
 three lives, and died, leaving an infant daughter, two of the lives died, and 
 the guardian renewed the lease, it was holden, that this renewed lease was 
 a new acquisition, and should go to the heirs on the part of the father. 
 
 Mason v. Day, Pr. Ch. 329 ; Pierson v. Shore, 1 Atk. 480, S. P. 
 
 However, in general, it is true, that a guardian or trustee shall not alter 
 the nature of an infant's property, so as to change the right of succession 
 to it in case of the infant's death, unless by some act manifestly for the 
 advantage of the infant at the time. 
 
 Rook v. Warth, 1 Ves. 461 ; Tullit v. Tullit, Ambl. 370; Inwood v. Twyne, Ibid. 
 417 ; Vernon v. Vernon, cited in Ex parte Bromtield, 3 Bro. Ch. R. 513.] 
 
 {A devisee of all the testator's effects, real and personal, in trust for the 
 testator's widow and children, received from the widow, who was execu- 
 trix, on her going abroad to recover part of the property bonds for a debt 
 due from him and his partners to the estate ; and in settling the affairs of 
 the partnership on the retirement of one partner, who had notice of the 
 trust, delivered to him the bonds to be cancelled without the privity of the 
 cestuis que trust, continuing to make remittances on that account from 
 the funds of the new partnership. Upon their bankruptcy, the partner 
 who retired was held to be answerable to the cestuis que trust. 
 
 4 Ves. J. 36, Dickenson v. Lockyer.}
 
 USES AND TRUSTS. 217 
 
 (F) What defeats the Trust, or destroys contingent Remainders. 
 
 |3 Devise to trustees, one of whom was the mother of cestuis que trust, 
 with power to make advancements; she alone acted and made advance- 
 ments without the concurrence of her co-trustee; held, that the proper 
 discretion not having been exercised, such could not be allowed, and 
 that an after-taken husband was liable for her breach of trust. 
 
 Palmer v. Wakefield, 3 Beav. 227. 
 
 Where, by the terms of the settlement, it appears to be the intention 
 of the parties that there should at all times be two trustees of the pro- 
 perty comprised in the settlement, the appointment of a single trustee 
 in the place of two original trustees, and the transfer by them of the 
 trust property to such single trustee, is a breach of trust, and the original 
 trustees are answerable accordingly. 
 
 Hulme v. Hulme, 2 Mylne & K. G82. 
 
 When several trustees are implicated in a breach of trust, the bill to 
 recover the trust-fund cannot be against some of them only, but all those 
 who are living, and the representatives of those who are dead, must be 
 made parties. 
 
 Munch v. Cockerel!, 8 Sim. 219. 
 
 Where personal estate of one of two trustees has been distributed 
 among legatees, in ignorance of a claim against the estate in respect of 
 breach of trust ; held, that the cestuis que trust were still entitled to fol- 
 low the estate in the hands of the surviving legatees and the personal 
 representatives of the trustee and the legatees of his deceased legatees, 
 and that without any inquiry whether the plaintiffs knew of, or acqui- 
 esced in the breach of trust, or of an arrangement made between the 
 trustees and the parties interested in respect thereof. 
 * March v. Russell, 3 Mylne & C. 31. 
 
 Where trustees of the separate property of a feme covert, without 
 power of anticipation, joined in a lease for which a fine was paid, and 
 received by a third person ; held, a breach of trust, though the feme 
 covert joined in the lease. 
 
 Booth v. Purser, 1 Irish Eq. R. 37. £f 
 
 (F) What Acts of the Trustee, jointly with Cestui que trust, or by Cestui que trust only, 
 shall defeat the Trust, or destroy contingent Remainders. 
 
 Though at law, by the trustees concurring in any act to prevent the 
 rising of the contingent remainders, it was formerly held that it was for 
 ever destroyed and gone; yet Cowper, C, held this to be an exploded 
 opinion now in Chancery, as to persons who are to come in and be con- 
 sidered as purchasers under the marriage settlement and portion. But 
 as for voluntary remainders, (as a remainder to the right heirs of the 
 body of the husband, and after to his right heirs, neither of which can 
 be said to be within the purchase of the marriage portion, but only the 
 first and other sons, &c, of the marriage,) this court will not assist them 
 to support the remainder so destroyed. 
 
 Gilb. Eq. R. 34, Tipping v. Piggot. |3A conveyance in tail, to trustees to preserve 
 contingent remainders, may be cancelled by a decree, so as to bind the interests of all, 
 though the cestui que trust be not made defendant. Campbell v. Watson, 8 Ohio, 498.£f 
 
 If trustees in a settlement, to support contingent remainders, join with 
 the tenant for life in any conveyance, to destroy the contingent remainders 
 Vol. X.— 28 T
 
 218 USES AND TRUSTS. 
 
 (F) What defeats the Trust, or destroys contingent Kemainders. 
 
 before they come in esse, this is a plain breach of trust ; and whoever 
 claims under such a conveyance, having notice of the trust, or by a 
 voluntary settlement, shall be liable to make good the estate. 
 
 2 Salk. 680, Pye v. George ; 1 P. Wms. 128, S. C. ; [1 Bro. P. C. 359, S. C] ||For 
 cases in which trustees will be ordered to make conveyances in order to defeat contin- 
 gent estates, see Moody v. Walters, 16 Ves. 283 ; Biscoe v. Perkins, 1 Ves. & B. 485. || 
 But if a trustee join with a cestui que trust in tail in any conveyance to bar the entail, 
 this is no breach of trust ; for it is no more than what he may be compelled to, though 
 the cestui que trust himself might have barred such entail without his joining ; and that 
 not only by fine or recovery, but likewise by feoffment, bargain or sale, devise or sur- 
 render (if the entail be of a copyhold, and there be no particular custom which requires 
 a common recovery ;) for such entail is not within the statute de donis, but remains as 
 at common law ; and being a trust is governable only by the rules of equity, and not by 
 the niceties of the law : and this seems to be supported not only by the latter, but by 
 the far greater number of authorities and in cases wherein the very point itself was 
 debated, though there are obiter sayings and opinions, which have made some distinc- 
 tions, and others which have flatly contradicted it. Vide 1 Chan. Ca. 49, 213 ; 2 Chan. 
 Ca. 64, 78 ; 1 Vern. 13, 440 ; 2 Vera. 133, 583, 702. 
 
 But, if a settlement on a marriage-treaty be made on the husband for 
 ninety-nine years, if he live so long, remainder to trustees to preserve 
 contingent remainders, remainder to the heirs of the body of the hus- 
 band by the wife, remainder to the heirs of the husband ; and there be 
 issue two sons and a dauhgter ; and the wife being dead, the husband and 
 trustees join with the eldest son in a fine or feoffment to J S ; this is a 
 good bar of the trust estate, and the trustees joining is no breach of 
 trust, for they were trustees purely for the tenant in tail, and to preserve 
 his estate, and not to stand in opposition to him for the sake of those 
 who were to come after him. 
 
 2 Vern. 754, Elie v. Osborne ; and see 1 P. Wms. 387, S. C. by the name of Else v., 
 Osborne. 
 
 Trustees to preserve contingent remainders, if tenant for life or years 
 commit waste, may restrain them by injunction. If there is only an estate 
 for years, remainder to first and other sons, remainder in tail, and no trus- 
 tees to preserve, &c, the remainder-man in tail before issue born, would 
 have an immediate freehold ; and if it had been tenant for life and no trus- 
 tees, he might before issue born have surrendered to the remainder-man, or 
 barred the whole estate. The rise of these trustees was from Chudley and 
 Arther's case in Co. Rep., and remainders in trustees and their heirs 
 during the life of another person have been held good, as that person 
 may commit a forfeiture. Where there is tenant for years, with remainder 
 to trustees during his life to preserve contingent remainders, the freehold 
 is in the trustees, and the possession of tenant for years is in law the 
 possession of the owner of the freehold. It is agreeable to justice in sup- 
 port of right to construe trusts in the most liberal manner. Trustees are 
 the creatures of this court, and under the correction of it intended to pre- 
 serve the inheritance entire. These trusts are generally declared with 
 power to make entry and bring actions, &c, as the law requires, which 
 includes equity too : and trustees may bring a bill in equity to stay waste, 
 before the contingent remainder comes in esse. Trustees are liable in 
 equity to make satisfaction for breach of trust, and a voluntary alienee, 
 with notice, will be decreed to restore the estate. 
 
 Garth v. Cotton, MS. Rep. ||3 Atk. 751; 1 Dick. 183. See 1 Ves. 524, S. C. 
 Stansfield v. Habergham, 10 Ves. 278. ||
 
 USES AND TRUSTS. 219 
 
 (G) In what Cases Equity will decree Trustees to join in a Recovery, &c, with Cestui 
 
 que trust. 
 
 In some cases, trustees have been decreed to join for the benefit of cre- 
 ditors : — Thus, where J S, after marriage, made a voluntary settlement 
 of his lands to himself for life, remainder to trustees to support, frc, re- 
 mainder to his first, £c, son in tail successively, remainder to himself in 
 fee ; and contracting debts, he afterwards makes a conveyance of his estate 
 to other trustees for payment of these debts ; the creditors bring a bill, 
 and (inter alia) insist that the trustees in the first settlement should join 
 in the sale to destroy the contingent remainders ; his honour, upon show- 
 ing a precedent of a like decree, decreed that the trustees should join to 
 destroy the contingent remainders, and be indemnified, it being at the 
 suit of creditors, and for the raising of money for the payment of debts. 
 
 1 P. "Wins. 358, Basset v. Clapham. Note. By the 7 Ann. c. 19, infants being 
 trustees or mortgagees, may be compelled to make convej-ances by order of the Court 
 of Chancery. { See 5 Ves. J. 240, Ex parte Anderson ; 10 Yes. J. 554, Ex parte Cant. \ 
 It is a general rule in equity, that where a real or personal estate is charged with 
 payment of debts generally, and vested in trustees to sell, the purchaser from such 
 trustees is not answerable for any misapplication of the money, and needs not see 
 that the debts are paid. But if it is made chargeable with particular debts, it is other- 
 wise ; or if there is any collusion between the executor or trustee and purchaser, the 
 purchase would be infected with the fraud or collusion. Per Lord Chancellor Hard- 
 wicke, Mich. 27 G. 2, Anon. MS. Rep. ; and see 1 Yern. 260, Dutch v. Kent; and 
 Ibid. 303, Spalding v. Shalmer, S. P. { See also 4 Yes. J. 100, Crewe v. Dicken ; G \ es. 
 J. 654, n. ; 8 Yes. J. 417, Lord Braybroke v. Inskip ; 12 Yes. J. 89, Curtis v. Price. } 
 
 || By the 39 & 40 G. 3, c. 88, § 12, and 47 G. 3, sess. 2, c. 24, the 
 king is authorized to direct the execution of any trusts affecting lands 
 which have become vested in him in consequence of escheat, forfeiture,- 
 or otherwise. (a) 
 • (a) See Ex parte Tutin, 3 Yes. & B. 149. 
 
 By the 36 G. 3, c. 90, in cases where the trustees in whose name stock 
 is standing shall be absent and out of the jurisdiction of the Court of 
 Chancery or Exchequer, or be bankrupt, or lunatic, the court may, in any 
 cause depending, order the stock to be transferred either to or into the 
 name of the Accountant-General of the Court of Chancery, or Deputy 
 Remembrancer of the Exchequer, in trust in the cause, or to and into the 
 name of the person equitably or beneficially entitled to such stock, as 
 the case may require, and as to the said courts shall seem fit, and also 
 to order and direct the mode in which the dividends shall be paid. 
 
 By 1 Will. 4, c. 60, " for amending the laws respecting conveyances 
 and transfers of estates and funds vested in trustees and mortgagees, and 
 for enabling courts of equity to give effect to their decrees and orders in 
 certain cases," sect. 3, it is enacted, that where any person seised or pos- 
 sessed of any land upon any trusts or by way of mortgage shall be lunatic, 
 it shall be lawful for the committee of the estate of such person, by the 
 direction of the Lord Chancellor of Great Britain, to convey such land in 
 the place of such trustee or mortgagee to such person and in such manner 
 as the Lord Chancellor shall think proper, and such conveyance shall be 
 as effectual as if the trustee or mortgagee had been of sane mind, &c. 
 
 By § 4, where stock shall be standing in the name of a lunatic, as a 
 trustee or executor either alone or jointly with any person, or shall con- 
 tinue to be standing in the name of a deceased person whose executor shall 
 be lunatic, or shall be otherwise vested in any lunatic for the benefit of 
 some other person, the Lord Chancellor may direct the committee of the
 
 220 USES AND TRUSTS. 
 
 (G) Where Trustees to join in Recovery, &c. (Lunatics, dx.) 
 
 estate of such lunatic to transfer such stock into the name of such person 
 and in such manner as the Lord Chancellor shall think proper, and also 
 to order such person to receive and pay over the dividends of such stock 
 in such manner as the Lord Chancellor shall direct. 
 
 By § 5, where any such person being lunatic shall not have been found 
 such by inquisition, it shall be lawful for the Lord Chancellor to direct 
 any person, whom he may think proper to appoint in place of such lu- 
 natic, to convey such land, or transfer such stock and receive and pay 
 over the dividends thereof; and every such conveyance, transfer, receipt, 
 or payment, shall be as effectual as if the said person being lunatic had 
 been sane and had made or executed the same : but where any such sum 
 of money shall be payable to such lunatic, no such last-mentioned order 
 shall be made, if such sum shall exceed 7007. 
 
 By § 6, where any person seised or possessed of any land upon any 
 trust, or by way of mortgage, shall be under the age of twenty-one years, 
 it shall be lawful for such infant, by direction of the Court of Chancery, 
 to convey the same to such person and in such manner as the court shall 
 think proper ; and every such conveyance shall be as effectual as if the 
 infant trustee or mortgagee had been of the age of twenty-one years. 
 
 § 7 relates to infant trustees of land in the duchy of Lancaster, and 
 the counties palatine of Lancaster, Chester, and Durham. 
 
 By § 8, where any person seised of land upon trust shall be out of the 
 jurisdiction of the Court of Chancery, or it shall be uncertain, where there 
 were several trustees, which of them was the survivor, or it shall be un- 
 certain whether the trustee last known to have been seised be living or 
 dead, or if known to be dead, it shall not be known who is his heir ; or if 
 any trustee seised as aforesaid, or the heir of any such trustee, shall 
 neglect or refuse to convey such land for the space of twenty-eight days 
 next after a proper deed for making such conveyance shall have been ten- 
 dered for his execution, by, or by an agent duly authorized by, any person 
 entitled to require the same, then the Court of Chancery may direct any 
 person whom it shall appoint for that purpose, in the place of the trustee 
 or heir, to convey such land to such person and in such manner as the 
 court shall think fit ; and every such conveyance shall be as effectual as if 
 the trustee seised as aforesaid, or his heir, had made or executed the same. 
 
 By § 9, a similar provision is made in the case of trustees of leasehold 
 estate being out of the jurisdiction, &c, &c, (as in the former section.) 
 
 By § 10, where any person in whose name as a trustee or executor, either 
 alone, or together with the name of any other person, or in the name of 
 whose testator (whether as a trustee or beneficially) any stock shall be 
 standing, or any other person who shall otherwise have power to transfer 
 or join with any other person in transferring any stock to which some other 
 person shall be beneficially entitled, shall be out of the jurisdiction of, or 
 not amenable to, the process of the Court of Chancery, or it shall be uncer- 
 tain whether such person be living or dead ; or if any such trustee or exe- 
 cutor or other person shall neglect or refuse(a) to transfer such stock, or 
 receive and pay over the dividends thereof to the person entitled thereto, 
 or to any part thereof respectively, or as he shall direct for the space of 
 thirty-one days next after a request in writing for that purpose shall have 
 been made to any such trustee or executor or other person by the person 
 entitled as aforesaid, then the Court of Chancery may direct such person 
 as the court shall appoint, in the place of such trustee or executor or other
 
 USES AND TRUSTS. 2-21 
 
 (G) Where Trustees to join in Recovery, &c. (Lunatics, dec.) 
 
 person, to transfer such stock to or into the name of such person, and in 
 such manner as such court shall direct, and also to order any person ap- 
 pointed as aforesaid to receive and pay over, or join in receiving and 
 paying over, the dividends of such stock in such manner as the said 
 court shall direct. 
 
 (a) See 1 Turner & Russ. 330. 
 
 By § 13, any committee, infant, or other person directed by virtue of 
 this act to make or join in making any conveyance or transfer, or receipt or 
 payment, shall and may be compelled, by the order to be obtained as herein- 
 before mentioned, to execute the same in like manner as trustees of full age 
 and sane mind are compelled to convey, &c, the trust estates vested in them. 
 
 By § 15, every person being in other respects within the meaning of 
 this act, shall be deemed a trustee within the meaning of this act, notwith- 
 standing he may have some beneficial interest or estate (a) in the same 
 subject, or may have some duty as trustee to perform. 
 
 (a) Under the act 4 G. 2, c. 10, the lunatic trustee was not within the act, if he had 
 a beneficial interest. Ex parte Tutin, 3 Yes. & B. 149. 
 
 But in every such case it shall be in the discretion of the Court of 
 Chancery, if requisite, to direct a bill to be filed to establish the right of 
 the party seeking the conveyance or transfer, and not to make the order 
 for such conveyance or transfer, unless by the decree to be made in such 
 cause, or until after such decree shall have been made. 
 
 By § 18, the provisions of the act shall extend to every case of a con- 
 structive trust, or trust arising or resulting by implication of law,(5)but in 
 every such case where the alleged trustee has or claims a beneficial interest 
 adversely to the party seeking a conveyance or transfer, no order shall be 
 made for the execution of a conveyance or transfer by such trustee until 
 after it has been declared by the Court of Chancery, in a suit regularly 
 instituted in such court, that such person is a trustee for the person so 
 seeking a conveyance or transfer ; but the act shall not extend to cases 
 upon petition, or cases arising out of the doctrine of election in equity, 
 or to a vendor, except in any case before expressly provided for. 
 
 (6) The act 7 Ann. c. 19, applied only to trusts expressly declared, and not to trusts 
 implied by law. Goodwin v. Lister, 3 P. Wms. 387 ; and see 4 Russell, 513. 
 
 By § 19, where any feme covert would be a trustee, mortgagee, heir, 
 or executor, within the provisions of the act, if she were an infant or 
 lunatic, and out of the jurisdiction, &c. &c, as before mentioned, and 
 the concurrence of her husband shall be necessary in any conveyance, 
 transfer, receipt or payment which ought to be be made or executed by 
 her as such trustee, mortgagee, heir, or executor, then and in any such 
 case such husband, whether under any disability or not, shall be deemed 
 a trustee within the meaning of the act. 
 
 By § 21, the act is extended to petitions in cases of charities, or benefit 
 or friendly societies. || 
 
 So likewise a court of equity will decree trustees to join for the 
 apparent benefit of the family. 
 
 In a marriage settlement the husband was made tenant for ninety-nine 
 years, if he should so long live, remainder to trustees during his life, re- 
 mainder to the first, &c, son of that marriage in tail-male successively, 
 remainder to the first, &c, son of any other marriage, remainder over. A 
 son is born and of age, and the wife is dead. The trust for preserving 
 contingent remainders descends to an infant. If for the benefit of the 
 
 t2
 
 222. USES AND TRUSTS. 
 
 (G) Where Trustees to join in Recovery, &c. 
 
 family, equity will decree the infant trustee to join in a recovery, in 
 order to make a new marriage settlement. 
 
 1 P. Wms. 536, Winnington v. Foley. 
 
 Likewise, where A having mortgaged his lands, and also confessed a 
 judgment, and afterwards on a marriage treaty, settled the lands thus 
 encumbered to the use of himself for life, remainder to the trustees to sup- 
 port contingent remainders, remainder to his wife for life, remainder to his 
 first and other sons in tail, remainder to his own right heirs, and having 
 no issue, articled to sell the lands to J S, who brought a bill for a specific 
 performance of the agreement, and suggested that the trustees refused to 
 join, and that the mortgagee threatened to enter ; it was decreed, that the 
 trustees should join and be indemnified, the estate being of an equity of 
 redemption only, and there being no issue, (though the husband and wife 
 were married six years,) and the wife, on her examination in court, con- 
 senting freely thereunto. But note ; those settlements can rarely be 
 broken through but by an act of parliament. 
 
 2 Vern. 303, Piatt v. Sprigg. 
 
 Where, on marriage, lands were limited to the use of A for ninety-nine 
 years, if he should live so long, remainder to B, and other trustees, (of 
 which B was the survivor,) and their heirs during A's life, to preserve, 
 &c, remainder to A's wife for life ; remainder to the first, &c, sons of the 
 marriage in tail-male successively, remainder over ; the wife died, leaving 
 issue of the marriage only two sons, C and D. A having mortgaged the 
 premises, he and his son C, (C being then of age,) covenanted to suffer a 
 recovery, and to procure B the surviving trustee to join therein, but B 
 refusing to join in making a tenant to the praecipe, the mortgagee prayed 
 a specific performance of the covenant, and that B might join in suffering 
 the recovery ; B by answer submitted to the court, but D the younger son 
 refused to consent : Lord Chan. King said, that then he would not decree 
 the trustee to join, for that he would not take away any man's right; so 
 dismissed the bill as to B and D with costs, but decreed A and C specifi- 
 cally to perform the covenant. 
 
 2 P. Wms. 379, Townsend v. Lawton. 
 
 Likewise, where J S by a marriage settlement was tenant for ninety-nine 
 years, if lie should so long live, with remainder to trustees and their heirs 
 during his life, to support contingent remainders, with remainder to his 
 first and every other son successively in tail-male, remainder to trustees for 
 500 years, in trust to raise portions for daughters, if there were no issue 
 male, or that such issue male died without issue before twenty-one ; J S 
 had issue a son, and being of age and to marry, he and his father bring in 
 a bill to have the trustees join in making an estate, in order to suffer a 
 common recovery, that he might be enabled to make a settlement on his 
 marriage ; and it was urged, that the trustees were only trustees for the 
 son, and ought to execute estates as he should direct, he having the in- 
 heritance in him, and that the end of the trusts was to hinder the father 
 from defeating the son of the estate. On the other side, it was urged, that 
 these trustees were not only trustees for the eldest son, but were designed 
 as a guard to the whole settlement ; that the mother being living, there 
 might be other children, and for the trustees to join would be a breach of 
 trust, and if there should be daughters they would by this means be entirely 
 stripped of their portions ; and though the term for raising them was un-
 
 USES AND TRUSTS. 223 
 
 (G) Where Trustees to join in Recovery, &c. 
 
 skilfully drawn, in putting it behind the estate-tail to the sons, yet this 
 court had set it sometimes before those estates. There being a daughter 
 in this case, my Lord Harcourt directed, upon giving security for the 
 daughter s portion, that the trustees should join in a recovery. 
 
 1 Abr. Eq. Ca. 386, Frewin v. Charleton. 
 
 [On a bill to compel trustees to join in a sale, which would destroy the 
 contingent remainders, and likewise the uses in a settlement made before 
 marriage, it appeared, that the limitations were to the husband for ninety- 
 nine years, if he so long lived, to the wife for her life, remainder to trustees 
 to support contingent remainders, remainder to the heirs begotten on the 
 body of the wife, remainder to the heirs of the husband ; and that the first 
 declaration under it was, that it was the intention of the settlement to make 
 a provision for the children of the marriage, with a covenant on the part 
 of the husband, that he would not bar the estate tail to the wife, but would 
 preserve the uses before limited and appointed. Lord Hardwicke dis- 
 missed the bill, and said, — There are many cases in which the court will 
 compel the trustees to join in such conveyance as will destroy contingent 
 remainders; but then it must be in some measure to answer the uses in- 
 tended by the settlement, and has been usually done in the case of old 
 settlements, as in Winnington v. Foley (supra) ; but, I believe, there is no 
 instance where they have compelled such trustees to join with the father, 
 termor for years, and the son to sell the estate. The old notion was, that 
 these trustees were only honorary ; but this has been varied since, for in 
 the case of Pigot v. Pigot, Lord Harcourt was of a different opinion, and 
 in Mansell v. Mansell, (supra,) Lord Chancellor King, assisted by Lord 
 Chief Justice Raymond, and Lord Chief Baron Reynolds, was of opinion, 
 that trustees for preserving contingent remainders joining to destroy them, 
 were guilty of a breach of trust, and that there was no diversity, ivhether the 
 settlement be voluntary, or for a valuable consideration, or by will only. 
 But the reason of those cases turned upon what the court do after trustees 
 had actually destroyed the remainders : here the case is different, for the 
 application to the court is to compel the trustees to do an act which would 
 destroy the remainders. There is another difficulty, which is, the hus- 
 band's actually covenanting in the settlement, that he will not bar the 
 estate-tail to the wife, but preserve the uses before limited ; and even 
 though the husband were dead, the wife could not do any act by which 
 she could bar the estate-tail, notwithstanding the trustees should consent 
 to join with her; for she is absolutely restrained from barring it by 11 H. 
 7, c. 20. If it had been an application only to destroy the contingent 
 remainders, I should have taken more time to consider : but here, it 
 would overturn all the uses of a marriage settlement, which would be 
 assuming too much power, and would be making a decree to compel a 
 breach of the husband's own covenant. 
 
 Syrnance v. Tattam, 1 Atk. 613. 
 
 J H devised his lands, after the death of his wife and a trust term of one 
 thousand years, to his son B Hfor ninety-nine years, if he should so long 
 live, without impeachment of waste, remainder to two trustees and their 
 heirs during the life of his son B, to preserve contingent remainders, re- 
 mainder to the first and other sons of B in tail-male, remainder to II H his 
 second son for ninety-nine years, if he should so long live, remainder to 
 the same trustees and their heirs during the life of II II to preserve con-
 
 224 USES AND TRUSTS. 
 
 (G) Where Trustees to join in Recovery, &c. 
 
 tingent remainders, remainder to his first and every other son, remainder 
 to his other sons in like manner, remainder to J H's daughters, remainder 
 to the testator's heirs. There was a power for the sons, when in posses- 
 sion, to make jointures and leases, except as to particular lands, and another 
 power for B and the other sons within two years after being in possession, 
 and having a son of the age of eighteen, to revoke the former uses, and to 
 limit new uses, so that the premises be limited to the heirs male of the sons 
 in the same manner as these limitations, and to settle such like power of 
 revocation. The testator died ; B H his eldest son died without issue. H 
 H the second son married and had a son C II, now above twenty-one. H 
 II and his son became indebted by bonds to creditors, and made assign- 
 ments of the settled estates in trust for creditors, and agreed to suffer a 
 common recovery, to make the assignment and provision for the creditors 
 effectual. A bill was brought by the creditors against H H and his son C, 
 and against T H, (the fifth son of J II,) (all the sons who had interme- 
 diate remainders as before, being dead without issue,) and against A B the 
 heir of the surviving trustee, to preserve contingent remainders, in order 
 to compel her to join in a common recovery, and that the plaintiffs might 
 have an effectual security and satisfaction for their debts. Lord Hard- 
 wicke, — It is agreed, there is no precedent where the court have decreed 
 in such cases the trustee to join ; and I am of opinion, this is not such 
 a case, where the court ought to decree it. Trustees of this kind are called 
 honorary trustees, and intrusted by parties to preserve the contingent re- 
 mainders : but, I will not say, if the trustee who is appointed should join, 
 it would be such a breach of trust that this court would decree a satisfac- 
 tion. The reason of making the father tenant for ninety-nine years is, in 
 order to preserve the estate. It may likewise be the design of such settle- 
 ments to prevent the father's influence over the son when of age, if the 
 father Avere seised of the freehold, to get the son to destroy the settlement. 
 Here the intention is to pay the debts of the father. The objection is, that 
 the trustee is trustee for the first tenant in tail, and,that when the tenant in 
 tail is seised of the freehold, then he has a power to bar, and not before. 
 As to the cases, there are but few: Mr. Wilmington's was in order to let 
 in the jointure, and a provision for younger children, Avhich was still carry- 
 ing it on in the family. The argument made use of by the plaintiff's 
 counsel, was, that here it is prayed to execute the trust of articles ; and to 
 be sure, it is true ; but this court is not to decree every trust created by 
 the parties ; and though, as has been said before, the court might not con- 
 demn the trustee if he consented, yet it does not follow that the court will 
 compel the trustee, and I think this the very case which was intended to 
 be prevented by the trust ; wherefore the bill must be dismissed. 
 Woodhouse v. Hoakjns, 3 Atk. 22. 
 
 F B devised freehold and copyhold estates to T C B for ninety-nine 
 years, if he should so long live, remainder to the defendant L, during the 
 life of T C B, in trust to preserve contingent remainders, remainder to the 
 first and other sons of T C B in tail-male, remainder to J W in fee. T C 
 B had issue only one son, who had attained twenty-one years of age, and 
 the father and son now filed a bill against' L, the trustee, and J W the re- 
 mainder-man, stating, that they were desirous of suffering a recovery and 
 limiting the estate so as to preserve the contingent remainders to the second 
 and other sons of T C B, and praying, that L the trustee might be decreed 
 to join in making a tenant to the praecipe for that purpose, submitting to
 
 USES AND TRUSTS. 225 
 
 (H) What Estate Trustee shall eonvey, and to whom. 
 
 declare the uses of the recovery to the second and other sons of T C B, 
 by way of contingent remainders as limited by the will, and to limit an 
 estate to a trustee for the purpose of supporting and preserving those 
 contingent remainders. The Master of the Rolls, Sir Thomas Sewell, ob- 
 served, that, with respect to remainders to remote relations in settlements, 
 where the persons to whom they were limited were not the immediate ob- 
 jects of the parties, or, where they stand in opposition to the first tenant 
 in tail, desiring a reasonable benefit, consistent with the intentions of the 
 creator of the limitations, their pretensions have not been much considered ; 
 but in the principal case, all took as volunteers, and were all equally to 
 be attended to. His honour then considered the several cases on this 
 subject, and said, that, from a view of them all, it seemed, that when the 
 eldest son, tenant in tail, is of age, and about to marry, and thereby con- 
 tinue, instead of destroying the purposes of the settlement, and in some 
 cases where there has been particular distress under particular circum- 
 stances, which ought to have induced the trustee to join, the court has 
 interfered ; otherwise not : that in the principal case he was called upon 
 to disturb the testator's disposition merely for the sake of disturbing it, 
 for which he saw no reason, and dismissed the bill with costs. 
 
 Barnard v. Large, 2 Cox's P. Wms. 684, note ; 1 Bro. Ch. R. 534, S. C. ; AmU. 
 774, S. C] 
 
 Cestui que trust in tail under a devise of lands charged with annuities, 
 brings a bill against the trustees, to the intent they should join in a re- 
 covery. This is not proper, but it is proper to pray, that the trustees 
 may convey the premises to cestui que trust in tail, who may then suffer 
 a recovery ; though if the trustees are also trustees for an annuity sub- 
 sisting, they are not compellable to part with the legal estate out of them 
 to the cestui que trust in tail. 
 
 2 P. Wms. R. 134, Carteret v. Carteret. || See Young v. Leigh, Gary, 95. || 
 
 Note : A devise to trustees, and their heirs in trust to sell, is deemed 
 
 equitable assets, in order to make an equal distribution among all the 
 
 creditors. 
 
 Howard v. Hall, Hil. 1744, MS. Rep. [The rule now seems to he, that wherever 
 the character of trustee can he fastened on the devisee, the assets shall he equitable. 
 Lewin v. Oakley, 2 Atk. 50 ; Silk v. Prime, 1 Bro. Ch. R. 138 ; Batson v. Lindcgreen, 
 2 Bro. Ch. R. 94.] 
 
 (U) When a Trust is to be executed, what Estate or Interest is to be conveyed, and 
 
 to whom. 
 
 It is now constantly held in Chancery, that if lands are vested in trus- 
 tees to the use of one and the heirs of his body, with remainder over, that 
 the trustees are not to convey a fee, but an estate-tail, though he will 
 have power to bar the entail, when the conveyance is made to him, and 
 it would avoid circuity. So, if a sum of money be appointed to be laid 
 out in a purchase, and the lands to be settled in tail ; the purchase and 
 settlement shall be made accordingly, and not the money paid to the party ; 
 for the remainder-man has a chance for the estate, in case the tenant in 
 tail in possession die without issue before any recovery suffered, which 
 he may omit through ignorance or forgetfulness, or he may be prevented 
 by death before he has completed it. 
 
 1 Abr. Ex. Ca. 395. 
 
 II But now by the 40 G. 3, c. 56, it is enacted, that in all cases where 
 Vol. X.— 29
 
 226 USES AND TRUSTS. 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 money under the control of any court of equity, or to which any indivi- 
 duals, as trustees are possessed or entitled, shall be subject to be invested 
 in lands, &c, to be settled upon any persons in such manner that it would 
 be competent in case such money had been invested in the purchase of 
 real estates for the person who would be tenant of the first estate-tail 
 therein, either alone or together with the owner of the particular preced- 
 ing estate, by deed, fine, or recovery, or any of them, or other lawful act 
 to bar the estate-tail and the interests of the remainder-man, it shall not 
 be necessary to have such money actually invested in lands, in order that 
 such estates and remainders may be so barred, but that it shall be lawful 
 for the High Court of Chancery, or such court under control of which 
 such money shall be, and in case of trustees, for the High Court of Chan- 
 cery in a summary way upon petition of the person who would be tenant 
 of the first estate-tail, and of the person who would be owner of the pre- 
 cedent particular estate, to order the moneys subject to such trusts to 
 be paid to such petitioner, to be paid and applied in such manner as the 
 petitioner shall appoint and the court shall approve. || 
 
 Where an estate was limited to A and B in trust for C, and the heirs 
 of his body, proviso, that if he die without issue, then in trust for D for 
 life, with remainder over, and C brought his bill to have the trustees 
 make a conveyance of the legal estate to him, and that it might be to him 
 in fee, to prevent him from suffering a recovery, the trustees by answer 
 submitted to the court : but the other remainder-men, who were defend- 
 ants, opposed the executing any legal estate to C, because he would then 
 suffer a recovery, and defeat the intent of the donor, which was, that it 
 should be preserved for them, in case C had no issue. They alleged, 
 that C had married improvidently and was extravagant, and would spend 
 the estate, and cited the case at the end of Twine's case, 3 Co., where, 
 if an improvident man makes a voluntary settlement to put it out of his 
 power to spend his estate, this settlement shall be supported even at law ; 
 and therefore a court of equity will never help an extravagant man to de- 
 stroy such a settlement as this ; and that, in the case of Sir Fra. Garrard, 
 the Lord Ch. Jefferies had refused to decree the trustees for Sir Francis 
 and the heirs of his body, with a remainder to a charity, to convey the 
 legal estate, so as to enable him to suffer a recovery. On the other side, 
 it was said, there was no reason any trustee should hold my estate, whether 
 I will or no ; and that, if a court of equity did not decree a conveyance 
 in such case, it would be establishing a perpetuity ; and that the constant 
 course of this court is, that when money is given to be laid out in a pur- 
 chase to be settled in tail, with remainders over, the court will decree 
 the money to him that was to be tenant in tail, if he desire it, to prevent 
 circuity. But the Master of the Bolls decreed the trustees to execute a 
 conveyance to C in tail, but would not decree the conveyance to be in 
 fee, though pressed to it ; and he said there may be many reasons why 
 a court of equity would not decree a conveyance at all in such a case, 
 sometimes for a politic reason, as if it were to enable a nobleman to suffer 
 a recovery, and leave the honour bare, without estate ; or if the party 
 were a notorious spendthri ft, or when the estate-tail was only by implication, 
 as he said ho took it in Sir Fra. Garrard's case : and he thought it would 
 be an ungodly thing in the trustees to execute a conveyance of the legal 
 estate in such case as this at the bar, without a decree of the court. 
 Hil. 1701, Saunders and Nevil. Note: Though the court would not 
 decree a conveyance in Sir Fra. Garrard's case, yet he suffered a re-
 
 USES AND TRUSTS. 007 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 eovery as cestui que trust in tail, which was held good, and tnc estate 
 enjoyed under it discharged of the charity. 
 
 1 Abr. Eq. Ca. 1592. 
 
 Where a question arises how a trust ought to be executed by a convey- 
 ance, there is no better rule than to observe and follow what luix been done 
 at law in executing conditions that are matters executory, and to be per- 
 formed so far as the case will admit of. Per Cowper, 0. 
 
 2 Yern. 73G, pi. G44, Xe we omen v. Bavkham, 
 
 If tenant for life and remainder -man in tail join in a bill against trus- 
 tee, the court will decree the trustee to convey to them, or to whom they 
 appoint ; and possibly he may pay costs for refusing to convey, and put- 
 ting his cestui que trust to the charge of an unnecessary suit. 
 
 2 Yern. 340, Bowatcr v. Elly. 
 
 A devised lands to a company in trust to convey to B for life, remain- 
 der to his first, &c, sons for their lives successively, and so to their issue 
 male for their lives only, remainder over. Per cur. — An attempt to make 
 a perpetual succession of estates for life is vain, and an impracticable 
 perpetuity. However, the trustees must make as strict a settlement as 
 may be, so that the persons in being are to be made only tenants for life ; 
 but where the limitation was to be to the son not in being, there he 
 must be made tenant in tail-male. 
 
 2 Vera. 737, pi. G4G, Ilumberston v. Ilumherston. 
 
 A husband, as administrator to his wife, obtained a decree against the 
 trustees to raise her portion ; but he, being a younger brother, having 
 made no settlement on her, and having a son by her, the money was de- 
 creed to be raised, and put out for his benefit for life, then to the son for 
 life ; and if he leaves issue, and the father survives, he to have it. 
 
 I E [. Abr. Cas. 392, Whytham v. Cawthora. 
 
 [A, in consideration of an intended marriage, entered into articles, by 
 which he covenanted with trustees to settle an estate to the use of himself 
 for life, without impeachment of waste, remainder to his intended wife for 
 life, remainder to the use of the heirs male of his body upon the bodv of 
 his intended wife to be begotten, and the heirs males of such heirs males 
 issuing, remainder to the right heirs of the said A for ever ; and cove- 
 nanted, that in case the said limitations were not thereafter well raised, 
 according to the intent of the said articles, that he and his heirs would 
 stand seised of the premises, until a further assurance thereof should be 
 made to such uses, intents, and purposes, as in the articles were before 
 expressed and declared. The marriage took effect, and A had issue four 
 sons and two daughters. The articles were laid In/ unnoticed for several 
 years, and A levied a fine of the lands (supposing himself to be tenant in 
 tail under the articles;) and afterwards, both the trustees being dead, 
 without requesting a settlement, A's eldest son having married against 
 his father's consent, and by several other acts of weakness and disobedi- 
 ence much offended him, A, by deed reciting the said articles, and the 
 weakness and disobedience of his eldest son, declared, that the said fine so 
 levied by him, should inure to the use of himself for life, without impeach- 
 ment of waste, remainder to his wife for life, remainder to his second son 
 in tail-male, with like remainders to his two younger sons, with remainder 
 to his own right heirs ; and after making a like settlement of other hinds, 
 A died intestate, leaving a great personal estate, and leaving a real estate
 
 228 USES AND TRUSTS. 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 in Ireland, and new-purchased lands in England, together of the value of 
 1000/. per annum, and upwards. Upon his death, the estate in Ireland 
 and the new-purchased lands descended to his eldest son, who also became 
 entitled to his share (upwards of 9000/.) of the personal estate. The second 
 son entered upon the settled estates ; and the eldest son having got pos- 
 session of the articles, which it appeared had been thrown by several 
 years as useless, brought his bill for a specific performance thereof. 
 1 Eq, Abr, 387, Trevor v. Trevor. 
 
 It was insisted for the defendant, that though by the first part of the 
 articles they seemed to be executory, yet by the covenant to stand seised 
 in the last part of them, they were actually and immediately executed ; 
 that he thereby covenanted to stand seised to the before-mentioned uses, 
 till a settlement was made accordingly ; that no settlement having been 
 made, the uses continued to be executed by virtue of that covenant ; that 
 by these uses he was plainly tenant in tail and by the fine had bound his 
 issue and made himself master of the estate, and might dispose of it as he 
 thought fit. But Lord Chancellor said, that upon articles the ease was 
 stronger than on a will : that articles were only minutes or heads of the 
 agreement of the parties, and ought to be so modelled, when they come 
 to be carried into execution, as to make them effectual. That the inten- 
 tion was to give A only an estate for life ; that if it had been otherwise, 
 the settlement would have been vain and ineffectual ; and it would have 
 been in A's power, as soon as the articles were made, to have destroyed 
 them ; that the covenant to stand seised was until such time as the said 
 uses were well raised, according to the true intent and meaning of the 
 articles. Tliai jf a settlement had been made defective in any particular, 
 h would not bav«3 been final or conclusive ; that a second settlement must 
 have been made till the uses were well and truly raised ; and that this cove- 
 nant for ever subsisted till such settlement should be made ; that he hoped 
 never to see the time ^hen the court would so far have power as to judge 
 what behaviour of a son should amount to a forfeiture of his estate; and 
 therefore thought, if a settlement had been made, no misbehaviour of the 
 son could amount to a forfeiture of it. That this estate being specifically 
 agreed to be settled, it was a trust for the eldest son, which passed with 
 the lands into whose hands soever they came, and could not be defeated by 
 any act of the father or the trustees. And therefore he decreed a con- 
 veyance to the plaintiff, and the heirs male of his body, and an account 
 of the profits from his father's death, and the deeds and writings to be de- 
 livered up. This decree was afterwards affirmed in the House of Lords. 
 ||Soc Hilton v. Biscoe, 2 Ves. 304, 308 ;|| 2 Brown, Cases Pari. 122. 
 
 So where the husband, before marriage, agreed by articles to settle 
 lands to the use of himself and his intended wife for their lives, and the 
 life of the survivor, and afterwards to the use of the heirs of his body on 
 the wife, and after the marriage, by settlement reciting the articles, con- 
 veyed the lands to the use of himself and his wife for their lives, and the life 
 of the survivor, remainder to the use of the heirs of his body by his wife ; 
 it was held not to be a proper execution of the articles, though the articles 
 did not expressly mention the intent to provide for the issue. For, 
 Lord Talbot observed, it could not be doubted but that, upon an applica- 
 tion to the court for carrying the articles into execution, it would have 
 decreed it to be done in the strictest manner, and would never have left 

 
 USES AND TRUSTS. o 29 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 it in the husband's power to defeat and annul every thing he had been 
 doing,(a) and the nature of the 'provision was strong enough for that 
 purpose, without any express words. 
 
 Strcatfield v. Streatfield, Cas. temp. Talb. 176.] ||(a.) Sed vide Chambers v. Cham- 
 bers, 5 Vin. 513 ; Fitzgibb. 127 ; 1 Sand, on Uses, 311. || 
 
 Upon a marriage, articles were entered into, whereby it was agreed, 
 that the wife's portion should be laid out in the purchasing of lands, which 
 should be settled on the husband and wife for their lives, and the life of 
 the longest liver of them, and after to the heirs of the body of the wife 
 by the husband to be begotten ; yet the Master of the Rolls decreed the 
 settlement to be to the first and other sons, &c, so as the husband and 
 wife might not have power to bar the issue. 
 1 Eq. Abr. Ca. 392, Jones v. Laughton. 
 
 So where, on a treaty of marriage between the defendant and the plain- 
 tiff Joanna, the defendant entered into a bond to the plaintiff Joseph, 
 father of the plaintiff Joanna, with condition to surrender certain copyhold 
 lands to the use of himself for life, remainder to the plaintiff Joanna for 
 life, remainder to the heirs of their two bodies to be begotten, with re- 
 mainder to the heirs of the husband ; the marriage took effect, and a bill 
 was brought against the husband to compel a surrender pursuant to the 
 intent of this bond : the husband, making default at the hearing, was 
 decreed to surrender to the use of himself for life, remainder to the use 
 of his wife for life, remainder to the use of their first and other sons in 
 tail general successively, with a remainder to the daughters of their two 
 bodies to be begotten in tail general ; and in the mean time, till such sur- 
 render was made, the court declared that the copyhold land should be 
 held and enjoyed according to these uses. 
 
 Nandick v. Wilkes, 1 Eq. Ca. Abr. 393; Gilb. Eq. II. 114, S. C, under the name 
 of Nandike v. Wilkes, in totidem verbis. Note. — This decree was on a bond, where, 
 though the penalty seems to have been the only sanction intended for securing the 
 performance of the condition, yet a specific execution was decreed, and in such a man- 
 ner too as effectually to secure the issue from being defeated by making them pur- 
 chasers. But note, in Gilbert, there is no mention in the decree of the remainder to 
 the wife for life. 
 
 [Where articles were entered into by the husband, in which he cove- 
 nanted that as well all the real estate that he had then in Ireland, as all the 
 lands and tenements which he should purchase during the life of his in- 
 tended wife, should descend and come to the heirs male to be begotten on 
 the body of the intended tvife by the husband, and should be secured and 
 settled on the said heirs male by the husband, as the counsel of the in- 
 tended wife should advise. Upon an appeal to the House of Lords, from 
 a decree of the Court of Chancery in Ireland, the decree Avas reversed ; 
 and it was ordered that a son of the marriage should be deemed a tenant 
 in tail, under the articles, and to hold and enjoy the lands against all 
 persons claiming under a subsequent settlement by his father ; who had 
 levied fines and suffered recoveries to bar the supposed entail. 
 Cusack v. Cusack, 1 Bro. Ca. Pari. 470. 
 
 And in a case where the husband entered into a bond to surrender copy- 
 holds to the use of himself for life, remainder to his wife for life, remain- 
 der to the heirs of their bodies, then to the husband in fee ; upon a bill 
 against the husband, after the marriage, for execution of this engagement, 
 the decree was, for him to surrender to the use of himself for life, remain- 
 
 U
 
 230 USES AND TRUSTS. 
 
 (II) What Estate Trustee shall convey, and to -whom. 
 
 dcr to the use of his wife for life, remainder to the use of the first and 
 other sons in tail general successively, with remainder to the daughters 
 in tail general. 
 
 Nartdick v. Wilkes, 1 Eq. Abr. 303, c. 5 ; Gilb. Eq. R. 114. 
 
 So, where the intended wife's estate was articled to be settled on the 
 husband and wife, and on the heirs of their Uvo bodies, Lord Cowper ad- 
 mitted, that if no settlement had been made, the court would have taken 
 care to secure to the daughters the provision intended them by the articles. 
 
 Vide Burton v. Hastings, infra, 232. 
 
 Where, by articles previous to marriage, it was agreed to purchase 
 lands, and settle them to the use of the husband for life, then of the wife 
 for life, remainder to the use of the heirs of her body by him; they pur- 
 chased and joined in a recovery to the use of a mortgagee in fee. Upon 
 a bill by the eldest son after the death of his mother, insisting that he was 
 entitled, on the construction of these articles in equity, to have the estate 
 settled to the first, &c, son in tail-male, Sir Joseph Jekyll said, that if 
 this had been a common limitation, he should have thought what was 
 insisted on was right, and that the mortgagee must have lost his estate. 
 But that this was particular to the heirs of the body of the ivife by the 
 husband, and being ex provisione viri, would secure the children against 
 the father alone ; and that it might be the real intent that both might bar, 
 comparing it to a poiver of revocation both by the father and mother; 
 and the defendant was therefore well barred. 
 Whateley v. Kemp, cited 2 Yes. 358. 
 
 So, in a subsequent case, Lord Hardwicke said he might compare it to 
 the case where, by a settlement of lands, the wife has an estate ex provi- 
 sione virie ; the court has refused to interpose to settle the estate otherwise, 
 because the intent will prevail, since she cannot alien by stat. 11 H. 7 
 
 Green v. Ekin, 2 Atk. 473. 
 
 Again, by marriage articles customary lands of inheritance of the in- 
 tended husband, holden by copy of court-roll, were agreed to be settled 
 to the use of the intended husband for life, remainder to his intended wife 
 for life, and after the deceases of both, to the use of the heirs of her body 
 by him if he survived her, but if she survived him, to the heirs of his body 
 on her body to be begotten, remainder to his own right heirs. The mar- 
 riage was had, and the husband afterwards surrendered the lands to the 
 uses mentioned in the articles, and was admitted accordingly. And at 
 the same court he and his wife surrendered to certain uses. And on a 
 question between a son of the marriage claiming under the entail in the 
 articles, and others claiming under the said surrender by the husband and 
 wife: one of the points made, and that on which the decision proceeded, 
 was, Whether the surrender to the uses in the articles was a due execu- 
 tion of the uses of the articles ; and whether, by the subsequent surrender, 
 the husband gained an absolute power over the wife ? We are to ob- 
 serve, that estates-tail were barable by surrender, according to the custom. 
 
 Highway et nl. v. Banner et al., 1 Bro. Chan. Ca. 584. ||See Fearne's C. R. 34, 
 95, (7th edit.,) Brudenell v. Elwes, 7 Ves. 390. || 
 
 The Master of the Rolls said, that the rule had been settled and adhered 
 to in many cases, that articles for a settlement on a husband, and the heirs 
 of his body, should be carried into execution in strict settlement ; and it
 
 USES AND TRUSTS. 031 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 had been considered as vain to make a settlement which instantly might 
 be defeated by a recovery ; but the doctrine had never gone so far, where 
 that party coixld not suffer a recovery alone. He observed, that it was 
 anciently a common mode of settlement to the husband for life, to the 
 wife for life, and to the heirs of the body of the wife by the husband ; it 
 was thought a sufficient precaution to preserve the entail, that it could 
 not be destroyed unless both husband and wife concurred. That in the 
 principal case, the limitations appeared to be anxiously worded ; the con- 
 currence of both parties was necessary to destroy the entail ; it was out 
 of the power of the survivor, He was not to look to the impropriety of 
 what had been done, but to the powv-i the parties had to do it, and he 
 thought that point clear. 
 
 In a case where money, in the hands of trustees, was articled to be laid 
 out in the purchase of lands to be settled on the husband fur life, remain- 
 der to the intended wife for life for her jointure, remainder to the first and 
 other son and sons of the marriage in tail-male successively, chargeable 
 with 2000£. for younger children, remainder to the husband in fee; and 
 the husband's father by the same articles covenanted to settle other lands 
 on the husband, and the heirs male of his body, remainder to the heirs of 
 the father: upon a question, Whether a subsequent settlement of the last 
 mentioned lands by the husband's father, on the husband and the heirs 
 male of his body, with remainder to the father in fee, was a good perform- 
 ance of the agreement ; or whether the limitation ought not to have been on 
 the husband for life, with remainder to the first and other so)is in tail-male 
 successively in strict settlement? Lord Chancellor King held, that the 
 settlement was a good execution of the agreement, and therefore confirmed 
 the settlement. He said, that by the articles those lands were not intended 
 to be settled as a provision for the children of that marriage, they were 
 taken care of by the other part of the articles by the trust-money ; and 
 it Avas not like the common case of articles for a settlement on the issue 
 of the marriage where no other provision or care is taken for them ; and 
 the different manner of penning the articles in relation to the trust- 
 money, and as to those lands, the one to be in strict settlement to the first, 
 &c, son of that marriage, the other limited to the husband and the heirs 
 male of his body generally, and not tied up to the issue of that marriage, 
 showed plainly the parties understood, and had in contemplation the dif- 
 ference between a strict settlement upon the issue of that marriage, and 
 a general settlement upon the husband and the heirs male of his body. 
 
 Chambers v. Chambers, Fitzgibb. II. 127; 2 Eq. Abr. 35, c. 4 ; II 1 Sand, on Uses, 
 311.|| 
 
 And accordingly, in a case of marriage articles, where part of the estate 
 
 was limited to the husband for life, remainder to the wife for life, and after 
 
 the death of the survivor, remainder to the heirs of the body of the wife 
 
 by the husband, another part to the husband for life, remainder to the 
 
 heirs of his body, remainder to the wife; upon a bill filed by the eldest son 
 
 to have the articles carried into execution strictly to the first, &c, son in 
 
 tail, Lord Hardwicke observed, there was a difference in the penning of the 
 
 two limitations : on the first they might have it in view to leave it in 
 
 the power not of the father only, but of both to vary; but on the second 
 
 there could be no sense of the limitation, but as the son contended for; 
 
 otherwise it would be absolutely in the power of the father, by fine, to bar 
 
 it 7 and defeat all the issue. They intended the wife should have a join-
 
 232 USES AND TRUSTS. 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 turc in the one, in the other not. It seemed a strong distinction on the 
 face of the articles, and there had been cases adjudged on that. That 
 where by articles part of an estate was limited to father for life, to wife for 
 life, to first and every other sons and daughters in tail, another part to tes- 
 tator for life, and the heirs male of his body by that ivife, Lord Macclesfield 
 said, if that had been the sole limitation, he should, without scruple, decree 
 in strict settlement according to the common rule ; but where the parties had 
 shown they knew the distinction when to put it out of the poiver of the father, 
 and when to leave it in his power, he would not vary the last limitation ; 
 decreeing to the father in tail as to the last, though not as to the first. 
 That as in the principal case there was a difference in the penning of the 
 articles, in one of which they might intend to leave it in the power of the 
 father, in the other not in his power to do it alone, it was a reasonable way. 
 
 Howell v. Howell, 2 Ves. 358. The report in Vesey does not ascertain the case 
 thus cited by Lord Hardwicke. 
 
 Articles were made previous to, and in consideration of a marriage, for 
 settling lands to the use of the husband for life, remainder to the wife for 
 life, remainder to the heirs of the body of the wife by the husband begotten, 
 remainder to the husband in fee ; and before the marriage a settlement was 
 made reciting the articles, and expressed to be in pursuance thereof, limiting 
 the lands to the use of the husband for life, remainder to the wif" *■•» life, 
 remainder to the heirs of the body of the husband by the wife, iv..iainder 
 to him in fee. There was issue of the marriage one son ; the father married 
 again, had several other children, and having procured his son, without 
 any consideration, to join with him in mortgaging the estate, and limiting 
 the fee-simple and equity of redemption to the father ; upon a bill after- 
 wards brought by the son to compel his father to resettle the land on the 
 son, after his (the father's) death, pursuant to the articles, 
 
 Lord Chancellor held it was a plain mistake in making the settlement 
 vary from the articles, which were prudent articles; and the settlement, 
 said to be made pursuant thereto, showed there was no alteration of the 
 intention, nor any new agreement between the making of the articles and 
 the settlement ; and this appearing on the face of the articles and settle- 
 ment, the length of time (about twenty-five years) was immaterial. And 
 he decreed the father and his second wife to join in a conveyance to settle 
 the estate as by the articles, viz., to the father for life, remainder to the 
 son in tail ; but as to the mortgage, the son having joined in it, the court 
 eould not set it aside, but directed the father to keep down the interest 
 during his life. 
 
 Honor v. Honor, 2 Vera. C58 ; 1 P. Wins. 123. 
 
 But where marriage articles were entered into for settling the wife's 
 estate on the husband and wife, and on the heirs of their tivo bodies to be 
 begotten : after the marriage, a settlement was made of the lands upon the 
 husband and wife for their lives, remainder to the heirs of the body of the 
 wife by her said husband : there was issue of the marriage one daughter 
 only ; and after the death of the husband, his widow married again, joined 
 in a fine of the lands, and settled them to other uses : a bill was brought 
 by the daughter of the first marriage, to carry the articles into execution ; 
 for that no care was taken of the daughters by the settlement, as the limita- 
 tion to the heirs of the body of the wife by her first husband made her 
 tenant in tail ; and consequently left her the power to bar them, which was 
 contrary to the intent of the articles, that being to make an effectual pro-
 
 USES AND TRUSTS. 233 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 vision for all the issue of that marriage. But Lord Cowper dismissed the 
 bill ; saying, if no settlement had been made, and application had been 
 made to the court for making one pursuant to the articles, the court 
 would have taken care to have secured to the daughters the provision 
 intended them by the articles. But a settlement having been actually 
 made and accepted by the parties, he could make no alteration in it. 
 Burton v. Hastings, Gilb. Eq. R. 113 ; Eq. Abr. 393. 
 
 A^ain, articles were entered into for settling lands to the use of B the 
 intended husband for life, without waste, remainder to M the intended 
 wife for life, remainder to the heirs male of the body of B by 31, remain- 
 der to the heirs male of the body of B by any other wife, remainder to 
 the heirs female of the body of B by the said M, with leasing and join- 
 turing powers to B. Afterwards and before the marriage, a settlement 
 was made, and mentioned to be in pursuance and performance of the 
 articles ; and the lands were thereby limited to B for life, remainder to 
 M for life, remainder to the first, &c, son of the marriage successively 
 in tail-male, remainder to the first, &c, son of B by any other wife in 
 tail-male successively, remainder to the heirs of the body of the said B by 
 the said 31, remainder over. They had issue only one daughter, who 
 died, leaving two daughters. B having an estate-tail under the limita- 
 tion to the heirs of the body, $c, suffered a recovery, sold part of the 
 lands, devised the residue, and died. The grand-daughters brought their 
 bill in the Exchecpuer against the executors of B to rectify the mistake 
 in the settlement, in limiting an estate-tail to B, instead of limiting it in 
 strict settlement, as by the articles it ought to have been. The articles 
 were made in December, the settlement in March, 1G85 ; the sale of the 
 lands in 1698, and the will in 1722 : the defendant pleaded the settle- 
 ment, the recovery, the will, and the long enjoyment ; but the plea was 
 overruled by Lord Chief Baron Gilbert and the other barons ; and after 
 hearing the cause, Lord Chief Baron Pengelly and the other barons dis- 
 missed the bill without costs ; it appearing to them dangerous to set aside 
 a settlement, which seemed to have been solemnly and deliberately made. 
 But on an appeal to the Lords, this dismission was reversed, and the 
 lands not sold were decreed to be conveyed to the grand-daughters and 
 heirs female of their bodies, as tenants in common, with cross remainders 
 to them in tail female ; and the devisee to account for the profits, and the 
 executor to account for the purchase-money received by B for the lands 
 by him sold, and to pay interest for the same ; the writings to be brought 
 into the Court of Exchequer, and possession to be delivered to the appel- 
 lants ; and the principal moneys arising by the said sale, to be laid out 
 in lands, to be settled to the same uses as the lands unsold were decreed 
 to be conveyed to. 
 
 2 P. Wms. 349, West v. Errissey. ||See Randall v. Willis, 5 Yes. 202 ; Home v. 
 Barton, Cooper, 257 ;|| 3 Bro. Cas. Pari. 327. 
 
 Marriage articles were entered into for settling lands to the use of the 
 husband D for life, without waste, remainder to trustees and their heirs 
 during his life, to support contingent remainders, remainder in part to the 
 wife E for her jointure, remainder as to the whole to first, &C, son of the 
 marriage, in tail-male successively, remainder to the heirs -male of the body 
 of the husband, (a. e. by any wife,) remainder to the heirs of his body by his 
 said wife E, remainder to his own right heirs, with a clause empowering 
 husband and wife to make leases ; and also a clause, that if he should die 
 
 Vol. X.— 30 u 2
 
 234 USES AiSD TRUSTS. 
 
 (II) What Estate Trustee shall convey, and to -whom. 
 
 without issue male by his said wife, if there should be one daughter, she 
 should have 3000?., and if there were more daughters than one, they should 
 have 4000?. among them ; which portions were to be secured on some 
 part of the estate. It happened there was issue of the marriage only one 
 daughter. D survived his wife, and suffered a common recovery of the 
 lands, and made another settlement of them in consideration of, and pre- 
 vious to, his second marriage ; subject as to part to a trust for raising 
 3000?. for his daughter by his first wife, in satisfaction of the portion she 
 was entitled to under the first articles, and maintenance for her in the mean 
 time. The question was, (here being notice of the first articles,) whether 
 the limitation in the first articles to the heirs of the body of 1) by E his 
 wife, should not be taken as if it had been to the daughters of D by his 
 said first wife ? For then they could not be barred by the recovery con- 
 sidering the preceding intermediate limitation to the heirs male of his body 
 at the same time as words of purchase. It was insisted, that here the 
 limitation to the heirs of the body of D by E his first wife, must be the 
 same as if it had been to the daughters: for it could not be intended in 
 favour of the sons of that marriage, there being an express limitation 
 before to them ; and though in the case of a settlement, there beino- a 
 precedent estate for life to D, it would have been an estate-tail in him 
 barrable by the common recovery, yet it was otherwise where it rested 
 upon articles ; and the case of West v. Errisscy was cited. (Supra.) 
 Powell v. Price, 2 P. Wms. 535. 
 
 On the other side it was said, and resolved that the 3000?. secured by 
 the settlement on the second marriage, was an actual satisfaction of all 
 demands under the articles; and that though a limitation by articles to 
 the heirs male of the marriage, after an express estate for life to the father, 
 should be taken to mean a remainder to the first, &c, son, it does not 
 follow that a limitation to the heirs of the body must be equivalent to a 
 remainder limited to daughters ; especially in this case, where they were 
 postponed to the limitation to the heirs male of the body of D by any 
 wife ; and where there was an express pecuniary provision made for the 
 daughters by the first wife ; which was all they were to depend upon. 
 
 And the following diversities were taken by the court, between this 
 last case and the case of West and Errissey ; in the case of West and 
 Errissey, no portions were provided for the daughters of the first mar- 
 riage ; in the last case, portions in all events were secured to such daugh- 
 ters. In the case of West v. Errissey, after the limitation in the articles 
 to the heirs male of the body of the husband and wife, and the remainder 
 to the heirs male of the body of the husband by any wife, came the re- 
 mainder to the heirs female of the body of the husband by the first wife, 
 &c, so that the daughters were more immediately in the view and con- 
 templation of the parties than in the last case. 
 
 See Fearnc'a C. K. 10(5, (7th edit.) 
 
 An estate was articled to be settled on the husband for life, sans waste, 
 remainder to the heirs male of his body, with power to raise portions for 
 younger children. A settlement was afterwards made, before marriage, 
 in pursuance of the articles, and observing the very words of the articles. 
 The husband afterwards levied a fine to the use of himself in fee, and by 
 will made a provision for his son's debts. Lord Hardwicke said it was 
 the common case ; the variation from the intent of the articles, and from 
 the ordinary course of settlements not arising from any new agreement,
 
 USES AND TRUSTS. 035 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 (being made in pursuance of the articles,) but from mistake in not attend- 
 in"; to a strict settlement. The reason of which was unanswerable, viz., 
 that on a settlement for valuable considerations, to make the father tenant 
 in tail would be nugatory, and the same as making him tenant in fee. 
 But the son having submitted to and taken a benefit under his father's 
 will, must be bound thereby ; and therefore, though he was entitled to 
 have the settlement rectified according to the true intent of the articles, 
 he could not retain both, but must make his election. 
 
 Roberts v. Kingsley, 1 Yes. 238. Vide 1 Bro. Chan. Ca. 587, of election in these 
 cases. 
 
 By articles previous to marriage, it was agreed that 3000Z. should be 
 laid out in the purchase of a freehold estate, to be settled on the husband 
 for life, remainder to the wife for life, remainder to the use of such issue 
 of their bodies, in such parts and manner as the husband and wife should 
 by deed or writing appoint ; and for want of appointment to the use of the 
 issue of their bodies, remainder to the right heirs of the husband. There 
 was no provision for younger children. The husband died without ap- 
 pointment, leaving his wife and two sons and a daughter. Upon a bill by 
 the eldest son to have the money laid out, according to the articles in land 
 to be settled on him in tail, remainder to his brother and sister in tail, with 
 reversion in fee to himself; and a cross bill by the younger children to 
 have the lands to be bought, settled on them equally with the eldest son. 
 The Master of the Rolls was of opinion, that the lands to be purchased 
 ought to be settled in strict settlement, and limited to the first, &c, sons 
 in tail, with remainder (the daughter being dead without issue) to the 
 right heirs of the husband ; and decreed accordingly. 
 Dodd v. Dodd, Ambl. R. 274. 
 
 » 
 
 Lord Talbot laid it down as a rule, that where articles are entered into 
 before marriage, and a settlement made after marriage, different from those 
 articles, (as if by articles the estate was to be in strict settlement, and by 
 the settlement the husband is made tenant in tail,) the court will set up the 
 articles against the settlement. But, where both articles and settlement 
 are previous to the marriage, at a time when all parties are at liberty, the 
 settlement, differing from the articles, will be taken as a new agreement 
 between them, and shall control the articles. And although in the case of 
 West and Errissey the articles were made to control the settlement made 
 before marriage, yet that resolution did not contradict the general rule ; for 
 in that case the settlement was expressly mentioned to be made in pursu- 
 ance and performance of the said marriage articles, whereby the intent 
 appeared to be still the sanye as it was at the making of the articles. 
 
 Ca. temp. Talb. 20, Legg v. Goldwirc. { See 5 Ves. J. 202, Randall v. Willis. } 
 
 Articles were entered into for settling an estate to the husband for life, 
 after his death to his intended wife for her life, and after her death to the 
 use of the heir male of the husband to be begotten on the body of the wife, 
 afterwards, and before marriage, by a settlement declared to be in part per- 
 formance of the said articles, the lands were settled upon the husband for 
 life, then to the wife for life, and after her death to the use of the heirs male 
 of the husband begotten on the body of the wife. Afterwards the marriage 
 took effect, and the husband suffered a common recovery, and mortgaged 
 the land in fee; which mortgage was afterwards assigned to another mort- 
 gagee. After the father's death, his eldest son brought his bill for an ac-
 
 236 USES AND TRUSTS. 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 count of the rents and profits, and for possession, and to have the full be- 
 nefit of the marriage articles ; insisting that his father was intended to be 
 tenant for life only, with remainder to his first and other son and sons suc- 
 cessively in tail ; that he was a purchaser under those articles, and they 
 ought to be considered as if they had been strictly carried into execution. 
 The mortgagee denied notice of the articles, and insisted on his being a 
 purchaser for valuable consideration. Lord Hardwicke said it was cer- 
 tainly true, from the general principles of the court, that if articles on mar- 
 riage are to settle an estate to A for life, remainder to his wife for life, re- 
 mainder to the heirs male of the body of A, it is taken in that court to be in 
 strict settlement, and an estate for life only in the father and mother ; and if 
 the settlement be made after marriage, it shall be rectified by the articles 
 before ; — that the case of West and Errissey was both upon articles and a 
 settlement before marriage ; and was the first case where the court altered 
 a settlement, and made it conformable to articles, and relieved on the head 
 of mistake, the settlement referring expressly to the articles. But that was 
 between the parties to the articles and settlement, and their representatives, 
 and mere volunteers ; and had not been carried into execution against a 
 purchaser ; — that it was true, the court had given relief against persons 
 who claimed under the settlement and their representatives; but no case 
 had gone so far as to relieve against purchasers. He also observed, that 
 there was no case, but where there are articles as well as a settlement, in 
 which the court will construe words which make a legal estate-tail, to be 
 carried into strict settlement. And upon the whole, Lord Hardwicke, 
 after delivering his opinion that there was not sufficient proof of notice 
 of the articles in the assignee of the mortgagee, dismissed the bill so far 
 as it prayed to be relieved against the mortgage ; but decreed that the 
 plaintiff might be at liberty to redeem. 
 
 Warwick v. Warwick and Kniveton, 3 Atk. 291 ; Glanville v. Payne, 2 Atk. 39, S. 
 P. || See Senhouse v. Earl, Ambl. 285 ; and see 9 Ves. 583 ; per the Master of the 
 
 Rolls. || 
 
 And the court have refused to rectify a settlement according to articles, 
 for want of the production of the articles themselves. The articles were 
 previous to marriage, for settling, by the wife's father, certain estates to the 
 use of the husband and wife for their lives, and the life of the survivor, and 
 after the death of the survivor, to the use of the heirs of the body of the 
 husband on the wife, remainder over. A settlement was made after 
 marriage reciting the articles, and said to be made in consideration of the 
 marriage, and pursuance and performance of the articles. Upon a bill 
 by a son of the marriage, to have the articles carried into execution, Lord 
 Hardwicke dismissed it, for want of the articles being produced ; by 
 which alone, he said, he could alter the settlement. It was impossible, 
 he said, for him to determine otherwise, unless the whole of the instru- 
 ment was before him ; for the true construction depended on words ; and 
 other parts of the deed might be material to find out the true meaning. 
 He could not see reason to lay it down as a rule, that in all cases of 
 articles, the husband was to be only tenant for life. 
 
 Ambl. It. 515. ||See Hardy v. Reeves, 5 Ves. 42G ;|| and vide Ambl. R. 218. 
 
 The husband, upon his marriage, covenanted to levy a fine of freehold, 
 and surrender copyhold lands to the use of himself for life, remainder to 
 his wife for life, remainder to the heirs male of his body by his wife, re-
 
 USES AND TRUSTS. 237 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 mainder to the heirs of their two bodies. He afterwards died, without 
 levying the fine or making the surrender, leaving a son and a daughter 
 by his wife. The son afterwards, for indemnifying some sureties for him, 
 covenanted to levy a fine of the freehold, and surrender the copyholds ; 
 and died, having surrendered the copyhold, but without levying a fine 
 of the freehold. Upon a bill by his sister and her husband to have the 
 freehold and copyhold lands assured to her according to the intent of the 
 settlement, Lord Harcourt considered the deed by the father in the nature 
 of articles, to be executed in a stricter manner than in the words of the 
 deed, and that a remainder might be limited to the daughters ; so that a 
 fine by the sons could not have barred it. But upon a rehearing before 
 Lord Cowper, he held that the settlement, by the deed to lead the uses 
 of the fine, was not to be considered as articles, but a defective settlement, 
 and the uses not to be altered or varied : but that a court of equity would 
 assist it so far, as to consider it as if a fine had been levied (by the hus- 
 band,) and then the plaintiff would not have been barred without a fine 
 (by her father,) and she was to be considered as heir of the body of her 
 father. And that the limitation in the deed to the heirs of the bodies, 
 could be inserted for no other end or purpose, but to carry the estate to 
 the daughters of the marriage ; it being before limited to the heirs male ; 
 and therefore he confirmed the decree as to the freehold. But, as to the 
 copyhold, there appearing no particular custom in the manor for suffering 
 a recovery, he held the surrender (by the son) would have barred the 
 entail, in case the copyhold had been well settled ; and therefore varied 
 the decree, and dismissed the bill as to that. 
 White v. Thornburgh, 2 Yern. 702.] 
 
 W B devised 8007. to her daughter M to be laid out by her executrix 
 in lands, and settled to the only use of her daughter M and her children ; 
 and if she died without issue, the lands to be equally divided between her 
 brothers and sisters then living : the plaintiff married M the legatee, and 
 had issue by her, but she and her child being both dead, and the money 
 not laid out in land, the bill was, that the plaintiff might either have the 
 money laid out in lands, and settled on him for life, as being tenant by 
 the curtesy, or, in lieu of the profits of the lands, might have the interest 
 of the money during his life. It was held by the court, that if it had 
 been an immediate devise of land, M the daughter would have been by 
 the words in the will tenant in tail, and consequently the husband would 
 have been tenant by the curtesy ; and in case of a voluntary devise, the 
 court must take it as they found it ; although upon the like words in mar- 
 riage articles it might be otherwise, where it appeared the estate was in- 
 tended to be preserved for the benefit of the issue, and therefore decreed 
 the money to be considered as lands, and the plaintiff to have the inte- 
 rest or proceed thereof for his life, as tenant by the curtesy. 
 
 2 Yern. 536, Sweetapple v. Bindon. || See Cunningham v. Mood}', 1 Yes. 17G.|| 
 
 [So, upon a devise for the settling of lands on A for life, and after his 
 decease to the heirs male of his body, and the heirs male of the body of 
 every such heir male, severally and successively as they should be in pri- 
 ority of birth and seniority of age, remainder to B. In arguing the 
 question, Whether A was tenant for life only, or in tail, the common case 
 of marriage articles was cited, where, though they were so worded as to 
 give the husband an estate-tail, yet the court had decreed a settlement on
 
 238 USES AND TRUSTS. 
 
 (II) What Estate Trustee shall convey, and to -whom. 
 
 the husband for life only, and then upon the first and other son and sons, 
 &c. Upon which part of the argument Lord Keeper observed, that 
 ■where settlements were agreed to be made upon valuable consideration, 
 the court would aid in artificial words, and make an artificial settlement : 
 but he never knew it done for a bare volunteer. 
 
 Lcgat v. Sewell, 1 Eq. Abr. 395. || See Blackburn v. Stables, 2 Ves. & B. 3G7 ; 
 Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 559. The late Mr. Fearne 
 thought that a power of selling, not expressly authorized by marriage articles, might 
 be introduced into a settlement made in pursuance of them, and would be supported 
 in equity; but it has been decided in a late case, that the introduction of a power 
 of selling in a settlement was not authorized where the will was silent as to the power. 
 Wheate v. Hall, 17 Ves. 80 ; Brewster v. Angel, 1 Jac. & Walk. 625. See Fearne's 
 Post. Works, 309, and 2 Ves. and B. 311. || 
 
 Lands were devised to trustees and their heirs for payment of debts 
 and legacies, and afterwards to settle what should remain unsold, one 
 moiety to the testatrix's son H, and the heirs of his body by a second 
 wife, with remainder over ; and the other moiety to the testatrix's son F, 
 and the heirs of his body, with remainders over ; taking special care in 
 such settlement, that it should never be in the power of either of the sons 
 to dock the entail of either of their moieties. Upon a question, whether 
 the sons were entitled to have estates-tail conveyed to them, or only es- 
 tates for life ? the court held, that the sons must be made only tenants 
 for life, and should not have estates-tail conveyed to them : but their estates 
 for life should be without impeachment of waste. Because in that case 
 an estate was not executed, but only executory ; and therefore the intent 
 and meaning of the testatrix was to be pursued. She had declared her 
 mind to be, that her sons should not have it in their power to bar their 
 children, which they would have, if an estate-tail were to be conveyed to 
 them. And the court took it to be as strong in the case of an executory 
 devise for the benefit of the issue, as if the like provision had been con- 
 tained in marriage-articles ; but had she by her will devised to her sons 
 an estate-tail, the law must have taken place ; and they might have barred 
 their issue, notwithstanding any subsequent clause or declaration in the 
 will, that they should not have power to dock the entail. 
 
 Leonard v. Earl of Susses, 2 Vern. 526. 
 
 Again, A devised a sum of money to trustees in trust, to be laid out 
 in lands, and to be settled on Jj for life without impeachment of waste, re- 
 mainder to trustees and their heirs during the life of B, to support contin- 
 gent remainders, remainder to the heirs of the body of B, remainders over, 
 with a power to B to make a jointure. The universality of the rule re- 
 specting the union of the limitation to the ancestor for life, with that to 
 the heirs of his body, &c, was urged in support of B's being entitled to 
 an estate-tail in the lands to be purchased. To which it was answered, 
 that the rule in construction of wills was, that the intention of the party 
 ought to take place, however improperly expressed. That it would be a 
 downright violation of the testator's intention, to construe the estate de- 
 vised to B to be an estate-tail. For 1st, the estate was devised to B for 
 his life expressly; 2dly, it was to B without impeachment of waste, which 
 would be vain words, if B were to have more than an estate for life ; 3dly, 
 the estate was devised to trustees, during the life of B, to preserve contin- 
 gent remainders, so that the testator expressed his intention that the re- 
 mainders limited to the issue of B should be contingent remainders ; and 
 
 S 

 
 USES AND TRUSTS. 239 
 
 (II) What Estate Trustee shall convey, ami to whom. 
 
 ■what could be more contradictory to this express and plain intent, than to 
 say those remainders should not be contingent, but give a vested estate- 
 tail to B. As to the notion that the conveyance directed by a will should 
 be in the words made use of in the will, it was impossible that rule could 
 universally hold ; for suppose the direction of the will was, that the trus- 
 tee should convey the lands to A for life, remainder to V) for ever ; this, 
 in a deed, would not convey a fee, as it would in a will ; and therefore, 
 there was no necessity that the words in the conveyance should pursue 
 those in the will. So, if the words of the will had directed the estate to 
 be conveyed to A for life, remainder to the issue of his body, (he having 
 none at that time born.) this would be an estate-tail in a will, but in a 
 deed it would not be so. Again, if the words in a will were that the con- 
 veyance should be to A and his heirs male, this would be an estate-tail ; 
 but put such words into a deed, and there, for want of saying of tvhose 
 body the heir must be, they would give a fee simple ; to which the court 
 agreed. And the Lord Chancellor King declared the court had a power 
 over the money directed to be invested in land : that the diversity was 
 between the will's passing a legal estate and leaving the estate executory, 
 so that the party must come into the Court of Chancery, in order to have 
 the benefit of the will : that in the latter case the intention should take 
 place, and not the strict rules of law : and he decreed that B should have 
 but an estate for life on the lands to be purchased. 
 
 2 P. Wms. 471, Papillon v. Voice. Vide Earl v. Stamford v. Sir John Hobart, infra. 
 
 In another case, of a devise to trustees and their heirs, in trust till the 
 marriage or death of the testator's grand-daughter, to receive the rents 
 and profits, and pay her an annuity for her maintenance; and as to the 
 residue to pay his debts and legacies, and after payment thereof, in trust 
 for his grand-daughter ; and if she married a protestant, after her age, 
 or with consent, &c, then to convey the estate after such marriage to the 
 use of her for life, without impeachment of ivaste, remainder to her hus- 
 band for life, remainder to the issue of her body, with several remainders 
 over. A question arose, whether under the will the testator's grand- 
 daughter (Lady Glenorchy) was tenant for life or in tail ? which depend- 
 ed on two points : 1st, "Whether the words of the will, in an immediate 
 devise of a legal estate, would have carried an estate-tail ? 2dly, If so, 
 whether the court would make any difference between a legal title and a 
 trust estate executory ? 
 
 L'l Glenorchy v. Bosville, Ca. temp. Talb. 3, 19. 
 
 Lord Talbot said, he should upon the first question have made no diffi- 
 culty of determining it an estate-tail, had it been the case of an immediate 
 devise. lie thought, in cases of trusts executed, or immediate devise's, 
 the construction of the courts of law and equity ought to be the same, for 
 there the testator did not suppose any other conveyance would be made. 
 But in executory trusts he left something to be done ; the trusts to be ex- 
 ecuted in a more careful and more accurate manner. That in the case 
 of Legat and Sewell, the words, "if in a settlement," would have made 
 an estate-tail; and in that of Bailie v. Coleman, the execution was to be 
 of the same estate he had in trust ; which, in construction of law, was an 
 estate-tail. That the case of Papillon and Voice seemed a strong autho- 
 rity for executing the intent in executory trusts as well as in articles ;
 
 240 USES AND TRUSTS. 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 and he accordingly decreed the Lady Glenorchy but an estate for life, 
 with remainder to her first and other sons, &c. 
 
 Sir John Maynard, after devising his estates in remainder after the de- 
 cease of his wife (afterwards Countess of Suffolk) to trustee and their heirs, 
 he directed them, after his wife's decease, to convey certain parts thereof to 
 the use of, or in trust for, Sir H. Hobart and Elizabeth his wife, for their 
 lives, and the life of the longer liver of them ; the remainder to the first son 
 of the said Elizabeth for ninety-nine years, if he should so long live ; the 
 remainder to the heirs male of the body of such first son : the remainder 
 to all and every the sons of the said Elizabeth for ninety-nine years, if 
 every such son respectively should so long live ; the remainder to the heirs 
 male of every of them, to take, not jointly, but successively, one after the 
 other, according to the births of each of them ; each son to take the term 
 of ninety-nine years, with immediate remainder to his said iicirs male ; the 
 remainder thereof to Mary Maynard (afterwards Countess of Stamford) 
 for her life ; the remainder thereof to all and every her sons for such like 
 term of ninety-nine years, and with remainder to the heirs male of the body 
 of every such son immediately after each term. The testator left the said 
 Elizabeth Hobart and Mary Maynard his grand-daughters and co-heirs at 
 law, who neither of them had anv issue male at the time of his decease. 
 Afterwards, on some disputes between Sir H. Hobart and his lady, Lord 
 Stamford and his lady, and the Countess of Suffolk, an act of parliament 
 was obtained, whereby it was enacted that the real estate, by the said Sir 
 John Maynard's will given or appointed, should go unto, and be held and 
 enjoyed by such person and persons, to and for such estates and interests, 
 and under and subject to such charges, limitations and appointments, and 
 in such manner and form as was in the said will expressed. And the said 
 trustees were thereby authorized and empowered to convey the said ma- 
 nors and lands immediately, unto such person and persons, and for such 
 estate and estates, as the same were in and by the said will limited and 
 appointed to be conveyed, as if the said Countess of Suffolk were dead. 
 
 Earl of Stamford v. Sir John Hobart, 1 Bro. Pari. Ca. 288 ; ||3 Bro. P. C. 31, ed. 
 1803.|| 
 
 After the decease of Sir H. Hobart and his wife, upon a bill filed by 
 Sir John Hobart, their only son, the trustees were directed to convey the 
 lands according to his ivill and the words of the act of parliament. And 
 a draft of conveyance being accordingly settled by the master to trustees, 
 habendum to them and their heirs, to the several uses, intents, and pur- 
 poses in the said will and act of parliament limited, expressed, and de- 
 clared, and to and for no other use, intent, or purpose whatsoever ; the 
 plaintiff excepted to it, for that the premises ought, at least, to have been 
 limited to the use of the said trustees and their heirs ; and only in trust 
 for such person and persons, and such estate and estates, as were in and 
 by the said will and act of parliament limited ; whereby the legal estate 
 might be vested in the said trustees, for the better preservation of the 
 contingent limitations, which otherwise, as the draft was prepared, were 
 liable to be destroyed, and the testator's intention plainly defeated. 
 
 Upon the hearing of this exception, Lord Chancellor Cowper declared, 
 "that in matters executory, as in cases of articles, or a will directing a con- 
 veyance, where the words of the articles or will were improper, or informal, 
 that court would not direct a conveyance according to such improper or 
 informal expressions in the articles or w ill; but would order the conveyance
 
 USES AND TRUSTS. 241 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 or settlement to be made in a proper and legal manner, so as might best 
 answer the intent of the parties; and in that case his lordship conceived 
 the true intent of the will to be, that the estates should be secured, as far as 
 the rules of law would admit, to the issue male of the respective devises, 
 and that it was designed to be as strict a settlement as possible by law." 
 His lordship therefore decreed, that in the said conveyance, where any part 
 of the estate was limited in use to the plaintiff for ninety-nine years, if he 
 should so long live, there should be a limitation over to trustees and their 
 heirs during his life, to preserve the contingent uses in remainder ; and 
 then to the first and other sons of the plaintiff in tail-male successively. 
 
 Upon an appeal to the Lords from this last decree, it was contended, 
 among other things, that the act of parliament, which was so very express 
 in confirming the estates appointed by the will, could never intend that a 
 court of equity should have power to direct a, conveyance to other uses than 
 what were mentioned in the mil; but the decree complained of did so, and 
 was therefore repugnant both to the will and act of parliament, as well as 
 to the former decree. To this it was answered, that in cases of executor// 
 articles, for the settling of estates, in prospect of future conveyances to be 
 afterwards made, it was usual for courts of equity to help informalities and 
 supply defects, especially when the things supplied were necessaiy to sup- 
 port the main intent of the parties, and to carry such articles into execution, 
 according to that intent, so far as it might agree with law, though not 
 strictly according to the words and penning of the articles ; and a fortiori 
 would courts of equity do so in the case of a will, where the same was 
 only executory by a con veyance to be made. That the act of parliament made 
 no alteration in the ivill, in the point in question ; it only hastened the 
 time for the trustees to convey, even in the lifetime of the Countess of 
 Suffolk, and in some other particulars not relative to the question. But 
 in all other respects the act confirmed the will, and being strictly relative 
 to it, the intent of the will ought to be the rule for the conveyance. The 
 decree was accordingly affirmed by the Lords.] 
 
 || Both in wills and marriage settlements cross remainders may be raised 
 by implication. In the case of the Duke of Newcastle v. Earl of Lincoln,(a) 
 a conveyance was made before and in consideration of marriage, of real 
 estates, in strict settlement, with a covenant to assign leasehold estates to 
 trustees, in trust for such person or persons, and for such or the like ends, 
 intents, and purposes as were therein before mentioned, of and concerning 
 the said estates, &c, as far as the law would in that case permit. Lord 
 Rosslyn thought that the settlements should be so framed that no person 
 being tenant in tail by purchase should become entitled to a vested interest 
 in the leasehold estate till he attained twenty-one, or, dying under that 
 age, unless he left issue inheritable to the entail. 
 
 Green v. Stephens, 12 Ves. 419 ; 17 Yes. 64 ; Marryatt v. Townley, 1 Ves. 102, 
 104; Twisden v. Lock, Ambl. G63 ; Richmond v. Cadogan, cited 17 Acs. G7 ; West 
 v. Errissev, 2 P. Wms. 349 ; Home v. Barton, Cooper, 257. (a) 3 Yes. 387 ; 12 Yes. 
 218 ; Gowerv. Grosvenor, Barn. 54; 2 Yes. & B. 63. || 
 
 [In a case where one by deed conveyed his freehold land to trustees and 
 their heirs, and his leasehold to trustees and their executors, upon trust to 
 apply the rents and the benefit of the redemption to W for life, and after 
 her death to the heirs of the body of the said W, and of G and of M, their 
 heirs, executors, and assigns, during the continuance of the estate in the 
 premises ; upon a question, "Whether W took for life, or in tail ? Lord 
 
 Vol. X.— 31 X
 
 242 USES AND TRUSTS. 
 
 (H) What Estate Trustee shall convey, and to whom. 
 
 ft 
 
 Talbot held, that she took an estate for life, and that the heirs took by 
 
 purchase. In which case we may observe, the limitation to the heirs of 
 
 the body of W was blended with that to the heirs of the bodies of several 
 
 others, who could take no otherwise than by purchase ; and there were 
 
 words of limitation not only to the heirs, but to the assigns of all the 
 
 said heirs of the bodies alike. 
 
 Allgood v. Withers, in Chanc. in 1735, cited 2 Burr. 1107; 1 Ves. 150 ; 2 Atk. 
 5S2 ; 2 Ves. 648; and vide Ashton v. Ashton, cited 1 Ves. 149 ; 2 Atk. 582. 
 
 A devised lands to five trustees, their heirs and assigns in trust, by rent 
 and profits, sale or mortgage, to pay his debts, &c, and after payment 
 thereof, he devised the same estates to three of the same trustees, their 
 executors, &c, for 500 years, upon trust to pay his legacies, and an annuity 
 of 200/. per ami. to his sister for life ; and after the determination of the 
 said estate for years, he devised the same premises to all the said trustees 
 and their heirs in trust, as to a moiety, to the use of T his nephew for life, 
 without impeachment of waste ; and after the determination of that estate, 
 to the trustees and their heirs during the life of T to support contingent 
 remainders, and after his decease to the use of the heirs of the body of T 
 lawfully begotten, and for want of such issue, then to the use of his nephew 
 B for the term of his natural life, without impeachment of waste ; and after 
 the determination of that estate, to the saine trustees during the life of B to 
 preserve contingent remainders, and after his decease, then to the use of the 
 heirs of the bodg of B lawfully begotten, with like remainders to other 
 nephews. The first devisee T died without issue ; upon whose decease 
 B, the next in remainder, filed his bill against the trustees and all proper 
 parties, praying, amongst other things, to be let into possession of a moiety 
 of the estates : afterwards B dying pending the suit, his widow and devisee 
 brought a bill of revivor and supplemental bill, charging that B in his life- 
 time, by bargain and sale enrolled, conveyed his moiety of the estates to 
 two persons and their heirs, to make them tenants of the freehold, and suf- 
 fered a recovery thereof (in which he was vouched) to the use of himself 
 in fee ; and afterwards devised his said moiety to his said widow in fee, 
 and died without issue. The general question between the parties was, 
 Whether an estate-tail, or an estate for life only, passed by the will of A 
 to B ? It was insisted for the plaintiff, that it was an estate-tail ; upon the 
 general rule, that where lands are limited to a man for life, with a limita- 
 tion in the same deed or gift to the heirs of his body, that this makes an 
 •estate-tail, and that a devise of lands in the same way passed the same 
 ■estate : that the limitation was either a legal estate, or a trust vested or exe- 
 cuted, and not executory. On the other hand it was contended, that those 
 rules were artificial, not founded in justice, but for support of the feudal 
 tenures, and therefore the judges ought to show themselves astuti in sup- 
 porting exceptions to such rules. The Master of the Rolls, however, held 
 it to be a trust, and not a legal estate ; but decreed that B was entitled to 
 an estate-tail in the moiety so devised to him ; as it was the case of an im- 
 mediate -devise, and not a devise of lands to be settled. Upon an appeal to 
 Lord Ilardwicke from this decree, he agreed that this devise was only a 
 trust in equity ; the devise being to trustees and their heirs, which carried 
 the whole fee in point of law, and the devise to sell being sufficient to 
 carry the fee, if the word heirs had been omitted ; and therefore the Avhole 
 fee being in the trustees, no legal remainder could be limited to B ; and as 
 to its being considered as an executory devise to B, (which, it seems, had
 
 USES AND TRUSTS. 243 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 been contended at the bar,) it was too remote to be good in that view , 
 being after all debts indefinitely paid, which, in point of time, might exceed 
 a life or lives in being, or any other time allowed by law; and besides, in 
 that case the recovery by B oeing before the debts were paid, and conse- 
 quently whilst the legal fee remained in the trustees, B could make no 
 good tenant to the prcecipe; and that would prevent it from passing by 
 B's will : for whatever made that recovery void equally defeated the plain- 
 tiff's title : which made it necessary for the plaintiffs to admit that all the 
 devises subsequent to that to the trustees were trusts in equity. That the 
 main question, whether it was an equitable estate-tail, or for life only, de- 
 pended on the construction of the words heirs of the body, whether they 
 should be taken as words of limitation or of purchase. That the intent was 
 clear that they should be taken as words of purchase, from the clause with- 
 out impeachment of waste, and the limitation to trustees to support contin- 
 gent remainders. That there were several cases even at law, where they 
 had been taken as words of purchase, as Archer's case; that the wordsof 
 limitation added there, and in all such cases, were only demonstration 
 of the intent of the testator in using the first words. That the case of Col- 
 son and Colson, which was objected as an authority, that the interposition 
 of trustees to support contingent remainders is not sufficient to turn these 
 subsequent limitations to the heirs of the body into words of purchase, 
 differed from the principal case ; here being (in the principal case) a clause 
 without impeachment of waste ; although that might be thought of little 
 weight ; but the great difference was, that this was a devise of a trust in 
 equity, that of a mere legal estate, the ivords of which must be taken as 
 they stood according to the strict legal determination. That here all the 
 limitations were the direction of a trust, which the court was bound to 
 carry into execution according to the intent of the testator. 
 
 1 Ves. 142 ; 2 Atk. 24G, 570, 577, Bagshaw v. Spencer. ■ 
 
 That as to the difference between trusts executed and executory, the dis- 
 tinction had never been established by any direct resolution. That all 
 trusts in notion of law were executory, and to be carried into execution 
 by the court by subpoena. That if B had himself come to have a conveyance 
 decreed him, the question would have been, whether the court should have 
 inserted trustees to support contingent remainders ; if they had not, they 
 would have departed from the words of the will ; if they had, the remainder 
 must have been to first, &c, son and sons in strict settlement, for other- 
 wise there would have been no remainders to be preserved ; and therefore, 
 if the court must at all events depart from the w r ords of the will, such 
 departure must rather be to support than to frustrate the plain intent of 
 the testator. For these reasons Lord Hardwicke reversed so much of 
 the decree at the Rolls as gave B an estate-tail under the will. 
 
 Sed vide Wright v. Pearson, Ambl. 358 ; but more fully Fearne's C. R. 187. || 1 
 Eden, It. 119 ;|| Austen v. Taylor, Ambl. 37G; Jones v. Morgan, 1 Bro. Chan. Ca. 
 206.] 
 
 || In a recent case, there was a devise to trustees and their heirs of real 
 estates in trust, to demise or let all the testator's freehold estates for any 
 term they should think proper, and to pay one-third of the rents to the tes- 
 tator's wife for life, and the remaining two-thirds, and after the decease of 
 the wife, the first mentioned one-third part to the testator's daughter for 
 life, for her separate use, independently of her husband ; and after the death 
 of the daughter, the testator bequeathed all his freehold estates to her
 
 244 USES AND TRUSTS. 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 children, equally to be divided among them at their respective ages of 
 twenty-one years. This was held to be a devise of the legal fee to the 
 trustees, and not a mere power of leasing, nor a determinable fee. 
 Doe dem. Tomkins v. Willan, 2 Barn. & Aid. 84. 
 
 In the late case, however of Warter v. Warter, Thomas Meredith, by 
 his will, dated 8th of September, 1801, (after directing payment of his debts 
 and funeral expenses,) devised his capital and other messuages, tenements, 
 lands, and hereditaments, with their respective appurtenances, charged with 
 two annuities, to trustees, their heirs and assigns, until his nephew, John 
 Warter, the son of his sister Margaretta Warter, should attain the age of 
 twenty-one years ; and if he should die in the mean time, until Henry 
 Warter, the second son of the said Margaretta Warter, should arrive at 
 that age ; and if the said Henry Warter should die in the meantime, until 
 the daughter of the said Margaretta should arrive at that age, upon trust, 
 among other things, to raise out of the rents and profits of the premises, or 
 by sale or mortgage thereof, or of a competent part thereof, the full sum of 
 2000?., together with all costs and charges attending the raising of the 
 same, and to pay the same to the said Henry Warter, the younger son of 
 his sister, M. Warter, as soon as he attained the age of twenty-one years ; 
 and if his sister should happen to have more than one younger child, to 
 raise out of the rents, issues, and profits of the premises the full sum of 
 8000Z., and pay the same to and amongst such younger children, share and 
 share alike, as soon as they should severally attain their ages of twenty-one 
 years ; and upon further trust, to pay and apply a proper sum of money, 
 arising from the rents and profits of the premises, for the maintenance and 
 education of his nephew, John Warter, till he should arrive at the age of 
 twenty-one years ; and when John Warter should attain that age, to pay 
 him the residue of the rents, issues, and profits of the premises, if any should 
 remain after performance of the before-mentioned trusts; and if John 
 Warter should happen to die before he attained the age of twenty-one years, 
 then to pay and apply a sufficient sum of the money arising from the rents 
 and profits of the premises for the maintenance and education of his nephew, 
 Henry Warter, till he should attain the age of twenty-one years ; and, when 
 Henry Warter should arrive at that age, then upon trust, to pay him the 
 rest and residue of the rents, issues, and profits of the premises, if any should 
 remain after performance of the before-mentioned trusts ; and in the mean 
 time to place out the money arising from the rents and profits of the pre- 
 mises at interest, for the benefit and advantage of his said nephew ; and 
 when and as soon as John Warter should attain the age of twenty-one 
 years; or, in case of his death, when and as soon as Henry Warter should 
 arrive at that age; or, in case of his death, when and as soon as the 
 daughter of Margaretta Warter should arrive at the age of twenty-one 
 years, he gave and devised the premises, with their respective appurten- 
 ances, subject as aforesaid to the said trustees, their heirs and assigns, to 
 the use of his nephew, John Warter and his assigns for life, sans waste, 
 remainder to trustees to preserve contingent remainders; and after the 
 decease of John Warter, to the use of the first, second, and third, and all 
 and every other son and sons of the body of John Warter, lawfully issu- 
 ing severally and successively in tail-male, with remainder to his first 
 and every other daughter successively in tail, with remainders over. 
 
 "Warter v. Warter, 2 Bro. & B. 349 ; and see Sand, on Uses, c. 2, \ 8, (4th edit.)
 
 USES AND TRUSTS. 245 
 
 (H) What Estate Trustee shall convey, and to whom. 
 
 John Warter died under the age of twenty-one years, leaving a widow, 
 Jane Warter, and also Margaretta Elizabeth Meredith Warter, his only 
 child and heir at law, him surviving. 
 
 The judges of the Court of Common Pleas certified, that, upon the 
 death of John Warter under the age of twenty-one years, Margaretta 
 Elizabeth Meredith Warter, his only child, became and is now entitled to 
 the devised estate and premises as tenant in tail-male of the legal estate. 
 
 From this certificate it is clear, that the judges did not consider the legal 
 estate in fee simple to have been vested in the trustees, although there was 
 an express trust to sell or mortgage. The same construction seems to have 
 been adopted in Hawker v. Hawker. It is possible, that, in both cases, 
 the judges considered the trust to sell or mortgage in the nature of a power ; 
 for, if a purchaser or mortgagee were to derive title from the estate vested 
 in the trustees under the trust, to sell or mortgage that estate must neces- 
 sarily have been an absolute fee-simple ; for, if the legal fee, when vested 
 in the trustees, was in its nature determinable, the purchaser deriving 
 title under them must take an estate commensurate to that which the 
 trustees held, and his estate would therefore be also determinable. 
 
 3 Barn. & Aid. 527. See 7 Term R. 342, 433, and Sand, on Uses, 2G0, (4th edit.) H 
 
 [One devised lands to trustees and their heirs for payment of debts and 
 legacies, and, after debts and legacies paid, willed that one-fourth part 
 should be and remain in trust for E for life, with power of leasing ; and 
 after her decease, in trust for C for and during the term of his life, with 
 like power of leasing, and after his decease to the heirs male of the body 
 of C, remainder over. Now this was the devise of a trust; and Lord 
 Cowper conceived that it differed from an immediate devise, and that it was 
 rather to be looked upon in the nature of an executory devise, to take effect ' 
 after debts paid, which were considerable ; or in nature of marriage articles : 
 besides, that the enabling C to make leases, seemed to imply very strongly 
 that he was to have no power to dispose of the inheritance. But the cause 
 coming on before Lord Harcourt upon a re-hearing, he said the case of a 
 will differed from the several cases of marriage articles, in the nature of 
 which' the issue were particularly considered, and looked upon as pur- 
 chasers. That in case of a ivill, where the parties claim voluntarily, the 
 testator's intent must be presumed to be consistent with the rules of law : 
 that at law those words would certainly create an estate-tail ; and it could 
 not be inferred (with any certainty) from the power of leasing, that no 
 estate-tail was intended ; such power being more beneficial than that given 
 to tenant in tail by the statute ; and as the debts were admitted by the 
 pleadings to be all paid, the same construction was to be made as if there 
 had been originally no trust ; and so decreed A's share to be conveyed to 
 him and the heirs male of his body, remainder over. 
 
 Bale v. Coleman, 2 Vern. 670 ; 1 P. Wms. 142. || See the Master of the Rolls' argu- 
 ment in Blackburn v. Stables, 2 Ves. & Bea. 307, 370, and Jervoise v. Duke of Northum- 
 berland, 1 Jae. & W. 559.(| Peere Williams states it as a devise to four persons for 
 po.yment of debts, afterwards to the use of them and their heirs; and that the testate: 
 by codicil devised that his will should stand, saving that one of the said devisees should 
 have his estate for life, with power of leasing, remainder to the heirs male of his body. 
 But considering the first devise for payment of debts, the devisee's beneficial interest in 
 either state of the case appears to have been in the nature of a trust. 1 P. Wms. 242. 
 
 Where there was a devise of lands to a trustee, in trust to pay the rents 
 and profits to S for her separate use for life, as if she were sole ; and after 
 her decease to pay the same to E her son for life, and afterwards to pay 
 
 x2
 
 246 USES AND TRUSTS. 
 
 (II) What Estate Trustee shall convey, and to whom. 
 
 the same to the heirs of his body, and for want of such issue, to pay the 
 same to all and every other son or sons of the body of S begotten, &c. r 
 upon the question, whether E was entitled to the lands in tail, or for life 
 only, Lord Hardwicke proceeded on this principle, viz., that in limitations 
 of a -trust, either of a real or personal estate to be determined in that court, 
 the construction ought to be made according to the construction of limi- 
 tations of a legal estate, unless the intent of the testator or author of the 
 trust plainly appears to the contrary. He laid it down as a rule (he said) 
 that he was not, in a court of equity, to overrule the legal construction 
 of the limitation, unless the intent of the testator or author of the trust 
 appears by declaration plain, that is, by plain expression or necessary 
 implication. And upon this ground Lord Hardwicke decreed a convey- 
 ance in tail to B of the real estate so devised. 
 
 Garth v. Baldwin, 2 Vesey, 646.] 
 
 A surrender was made of an estate of the nature of borough English, 
 to the use of trustees, in trust after payment of an annuity and some par- 
 ticular debts, to surrender the same to the use of the heirs of the body of 
 the husband and wife. The husband and wife had two sons ; and when 
 the annuity, &c, were at an end, they each of them claimed the sur- 
 render in their favour ; the eldest son as heir of the body by the com- 
 mon law of England, and the younger as heir by the custom of borough 
 English, of whjch nature this estate was. But, as this was a trust merely 
 executory, the court directed a surrender to be made to the eldest son, 
 as heir general by the common law. 
 
 Starkey v. Starkey, in Exch. Trin. 19 G. 2, MS. Rep.; [Roberts v. Dixwell, 1 Atk. 
 610, a similar decision by Lord Hardwicke on an estate in gavelkind.] 
 
 || Where a settlement was made of money upon trust, to be transferred 
 to the surviving parent, for the benefit of him or her and any child or chil- 
 dren of the marriage, it was held, on the construction of the whole settle- 
 ment, that the surviving parent took for life, with remainder to the children. 
 Chambers v. Atkins, 1 Sim. & Stu. 382. 
 
 Where a will directed a settlement to be made of real estate on A and 
 his first and other sons in tail, with power of jointuring, leasing, sale, and 
 exchange, and all other powers, &c, usually inserted in similar settle- 
 ments, it was held that these last words did not authorize the insertion 
 of a power to charge with portions. 
 Higginson v. Barneby, 2 Sim. & Stu. 516.|| 
 
 pWhen a property is given absolutely, with a recommendation as to 
 its disposal in favour of others, in such terms as ought to be construed 
 imperatively, and the objects of the recommendation are certain ; held to 
 create a trust in their favour. 
 
 Knight v. Knight, 3 Beav. 148. 
 
 Where a father bequeathed a legacy to his daughter, the wife of B, 
 recommending the daughter and husband to settle it, together with such 
 sum as the husband should choose, for the benefit of the wife and chil- 
 dren ; held, to constitute a trust for the children. 
 
 Ford v. Fowler, 3 Beav. 140. 
 
 Property held in trust does not pass to the representatives of the trus- 
 tee ; and as long as it can be traced and distinguished, it inures to the 
 benefit of the cestui que trust. 
 
 Moses v. Murgatroyd, 1 Johns. Ch. R. 119, 473.
 
 USES AND TRUSTS. 247 
 
 (I) Trustee where favoured, and where to account. 
 
 In case of the bankruptcy or insolvency of the assignee, the trust 
 estate passes to his assignee, subject to the trust. 
 
 Dexter v. Stewart, 7 Johns. Ch. 52. 
 
 Equity always compels the trustee to surrender the legal estate to the 
 cestui que trust, unless the receipt of the profits by the trustee is requisite 
 to effectuate the intention of the creator of the trust. 
 
 Jasper v. Maxwell, Dev. Eq. 357. 
 
 The law never compels a trustee, who sells under his trust, to enter into 
 any covenants in his deed, except a covenant against his own encumbrances. 
 Ennis v. Leach, 1 Ired. Eq. R. 41G.0 
 
 (I) Trustee in what Cases favoured, and in what Cases decreed to account, /3 and of 
 
 their Liability.^/ 
 
 It is a rule that the cestui que trust ought to save the trustee harmless, 
 as to all damages relating to the trust ; and it is within the reason ftf that 
 rule, that where the trustee has honestly and fairly, without any possi- 
 bility of being a gainer, laid down money, by which the cestui que trust 
 is discharged from being liable for a greater sum lent, or from a plain 
 and great hazard of being so, that the trustee ought to be paid. 
 
 2 P. Wms. 455, Balsh v. Hyham. || Though there is no indemnity-clause the court 
 infuses such a clause into every will. 18 Ves. 254. || 
 
 s "Where the trustee of a settlement, empowered to lend the trust 
 moneys to the husband, on the security of his bond alone, lent it on his 
 note, and without the requisite consent in writing, and upon the death of 
 the remaining trustee then remaining unpaid, his executors and devisees 
 filed a bill against the husband for the restoration of the trust funds, the 
 appointment of new trustees, and to correct existing irregularities as to 
 the trust estate ; held, that the plaintiffs had a clear right, notwithstand- 
 ing the liability of their testator's estate, to file the bill, and upon the 
 funds being restored, to have some one to whom they might safely convey 
 the legal estate, and be relieved from further responsibility: held, also, 
 that when a trustee finds the trust estate involved in intricate and com- 
 plicated questions, which could not have been contemplated at the time 
 of undertaking the trust, he has a right to come to the court to be re- 
 lieved, and will be favourably considered. 
 
 ■irreenwood v. Wakeford, 1 Beav. 576. £f 
 
 [And if a trustee errs in the management of the trust, and is guilty of 
 
 a breach of trust, yet, if he goes out of the trust with the approbation of 
 
 the cestui que trust, the breach of trust ought rather to fall upon the 
 
 estate of cestui que trust; for the courts are ever anxious to deliver the 
 
 trustee from any misapplication of the trust money. 
 
 Trafford v. Boehm, 3 Atk. 444; || 4 EusselL 272. || 3 Where a trustee acts to the 
 best of his judgment, he will lie protected, although he may have made some trifling 
 mistakes. Hoot v. Yeomans, 15 Pick. 488. See 9 Pick. 440 ; 18 Pick. 181 ; 20 Pick. 
 116.0 
 
 But it is an established rule, that a trustee, executor, or administrator, 
 shall have no allowance for his care and trouble : the reason of which 
 seems to be, that on these pretences, if allowed, the trust-estate might be 
 loaded and rendered of little value. Besides, the great difficulty there 
 might be in settling and adjusting the quantum of such allowance, es- 
 pecially as one man's time may be more valuable than that of another,
 
 248 USES AND TRUSTS. 
 
 (I) Trustee where favoured, and where to account. 
 
 and there can be no hardship in this case upon any trustee, who may 
 choose whether he will accept the trust or not. 
 
 Robinson v. Pett, 3 P. Wins. 251. See Harwood v. Harrison, Mos. 128.] {See 
 4 Ves. J. 596, Ilovey v. Blakeinan. An executor in India, passing bis accounts in 
 Cbancery in England, is entitled to the commission upon the receipts or payments, 
 according to the practice in India. 4 Ves. J. 72, Cheltham v. Lord Andley. J [j Cham- 
 bers v. Goldwin, 5 Ves. 834 ; 9 Ves. 254. In re Ormsby, 1 Ball. & Bea. 189 ; sed 
 vide Ellison v. Airey, 1 Ves. 115; Brown v. Litton, 1 P. Wins. 140.|| ,3As to the 
 allowance of compensation to trustee, see post (O.)g 
 
 || But though a trustee be not allowed for his trouble, it seems that if 
 he employ a bailiff to manage the trust estate, he must "be allowed for 
 the employment of and payments made to such bailiff. 
 
 Bonithorn v. Hockmore, 1 Vern. 316 ; Wilkinson v. Wilkinson, 2 Sim. & Stu. 237. 
 
 And a trustee is entitled to his costs, unless he acts with obstinacy and 
 caprice. 
 
 Forrest v. Elwes, 2 Meriv. 68 ; Taylor v. Glanville, 3 Madd. 178 ; O'Callaghan v. 
 Cooper, 5 Ves. 117 ; post, 249. || 
 
 [An executor in trust who had no legacy, and where the execution of 
 the trust was likely to be attended with trouble, at first refused, but af- 
 terwards agreed with the residuary legatees, in consideration of 100 guineas, 
 to act in the executorship, and he dying before the execution of the trust 
 was completed, his executors brought a bill to be allowed these 100 
 guineas out of the trust-money in their hands, insisting that the residuary 
 legatees might as well make a contract with the executor, touching the 
 overplus, (which was their own property,) as the testator himself; and 
 that no harm could happen thereby to the trust-estate. But the court 
 said, all bargains of this kind ought to be discouraged, as tending to eat 
 up the trust; and here the executor had died before he had finished the 
 affairs of the trust : wherefore the plaintiff's demand was disallowed. 
 
 Gould v. Fleetwood, Mos. 128. In Ayliffe v. Murray, 2 Atk. 60, Ld. Hardwicke is 
 reported to say, " If a trustee comes in a fair and open manner, and tells the cestui 
 que trust that he will not act in such a troublesome and burdensome office, unless the 
 cestui que trust will give him a further compensation over and above the terms of the 
 trust, and it is contracted for between them, I will not say this court will set it aside, 
 though there is no instance where they have confirmed such a bargain." 
 
 It seems to be owing to this jealousy, which a court of equity enter- 
 tains of an executor or trustee, that if they compound debts or mortgages, 
 and buy them in for less than is due thereon, they shall not take the 
 benefit of it themselves, but other creditors and legatees shall have the 
 advantage of it, and for want of them, the benefit shall go to the party 
 who is entitled to the surplus ; whereas, if one who acts for himself, and 
 is not in the circumstances of an executor or trustee, buys in a mortgage 
 for less than is due, or for less than it is worth, he shall be allowed all 
 that is due thereon. Thus in the case of Baldwyn v. Banister, heard at 
 the Rolls, Pasche, 1718. The case was, a mortgagor in fee died, and the 
 mortgagee brought in the mortgagor's wife's right of dower. Decreed, 
 that the heir of the mortgagor, on his bringing a bill to redeem, should 
 have the benefit thereof, on this principle, that the mortgagee is but a 
 trustee for the mortgagor after the money paid. So, in the case of 
 Powell v. Glover, Mich. 1721, at the Rolls, where a guardian compounded 
 debts, decreed, that it should be for the benefit of the infant. 
 
 Gould v. Fleetwood, Mos. 128; {6 Ves. J. 625, Ex parte Lacey ; 8 Ves. J. 337, 
 Ex parte James.} 1 Salk. 155 ; 1 Vern. 476; 2 Atk. 54. || See Phayre v. Peree. 
 3 Dow. P. C. 116 ; Fox v. Mackreth, 2 Bro. C. C. 400; 2 Cox, S20.||
 
 USES AND TRUSTS. 249 
 
 (I) Trustee where favoured, and where to account. 
 
 So, it hath been holden upon the same principle, that a trustee shall 
 not be allowed to become the purchaser of that which he holds in trust. 
 It is said, indeed, in one case,(a) that if the title be re vera in a third 
 person, the trustee may purchase as well as any one else. 
 
 Whelpdale v. Cookson, 1 Yes. 9; Killick v. Flexuey, 4 Bro. Chan. R. 1G1. 3See 
 Williamson v. Seaber, 3 Younge & C. 717 ; Wilkins v. Stevens, 1 Younge & C. 431. $ 
 )| See Witcbcote v. Laurence, 3 Ves. 740. Campbell v. Walker, 5 Vcs. 678; Ex parte 
 Reynolds, Ibid. 707 ; Ex parte Hughes, 6 Ves. 617 ; Ex parte Lacey, Ibid. 625 ; Lis- 
 ter v. Lister, Ibid. 631 ; Ex parte James, 8 Ves. 337 ; Coles v. Treco'thick, 7 Ves. 234 ; 
 Ex parte Morgan, 12 Ves. G. Where a security is made by way of mortgage with a 
 power of sale, the donee of the power is a trustee within the rule. Downes v. Graze- 
 brook, 3 Meriv. 200. In Montesquieu v. Sandys, 18 Ves. 313, Lord Eldon observes, 
 there is no authority establishing that an attorney cannot purchase from his client what 
 was not, in any degree, the object of his concern as attorney. See also Woods v. Downes, 
 18 Ves. 120 ; Hooper v. Goodwin, Cooper, 95 ; and note (a), 3 Meriv. 209. In Sander- 
 son v. Walker, 13 Ves. 601, Lord Eldon also observed, " The principle has often been 
 laid down that a trustee for sale may be the purchaser, in this sense, that he may con- 
 tract with his cestui que trust that with reference to the contract uf purchase they shall 
 no longer stand in the relative situation of trustee and cestui que trust ; and that the 
 trustee having, through the medium of that sort of bargain, evidently, distinctly, and 
 honestly proved that he had removed himself from the character of trustee, his pur- 
 chase may be sustained." And see 11 Ves. 226, Gregory v. Gregory, Coop. 201 ; 
 Attorney-General v. Lord Dudley, Coop. 146 ; Randall v. Errington, 10 Ves. 423 ; Chal- 
 mers v. Bradlev, 1 Jac. & W. 51 ; Navlor v. Winch, 1 Sim. & Stu. 555. || (a) Leslie's 
 case, 2 Freem. 52;] || Oherlihy v. Hodges, 1 Scho. & Lef. 123, acc.\\ 
 
 A trustee shall not be charged with imaginary values, but only as bai- 
 liff, though very supine negligence might, indeed, in some cases, charge a 
 trustee with more than he had received ; but the proof thereof must be very 
 strong ; and it is a hardship on him, that he is allowed nothing for his pains. 
 It has been said likewise, that it tvas a hard rule to charge a trustee with 
 what he had made, or might have made, without his wilful default : but the 
 reason ivas, because the court could never yet find ivhere else to fix the measure. 
 
 1 Vera. 144, Palmer v. Jones. {He shall be charged with a loss occasioned by his 
 negligence, or want of caution, though he act innocently. See 5 Ves. J. 141, Yez v. 
 Emery ; Ves. J. 488, Caffrey v. Darby ; 9 Ves. J. 103, French v. Hobson. } 
 
 The defendant was trustee to the plaintiff, an infant, and received for 
 
 him 40?. in gold; the trustee was robbed by his own servant, who lived 
 
 with him in the house, of 200/., together with this 40?., which last sum 
 
 was only proved by the defendant's own oath ; yet my Lord Chancellor 
 
 allowed it on account, for he was but to keep it as his own. 
 
 2 Chan. Ca. 2, Morley v. Morley ; { 1 Cain. Er. 96, Furman v. Coe. So, if the pro- 
 perty is carried off by an enemy, the trustee is excused. 1 Bay. 328. J 
 
 If a trustee, sued for the trust estate, obtains a decree with costs of 
 course, and the costs taxed him are short of his real costs ; and the cestui 
 que trust exhibits a bill for an account of the trust estate ; the trustee, 
 in his disbursements, shall be allowed the full and necessary costs, and 
 shall not be concluded by the costs taxed. 
 
 2 Chan. Ca. 138, Amand v. Bradburne ; { 10 Ves. J. 184, Fearnes v. Young. } [If a 
 trustee has not misbehaved himself, it is the rule to allow him his costs. Perrott v. Trebv, 
 Pr. Ch. 254 ; 1 Eq. Ca. Abr. 125, pi. 4, S. C. ; || Taylor v. Glanville, 3 Mad. 178. || Seats, 
 if he has misbehaved himself. Dawson v. Parrott, 3 Bro. Ch. R. 236 ; Ball v. Montgomery, 
 2 Yes. J. 191 ; Horsley v. Challoner, 2 Ves. 83. J || If a trustee refuse to pay a legacy 
 without the court's direction in a case admitting of no doubt, he will be refused costs. 
 Knight y. Martin, 1 Rubs. & Mylne, 70. And a trustee will not be allowed the amount of 
 costs paid to his solicitor without epiestion. The master will not moderate amount. 
 Johnson v. Telford, 3 Russell, 477. And trustees of a charity (though not in fault) 
 cannot be allowed the costs of an unsuccessful attempt to obtain an act for administer- 
 ing the property. Attorney-General v. Mansfield, 2 Russell, 50 ; and see Ibid. 
 
 Vol. X. — 32
 
 250 USES AND TRUSTS. 
 
 (I) Trustee -where favoured, and -where to account. 
 
 If two estates are conveyed to a trustee for payment of several and 
 distinct debts, and the heir at law brings a bill for an account, and after- 
 wards prays that the bill may be dismissed as to one of the estates, yet 
 an account shall be taken of both estates. 
 
 1 Vera. 28, Purefoy v. Purefoy. 
 
 A devised 100/. a-piece to four children, payable at twenty-one, or 
 marriage, with maintenance not exceeding the interest in the mean time : 
 B was appointed trustee of a trust-estate, to raise and pay the legacies 
 as aforesaid ; and he paid 20/. in placing out one of the children appren- 
 tice, who died before his age of twenty-one years : the court held, that 
 that 20/. was well laid out, and that the trustee should be allowed it : 
 though the 100/. was limited over, in case of death before twenty-one, or 
 
 marriage. 
 
 2 Yern. 137, Franklin v. Green. 
 
 But, if a trustee for the payment of children's portions pay one of them 
 his full share, and the trust-estate decay, he shall not be allowed such pay- 
 ment. It was urged, in this case, that though the appointment was to pay 
 the eldest in the first place, &c, yet it would not be good, as it did not 
 denote preference in the quantity of the sum to be paid : but my Lord 
 Keeper was of another opinion as to this point. It seems clearly agreed, 
 however, that a specific legatee may be paid in the first place. 
 
 2 Chan. Cas. 132, Tilsley v. Throckmorton. 
 
 {An executor neglecting to call in or bring an action for a bond debt 
 will be charged with the amount. 
 
 2 Bro. C. C. 15G, Lowson v. Copeland ; 5 Ves. J. 839, Powell v. Evans. See 1 Bay. 
 304, Legatees of Ash v. Exr. of Ash. } 
 
 If one devise to trustees, and by an express clause give them power to 
 appoint agents to manage the land, and they appoint one then solvent and 
 good, though after he prove insolvent, they shall not answer for him ; but 
 it is otherwise, if he were not solvent at the time of nomination. But, if 
 there were no such direction or power in the will, the trustees are bound 
 to answer for their agents at all events. Per Lord Keeper Wright. 
 12 Mod. 5G0, Sutton the Marshal's case. 
 
 {If an executor deposits money in the hands of his testator's banker, 
 who is solvent at the time, but afterwards becomes insolvent, the execu- 
 tor shall not be charged with the loss. 
 
 3 Ves. J. 5G5, Rowth v. Howell ; 1 Dick. 120, Knight v. Earl of Plymouth. And 
 see 5 Yes. J. 331, Bacon v. Bacon ; 7 Ves. J. 193 ; 6 Ves. J. 226, Adams v. Claxton ; 
 11 Ves. J. 377, Wren v. Kirton.} 
 
 If a trustee empowered to put money to interest let the money lie by 
 him, he shall be accountable for interest. Per Harcourt, Lord Keeper. 
 
 Brown v. Litton, 10 Mod. 21. || See Young v. Combe, 4 Ves. 101 ; Byrchall v. 
 Bradford, G Madd. 13.]) [Bird v. Lockey, 2 Vera. 744; Perkins v. Bayntum, 1 Bro. 
 Ch. R. 375 ; Franklin v. Firth, 3 Bro. Ch. R. 433, S. P. A trustee neglecting to pay 
 money into court after an order for that purpose, shall be charged with interest, but 
 a slight difference between the sums remaining in his hands, and those reported due 
 by -t iTo Master, is not a sufficient reason for the court to order him to pay interest. 
 Sammes v. Riekman, 2 Ves. Jun. 3G.J {He shall pay interest where he has been 
 guilty of neglect in not putting out money, or where he has made use of it himself. 
 4 Ves. J. 101, Youngo v. Combe ; Ibid. 620, Piety v. Stace ; 7 Ves. J. 124, Longmore 
 v, Broom ; 8 Yes. J. 48, Lord Chedworth v. Edwards; 11 Ves. J. 58, Rooke v. Hart; 
 Ibid. 92, Raphael v. Boehm ; Ibid. 581, Mosley v. Ward; 12 Ves. J. 386, Bruere v. 
 Pemberton; 1 Binn. 194, Fox v. Wilcocks ; 2 Binn. 300, Guier v. Kelly; 1 Wash. 
 246, Cranberry's Exr. v. Cranberry. }
 
 USES AND TRUSTS. 2,1 
 
 (I) Trustee -where favoured, and where to account. 
 
 Likewise, although an executor or trustee is not empowered or directed 
 to place out money at interest, yet, if he makes interest, he shall be ac- 
 countable for it. Decreed accordingly. 
 
 2 Vena. 548, Lee v. Lee ; [1 Bro. Ch. R. 375, Perkins v. Bayntum ; Ibid. 384, Trevis 
 v. Townshend; Ibid. 359, Newton v. Bennett; 1 Vern. 196, Radcliffe v. Graves, 
 8. P. ; {3 Bro. C. C. 73, Littlchales v. Gascoyne.} And if a trustee appear to have 
 employed the trust-money in trade, whence he has derived profits beyond the rate of 
 interest, he shall account for the whole of those profits. Brown v. Litton, 10 Mod. 21 : 
 Forbes v. Ross, 2 Bro. Ch. R. 430.] ||It is in the option of cestui que trust to take the 
 interest or the profits, and they must elect. Heathcote v. Hulme, 1 Jac. & Walk. 
 122 ;|| j3 Docket v. Somes, 2 Mylne & K. 655, acc.tf 
 
 But afterwards, a difference was taken by Lord Macclesfield, viz., that 
 if an executor or trustee of money places it out in the funds, or on other 
 security, whereby he gains considerably, he shall have the whole benefit 
 thereof to himself, in respect of the hazard he runs of being a consider- 
 able loser thereby, which he must have borne ; but, if such trustee or 
 executor were an insolvent person at the time of placing out such trust- 
 money, there the cestui que trust shall have the whole benefit gained 
 thereby ; as he only could have borne the loss thereof, if any had hap- 
 pened ; the trustee or executor, by reason of his insolvency, being inca- 
 pable thereof, and consequently running no hazard at all. 
 
 1 Abr. Eq. Ca. 398, Bromfield v. Wytherly. [The doctrine here advanced, though 
 sanctioned by great opinions in subsequent cases, Adams v. Gale, 2 Atk. 106 ; Child 
 v. Gibson, Ibid. 613, is not to be considered as law. Newton v. Bennett, 1 Bro. Ch. 
 R. 359 ; Horsley v. Challoner, 2 Yes. 85.] 
 
 If a trustee is directed to place out money on the best security that 
 can be got, with the consent of husband and wife ; and he puts it into a 
 banker's hand, and take his note for it, and he becomes a bankrupt, by 
 which the loss happens ; the trustee shall be decreed to pay the money 
 out of his own pocket, though no fraud appear, and though the consent 
 of husband and wife be had to it. 
 
 Rider v. Bickerston, MS. Rep. ||3 Swanst. 80, notd, S. C.|| [Vide Ambl. 219, 
 contra.] (3 See Greenwood v. Wakeford, 1 Beav. 576. £/ 
 
 -3 Where, instead of following the direction to invest the fund in consols, 
 and accumulate the dividends, the trustees invested it in mortgage, held 
 liable to make the fund good to the extent it would have reached, if the 
 direction had been complied with. 
 
 Pride v. Fooks, 2 Beav. 430. tf 
 
 || Where a receiver having received a large sum for rents did not think 
 it safe to remit the money to London, and therefore paid it to a consider- 
 able tradesman, and took bills on London for the amount ; the tradesman 
 soon after becoming bankrupt, the receiver was held not to be accountable 
 for the money, the tradesman having been in good credit at the time. 
 
 Knight v. Ld. Plymouth, 3 Atk. 480 ; and see Rowth v. Howell, 3 Ves. 565 ; Adams 
 v. Claxton, 6 Ves. 226. 
 
 But where the receiver took a bill for a debt due to the estate, and 
 remitted it to his own bankers on his general account, he was held liable 
 to the loss on the failure of the bankers, the Lord Chancellor distinguish- 
 ing this from the case of Knight v. Plymouth, since that was a single 
 transaction, but this was mixed, and he would not allow a receiver so to 
 deal, that if the solvency of the banker continued, the property was his 
 own, but if insolvency happened, part of the account was to be of the 
 
 trust estate. || 
 Wren v. Kirton, 11 Ves. 382 ; and see Rocke v. Hart, 11 Ves. 60 ; Massey v. Ban-
 
 252 USES AND TRUSTS. 
 
 (I) Trustee where favoured, and where to account. 
 
 ner, 4 Modd. 413 ; 1 Jac. & Walk. 241 ; Eobinson v. Ward, 1 Ryan & Moody, N. P. 
 Ca. 274, acc.\\ 
 
 [It hath been holden, that if an executor invests money in the funds, 
 he shall not be liable to the fall of stocks ; because the court, if applied 
 to, would have made the same appropriation. 
 
 Ex parte Champion, cited in Ilutcheson v. Hammond, 3 Bro..Ch. 11. 147. 
 
 Where a trustee sells out stock contrary to the trust, the cestui que trust 
 may elect to have the stock restored, or the produce of it paid. But if a 
 trustee for the benefit of the trust-estate sells out of one fund, and invests 
 the produce in another, or transfers the money from one real security to 
 another, the property continues unaltered, and he shall not be chargeable. 
 
 Harrison v. Harrison, 2 Atk. 121 ; Bostock v. Blakeney, 1 Bro. Ch. R. 1656 ; 
 Waite v. Whorwood, 2 Atk. 159 ; Worsley v. Earl of Scarborough, 3 Atk. 392 ;] 
 {4 Ves. J. 622, Piety v. Stace ; 12 Ves. J. 402, Bate v. Scales;} || Pocock v. Redding- 
 ton, 5 Ves. J. 794 ; Long v. Stewart, 5 Ves. 800 ; Widdowson v. Buck, 2 Meriv. 494 ; 
 Powlett v. Herbert, 1 Ves. 297.|| 
 
 {A trustee is entitled to interest I 1 } upon advances { 2 } made for the use 
 of cestui que trust, to supply the deficiency of the trust fund. He is also 
 entitled to allowance for depreciated paper money {"} paid to him for rent 
 of the trust estate, and for expenses incurred in erecting proper and neces- 
 sary buildings upon it, although the cestui que trust was not consulted. 
 
 1 Binn. 488, Lessee of Dilworth v. Sinderling. Vide 7 Ves. J. 480, Webb v. Earl 
 of Shaftesbury, f 1 } 1 Binn. 135, Cecil'a Lessee v. Korbman. {'-} And he has a lien 
 on the trust-estate for them. 1 Binn. 126, Frazer's Lessee v. Hallowell, and Cecil's 
 Lessee v. Korbman, there cited, p} 1 Wash. 226, Sallee v. Yates.} 
 
 || "Where trustees represented that the fund was invested in stock, they 
 were held to be chargeable with 5 per cent, interest, on the same princi- 
 ple as if they had sold the stock and used the money, since it was the 
 established option of the cestui que trust to have the actual profit made, 
 or 5 per cent, interest. 
 
 Bate v. Scales, 12 Ves. 402; and see 10 Ves. 470; 6 Madd. 235. 
 
 But while the original stock remains vested in their names, or if they 
 purchase any other stock, in pursuance of a power reserved to them, 
 trustees will not be answerable for the falling of such original stock in 
 the one instance, nor of the new fund in the other. 
 
 Jackson v. Jackson, 1 Atk. 513. The discretionary power of trustees to vary secu- 
 rities is not controlled by the Court of Chancery, unless ruinously exercised. Do 
 Mannerville v. Crompton, 1 Ves. & B. 354. 
 
 On the marriage of Lord Montfort, a settlement was made of a renew- 
 able lease, in trust out of the rents to pay the renewal fines and charges, 
 and subject thereto for the husband and wife successively for life, with 
 remainder for the first son at twenty-one. The trustees having neglected 
 to renew, they were held answerable as for a breach of trust, and liable 
 to pay to the son what he had laid out in procuring a renewal, but to be 
 repaid out of the estates of the tenant for life, with reference not to the 
 duration of their possession respectively, but to the proportions in which 
 they would actually have suffered a diminution of rent, in case the rents 
 had been properly applied towards the renewals. 
 
 Montfort v. Cadogan, 17 Ves. 485 ; 2 Meriv. 3. 
 
 Trustees and their representatives are liable in equity for a breach of 
 trust, although they derive no benefit from it, and although it happen 
 without any corrupt motive. 
 
 Adaix v. Shaw, 1 Scho. & Lef. 272 ; Scurfield v. Howes, 3 Bro. C. C. 91 ; Caffrey
 
 USES AND TRUSTS. 253 
 
 (I) Trustee where favoured, and where to account. 
 
 v. Darl'V, 6 Yes. 488 ; "Wilkinson v. Parry, 4 Russell, 272. As to the mode in which 
 trustees must make up their accounts, see Montgomery v. Wauchope, 4 Dow. Purl. 
 Ca. 109.11 
 
 A trustee purchasing the trust-estate at an undervalue, decreed to be 
 the purchaser and account at the present improved value, he being al- 
 lowed for permanent improvements. 
 
 Williamson v. Seatfer, 3 Younge & C. 717. See Richardson v. Jones, 3 Gill. & 
 Johns. 163; Davis v. Simpson, 5 JIarr. & Johns. 147; Dorsey v. Dorscv'-; heirs, 
 3 Ilarr. & Johns. 410 ; Haddix v. Haddix, 5 Litt, 202 ; Brackenridge v. Holland, 2 
 Blackf. 377 ; 2 Johns. Ch. 25G ; 3 Paige, 178 ; 1 Paige, 393. 
 
 "Where, after a lapse of twenty years, it was alleged that an estate had 
 been purchased by an administratrix with the intestate's estate, the court, 
 upon evidence of loose conversations only, refused to consider the pur- 
 chase as a trust. 
 
 Wilkins v. Stevens, 1 Younge & C. 431. 
 
 A trust-estate is liable for necessaries furnished on its account, though 
 purchased by a general agent of the estate. 
 
 Montgomery v. Eveleigh, 1 M'Cord's Ch. R. 267 ; Cater v. Eveleigh, 4 Desaua. 
 19 ; Maywood v. Johnston, 1 Hill's Ch. 230; James v. Mayrant, 4 Desaus. 591. See 
 Markan v. Guerrant, 4 Leigh, 279. 
 
 Where trustees have accepted of the trust and entered upon its execu- 
 tion, they cannot afterwards, Avithout the' consent of the cestui que trust, 
 or the direction of the court, surrender or discharge themselves of the 
 trust. Thus a debtor having assigned property for the benefit of his cre- 
 ditors, and A B, one of the cestuis que trust, being in England at the time 
 was not apprized of it, and the trustees subsequently assigned the trust- 
 estate to other trustees, upon other trusts, which would have deprived A 
 B of his rights. Held that the second trustees, knowing the nature of 
 the first assignment, were chargeable with the trusts contained in it. 
 
 Shepherd v. M'Evers, 4 Johns. Ch. 136. 
 
 It is the duty of trustees to keep the trust-funds separate and distinct 
 from their private funds. If they use the trust funds, or use them with 
 their own, they will be liable for all losses which may arise by their 
 neglect or mismanagement. 
 
 Case v. Abeel, 1 Paige, 393 ; Myers v. Myers, 2 M'Cord, Ch. 265 ; Brackenridge 
 v. Holland, 2 Blackf. 377. 
 
 A trustee who improperly suffers the funds to pass into the hands of 
 his co-trustee, is responsible in case of loss. 
 
 Mumford v. Murray, 6 Johns. Ch. 16, 452. See Monnell v. Monnell, 5 Johns. Ch. 
 296. 
 
 * 
 
 Where trustees are authorized to invest in stock or in real security, 
 and they lend on personal security, they are liable for the principal money 
 only, and not for the value of the stock they might have purchased. 
 
 Marsh v. Hunter, 6 Mad. 295. 
 
 The expense of putting into tenantable repair an estate purchased by a 
 trustee, is a charge on the principal fund ; that of keeping it in repair is 
 chargeable to the income. 
 
 Parsons v. Winslow, 16 Mass. 361. 
 
 It is a rule well settled in the English Chancery, adopted in New Jer- 
 sey, that if trustees loan money without due security, they are liable in 
 case of insolvency. 
 
 Gray v. Fox, Sax. Ch. R. 259.
 
 254 USES AND TRUSTS. 
 
 (I) Trustee where favoured, and where to account. 
 
 Trustees are not allowed to retain to themselves profits made upon the 
 use of the property of the cestui que trust. 
 
 Peyton v. Smith, 2 Dev. & Bat. Eq. 339 ; Voorhees v. Stoothoff, 6 Halst. 145 ; 
 Trenton Banking Company v. Woodruff, 1 Green's Ch. R. 117. 
 
 When a trustee lends the money of the cestui que trust without due 
 security, he is responsible when- the borrower becomes insolvent. 
 
 Smith v. Smith, 4 Johns. Ch. 281. 
 
 When the creator of a trust prescribes no rule for the management of 
 the trust estate, the law enjoins good faith ; that is, honesty and diligence 
 properly applied ; and a departure from the rule prescribed, or a failure 
 of good faith, will render the trustee liable. 
 
 Hester v. Hester, Dev. Eq. 328. 
 
 When trustees are empowered to sell real estate, and with the proceeds 
 pay debts and make investments in stock, they are not authorized to ex- 
 change the trust property for other real estate ; by making such exchange, 
 though with the best intentions, they become responsible for the value 
 of the property parted with. 
 
 Ringgold v. Ringgold, 1 Ilarr. & Gill. 11. 
 
 A trustee is not chargeable with imaginary values, or more than he has 
 received, unless there be evidence of gross negligence, amounting to a 
 wilful default. 
 
 Osgood v. Franklin, 2 Johns. Ch, 1 ; S. C. 14 Johns. 527. 
 
 When a trustee mismanages or puts the trust fund in jeopardy, by his 
 insolvency, either existing or impending, he will be restrained from fur- 
 ther interfering with the estate, and compelled to deliver up the funds. 
 
 Elmendorf v. Lansing, 4 Johns. Ch. 5G5. 
 
 A father, who is trustee for his child, will not be allowed for the main- 
 tenance of such child, except when the father is in indigent circumstances. 
 Expenses of education allowed being charged on the child's estate. 
 
 Myers v. Myers, 2 M'Cord, Ch. 264. 
 
 A trustee in the possession of land is required to account to the cestui 
 que trust, not only for the rents and profits actually received, but such as 
 might have been received. 
 
 Rogers v. Rogers, 1 Paige, 188. 
 
 When a trustee has made bond fide advances for the trust estate, he 
 has a right to be refunded out of the trust estate. 
 
 Watts v. Watts, 2 M'Cord, Ch. 82 ; Murray v. De Rottenham, 6 Johns. Ch. 02. 
 
 A trustee cannot act for his own benefit in a contract on the subject 
 of the trust, as to purchase a debt a/t a discount. 
 
 Green v. Winter, 1 Johns. Ch. 27 ; Parkist v. Alexander, 1 Johns. Ch. 394 ; Hold- 
 ridge v. Gillespie, 2 Johns. Ch. 30 ; Hart v. Ten Eyck, 4 Johns. 104 ; Davoue v. Fan- 
 ning, 2 Johns. Ch. 256 ; Kellogg v. Wood, 4 Paige, 578 ; M'Clanahans v. Henderson, 
 2 A. K. Marsh. 389. 
 
 For any fraudulent act committed by him, the trustee is answerable to 
 the cestui que trust. 
 
 Cobb v. Thompson, 1 A. K. Marsh. 513. 
 
 A trustee is not allowed to keep the income of the estate, to be accounted 
 at the termination of the trust, and, in the mean time, to appropriate the 
 capital to the payment of the annual expenses of the trust ; the income 
 should, in the first place, be applied to the support of the cestui que trust,
 
 USES AND TRUSTS. 255 
 
 (K) How far Trustees are answerable for each other. 
 
 if an infant, and to answer to the other exigencies of the trust, before 
 the principal, before any encroachment upon the principal. 
 De Peyster v. Clarkson, 2 Wend. 77. g/ 
 
 (K) How far Trustees are answerable for each other. 
 
 Each trustee shall be charged for no more than what he actually re- 
 ceived : but, where they join in receipts, there they shall be all charged : 
 Per North, K. 
 
 Spalding v. Chalnier, 1 Yern. 301; Bridgm. 37, Townley v. Sherborn, S. P. A 
 and B, trustees, received 10CKW. each on sale of a trust-estate, and both joined in receipt 
 for the money, as they did in the sale and the conveyances; B* became insolvent. 
 Wright, K., doubted if A should answer the whole. 2 Vera. 504, pi. 453, Fellows v. 
 Owen; 1 P. Wms. 81, pi. 83, S^C. And it is there said that the cestui que trust was 
 present, and consenting to the payment as above; and at his importunity the trust'' a 
 joined in accmittance for the whole. Decreed that A should not answer "for B's 1000Z. 
 
 {If two trustees for the sale of an estate join in the conveyance, and 
 that conveyance includes a receipt for the consideration money, one 
 trustee is not answerable for the money which goes into the hands of the 
 other, and is by him misapplied. Their joining in the conveyance and 
 receipt was necessary. 
 
 4 Johns. Hep. 23, Kip's Adm'rs v. Deniston. } 
 
 But, if two executors join in the sale of the goods, &c, of the testator, 
 they shall be both chargeable, though one of them only received the 
 money, for there was no necessity for their joining. 
 
 2 Vera. 570, Mural v. Cos ; 1 Salk. 318, Churchill v. Hopson, S. P. [The dis- 
 tinction between executors and trustees as to this point appears also in Applyn v. 
 Brewer, Pr. Ch. 173 ; Attorney-General v. Randall, 21 Yin. Abr. 534. pi. 9, et infra. 
 Ex parte Belchier, Ambl. 219 ; Leigh v. Barry, 3 Atk. 584; Read v. Truelove, Ambl. 
 417. And notwithstanding the inclination expressed by Lord Ilarcourt in Churchill 
 v. Lady Hobson, 1 P. Wms. 241, and 1 Salk. 318, and by Lord Northington in West- 
 ley v. Clarke, 1 Cox's P. Wnis. 82, to favour executors equally with trustees, yet the 
 distinction still prevails ; and where by any act done by one executor, any part of the 
 estate comes to the hands of another executor, the former will be liable for his com- 
 
 S anion in the same manner as if he had enabled a stranger to receive it. Sadler v. 
 [obbs, 2 Bro. Ch. R. 117; Scarfield v. Howes, 3 Bro. Ch. R. 90; || Brice v. Stokes, 
 11 Yes. 319 ; Bradwell v. Catchpole, 3 Swanst. 78, nota ; Walker v. Symonds, 
 3 Swanst. 2. || In Westley v. Clarke, one of the executors had actually received the 
 money without the concurrence of his co-executors, and they signed the receipt after- 
 wards ; so that, as Lord Thurlow observed, in commenting upon that case, there was 
 no act done by the co-executors Avhich put it into the power of the executor who re- 
 ceived the money to get at it, since, in fact, he had it at the time; for Lord Northington 
 said, that he should have thought the co-executors liable, if they had been present at the 
 time when the money was paid. See Cox's P. Wms. 241, note; || 1 Eden, 357, S. C.|| 
 In Churchill v. Lady Hobson, ubi supra, where Lord Ilarcourt held, that where 
 executors joined in the receipt, and one only actuallyreceived the money, the latter onlv 
 should be chargeable to legatees, though it would be otherwise as to creditors (a 
 tinction, by the way, not to be found in the decree, nor adopted in latter cases, Sadler 
 v. Hobbs, 2 Bro. Ch. R. 117, though to be met with in an earlier case, Gibbs v. Her- 
 ring, Pr. Ch. 49;) it appeared that the executor who received the money had been the 
 testator's banker, and that circumstance has been considered as haying bad some weight 
 in the determination.] || Where executors and trustees negligently joined in a transfer 
 of stock to a co-executor on a false representation that it was necessary to pay debts, 
 they were held liable for the amount, except so much as had actually been applied to 
 pay debts. Shipbrook v. Ilinchinbrook, 10 Yes. 477. || 
 
 J S, by will, 1724, gave 6501. to R and two other trustees in trust to 
 build and endow an alms-house in Cornwall for maintenance of five poor 
 women, and made M and N executors, and appointed the 600^. to be paid
 
 £56 USES AND TRUSTS. 
 
 (K) How far Trustees are answerable for each other, 
 within six months after his death, with interest. R lived in London, and 
 the other trustees in Cornwall. R called on the executors for the money, 
 who refused to pay it, unless the two other trustees would join in a re- 
 ceipt. R procured a receipt, and received all the money, and paid at 
 times, by directions of the other trustees, for building, &c, 400/. ; and 
 about four years after the money first received, failed, and was then in- 
 solvent. On a bill for an account against all the three trustees, Lord 
 Chancellor decreed R only to be chargeable. 
 
 2 Abr. Eq. Ca. 742, Lord Chancellor said, that it could not be expected that all the 
 trustees should meet together to receive the money ; but, if they had, either one must 
 have had the custody of the whole, or it must be divided into shares. Suppose all the 
 money had been lodged in a banker's hands bontlf.de, and he had failed, should the 
 trustees have been answerable? &c. And if they intrust one of themselves for conveni- 
 ence or necessity, at a time when he is solvent, which is no more than making him their 
 banker, shall equity punish where there is no default? and this is the very case of 
 Churchill v. Hopson ; and to charge trustees in such a case would make the case of the 
 trustees, who are necessary for the common good and convenience of families, &c, very 
 perilous; and his lordship said, he saw no reason why trustees may not make one of 
 themselves their cashier, where there is no fraud. That this was a reasonable thing, 
 R at that time being the only trustee who lived in London, where the money was paid, 
 &c. And as to an objection made as to letting the money lie so long in R's hands, he 
 said the case of R differs from the case of a common banker, where the money may be 
 drawn out at pleasure ; but here R had as good a right to the keeping of it as the others, 
 and all was paid out to about one-third, and he was intrusted by the testatrix as much 
 
 as the other. Ibid. If one trustee directs the payment of the trust-money over to the 
 
 others and joins in the deed, he charges and makes himself liable for the default of the 
 other. Said to have been so lately held in Chancery in the case of Serjeant Webb's 
 
 will. Ibid. [For where, by any act or agreement of a trustee, money gets into the 
 
 hands of his companion, they shall both be chargeable. Sadler v. Hobbs, 2 Bro. Ch. 
 R, 116; Keble v. Thompson, 3 Bro. Ch. R. 110. So, if a trustee know of the embez- 
 zlement of the trust-fund by his companion, he shall be charged with the amount. 
 Boardman v. Mosman, 1 Bro. Ch. R. 68.] { So, if he joins in a sale which is unne- 
 cessary, and in the receipt, and permits his co-trustee to keep and act with the money 
 contrary to the trust, he shall be charged, though he receive nothing; 11 Yes. J. 319, 
 Brice v. Stokes: unless the cestui que trust had notice of the breach of trust and acqui- 
 esced. Ibid, and 333, Langford v. Gascoyne.} || Brice v. Stokes, 11 Ves. 319; but 
 not in respect of the interest of a cestui que trust, who had notice of the breach of trust, 
 and acquiesced. Ibid. Adams v. Clifton, 1 Russ. 297. || 
 
 But if, upon the proofs of circumstances, the court be satisfied that 
 there be dolus mains, or any evil practice, fraud, or ill-intent in him 
 that permitted his companion to receive the whole profits, he may be 
 charged though he received nothing. 
 
 Bridgm. 38, Townly v. Sherborne. 
 
 A trustee, by proving a will, undertakes the trust, and if he stands 
 by inactive, and sees his co-trustee commit breaches of trust, he will be. 
 liable should any loss be incurred ; but if the cestui que trust concur, the 
 fund to which he may be entitled will be liable to compensate him. 
 
 Booth v. Booth, 1 Beav. 125. £ 
 
 If there are two trustees, and one of them, without warrant of the party 
 that trusts him, or of a court of equity, assigneth his estate, and the assignee 
 receives the profits, and becomes insolvent, he that made the assignment 
 shall answer it for him ; but the other original trustee shall answer for no 
 more than what he receiveth, because the assignee cometh not in by him, 
 or by his assent or appointment ; and in case such original trustee, who 
 did not make the assignment, receive the whole profits and become in- 
 solvent, neither the assignor or assignee shall be answerable for them. 
 
 BrLdgni. 38, Townley v. Sherborne; Cro. Car. 312, S. C. The trustees both sealed
 
 USES AND TRUSTS. 257 
 
 (K) How far Trustees are answerable for each other. 
 
 the counterpart of the assignment, and joined in acquittances for rent for a year and 
 a half; but one of them never meddled further. Resolved by Lord Keeper, assisted by 
 four judges, whereof Croke, J., was one, that the other, being only a party intrusted, 
 shall not be answerable for more than came to his hands ; for it was the default of him 
 who put them in trust, to repose trust in one who was not able to pay ; and he being 
 trusted as -well as the other, the other shall not be compellable to make good his defect ; 
 and so reversed a decree, whereby the other trustee was made liable to pay. — S. C. 
 cited 2 Vern. 51G, and it is there said, that the making joint trustees by the joining in 
 receipts to be answerable for each other (as in the above case) seemed to be against 
 natural justice, unless they had so joined in receipt as not to be distinguished what 
 had been received by one, and what by the other ; that there, indeed, of necessity, 
 they must both be charged with the whole ; and that is from their own neglect or 
 default ; as, if another man should blend his money with mine, by rendering my pro- 
 perty uncertain he loses his own ; and that there was a difference between joint trus- 
 tees and executors ; executors may act separately if they think fit, but if a trust-estate 
 is to be sold, the trustees must join in conveying, and also in receipts ; otherwise no 
 one will purchase. And since one trustee has equal power, authority, and interest 
 with the other, the one cannot in reason insist, or desire to receive more of the con- 
 sideration-money than the other, or to be more trustee than his partner or co-trustee. 
 || See Bires v. Betty, 6 Madd. 90. || 
 
 || If a settlement direct that a trustee on retiring shall assign the trust 
 property to the continuing trustee and to a new trustee to be appointed 
 in his place, the retiring trustee will be answerable for a misapplication 
 by the continuing trustee, if he assign to him alone. 
 Wilkinson v. Parry, 4 Russell, 272. || 
 
 (3 Trustees are chargeable with loss to the estate and interest, occa- 
 sioned by their voluntarily permitting a co-trustee to receive purchase- 
 money, and retain it a considerable time before calling for security 
 contrary to the trust ; notwithstanding a provision in the will that the- 
 trustees should not be answerable for any moneys, further than each 
 person for what he should respectively receive. 
 
 Bone v. Cook, McClel. 168. 
 
 A trustee, who stands by and sees a breach of trust committed by his 
 co-trustees, becomes responsible for that breach of trust. 
 Booth v. Booth, 1 Beav. 125. 
 
 A and B were appointed by will trustees for a female infant. In the 
 first place A accepted the trust with an understanding that he would not 
 interfere further than to give his associate his advice. B received the rents 
 for several years, and was indebted to the estate when he became embar- 
 rassed in his affairs ; he then deposited in the hands of A certain promis- 
 sory notes and acceptances, for which A gave a receipt as deposit for money 
 belonging to their ward. The friends of the infant becoming alarmed, ap- 
 plied to A, who told them that B had put into his hands notes sufficient 
 to cover the trust-funds which he, B, had received, and that they might 
 make themselves easy on that score, which induced them to rest satisfied. 
 Afterwards A returned the securities to B, who collected the amount due 
 on them, and applied the money, with other funds belonging to the trust, 
 to the purchase of lands in Ohio, and died there insolvent : held, 1st, that 
 A was liable to the cestui que trust for the amount of securities he re- 
 delivered to B, with interest ; 2dly, that the cestui que trust was not bound 
 to proceed against the estate of B in Ohio, without the request of A. 
 
 Estate of Mary Evans, 2 Ashm. 470.0 
 
 Vol. X.— 33 y 2
 
 258 USES AND TRUSTS. 
 
 (L) In what Cases Trustees shall give Security ; and when be discharged or removed. 
 
 Where a trustee is insolvent, the Court of Chancery will compel him 
 to give security before he shall enter upon the trust. 
 
 Carth. 458, The King v. Raines. 
 
 One trustee was decreed, at his own request, to release to the other and 
 his heirs his trust, and that the other should sell the premises devised to 
 be sold. 
 
 Fin. R. 380, Travell v. Danvers, Meers and Holbetch. 
 
 Likewise, a trustee was removed out of the trust, though much against 
 his will. 
 
 2 Chan. Ca. 130, Uvedale v. Ettrick. 
 
 || On motion to dismiss a trustee and release him, inquiry must be made 
 "before the Master, whether he remains accountable for any acts done as 
 trustee ; and if not, to prepare a release. 
 
 v. Osborn, G Ves. jun. 455 ; and see 4 Russell, 272. || 
 
 )3 The court removed a trustee, become bankrupt, although he had ob- 
 tained his certificate, but without prejudice to any interest he might claim 
 under the will appointing him. 
 
 Bainbridge v. Blair, 1 Beav. 495. £f 
 
 (M) The Power j3and Rights of Cestui que trust. 
 
 Cestui que trust hath jus habendi and jus disponendi ; and though in law 
 he hath neither jus in re, nor jus ad rem, yet in equity he hath both. 
 
 Mod. 38, Smith v. Wheeler, 1 Rep. 121 b, Chudleigh's case. So where he is 
 
 eestui que trust of a possibility. Mo. 806, pi. 1093, Cole v. Moore. — But cestui que trust 
 of" a surplus has' but a bare possibility, and cannot sell. Chan. Ca. 208. Arg. Lord 
 Cornbury v. Middlcton. — Unless the trustees are parties. Chan. Ca. 175, Backhouse 
 v. Middleton. — Any disposition by cestui que trust is binding upon the trustee in a court 
 of equity, and even at law. Chan. Prec. 415. /3The cestui que trust may sell and con- 
 vey the "trust-estate, as well as any other estate. Elliott v. Armstrong, 2 Blackf. 198. 
 But see Waggener v. Waggener, 3 Moor, 545. gf 
 
 Cestui que trust of a personal estate may sue in Chancery to have an 
 account against the executor or administrator ; and at the same time in 
 the Prerogative Court, to enforce them to bring in an inventory. 
 
 3 Chan. R. 72, Digby v. Cornwallis. pSee post, {P).£j 
 
 Likewise, cestui que trust may bring account against the bailiff ap- 
 pointed by his trustee to manage the estate of cestui que trust, after 
 such bailiff has accounted to the trustee. 
 
 2 Chan. Ca. 121, Pollard v. Downes. 
 
 Mortgagor in fee, after the mortgage-money paid, is a cestui que trust ; 
 and a will of the lands, made by such mortgagor, before the mortgage, 
 (notwithstanding such mortgage, and that for want of a re-conveyance 
 the estate in law was in the mortgagee, and so a verdict at law passes 
 against the devisee of such mortgagor,) is good, and not revoked by such 
 mortgage, especially in this case, where there was no republication after 
 the discharge of the mortgage. 
 
 2 Chan. R. 297, Hall v. Bench. 
 
 It has been held by some, that even a bargain and sale enrolled by 
 cestui que trust of an estate-tail shall bind the issue, in regard that such 
 a trust is not within the statute de do?iis. 
 
 1 Vern. 440, pi. 412, Carpenter v. Carpenter, alias Washborne v. Downes. [So, in 
 North v. Champernoon, 2 Chan. Ca. G4, it is said by Lord Chancellor Finch, that
 
 USES AND TRUSTS. 359 
 
 (N) Of Forfeitures by Cestui que trust. 
 
 tenant in tail of a trust may bar his issue by a feoffment, or bargain and sale. Bever- 
 ley v. Beverley, 2 Vern. 131 ; Baker v. Bailey, Ibid. 225. It was determined in Bo- 
 water v. Elly, 2 Vern. 344, that cestui que trust, if the trusties join, may bar the entail 
 by a feoffment. But in Legatt v. Sewell, 1 P. Wms. 91, and 2 Vern. 552, Lord 
 Cowper intimated a doubt, " whether only a deed, executed by cestui que trust in tail, 
 should bar the remainder-man, or even the issue, in regard a deed may be made at a 
 tavern and by surprise ; but a recovery is a solemn and deliberate act." And indeed 
 it seems to be now settled, that the issue in tail is not barred without a recovery 
 actually suffered. Weale v. Lowe, (cited) 2 Vern. 30G ; Kirkham v. Smith, Ambl. 
 518.] || With respect to copyhold lands, where there is no particular custom to bar 
 the entail of the legal estate, it seems that a mere devise by cestui que trust is suffi- 
 cient to bar the entail of the trust. See Otway v. Hudson, 2 Vern. 583, and Mr. 
 Cox's note to Dunn v. Green, 3 P. Wms. 10. || 
 
 But a common recovery suffered, or a, fine levied by cestui que trust of 
 
 an estate-tail, has the same effect in equity as it would have at common 
 
 law, in case the legal estate was in him. Resolved by Lord Chancellor. 
 
 1 Vern. 440, pi. 412, Carpenter v. Carpenter, alias Washborno v. Downes. It had 
 been doubted, whether the recovery of cestui que trust in tail, with the remainder to 
 another in tail, should bar the remainder, because it was no settled interest vested ; 
 and Bridgman, C. J., was of opinion it should not. But it was referred to a case and 
 the judges to consider of it. Chan. Ca. 68, Lord Digby v. Langworth. 
 
 A tender to cestui que trust of money due on bond, and a refusal, is a 
 
 good plea to an action of debt on the bond made to trustee. 
 
 1 Lutw. 577, Lynch and Templeman v. Clemence. ||See Huish v. Philips, Cro. 
 Eliz. 755 ; and ante, tit. Tender (E), and tit. Obligations (D), 3. And so also it has 
 been held, that the obligor in a bond may set off against the obligee a debt due to the 
 obligor from the cestui que trust of the bond. Bottomly v. Brook, 1 Term R. 621, 622 ; 
 but that this doctrine is not to be extended. See Wake v. Tinkler, 16 East, 36 ; and 
 see 7 East, 153. || 
 
 £ Slaves conveyed in trust are subject to execution for the debts of ces- 
 tui que trust. 
 
 Jones v. Langhorn, 3 Bibb, 453. 
 
 A cestui que trust may maintain an action in his own name, after the 
 purposes of the deed creating the trust are satisfied. 
 Hopkins v. Ward, 6 Munf. 41. 
 
 The possession of the trustee is, in equity, the possession of the cestui 
 que trust. 
 Miller v. Bingham, 1 Ired. Eq. R. 423. 
 
 Where property, real and personal, was devised in trust, the rents, issues, 
 and profits of which were to be paid to the cestui que trust, and a part of 
 the real estate was taken for a road, and the damages recovered for such 
 taking were paid to the trustee. Held, that such damages were not to be 
 considered as income to be paid to the cestui que trust, but were a sub- 
 stituted capital, and he was entitled only to the interest arising from it. 
 
 Gibson v. Cook, 1 Mete. 75. See 14 Pick. 108 ; 15 Pick. 471. 
 
 The possession of the cestui que trust cannot, perhaps, be disturbed by 
 the trustee, but this rule does not apply to trusts raised by construction 
 merely. 
 
 Starke's lessee v. Smith, 5 Ohio R. 455. £f 
 
 (N) Of Forfeitures by Cestui que trust. 
 
 Cestui que trust for years may forfeit his interest for felony, but cestui 
 que trust in fee cannot. Per Hale, C. J. 
 Hardr. 467, Pawlet v. The Attorney-General.
 
 260 USES AND TRUSTS. 
 
 (0) Compensation to Trustees. 
 
 A trust of a lease in gross shall be forfeited for felony, as the Earl of 
 Somerset's case in Hob. Daccomb's case, and Cro. J. Babington's case, 
 and Sir W. Raleigh's case : but otherwise of a term assigned oyer to wait 
 on the inheritance. 
 
 3 Chan. R. 36, 37, 5th Resolution, Attorney-General v. Sands. 
 
 Cestui que trust of an estate for life levies a fine ; it is no forfeiture, 
 but good by the statute of 1 R. 3, c. 1, during his own life ; and if pro- 
 clamations pass, there needs no claim or entry within five years. 
 
 Godb. 319, Sheffield v. Radcliff. 
 
 But cestui que trust in fee or fee-tail forfeits the same by attainder of 
 treason, and the estate is to be executed to the king in a court of review 
 by statute 33 H. 8, 27 H. 8, c. 10. 
 
 3 Ch. R. 34, Attorney-general v. Sands. 
 
 Where an alien is cestui que trust of an estate, the trust belongs to the 
 king. 
 
 3 Ch. R. 35, Attorney-general v. Sands, cites Holland's case. 
 
 If cestui que trust die without heir, the land shall be discharged of this 
 trust ; as, if a tenant in fee of a rent-charge die without heir, or be at- 
 tainted of felony, the land is discharged. 
 
 3 Ch. R. 36, Attorney-general v. Sands. 
 
 If cestui que trust be indebted to the king, he shall have execution of 
 this trust both by the common law, and the practice of the Court of Ex- 
 chequer. 
 
 3 Ch. R. 35, Attorney-general v. Sands. 
 
 A fine with proclamation and non-claim will bar a trust ; and so it was 
 resolved in the Exchequer ; and an entry on the land by a cestui que 
 trust is not sufficient claim, but it must be a subpoena. Per Lord Keeper 
 Finch. 
 
 1 Chan. Ca. 268, Clifford v. Ashley. 
 
 If a trustee by fraud and combination with the cestui que trust, endea- 
 vour to evade any penal laiu, as the statute of simony, &c, under pretence 
 that a trust is only cognisable in equity, and that equity should not assist 
 a penalty or forfeiture : yet Chancery will aid remedial laws, and not 
 suffer its own notions to be made use of to elude any beneficial law. 
 
 1 Abr. Eq. Ca. 131, Attorney-general v. Hindley. 
 
 j3 (0) Compensation to Trustees. 
 
 Where the testator directed his trustees to be allowed all expenses, 
 and for professional assistance and for loss of time, one being a surveyor, 
 superintended the sale of the real estate ; held to be entitled to compen- 
 sation for loss of time. 
 
 Willis v. Kibble, 1 Beav. 559. 
 
 When a solicitor acts as trustee, he cannot charge for his services ren- 
 dered in his character of solicitor, unless there be some special contract 
 authorizing him to make such charge. 
 
 Sherwood, ex parte, 3 Beav. 338. 
 
 In New York, a trustee is not entitled to commissions on sales of the 
 trust estate, nor to any compensation for his care and pains in executing 
 the trust ; but he is entitled to an allowance per diem for his time, ex- 
 penses incurred in travelling, &c. 
 
 Green v. Winter, 1 Johns. Ch. 27 ; Manning v. Manning, 1 Johns. Ch. 527.
 
 USES AND TRUSTS. o 61 
 
 (P) Of Suits by and against Trustees and Cestuis que trust. 
 
 Commissions allowed to a trustee, as a compensation for his skill and 
 trouble, are not to be lessened or withheld, because of conduct in respect 
 of which he had been charged with interest. 
 
 Winder v. Diffendcrffer, 2 Bland, 1G7. 
 
 A solicitor, who is trustee, is not entitled to charge for his professional 
 services, which must be assumed to have been rendered in his character 
 of trustee ; but under a contract properly entered into, he may be en- 
 titled to his professional charges. 
 In re Sherwood, 3 Beav. 338 ; Moore v. Frowd, 3 My. & Craig, 45. 
 
 Where business relating to a trust-estate was transacted by two soli- 
 citors in partnership, one of whom was a trustee of the estate ; held, in 
 passing his accounts, that costs out of pocket could alone be allowed. 
 
 Collins v. Corey, 2 Beav. 128. 
 
 A stipulation by a trustee for compensation for his personal services, 
 includes all his expenses, whether fixed or contingent, but excludes a 
 compensation for services, if it would be improper otherwise to allow any. 
 
 M'Millen v. Scott, 1 Monr. 151. 
 
 On his assuming the trust, a trustee is not justly entitled to an allow- 
 ance by way of commission, but he may be allowed, as a compensation 
 for his services, a commission on the net income of the property which 
 he holds in trust after he has collected such income. 
 
 Dixon v. Homer, 2 Mete. 420 ; Langley v. Hall, 11 Pick. 120. 
 
 Commissions may be allowed in a trustee's account, in addition to an 
 allowance of specific charges for services, provided the whole does not 
 exceed a just compensation ; such compensation being considered for ser- 
 vices not specifically charged. 
 
 Rathbun v. Collon, 15 Pick. 471. 
 
 The usage which exists among merchants, factors, and others, who un- 
 dertake to manage the interests or concerns of others, and the highest 
 rate at which such services are usually paid for, is the rule which ought 
 to be followed in allowing commissions to trustees. 
 Barrell v. Joy, 16 Mass. 221. 
 
 In Maryland, by an equitable construction of, and by analogy to the 
 statutes of that state, allowing commissions to executors, guardians, and 
 trustees, under judicial sales, commissions may be allowed to conventional 
 trustees, though there was no agreement between the parties to that effect. 
 
 Ringgold v. Ringgold, 1 Har. & Gill, 11. 
 
 In Pennsylvania, under the equity of the act which allows commissions 
 
 to executors, trustees are also entitled to claim them. 
 
 Provost v. Gratz, 3 Wash. C. C. R. 434 ; Burr v. M'Evren, 1 Bald. 154. See as to 
 the amount allowed, Nathan v. Morris, 4 Whart. 389. 
 
 (P) Of Suits in Equity and Actions at Law by and against Trustees and Cestuis que 
 
 trust. 
 
 A trustee and cestui que trust may properly unite as complainants 
 in a bill to recover the trust fund. 
 Jennings' Executors v. Davis, 5 Dana, 128. 
 
 A trust fund must be reached by a suit against the trustees, not against 
 the cestui que trust. 
 Thomas's Trustees v. Brashear, 4 Monr. 68.
 
 262 USES AND TRUSTS. 
 
 (Q) Miscellaneous Cases. 
 
 Where there is a trust-estate, the trustee is answerable for damages, 
 as on an implied assumpsit, to the cestui que trust, that he would execute 
 the trust. 
 
 Newhall v. Wheeler, 7 Mass. 189. 
 
 The cestui que trust of a mortgage cannot maintain an action for pos- 
 session of the land mortgaged. 
 
 Sommes v. Skinner, 16 Mass. 348. 
 
 Although a cestui que trust, after a trust is satisfied, may maintain 
 ejectment, that does not deprive the trustee, holding the legal title, of his 
 right to maintain such action. 
 
 Hopkins v. Stephens, 2 Rand. 422. 
 
 A cestui que trust, who has paid the consideration of lands conveyed, 
 may claim the benefit of a resulting trust, and he will be considered as 
 holding the legal estate so far as to be enabled to maintain or defend an 
 action of ejectment. 
 
 North Hampstead. v. Hampstead, 2 Wend. 109. 
 
 In law, trustees constitute but one person ; they must, therefore, join 
 in bringing an action. 
 
 Brinkerhoof v. Wemple, 1 Wend. 470. 
 
 As a general rule, the cestuis que trust should be made parties, more 
 especially when they are to be divested of title. 
 
 Piat v. Oliver, 2 M'Lean, 267. 
 
 The o-rantee of a cestui que trust filed a bill against the trustee to ob- 
 tain the legal title ; held, that the grantor need not be a party either as 
 complainant or defendant. 
 
 Elliott v. Armstrong, 2 Blackf. 198. 
 
 A trustee may maintain ejectment in his own name ; and a third per- 
 son cannot set up the title of the cestui que trust to defeat the recovery. 
 
 Chahoon v. Hollenbach, 16 S. & R. 425. 
 
 In Pennsylvania, the cestui que trust may bring ejectment in his own 
 name. 
 
 Kennedy v. Fury, 1 Dall. 72. 
 
 (Q) Miscellaneous Cases. 
 
 A corporation aggregate is capable of taking and holding property 
 
 as a trustee. 
 
 Phillips' Academy v. King, 12 Mass. 546 ; Sutton v. Coal, 3 Pick. 232 ; Amherst 
 Academy v. Cowles, 6 Pick. 427 ; Vidal v. Girard's Executors, 2 How. S. C. Rep. 
 127. 
 
 When a will directs acts to be done which necessarily require the in- 
 tervention of a trustee to hold the property, the executor is trustee by 
 necessary implication. 
 
 Nash v. Cutler, 19 Pick. 67. See 8 Pick. 464 ; 9 Pick. 395 ; 13 Pick. 328 ; 6 Mass. 
 37; 15 Mass. 113. 
 
 When one is authorized and required to take an obligation to himself 
 for the use and benefit of another, and no mode of proceeding is pre- 
 scribed, it is the intention of the legislature that the obligee shall be 
 deemed a trustee for the party interested, and be liable accordingly. 
 
 Crane v. Keating, 13 Pick. 339.
 
 USES AND TRUSTS. 263 
 
 (Q) Miscellaneous Cases. 
 
 A purchaser under a deed of trust can hold only subject to the stipu- 
 lations and conditions contained in such deed. 
 Payne v. "Webster, 1 Verm. 101. 
 
 A trustee cannot alien the trust fund in payment of his own debts. 
 Graff v. Castleman, 5 Rand. 195. 
 
 When a trustee is obliged to employ an agent, and does so in good 
 faith, he is not responsible for any loss of the trust fund, arising from 
 the subsequent insolvency of the agent. 
 
 Potts v. Trotter, 2 Dev. Eq. 281. 
 
 Where a trust of land is wholly nominal, the trust becomes executed 
 in the cestui que trust, and he may maintain ejectment for the recovery 
 of the lands in his own name, without a previous conveyance from the 
 trustee. 
 
 Welch v. Allen, 21 Wend. 147. 
 
 Courts of law will protect the rights of a cestui que trust, against any 
 
 person having notice of the trust. 
 
 Anderson v. Van Alen, 12 Johns. 343 ; Stiver v. Stiver, 8 Ohio, 217. See Harris- 
 burg Bank v. Tyler, 3 Watts & S. 373 ; Lee v. Tiernian, Addis. 349 ; Scott v. Galla- 
 her, 14 S. & R. 333. 
 
 Whenever the trust fund is converted into some other species of pro- 
 perty, it is liable in its new form to the cestui que trust, if its identity 
 can be traced. In such case the cestui que trust may exercise his option 
 either to take the property or pursue some other remedy. 
 
 Piatt v. Oliver, 2 M'Lean, 267. 
 
 Under the common law, the trustees charged with collecting the in- 
 terest on a bond, on the insolvency of the obligor, have a right to ex- 
 change the bond for the note of a third person, especially if the cestui 
 que trust sanction the transaction. 
 
 Morgan et al. v. Their Creditors, 6 Mart. N. S. 415. 
 
 The clause in a deed of trust regarding the consideration, is to prevent 
 a resulting trust in the grantor, and to estop him for ever from denying 
 the deed for the uses therein mentioned. 
 
 Belden v. Seymour, 8 Conn. 304. 
 
 When the trust is for the payment of debts generally, a purchaser 
 under the trustee is not bound to see to the application of the purchase- 
 money, although he has notice of such debts. 
 
 Grant v. Hook, 13 S. & R. 262. See Bruch v. Lantz, 2 Rawle, 417.0
 
 264 
 
 USURY. 
 
 Usury, in a strict sense, is a contract upon the loan of money to give 
 the lender a certain profit for the use of it upon all events, -whether the 
 borrower make any advantage of it, or the lender suffer any prejudice 
 for the want of it, or whether it be paid on the day appointed or not. 
 
 1 Hawk. P. C. c. 82, $ 1. /3 Usury is the illegal profit which is required and re- 
 ceived, by the lender of a sum of money, from the borrower for its use. Bouv. L. D. 
 h. v.0 
 
 And in a larger sense it seemeth, that all undue advantages taken by 
 a lender against a borrower, came under the notion of usury, whether 
 there were any contract in relation thereto, or not ; as, where one in 
 possession of land, made over to him for the security of a certain debt, 
 retains his possession after he has received all that is due from the 
 profits of the land. 
 
 1 Hawk. P. C. c. 82, \ 2. 
 
 The consideration of this offence may be reducible to the following 
 heads, wherein we shall inquire, 
 
 (A) Of Usury at Common Law. 
 
 (B) Of Usury by the Statute Law. 
 
 (C) What Kinds of Agreements or Contracts shall be deemed usurious, and what 
 
 not. 
 
 (D) What Kind of Hazard or Casualty will bring an Agreement, &c, out of the 
 
 Statute of Usury. 
 
 (E) In what Cases Securities shall be forfeited or avoided on account of Usury. 
 
 (E) In what Cases a Forfeiture or Treble Value shall be incurred on account of 
 Usury. 
 
 (G) In what Cases Relief is given against usurious Contracts. 
 
 (II) How far Sureties are affected by usurious Contracts. 
 
 (I) What Informations will lie in Cases of Usury, and where they are good, and 
 where not. 
 
 (K) Of the Pleadings in Cases of Usury. 
 
 (L) Of the Trial and Evidence in Cases of Usury. 
 
 (A) Of Usury at Common Law. 
 
 Anciently it was holden to be absolutely unlawful for a Christian to 
 take any kind of usury, and that whosoever was guilty of it was liable to 
 be punished by the censures of the church in his lifetime ; and that if after 
 death any one was found to have been a usurer while living, all his chat- 
 tels were forfeited to the king, and his lands escheated to thelord of the fee. 
 
 Hawk. P. G. c. 82, § 4. But per Hale, C. J., Jewish usury, being 40 per cent, and 
 more, was prohibited at common law, but no other. Ilardr. 420, Anon. || Lord Coke 
 lays it down that by the effect of the statutes 37 H. 8, and 13 Eliz. the common law 
 as to usury is done away. 3 Inst. 152. See this opinion controverted at length, Plow-
 
 USURY. 265 
 
 (B) Of Usury by the Statute Law. 
 
 den on Usury, p. 1, c. 11, where see somo information on the ancient state of the law 
 as to usury by Jews and by Christians, and as to Judaism in England generally ; and 
 see Ibid. Append. || 
 
 Also, it seemeth to have been the opinion of the makers of some acts 
 of parliament, as 5 Ed. 6, c. 20 ; 13 Eliz. c. 8, § 5, and 21 Jac. 1, c. IT, 
 § 5, that all kinds of usury are contrary to a good conscience. 
 
 Hawk. P. C. c. 82, § 5. 
 
 And agreeably thereto it seemeth formerly to have been the general 
 opinion, that no action could be maintained on any promise to pay any 
 kind of use for the forbearance of money, because that all sueh contracts 
 were thought to be unlawful, and, consequently, void. 
 
 Hawk. P. C. c. 82, § 6. 
 
 But it seemeth to be generally agreed at this day, that the taking of 
 reasonable interest for the use of money is in itself lawful, and, conse- 
 quently, that a covenant or promise to pay it, in consideration of the for- 
 bearance of a debt, will maintain an action ; for why should not one who 
 has an estate in money be as well allowed to make a fair profit of it as 
 another who has an estate in land ? And what reason can there be, that 
 the lender of money should not so well make an advantage of it as the 
 borrower ? Neither do the passages in the Mosaical law, which are gene- 
 rally urged against the lawfulness of all usury, if fully considered, so 
 much prove the unlawfulness as the lawfulness of it ; for if all usury was 
 against the moral law, why should it not be as much in respect of foreign- 
 ers, of whom the Jews were expressly allowed to take it, as in respect 
 of those of the same nation, of whom alone they were forbidden to re- 
 ceive it ? From whence it seems clearly to follow, that the prohibition 
 of it to that people was merely political, and, consequently, doth not ex- 
 tend to any other nation. (a) 
 
 Hawk. P. C. c. 82, \ 7. \\(a) And such was the opinion of Grotius and Puffendorf, 
 who have treated the subject at length. For a full statement of the reasonings on the 
 question, whether receiving interest for money is against conscience and natural law, 
 and for a refutation of the old and vulgar errors which held it to be so, see Grotius de 
 Jure B. et P. lib. xi. c. xii. | 20. Puffendorf, Droit de la N. lib. v. chap. vii. § 8, 9, 
 10. Rutherforth's Instit. N. L. b. i. c. xiii. The passage in St. Luke, c. xix. v. 22, 
 " Wherefore then gavest thou not thy money into the bank, that at my coming I might 
 have required mine own with usury?" (and see St. Matt. c. xxv. v. 27,) seems to 
 show that the usage existed at Jerusalem of placing money at interest in the bands of 
 bankers, and was not deemed unlawful. The old statutes, legalizing interest at certain 
 rates, bear witness to the violent prejudices against the practice. The statute 13 Eliz. 
 c. 8, which allows 10 per cent, interest, recites, " that all usury being forbidden by the 
 law of God is sin, and detestable ;" and the 21 Jac. 1, reducing the rate to 8 per cent., 
 provides, that " nothing in the law shall be construed to allow the practice of usury 
 in point of religion or conscience." Rolle says, that this clause was introduced to 
 satisfy the bishops, who would not pass the bill without it. Oliver v. Oliver, Roll. II. 
 Calvin and St. Thomas Aquinas both agree that the receipt of usury is not contrary 
 to Scripture. Calv. Epist. de Usura ; St. Thomas Aqu. Op. de Usur. c. 4. See the 
 question as to the policy of laws regulating the rate of interest discussed with inge- 
 nuity and clearness by Mr. Bentham. " Defence of Usury, showing the Impolicy of 
 the present Legal Restraints," 1818. || 
 
 (B) Of Usury by the Statute Law. 
 
 By the 37 H. 8, c. 9, and the 13 Eliz. c. 1, the rate of interest is not 
 to exceed 10?. in the 100?. By — 
 
 The 21 Jac. 1, c. 17, § 2, None shall upon any contract, directly or in- 
 directly, take for the loan of any money, or other commodities, above the 
 
 Vol. X.— 34 Z
 
 266 USURY. 
 
 (B) Of Usury by the Statute Law. 
 
 rate of 81. for 1001. for one whole year, in pain to forfeit the treble value 
 of the money, or other things lent. 
 
 § 5. This law shall not be construed to allow the practice of usury in 
 point of religion or conscience. 
 
 By the 12 Car. 2, c. 13, § 2, None shall take, directly or indirectly, 
 for the loan of money, or other commodities, above the value of 61. for the 
 forbearance of 1001. for one year, and so after that rate, and all bonds, con- 
 tracts, 8fc, whereupon more shall be reserved, shall be void. They that re- 
 ceive more, shall forfeit the treble value of the money or other, things lent. 
 
 12 Car. 2, c. 13, § 2. A mortgage was made at SI. per cent, before the malting of this 
 statute, reducing interest to 61. per cent. The mortgagor continued paying interest of SI. 
 per cent, for fifteen years after this statute, and then the mortgagee entered. The mort- 
 gagor brought a bill to redeem. The question was, Whether the 21. per cent, received 
 for the fifteen years should not be allowed in discharge of so much principal ? The 
 court denied relief as to the money paid by the plaintiff; but decreed 61. per cent, only, 
 to be allowed from the defendant's entry on the estate. 2 Vern. 42, pi. 37, Walker 
 
 v. Peury. On a rehearing, the decree was confirmed as to the 21. per cent. Ibid. 78, 
 
 pi. 73. Lord C. Jefferies having been of opinion, that the statute had no retrospect be- 
 yond 1660, but looked forwards to contracts and agreements then after to be made, 
 and not to any contracts and agreements before that time, and having decreed account 
 to be taken accordingly as above, now upon the bill of review, Lord Commissioner 
 Trevor, because there was a decree already made in it, would not reverse it ; but 
 Lords Commissioners Itawlinson and Hutchins, on reading the act of parliament, held 
 the act had a retrospect, and makes it unlawful to take more than 61. per cent., upon 
 any contracts whether made before or after the act of parliament ; but that part of the 
 statute which adds penalties, relates only to contracts and agreements then after to be 
 
 made. 2 Vern. 145, 146, pi. 141 ; Walker v. Penry. Abr. Eq. Ca. 288, (D,) pi. 1, 
 
 cites 2 Vern. 145, S. C. And adds, that Rawlinson and Hutchins, Lords Commis- 
 sioners, held the decree should be reversed against Lord Trevor. || As to the question, 
 whether the statute should have a retrospective effect, see tit. Statute, (C.)|| 
 
 But the 12 Ann. stat. 2, c. 16, enacts, That no person upon any contract, 
 
 which shall be made after the 29th of September, 1714, shall take for loan 
 
 of any money, ivares, fyc, above the value of 51. for the forbearance of 1001. 
 
 for a year ; and all bonds and assurances for payment of any money to 
 
 be lent upon usury, whereupon or whereby there shall be reserved or taken 
 
 above five in the hundred, shall be void ; and every person which shall 
 
 receive, by means of any corrupt bargain, loan, exchange, chevisance, 
 
 shift, or interest of any ivares, other things, or by any deceitful way, for 
 
 the forbearing or giving day of payment for one year, for their money 
 
 or other things, above 51. for 1001., for a year, $c, shall forfeit treble the 
 
 value of the moneys or other things lent. 
 
 It seems to be now settled, that the statute of 12 Ann. c. 16, which reduces the 
 money to 51. per cent., has not a retrospect to any debts contracted before ; but that 
 they should carry interest according to the interest allowed, or agreement made at 
 the time of the debt contracted. And Serjeant Hawkins, from the expositions made 
 of former statutes, says that a contract made before the statute is no way within the 
 meaning of it, and therefore it is still lawful to receive 61. per cent, in respect of any 
 such contract. Hawk. P. C. c. 82, \ 10. 
 
 The expositions which have been made of the former statutes being 
 very applicable to the last, which is almost in the same words, the pro- 
 per construction of it will be best collected by a due attention to the fol- 
 lowing heads. 
 
 [By st. 3 G. 1, c. 8, § 39, The Governor and Company of the Bank 
 of England are enabled to borrow money at such rate of interest as they 
 may think fit, although the same may happen to exceed the interest al- 
 lowed by law to be taken.
 
 USURY. o 67 
 
 (B) Of Usury by the Statute Law. 
 
 || By 3 G. 1, c. 9, § 16, the same liberty is given to the South Sea 
 Cornpany.il 
 
 It is declared by 14 G. 3, c. 79, that all mortgages and other assurances 
 of lands, and their assignments or transfers, in Ireland and the plantations, 
 for securing money already executed in Great Britain, shall be as valid as 
 if executed on the mortgaged lands, and shall continue to carry interest at 
 the rate allowed of by the laws of the colony where the mortgaged lands 
 lie : but as to future loans, the act limits them to 61. per cent., and pro- 
 vides against fraud by confining the loan to the real value of the lands, &c. 
 It likewise gives treble forfeiture of the sum borrowed beyond the value 
 of the land mortgaged ; and, for greater notoriety and certainty, requires 
 all such mortgages or transfers to be registered in the country where the 
 lands lie, else to remain liable to the 12th of Anne. 
 
 This act relates only to mortgages and other securities relating to lands in Ireland 
 and the West Indies, but does not extend to personal contracts. Dewar v. Span, 3 
 Term R. 425.] 
 
 || An act (1 and 2 G. 4, c. 51) was passed to explain the above act of 
 14 G. 3, c. 79. But the 1 and 2 G. 4, c. 51, is now repealed by the 3 
 G. 4, c. 47, except as far as regards any mortgages or securities executed 
 before the passing of this last-mentioned act. 
 
 And by 3 G. 4, c. 47, § 2, it is enacted that all mortgages and securi- 
 ties already made or to be made in Great Britain of any lands, tenements, 
 or hereditaments, slaves, cattle, or other things being in Ireland or any of 
 the colonies in the West Indies, for securing payment of any money thereon 
 lent and advanced, with interest for the same, whether payable in Great 
 Britain or in the country, island, &c, where the lands, &c, comprised in such 
 mortgage are situate, and also all conveyances, demises, or other assurances 
 of any lands, &c., in Ireland or any of the colonies, and all bonds and co- 
 venants made or to be made or entered into in Great Britain either by the 
 person borrowing such money, or by any person residing in Great Britain 
 or elsewhere, whether made by way of collateral security for payment of 
 such interest, or for securing the payment of interest on the money so ad- 
 vanced at any higher rate than the rate of interest which such securities 
 bear or carry, and whether such collateral or other securities for such inte- 
 rest have been made or shall be made and entered into at the time of mak- 
 ing such mortgages or securities, or at any time subsequent thereto, and 
 whether the same shall be made to the original mortgagees or their repre- 
 sentatives, or to any person to whom such mortgages, &c, have been 
 assigned, and all transfers and assignments made or to be made in Great 
 Britain of such mortgages, securities, demises, bonds, &c, shall be as 
 good, valid, and effectual as such mortgages, securities, &c, would have 
 been if the same had been respectively made or entered into, and the 
 interest secured thereby had been made payable, and the person making 
 such assurances, bonds, &c, for securing such interest or additional inte- 
 rest as aforesaid, had resided in the country, island, &c, where the lands, 
 &c., comprised in such mortgage, &c, lie or are ; and none of His Ma- 
 jerty's subjects shall be liable to the penalties of the act of Queen Anne 
 for receiving interest for the sums lent on any such mortgage, &c, so as 
 the total amount of the interest so received do not exceed the rate allowed 
 by the law of the country, island, &c., where the lands, &c, comprised 
 in such mortgage, &c, severally lie or are.||
 
 268 USURY. 
 
 (C) What Kinds of Agreements or Contracts shall be deemed usurious, and whatnot. 
 
 It hath been resolved, that an agreement to pay double the sum bor- 
 rowed, or other penalty on the non-payment of the principal debt at a cer- 
 tain day, is not usurious, because it is in the power of the borrower wholly 
 to discharge himself, by repaying the principal according to the bargain. 
 
 Hawk. P. C. c. 82, g 3. 
 
 {A contract to pay a larger sum at a future day upon non-payment of 
 the sum agreed upon at a prior day is not usurious, but the increased sum 
 will be considered as a penalty, and relievable against in a court of equity 
 upon compensation being made ; and that compensation is legal interest, 
 unless some specific damage can be shown. 
 
 1 Wash. 1, Groves v. Graves; Ibid. 119, Winslow v. Dawson.} 
 
 But, if it were originally agreed, that the principal money should not be 
 paid at the time appointed, and that such clause were inserted only with 
 an intent to evade the statute, the whole contract is void ; for the construc- 
 tion of cases of this nature must be governed by the circumstances of 
 the whole matter, from which the intention of the parties will appear in 
 the making of the bargain, which, if it was in truth usurious, is void, 
 however it may be disguised by a specious assurance. 
 
 Hawk. P. C. c. 82, \ 19. 
 
 So, if both principal and interest be secured, yet, if it be at the will of 
 the party who is to pay it, it is no usury ; per Doddridge, J. As, if I lend 
 to one 100?. for two years, to pay for the loan thereof 80?., and if he pay 
 the principal at the year's end, he shall pay nothing for interest, this is 
 not usury ; for the party has his election, and may discharge himself by 
 paying it at the first year's end. 
 Cro. Ja. 509, pi. 20, Roberts v. Trenayne. 
 
 But, if a man contracts to pay more interest than the statute allows, if 
 the plaintiff requires it, though the plaintiff never does require it, yet it 
 is within the statute of usury.(a) 
 
 Vent. 234, Hedgeborough v. Rofenden. (a) It has been held, that an assurance for 
 the payment of fifty shillings for the use of 1001. for six months, the computation 
 shall be by calendar and not by lunar months, because by the latter the interest would 
 exceed the rate allowed by the statute. Hawk. P. C. c. 82, g 13. 
 
 Nevertheless it has been held, that if one contracts to have more than 
 the statute allows, but he takes nothing of the interest contracted for, he 
 is not punishable by the statute ; but if he takes any thing, if it be but 
 a shilling, it is an affirmance of the contract, and he shall render for the 
 whole contract. 
 
 Mallory v. Bird, cited in Pollard v. Scoly, Cro. Eliz. 26. 
 So, if I lend 100?. without any contract for interest, and afterwards at 
 the end of the year the borrower gives me 20?. for the loan thereof, the 
 same is within the statute ; for my acceptance makes the offence without 
 any contract or bargain. Per Gent, J. 
 
 Le. 90, pi. 125, in Sir Woollaston Dixy's case. 
 
 Where a man for 100?. sells his land, upon condition that if the vendor 
 or- his heirs repay the sum before the feast of Easter, or such like, then 
 next following, that then he may re-enter, this is.no usury ; for he may 
 repay the next day, or any time before Easter, and therefore he has no 
 gain certain to receive any profits of the land. 
 
 Bro. Usury, pi. 1. But, if the condition bo that the vendor repay such a da..-, a 
 year, or two years after, this is usury ; for he is sure to have the land and the rents 
 and profits for that year, or for those two years. Ibid. 'ibid.
 
 USURY. o 6 9 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 But, where B delivered wares of the value of 100?. and no more, and 
 took a bond, with a condition to re-deliver the war§g to B within a month, 
 or to fay 120?. at the end of the year, the obligation was adjudged void 
 by the statute of usury. 
 
 Mo. 397, pi. 520, Reynolds v. Clayton, cites it as adjudged in B. R. Beclier's case 
 
 So, if A comes to borrow money, and B says he will not lend money, 
 
 but he will sell com, &c, and give day for payment at such a rate, which 
 
 rate exceeds 10?. in the 100?. it is usury. 
 
 Mo. 398, pi. 520, cites it as Wick's case of Gloucestershire ; |3Evans v. Negley, 13 S. 
 & R. 218.0 
 
 If one gives the profits of his lands, worth 10?., for interest for a year 
 of 100?., though he receives part of the profits daily, this is not usury 
 above 10?. for the 100?. Per Popham, Gawdy, and Yelverton ; but 
 Fenner 3 contra. 
 
 Mo. 644, pi. 890, Worley's case. 
 
 So, where one mortgaged land for 100?. and took bond for the interest 
 of 81. a year, payable half-yearly ; the question was, Whether that 
 makes the bargain usurious against the statute, because, as it was insisted, 
 the use ought not to be paid until the end of the year, and contracting 
 to have half of it half-yearly, it is not warrantable by the statute ? But 
 the court held, that it is not any usurious contract contrary to the statute, 
 because the 100?. is lent for a year, and the reservation is not of more than 
 what is permitted by the statutes ;(a) and the reserving it half-yearly is 
 allowable ; for he does not receive any interest for more or less time than his 
 money is forborne. It was adjudged for the plaintiff, and affirmed in error. 
 
 Cro. Car. 283, Gryfill v. Wytchott, \\{a) The 21 Jac. 1, c. 17, was then in force, in 
 which 81. per cent, is the legal rate.|| 
 
 It is to be observed, that the loan of money for interest allowed by the 
 statute, shall not be construed to be within the purview of it, in respect 
 of any expectations which the lender may have of a voluntary gratuity, 
 to be given him by the borrower, if there be no kind of agreement re- 
 lating to it. 
 
 Hawk. P. C. c. 82, g 18 ; ||but see 2 Bos. & Pul. 381. || 
 
 But a contract reserving to the lender a greater advantage than is 
 allowed by the statute, is equally within the meaning of it, whether the 
 whole be reserved by way of interest, or in part only under that name, 
 and in part by way of rent for a house, let at a rate plainly exceeding 
 the known value. 
 Hawk. P. C. c. 82, § 22; [3 Atk. 154 ; Cowp. 795.] 
 
 || H having taken a building lease of land at 108?. per annum, assigned 
 over the lease to R for 2300?., (the value of the premises being proved to 
 be about 800?.,) and on the same day agreed to take the premises as tenant 
 to R and subject to the same covenants as in the building lease, but at an 
 increased rent of 395?. ; and there was a stipulation that II should be at 
 liberty, upon giving six months' notice, tore-purchase the lease for the sum 
 of 2300?. On H's becoming bankrupt, his assignees brought an ejectment 
 against the tenant, claiming under R, and the learned judge left it to the 
 jury to say whether the transaction was substantially a purchase, or a loan 
 by R to H. If they thought the latter, the deeds were void for usury ; and 
 the jury having found it the latter, the court refused to disturb the verdict. 
 
 z2
 
 270 USURY. 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 In such cases it is a question of fact for the jury, whether the transaction 
 is bond fide, or a colour for an usurious loan. 
 
 Doe dem. Grimes v. Gooch, 3 Barn. & Aid. G64 ; and see Doe dem. Metcalf v. 
 Brown, Holt's R. 295 ; Metcalf v. Brown, 5 Price, 560 ; Doe v. Chambers, 4 Camp. 1. 
 As to cases where a lease granted in consideration of a loan of money is considered 
 usurious, see 1 Ball. & Bea. 116, 125, 129; 1 Scho. & Lef. 182; 2 Ibid. 218. 
 
 Where a broker carried bills to be discounted, and allowed to the per- 
 son discounting, interest at the rate of 5?. per cent, per annum, and, in 
 addition, 11. per cent, on the amount of the bills towards the payment 
 of a debt due from a third person to the discounter, but which the broker 
 thought himself bound in honour, though not in law, to pay, and the 
 broker accounted to his principal for the whole amount of the bills, minus 
 lawful discount and commission ; it was held, that the transaction was 
 not usurious. If the discounter of a bill engage with the holder that he 
 shall pay the agent procuring the discount a premium, in addition to the 
 legal interest, this is usurious, although the discounter himself only take 
 the legal discount. 
 
 Solarte v. Melville, 7 Barn. & C. 431 ; Meagoe v. Simmons, Moo. & Malk. Ca. 
 121.|| 
 
 A bankrupt having borroived a great sum of money of the defendant for 
 one quarter of a year, he was to give the defendant 61. for every 100?. that 
 he borrowed; and some silk being the security, he was to give him one 
 pound more for every 160?. for that quarter, for the use of his warehouse. 
 The question upon the trial was, Whether this contract made between the 
 bankrupt and the defendant is a usurious contract? and the jury having 
 found a verdict for the defendant, Serjeant Cheshire moved for a new 
 trial ; for he said the verdict was against law. Holt, C. J., said he thought 
 it was a wrong verdict, and it was ordered to be moved again. 
 
 Holt's R. 706, Le Blanc et al. v. Harrison. 
 
 [One broker had borrowed of another on a note of hand 45?. on demand, 
 to purchase certain goods that were then on sale, on condition of having 
 the future profits on the re-sale. The goods were purchased and re-sold 
 for 5?. profit, the lender demanded his money within two hours after the 
 lending, which made it carry interest ; and the action was brought for 
 21. 10s. over and above the principal and interest : the plaintiff was non- 
 suited : for Lord Mansfield was of opinion, in which the three other * 
 judges concurred, " that the intention of the contract was to get more 
 than principal and legal interest on the note, which is usury within the 
 meaning of the statute." 
 
 Jeston v. Brooke, Cowp. 793. 
 
 The plaintiffs, who were gold-refiners, had advanced gold wire to others 
 in the same trade, upon the terms of paying such a price if the money 
 were paid within three months ; and if not, then to pay at the rate of a 
 halfpenny an ounce per month, over and above the price agreed for ; which 
 in fact, upon calculation, exceeded the rate of 51. per cent. This at the 
 trial was found to be the constant usage of the trade. A verdict was 
 given for the plaintiff, and a question reserved for the opinion of the court, 
 Whether this contract was usury ? Under all the circumstances, especially 
 the constant usage of the trade, the court was of opinion, that it did not 
 amount to usury within the statute. But though this transaction cannot be 
 considered as usury within the statute, yet in a subsequent case under these 
 circumstances, where the defendant had paid into court the principal and
 
 USURY. 271 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 interest at 5?. per cent, from the time of the bargain, the court -would not 
 allow the plaintiff in an action for money had and received to recover the 
 excess of interest, notwithstanding it appeared manifestly at the trial, 
 that such excess was only to be taken in case of delay of payment at the 
 end of three months, and for no other reason whatever. 
 Floyer v. Edwards, Cowp. 112; Plumbo v. Carter, Ibid. 116.] 
 
 || Where a contract was made for sale of an estate at a certain price, 
 and it. was agreed that this should be paid by instalments at future days 
 with interest at 6?. per cent, per annum, and promissory notes were given 
 for these sums compounded of the instalments and of that which was 
 called interest, it was held that the whole must be considered as the pur- 
 chase-money of the estate, and that the bargain was not usurious. 
 Beete v. Bidgood, 7 Barn. & C. 453. || 
 
 If a sum of money is given in consideration of an annuity, though the 
 yearly payment exceeds the rate of interest, yet it is not usury. Thus. 
 
 Where A asked to borroiv of B upon interest, and B refused to lend 
 for interest; but said that for rent or annuity he would ; and so it was 
 agreed, and a rent granted for twenty-three years, amounting to no more 
 than the statute allows for interest, &c. ; it seems, that this is not usury 
 within the statute. 
 
 And. 121, pi. 169, Finch's case. 
 
 If A gives 30?. to B, to have an annuity of 51. assured to him for 100 
 years, if A and his wife and four of his children so long shall live ; this 
 is not within the statute of usury. So, if there had not been any con- 
 dition. But care is to be taken, that there be no communication of bor- 
 rowing of any money before. 
 
 4 Le. 208, pi. 334, Fuller's case. 
 
 So, where A on the 17th of July, 1579, lent 100?. to B, who thereupon 
 granted to A and his heirs an annuity of 20?. a year, on condition that 
 if the said B, the grantor, paid to A, at Christmas 1580, the said 1001. , 
 that then the annuity should cease ; adjudged, this is not within the sta- 
 tute ; for nothing was to be paid for interest within a year and a quarter 
 after the grant ; and if the 1001. had been paid on the day, the annuity 
 • was to cease without paying any thing ; so that it is only a plain bargain. 
 and a conditional purchase of an annuity. 
 
 5 Rep. 69, Burton's case. 
 
 But, if it had been agreed between A and B, that notwithstanding such 
 power of redemption, the 1001. should not be paid at the day, and so that 
 the clause of redemption tvas inserted to evade the statute, then this had 
 been a usurious contract and bargain within the statute ; for if in truth 
 the contract be usurious against the statute, no colours or show of words 
 will serve, but the party may show it, and he shall not be concluded or 
 estopped by any deed in any other matter whatsoever ; for the statute 
 gives averment in such case. 
 
 5 Rep. 69, Burton's case. 
 
 Where A for 100?. granted a rent of 20?. for eight years, another of 
 20?. a year for two years, if B, C, and D, should so long live ; in reple- 
 vin the defendant avowed for the rent, and the plaintiff pleaded the sta- 
 tute of usury, and set forth the statute and a special usurious contract ; 
 it was said, that if it had been laid to be upon a loan of money, then it
 
 272 USURY. 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 was usury ; but if it be a bargain for an annuity, it is no usury ; but that 
 this was alleged to be upon a lending. 
 Brownl. 180, Cotterell v. Harrington. 
 
 So, where in debt upon bond, the defendant pleaded the statute of 
 usury, and that he came to the plaintiff to borrow of him 120?. according 
 to the rate of 10?. per cent., zvho refused to lend the same, but corruptly 
 offered to deliver 120?. to him, if he would be bound to pay him 201. per 
 annum, during the plaintiff's wife's and his sons lives ; whereupon he 
 entered into a bond ; it was resolved, that this, being an absolute bargain, 
 in consideration of the payment of 20?. per annum, during two lives and 
 no longer, and no agreement to have the principal money, was out of the 
 statute of usury ; but if there had been any provision for the repayment 
 of the principal, although not expressed within the bond, it had been a 
 usurious agreement within the statute. And judgment for the plaintiff. 
 Cro. Ja. 252, pi. 7, Fountain v. Grimes ; Hawk. P. C. c. 82, \ 15, says, that the 
 grant of an annuity for lives not only exceeding the rate allowed for interest, but also 
 exceeding the known proportion for contracts of this kind, in consideration of a certain 
 sum of money, is not within the meaning of the statute, unless there were some 
 underhand bargain for the security of the repayment of the principal or consideration 
 money. [And Mr. J. Burnet in Chesterfield v, Jansen, 2 Ves. 142, says : — " Supposing 
 there is a purchase of an annuity at ever such an under price, if the bargain was really 
 for an annuity, it cannot be usury ; but, if the communication was about borrowing 
 and lending, it may be usury within the statute : and how ? If by reason of all the 
 circumstances and the communication, the exility of the sum given, the original con- 
 tract being a borrowing and lending, the court thinks the annu ity was a mere devise 
 to pay the principal with usurious interest to evade the statute, this will be within the 
 statute ; though in the face of the bargain it appears ever so fair a sale of an annuity, 
 the contrivance of the annuity as the usurious reward for the loan of money shall not 
 evade the statute made for the benefit of mankind. This I take to be the sum and 
 substance to be collected out of the several cases. Tanfield v. Finch, Cro. Eliz. 26 ; 
 Fuller's case, 4 Leon. 208, et supra. Symonds v. Cockerill, Noy, 151 ; Cotterell v. 
 Harrington, Brownl. 180, et supra, and King v. Drury, 2 Leon. 7."] 
 
 A, after the statute 12 Car. 2, viz., 3 June, 13 Car. 2, agreed to lend 
 B 100?. ; and that for the forbearance thereof for the time underwritten, 
 B, the defendant, should pay to A, the plaintiff, 120?. as follows, viz., 
 40?., upon the 20th of January and 20th of July, by equal portions an- 
 nually next after the 20th day of the then instant month July till the 
 120?. be paid ; which exceeded the rate of 6?. per cent. And for the 
 further security B gave a bond of 200?., and confessed a judgment. Twis- 
 den, J., said that the contract here was not usurious, but was a purchase 
 of an annuity for three years. 
 
 Sid. 182, pi. 1, Rowe v. Bellasis. The plea in this case was held ill, being after 
 judgment. 
 
 It is to be observed, that if the agreement of the parties be honest, but 
 
 is made otherwise by the mistake of a scrivener, yet it is not usury. 
 
 3 Mod. 307, Ballard v. Oddey; see post, letter (E.) 8 Collier v. Nevill, 3 Dev. 30; 
 Sussex Bank v. Shipinan, 2 Harr. (N. J.) R. 497.£f 
 
 > A corrupt agreement, in which the minds of the parties meet, is ne- 
 cessary to constitute usury. Therefore, where more than lawful interest 
 was reserved, with the knowledge of the lender, but without the know- 
 ledge of the borrower, it was held that the transaction was not usurious. 
 
 Smith v. Beach, 3 Dav, 2G8. See Price v. Campbell, 2 Call, 110 ; Howell v. Auten, 
 1 Green's Ch. R. 44. 
 
 When a greater rate than legal interest is taken by a party to a contract,
 
 USURY. 273 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 upon a mistaken supposition of a legal right to do so, it is, nevertheless, 
 a corrupt agreement within the statute. 
 Maine Bank v. Bretis, 9 Mass. 49.£f 
 
 [An annuity was granted at six years' purchase for the life of the 
 grantor, a clergyman, then of the age of thirty-two years, charged upon 
 his living, with a clause for redemption at the option of the grantor, after 
 the expiration of five years, for five years and a half's purchase. It was 
 recited in the annuity deed, that the agreement had been made for a loan 
 of the money, which Avas paid as the price or consideration for the annuity. 
 But it appeared to the court, that this recital was made by the attorney 
 without the privity or direction of his client, who really and substantially 
 meant to purchase an annuity. The court determined, that the annuity 
 was not usurious, and that the inaccuracy of the recitals in the instru- 
 ment should not vitiate a contract that otherwise seemed to be a fair one. 
 De Grey, C. J., in giving judgment in this case observed, "That it was 
 essential to the nature of a usurious contract, that there must be, 1. A loan. 
 
 2. That illegal interest is to be paid for such loan. And it is essential to 
 the nature of a loan, that the thing borrowed is at all events to be re- 
 stored.^) If that be bond fide put in hazard, it is no loan, but a contract 
 of another kind. So also, if illegal interest is to be certainly paid, or even 
 upon a reasonable possibility, the contract is usurious." To evade these 
 principles, many expedients have been tried. 1. To make the interest 
 precarious and uncertain. 2. To make the principal itself precarious. 
 
 3. Communication concerning a loan has sometimes infected the case, and 
 turned a contract into usury. But then the communication must be mutual ; 
 and it must be with the party himself, and not with his attorney. There 
 is no case where even a meditated loan has been bond fide converted into 
 a purchase, and afterwards held usurious. 4. Inequality of price is also 
 a suspicious circumstance, especially if very inadequate. 5. If a power 
 of redemption be given, though only on one side, it is a strong circum- 
 stance to show it a loan, as in Hooper v. Lawley, 3 Atk. 278. But that 
 alone will not be conclusive. G. The form of the instrument. If that im- 
 ports a loan, and it was so meant, the contract may become usurious. At 
 the same time, if the transaction be bond fide, the blunder of an agent shall 
 not make it otherwise, as in Buckley v. Guildbank, Cro. Ja. 677, where in- 
 terest was made payable by such mistake two days after.(6)_ 7. Subse- 
 quent acts of the parties may also bea material evidence of intention. 
 
 Murray v. Harding, 2 Black. R. 859 ; 3 Wils. 390, S. C. In Lawley v. Hooper, 
 3 Atk. 278, Lord Hardwicke, in determining that an annuity granted by Lawley for 
 his life, with a proviso for repurchasing or redeeming it, upon giving sis months' notice 
 to the grantee, was a loan, seemed to lay great stress upon the effect of the proviso. 
 From the language his lordship used upon that occasion, an idea prevailed for a con- 
 siderable time, that the inserting of such a proviso infected the deed with usury. It 
 is manifest, however, from this case in Murray v. Harding, that a right in the grantor 
 to determine the annuity for his own benefit, does not create that necessity or obliga- 
 tion of repaying the principal loan at all events, without which the courts have re- 
 peatedly declared usury against the statutes cannot be committed. And Lord Thurlow, 
 in Irnham v. Child, 1 Bro. Ch. R. 92, said, To sell an annuity, and make it redeemable, 
 is not usury, because it is not a loan, {a) That there must be a loan to constitute usury 
 is laid down in several other cases. 2 Anders. 15, pi. 8 ; 22 Vin. Abr. 300, S. C. ; Love- 
 day's case, 8 Co. 65. But there may be usury where a party takes more than the law 
 allows for the forbearance of a debt, and yet in that case there is no loan in the 
 ordinary acceptation of the term. Thus in Pollard v. Scholy, Cro. Eliz. 20, " Pollard 
 sold to the defendant some oxen to be paid for at a given time : when the time was 
 
 Vol. X.— 35
 
 274 USURY. 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 arrived, Scholy required a longer day for payment, and Pollard granted it, paying to 
 him so much wheat, as exceeded in value the legal rate of interest. The defendant in 
 debt pleaded the statute, and would avoid the contract ; and the opinion of the justice 
 was that the statute doth not make the contract void, which was duly made, but doth 
 only avoid all contracts for usury ; and this last contract is void, being against the 
 statute, but the first was good being made bond fide." See also Spurrier v. Mayoss, 
 1 Ves. J. 531. (b) || That a mere mistake shall not make a transaction usurious, see 
 1 Freem. 253, 264; 3 Wils. 390; 1 Camp. R. 149. || 
 
 If in truth it appear on the whole of the transaction that a loan was 
 intended under colour of an annuity, and the mode of annuity was forced 
 by the lender on the borrower, the court will consider it as usurious, 
 notwithstanding a colourable contingency, as that the lender at the end 
 of a given time engage to supply the borrower with money to redeem. 
 
 Richards v. Brown, Cowp. 770; {3 Bos. & Pul. 159.} 
 
 || An annuity for four lives, with a covenant by the grantor within 
 thirty days after the expiration of the third life, to insure the fourth life 
 to the amount of the sum paid for the annuity, is not an usurious con- 
 tract, for the sum is placed in hazard. 
 
 In re Naish, 7 Bing. 150. || pThe purchase of an annuity or other devise, to cover 
 a usurious transaction, is unavailing ; if the contract is tainted with usury, it has no 
 force. Lloyd v. Scott, 4 Peters, 205. £/ 
 
 Dr. Battie, at the request of Moore, sold out 1000?. South Sea an- 
 nuities, at a loss upon the whole of 761., and took a mortgage for 1000?. 
 from Moore at 5?. per cent., reducible to 4?. per cent, if the money were 
 repaid in a given time. Dr. Battie afterwards sold out at Mr. Moore's 
 request, 1400?. S. S. annuities at a loss upon the whole of 267?. 15s., 
 and took another mortgage from Moore for 1400?. with interest at 51. 
 per cent., with a power to Moore to reinstate the 1400?. at any time 
 within two years. Upon a bill for foreclosure, the Master reported the 
 two principal sums of 1000?. and 1400?. with interest and costs due there- 
 upon ; which having been paid by the plaintiff into court, he brought his 
 bill {inter alia) to be paid the several sums of 76?. and 267?. lbs., with 
 interest, insisting that the defendant ought to have been charged with 
 them in the account. The defendant pleaded the proceedings under the 
 decree in bar: his plea on being argued was ordered to stand for an an- 
 swer, and two questions were made : 1 . Whether it were usury ? 2. Whe- 
 ther the court would relieve? As to the first, Lord Keeper Henley was 
 clearly of opinion, that it was a shift within the statute ; the plaintiff having 
 received but 924?. instead of 1000?., and 1132?. 5s. instead of 1400?., 
 and yet having paid as much interest as was equal to 51. per cent, upon 
 the sums of 1000?. and 1400?. His lordship therefore decreed payment. 
 
 Moore v. Battie, Ambl. 371. 
 
 But a mere loan of stock is not usurious, nor the payment of the divi- 
 dends in the mean time, though they exceed the legal rate of interest. 
 Thus, where A, to accommodate B, sold out stock, and lent B the money 
 produced by the sale, on an agreement that B should replace the stock 
 on a certain day, or repay the money lent on a subsequent day, with 
 such interest in the mean time as the stock itself would have produced ; 
 it was adjudged, that this was not usurious, though the interest exceeded 
 5?. per cent. The loan was not originally usurious, because, for a limited 
 time, the party borrowing had it in his power to repay the money or re- 
 place the stock itself, if lie had chosen. 
 
 Tate v. Wellings, 3 Term It. 531.]
 
 USURY. 275 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 sA contract by which borrower agreed to pay to lender interest on 
 Bank stock, received by him as cash at a certain price, when in fact the 
 stock was worth less in the market, is usurious. 
 
 Astor v. Price, 7 Mart. N. S. 409.0 
 
 || And so, where the defendant being indebted to the plaintiff in 486?. 
 4s. Gd., for which the plaintiff sued him, and the plaintiff was desirous of 
 investing the amount in stock on the 19th November, 1803 ; and at that 
 day the sum would purchase 908?. 16s. Id. stock ; in consideration of for- 
 bearance from his action, defendant gave plaintiff a bond for transferring 
 to him the above sum of stock on the 19th of November, 1804, with such 
 interest as such stock would have produced in the mean time ; it was held, 
 that this was not usury, since, if the stock fell, the plaintiff would be the 
 loser. 
 
 Maddoek v. Rumball, 8 East, R. 304 ; and see Saunders v. Kentish, 8 Term R. 
 102 ; Smedley v. Roberts, 2 Camp. GOG ; Clarke v. Giraud, 1 Madd. 511. 
 
 But if the lender of the stock reserves to himself the right of electing 
 whether he will have the stock replaced, or the money produced by sale 
 of it repaid, with interest at five per cent., the bargain is usurious ; since 
 the principal and interest are in all events secured, and the lender takes 
 the chance of a rise in the value of stock, without any risk in case of a 
 fall ; and whether the arrangement is effected by one instrument or by 
 two, — one for the replacing of the stock, the other for the repayment of 
 the money and interest, — makes no difference. 
 
 Barnard v. Young, 17 Yes. 44 ; White v. Wright, 3 Barn. & C. 273 ; and see Moore 
 v. Battie, 1 Eden R. 273 ; Boldero v. Jackson, 11 East, 612 ; Chippendale v. Thurs- 
 ton, Moo. & M. Ca. 411 ; Parker v. Eamsbottom, 3 Barn. & C. 267. || 
 
 {A bond was given in 1782, in the penalty of 50,000?. conditioned for 
 the payment of 1000?., " or such farther sum as shall be equal to the said 
 1000?. in 1774, that is to say, to purchase as much land and as many ne- 
 groes as it might have done at that time," and was held not usurious. 
 2 Hen. & Mun. 550, Faulcon v. Harriss. 
 
 And an agreement for the purchase of stock, to be transferred at a 
 future day, at a price below the then value, is not usurious. 
 5 Esp. Rep. 1G4, Pike v. Ledwell.] 
 
 [Where the borrower of money gave a bond for the payment of the 
 principal and interest at 5?. per cent., and covenanted at the same time 
 also to pay the lender a certain portion of the profits of a trade carried 
 on by him in partnership with another person, it was adjudged to be 
 usury ; for the principal was no farther hazarded than in the case of every 
 other loan, namely, by the risk of the borrower's insolvency : as between 
 the lender and the partners in the business, he was not liable to contri- 
 bute to the losses in the trade. Here is a provision to receive the pro- 
 fits, but none to engage for the losses of the trade. 
 
 Morse v. Wilson, 4 Term R. 353.] 
 
 || Gilpin covenanted with Enderby that they should become partners in 
 the business of army clothiers for ten years, and that Gilpin should ad- 
 vance 20,000?. as part of the capital for carrying on business, and that 
 Enderby should find another like sum, and that E should have 2000?. per 
 ann. out of the profits, or out of the capital in case of a deficiency, as his 
 share of profits, the rest of the profits to be taken by Gilpin : and G cove- 
 nanted that, on the determination of the partnership, the said 20,000?.
 
 276 USURY. 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 should be repaid to E, and that G should guarantee the debts and losses 
 of the firm ; and that in case the partnership effects should be reduced 
 below 20,000?. it should be lawful to determine it, on notice, and that the 
 20,000/. should be repaid to Enderby on the dissolution. In an action 
 brought by Enderby to recover the 20,000?., Gilpin pleaded, that the 
 deed was executed by way of shift, in pursuance of an usurious agreement. 
 The issue on this plea having been found for the plaintiff below, negativ- 
 ing the corrupt agreement, and judgment being given for the plain- 
 tiff below by the C. B., on error brought, the K. B. held, that after 
 the verdict found, the deed must be taken to disclose the real intention 
 of the parties, and that it was not therefore void on the ground of usury : 
 and judgment was affirmed. 
 
 Gilpin v. Enderby, 5 Barn. & A. 954; 5 Moo. 571 ; and see Fereday v. Hordern, 
 Jacob. 144; Anderson v. Maltby, 2 Ves. jun. 248. 
 
 If a factor, advancing money for the purchase of goods, receives a 
 higher commission on the purchases than he would have been content to 
 take, had he not advanced the money, the transaction is usurious. 
 
 Harris v. Boston, 2 Campb. 348. || 
 
 [On a bill praying that the defendants might be decreed to complete 
 their purchase of certain houses, the defendants insisted that the contract 
 for the purchase was usurious. The agreement was, to purchase the houses 
 for 430?., 200?. to be paid in money, and the remainder on a future day, 
 with 51. per cent, interest, or in default of payment, to pay a rent of 42?. 
 per ann. till payment, subject to a deduction of 5?. percent, for so much 
 of the remaining sum of 230?. as should be then paid. Possession was 
 delivered to the defendants. Adjudged not to be usury. 
 
 Spurrier v. Mayoss, 4 Bro. Ch. R. 28 ; 1 Ves. jun. 531, S. C. ||See 3 Barn. & Aid. 
 G44;|| pEvans v. Negley, 13 S. & R. 218.0 
 
 A person paid 197?. for a note of 200?. which had three months to run, 
 and at the expiration of that time took another note of 200?. upon ad- 
 vancing 3?. more for other three months. Upon an issue out of Chancery, 
 Lee, C. J., held it usury. However, in the case of Lloyd v. Williams, 
 Blackstone, J., said, " lie conceived that interest may be as lawfully re- 
 ceived beforehand for forbearing, as after the term is expired for having 
 forborne. And it shall not be reckoned as merely a loan for the balance ; 
 else every broker in London, who takes 51. per cent, for discounting bills, 
 would be guilty of usury. For if, upon discounting a 100?. note at 51. 
 per cent, he should be construed to lend 95?. only, then at the end of the 
 time he would receive 51. interest for the loan of 95?. principal, which is 
 above the legal rate." It has been since determined, that in discounting 
 notes the common usage of charging something for trouble, &c, beyond 
 the rate of legal interest, is not usurious, provided no corrupt bargain be 
 made for taking usurious interest. So, in an action for usury, tried be- 
 fore Buller, J., against a banker at Sudbury, it appeared, that it was 
 their constant usage to discount bills in London for their correspondents 
 at Sudbury, for which the bankers charged, beyond the legal interest for 
 the time the bills had to run, 5s. per cent, on the gross sum, without any 
 reference to the time the bills had to run. The jury found for the de- 
 fendant under the judge's direction. 
 
 Massa v. Dauling, 2 Stra. 1243 ; 2 Black. R. 793. ||See Wade q. t. v. Wilson, 
 1 East, R. 195 ; Bodenham v. Purchas, 2 Barn. & A. 47 ;|| Auriol v. Thomas, 2 Term 
 R. 32 ; Winch v. Fenn, Sitt. after Hil. 178G ;] 112 Term R. 52, n. ;|| {3 Bos. & Pul. 
 158.}
 
 USURY. 277 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 || All commission where a loan of money exists, must be considered as 
 an excess beyond legal interest, unless it is ascribable to trouble and ex- 
 pense bond fide incurred in the course of business, transacted by the 
 persons to whom such commission is paid; but whether any thing, and 
 now much, is justly ascribable to this latter account, viz., that of trouble 
 and expense, is always a question for the jury, who must, on a view of all 
 the facts, exercise a sound judgment thereupon; and where there is a 
 contrariety of evidence on the point, the court will not set aside the 
 verdict, and grant a new trial, although the verdict may be against the 
 judge's direction and opinion, unless it appears clearly that the jury 
 have drawn an erroneous conclusion. 
 
 Carstairs v. Stein, 4 Maule & S. 201 ; and see Harnett v. Yea, 1 Bos. & Pul. 153 ; 
 Palmer v. Baker, 1 Maule & S. 56 ; Stoveld v. Eade, 4 Bing. 81. 
 
 A charge by a bill-broker in the country, of 10s. per cent, for dis- 
 counting a bill payable in London, has been held not usurious. 
 
 Ex parte Benson, 1 Madd. 112 ; and see 15 Ves. 120 ; 17 Ves. 332 ; j3Musgrove v. 
 Gibbs, 1 Ball. 210 ; Wyeoff v. Loughead, 2 Ball. 92 ; Raplee v. Morgan, 2 Scamm. 
 5G3 ; Lloyd v. Reach, 2 Conn. 175 ; 1J. J. Marsh. 497.£/ 
 
 And a mere agreement that bankers shall accept and pay bills drawn 
 on them, out of funds to be provided beforehand, for a commission of 5s. 
 per cent., cannot be usurious, since no advance of money is contemplated, 
 which is essential to a usurious transaction. If an advance of money 
 were contemplated in such an agreement, then it would be a question 
 for the jury, whether the commission was a cover for usury, or a com- 
 pensation for trouble. 
 
 Masterman v. Cowrie, 3 Camp. Ca. 487 ; and see Bagnall v. Wigley, 11 East, 43. 
 
 And so also the acceptor of a bill taking a premium of sixpence in the 
 pound from the holder for the payment of the bill before it is due, is 
 not usury, since there is no loan or forbearance : it is a very improper 
 practice, but not usury. 
 
 Barclay q. t. v. Walmsley, 4 East, 55. || 
 
 [If a promissory note be given for payment of a sum lent w T ith usurious 
 interest, and the note when due be taken up, and another note be sub- 
 stituted for it, the offence of usury is not thereby committed ; nor is the 
 penalty incurred till the latter note be paid. 
 
 Maddock v. Hammett, 7 Term R. 184. 
 
 /3 Where a note is renewed, from time to time, and interest added in ; 
 on a suit on the last note, held, that the jury may go back and overhaul 
 the whole transaction, and give the lender only six per cent, for the 
 money. 
 
 Baggs v. Louderback, 12 Ohio, 153. See Fields v. Gorham, 4 Bay, 251 ; Botsford 
 v. Sauford, 5 Conn. 276 ; Wales v. Webb, 5 Conn. 154. 
 
 A promissory note was made, and was valid in its inception ; it was 
 transferred by the payee on a usurious consideration. On this note an 
 action was brought by the endorsee, and the defendant pleaded the in- 
 termediate usury to impeach the plaintiff's title; held, that this was a 
 good defence. 
 
 Lloyd v. Reach, 2 Conn. 275 
 
 A usurious security is given up, and a new security is taken for the 
 principal sum due and legal interest ; held, that the latter is good. 
 Rilbourn v. Bradlay, 3 Bay, 356. 
 
 2 A
 
 278 USURY. 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 A gave a usurious security, with B as surety for him ; he then paid the 
 amount of such security to B, who, in consequence of such payment, gave 
 his own note to the creditor for the same amount : held, that the latter 
 note was given on a new consideration, and unaffected by usury. 
 
 Scott v. Lewis, 2 Conn. 132. See Church v. Tomlinson, 2 Conn. 134, n.£f 
 
 A, residing at Portsmouth, drew a bill for 600?. on S, in London. The 
 bill was payable to the defendants, who were bankers in Portsmouth, or 
 order, thirty days after date, and immediately after it was drawn, it was 
 taken to the defendants, who gave their note for 600?. payable three days 
 after sight at a house in London. For this the defendants received a dis- 
 count of 51. per cent., calculating on the thirty days the bill had to run, but 
 making no deduction on account of three days the note had to run after 
 sight, or of the three days' grace which the bankers took thereon. Lord 
 Kenyon said, he was clearly of opinion, that this was a usurious contract, 
 whether the person discounting the bill chose to receive a note or money. 
 If A chose to have a note payable in town, the defendants should not 
 have taken interest for the time that note had to run, but should have 
 computed their interest from the time it was payable. 
 
 Maddock v. Griffiths, Peake's N. P. Cas. 200. 
 
 {A, being a banker in the country, discounts bills at four months for 
 B, and takes the whole interest for the time they have to run. B, on being 
 asked how he will have the money, directs part to be carried to his account, 
 part to be paid in cash, and part by bills on London, some at three, some 
 at seven, and some at thirty days' sight. After a verdict, finding the trans- 
 action not usurious, the court refused to grant a new trial, since the sur- 
 plus of interest taken by A from his having made no rebate of interest 
 on the bills on London might be referable to the expenses of remittance, 
 and the jury were to judge whether giving the bills on London was a 
 mere cover for a usurious contract. 
 
 1 Bos. & Pul. 144, Ilammett v. Yea. Vide Peake, N. P. 200, Matthews v. Griffiths ; 
 7 Term, 185, Maddock v. Hammett. So including in a note, given as security for an 
 antecedent debt, a fair and reasonable charge for the expenses of the creditor in secur- 
 ing the debt, is not usury ; and whether such charge was fair and reasonable is a 
 question of fact to be left to the jury. 2 Day, 483, Kent v. Phelps. 
 
 The grantor of an annuity, having agreed with the grantee to redeem, 
 draws a bill of exchange for 5000?. at three years, Avhich the grantee 
 discounts in the following manner : he takes 4083?. 6s. &d. as the amount 
 of the purchase-money and arrears, advances 166?. 13s. 4c?. to the grantor 
 in cash, and takes 750?. as interest for three years upon 5000?. The 
 transaction is usurious. 
 
 3 Bos. & Pul. 154, Marsh v. Martindale.} 
 
 Where, upon a negotiation for a loan of money, the lender said, he 
 could not advance money, but would furnish goods, which the borrower 
 took and sold by the intervention of a broker recommended by the lender, 
 and upon the issue of the negotiation the borrower, instead of 200?. 
 which he meant to borrow, received only 117?. 2s. 2d. ; the court held 
 the transaction to be a loan of money for more than 5?. per cent, under 
 colour of a sale of goods, and therefore usurious. 
 
 Lowe v. Waller, Dougl. 73G ; j3Philip v. Kirkpatrick, Add. 126 ; Iluling v. Drcxell, 
 7 Watts, 12G, 129.J/ 
 
 B, a student of a college in Oxford, applied to A, a Jew, to raise him a
 
 USURY. 079 
 
 (C) "What Agreements or Contracts deemed usurious, &c. 
 
 sum of money : A recommended one P, and P introduced him to V, who 
 let him have the goods to the amount. A attended, and recommended 
 the choice of the silks, for which B gave his note for 2224/. at twelve 
 months' date. The silks were afterwards bought by one 11 for about half 
 the price. The note was afterwards endorsed by V to D in the settle- 
 ment of an account, who was completely ignorant of the transaction with 
 B. Upon B's application to the court to compel the delivery up of the 
 note, on payment of what the silks actually produced, Lord Thurlow said, 
 "I am to inquire whether, under the mask of trading, this is not a method 
 of lending money at an extraordinary rate of interest ; and there is not 
 a doubt that in this case the transaction was merely for the purpose of 
 raising money, to supply the necessities of this young man. Do they 
 deny knowing the goods were to be sold ? I take it therefore as an ad- 
 vancement of goods instead of money to supply his necessities." 
 
 Barker v. Yansommer, 1 Bro. Ch. R. 149. In arguing this case, several other cases 
 of a like tendency were cited ; as that of Cecil v. Sutton and Roundtree in the Exche- 
 quer, where the defendants supplied the plaintiff with goods, in order to enable him 
 to take up a note, and the court granted an injunction till the amount for which the 
 goods sold should appear. In Lord Polwarth v. Cooke, his lordship had applied for 
 the loan of 150/., and Cooke gave him 50/., a gold watch, and a Cremona fiddle ; and the 
 court ordered the securities to be given up on payment of what was obtained by sale. 
 
 A applied to B for the loan of 1500/. on mortgage : B said his money 
 wa3 in the funds, and that he had purchased at 751. ; if therefore A would 
 have stock at that value, he would transfer as much as would amount to 
 that sum ; which he did, and A gave a mortgage accordingly for 1500/. 
 A lost two and a half per cent, on the sale of the stock. The executor 
 of B could not maintain an ejectment on the mortgage-deed ; for in fact 
 the deed was void by the statute ; and, moreover, no action could be 
 maintained on a contract usurious at common law. 
 
 Davison v. Barnard Pitt, Espin. N. P. 1. 
 
 So, if the discounter of a bill of exchange make the holder take goods 
 at a higher price than they are worth upon a fair estimate, it is usury. 
 Pratt v. Willey, Ibid. 40. 
 
 But in the Duke of Ancaster v. Pickett, the court refused to relieve 
 the Duke, who had purchased goods of Pickett, and had sold them again 
 for less money; for the jewels were sold in the common course of trade, 
 and not with any view of accommodating the Duke with the means of 
 raising or borrowing money upon them. 
 
 1 Bro. Ch. R. 151.] 
 
 || If the goods are forced upon the party for whom a bill is discounted, 
 the onus of showing that they were given at the real value, so that there 
 should be no loss on a resale, lies on the plaintiff suing on the bill ; but 
 where the party received the goods readily, it was held, that it might be 
 presumed they were fairly charged. 
 
 Davis v. Hardacre, 2 Camp. 375 ; Coombe v. Miles, Ibid. 553. || 
 
 [An action was brought here upon a bond entered into at Calcutta, 
 where both parties then resided, and the plaintiff still resided ; but the 
 defendant was in England ; and nine per cent, was the rate of interest 
 made payable by the condition of the bond. Lord Mansfield said, "The 
 plaintiff is in justice entitled to recover the sum really lent to the defend- 
 ant, together with Indian interest till the signing of the judgment ; but
 
 280 USURY. 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 with, only legal interest of this country (which is no more than five per 
 cent.) from the time of the liquidation of the debt by the judgment." 
 
 Bodily v. Bellamy, 2 Burr. 1094 ; }4 Johns. Rep. 183, Foden v. Sharp.} || See Har- 
 vey v. Archbold, 3 Barn. & C. G29 ; Thompson v. Powles, 2 Sim. 194. || 
 
 A special memorandum was endorsed on a bond given for the payment 
 of 100/. with interest at 51. per cent, in payments of 20/. yearly by quar- 
 terly payments of 5?. each. The endorsement was to this eiFect : that at - 
 the end of each year the year's interest due was to be added to the principal 
 sum ; and then the 20/. received during the year to be deducted, and the 
 balance to continue as principal. As the intention of the parties did not 
 appear to be usurious ; as not the interest on the whole 100/., but the 
 interest due, was to be added to the principal at the end of the year, and 
 the interest due could only be taken to mean what was legally due ; as 
 there was no loan, but the consideration of the bond was the giving up 
 of an annuity ; the court of K. B. dissent. Kenyon, C. J., held, that the 
 contract was not usurious, and that opinion was afterwards affirmed in 
 the Exchequer-chamber. 
 
 Le Grange v. Hamilton, 4 Term R. 613 ; 2 H. Black. 142, S. C. in error. 
 
 || Where bonds for the amount of purchase-money of property were 
 given, payable by instalments, which instalments were composed of prin- 
 cipal and interest, it was contended, as the bonds themselves necessarily 
 carried interest, this was interest upon interest, and usury ; but the Lord 
 Chancellor held, that as the obligee on each instalment becoming due 
 might have had judgment for the principal and interest due on the bonds, 
 there was no usury. 
 
 Tarleton v. Backhouse, Coop. C. C. 231. 
 
 And though an antecedent contract for a loan for twelve months, to 
 settle the balance at the end of six months, and the interest to carry 
 interest for the subsequent six months, is illegal, yet an agreement at 
 the end of the six months to settle accounts, and the balance to carry 
 interest for the next six months, is good. 
 
 Ex parte Bevan, 9 Ves. 223 ; Eaton v. Bell, 5 Barn. & A. 40 ; and see 3 Camp. 467. || 
 {Taking a premium exceeding the legal rate of interest for anticipating 
 payment of a debt is not usury ; there being no loan or forbearance. 
 
 4 East, 55, Barclay v. Walmsley; 5 Esp. Rep. 11, S. C. 
 
 A fair purchase of a bond or note at any discount is not usury. 
 
 1 Pall. 217, Musgrove v. Gibbs ; 2 Ball. 92, Wycoff v. Longhead ; 2 Hen. & Mun. 
 14, Kenncr v. Hord ; post, p. 299, 300. 
 
 If A lend money to B, who puts it out at usurious interest, and agrees 
 to pay to A the same rate of interest which he is receiving upon A's mo- 
 ney, this is usury between A and B, and an endorser of B's note to A 
 may avail himself of the plea of usury. 
 
 3 Cran. 180, Levy v. Gadsby. 
 
 It is not usurious, upon a settlement of accounts, to take a bond or 
 
 note for the balance due, including interest, and to receive interest on 
 
 such bond or note. 
 
 1 Hen. & Mun. 4, Brown v. Brent. Vide as to compound interest, 2 Ves. J. 15, 
 Morgan v. Mather ; 9 Ves. J. 223, Ex parte Bevan ; Ibid. 271, Chambers v. Goldwin ; 
 11 Ves. J. 92, Raphael v. Boohm ; 12 Ves. J. 127, Dornford v. Dornford ; 1 Binn. 152, 
 159, 1G5, Sparks v. Garrigues ; 2 Mass. T. Rep. 284, Tucker v. Randall; Ibid. 568, 
 Greenleaf v. Kellogg; 3 Mass. T. Rep. 221, Cooley v. Rose.]
 
 USURY. 281 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 pWhen a certain gain is reserved to the lender, besides the interest, 
 the contract is usurious. 
 Philip v. Kirkpatrick, Add. 12G. 
 
 But a reasonable commission beyond legal interest, for extra inci- 
 dental charges, as for agency in remitting bills for acceptance and pay- 
 ment, it seems, is not usurious. 
 
 Iluling v. Drexell, 7 Watts, 126, 129. 
 
 A stipulation contained in a mortgage, that in default of payment of 
 interest, &c, the mortgagee may sue out a scire facias, and recover in 
 addition all costs, charges, and expenses of every kind which the plain- 
 tiff shall or may sustain on account of such default; held, that this does 
 not render the contract usurious. 
 Iluling v. Drexell, 7 Watts, 126. 
 
 In Pennsylvania, a transaction may be usurious when the price of land 
 or other property is retained by a purchaser on condition of paying interest 
 for its use, although the annual compensation may be denominated rent. 
 
 Evans v. Negley, 13 S. & R. 218. 
 
 The allowance of commission to the holder of certain notes, by the 
 drawer, in case the notes shall not be paid when due, it seems, is usurious. 
 
 Large v. Passmore, 5 S. & R. 135. 
 
 A commission may be received on an advance or loan of credit by one 
 
 person to another without liability under the usury law. 
 
 Gray v. Brackenridge, 2 Penns. 75 ; Hutchinson v. Hosmer, 2 Conn. 341 ; De Forest 
 v. Strong, 8 Conn. 513 ; but see Steele v. Whipple, 21 Wend. 103. 
 
 A fair purchase of a bond or note may be made even at a discount of 
 twenty or thirty per centum, without committing the offence of usury. 
 
 Musgrove v. Gibbs, 1 Dall. 216, 217 ; Wycoff v. Loughead, 2 Pall. 92 ; Raplee v. 
 Morgan, 2 Scam. 563 ; Lloyd v. Reach, 2 Conn. 175 ; 1 J. J. Marsh. 497 ; 2 Munf. 36. 
 
 A bond was conditioned to pay a sum of money in seven years, and 
 "the lawful interest thereon yearly and every year from the date ;" there 
 was an agreement endorsed on it by the obligor, that "if any part of the 
 said interest shall remain unpaid for the space of three months, to allow 
 the said obligee lawful interest for the same, from the end of the said 
 three months until paid;" held, that the agreement was not usurious, 
 and might be enforced. 
 
 Pawling v. Pawling, 4 Yeates, 220. 
 
 To constitute usury, there must be a borrowing and lending of money, 
 by the plaintiff to the defendant, or the forbearance of a pre-existing debt. 
 
 Hancock v. Hodgson, 3 Scam. 333. 
 
 Where one borrowed money and agreed to pay interest for it annually, 
 and did not do it, and some years afterwards the parties ascertained the 
 amount then due with compound interest, and the borrower gave new 
 notes for the amount thus ascertained ; held, that this was not usury 
 under the statute of Connecticut. 
 
 Fobes v. Cantfield, 3 Ohio, 17. 
 
 An agreement to pay five per cent, collection fees in addition to the 
 
 legal rate of interest for money loaned, is, in Ohio, considered against 
 
 public policy and void. 
 
 State of Ohio v. Taylor, 10 Ohio, 378 ; Shelton v. Gill, 11 Ohio, 417. See as to tho 
 rule in Pennsylvania, Iluling v. Drexell, 7 Watts, 126. 
 
 Vol. X.— 30 2 a 2
 
 282 USURY. 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 The Bank of Muskingum agreed with certain contractors on the public 
 works, that the bank would loan money to the state, to be applied to the 
 public works they are employed on, and charge the contractors five per 
 centum commissions, is an illegal shift and device to obtain more than six 
 per cent., and such contract cannot be enforced by the bank ; but if the 
 contractors actually paid the five per cent, commissions, they cannot re- 
 cover the money back, being in pari delicto. 
 
 Spalding v. Bank of Muskingum, 12 Ohio, 544. 
 
 A parol promise to pay more than lawful interest, made at the giving 
 of a note, and to induce the lender of the money to take it, and which 
 was part and parcel of the contract, renders the note usurious and void. 
 Atwood v. Whittlesey, 2 Root, 37. 
 
 Where a note is given for an antecedent debt, and it includes in the 
 amount a fair and reasonable charge for the expenses of the creditor in 
 securing the debt, it is not usury. 
 
 Camp v. Bates, 11 Conn. 487. 
 
 When the services of a slave, given for the use of money, exceed in 
 value the highest rate of conventional interest, the contract is usurious. 
 
 Galloway v. Began, 4 Mart. N. S. 167 ; Richardson's Adm'r v. Brown, 3 Bibb, 207. 
 
 An agreement entered into in New York, and to be executed there, by 
 which A and B exchange their notes, bearing interest at six per centum, 
 and in consideration thereof, B engages to insure a certain number of 
 lives with A, at the usual rates, and also to send his annual crop of 
 sugar to A, to be sold on the usual commissions, is usurious and void by 
 the laws of New York. 
 
 Clague et al. v. Their Creditors, 2 Lo. R. 115. 
 
 Where the lender and borrower agreed that the former should receive 
 ten per cent, interest, per annum, on his advances to, and one-third of 
 the profits in the mercantile firm of the latter, the contract was declared 
 to be usurious. 
 
 Flower v. Millaudon, 6 Lo. Rep. 709. 
 
 To be tainted with usury, an obligation must, in its inception, be 
 based upon a loan of money above the legal rate of interest. 
 
 Norwood v. Waddell, 11 Lo. R. 493; Tardeveau v. Smith's Ex'r, Hardin, 175 ; 
 M'Ginnis v. Hart, 4 Bibb, 327 ; Knox v. Black, 1 Marsh. 298 ; Price v. Campbell, 
 2 Call. 110. 
 
 A loan of money and an obligation taken by the lender from the bor- 
 rower, to deliver slaves of a certain description in a certain time, worth 
 more than the money and legal interest, held to be usurious. 
 
 Lindley v. Sharp, 7 Monr. 248. 
 
 A was indebted to B for a certain sum ; on the day of payment, A 
 agreed to give B more than six per cent, for indulgence; a bond was 
 then given for the principal sum, and the amount beyond the legal in- 
 terest was settled partly in money and partly in a note. On an action 
 on this bond, it was held that the transaction was usurious. 
 
 Glisson v. Newton's Ex'rs, 1 Hayw. 33G. See Conf. Rep. 28. 
 
 A, a resident of North Carolina, being in New York, contracted a debt 
 there with B, who lived at the latter place ; afterwards A paid to the agent 
 of B, in North Carolina, a part of the debt, and credit was given him four 
 months for the balance, with interest at the New York rate, seven per cent,
 
 USURY. 283 
 
 (C) "What Agreements or Contracts deemed usurious, &c. 
 
 and a bond given for the debt and interest. Held, that this bond was 
 not contrary to the usury laws of North Carolina. 
 
 31 'Queen v. Burns, 1 Hawks, 47G. 
 
 Whenever by the terms of the contract, the debtor can avoid the pay- 
 ment of a larger sum, by the payment of a smaller at an earlier day, the 
 contract is not usurious but conditional, and the larger sum is considered 
 as a penalty. 
 
 Moore v. Hylton, 1 Dev. Eq. 429 ; Winslow v. Dawson, 1 Wash. 118. 
 
 When a security is usurious in its creation, it is void in the hands of 
 an innocent holder. But if valid in its inception, a subsequent usurious 
 agreement does not invalidate it. 
 
 Collier v. Nevill, 3 Dev. 30 ; Wilkie v. Roosevelt, 3 Johns. Cas. 206 ; Munn v. The 
 Commission Company, 15 Johns. 44 ; Bennet v. Smith, 15 Johns. 355. 
 
 A note is executed for $607, payable in certain bank-notes ; it is after- 
 wards agreed to extend the time of payment, and a note is executed for 
 $607 payable in specie ; the bank-notes were then worth only $456. 
 Held, that this is usury. 
 
 Lawrence v. Morrison, 1 Yerg. 444. 
 
 Where there was a tacit understanding between a borrower and lender, 
 founded on a known practice of the latter, to lend money at legal inte- 
 rest, if the borrower purchase of him a horse, at an unreasonable price ; 
 this is a shift to evade the statute against usury. 
 
 Douglass v. M'Chesney, 2 Rand. 109. 
 
 When an article of fluctuating value is sold, and is to be repaid in 
 kind, with more than the legal rate of interest for forbearance on the 
 price at the time of sale, the transaction is usurious. 
 
 Hamblin v. Fitch, Kirb. R. 260 ; 5 Cowen, 149, n. a. 
 
 A mortgage taken for a sum of money lent, including a former usuri- 
 ous loan, is void. 
 
 Jackson v. Packard, 6 Wend. 416. 
 
 Where interest is calculated and received upon a note, upon the prin- 
 ciple of three hundred and sixty days in a year, it is usurious. 
 
 Utica Insurance Company v. Tilliman, 1 Wend. 555. See New York Firemen In- 
 surance Company v. Ely, 2 Cowen, 678. 
 
 A contract by which one lets a certain number of sheep, and the other 
 agrees on a year's notice to return the same number, the same quality 
 and the same age as those received, and in the mean time to pay annu- 
 ally fifty cents per head for the sheep, although the value of each sheep 
 is less than a principal sum, the interest of which at seven per centum 
 per annum would amount to fifty cents, is not usurious. 
 Hall v. Haggart, 17 Wend. 280. 
 
 The Farmers and Mechanics' Bank of Georgetown discounted the notes 
 
 of A, payable in thirty days, and instead of money, paid A the proceeds 
 
 of the notes in post-notes, that is, bank-notes payable at a future day, 
 
 without interest, such post-notes being then at one and half of one per 
 
 cent, discount in the market. Such a contract is usurious. 
 
 Gaither v. The Farmers and Mechanics' Bank of Georgetown, 1 Peters, 43. See 
 Bank of the United States v. Owens, 2 Pet. 257 ; Bank of the United States v. Wag- 
 gener, 9 Peters, 378 • Northampton Bank v. Allen, 10 Mass. 284 ; State Bank v. 
 Ayers, 2 Halst. 130.
 
 284 USURY. 
 
 (C) What Agreements or Contracts deemed usurious, &c. 
 
 Taking interest in advance, upon the discount of a note in the usual 
 course of business by a banker, is not usury. 
 
 Thornton v. The Bank of Washington, 3 Peters, 40. See Renner v. The Bauk of 
 Columbia, 9 Wheat. 581 ; Fletcher v. The Bank of the United States, 8 Wheat. 338. 
 
 The requisites to form a usurious transaction, are, 1, a loan of money, 
 either express or implied ; 2, an understanding that the money lent shall 
 be returned; 3, that a greater interest than thatallowed by the statute 
 shall be paid. There must also be an intent to violate the law. 
 
 Lloyd v. Scott, 4 Peters, 205. 
 
 When a security for the payment of money is in its inception uncon- 
 
 taminated with usury, it is not rendered usurious by an ex post, facto 
 
 agreement for a greater sum than the statute allows for a forbearance. 
 
 °Bush v. Livingston, 2 Caines' C. C. in Err. 06 ; Pollard v. Baylors, 6 Munf. 433 ; 
 
 Thompson v. Woodbridge, 8 Mass. 256. 
 
 Where a note is given for an antecedent debt, it is not usurious to in- 
 clude the creditor's reasonable expenses incurred in obtaining the note. 
 
 Kent v. Philps, 2 Day's Cas. 483. 
 
 Where a judgment creditor agreed with his debtor that the sale should 
 be postponed eighteen days, in consideration that the latter would pay 
 him a certain sum more than the legal interest ; it was holden that this 
 agreement was usurious under the statute. 
 
 Carter v. Brand, Cam. & N. 28. 
 
 A premium for delay of payment, although secured by a separate in- 
 strument, makes the contract usurious. 
 
 Glisson v. Newton, 1 Ilayw. 336. 
 
 A sale of stock made to a man in necessitous circumstances, at a price 
 much above the market price, is to be considered as a covered loan at 
 usurious interest. 
 
 Anon., 2 Desaus. 333. 
 
 An agreement to take more than legal interest for a loan of money, is 
 usurious, though no unlawful interest be taken. 
 
 Clark v. Bageley, 3 Halst, 233. 
 
 A security for the loan of money, upon which usurious interest has 
 been received, is not void by the statute of usury, unless usurious interest 
 were reserved by the original contract. 
 
 Gardner v. Flagg, 8 Mass. 101 ; Thompson v. Woodbridge, 8 Mass. 250. 
 
 If a banking company at one place, take notes payable in the bank- 
 notes of a bank located at another place, and, upon the renewal of such 
 notes, take a premium equal to the difference between that and other 
 money, it is not usurious. 
 
 Portland Bank v. Storer, 7 Mass. 433. 
 
 Where money was loaned and secured by a transfer of stock, and it 
 was a condition of the loan that the lender should have the option, either 
 to retain the stock and dividends, at the market value of the stock at the 
 time the loan was made, or to receive back his money with interest, at 
 the time appointed for its payment ; held, that this rendered the contract 
 
 usurious. 
 
 Cleaveland v. Lodcr, 7 Paige, 557. 
 
 When judgment has been rendered in an action brought on a usurious 
 contract, it cannot be avoided for that cause ; nor can a new contract, en-
 
 USURY. 285 
 
 (D) What Hazard will bring an Agreement out of the Statute. 
 
 tered into between the parties to secure the payment of such judgment, 
 be avoided as usurious. 
 
 Bearce v. Barstow, 9 Mass. 45; Thatcher v. Gammon, 12 Mass. 2G8. 
 
 If a debtor, in consideration that the mortgagee will make a mortgage 
 payable at the residence of the mortgagor, instead of the place of residence 
 of the mortgagee, agrees to allow him the difference of exchange between 
 the two places, the mortgage is not, for this reason, usurious, unless this 
 contrivance has been adopted to evade the statute. 
 
 "Williams v. Houce, 7 Paige, 581.0 
 
 (D) What kind of Hazard or Casualty will bring an Agreement, &c, out of the 
 
 Statute of Usury. 
 
 It has been held, that if principal and interest be in hazard upon a 
 contingency, it is no usury, though the interest do exceed the allowed rates 
 per cent. And when there is a hazard that the plaintiff may have less 
 than his principal, it is no usury. 
 
 Show. 8, Mastin v. Abdee. 
 
 Thus, if S lend 100?. to have 1207. at the year's end upon casualty, if 
 
 the casualty goes to the interest only, and not to the principal, it is usury ; 
 
 for the party is sure to have the principal again, come what will : but if 
 
 the interest and principal are both in hazard, it is not then usury. Per 
 
 Dodderidge, J. 
 
 Cro. Ja. 507, pi. 20, Roberts v. Trenayne ; || S. C. noin. Roberts v. Tremoile, 2 Roll. 
 R. 47 ; and see Wortley v. Pit, 1 Ves. 1G4;|| {Addis. 125, Phillip v. Kirkpatrick.} 
 
 (3 In Kentucky, A B loaned to C D $37 50 in specie, when the paper 
 of the Bank of the Commonwealth was at a depreciation of two for one, 
 for which C D executed his note for $90 payable in the paper of the Bank 
 of the Commonwealth, in one year after the date. Held, that this was 
 not usurious, because A B risked the prospective value of the paper. 
 
 Wilson v. Kilburn, 1 J. J. Marsh. 59G. See Talbot v. Warfield, 3 J. J. Marsh. 84.0 
 
 In debt upon an obligation of 507. the defendant pleaded the statute, 
 and shoived that it tvas agreed between the plaintiff and defendant, 14th 
 December, that the plaintiff 'should lend the defendant 307. to be repaid the 
 first of June following, and the iplamtiff should have 37. for the forbear- 
 ance, if the plaintiff's son should be then living : and if he died, then to 
 pay but 267. of the principal money. The court inclined that it was 
 within the statute of usury, whereupon the plaintiff, who had demurred, 
 became nonsuit. 
 
 Moor, 397, pi. 528, Reynolds v. Clayton. All the court held, upon the two statutes 
 of 37 II. 8, and 13 Eliz., that the bond was void, because it appears to be made by 
 corrupt means to have more than 10/. per cent., which the statute of 37 II. 8 intended 
 to punish. And by the proviso it appears that the intent was, if one teas indebted to 
 another, truly without loan and intention of usury, then in such case bonds and convey- 
 ances of land for securing the true debt, are out of the said statute ; but if there is a bor- 
 rowing of money, and a communication for interest, the device to be beyond the rate 
 of 10/. per cent, is fraudulent and within the said statute, otherwise the statute would 
 be vain ; for he might as well have made the condition, that if twenty persons, or any 
 of them, should be living at the day, &a., then he should have 33/. And of this opi- 
 nion were Popham, C. J., of B. R., and Periam, Ch. B. 2 And. 15, pi. 8, S. C; 5 
 Rep. 70, Clayton's case, S. C, resolved that it was a usurious contract. 
 
 So, where A agreed with J S to give him 107. for the forbearance of 
 207. for a year, if B his son were then alive ; it was held by three justices
 
 286 USURY. 
 
 (D) What Hazard will bring an Agreement out of the Statute. 
 (Glanvil absente) to be usury, by reason of the corrupt agreement, and it 
 is the intent makes it so or not so. 
 
 Cro Eliz. G42, pi. 43, C. B., Button v. Downham. || See Lamego v. Gould, Burr. 
 715.11 i i 
 
 Likewise, where the obligor was bound in a bond of 300?. conditioned 
 to pay 22?. 10s. premium at the end of the first three months after the date, 
 &c, and 6d. in the pound at the end of six months, as a further premium, 
 together with the principal itself, in case the obligor be then living ; but if 
 he dies within that time, then the principal to be lost; this was adjudged 
 a usurious contract, because there was a possibility that the obligor might 
 live so long ; and there is an express provision to have the principal again. 
 3 Salk. 390, pi. 3, Mason v. Abdy ; Comb. 125, S. C. 
 
 But, where the bargain is merely casual, and the whole depends on a 
 contingency, there the contract is not usurious. Thus — 
 
 Mr.°Spencer being in possession of an estate of 7000?. a year, and of a 
 personal estate in goods and plate, &c, worth 20,000?., and owing about 
 20,000/. to tradesmen, being about thirty years of age, of a hale constitu- 
 tion, but impaired by irregularity, and the Duchess of Marlborough, his 
 grandmother, being then seventy-eight, and of a good constitution, made 
 the defendant a proposal, that for 5000?. paid down, he would engage to 
 pay 10,000?. if he survived the duchess, which after some deliberation 
 was accepted by the defendant ; and Mr. Spencer gave him a bond for the 
 payment of 10,000?. in six months after the death of the duchess, in 
 case he should be then living. The duchess lived six years after, and 
 then died, giving Mr. Spencer by her will a very considerable estate. 
 Then Mr. Spencer confessed a judgment to the defendant for 10,000?., 
 and afterwards paid him 2000?. in part of it, and then died, about a year 
 and eight months after the duchess. A bill was brought to be relieved 
 against this demand, upon payment of the principal sum with legal interest, 
 on account of its being an unconscionable bargain, and against the public 
 good. 
 
 Earl of Chesterfield et al., Executors of Mr. John Spencer, v. Sir Abraham Jansen, 
 MS Rep in Chanc. Trin. 24 G. 2 ; and see the case very fully reported in 1 Atk. 301 ; 
 [2 Ves. 125, S. C. ; 1 Wils. 286, S. C. ;] {5 Ves. J. 27, Wharton v. May, S. P. } || A 
 post obit bond, though a questionable security, seems not usurious. 1 Anst. 7 ; 1 H. 
 Black. 94; 5 Ves. 27. || 
 
 Lord Chancellor called to his assistance Lord Chief Justice Lee, Lord 
 Chief Justice Willes, Sir John Strange, Master of the Rolls, and Mr. Jus- 
 tice Burnet ; who gave their opinions in Hil. term, 1750, that no contract 
 can be fraudulent within the statute, where it is not for the forbearance. 
 There may be many contracts which this court sets aside, though not usu- 
 rious, as marriage-brokage bonds, placc-brokage bonds, &c, but here ap- 
 pears no fraud or imposition in this case, and the party himself has con- 
 firmed it : This was a mere contingency, and the whole money might have 
 been lost: it is a bargain of chance, and a mere wager; and the relief 
 prayed by the plaintiffs was refused. 
 
 So, where A delivered to B 100?., who by indenture covenanted with A 
 to pay to every one of A's children which then tvere and should be living, at 
 ten years' end, 80?., A having then five daughters ; and for assurance 
 mortgaged a manor, and was bound in a statute of 500?. ; it was adjudged 
 not to be usury, but a mere casual bargain. But if it had been to pay 
 400?. at ten years' end, if any were living, then it had been a greater
 
 USURY. 287 
 
 (E) In what Cases Securities shall be avoided. 
 
 doubt ; or, if it had been to pay 300/. if any were living at one or two 
 years' end, that had been usury, because of the probability that one of 
 them would continue alive for so short a time ; but in ten years are many 
 alterations. 
 Cro. Eliz. 741, pi. 15, Bedingfield v. Ashley. 
 
 But, where M lent C 1507., for repayment of which C leased a close to 
 Mfor sixty years, to begin at the end of tivo years, upon condition that if 
 he paid the 150/. at the end of the two years, the lease to be void ; and it 
 was agreed that, for the deferring and giving a day of payment for the 
 two years, should pay to M for interest 221. 10$. quarterly, if 31 should 
 so lo?ig live ; in pursuance of which agreement M lent the 1507. and A 
 made the lease, and granted by fine to M the rent of 221. 10s., to be paid 
 quarterly, if M should so long live ; this was held to be a usurious con- 
 tract, for by intendment M might have lived above the two years, and it 
 was an apparent possibility, that he should receive that consideration, 
 whereby she is within the statute ; and also that the lease taken for the 
 payment of the principal money, and not for any part of the usury, is 
 within the statute, because it is for security of money lent upon interest, 
 and for the securing of that which the statute intended M. should lose. 
 
 Cro. Ja. 507, pi. 20, Roberts v. Trenayne ; ||S. C. nom. Roberts v. Tremoile, 2 Roll. 
 R. 47.|| 
 
 || A bond fide contract for an annuity for life or lives is clearly ex- 
 empted from the operation of the statute of usury, and this, although 
 the annuity is made redeemable at the option of the grantor, for the gran- 
 tee runs a hazard of never receiving back an equivalent for his principal. 
 
 Fountain v. Grimes, Cro. Ja. 252 ; Rex v. Brury, 2 Lev. 7 ; Murray v. Harding, 
 Black. R. 859 ; 3 Wils. 390 ; Richards v. Brown, Cowp. 770 ; and see 1 Atk. 340, 3 
 Atk. 280. 
 
 And a covenant by the grantor to insure the life on which the annuity 
 depends, and to assign the policy to the grantee, seems not to render the 
 contract usurious. 
 
 In re Naish, 7 Bing. 150. 
 
 An annuity for a term of years certain, which will repay to the grantee 
 the amount of his purchase-money, and more than 51. per cent, interest, 
 is usurious ; for the principal in such case is not in hazard, as in the case 
 of an annuity for life. 
 
 Fereday v. Wightwick, 1 Russ. & M. 45 ; and see 3 Barn. & A. GG6.|| 
 
 (E) In what Cases Securities shall be forfeited or avoided on account of Usury. 
 
 Here it is to be premised, that it is not material whether the payment 
 both of the principal and also of the usurious interest be secured by tin 
 same or by different conveyances, but all writings whatsoever for the 
 strengthening of such a contract are void. 
 
 Hawk. P. C. c. 82, g 21 ; ||3 Barn. & C. 273.|| {In Pennsylvania, the security is not 
 void, but the plaintiff may recover the just principal with lawful interest. 2 Ball. 92, 
 Wycoff v. Longhead.} 
 
 "Where a bond is made for more than legal interest, but at the payment 
 the obligee takes only legal interest ; he shall not be punished for the con- 
 tract ; but perhaps the bond shall be void. 
 
 2 Le. 39, arg. in Van Henbeck's case. 
 
 Thus — where A borrowed of B 807., and tvas bound in a bond to pay
 
 288 USURY. 
 
 (E) In what Cases Securities shall be avoided. 
 
 him 90?. at the end of the year ; per cur. — Though the 90?. was tendered, 
 and B did tell the same, yet if B takes but 80?. it is not usury within 5 
 Eliz. to make a treble forfeiture ; but yet in that case the obligation itself 
 is void. The bond is void presently, and if he receives excessive interest, 
 he shall forfeit the treble value. Per Clerk, J. 
 
 4 Le. 43, pi. 117, Brown v. Fulsby ; 3 Le. 205, pi. 200, Body v. Tassel. 
 
 /3 Where a partial payment was made on account of a note, for a sum of 
 money borrowed on usurious interest ; held that the usury was complete. 
 
 Musgrove v. Gibbs, 1 Dall. 216 ; Wycoff v. Longhead, 2 Dall. 92 ; Turner v. Cal- 
 vert, 12 S. & R. 46. 
 
 In New York, where there is a usurious agreement upon the loan of 
 money, it is immaterial whether the unlawful excess be actually paid, or 
 only promised to be paid ; in either case the contract is void. 
 
 Hammond v. Hopping, 13 Wend. 505. £( 
 
 || And on the other hand, if usurious interest is not contracted for, the 
 bond will not be rendered void, although it may in fact be taken. In 
 order to constitute usury, so as to make the assurance void, and also to 
 subject the party to penalties, there must be both an usurious contract, 
 and a usurious taking in pursuance of it, of money or money's worth. 
 
 Scott v. Brest, 2 Term R. 241 ; Barbe q. t. v. Parker, 1 H. Bl. 283 ; Ex parte Jen- 
 nings, 1 Madd. 11. 331 ; and see 1 Saund. 295, note l.|| 
 
 Where the first contract is not usurious, it shall never be made so by 
 matter ex post facto. Per Williams, J. 
 Bulstr. 17. 
 
 Thus — in debt upon an obligation, where the statute of usury was 
 pleaded, it was said by Pophain upon the evidence, that if a man lends 
 100?. for a year to have 101. for the use of it, if the obligor pays the 10/. 
 twenty days before it be due, that does not make the obligation void, be- 
 cause it was not corrupt. But if, upon making the obligation it had been 
 agreed that the 10?. should have been paid within the time, that would have 
 been usury, because he had not the 100?. for the whole year, when the 
 10?. w r as to be paid within the year ; and a verdict was given accordingly. 
 
 Noy, 171, Dalton's case, S. P., and resolved by the whole court that the taking th<? 
 use-money within the year shall not avoid the obligation, and is not usury within the 
 statute, because it was not usurious at the beginning. And judgment for the plain- 
 tiff. Bulstr. 17. 
 
 Likewise, if a man makes a usurious contract with another, and gives 
 him unlawful interest, and agrees to give him a bond for the principal, 
 and after, by a subsequent agreement, gives a bond for the sum lent to 
 J S, to ivhom the lender owes so much, in satisfaction of his debt ; this 
 bond is not voidable by the statute. Per Holt, C. J. 
 
 7 Mod. 119, The Queen v. Sewel, alias Beaus. 
 
 So, if a man lend money on a legal interest, and after a subsequent 
 agreement be made for more interest, which is usury; that will not avoid 
 the first contract. Per Holt, C. J. 
 
 Far. 119, The Queen v. Sewel, alias Beaus. For the words of the statute are, " That 
 all assurances for the payment of any principal, &c, whereupon or whereby there shall 
 be reserved or taken above the rate of 5/. in the hundred, shall be void." { 1 II. Bl. 
 462, Gray v. Fowler, S. P. | I 
 
 {L gave a bond and mortgage to E, who, after the day of payment, de- 
 manded the money, $6222 being then due for principal and interest. L 
 agreed with him to pay $5G00 in cash, and give his notes for the residue ;
 
 USURY. 289 
 
 (E) In what Cases Securities shall be avoided, 
 and then applied to B to advance the $5600 to E, agreeing to repay it 
 in 90 days, with a premium of $400, the whole to be secured by an as- 
 signment from E of the bond and mortgage. This arrangement was 
 accordingly made. On a bill by B against L to foreclose, it was held 
 that the mortgage, having been originally given on a good and bond fide 
 consideration, could not be impeached on account of the subsequent 
 usurious contract between B and L, but that B was not entitled to more 
 than the sum actually paid with legal interest. 
 
 2 Cain. Er. GO, Bush v. Livingston.} 
 
 But, if a second bond be made after the forfeiture of a former, and con- 
 ditioned for the receipt of interest according to the penalty of the forfeited 
 bond, this is as much within the statute, as if it had been made before the 
 forfeiture ; for if such a practice should be allowed, nothing could be more 
 easy than to elude the statute ; and though the whole penalty be due in 
 strictness to the obligee, yet the true principal debt is in conscience no 
 greater after the forfeiture of the bond than it was before. 
 
 Hawk. P. C. c. 82, \ 23. 
 
 || Where the grantor of an annuity, being desirous to redeem it, agreed 
 with the grantee to discount for him a bill of exchange for the purpose of 
 producing the money, and the grantor accordingly drew a bill for 5000?. 
 payable at three years, and it was discounted as follows : The grantee 
 took 4083/. 6s. 8ti as the amount of the purchase-money and arrears of 
 the annuity, and paid 116?. 13s. 4d. to the grantor, and retained 750?. as 
 the discount for three years on 5000?., and then immediately the bill was 
 given up and a bond signed by the grantor and two others to the grantee, 
 payable in three years, for the sum of 5000?. ; it was held, that this could 
 not be considered as a fair transaction of ordinary discount, nor as a 
 bond fide purchase of the annuity, but that it was a usurious transaction ; 
 and this, although the jury declared they did not believe the grantee 
 thought he was acting contrary to law. 
 
 Marsh v. Martindale, 3 Bos. & Pul. 154. || 
 
 A bond made to secure a just debt payable with lawful interest, shall 
 not be avoided by reason of a corrupt agreement between the obligors, to 
 which the obligee was no way privy : as, where A, being indebted to B 
 in 100?., agrees to give him 30?. for the forbearance of that 100?. for a 
 year, and gives him a bond for 60?. for payment of the 30?., and for the 
 payment of the 100?. enters into a bond of 200?. together with B for the 
 payment of a true debt of 100?. due from B to C. 
 
 Hawk. P. C. c. 28, | 11. 
 
 So, where W was indebted in 100?. to A upon a usurious contract on a 
 bond, and A being indebted to E, transferred the debt to E, and W became 
 bound for the same usurious debt to E, whose debt was just, and he ignorant 
 of the usury ; it Avas adjudged, upon great deliberation, that the obligation 
 made by W to E was not avoidable for the usurious contract made be- 
 tween W and A, because it was given to E for a true debt, and he knew 
 nothing of the usury, though the ground between A and W was usurious. 
 
 Moor, 752, pi. 1035, Ellis v. Warnes. 
 
 Likewise, an assurance made in pursuance of a fair agreement for such 
 interest as is allowed by the statute, shall not be avoided by the fault of 
 
 Vol. X.— 37 2 B
 
 290 USURY. 
 
 (E) In what Cases Securities shall he avoided. 
 
 the scrivener, who draws it up in such a manner as to bring it within the 
 express letter of the statute : As, where the parties agree, that 51. shall 
 be paid for the loan of 100?. for one year, and the scrivener, in drawing 
 the bond for it, doth without the knowledge of the parties, who are illite- 
 rate persons, make the 51. payable at the end of half a year : or, where, 
 on the fair loan of 100?. agreed to be paid with common interest, a mort- 
 gage is made for the 100?. with a proviso, that it shall be void on pay- 1 
 ment of 1051. at the end of one year, without any covenant for the 
 mortgagor to take the profits till default be made of payment, so that in 
 strictness the mortgagee is entitled both to the interest and profits. 
 
 Hawk. P. C. c. 82, 1 17 ; [Murray v. Harding, supra, 287.] ||See Glasford v. Laing, 
 1 Camp. 148.11 
 
 It is to be observed, that a fine levied, or judgment suffered, in pursu- 
 ance of a usurious contract, may be avoided by an averment of the corrupt 
 agreement, as well as any common specialty, or parol contract. And in 
 an assumpsit if it appear, either upon the evidence, or from the plaintiff's 
 own express showing in his declaration, that the contract was usurious, he 
 cannot recover. But a specialty cannot be avoided by usury appearing 
 on evidence or on the face of the condition, but it must be pleaded. 
 
 Hawk. P. C. c. 82, \ 20. {But a note which is originally fair cannot be impeached 
 in the hands of an innocent holder on account of a subsequent usurious transfer. 
 1 Bay. 486, Foltz v. Mey ; 1 East, 92, Parr v. Eliason ; 3 Esp. Hep. 210, S. C. And 
 if a note given by A, for an usurious consideration be endorsed to C, for a valuable 
 consideration, without notice of the usury, and afterwards A gives to C a new security 
 for the amount, such new security is good. 8 Term. 390, Cuthbert v. Haley; 3 Esp. 
 Ttep. 22, S. C. ; 2 Cain. 150, Stewart v. Eden. Vide Ellis v. Warnes, supra, p. 289; 
 and 4 Esp. Rep. 11, Turner v. Hulmo.} 
 
 If a judgment be given upon a usurious contract, and it be part of 
 the agreement to have a judgment, yet the defendant may avoid such 
 judgment by audita querela, or by scire facias brought on the same. 
 
 Vin. Abr. tit. Usury, 304. 
 
 Where A mortgaged to B, on a usurious contract for 100?., and before 
 the day of payment B is ousted by O, and B brings an action against G, 
 C cannot plead the statute of usury; for he has no title, the estate being 
 void against the mortgagor. Per Periam. 
 
 Le. 307, p. 427, Carter v. Claycole. 
 
 But, where A lent B 45?. on a pledge of jewels, and it was agreed to 
 pay 9?. for it for a year ; afterwards B gave a bond for the same money ; 
 per Holt, at Nisi Prius, It is a question if the bond be void or not. 
 
 7 Mod. 119, The Queen v. Sewel, alias Beaus. 
 
 [A bill of exchange given on usurious consideration is void in the 
 hands of an innocent endorsee for valuable consideration without notice 
 of the usury. 
 
 Lowe v. "Waller, Dougl. 736. ] 
 
 I An absolute deed of conveyance of real estate, upon trust to sell and 
 pay certain debts, cannot be avoided on the ground that the debts to be 
 paid are usurious. 
 
 1 Johns. Ca. 158, Denn v. Dodds.} 
 
 || And even though the bill were lawful in its original inception, it has
 
 USURY. 291 
 
 (E) In what Cases Securities shall be avoided. 
 
 been held, that an innocent holder cannot recover upon it if he has to 
 make title through an endorsement vitiated by usury. 
 
 Lowes v. Mazarredo, 1 Stark. Ca. 385 ; sed vide Parr v. Eliason, 1 East, 92. 
 
 And where an innocent holder being in possession of a bill vitiated by 
 usury, on being informed of it took a fresh bill in lieu of it, drawn by one 
 of the parties to the original usury, and accepted by a third person for 
 the accommodation of the other party, it was held, that he could not re- 
 cover on the substituted bill. 
 Chapman v. Black, 2 Barn. & A. 588 ; and see 8 Term R. 390. 
 
 However, the mere receiving an exorbitant sum by an agent for get- 
 ting a bill discounted for the acceptor, the agent himself being no party 
 to the bill, will not affect the bill in the hands of the bond fide holder, 
 who only receives the legal discount ; and such holder may consequently 
 sue the acceptor, since there is here no usurious loan of money by the party 
 discounting the bill. If the agent receiving the commission had himself 
 advanced the money, it would have been otherwise. 
 
 Dagnall v. Wigley, 11 East, 43. 
 
 But now by the 58 G. 3, c. 93, it is enacted, that no bill of exchange 
 or promissory note, although it may have been given for a usurious con- 
 sideration or upon a usurious contract, shall be void in the hands of an 
 endorsee for valuable consideration, unless such endorsee had, at the 
 time of discounting or paying such consideration for the same, actual 
 notice that such bill of exchange or promissory note had been ori^inallv 
 given tor a usurious consideration, or upon a usurious contract. 
 
 When usurious securities are destroyed by mutual consent, a subsequent 
 
 agreement by the borrower to pay the lender the amount due for legal 
 
 principal and interest is founded on sufficient consideration, and binding. 
 
 Barnes v. Hedley, 2 Taunt. 184; 1 Camp. 165, notd; sed vide Forrest, 72; 1 Camp. 
 157 ; and see 1 II. Black. 4G2. 
 
 But if the security extends to the usurious interest it is not valid. 
 Preston v. Jackson, 2 Stark. 237 ; Wicks v. Gogerly, 1 Ryan & Moo. 123. 
 
 In one case the Court of C. B. refused to set aside a judgment and exe- 
 cution for usury, unless the defendant paid the legal principal and interest. 
 Hindle v. O'Brien, 1 Taunt. 413 ; and see 1 Bos. & Pul. 270. 
 
 But the Court of K. B. have expressed their dissatisfaction at this 
 decision, and, in setting aside a judgment founded on a usurious warrant 
 of attorney, refused to impose the terms of payment of the legal debt. 
 
 Roberts v. Goff, 4 Barn. & Add. 92. 
 
 Where securities are given partly for a legal and partly for a usurious 
 debt, the usury taints the whole security, and the holder cannot recover 
 on it for any part of the amount. (a) 
 
 Harrison v. Ilannel, 5 Taunt. 780 ; 1 Marsh, 349. (a) The security in such ease is 
 void ; but the bond Jidc debt is not extinguished by being mixed up in a security with 
 a usurious debt. Gray v. Fowler, 1 II. Black. 402; Phillips v. Cockayne, 3 Camp, 
 119 ; and see the stat. 58 G. 3, c. 93. 
 
 Where the drawer of bills payable to his own order and accepted, hands 
 them over endorsed to a friend, in order to get them discounted, and he 
 docs so by allowing usurious interest to the discounter, and the bills come 
 into the hands of the Crown under an extent against the discounter, the 
 Crown cannot recover on the bills against the acceptor; for the transac-
 
 292 USURY. 
 
 (F) In what Cases Penalties shall be incurred. 
 
 tion is in substance a usurious advance of money by the discounter to 
 the drawer, through his friend, and the bill in the hands of the Crown 
 is in the same situation as in those of the discounter. 
 
 The King v. Ridge, 4 Price, 50. The statute would make no difference in this case.|| 
 
 (F) In what Cases a Forfeiture of treble Value shall be incurred on account of Usury. 
 
 Though the receipt of higher interest than is allowed by the statute, 
 by virtue of an agreement subsequent to the first contract, does not avoid 
 an assurance fairly made and agreeable to the statute, yet it subjects the 
 party to the forfeiture of treble value. 
 
 Hawk. P. C. c. 82, § 12. 
 
 But the receipt of interest before the time when it is in strictness due, 
 being voluntarily paid by the debtor for the greater convenience of the 
 creditor, or for any other such like consideration, without any manner of 
 corrupt practice, or any previous agreement of this kind at the making of 
 the first contract, does not make the party liable to the forfeiture of the 
 treble value. 
 
 Hawk. P. C. c. 82, § 14. 
 
 An information upon the statute 12 Car. 2, c. 13, set forth that the de- 
 fendant, 16 November, 20 Car. 2, lent J S 20?. tiWJtme next following, 
 and that afterwards, (viz.,) ad finem termini prosdict. he took of the said 
 J S, corrupte et extorsive, 80s. for the loan thereof, which is more than 
 the statute allows. The jury found against the defendant. And it was 
 moved, that this corrupt agreement ought to be within the statute at the 
 making of the contract, and not at the end of the term, as laid in the in- 
 formation. Twisden, J., took a difference upon the two clauses in the 
 statute, that if the lender contracts for more, so that the agreement is cor- 
 rupt at the time of the loan, all the assurance is void; but, if he contracts 
 for no more than the statute allows, but will afterwards take more, the as- 
 surance shall not be avoided, but the party shall forfeit the treble value. 
 But judgment was stayed till the other side moved, because the court would 
 advise. 
 
 Kaym. 196, The King v. Allen. 
 
 In debt upon bond the defendant pleaded, that after the making of the 
 bond the defendant corruptive receipt so much, viz., more than the statute 
 allows, and that therefore the bond was void. But adjudged upon demur- 
 rer, that the plea is not good; for the bond here was not for the payment 
 of money (upon or for usury), as the words of the statute are; but for any 
 thing appearing to the contrary, it was for payment of a just debt, and so 
 the bond was good when it was made; and therefore a usurious contract 
 after cannot make it void ; but it is a forfeiture of the treble value by 
 the latter clause of the statute. 
 
 Saund. 294, Ferral v. Shaen. || See 4 Burr. 2253 ; Cowp. 114 ; Dougl. 237 ; 3 Wils. 
 2G1 ; 2 Black. 792; 3 Term 11. 538 ;|| 3 Salk. 390, pi. 4, S. P. accordingly. 
 
 A (when money was at 81. per cent.) lends money and takes bond for 
 the same, and then the statute 12 Car. 2 is made, and he will continue 
 the interest on that bond: the bond shall not be avoided by such accept- 
 ance of interest, but the party shall forfeit the treble value by the statute. 
 Per Twisden, J. 
 
 Kaym. 197, The King v. Allen. 
 
 So, in debt on an obligation conditioned to pay by a certain day, the 
 defendant pleaded the statute 12 Car. 2, c. 13, and said that the contract ivas 

 
 USURY. 293 
 
 (G) In what Cases Relief is given against usurious Contracts. 
 
 usurious : but per cur. the contract being made after the bond forfeited 
 to receive interest according to the penalty, which was double the princi- 
 pal, it doth not avoid the obligation that was good at first, but only sub- 
 jects the taker to other penalties ; and judgment for the plaintiff, nisi. 
 3 Keb. 142, pi. 13, Radly v. Manning. 
 
 || On the other hand, if a man contract for more interest than the sta- 
 tute allows, and afterwards take only legal interest, the contract is void, 
 but the penalty is not incurred. 
 
 Fisher v. Beasley, Doug. 236 ; 1 W. Saund. 295 a, notd. 
 
 As the penalty, therefore, is not incurred till more than legal interest 
 has been actually taken, the time for bringing the action (one year from 
 the offence by 31 Eliz. c. 5, s. 5) begins from the receipt of the usurious 
 interest, and not from the making of the contract. 
 
 Fisher v. Beasley, Doug. 236 ; 1 W. Saund. 295 a, notd. 
 
 Where a premium is actually paid at the time of the contract, and 5?. 
 per cent, interest is agreed to be paid, the offence is complete on receipt 
 of any part of that interest. 
 
 Wade v. Wilson, 1 East, 195 ; and see 2 Bos. & Pul. 381. 
 
 The mere taking a note for the money lent with usurious interest does 
 not complete the usury, till the note is paid. 
 Maddock v. Hammett, 7 Term R. 184; and see 1 Camp. 445 ; 2 Camp. 53 ; 3 Barn. 
 
 &C. 165.|| 
 
 3 The offence of usury is complete when any thing above the legal rate 
 of interest has been received for the forbearance. 
 
 Seawell v. Shomberger, 2 Murph. 200. See Fugate v. Ferguson, 1 Blackf. 366 : 
 Breckenridge v. Churchill, 3 J. J. Marsh. 16. 
 
 A return by the sheriff of satisfaction to an execution issued on a judg- 
 ment for a debt infected with usury, is not sufficient evidence of the re- 
 ceipt of usurious interest, to charge the lender in an action for a penalty. 
 
 Wright v. M'Gibbons, 2 Dev. & Bat. 474.£/ 
 
 (G) In what Cases Relief is given against usurious Contracts. 
 
 It has been said, that though the statute does not go so far as to make 
 the party receiving the usurious interest liable to refund ; yet having pro- 
 hibited the taking beyond such a sum, and avoided the contract, the tak- 
 ing it is a breach of the statute ; and the actual receipt of the money 
 will (in a court of equity) make him liable to refund ; the wrong being 
 the same, whether the usurious interest hath been actually paid or not. 
 
 Cas. temp. Talb. 114, Proof v. Ilines. 
 
 Thus — where A entered into a bond to B for a sum of money, to pay Gl. 
 per cent, interest ; afterwards A being unable to pay off the bond, consented 
 to pay 10Z. per cent, for the money, and continued paying at that rate for 
 fourteen years: B died, A became a bankrupt; and the assignees of A 
 brought a bill ; the executors of B were decreed, by the Master of the Rolls, 
 to account; and that, for what had been really lent, legal interest should be 
 computed and allowed, and what had been paid more should be deducted 
 out of the principal to be due on the account ; and if B had received more 
 than what was due with legal interest, the same tobe refunded by the execu- 
 tors, and the bond to be delivered up. And afterwards the Lord Chan- 
 cellor affirmed the decree ; but said he did not determine how it would be-, 
 had all the securities been delivered up ; that not being before him. 
 
 Cas. temp. Talb. 38, Bosauquett v. Dashwood. 
 
 2b2
 
 294 USURY. 
 
 (G) In what Cases Relief is given against usurious Contracts. 
 
 The court decreed money to the plaintiff against the defendant ; albeit 
 he had judgment and execution, being upon the point of usurious con- 
 tract. 
 
 Toth. 231, Langford v. Barnard. 
 
 A woman resorted to gaming places at court ; and by supplying persons 
 of quality there tvith money, made great profit ; for which purpose she^ bor- 
 rowed much money, and gave the lender great rewards from time to time ; 
 but afterwards she borrowed more, and being arrested for this last money, 
 gives bond and judgment for it, and then brings a bill to be relieved 
 against the security, and to have an allowance for the former excessive 
 premiums which she had given, and to bring the defendant to an account. 
 The defendant, by answer, confessed the receipt of five or ten guineas 
 for the loan of ten guineas for a week or ten days ; but insisted that the 
 sums so received ivere paid as profit, and not towards satisfaction of the 
 money lent. The court ordered the plaintiff to pay principal, interest, 
 and costs at law, and here, or the bill to be dismissed with costs ; for 
 that it would not interpose or meddle with play-debts, or things of this 
 kind. Per Lords Commissioners. 
 
 2 Vern. 170, pi. 156, Taylor et al. v. Bell; Bagnall et al., Ibid. 173. Ld. Hutchins 
 said, that if the sureties had not been plaintiffs as well as the woman, he would not 
 have relieved even against the penalty. Lord Chancellor, in the case of Bosanquett 
 v. Dash wood, said, that as to the laws relating to gaming, the court would not inter- 
 pose, because gamesters on both sides are equally guilty, and in such cases the court 
 will stand neuter ; but the borrower and lender are not in the view of gamesters. 
 MS. Rep. 
 
 Upon a trust ||trial|| at Guildhall, in an indebitatus assumpsit for money 
 received to the use of the plaintiff, the case was, The plaintiff was co- 
 obligor with J S to the defendant, and between J S and the defendant there 
 was a iisurious contract : the plaintiff paid part of the money to the obli- 
 o-ee, and after pleaded the statute of usury upon this bond ; which is ad- 
 judged a usurious bond ; he brought this action for the money, which 
 lie paid before the bond was proved usurious ; and the question was, if 
 the action lay ; and Holt, C. J., seemed to incline strongly that it did not 
 lie ; for here there was a payment actually made by the plaintiff to the de- 
 fendant, in satisfaction of this usurious contract ; and if they will make 
 such contracts, they ought to be punished ; and he was not for encourag- 
 ing such kinds of indebitatus assumpsit ; for it is like to the cases of bribes, 
 ami he who receives them ought to be punished, but he who gives them 
 ourdit not to be encouraged by any way to recover his money again. 
 
 Skin 411, pi. 7, Tomk'ms v. Barnctt; 1 Salk. 22, S. C, though said to be coram 
 Treby, C. J., and that Treby, C. J., allowed, that where a man pays money on a mis- 
 take in an account, or where one pays money under or by a mere deceit, it is reason- 
 able he should have his money again ; but, where one knowingly pays money upon 
 an illegal consideration, the party that receives it ought to be punished tor his oifence ; 
 and the party that pays it is particeps criminis. And there is no reason that he should 
 have his money again ; for he parted with it freely, and volenti nonfit injuria. [See 
 the observations on this case, supra, Vol. i.] ||tit. Assumpsit, (A); and see Cowp. 
 200 ; 1 Bro. C. 11. 457 ; Doug. 696, overturning this case.|| [Notwithstanding what is 
 here' advanced, courts of law now view the borrower in a more favourable light, and 
 will permit him to recover the excess of interest in an action for money had and 
 received. Browning v. Morris, Cowp. 792. But to entitle him to bring such an 
 action, lie must show that he has done all that equity requires. In an action, there- 
 fore ti> recover goods which the plaintiff had pawned, upon a usurious contract, the 
 court held that he must show he hud tendered all the money really advanced. Fitzroy 
 v. Gwillim, 1 Term It. 1515.] || This case seems not law. Roberts v. Goff, 4 Barn. & 
 A. 92 ; Tre'goning v. Attcnborough, 7 Bing. 97. ||
 
 USURY. 205 
 
 (II) How far Sureties are affected by usurious Contracts. 
 
 It is said that defendant is not obliged to discover any usurious con- 
 tract, unless the plaintiff offers to waive the penalty. 
 
 3 Vio. Abr. tit. Usury, 315, cites MS. Tab. tit. Usury, Jan. 24, 1424, Brand v. Cum- 
 ming; [1 Atk. 450, Earl of Suffolk v. Green; 2 Atk. 31)3, Chauncy v. Tahourden.] 
 
 |j The equitable jurisdiction in bankruptcy goes much further than courts 
 either of law or equity. At law, you must make out the charge of 
 usury ; and in equity, you cannot come for relief without offering to pay 
 what is legally due ; and must either prove the usury by legal evidence, 
 or have the confession of the party: but, in bankruptcy, it has been con- 
 sidered sufficient to suggest usury in a petition supported by affidavits, 
 merely upon information and belief; putting the party charged to prove 
 against himself, for the purpose, not of giving him his real debt, but of 
 cutting him off from all relief. 
 
 Per Ld. Eldon, Ex parte Scrivener, 3 Ves. & Bea. 14 ; and see 2 Yes. 489 ; 9 Yes. 
 Jun. 84. 
 
 j3 When usury has been sufficiently pleaded in an action at law, and, on 
 demurrer, the plea adjudged bad, and judgment rendered for the plain- 
 tiff, the defendant cannot set up this matter in equity. The defendant 
 at law should have taken up the case to the court of revisal. 
 Lainme v. Saunders, 1 Monr. 267. 
 
 In general, in cases of usury, equity proceeds to compel a discovery 
 
 upon the complainants bringing into court the principal sum advanced 
 
 with legal interest, and then the court will relieve the usurious excess. 
 
 Taylor v. Smith, 2 Hawks, 465 ; Wilson v. Carver, 4 Hayw. 90 ; Marks v. Morris, 
 4 H. & M. 463; S. C. 2 Munf. 407 ; 6 Munf. 541 ; 1 Band. 172. 
 
 Although, upon the bill of the borrower, aid will be extended upon the 
 
 terms of repaying the sum lent, with lawful interest, yet the lender can 
 
 have no relief whatever, and his bill to foreclose a usurious mortgage will 
 
 be dismissed. 
 
 M'Brayer v. Roberts, 2 Dev. Eq. 75. See State Bank v. Knox. 1 Dev. & Bat. Eq. 
 50. 
 
 But under a usury law, which does not avoid the securities, and only 
 forbids the taking more than six per centum per annum, a court of equity 
 will not refuse its aid to obtain the principal. 
 
 De Wolf v. Johnson, 10 Wheat. 367. 
 
 A court of equity will relieve against usury, when the remedy is not 
 plain and unembarrassed at law. 
 
 Coleman v. Childress, 6 Yerg. 398. 
 
 After it has been actually paid, interest may be recovered back in 
 
 chancery. 
 
 Pearce v. Hedrick, 3 Lit, 109 ; M'Campbell v. Gill, 4 J. J. Marsh. 89 ; Lawless v. 
 Blakey's Adm'r, 4 Monr. 488 ; Bodes' Executors v. Bush, 5 Monr. 470. 
 
 The plea of the statute of usury ought to be received in a court of equity, 
 at any time before the decree is final, if there be strong reasons, from the 
 statement in the bill, for believing that the matter of such plea is true. 
 
 Ellsey v. Lane's Executrix, 4 Munf. 66. £/ 
 
 (II) How far Sureties are affected by usurious Contracts. 
 B WAS bound with P as his surety to J S in a bond of 500/., and that 
 bond was upon a corrupt and usurious contract against the statute, and P
 
 296 USURY. 
 
 (II) How far Sureties are affected by usurious Contracts. 
 
 was bound unto the plaintiff in a bond as a counter-bond to save the plain- 
 tiff harmless from the said bond of 50(H. ; B is sued by J S upon the said 
 bond, and so damnified : And thereupon B sued P upon the counter-bond, 
 who pleaded the statute of usury, pretending that all assurances depend- 
 ing upon such usurious contracts are void by the statute. But by the 
 opinion of Wray, C. J., the same is no plea ; for the statute is, that all 
 bonds, collateral assurances, frc, made for the payment of money lent 
 upon usury, shall be utterly void : but the bond here, upon which the 
 action is brought, was not for the payment of the money lent, but for the 
 indemnity of the surety. 
 
 2 Le. 160, pi. 200, Basset v. Prowe. ., 
 
 So likewise, in debt on bo7id to save the plaintiff harmless from an 
 obligation wherein he and the defendant were bound to W, &c, and from 
 all suit concerning the same; the defendant pleaded the statute of usury, 
 and that it was made upon a corrupt agreement between him and W, 
 which the plaintiff might have pleaded in debt against him by W. But 
 the court held the plea ill ; for though the first obligation were void, yet 
 the second obligation is forfeited, because the defendant hath not saved 
 him harmless from suits concerning it, nor does the defendant answer 
 thereto, but to the obligation only. 
 
 Cro. Eliz. 642, pi. 43, Button v. Downham ; 2 And. 121, pi. G5, S. C, according!}'. 
 But it is there said, that the plaintiff did not know of the corrupt bargain. Noy, 73, 
 S. C, by the name of Downham v. Butter, and judgment for the plaintiff. But it is 
 added that Glanvil said it would lie a dangerous precedent to avoid the statute. For 
 the surety may be a friend of the usurer's, who will not plead the statute in an action 
 of debt brought against him, and so the statute would be to little purpose. And after 
 the judgment given for the plaintiff, Glanvil said that that judgment would be quickly 
 carried to Cheapside. 
 
 But where, in debt on bond, defendant pleaded, that he himself borrowed 
 100/. of W, paying for the forbearance excessive usury ; and the plaintiff 
 was his surety for the payment, and that the olbigation upon which the 
 action is brought was given by him to the plaintiff to indemnify him 
 against W ; Manwood held this a good bar ; for when the plaintiff was 
 impleaded upon the principal bond, he might have discharged himself 
 upon this matter, and therefore the laches shall turn to his prejudice ; 
 and therefore the issue was joined upon the excessive usury. 
 
 3 Le. 03, pi. 93, Potkin's case. 
 
 So likewise in debt upon an obligation to save the plaintiff harmless 
 from an obligation, wherein the plaintiff, as surety for the defendant, 
 was bound to J S to pay 100?., the defendant said the obligation made to 
 J S zoas upon a usurious contract, §-c, and concluded sic non damnifi- 
 catus. Tanfield said, the plea is good, otherwise the statute would be 
 defrauded ; for by a compact, the usurer would sue the surety, who 
 shall pay him, and have his remedy on his counter-bond. But all the 
 court held it no plea ; for he must take care to save his surety harmless. 
 And adjudged for the plaintiff. 
 
 Cro. Eliz. 588, pi. 22, Robinson v. May. There is a note added, that the reason 
 conceived was that the surety by intendment cannot know of the corrupt contract to 
 plead it in avoidance of the bond, and therefore the principal ought to take care 
 
 thereof. Ibid. Goldsb. 174, pi. 107, S. C. held accordingly per tot. cur. But the 
 
 reporter adds — scd qnxcre.
 
 USURY. 297 
 
 (I) What Informations will lie in Cases of Usury, and where they are good, and 
 
 where not. 
 
 An information was moved for against Cawket, a pawnbroker, for taking 
 sixpence a pound per month interest, which was said to be extravagant 
 usury. The court, however, thought there was nothing so enormous in 
 this offence, but that the common method of punishment would be suffi- 
 cient. But it was argued, that the statute of usury allows the penalty 
 for usury to be recovered by information, or action, and that was argued 
 as a reason why the court should grant it. But the court said, that it 
 was to be understood only of an information qui tarn. And they farther 
 observed, that the statute chalking out a particular method of proceeding 
 for a new offence, was a farther reason why the court could not grant an 
 information ; neither can the party be so much as indicted. 
 
 1 Barn. Rep. in K. B. 209, Anon. 
 
 The place where defendant accepted excessive interest ought to be shown 
 in the information, but not the place where the contract for the loan or 
 forbearing was made ; for that is not needful: But per Clark, J., and per 
 Grent, J., and Manwood, C. B., the place where the corrupt bargain was 
 made must certainly be alleged. 
 
 Le. 96, pi. 125, Sir Wollaston Dixy's case. An information upon the statute of 
 usury, for a contract with persons unknown, recipiendu ultra 107. in the hundred, was 
 held ill, because an informer, who is not party, although the contract w T as ultra 101., 
 &c, per cent., shall not have any benefit unless there ivas a receipt of the usury accord- 
 ing to the contract. And for that the recipiendo is naught, because there is no place 
 nor time put of the receipt, which is now traversable in that information. Noy, 143, 
 Nasie's case. ||See 4 Esp. 152; 1 Camp. 445. ]| 
 
 The information likewise must show whose money it is. Per Man- 
 wood, C. B. 
 
 Le. 97, Sir Wollaston Dixy's case. 
 
 || If A be indebted to B, and B to C, and for a usurious consideration 
 C agree to accept A for his debtor instead of B, this may be laid to be 
 a usurious loan of money from C to A, the new debtor. 
 Wade q. t. v. Wilson, 1 East, 195. 
 
 And if forbearance is given for usurious consideration on a note given 
 as a collateral security for the debt of another person, in an action on the 
 statute against the creditor so forbearing, the usury may be described to 
 be for forbearance of money lent by the defendant to the collateral surety. 
 
 Manners q. t. v. Postan, 3 Bos. & Pul. 343. || 
 
 If an information be exhibited in the Exchequer against a usurer, and 
 it charge that he took more than 10?. in the 100?., without showing how 
 much, such information is utterly insufficient ; for the informer ought to 
 set forth the quantity of the interest received, and yet the same is not to 
 be recovered. 
 
 Arc/. 2 Le. 39, pi. 52, Martin Van Henbeck's case. 
 
 Upon an information on the statute of usury, and subpoena awarded out 
 of C. B. against the defendant, issue joined, and found for the informer, 
 it was alleged in arrest of judgment, that the court of C. B. is not to 
 hold plea by process of subpoena, but by original, and is not aided by the 
 statute of jeofails ; for it is not a misconceiving of process, but a disor- 
 derly award of it ; and it was insisted likewise, that it is not alleged, in 
 the information, by whom, or to whom, nor what sum, or at what place, 
 
 Vol. X.— 38
 
 298 USURY. 
 
 (I) "What Informations will lie in Cases of Usury, &.c. 
 
 nor ivhen the money was lent, nor against the form of ivhat statute it is ; 
 yet judgment was given for the plaintiff. 
 And. 48, Topeliff v. Waller; |IDyer, 346 b, pi. 9.|| 
 
 But where an information was exhibited, and showed the usurious con- 
 tract, in certain whereby it appeared that more than 10?. was reserved 
 and received for the loan of 100?., and concluded contra formam statuti; 
 yet because it did not expressly state that it was per corruptam accommo 
 dationem, according to the words of the penal statute, the information 
 was adjudged insufficient. 
 
 Arg. 11 Rep. 58 a, Dr. Foster's case, cites it as adjudged. And. 49, pi. 123, Emmet 
 v. Fuhvood, seems to be S. C, and the justices of both benches held, that those words 
 ought to be expressly alleged, and not by implication ; and cited 10 H. 7, c. 10, and 
 for default of those words the judgment was reversed. The defendant was indicted 
 for usurious lending 20s. ed intentione to receive 23s. within a month, and that the de- 
 fendant did receive 3s. for the loan of 20s. This, per curiam, is not good without 
 saying, quod corrupte agreatum fuit, and for that reason it was quashed, being re- 
 moved out of the inferior court. Keb. 029, pi. Ill, The King v. Gast or Garth. 
 Croke, J., took a diversity between an information and a verdict, that in an informa- 
 tion the agreement ought to be expressly alleged to be corrupt, and cited 11 Hep. Dr. 
 Foster's case, and the Book of Entries, 333, but that it is otherwise in a verdict, which 
 is the finding of the lay gents. 2 Roll. R. 48, Roberts v. Tremoil. 
 
 An information upon the state of usury, for a usurious mortgage made, 
 charged the defendant, that cepit ultra 10?. in 100?. for the forbearance 
 of one year ; and this was out of the issues, rents, and profits, which he 
 took in Middlesex, of lands in Glamorganshire, in Wales, mortgaged to 
 the defendant. Manwood said, in the principal case, that the taking of 
 the issues and profits ought to have been laid where the land was. And 
 such was the opinion of the whole court. 
 
 3 Le. 238, pi. 327, Owen Morgan's case. 
 
 In debt upon the statute 37 H. 8, of usury the (count) was, that he cor- 
 ruptive lent 40?. against the form of the statute ; and that such a day he 
 lent him 20?., &c, against the form of the statute ; but (as to this) did not 
 sag corruptive^. After verdict for the plaintiff, it was objected, that he 
 ought not to have judgment for either of the sums, it being clearly ill for 
 the 20?. for want of the word (corruptive). But all the court held, that 
 being good for part, he shall have judgment for that part ; for being for 
 several sums, it is in nature of two several actions. 
 
 Cro. Ja. 104, pi. 40, Woody 's case. And it was held, in this court, that if the de- 
 fendant had demurred upon the declaration, it had been good for the one, and the 
 plaintiff should have had judgment for that part. Cro. Ja. 104, in S. C. 
 
 Information in the Exchequer, for that the defendant per viam corruptee, 
 bargainice received, &c. After verdict for the plaintiff, it was moved in 
 arrest of judgment, because he did not set forth what the bargain was, 
 but generally, per viam corruptee, &c. Sed non allocatur ; for this is 
 the usual course of the Exchequer, and the bargain is to be given in evi- 
 dence. But it was agreed, that in pleading to avoid a bond or assurance, 
 it ought to be particularly set forth because the party is privy to his own 
 contract, but the informer is not; and therefore it is sufficient for him to 
 show it particularly in evidence. 
 
 Cro. Ja. 440, pi. 13, Bcdo v. Sanderson; Hawk. P. C. c. 82, \ 24, says, that in 
 pleading a usurious contract by way of bar to an action, you must set forth the whole 
 matter especially, because it lay within your own privity ; but that in an information 
 onthe statute fur making such a contract, it is sufficient to set forth the corrupt bar- 
 gain generally, because matters of this kind are supposed to bo privily transacted; 
 and such information may be brought by a stranger. || Vide infra, (K).||
 
 USURY. 299 
 
 (K) Of the Pleadings in Cases of Usury. 
 
 An information set forth that the defendant, by way of a corrupt contract 
 cepit et ad lucrum suum convertit 40s. for deferring the day of payment of 
 251. from the 29th of July to the oOth of May, (the day on which he took 
 the 40s.,) contra formam statuti. After a verdict it was moved, that it did 
 not appear that the 251. was money lent; but it appears that the taking the 
 40s. teas after lending, and there is no corrupt agreement laid, either 
 before or at the time of lending. But adjudged against the defendant ; 
 for though it be not well laid, so as to give judgment against the defend- 
 ant upon the statute 12 Car. 2, c. 13, to pay treble the money lent ; yet 
 it is found that by a corrupt agreement he took so much, and therefore 
 gave judgment against him at common law, viz., fine and imprisonment. 
 
 Sid. 421, pi. 9, The King v. Walker ; Yent. 38, Anon., seems to be S. C, says, it 
 vras moved that the time of forbearance was past, and the party might give what he 
 pleased in recompense for it, there being no precedent agreement to enforce him to it. 
 Scd non allocatur; for the court said, they would expound the statute strictly ; and if 
 liberty were allowed in this case, the brokers might oppress the people exceedingly, 
 by detaining the pawn, unless the party would give them what they please to demand 
 for the time after failure of the payment. 
 
 It has been held, that no indictment luill lie on the statute of usury ; 
 for the method the act prescribes must be followed ; therefore the indict- 
 ment must be quashed. 
 
 11 Mod. 174, pi. 17, The Queen v. Dye. [Vide Rex v. Upton, 2 Stra. 816 ; 1 Bar- 
 nard. K. B. 97, S. C. ; Regina v. Smith, 2 Salk. 680.] || Since the case of The Queen 
 v. Dye, no indictment seems to have been prosecuted. Mr. Plowden thinks the 
 offence still indictable at common law, p. 220; see Comyn on Usury, 218. || 
 
 (K) Of the Pleadings in Cases of Usury. 
 In pleading a usurious contract by way of bar to an action, you must 
 set forth the whole matter especially, because it lay within your own 
 privity ;{a) but in an information on the statute for making such a con- 
 tract, it is sufficient to set forth the corrupt bargain generally, because 
 matters of this kind are supposed to be privily transacted, and such 
 information may be brought by a stranger. 
 
 Hawk. P. C. c. 82, g 24. (a) ||A general plea of usury is bad on special demurrer. 
 Hill v. Montagu, 2 Maule & S. 378 ; but the objection is cured by the plaintiff plead 
 iug over. Wright v. AVheeler, 1 Camp. 166. 
 
 Where the statute is not pleaded, the bond, though usurious, is good. 
 3 Salk. 391, pi. 7. 
 
 But it has been held, that usury cannot be pleaded to a scire facias on 
 a judgment. 
 
 2 Stra. 1043, Bush and others, assignees of Jones v. Gower. [Ca. temp. Hardw. 
 233, S. C. In such case the court relieve by staying the proceedings on the judgment, 
 and directing an issue to try whether the contract was usurious or not. Cooke v. Jones, 
 Cowp. 727.] { 1 Johns. Rep. 532, n., Wardell v. Eden ; 3 Johns. Rep. 139, Starr v. 
 Schuyler ; Ibid. 250, Hewitt v. Pitch. Vide 1 Bos. & Pul. 270, Edmouson v. Popkin ; 
 3 Johns. Rep. 142, King v. Shaw.} 
 
 A usurious contract was pleaded in bar of debt upon a bond, but it was 
 not said that the defendant was indebted to the plaintiff at the time of the 
 bond given, or that there was an agreement to lend money upon the usu- 
 rious contract ; and for that, judgment was given for the plaintiff. 
 
 12 Mod. 385, Crow v. Brown. 
 
 Likewise, after a verdict pro rege on an indictment for usury, it was 
 moved in arrest of judgment, that they had only laid a corrupt agreement,
 
 300 USURY. 
 
 (K) Of the Pleadings in Cases of Usury. 
 
 •without any loan or taking excessive interest in pursuance of it. And 
 judgment was arrested. 
 
 2 Stra. 816, The King v. Upton. 
 
 Upon usury pleaded to an action against the defendant, as endorser of a 
 note for 200?., the case was, that one Grace took the note upon advancing 
 197?., when the note had three months to run, and at the three months' 
 end took another note for 200?., upon advancing 8?. for other three months. 
 It was insisted, that this was not usury, heing a purchase out and out of 
 the notes : and both parties becoming bankrupts, and the commissioners 
 refusing to let these notes be proved, a petition was preferred to the Lord 
 Chancellor, who directed an issue upon them. And now Lee, C. J., 
 held, that this was usury within the meaning of the statute 12 Ann. c. 
 1G, which prohibits the taking more than 51. per cent., upon any contract 
 directly or indirectly: however, he left it to the jury upon the question, 
 Whether this was to be deemed a purchase, or a loan ? who found it to 
 be the latter, and the defendant had a verdict. 
 
 2 Stra. 1243, Massa v. Dauling. 
 
 In debt on bond defendant pleads quod corrupte agreatum fuit, that in- 
 terest should be paid for it above the rate of 6?. per cent. : plaintiff demurs : 
 and held good ; for that the plea shows not what interest, nor that the bond 
 was for the very money, but only by intendment (to wit) supra agrcamento 
 prcedicto the bond was given ; and says not expressly pro cadem pecunia. 
 Judgment pro qucr'. For that they would not easily avoid a bond, and the 
 corrupt agreement ought to be specially and particularly set forth, and the 
 quantum of interest, otherwise the plaintiff can never tell what to answer. 
 
 2 Show. 329, pi. 339, Henton v. Roffee. 
 
 In an error of a judgment in the Palace court, wherein the plaintiff de- 
 clared that the defendant became indebted to him by bond in the sum of 
 107?.; the defendant, without claiming over, pleaded that he was indebted 
 truly to the plaintiff in 921. 5s. 9c?., and that by way of corrupt agree- 
 ment for the forbearance of that sum for a year this bond was given, <§-c. 
 The plaintiff replied, that the bond was given pro vero et justo debito, and 
 traversed the corrupt agreement. And upon demurrer to this replication, 
 it was insisted that it was ill, because the plaintiff did not show how much 
 the just debt was. Sed non allocatur: for there was sufficient to induce 
 the traverse ; and if it had been alleged, you could not have traversed 
 the inducement, and the declaration sufficiently shows the debt. 
 
 G Mod. 303, Villars v. Cary. 
 
 In debt upon a bond, defendant pleaded the statute 12 Car. 2, of usury, 
 and said, that corrupite agreatum fuit, that he should pay more than Ql. per 
 cent. The plaintiff replied quod non corrupte agreatum fuit, and held a good 
 replication ; for if by mistake of the writer the money was made payable 
 without any corrupt agreement, it is not usurious within the statute. 
 
 Freem. 204, pi. 2SG, Booth v. Cook. 
 
 The plaintiff declares upon a promissory note for 30?. dated 4th Feb. 
 The defendant pleads that it was corruptly agreed between him and the 
 plaintiff, that he should pay unto the plaintiff 45s. for the loan of the said 
 sum of 30?. for three months, and then sets out the last statute against 
 usury, &c. It was excepted to this plea, that it was not averred that the 
 note was given subsequent to the late act against usury. To which it was
 
 USURY. 301 
 
 (K) Of the Pleadings in Cases of Usury. 
 
 answered and resolved by the court, that by the date of the note it ap- 
 pears to be so. 
 
 Fitzgibb. 130, Baynham v. Matthews. 
 
 In an indebitatus assumpsit for 101. and a computasset for 35?. in the 
 same declaration, the defendant pleads the statute of usury to the indebita- 
 tus, and avers that both the indebitatus and the computasset were for the 
 same cause of action. It was resolved, that the averment was naught ; for 
 the ground of the indebitatus is the debt, and the ground of the computasset 
 is the account ; and so it cannot be averred that there is the same cause 
 of both, especially as it is here, where one is for 10/. and the other for 
 35?. But Hale said, he should have pleaded the statute to the indebitatus, 
 and then that afterwards they came to an account for the same wares, &c. 
 
 Freem. 307, pi. 472, Taylor v. Herbert. 
 
 |3 Under the statute, a plea claiming a credit on a obligation, for the 
 usurious interest only, and a payment actually made, was holden good. 
 Fugate v. Ferguson, 1 Blaekf. 560. 
 
 A defence of usury is in the nature of a penal action, and much strict- 
 ness is required in pleading it : the plea should clearly show that the 
 defence comes within the statute. 
 
 Hancock v. Hodgson, 3 Scam. 333. g( 
 
 On demurrer in debt it appeared that 500?. was lent upon articles dated 
 the 8th of March, to be paid at such a time ; and in the mean time to pay 
 15?. half-yearly from November before. For cause of demurrer it was shown, 
 that it appeared by the declaration that the contract was usurious ; but it 
 was answered, that the defendant ought to have pleaded that corrupte 
 agreatum fuit, $c, and so given the plaintiff an opportunity to reply to it. 
 But upon reading the articles it ivas, Whereas money was lent, ftc, which 
 might be in November, or before ; and therefore judgment was given for 
 the plaintiff. 
 
 Sid. 285, pi. 21, Dande v. Currer. || See 5 Barn. & A. 959, and 1 Will. Saund. 295 
 a, note (f ).|| 
 
 Debt was brought on a bill to pay 11. the first of May, and on default 
 of payment to pay 3s. 4t?. for every month that it shall be in arrear after 
 Mav the first. Defendant made no averment that the agreement was to 
 pay the 3s. 4c?. for every month pro lucro interesse et diem d.indo solu- 
 tionis, but only with a sic the said sum exceeded 8?. per cent, whereas 
 he should have averred that the same did exceed 8?. upon the 100?., those 
 being the effectual words in the statute. Judgment pro quer . 
 
 Sir \V\ Jo. 409, pi. 2, Swailes v. Bateman. 
 
 In debt on a bond for 100?. dated the 12th July, &c, conditioned to pay 
 54?. at six months' end, the defendant pleaded the statute 21 Jac. of usury. 
 The plaintiff replied that he lent the defendant 50?. on the 12th July, &c, 
 for a year, and that the defendant was to pay for it 4?. for the forbearance 
 of one year, and that the plaintiff was not to demand it till the end of the 
 year; but that by mistake of the scrivener it was made but for half a year, 
 which he not knowing, accepted it. The defendant rejoined that the lending 
 was only for half a year, and that he was to pay 4?. for it for that time, 
 absque hoc, that on the said 12th of July it teas agreed that the loan should 
 be, or that he shoidd forbear it, for a zvhole year. Upon demurrer it was 
 objected that the plea was ill, because it was not pleaded, that corrupts 
 agreatum fuit, 3$c. And so the court, absente Bramston, held : and they 
 all held the allegation, against the words of the condition, to be good ; for 
 
 2C
 
 302 USURY. 
 
 (K) Of the Pleadings in Cases of Usury. 
 
 it is only showing the true agreement; but they all held the rejoinder 
 ill, because in the traverse the defendant had made the day (viz., 12th 
 July) parcel of the issue, when he should only have traversed the agree- 
 ment. But no judgment was given, because the parties agreed. 
 Cro. Car. 501, pi. 1, Nevison v. Whitley. 
 
 The defendant borrowed 200?. of the plaintiff; and it was agreed between 
 them that he should pay the 200?. at such a day, and 201. for the interest for' 
 one year, and that certain lands should be conveyed to the plaintiff, upon 
 condition that if the money ivas paid at the day, then the grant shall be 
 void. The defendant pleaded the statute of usury, and averred that the 
 land was tvorth V21. a year, and so he had double use. The plaintiff replied, 
 that upon the borrowing the 200?. it was agreed that the defendant should $ 
 have the profits of the land until breach of the condition, and traversed that 
 there was an agreement that he should have the profits and also 20?. for ! 
 interest. And upon a demurrer it was objected, that the replication was 
 ill, because the land being conveyed to the plaintiff, by consequence, the 
 profits are so too ; and therefore he cannot aver any verbal agreement against 
 the deed, that he had not the profits. But the plaintiff had judgment. 
 Roll. R. 41, pi. 8, Dodd v. Ellington. 
 
 Tanfield, Chief Baron, said, that upon an information betwixt Para- 
 more v. Robinson, in B. R. where several contracts upon usury being al- 
 leged, issue was joined, whether it were corrupte agreatum modo etformd 
 proitt, it was resolved by all the justices of England to be an ill issue ; 
 for he ought to have traversed the agreements, because they were several. 
 
 Cro. Ja. 544, pi. 4, Heath v. Dauntley. 
 
 In debt on bond the defendant pleaded the statute of usury made 6th 
 of Feb. 13 Eliz. (whereas the parliament began 2d Feb. 13 Eliz.) The 
 plaintiff replied, that it was not made for usury contra formam statuti 
 modo et forma prcedict. Though both parties agree that there is such a 
 statute, yet the court knowing that there is not, and that therefore it 
 cannot be contra formam statuti; the court held that no judgment could 
 be given for the plaintiff; and it being in the bar of the defendant, the 
 court held it clearly ill, and that there should be a repleader. 
 
 Cro. Eliz. 245, pi. 4, Love v. Wotton. 
 
 In case, §c, upon a special promise, the plaintiff set forth that he was 
 jyossessed of several pieces of hammered money, S?c, and that the defend- 
 ant in consideration the plaintiff ivould pay that money, being in number 
 and tale 300?., he promised to repay 300?. of new money, together with 
 4?. 10s. more for the interest of every 100?. for eight mo?iths, <J-c, and 
 then declares upon an indebitatus assumpsit for 313?. 10s. After verdict, 
 it was moved that the contract was usurious, it being to pay 41. 10s. for 
 the interest of 100?. for eight months : but per tot. cur. judgment was 
 given for the plaintiff. It was agreed, that if it had appeared by the 
 plaintiff's own declaration that the contract was usurious, and could not 
 be otherwise, judgment ought to be given against him: but that it does 
 not appear here that the contract must necessarily be usurious ; and the 
 jury having found the assumpsit, the court could not intend usury, but 
 the contrary. And Powell, J., observed, that the consideration of the 
 promise here is, viz., that the said plaintiff would pay to the said defend- 
 ant the said 300?. ; so that here is no loan, without which there can be 
 no usury ; and they would not intend a loan, unless the jury had found one. 
 
 Lutw. 271, 273, Yeor>an v. Barstow.
 
 USURY. 303 
 
 (K) Of the Pleadings in Cases of Usury. 
 
 The defendant, in consideration of 121., paid him by the plaintiff, gave 
 bond to pay the plaintiff 14/. if he lived six months after the date of the 
 bond. There was a plea and demurrer, and it was objected, that it ap- 
 pears by the very condition of this bond, that the contract was usurious, 
 it being to pay 147. for 12/. in six months after the date of the bond ; 
 though this might have made the bond void, in case the statute had been 
 pleaded, yet, that not being done, this objection comes too late. 
 
 3 Salk. 301, pi. 7, cites Lutw. Grange's case. 
 
 [If there is an agreement to pay legal interest, and a premium is paid 
 
 down over and above the interest, the agreement is usurious and void. 
 
 But the penalty under the statute of Anne is not incurred, if the premium 
 
 itself does not exceed l 1 } legal interest, nor till more than legal interest 
 
 is actually received ; so that an action may be brought for the penalty, 
 
 though more than a year has elapsed since the payment of the premium, 
 
 if it is not a year since that which exceeded legal interest has been paid. 
 
 Fisher v. Beasley, Doug. 235. {*} But the usury is complete as soon as the lender 
 receives any part of the growing interest. 1 East, 195, Wade v. Wilson.} 
 
 But, where one lends 1007. and takes 67. 5s. for the interest thereof 
 
 for three months, by way of advance at the time of lending, the penalty 
 
 is that instant incurred, and the action for it must be brought within a 
 
 year from that time. 
 
 Lloyd v. Williams, 3 Wils. 250 ; 2 Bl. R. 702, S. C. ; || Scurry v. Freeman, 2 Bos. 
 & Pul. 381. And the sum actually paid after the interest is deducted may be described 
 as the sum forborne, Ibid. : and see Lee, q. t. v. Cass, 1 Taunt. 511 ; Hutchinson v. 
 Piper, 4 Taunt. 810. || 
 
 || Where a premium is actually paid at the time of the contract, and 
 57. per cent, is agreed to be paid for interest, the offence of usury is com- 
 plete on receipt of any part of that interest. 
 Wade v. Wilson, 1 East, 195. || 
 
 {But if the contract is laid to be with A and B (who were partners) 
 jointly, and the proof is of a note given by A, alone, the variance is fatal. 
 
 1 DaJl. 210, Musgrove v. Gibbs.} 
 
 [If there be a corrupt agreement for the forbearance of money till one 
 or the other of two days at the option of the borrower, it must be so 
 pleaded according to the fact : for if it be pleaded as an absolute forbear- 
 ance till one of those days, the evidence will not support the plea. 
 
 Tate v. W T ellings, 3 Term R. 531. 
 
 In an action on a bill of exchange, if there is a plea of usurious agree- 
 ment, and that the bill was given in consequence thereof, the plaintiff 
 may traverse the usurious agreement, and conclude with a verification. 
 
 Smith v. Dovez', Doug. 428.] 
 
 1 A lent B 5007., and at the time of the loan it was agreed that the lat- 
 ter should give something more than legal interest as a compensation, but 
 no particular sum was specified. After the execution of the securities, 
 B gave A 50/. and paid interest at the rate of five per cent, on the 500/. 
 for five years, at the end of which time an action was brought against A, 
 for usury. And it was held that the action was not barred by lapse of 
 time ; for that the loan was substantially of no more than 450/. and con- 
 sequently the interest at the rate of five per cent, on the 500/. received 
 within the last year was usurious. 
 
 2 Bos. & Pul. 381, Scurry v. Freeman.}
 
 304 USURY. 
 
 (L) Of the Trial and Evidence in Cases of Usury. 
 
 PA defendant may plead to a scire facias, brought to revive a decree, 
 which was obtained against him by default, that the original contract was 
 usurious. 
 
 Lane v. Ellzey, 4 II. & M. 504.tf 
 
 (L) Of the Trial and Evidence in Cases of Usury. 
 
 By 13 Eliz. c. 8, § 3, justices of oyer and terminer, of assize and of peace, 
 in their circuits and sessions, and, mayors, sheriffs, and bailiffs of cities, have 
 power to hear and determine all offences committed against 37 H. 8, c. 9. 
 
 It has been held that the trial should be where the contract was, and 
 
 not where the bond was made. 
 
 Le. 148, pi. 206, Kinnersley v. Smart ; Cro. Eliz. 195, pi. 10, S. C. accordingly ; 
 for the bond is confessed, and the point is, whether it be made by usury, which was 
 alleged to be where the trial was. 
 
 [The defendant lent 2000?. to the plaintiff on mortgage, with a usurious 
 clause in the deed, that he should have 40?. as a pretended salary for re- 
 ceiving the rents. The deed was made and executed in London : the lands 
 lay in Middlesex : the account was settled in London, and the receipt for 
 the balance signed in London, but the draft given for it was upon a bank- 
 er in Middlesex. It was adjudged that the venue was properly laid in 
 London ; for not only the usurious taking, but also the contract, by which 
 the defendant was appointed receiver, were both in London. 
 
 Scott v. Brest, 2 Term R. 238,] ||But it is now settled, that the venue must be laid 
 where the usurious interest is received, and not where the usurious security is given. 
 Scurry v. Freeman, 2 Bos. & Pul. 381 ; Pearson v. M'Gowran, 3 Barn. & Ores. TOO. Ij 
 
 In an action tarn quam, <j-c, in the Exchequer, for taking more than Gl. 
 per cent., contra formam statuti. After verdict for the plaintiff it was 
 moved in arrest of judgment, that it lies not in this court for usury com- 
 mitted in London, though it would lie 2ipon the statute of 21 Jac. ; and in 
 truth the interest taken here was more than 10?. per cent. And by the 
 general conclusion of contra formam statuti, it shall be intended against 
 the form of that statute which allows the largest interest, and there are 
 four statutes against usury, one of Hen. 8, which allows 10?. per cent. ; 
 another of Queen Eliz., which allows 8?. per cent. ; a third of King James ; 
 and a fourth of Charles 2, which allows but 61. per cent. And by the 
 statute of Jac. 1, c. 4, there shall be no suit upon a penal statute, but as 
 therein directed, which does not extend to the court of Exchequer, unless 
 the offence is done in Middlesex. But per Hale, C. B. — The offence laid 
 in the information being for taking more than 61. per cent, shall be taken 
 to be grounded upon that statute that prohibits taking more than 61. per 
 cent., and that the law gives the suit in no court in particular, and therefore 
 it may well be prosecuted here; though if a particular court had been 
 named, as in 21 Jac, it would be otherwise. The court took time to advise. 
 
 Ilardr. 420, Anon. 
 
 An indictment was brought at the sessions before the justices of the 
 peace at Hick's Hall for usury contra formam statuti ; and judgment was 
 against the defendant, upon which a writ of error was brought in B. R., 
 and the judgment reversed; for the justices of the peace have no juris- 
 diction in this case. 
 
 2 Salk. G80, pi. 1, The Queen v. Smith ; 2 Ld. Raym. 1144, S. C. ; 3 Salk. 188, 
 The King v. Bakostraw. And in the case of the King v. Pexlcy, it was admitted by 
 the counsel that moved, that upon the statute of Queen Elizabeth, which prohibits the
 
 USURY. 305 
 
 (L) Of the Trial and Evidence in Cases of Usury. 
 
 taking above 101. per cent., the justices of peace at sessions have jurisdiction ; hut in- 
 sisted that they have not upon any of the later statutes. 2 Barnard. R. in B. K. 14:;, 
 The King v. Pexley. 
 
 If an information be brought against two, upon the statute of usury, 
 and one only be found guilty, no judgment can be given in this case. 
 Arg. to which the court agreed. 
 
 Lane, 19, Page's case. 
 
 In an information upon the statute of usury, the defendant pleads nil 
 debet. The jury find a usurious receipt, but do not find any loan. A 
 new venire facias should be awarded, and not a new nisi jwius. 
 
 Jenk. 283, pi. 13 ; 8 Rep. 65, Loveday's case. 
 
 Usury shall not be intended, unless the jury find it expressly. 
 
 Arg. Bridg. 212, Webb and Jucks v. Worfield, cites 10 Rep. 5G. {Vide 1 Wash. 
 368, M'Guire v. Warder.} 
 
 {The court has the exclusive power of deciding whether a written con- 
 tract be usurious. 
 
 3 Cran. 180, Levy v. Gadsby.} 
 
 With respect to the law concerning evidence in case of usury, it has 
 been ruled, that he who hath agreed to pay money upon a usurious con- 
 tract, shall not be admitted to give evidence upon an information against 
 the usurer, unless he have paid off the whole debt ; for by such means a 
 man might avoid his own act and deed. 
 
 o 
 
 Hawk. P. C. c. 82, \ 27. |3The payment and receipt of usurious interest is prima 
 facie evidence of a usurious contract. Dennis v. Crawford, 3 Harr. (N. J.) R. 325. cj 
 
 j3 Though, in general, paiol evidence cannot be given to vary the terms 
 of a written contract, yet it is the effect of the statutes against usury to 
 admit such evidence to vary or alter the terms of a written instrument, 
 and to expunge from it all that is usurious. 
 
 Fenwick v. Ratliff 's rep's., 6 Monr. 155 ; Grimes v. Shreeve, 6 Monr. 553 ; Lindsey 
 v. Sharp, 7 Monr. 753. $ 
 
 Also, an information for a usurious contract on a loan of money, cannot 
 be supported by evidence of such a contract on a bargain concerning 
 wares sold. 
 
 Hawk. P. C. c. 82, \ 28. 
 
 [But where in an action on the statute for the penalty, the declaration 
 stated a specific sum of money to have been lent (in which the usury con- 
 sisted,) but the evidence was, that the loan was part in money, and the 
 rest in goods of a known value, which the borrower agreed to take as 
 cash ; it was holden to be good evidence to support the declaration. 
 
 Bar be v. Parker, 1 H. Bl. 283. J 
 
 In a qui tarn on the statute of usury, the Chief Justice refused to let 
 the party to the contract be a witness to prove the repayment of the 
 money, because till that was proved he was no witness at all. 
 
 1 Stra. 033, Shank, qui tarn, v. Payne. 
 
 [It has been ruled, however, in later cases, and seems now to be 
 settled, that in such an action, the borrower of the money is a competent 
 witness to prove the whole case, as well the repayment of the money aa 
 the other facts. 
 
 Smith v. Prager, 7 Term R. 60; Abrahams v. Bunn, 4 Burr. 2251.] 
 
 1 And if the usury be specially pleaded, and the court reject the evi 
 Vol. X.— 39 2 c 2
 
 306 VERDICT. 
 
 Verdict. 
 
 dence offered on such special plea, it may notwithstanding be admitted 
 on the general issue. 
 3 Cran. 180, Levy v. Gadsby. } 
 
 || In an action against the defendant for penalties for discounting a bill 
 for usurious interest, the evidence to fix the defendant was, that a person 
 named Brown demanded payment, and commenced an action against the 
 acceptor in the defendant's name; and on receiving the amount of the 
 bill and costs of the proceedings, gave a receipt as agent for the defend- 
 ant ; it was held that this alone was good primd facie evidence of the 
 defendant having received the usurious interest. 
 Owen q. t. v. Barlow, 1 New R. 101. || 
 
 On a motion for leave to plead double, the court declared, that on non 
 assumpsit the defendant might give in evidence a usurious contract, be- 
 cause that makes it a void promise ; but in the case of a specialty, it 
 must be pleaded. And on the trial the defendant was admitted to that 
 evidence upon the general issue, and the plaintiff was nonsuit. 
 
 1 Stra. 498, Lord Barnard v. Saul; {3 Cran. 180, Levy v. Gadsby.} ||In an action 
 by the endorsee against the endorser of a bill, where the defendant proves usury in 
 the connection or negotiation of the bill, the plaintiff must prove himself a bond fide 
 holder, although he have received no notice to prove consideration. Wyatt v. Camp- 
 bell, Moo. & Malk. 80. || 
 
 p The limitation in favour of the usurer runs from the time the usurious 
 interest is paid. 
 
 Kodes's executors v. Bush, 5 Monr. 469. 
 
 But in Kentucky, it has been holden that taking in a note given upon a 
 usurious contract, and executing another in its stead to a creditor of the 
 usurer, gives the obligor an instantaneous right of action to recover the 
 usury, and the statute of limitation commences to run from that time. 
 
 Breckenridge v. Churchill, 3 J. J. Marsh. 16. £/ 
 
 VERDICT. 
 
 The word Verdict is derived from the two Latin words veritatis dictum. 
 
 P Verdict is the unanimous decision made by a jury, and reported to 
 the court, on the matters lawfully submitted to them in the course of the 
 trial of a cause. 
 Bouv. L. P. h. v. 
 
 The verdict recorded in court is the only proper verdict ; the written 
 paper returned by the jury as their verdict is not evidence nor part of 
 the record. 
 
 Dornick v. Reichenback, 10 S. & R. 8J.0 
 
 Costs and damages, which might very well have been treated of under 
 this title, have been treated of under the titles "Costs" and "Da- 
 masks." 

 
 VERDICT. 307 
 
 (A) Of a Verdict de bene Esse. 
 
 The remaining matter, -which appertains to this title, shall be ranged 
 in the following order. 
 
 (A) Of a Verdict de bene Esse. 
 
 (B) Of a Privy Verdict. 
 
 (C) Of a General Verdict. 
 
 (D) Of a Special Verdict. 
 
 (E) Of the Province of the Court where a Special Verdict is found. 
 
 (F) Of a Verdict in which the Jurors did not all agree. 
 
 (G) Of the Power of the Jury to depart from a General Verdict, after it is given in 
 
 open Court. 
 
 (II) In what Cases a Verdict is bad, on account of Misbehaviour in one or more of 
 the Jurors. 
 
 (I) In what Cases a Verdict is bad, on account of Misbehaviour in one of the 
 Parties. 
 
 (K) Of a Verdict upon an informal or immaterial Issue. 
 
 (L) Of a Verdict upon an Issue, part of which is insensible or insufficient. 
 
 (M) Of a Verdict which does not find all that is in Issue. 
 
 (N) Of a Verdict which finds a Thing that is not in Issue, 
 
 (0) Of a Verdict which varies from the Issue. 
 
 1. 7/i an Action of Assumpsit. 
 
 2. 7/i an Action upon tJie Case. 
 
 3. In an Action of Covenant. 
 
 4. In an Action of Debt. 
 
 5. In an Action of Ejectment. 
 
 6. In an Action of Replevin. 
 
 7. In an Action of Trespass. 
 
 8. In divers other Actions. 
 
 9. In a criminal Prosecution. 
 
 (P) Of a Verdict where the words Modo et Forma are used in the Traverse upon 
 which Issue is joined. 
 
 (Q) Of a Verdict which does not find the Matter in Issue with Certainty. 
 
 (Pi) Of a Verdict which does not find the Matter in Issue expressly. 
 
 (S) Of a Verdict which finds a Matter in a Foreign County. 
 
 (T) Of a Verdict which is contrary to a Matter of Record. 
 
 (U) Of a Verdict which is contrary to a Matter of Estoppel. 
 
 (W) Of a Verdict which is contrary to something that is confessed, or not denied 
 in the Pleadings. 
 
 (X) What omission in the Pleadings is cured by a Verdict. 
 
 (Y) What Mistake, or Omission, in the copy of the Issue delivered is cured by a 
 A r erdict. 
 
 (Z) Of divers Things, which did not fall properly under any of the foregoing Heads. 
 
 (A) Of a Verdict de bene Esse. 
 
 If the judge, before whom the cause is tried, have a doubt as to the 
 propriety of finding a verdict, he may direct the jury to find one de bene 
 esse ; which verdict, if the court shall be of opinion that a verdict ought 
 to have lecn found, shall stand. 
 
 Brown, Meth. 13.
 
 308 VERDICT. 
 
 (C) Of a General Verdict. 
 
 If an action of debt be brought against a husband and wife, and at the 
 trial of the cause the wife make default, and a protection be cast for her, 
 the judge may direct the jury to find a verdict de bene esse; which, if 
 the protection be disallowed by the court, shall stand. 
 Bro. Protect, pi. 3. 
 
 (B) Of a Privy Verdict, 
 
 A privy verdict is so called, because what is thereby found ought to 
 be kept secret until a verdict is given in open court. 
 
 1 Inst, 228. {Vide 1 Johns. Ca. 308 ; 3 Johns. Rep. 255.) j3Tho verdict must be 
 openly pronounced by the jury. Johnson v. Depuy, 1 Penning. lG5.gf 
 
 A jury may find differently by a verdict given in open court, from 
 what they found by a privy verdict. 
 
 1 Inst, 227 ; Moor, 33. 
 
 The jury, who by a privy verdict had found for the defendant, did by 
 a verdict given in open court find for the plaintiff. Both verdicts being 
 returned upon the postca, it was holden that the latter should stand: 
 and by the court, — The verdict given in open court is the binding verdict, 
 the other being only allowed for the ease of the jury. 
 
 Plowd. 21 1 ; Saunders v. Freeman, Dyer, 217. 
 
 It is in one book laid down, that a privy verdict cannot be given in a 
 case of life or member. 
 1 Inst. 227. 
 
 In two other books it is laid down, that a privy verdict cannot be 
 given in a case of felony ; because the jury are directed, and ought, in 
 such case, to look upon the prisoner when they give their verdict. 
 
 Raym. 193, Ilex v. Ladsingham ; 1 Ventr. 97. 
 
 But it is in these books said that wherever the persona! appearance 
 of the defendant is not necessary, the jury may give a privy verdict, and 
 that it is usual so to do. 
 
 Raym. 193, Rex v. Ladsingham ; 1 Ventr. 97. 
 
 In an information for a misdemeanor, the jury had given a privy 
 verdict. The verdict afterwards given in open court was upon this 
 account objected to ; but it was holden to be good. 
 
 Raym. 193, Rex v. Ladsingham ; 1 Ventr. 97. 
 
 [If the judge hath adjourned the court to his own lodgings, and there 
 receives the verdict, it is a public and not a privy verdict. 
 3 Bl. Com. 377.] 
 
 (C) Of a General Verdict. 
 
 A general verdict is so called, because the whole matter in issue is 
 thereby found generally. 
 
 i3 The verdict is general, when it finds the facts and the law, as, for 
 instance, that a certain sale took place; it is special, when it finds cer- 
 tain facts, leaving it to the court to decide whether those facts constitute 
 a sale. 
 
 Chidoteaivs Heirs v. Dominguoz, 7 Mart. R. 521. tf 
 
 If the venue in an action of assault and battery be laid in the parish of 
 A, tiie jury shall not be received to say, that the defendant is not guilty in
 
 VERDICT. 309 
 
 (D) Of a Special Verdict. 
 
 the parish of A ; for the jury must either find the whole matter in issue 
 specially, or they must find generally that the defendant is or is not guilty. 
 
 2 Roll. Abr. 694, U, pi. 1. 
 
 The jury may in any case, if they will take upon themselves the 
 knowledge of the law, find a general verdict ; but it is in some cases dan- 
 gerous for them so to do ; for if they mistake the law, they run themselves 
 into the danger of an attaint.(a) It is therefore the safer way, for the 
 jury to find a special verdict in a case which appears to them doubtful. 
 
 1 Inst. 228; 4 Rep. 54. \\(a) The practice of setting aside verdicts upon motion, 
 and of granting new trials, superseded the use of attaints ; there are very few in- 
 stances of an attaint in the books later than the sixteenth century. Cro. Eliz. 309 ; 
 3 Bl. Com. 405 ; and the proceeding is now abolished by 6 G. 4, c. 50, I 00. || 
 
 3 When there is a general verdict, and some of the counts are bad, and 
 the court below enters judgment on the counts supposed to be good, the 
 judgment will be reversed. 
 
 Ilarker v. Orr, 10 Watts, 245. 
 
 The rule, that a judgment cannot be entered upon a general verdict in 
 favour of the plaintiff, when his declaration contains two or more counts, 
 one of which is bad, does not apply to the case of a general verdict in 
 favour of the defendant, when some of his pleas are bad. 
 
 Wilson v. Gray, 8 Watts, 37. 
 
 A jury are not bound to find any other than a general verdict, although 
 the judge directs them to find specially as to a particular fact, on which 
 a legal question may be raised. 
 
 Devizes, Mayor &c. v. Clark, 3 Ad. & Ell. 506.D 
 
 (D) Of a Special Verdict. 
 
 A special verdict is so called, because some matter of fact is thereby 
 found specially. 
 
 The design of a special verdict is to submit some questions of law, 
 which arise upon the matter of fact found specially, to the consideration 
 of the court. 
 
 3 A special verdict must contain fact, and not evidence of facts. 
 
 Brown v, Ralston, 4 Rand. 504. 
 
 Special verdicts leave no room for presumption. 
 Boiling v. The Mayor, &c, 3 Rand. 536.£/ 
 
 It seems to have been always holden, that if the general issue be 
 pleaded, the jury may find a special verdict. 
 Bro. Verd. 56, pi. 45, pi. 56, pi. 85. 
 
 It is laid down in two books, that if an issue be joined upon a special 
 plea, the jury cannot find a special verdict. 
 Bro. Verd. pi. 45 ; Dyer, 117. 
 
 But it is laid down in another book, that although there be cases to 
 the contrary, it is settled, that the jury may find a special verdict as to 
 the matter in issue upon a special plea ; for that a question of law may 
 as well arise in such case, as where the general issue is pleaded. 
 
 1 Inst. 226, 227. 
 
 And in another book it is said to have been holden, that in all pleas 
 of the crown, and in every civil action, whether it be real, personal, or
 
 310 VERDICT. 
 
 (D) Of a Special Verdict. 
 
 mixed, in which an issue is joined betwixt the king and a party, or be- 
 twixt party and party, the jury may find a special verdict. 
 9 Rep. 12, Bowman's case. 
 
 It is said, that the court cannot refuse to receive a special verdict, pro- 
 vided the matter specially found be pertinent to the issue : for that the 
 jury have a right to find such verdict in every case which appears to 
 them doubtful. 
 
 1 Inst. 228 ; 9 Rep. 12. 
 
 But, although the jury may find a special verdict in every case which 
 appears to them doubtful, it is not necessary, even for their own safety, 
 to do this in every such case ; for if the judge before whom the cause is 
 tried take upon himself to determine the question of law, concerning 
 which the jury doubt, and direct them to find a general verdict, they may, 
 without danger to themselves, find such verdict. 
 
 1 Inst. 228 ; Vaugh. 145 ; Ld. Raym. 1494 ; Fost. 25G, 257. 
 
 If, upon the trial of a person indicted for murder, it appear that at 
 the time of the homicide he was insane, the jury may, upon being in- 
 formed by the judge that an insane person cannot be guilty of murder, it 
 being a maxim of law that crimen non contrahitur nisi voluntas sit no- 
 cendi, find a general verdict of not guilty. 
 
 2 II. II. P. C. 303 ; Fost, 279. |jBy 39 & 40 G. 3, c. 94, where it shall be in evi- 
 dence that a person charged with treason, murder, or felony, was insane at the com- 
 mission of the offence, the jury shall be required to find that fact specially, and to 
 declare whether such person was acquitted on account of insanity.|| 
 
 If, upon the trial of a person indicted for murder, the judge be, upon 
 all the circumstances of the case, of opinion that the homicide is justifi- 
 able, the jury may find a general verdict of not guilty. 
 
 2 II. II. P. C. 303 ; 1 Hawk. 70 ; Fost. 279. 
 
 If, upon the trial of a person indicted for murder, the judge be, upon 
 all the circumstances of the case, of opinion that the homicide amounts 
 to manslaughter, the jury may find a verdict of manslaughter. 
 
 It is said, that if the jury are dissatisfied with the determination of the 
 judge, as to the question of law concerning which they doubt, they are 
 not obliged to follow his direction, but may find a special verdict. But it 
 is likewise said, that the jury will, if they are well advised, find a general 
 verdict, in every case wherein the judge determines the question of law 
 concerning which they doubt, and directs them to find such verdict. 
 
 Ld. Raym. 1494 ; Fost. 250, 257. 
 
 Nor are they in such case, although the judge should be mistaken, lia- 
 ble to an attaint ; for as it is only said, that the jury are liable to an at- 
 taint, where they will take upon themselves the knowledge of the law, and 
 mistake the law, it follows that they are not liable thereto when they find 
 according to the direction of the judge. 
 
 1 Inst, 227 ; 4 Rep. 54. 
 
 The minutes for a special verdict arc to be approved of by the judge ; it 
 being his province to take care that the question of law be fairly stated, 
 and they ought to be delivered to the jury before they find the verdict. 
 
 2 Lill. Abr. 791, F. 
 
 If this be not done, the jury may find a general verdict without incur- 
 ring the danger of an attaint. 
 2 Lill. Abr. 790, II.
 
 VERDICT. 311 
 
 (D) Of a Special Verdict. 
 
 The minutes for a special verdict intended to be found ought to be 
 signed by one of the counsel for each party. 
 
 But, if all the counsel for one of the parties refuse to sign the minutes 
 for a special verdict, the judge may direct the jury to find one from the 
 minutes as signed by one of the counsel for the other party. 
 
 2 Lill. Abr. 793, (G). 
 
 It is the duty of the party, at whose instance a special verdict was found, 
 to draw it up from the minutes : but either of the parties may draw it 
 up ; and if one of them do this, and the other neglect to pay his share of 
 the expense, the court will not hear counsel for him when the verdict is 
 set down for argument. 
 
 2 Lill. Abr. 790, (E). 
 
 If a special verdict be not drawn up according to the minutes, as 
 signed and approved of at the trial of the cause, the court may order it 
 to be amended from the minutes. 
 2 Lill. Abr. 790, (D) ; pMorse v. Chase, 4 Watts, 259.tf 
 
 If the question of law be not properly stated in a special verdict, and 
 the verdict cannot be amended from the minutes, as signed and approved 
 of at the trial of the cause, the court may order it to be amended from 
 the notes of the judge before whom the cause was tried. 
 
 2 Lill. Abr. 790, (D). 
 
 It is in one book laid down generally, that the court may order a 
 special verdict to be amended, from the notes of the judge, in such man- 
 ner a3 to bring the question of law properly before the court. 
 
 2 Lill. Abr. 797, (II). 
 
 It is in another book laid down, that the court may order a special 
 verdict to be amended as to a matter of fact, from the notes of the judge 
 before whom the cause was tried. 
 
 2 Roll. Abr. 701, pi. 16. 
 
 In an action of trover it was found by a special verdict, that the de- 
 fendant, who was a considerable farmer, did annually buy and sell for gain, 
 divers large quantities of potatoes ; and the question submitted to the court 
 was, whether he was a trader within the meaning of any statute of bank- 
 ruptcy ? The court inclined to be of opinion that he was ; but a doubt 
 arose, whether it was not necessary for the jury to have found the quantity 
 of potatoes which the defendant did annually buy and sell, that the court 
 might be better able to judge how far he sought his living by buying and 
 selling. Pratt, C. J., did not think it necessary that this quantity should 
 be found, it being in his opinion sufficient, if the defendant did in any 
 degree seek his living by buying and selling. Eyre, J., and Fortescue, 
 J., being of a different opinion, the cause was adjourned. A motion was 
 afterwards made, upon an affidavit of the quantity, which was, at the 
 trial of the cause, proved to have been annually bought and sold, that a 
 venire facias de novo might be awarded. This was not awarded : but 
 the special verdict was ordered to be amended as to this. The reporter 
 adds, that it was so amended ; and that at another day judgment was 
 given for the plaintiff. 
 
 Stra. 513, 514, Mayo v. Archer. ||As to the amending of special verdicts, vide supra, 
 Vol. i., tit. Amendment]]
 
 312 VERDICT. 
 
 (D) Of a Special Verdict. 
 
 It seems, however, to be the better opinion, that the court cannot 
 order a special verdict to be amended as to a matter of fact. 
 || See Sponcer v. Goter, 1 II. Black. 78;|| {but see 1 Johns. Rep. 149.} 
 It is in one case laid down, that if the proper facts are not found by 
 the special verdict, the court will not hear the question of law argued ; 
 because no judgmeut can be given upon the verdict : but will award a 
 venire facias de novo^ 1 } that the proper facts may be found. 
 
 2 Lill. Abr. 790, (D), 792, (B). J 1 } 1 Hen. & Mun. 213, Robinson's Adm'r v. 
 Brock ; Ibid. 387, Pegram v. Isabel! { 
 
 In another case it is laid down, that if a proper fact be omitted in the 
 minutes for a special verdict, the court cannot order the verdict to be 
 amended as to this, although the counsel for both parties consent thereto ; 
 for that this would amount to making a new verdict as to that fact by 
 the court and counsel. It is added, that the court will in such a case 
 award a venire facias de novo. 
 
 2 Lill. Abr. 791, (B) ; {1 Johns. Rep. 150, contra.} 
 
 In another case it is laid down, that a special verdict, in which the 
 jury have omitted to find a proper fact is not good; for that the court 
 will never determine the question of law, unless every proper fact be 
 found by the jury. 
 Gilb. Eq. R. 255, 256, Lodge v. Jennings. 
 
 The opinion, that the court has no power to amend a special verdict 
 
 as to a matter of fact, is moreover confirmed by divers cases ;(a) in which 
 
 it is laid down, not only that every proper fact must be found by the 
 
 jury, but also that it must be found expressly ; it not being sufficient for 
 
 the jury to find I 2 } evidence or circumstances, from which the court may 
 
 fairly infer a fact. (b) 
 
 ||(a) It is laid down in a valuable work, that if a special verdict is defective, so that 
 the courts are not able to give judgment thereon, they will amend it by notes of coun- 
 sel, or even by an affidavit of what passed on the trial. See Tidd's Prac. 713, 897, 
 (9th edit. ;) and it seems that special verdicts may be amended by the judge's or coun- 
 sel's notes in civil cases. Lord Raym. 141, 335 ; Manners v. Postan, 3 Bos. & Pul. 
 343 ; Salk. 47 ; Bull. N. P. 320, 2 Lord Raym. 1036. If misstated, the parties will 
 have leave to amend it. 1 Burr. 617. (b) On this ground a venire de novo was awarded 
 in Bird v. Appleton, 1 East, 111 ; and see 3 Taunt. 209. But it is sufficient for the 
 jury to find such facts from which the court may draw a conclusion of law, or a mixed 
 conclusion of law and fact, without drawing such conclusion themselves. 8 Price, 
 256.|| {?j 1 Hen. & Mun. 235, Henderson v. Aliens.} 
 
 The matter in issue was, whether J S had resigned a benefice to a bishop. 
 The jury found an instrument, under the seal of the bishop, upon which 
 there was an endorsement that J S did resign the benefice to him, and that 
 he accepted the resignation. The verdict was holden to be bad; because 
 it did not find expressly, that J S had resigned the benefice. 
 
 Noy, 147, Smith v. Foavcs. 
 
 An estate having been granted by copy of court-roll to three persons 
 for their lives, the matter in issue was, whether a heriot was, by the cus- 
 tom of the manor, due upon the death of one of them. The jury found, 
 that the custom of the manor did not warrant the granting of an estate 
 for three lives. The verdict was holden to be bad ; because it only 
 found argunicntativcly, that a heriot ought not in the present case to be 
 paid; whereas the jury ought to find every fact expressly. 
 
 2 Roll. Abr. 693, (S), pi. 1.
 
 VERDICT. 313 
 
 (E) The Province of the Court on a Special Verdict. 
 
 If the matter in issue be, whether an estate may by the custom of a 
 manor be granted by copy of court-roll for two lives, and the jury find, 
 that an estate may by the custom of the manor be granted for three lives, 
 the verdict is bad ; because it is only argumentative to say, that, inasmuch 
 as a greater estate may by the custom of the manor be granted, a less 
 one may. 
 2 Roll. Abr. 693, (S), pi. 2. 
 
 If the consequence of the verdict upon an indictment may be corporal 
 punishment, every proper fact must be found expressly ; it not being suf- 
 ficient for the jury to find either evidence or circumstances, from which 
 the court may fairly infer a fact. 
 
 12 Mod. 628, Rex v. Plummer. ||In Ld. Raym. 141, Ld. Holt said, a special ver- 
 dict could not be amended by the notes in a capital case as in civil cases ; and see 
 Salk. 47 : sed vide Stra. 844, and case of Sarah Hazel, MS. 24 G. 3 ; 2 Hawk. P. C. 
 622, (8th ed.)|| 
 
 j3 If, in a special verdict, the jury find the issue, all they find beyond 
 
 is surplusage. 
 
 United States v. Bright, Bright's Trial, 199. See Cavene v. M'Michael, 8 S. & R. 
 441 ; Fisher v. Kean, 1 Watts, 259. 
 
 If instead of finding facts, the special verdict sets out the evidence, a 
 new trial will be granted. 
 Clark v. Halberstadt, 1 Miles, 26. 
 
 The court decide the law upon the facts stated upon a special verdict ; 
 but if instead of a general conclusion, the jury express doubt only as to 
 particular points, the court will decide the law only upon those points. 
 
 Peterson v. United States, 2 Wash. C. C. R. 36. 
 
 When a special verdict is defective, it may be amended from the notes 
 of counsel or on affidavit. 
 Morse v. Chase, 4 Watts, 259. 
 
 On a special verdict, the court are confined to the facts found. 
 Crousillat v. Ball, 3 Yeates, 373 ; Boiling v. The Mayor, &c, 3 Rand. 563. 
 
 A verdict may find generally, for either party, dependant upon a sin- 
 gle point of law presented to the court, although such verdict is not a 
 special verdict. 
 
 M'Michan v. Amos, 4 Rand. 184. 
 
 A special verdict is defective, which does not find whether the aban- 
 donment was in reasonable time. 
 Chesapeake Ins. Co. v. Stark, 6 Cranch, 268. 
 
 Where the essential facts are not directly found by the jury in a special 
 verdict, although there is sufficient evidence to establish them, the Supreme 
 Court will not, on error, render a judgment on such imperfect finding. 
 
 Barnes v. AVilliams, 11 Wheat. 415. $ 
 
 (E) Of the Province of the Court where a Special Verdict is found. 
 
 If the jury, after finding a fact specially, take upon themselves to draw 
 a conclusion not warranted by law, the court ought not in giving judg- 
 ment to pay any regard to the conclusion of the jury ; because they ought 
 not to have drawn such conclusion. 
 
 11 Rep. 10, Priddle's case. 
 
 If the issue in an assize be, whether there is a seisin, and the jury, after 
 Vol. X.— 40 2D
 
 314 VERDICT. 
 
 (E) The Province of the Court on a Special Verdict. 
 
 finding some fact specially, conclude with saying that this amounts to a 
 seisin, the court without paying any regard to the conclusion of the jury, 
 will judge whether the fact found do amount to a seisin. 
 Bro. Verd. pi. 41. 
 
 In an action against an executor, the issue was whether he had assets 
 in his hands. The jury found that the defendant's testator, in a lease 
 granted by him, had reserved a rent to himself, his heirs and assigns, and 
 that the defendant had received the rent from the time of his testator's 
 death ; and they concluded with saying that this is assets. The court 
 held the conclusion to be void ; because it appeared from the fact found, 
 that the rent ran with the reversion, and consequently that, as it did not 
 belong to the executor, but to the heir, it was not assets. 
 
 Dyer, 362 ; Anon., Hob. 53. 
 
 If the jury find a deed specially, they ought to find it in hoec verba, 
 and not to find what they judge to be the substance of the deed, that the 
 court may have an opportunity of inspecting the deed, in order to put a 
 construction thereupon : but if the deed be lost, it is the duty of the jury 
 to find the substance thereof, in case this be proved. 
 
 Vaugh. 77, Rowe v. Huntingdon; ||Cro. Eliz. 515 ; 2 "W. Saund. 77 c. ; Buzzard v. 
 Capel, 8 Barn. & C. 141. || 
 
 The court will never entertain a doubt, concerning any thing that is 
 not submitted to their consideration by a special verdict ; but will, on the 
 contrary, intend every thing which can be fairly intended, in order to 
 support the verdict. 
 
 5 Rep. 97, Goodull's case ; ||0. Bridgman's R. 88, 474, 558. || 
 
 The question submitted to the court by a special verdict was, whether 
 the resignation of a donative to the donor be good ; but it was not found 
 that the donor had accepted the resignation. It was holden, that the 
 acceptance of the resignation should be intended : and by the court, — 
 The question submitted to our consideration is, whether the resignation 
 of a donative to the donor be good ; and we will never entertain a doubt 
 as to any thing whereof the jury have not doubted. 
 
 Cro. Ja. 03 ; Fairchild v. Gayre, Hob. 261. {Vide 1 Hen. & Mun. 387, Pegram v. 
 Isabell.} 
 
 In an action of ejectione firmse the jury found, that the premises in ques- 
 tion were granted by letters patent of King Henry the Eighth, and they 
 concluded with saying, that if the court shall be of opinion that the letters 
 patent are good, then they find for the defendant ; but if the court shall be 
 of opinion that the letters patent are void, then they find for the plaintiff. 
 Upon arguing the special verdict it was insisted that, as no title to the 
 premises is found in the plaintiff, he is not entitled to judgment, even if 
 the court should be of opinion that the letters patent are void. Judgment 
 was given for the plaintiff: and by the court, — As the question submitted 
 to our consideration is, whether the letters patent are void, and we are of 
 opinion that they are void, we will, as nothing is found to the contrary, in- 
 tend, that the plaintiff has in all other respects a good title to the premises. 
 
 Cro. Car. 22, Castle v. Hobbs. 
 
 || If the verdict, whether general or special, is imperfect, by reason of 
 
 some uncertainty or ambiguity, or by finding less than the whole matter put 
 
 in issue, or by not assessing damages, the court will award a venire de novo. 
 
 Ld. llayni. 1521, 1584; Stra. 887, 1124; 2 Kcny. 388 ; 5 Burr. 2609; 7 Term R. 
 
 52 ; 1 East, 111 ; 2 Bing. 202; 4 Barn. & C. 09 ; Dow. & Ry. 08. ||
 
 VERDICT. 315 
 
 (G) Of the Power of a Jury to depart from a Verdict. 
 
 "Where a special verdict is imperfect, by reason of ambiguity or un- 
 certainty, so that the court cannot say for which party the judgment 
 ought to be given, a venire de novo will not be awarded. 
 
 Bellows v. The Ilallowell and Augusta Bank, 2 Mason, 31.0 
 
 (F) Of a Verdict in which the Jurors did not all agree. 
 
 In very ancient times, it was not necessary in a civil cause for all the 
 jurors to agree in a verdict. But it has been for many years settled, that 
 if in a civil cause the jurors do not all agree in a verdict, the verdict is 
 bad. 
 
 2 II. II. P. C. 297. || As to the unanimity of juries, see Barrington on Stat. 20. || 
 
 In an assize, the justices took a verdict of eleven of the jurors, the twelfth 
 not having agreed therein. The verdict was, upon great deliberation, 
 holden to be bad ; and a venire facias de novo was awarded : and by the 
 court, — The justices ought not to have taken the verdict, but to have car- 
 ried the jurors with them in a cart, until they all agreed in a verdict. 
 
 41 Assize, 11 ; Bro. Verd. pi. 49. 
 
 The twelfth juror, who, instead of agreeing with his fellows in the ver- 
 dict, said he would rather die in prison than agree therein, was in the case 
 last cited fined and imprisoned : but he was afterwards discharged ; and 
 it was said, that no man ought to be punished for not agreeing in a ver- 
 dict, which he does not think a right one. 
 
 41 Assize, 11 ; 2 H. H. P. C. 297. || See Fortescue de Leg. by Amos, p. 99, and 
 the books there cited. || 
 
 The jurors are not obliged to agree in the reason for finding a verdict 
 as it is found ; and if a reason be given by one or more of them, upon a 
 question being asked by the judge, for finding it as it is found, this is not 
 to be considered or recorded as part of the verdict. 
 
 Vaugh. 150, Bushel's case. 
 
 P A verdict will not be set aside because one of the jurors dissented from 
 the verdict, and afterwards agreed with the remainder, upon condition that 
 no verdict should be rendered unless the court refused to discharge them. 
 
 Harrison v. Rowan, 4 Wash. C. C. R. 32. 
 
 A verdict will not be set aside on the oath of one of the jurors, that he 
 did not assent. 
 
 Clark v. Reade, 2 South. 480. 
 
 "When the jury agree upon a verdict during the adjournment of the 
 court, and separate by permission, if, on coming into court, one of the 
 jury dissents, judgment cannot be entered on the verdict. 
 
 Lawrence v. Stearns, 11 Pick. 501. 
 
 When the jury seal a verdict in their room, and afterwards come into 
 court, and vary its terms, the latter is the true verdict. 
 Rousseau v. Daysson, 8 Mart. N. S. 273. £/ 
 
 (G) Of the Power of the Jury to depart from a General Verdict after it is given in open 
 
 Court. 
 
 If a jury, who, by mistake, or from partiality, have given an improper 
 verdict, do of themselves give a diiferent verdict before the improper ver- 
 dict is recorded ; or, if, at the recommendation, or by the leave, of the 
 judge, they go together again before the improper verdict is recorded, and
 
 316 VERDICT. 
 
 (II) Where a Verdict is bad for Misbehaviour of Jurors. 
 
 afterwards give a different verdict, the verdict which is last given shall 
 stand. 
 
 1 Inst. 227 ; Plow. 212 ; 2 H. II. P. C. 299, 300. j3 See ante, Amendment and Jeo- 
 fail, (E,) and Assumpsit, (F). 
 
 In a writ of conspiracy against two, the jury gave a verdict of guilty as 
 to one, and of not guilty as to the other. At the recommendation of the 
 judge they went together again, to reconsider their verdict, and after- 
 wards gave a verdict of guilty as to both. 
 
 Bro. Jur. pi. 7. 
 
 The title to three acres of land being in issue, the jury as to one of the 
 acres gave a verdict for the plaintiff, and as to another for the defendant ; 
 but as to the third said they were not agreed. By leave of the court 
 they went together again, to consider of a verdict as to the third acre. 
 Afterwards, without taking any notice of the verdict already given, they 
 gave a verdict as to all the three acres for the plaintiff. The latter ver- 
 dict was, upon great deliberation, holden to be good. 
 
 Dyer, 204, 205. 
 
 It is said, that, after a jury have given a verdict of not guilty in an in- 
 dictment for felony, the judge may, if the verdict be in his opinion con- 
 trary to clear and full evidence, send them out again to reconsider their 
 verdict : but it is likewise said, that, if the jury will stand to their ver- 
 dict, the judge is bound to receive it. It is added, that the king may in 
 such a case bring an action of attaint. 
 
 2 II. II. P. C. 310. 
 
 || Where the jury on the trial of an information for a libel were not all 
 present when the verdict of guilty was delivered, and it was therefore un- 
 certain whether they all heard the verdict pronounced by the foreman, 
 the court, on these facts being stated by the judge who tried the cause, 
 with the consent of the defendant, ordered a new trial ; but they refused 
 to hear a statement of one of the jurymen on affidavit. 
 
 Rex v. Wooller, 2 Stark. R. 1 11. Jj 
 
 A verdict may be varied or changed at any time before it is recorded, 
 
 and a sealed or privy verdict may be changed in open court. 
 
 Edelen v. Thompson, 2 liar. & Gill, 31 ; Adkius v. Blake's Administrators, 2 J.J. 
 Marsh. 42. £/ 
 
 (II) In what Cases a Verdict is bad on account of Misbehaviour in one or more of 
 
 the Jurors. 
 
 If the jurors, when they go from the bar to consider of a verdict, do 
 without the leave of the court take with them any writing under seal, 
 which has been given in evidence, they are guilty of a misbehaviour ; 
 but the verdict is good. 
 
 Bro. Enquest, pi. 49 ; 2 Roll. Abr. 714, pi. 0, pi. 7. 
 
 It is in divers books laid down generally, that if the jurors, when they 
 go from the bar to consider of a verdict, do, without the leave of the 
 court, or the consent of both parties, take with them any writing not 
 under seal, which has been given in evidence, they are guilty of a mis- 
 behaviour; but that the verdict is good. 
 
 1 Inst. 227 ; Cro. Eliz. 411; 12 Mod. 520. 
 
 The jurors, when they went from the bar to consider of a verdict, did, 
 without the leave of the court, or the consent of both parties, take with
 
 VERDICT. 317 
 
 (II) Where a Verdict is bad for Misbehaviour of Jurors, 
 them an act of common council which had been given in evidence. The 
 verdict was holden to be good ; and by Holt, Ch. J.— It was very impro- 
 per behaviour in the jury : but as the act of common council was evi- 
 dence for both parties, the verdict ought to stand. In the case of Lady 
 Joy, a verdict was set aside, because the jury did, without the leave of the 
 court or the consent of both parties, take with them a map which had been 
 given in evidence : but the verdict was, in that case, set aside, because 
 the map was evidence for only one party, which is not the present case. 
 Ld. Raym. 148, Rex v. Burdett. 
 
 After the jurors were gone from the bar to consider of a verdict, one of 
 the witnesses, who had been examined on the part of the defendant, was 
 sent for and re-examined by them ; and they afterwards gave a verdict 
 for the defendant. Complaint being made of this to the judge, the jurors 
 confessed that they had re-examined the witness ; but they said, that the 
 evidence upon the re-examination was in effect the same as he had given 
 in court. The verdict was holden to be bad ; and a venire facias de 
 novo was awarded. 
 
 Cro. Eliz. 189, Metcalfe v. Dean. 
 
 In another case, the case of Metcalf and Dean is said to be law ; be- 
 cause the evidence improperly received by the jurors was parol evidence ; 
 for that, as the witness might vary in his evidence upon the re-examina- 
 tion from what he had given in court, it would be of the most dangerous 
 consequence to suffer such verdict to stand : but it is in this case^ said, 
 that there is not so much danger in letting a verdict stand, where the jurors 
 have improperly taken with them written evidence which has been given 
 in court ; because written evidence remains always the same. 
 Cro. Eliz. 411, Yicary v. Farthing. 
 
 The plaintiff in an assize delivered a writing relative to the matter in 
 issue to a person returned upon the panel. This person being sworn upon 
 the jury, he, after the jurors were withdrawn to consider of a verdict, 
 showed the writing to his fellows. A verdict being given for the plaintiff, 
 the court was moved for judgment. For the plaintiff it was said, that as 
 the writing was to the same effect as some of the evidence given in court, 
 the behaviour of the plaintiff was not so bad, as if evidence to the same 
 effect had not been given in court. It was holden that he should not hare 
 judgment ; and by Gascoigne and Hulls : after the jurors ay ere sworn they 
 ought not to see or to carry with them any writing, except it has been 
 given in evidence, and was delivered to them by order of the court. 
 11 Hen. 4, 17 b, 18 a. 
 
 After the jurors were gone from the bar to consider of a verdict, one of 
 them went from his fellows. He soon after returned with a copy of a 
 court-roll in his hand, and told them that the merits, with which he was 
 perfectly well acquainted, were with the plaintiff. Hereupon the other 
 jurors, before of a different opinion, were prevailed upon by him to give 
 a verdict for the plaintiff. The verdict was afterwards set aside. 
 
 1 Sid. 235, Goodman v. Coddrington. (3 If, after a cause is submitted to them, and 
 before the jury have agreed on a verdict, they separate and afterwards return a verdict, 
 it will be set aside. Lester v. Stanley, 3 Day's Cas. 237 ; Howard v. Cobb, 3 Day's 
 Cas. 310.J/ 
 
 Upon a writ of error it was assigned for error, that one of the jurors did, 
 after they were gone from the bar to consider of a verdict, show to his fel- 
 
 2d2
 
 318 VERDICT. 
 
 (II) Where a Verdict is bad for Misbehaviour of Jurors. 
 
 lows a writing in favour of the plaintiff that had not been given in evi- 
 dence, by reason of which they found a verdict for the plaintiff. It was 
 holden, that this was not error : and by the court, — as it does not appear 
 that the writing was delivered to the juror by the plaintiff, it shall be in- 
 tended that it was in his own possession ; and if so, as he might have 
 given the writing in evidence, it was lawful for him to show it to his fel- 
 lows. Another reason is given why this was holden not to be error; 
 namely, that the fact did not appear upon the postea ; and this seems to 
 be the better reason : for the other, that, as the writing might have been 
 given in evidence by the juror, it was lawful for him to show it to his fel- 
 lows, does not seem to be conclusive. 
 
 Cro. Eliz. 616, Graves v. Short; j|Bull. N. F. 308. || 3 Though some of the jurors 
 separated from their fellows, in a civil case, the verdict will not be set aside for this 
 cause. Oram v. Fisher, 7 Halst. 153. £/ 
 
 It is said in one book, that the jurors are not obliged to found their 
 verdict entirely upon the evidence given in court ; for that it may be in 
 part founded upon their own personal knowledge. But no case is cited 
 in support of this doctrine, and the contrary may be inferred from other 
 books. 
 
 Vaugh. 147, Bushel's case. 
 
 It is in one book said, that if a witness named in a deed be returned 
 of the jury, it is a good cause of challenge. 
 1 Inst, 151. 
 
 In another book it is said, that one of the jurors, after having heard all the 
 other evidence, was, at the prayer of the defendant's counsel, sworn, and 
 gave evidence in court ; from whence it may be inferred, that he could not 
 have given this evidence to his fellows after they were gone from the bar. 
 
 1 Sid. 133, Fitzjames v. Moys. 
 
 In another book it is said, that if a person returned to serve upon a 
 jury know any thing relative to the matter in issue, it is his duty to tell 
 the court so, that, instead of being sworn upon the jury, he may be 
 examined as a witness. 
 
 7 Mod. 2, Anon. 
 
 It may, moreover, be inferred from the practice of granting a new trial 
 because a verdict is contrary to evidence, that the jurors ought to found 
 their verdict entirely upon the evidence given in court ; for if they have a 
 power to found it partly upon other evidence, it would be quite unreason- 
 able for the judge before whom the cause was tried, who must always be 
 a stranger to what did not pass in court, to report that a verdict is con- 
 trary to evidence, or for the court to set it aside as being so. 
 
 If a juror eat or drink at his own expense, before he and his fellows 
 have agreed in a verdict, he is liable to be fined ; but the verdict is good. 
 
 1 Inst. 227 ; Bro. Ycrd. pi. 19 ; Dyer, 218 ; 1 Ventr. 125 ; 12 Mod. 111. 
 
 After the jurors had been locked up together some time, the officer who 
 attended them, being surprised at their delay in agreeing in a verdict, 
 searched them, and found figs in the pockets of three, and pippins in the 
 pockets of two others. This being represented to the judge, the three, 
 who confessed the having eaten of the figs, were fined four pounds each ; 
 and the other two, notwithstanding they declared upon oath that they had 
 not eaten of the pippins, were fined forty shillings each: but the verdi '
 
 VERDICT. 319 
 
 (II) Where a Verdict is bad for Misbehaviour of Jurors. 
 
 was, upon conference with the judges of the other courts, holdcn to be 
 
 good. 
 
 1 Leon. 132, Mounson v. "West. |3ln the United States, generally, the jurors are 
 now allowed proper refreshments. See Juries, G, Vol. v. p. 3G9.£f 
 
 In a case of necessity, as if a juror be suddenly taken ill, it is in the 
 power of the court to suffer him to eat and drink at his own expense, 
 before he and his fellows have agreed in a verdict. 
 
 Ventr. 125. 
 
 If the trial of a cause be very long, it is at this day usual for the 
 
 court, the consent(a) of both parties being first obtained, to give the 
 
 jurors leave to eat and drink during the trial at their own expense, or 
 
 at the equal expense of both parties. 
 
 \{a) In the late trials for treason, the jurors were permitted to eat, drink, and retire 
 to rest, attended by proper officers, without requiring the formal consent of the parties. 
 The irregularity Avas sufficiently justified by the necessity of the case.] {3 Dall. 515. } 
 ||But in The King v. Hardy, Sta. Tri. 24, 417, the court refused to allow them to sepa- 
 rate even with the prisoner's assent; aliter in Eliz. Canning's case, Sta. Tri. 19, 671 ; 
 and see Sta. Tri. 7, 500. And in The King v. Kinnear, the separation of the jury, 
 without consent of the defendant, was held not to vitiate the verdict, there being no 
 suspicion of any improper communication. 2 Barn. & A. 462 ; 1 Chitt. R. 401. || 
 
 If the jurors cat or drink at the expense of one party, before they 
 have agreed in a verdict, they are liable to be fined ; and if the verdict 
 be in favour of that party, it is bad ; but if it be in favour of the other 
 party it is good. 
 
 1 Inst. 227; 12 Mod. 111. 
 
 It is said in one book, that if the jurors, after they have agreed in a 
 verdict, eat or drink at the expense of the party in whose favour it is, 
 the verdict is good. 
 
 1 Inst. 227. 
 
 But it is in another book laid down, that the jurors can never be said 
 to have agreed in a verdict, unless they have, by giving a privy verdict 
 signified to the judge that they have agreed in one. 
 
 1 Ventr. 125. 
 
 It is said in two books, that although the jurors have given a privy 
 verdict, they must not eat or drink without leave of the court until they 
 have given a verdict in open court. 
 
 Bro. Verd. pi. 57 ; Moor, 33. 
 
 And it is in one of these said, that although the jurors may, with leave 
 of the court, eat and drink after they have given a privy verdict, they 
 must be kept together until they have given a verdict in open court. 
 
 Bro. Verd. pi. 57. 
 
 The jurors, having received their charge, withdrew to consider of a 
 verdict. Before the rising of the court, they came into court to ask a 
 question of the judge ; which being answered, they again withdrew. At 
 the sitting of the court in the afternoon of the same day, the judge was 
 informed that two or three of the jurors were in court. Being asked by 
 the judge what they did there, and having answered that they and their 
 fellows could not agree in a verdict, they were ordered to go to their 
 fellows. A verdict was afterwards given for the plaintiff, and the judge 
 did not report that it was contrary to the evidence. The court being 
 moved that this verdict might be set aside, it was holden to be good: and
 
 320 VERDICT. 
 
 (II) Where a Verdict is bad for Misbehaviour of Jurors. 
 
 by the court, — some of the jurors have been guilty of a great misbe- 
 haviour, and are liable to be fined ; but, as the plaintiff has not been 
 guilty of any misbehaviour, the verdict ought to stand. 
 
 Barnes, 441, Ld. St. John v. Abbot; {1 Penn. 278, Clarke v. Cole, ace.} 
 || If the jurors do not agree in their verdict at the assizes before the 
 judges are about to leave the town, though they are not to be threatened 
 and imprisoned, the judges are not bound to wait for them, but may carry 
 them round the circuit in a cart. 
 
 3 Black. Com. 376. 
 
 In a late case, however, where, after the trial of an issue out of Chan- 
 cery, the jury were locked up for many hours, and not likely to agree, 
 when the judge was about to leave the town, he took upon himself to 
 discharge them of his own authority, the parties declining to consent : 
 but if it had been a cause tried at nisi prius, between A and B, it seems 
 the judge would have ordered them to follow him in a cart. 
 
 Morris v. Davies, 3 Carr. & Pa. 427. || 
 
 The jurors being equally divided in opinion, threw dice for whom they 
 should find a privy verdict, and found one for the party in whose favour 
 the dice came; and without conferring afterwards together, they gave a 
 verdict for the same party in open court. The verdict was set aside : and 
 by the court, — As our estates, liberties, and lives are in the power of 
 jurors, they ought to be very circumspect in their conduct. In this case 
 the jurors have behaved very improperly, for they were determined by 
 chance in the finding of their privy verdict ; and they had not any confer- 
 ence together afterwards, before they gave their verdict in open court. 
 
 1 Freem. 415, Ld. Fitzwalter's case. /3See Trial, (L.)g/ 
 
 P In a case where each of the jurors set down the sum he thought proper 
 for damages, the whole was added together, and then divided by twelve, 
 and the quotient returned as the verdict of the jury. Held, to be irregu 
 lar, and the verdict was set aside. 
 Harvey v. Rickett, 15 Johns. 87. But see Trial, (L), contrd.fj 
 The jurors, who could not agree in a verdict, drew lots for whom they 
 should find one, and found one for the party in whose favour the lot was. 
 The verdict was set aside ; and the jurors were ordered to appear in 
 court. 
 
 2 Lev. 205, Foster v. Hawden. 
 
 Another verdict was for the same reason set aside, notwithstanding 
 the judge reported, that the party, in whose favour it was, ought in his 
 opinion to have had a verdict. 
 
 Stra. G42, Hale v. Cove. ||Vide suprd, tit. Trial, Vol. ix. p. 588, 613.|| 
 
 A verdict was set aside, because the jurors were determined as to the 
 damages they should give by throwing up cross or pile, whether they 
 should give five hundred pounds or three hundred. 
 
 Bunb. 51, Mellish v. Arnold. 
 
 If the jurors who cannot agree in a verdict vote, and give a verdict ac- 
 cording to the greater number of votes, the verdict is nevertheless good. 
 Comb. 14, Anon. 
 
 In a modern case wherein the jurors voted for a verdict, soven of them 
 were for finding a verdict as it was found, and no objection was made by 
 the other live when the verdict was given. The court refused to set aside
 
 VERDICT. 321 
 
 (I) Where a Verdict is bad for Misbehaviour of Parties. 
 
 the verdict: and by Lee, C. J. — Nothing was in this case determined by 
 chance. The five jurors might ultimately be convinced by the seven : but, 
 if they only acquiesced in the finding of the verdict, that is sufficient ; and 
 they shall not now be received to say that they did not acquiesce. 
 Sayer, 100, Lawrence v. Boswell. 
 
 A verdict was set aside upon an affidavit of eleven of the jurors, that 
 
 they and the other juror had agreed to give a verdict for the plaintiff; 
 
 but that the foreman had given a verdict for the defendant. 
 
 Ca. of Pr. in C. B. GO, Miles V. Baker; ||Burr. 383. But that the court cannot 
 receive such affidavits, see Owen v. Warburton, 1 New R. 329 ; and see 2 Stark. Ill ; 
 8 Taunt. 26; 3 Bro. & Bing. 272; 7 Moo. 87, and tit. Trial, Vol. ix. 588, 613.|| 
 ft Brewer v. Thompson, Coxe, 32.$ 
 
 It is said that a misbehaviour in one or more of the jurors cannot be 
 assigned for error, unless the misbehaviour appear upon the posted, if the 
 cause were tried at nisi prius, or upon the record, if it were tried at bar; 
 for that, if a misbehaviour not appearing on record could be taken advan- 
 tage of by writ of error, a verdict might at a great distance of time be 
 set aside, when, by reason of the death of one of the parties, or of one or 
 more of the jurors, the truth of the misbehaviour suggested could not be 
 properly inquired into. 
 
 Cro. Eliz. 616, Graves v. Short; ||Bull. N. P. 308.|| 
 
 It is laid down in two cases, that the court will not set aside a verdict 
 
 for misbehaviour in one or more of the jurors, unless the misbehaviour 
 
 appear upon the postca, if the cause were tried at nisi prius, or upon the 
 
 record, if it were tried at bar. 
 
 Cro. Eliz. 189, Medcalf v. Dean, Trin. 32 Eliz. ; Cro. Eliz. 411, Vicary v. Farthing, 
 Mich. 37 Eliz. 
 
 But the court in a subsequent case set aside the verdict, upon an affi- 
 davit that the jurors had eaten at the expense of the party in whose favour 
 it was given, before they had agreed in the verdict. 
 
 1 Freeru. 79, Bellamy v. Player, Pasch. 23 Car. 2. \\Sed vide snpru.\\ 
 
 In another subsequent case the court set aside a verdict, upon an affi- 
 davit of the officer who attended the jurors, that they had tossed up cross 
 and pile for whom they should find the verdict, and had found one ac- 
 cordingly. 
 
 2 Jon. 83, Fry v. Hardy, Mich. 29 Car. 2. 
 
 || The court will not receive an affidavit of partiality and prejudice in 
 one of the jurymen from the unsuccessful party. 
 7 Price, 203; 11 Price, 383. || 
 
 PA verdict will not be set aside on account of the misbehaviour of a 
 juror towards the court, unless it is prejudicial to one of the parties. 
 Crane v. Sayre, 1 Ilalst. 110 ; Board v. Cronk, 1 Halst. 119.£/ 
 
 (I) In what Cases a verdict is bad, on account of a Misbehaviour in one of the Parties. 
 
 If one of the parties speak words of mere civility to one of the jurors, 
 before they have agreed in a verdict, the verdict, although it be in fa- 
 vour of such party, is good. 
 
 1 Ventr. 125, Duke of Richmond v. Wise ; 2 Roll. Abr. 716, pi. 17. 
 
 If one of the parties say these words to one of the jurors, before they 
 have agreed in a verdict, the matter is clearly of my side, or these words, 
 Vol. X.— 41
 
 322 VERDICT. 
 
 (I) Where a Verdict is bad for Misbehaviour of Parties. 
 
 I hope you will find for vie, the verdict, if it be in favour of such party, 
 is bad ; but if it be in favour of the other party, it is good. 
 1 Ventr. 125, Duke of Richmond v. Wise ; 2 Roll. Abr. 716, pi. 17. 
 
 || Merely desiring a juror to appear, is no ground for setting aside a 
 verdict. But where it was sworn that handbills, reflecting on the plain- 
 tiff's character, had been distributed in court, and shown to the jury, on 
 the day of trial, the court granted a new trial, and would not receive 
 from the jury affidavits in contradiction, although the defendant denied 
 all knowledge of the handbills. 
 1 Stra. 643, Coster v. Merest; 3 Bro. & Bing. 272. || 
 
 If one of the parties or his agent deliver to the jurors, before they have 
 agreed in a verdict, a writing relative to the matter in issue which was 
 not given in evidence, the verdict if it be in favour of such party, is bad; 
 but if it be in favour of the other party, it is good. 
 
 1 Inst. 227. 
 
 If one of the parties, or his agent, without leave of the court, deliver 
 to the jurors, before they have agreed in a verdict, a writing sealed or 
 not sealed, which was given in evidence, the verdict, if it be in favour of 
 such party, is bad ; but if it be in favour of the other party, it is good. 
 
 1 Inst. 227. 
 
 And it is said, that the verdict, if it be in favour of the party who de- 
 livered the writing, is bad, notwithstanding the jurors afterwards declare 
 upon oath, that they never read the writing ; for that it would be of the 
 most dangerous consequence, if the jurors should be suffered to receive a 
 writing privately from one of the parties. 
 
 2 Roll. Abr. 714, pi. 6. 
 
 After the jurors were gone from the bar, but before they had agreed in 
 a verdict, the plaintiff's attorney delivered to them a book which had 
 been given in evidence. A verdict being afterwards found for the plain- 
 tiff, Fenncr, J., was, upon a motion to set it aside, of opinion, that, as 
 the verdict was in favour of the party in behalf of Avhom the book was 
 delivered, it was bad. The reporter adds, that the cause was adjourned ; 
 and that there was afterwards judgment for the plaintiff. 
 
 Cro. Eliz. 411, Vicary v. Farthing; /3Jessup v. Eldridge, Coxe. 401. gj 
 
 In another report of the same case it is said, that Clinch, J., as well 
 as Fenner, J., was of opinion that the verdict was bad ; and if so, notwith- 
 standing the plaintiff had judgment, which followed of course, as the 
 court was equally divided, this case does not contradict what is laid down 
 in the books above cited. 
 
 Moor, 452. 
 
 || When the jury have withdrawn, after the case has been summed up 
 to them, the court will not permit them to see a treatise on the law of 
 the subject, even with consent of the parties. They should state their 
 difficulty to the judge, and receive his direction as to the law. 
 
 Burrows v. Unwin, 3 Car. & P. 310, per Ld. Tcnterden, C. J.|| 
 
 i$ If a person claiming under the same title with a party, in his presence, 
 though without any interference by him, endeavour to prejudice a jury 
 in favour of his title, a verdict for him will be set aside. 
 
 Chews v. Driver, Coxe, 166. tf
 
 VERDICT. 323 
 
 (K) Of a Verdict upon an informal or immaterial Issue. 
 
 If an issue be joined upon a point so material, that the determination 
 thereof will determine the matter in question, but be not joined properly, 
 this is an informal issue. 
 
 An issue, which would have been bad upon a demurrer, by reason of 
 informality, is after a verdict helped by the 32 II. 8, c. 30, the joining 
 of issue being one of the things mentioned in that statute. 
 
 In an action of prohibition to a suit for tithes, the plaintiff alleged a pre- 
 scription for all the parishioners to clip the wool from the necks of their 
 sheep in order to preserve them, and that, in consideration of paying the 
 tenth fleece when the sheep should be sheared, they had been used to be 
 discharged of the tithe of the wool so clipped from the necks of their sheep. 
 The defendant traversed the prescription in this matter, absque hoc, that, in 
 consideration of paying the tenth fleece when their sheep should be sheared, 
 they had been used to be discharged of the tithe of the wool so clipped 
 from the necks of their sheep. Issue being joined upon the traverse, and 
 a verdict being found for the defendant, the court was moved, that a con- 
 sultation ought not to be awarded, because the issue is not well joined. 
 A consultation was awarded : and by the court, — Although the issue be 
 not aptly joined, it is after a verdict helped by the statute. 
 Cro. Ja. 576, Jouce v. Parker. 
 
 || Where, to an avowry for 1201. rent, the plaintiff pleaded in bar that the 
 said 120?. was not due, and the defendant joined issue thereon, and at the 
 trial it appeared that only 24Z. was due, upon which the plaintiff objected 
 that the evidence did not support the issue joined by the defendant, and 
 the defendant took a verdict for the 24L, subject to the opinion of the 
 court, the verdict was held to cure the informality of the issue. 
 
 Cobb v. Bryan, 3 Bos. & Pul. 348. || 
 
 In an action of replevin the defendant avowed the taking as a distress for 
 rent in arrear, which he claimed under a grant of a rent-charge from J N 
 the heir of E N, who was seised in fee of the land. The plaintiff replied, 
 the E N was seised of an estate-tail, and that upon the death of J N her 
 son became entitled to the land, and that upon his death it descended upon 
 the plaintiff; and he traversed the seisin of E N in fee. Issue being joined 
 upon the traverse, and a verdict being found for the defendant, it was said 
 upon a motion in arrest of judgment, that the issue is immaterial ; for that, 
 as it is not material how the ancestor of the grantor of the rent-charge was 
 seised, but how the grantor was himself seised, the traverse ought to have 
 been upon the seisin in fee of the grantor. Judgment was given for the 
 defendant : and by the court, — As the defendant has alleged a seisin in 
 fee in E N, her seisin in fee is material, and, consequently, was travers- 
 able; so that, although this be not so apt an issue as might have been 
 joined, it is after a verdict helped by the statute. 
 Cro. Ja. 44, Pigot v. Pigot. 
 
 In an action of assumpsit the defendant pleaded not guilty. Issue 
 being joined upon the plea, a verdict was found for the plaintiff. Upon a 
 motion in arrest of judgment it was said, that the issue is immaterial ; but 
 judgment was given for the plaintiff: and by the court, — Although this be 
 not the most proper issue, and would have been bad upon a demurrer, yet, 
 as deceit is charged in the declaration in an action of assumpsit, the plea 
 of not guilty is such an answer thereto, that the issue joined upon it is
 
 324 VERDICT. 
 
 (K) Verdict upon an informal or immaterial Issue. 
 
 after a verdict helped by the statute. Walmsley, J., added — That there are 
 many precedents, in which an issue joined in an action of assumpsit upon 
 the plea of not guilty has been tried, and judgment has been given. 
 
 Cro. Eliz. 470, Corbyn v. Brown ; { 1 Hen. & Mun. 153, Huncicutt v. Carsley, S. 
 P., where not guilty was pleaded in covenant.] 
 
 {If to an avowry for 1207. rent in arrear the plaintiff plead " that the 
 said 1207. is not due," and the defendant join issue thereon, and at the 
 trial it appears that 247. only is due, upon which the plaintiff objects that 
 the evidence does not support the issue joined by the defendant ; yet if a 
 verdict be taken for 247., subject to the opinion of the court, such finding 
 will cure the defect in the formality of the issue. The substance of the 
 issue (which was to ascertain whether any rent was in arrear) is rightly 
 found, and therefore any informality in the issue shall not be regarded. 
 3 Bos. & Pul. 348, Cobb v. Bryan.} 
 
 If an issue be joined upon a point so immaterial that the determination 
 thereof will not determine the matter in question, this is an immaterial 
 issue. 
 
 An immaterial issue is not helped by any of the statutes of jeofails. 
 
 Carth. 371 ; 1 Lev. 32 ; ||2 Will. Saund. 319 ; and see tit. Pleas and Pleadings, (M).|| 
 
 In an action of trespass the defendant pleaded an accord betwixt J S 
 and the plaintiff of the one part, and himself of the other. The plaintiff 
 replied, that no accord was made betwixt the defendant and him. Issue 
 being joined upon this replication, and a verdict being found for the plain- 
 tiff, it was holden, that no judgment could be given by reason of the im- 
 materiality of the issue ; it not being joined upon the accord pleaded by 
 the defendant, but upon a different accord. 
 
 1 Roll. 11. 8G, Carpenter v. Starr. 
 
 In an action of trover against husband and wife, which charged a con- 
 version by the wife, both the defendants pleaded not guilty. Issue being 
 joined upon the plea, and a general verdict being found for the plaintiff, 
 a repleader was awarded : and by the court, — If judgment should be given 
 for the plaintiff, it would amount to saying, that the husband and wife 
 were both guilty of the conversion ; whereas the plaintiff only charges 
 that the Avife was guilty thereof. 
 
 Cro. Ja. 5, Coxe v. Croswell. 
 
 In an action of trover the defendant pleaded non assumpsit. Issue being 
 joined upon the plea, and a verdict found for the plaintiff, a repleader 
 was awarded on account of the immateriality of the issue. 
 
 Ca. of Pr. in C. B.. Noble v. Lancaster; Barnes, 125, S. C. 
 
 In an action of trespass quare clausumf regit the defendant pleaded, that 
 the place in which the trespass is charged is his land. The plaintiff re- 
 plied, that the place in which the trespass is charged is his land, and not 
 the land of the defendant. Issue being joined upon the replication, a 
 verdict was found for the plaintiff. Upon a motion in arrest of judgment 
 it was said, that the issue is immaterial ; for that the place in which the 
 trespass is charged may be the estate of the plaintiff, and yet he may not be 
 in the possession thereof, which he must be in order to maintain this action. 
 The plaintiff had judgment : and by the court, — It is found, that the place 
 in which the trespass is charged is the land of the plaintiff; and we will,
 
 VERDICT. 325 
 
 (K) Verdict upon an informal or immaterial Issue. 
 
 after a verdict, rather intend that he was in the possession thereof than 
 that he was not. 
 
 2 Stra. 973, Cory v. Hinton. || This general plea of liberum iencmentum is contrary 
 to a principle in pleading, that every plea should contain a direct and positive answer 
 to the declaration, so as to bar the action if true in fact. See 1 Will. Saund. 299 e; 
 and Strange, in argument in the principal case, admitted that both the pica and re- 
 plication would have been bad on demurrer. And in Lambert v. Strother, "Willes's 
 R. 222, Willes, C. J., thought the plea was confined to those cases where it is used as 
 the common bar only ; but where the declaration ascertains the place, he thought it 
 could not be supported ; and see Cocker v. Crompton, 1 Barn. & C. 489, acc.\\ 
 
 In an action of debt upon a single bill the defendant pleaded payment 
 of the money due thereupon ; but did not plead an acquittance. Issue 
 being joined upon the plea, a verdict was found for the plaintiff, and 
 judgment was given for him. A writ of error being brought in the Ex- 
 chequer Chamber, it was assigned for error, that, as the payment of the 
 money due upon a single bill is no discharge of the bill, unless there be 
 an acquittance, the issue is immaterial. The judgment was affirmed : 
 and by the court, — If the verdict had been for the defendant, it would 
 perhaps have been bad, because an acquittance could not upon this issue 
 have been found ; but, as the verdict finds that the money due upon the 
 bill is not paid, it virtually finds that the bill is not discharged ; and the 
 court will never suffer a defendant to avail himself of his own bad plead- 
 ing, in order to deprive a plaintiff of the benefit of a verdict, upon which 
 judgment may be well given. 
 
 5 Rep, 43, Nichol's case ; Moor, 692, S. C. 
 
 In an action of ejectione firmce the defendant pleaded, that J S, being 
 seised in fee of the premise?, demised them to him for the term of five 
 years ; that by virtue of this demise the defendant entered, and was pos- 
 sessed, until the plaintiff's lessor disseised him; that the plaintiff's lessor, 
 being seised of the premises by the disseisin, demised the same to the 
 plaintiff; and that the defendant entered upon the plaintiff, as it was law- 
 ful for him to do : the plaintiff replied, that his lessor was seised in fee, 
 and traversed the disseisin of the defendant. Issue being joined upon 
 the replication, a verdict was found for the plaintiff. Upon a motion in 
 arrest of judgment it was said that, as the defendant was by his own 
 showing only a termor, he could not be disseised, and, consequently, that, 
 the issue being immaterial, no judgment could be given upon the verdict. 
 Judgment was given for the plaintiff; and by the court, — If a verdict 
 had been found for the defendant, it would have been bad ; because it 
 would have found a disseisin of a termor ; but as the verdict is for the 
 plaintiff, judgment may be well given ; because it only finds that his 
 lessor did not disseise the defendant ; and the court will never suffer one 
 party, if consistently with the rules of law it can be prevented, to avail 
 himself of his own bad pleading, in order to deprive the other of the 
 benefit of a verdict. 
 
 Cro. Ja. 678, Johns v, Ridler. 
 
 In an action of replevin the defendant avowed the taking as a distress 
 for an arrear of rent, due to him under a demise from the plaintiff made 
 at A, dated 1 Nov., 18 Car. 2. The plaintiff replied, that he did not 
 make a demise to the defendant at A, dated 1 Nov., 18 Car. 2, in man- 
 ner and form as alleged. (a) Issue being joined upon the replication, the 
 jury found a verdict for the plaintiff, and judgment was given for him. 
 
 2E
 
 326 VERDICT. 
 
 (L) Of a Verdict upon an Issue, &c. 
 
 A writ of error being brought, it was assigned for error, that the issue is 
 immaterial ; because it only is, whether a demise was made by the plain- 
 tiff to the defendant at a place certain, and upon a day certain : whereas, 
 a demise at any other place, and upon any other day, would have been 
 sufficient to have warranted the distress of the defendant. It was more- 
 over said, that as the merits, namely, whether there was a sufficient demise 
 to warrant the distress, had not been tried; and as the trial thereof had 
 been prevented by the bad pleading of the plaintiff, who has by the repli- 
 cation made the place and day of the demise material, neither of which 
 is in such case material, he ought not to have judgment. On the other 
 side, it was said, that this is at most only a misjoining of issue, which is 
 after a verdict helped by the statute of jeofails. 
 
 2 Lev. 11, Holbech v. Bennett ; 2 Saund. 317, S. C. || [a) The plea in bar should 
 have been " that he did not demise in manner and form as," &c, and the issue, " that 
 he did demise," &c. ; for the day and place were quite immaterial. || 
 
 The opinion of the court was, that this case is not within the statute 
 of jeofails ; (a) and that, as the merits have not been tried, the plaintiff 
 was not entitled to judgment upon the verdict ; but as it appeared that 
 the avowry of the defendant was bad, it was holden the plaintiff was en- 
 titled to judgment upon the declaration which is good; and the judg- 
 ment was affirmed. 
 
 || As to the award of a repleader on an immaterial issue, see tit. Pleas and Plead- 
 ing, (M), Vol. vii. p. G58 ; and see 2 Will. Saund. 319 ; Stephen on Plead. 119. 
 (a) But Hate, C. J., was of opinion, that the issue and verdict were aided by the 
 statute of jeofails. 2 Saund. 319. And Serjeant Williams is clearly of the same 
 opinion, as it was an informal issue. 2 Will. Saund. 319, note (0,) (5th edit.)|| 
 
 || Where the avowant in replevin took down the record to trial, without 
 adding the similiter to the conclusion of the plea in bar, and obtained a 
 verdict, the Court of C. B. set it aside without costs. 
 
 Griffith v. Crockford, 3 Bro. & Bing. 1 ; seel vide Saycr v. Pocock, Cowp. 407 ; 
 Grundy v. Mell, 1 New R. 28. || 
 
 pin general, when a verdict does not conclude formally in the words 
 of the issue, yet if the point in issue can be collected from the finding, 
 the court will put the verdict into form, and make it serve according to 
 the justice of the case. 
 
 Porter v. Ilummery, 10 Mass. 64. 
 
 A special verdict in ejectment referred the construction of a deed, and 
 other evidences of title, to the court, but they were not made a part of 
 the record. The court held, that the verdict was too imperfect to render 
 a judgment on it, although there was a deed on record, forming part of 
 a bill of exceptions taken to the opinion of the court, on a motion made 
 for a new trial. 
 
 M'Arthur v. Porter's Lessee, 1 Pet. 620. 
 
 When the issue is an immaterial one, the verdict ought to be set aside. 
 Woods v. Hym's, 1 Scam. 105. £/ 
 
 (L) Of a Verdict upon an Issue, Part of which is insensible or insufficient. 
 
 I v part of an issue be insensible, the verdict thereupon found, notwith- 
 standing it be a general one, is good; for the court will not intend that 
 part of the damages was given for the insensible part. On the contrary, 
 the court will, in support of the verdict, intend that no damages were 
 given for that part. 
 
 Carth. 131, Nightingale v. Bridges, Salk. 364.
 
 VERDICT. 327 
 
 (M) Of a Verdict which does not find all that is in Issue. 
 
 In an action of assumpsit, the plaintiff declared upon the custom of 
 merchants, for money due upon a promissory note ; and he likewise de- 
 clared upon an indebitatus assumpsit. Issue "was joined upon the plea 
 of non assumpsit, and a general verdict was found for the plaintiff. It 
 being upon a motion in arrest of judgment holden, that a promissory note 
 is not within the custom of merchants, it was insisted, that the court may 
 after a verdict intend, that no damages were given on account of the 
 note. The judgment was arrested : and by the court, — As the note is 
 not matter insensible, but matter insufficient in law, the court must intend 
 that part of the damages was given on account thereof; and if it was 
 given the verdict is bad. (a) 
 
 Salk. 129, 364, Clark v. Martin. || This was before the stat. 3 & 4 Ann. c. 9.|| 
 [(a) This inconvenient and ill-founded rule, that where there are several counts, entire 
 damages, and one count is had, and the others are not, this shall he fatal, upon the 
 fictitious reasoning delivered in the text, is now fully settled in civil cases ; though it 
 does not hold in the case of criminal prosecutions; for when there is a general verdict 
 of guilty in an indictment consisting of several counts, if anyone of them is good, that 
 is held to be sufficient. Grant v. Astle, Dougl. 730 ; { 1 Johns. Rep. 322. The Peo- 
 ple v. Curling. } However, though this distinction has been made in civil cases, yet 
 if there was only evidence at the trial upon such of the counts, as were good, and con- 
 sistent, a general verdict may be altered from the notes of the judge, and entered only 
 on those counts ; but if there is any evidence, which applied to the other bad or incon- 
 sistent counts, (as, for instance, in an action for words, where some actionable words 
 are laid, and others not actionable, j] in separate counts, || and evidence given of both 
 sets of words, and a general verdict,) there the postea cannot be amended, because it 
 would be impossible for the judge to say en which of the counts the jury had found 
 the damages, or how they had apportioned them. In such a case the only remedy is 
 by awarding & venire de novo. Eddowes v. Hopkins, Dougl. 377;] {5 Johns. Rep. 
 430, Chcetham v. Tillotson ; Ibid. 470, Backus v. Richardson.} \\Aliter where the 
 actionable words, and those not actionable, are in the same count. See Willes, 443 ; 
 2 Will. Saund. 171 b, c. (5th edit.) ; Tidd's Prac. 919, 922, (9th edit.) The applica- 
 tion to amend the verdict by the judge's notes, must be made in reasonable time. 1 
 Barn. & A. 101, Harrison v. King: and to the judge who tried the cause, not to the 
 court. 1 Chit. R. 283.|| 
 
 Pin an action of trespass de bonis aspoj'tatis, the plaintiff pleaded pro- 
 perty in A B and not in the plaintiff, and justified as deputy-sheriff; re- 
 plication de sua injuria, and traversing that the property was in A B ; 
 rejoinder that it was in A B ; issue and verdict of guilty. Held, that the 
 verdict was argumentative, but whether it was amendable, or cured by 
 the statute of jeofail, quaere. 
 
 Oerrish v. Train, 3 Pick. 124. 
 
 (M) Of a Verdict which does not find all that is in Issue. 
 
 If a verdict only find part of what is in issue it is bad ; because the 
 jury have failed in their duty, which was to find all that is in issue. 
 1 Inst. 227; {1 Day, 189, Smith v. Raymond.} 
 
 In an information for intruding into a messuage and a hundred acres 
 of land, issue was joined upon the plea of not guilty; the jurors found for 
 the plaintiff as to the land, but were silent as to the messuage. The ver- 
 dict was holden to be bad. 
 
 1 Inst. 227. 
 
 In an action of debt the plaintiff declared for seven pounds. The de- 
 fendant pleaded nil debet, and issue was joined upon the plea. The jury 
 found that the defendant owed the plaintiff six pounds, but were silent as
 
 328 VERDICT. 
 
 (M) Of a verdict which does not find all that is in Issue. 
 
 to the seventh pound. The verdict was upon a writ of error holden to be 
 bad. 
 
 Cro. Eliz. 133, Finnymore v. Stanley. 
 
 pWhen a verdict decisive of the case is found on one or more of several 
 issues, and the jury cannot agree as to one other issue, the party in whose 
 favour the verdict is found may waive the other issue, or consent that a 
 verdict be entered on it against him. 
 
 Sutton v. Dana, 1 Mete. 383.£f 
 
 In an action of trespass the plaintiff declared for the breaking of his 
 close, for the beating of his servant, and for the carrying away of his 
 goods. The defendant pleaded not guilty, and issue was joined upon the 
 plea. The jury found the defendant guilty of breaking the close, but 
 were silent as to the beating of the servant and the carrying away of the 
 goods. The verdict was holden upon a motion in arrest of judgment to 
 be bad, because it does not find all that is in the issue, and a venire facias 
 de novo was awarded. 
 
 3 Leon. 82, Rosse's case. 
 
 The declaration in an action of trespass brought by baron and feme 
 charged the beating of both. The defendant pleaded not guilty, and issue 
 was joined upon the plea. The jury found the defendant guilty of beating 
 the /erne, but were silent as to the beating of the baron. Upon a motion in 
 arrest of judgment the verdict was holden to be bad, because it does not 
 find all that is in issue, and a venire facias de novo was awarded. 
 
 Ilardr. 1GG, Rochel and his Wife v. Steedle. 
 
 If in an indictment for privately conveying ducats into the prosecutor's 
 pocket, with an intent to charge him with a robbery, the jury found the de- 
 fendant guilty of the fact, but are silent as to the intent, no judgment 
 can be given, the verdict being incomplete. 
 
 Sayer, 3G, Rex v. Simons. 
 
 In an action of debt upon a charter-party, by which the defendant had 
 contracted to pay fifty guineas a month for the use of a ship, the plain- 
 tiff alleged, that five hundred pounds were due to him for the use of the 
 ship for a time therein mentioned. The defendant pleaded, that he had 
 paid the plaintiff, at the rate of fifty guineas a month, for all the time he 
 had had the use of the ship. Issue being joined upon the plea, the jury 
 found, that three hundred pounds were due to the plaintiff for the use of 
 the ship ; but were silent as to the residue of the five hundred pounds. 
 Upon a writ of error it was assigned for error, that the verdict does not 
 find all that is in issue. In support of the verdict it was said, that, as 
 the issue is special, and the jury have ascertained what is upon the whole 
 due to the plaintiff for the use of the ship, no other action can be brought 
 for the use thereof, for any part of the time mentioned in the declaration. 
 The judgment was reversed : and by the court, — There is no difference, 
 as to the question before the court, betwixt the case of a verdict upon a 
 special issue, and that of a verdict upon a general issue; for the jury 
 must in either case find all that is in issue. 
 
 Stra. 1089, Hooper v. Shepherd. 
 
 ||Where several pleas were pleaded to an action of debt on bond, and 
 issues were taken on them, and as to some of them the jury found no ver- 
 dict, the court awarded a venire de novo. 
 
 Hick v. Keats, 4 Barn. & 0. 69. || 
 
 '
 
 VERDICT. 329 
 
 (jVI) Of a Verdict ■which does not find all that is in Issue. 
 
 If there are several counts in a declaration, and the verdict is taken 
 upon only one of the counts, it is good, provided all that is in issue upon 
 that count be found, because every count is to be considered as a distinct 
 declaration. 
 
 Salk. 133, Hill v. Lewis ; 1 Ventr. 27 ; 12 Mod. 5. 
 
 If a verdict find all that is in issue in one count, which is material, it is 
 good ; for, if any thing not material be put in issue, the verdict is good, 
 notwithstanding it be silent as to that. 
 
 1 Inst. 227. 
 
 In an action of debt, for the penalty given for not having set out tithes, 
 the plaintiff declared upon a lease from J S, of the tithes of the parish 
 of A, for the term of six years, in case J S should so long live, and con- 
 tinue to be parson of the parish of A. The defendant pleaded nil debet, 
 and issue was joined upon the plea. The jury found a lease from J S, 
 of the tithes of the parish of A, for the term of six years, in case J S 
 should so long live ; but they found likewise, that the words and continue 
 to be parson of the parish of A were not contained in the lease. Ilaugh- 
 ton, J., was of opinion, that the plaintiff ought not to have judgment ; 
 but the other justices were of a different opinion : and by them, — The 
 lease found is in substance the same as that which is in issue ; for, al- 
 though the words and continue to be parson of the parish of A, are not 
 contained in the lease, they are implied therein. It was moreover said, 
 that the lease is only matter of inducement, the not having set out the 
 tithes being the gist of the action ; for which reason, as enough is found 
 to show that the tithes were not set out, and that the plaintiff had a right 
 thereto, he ought to have judgment. 
 
 Cro. Ja. 328, Wheeler v. Hajdon ; || Gwill. Tjth. Ca. 258; Eag. & Y. 219.|| 
 
 In an indictment which contained three counts, the first count charged 
 the forging of a certain bond ; the second charged the publishing of the 
 forged bond by the defendant ; the third charged the publishing of a 
 bond, knowing it to have been forged. The jury found that it was proved 
 that the defendant did forge the bond set out in the indictment, and that 
 he did publish the same ; and then, without saying any thing as to the 
 fact charged in the third count, they concluded with saying, that if upon 
 this evidence the court shall be of opinion that the defendant is guilty of 
 the fact charged, then they find him guilty ; but if the court shall be of 
 opinion that he is not guilty thereof, then they find him not guilty. It 
 was said for the defendant, that this verdict is bad ; because it does not 
 find all that is in issue. It was holden, that the court is not in this case 
 bound by the conclusion of the jury ; but that, upon what is found to have 
 been proved, it is the duty of the court to adjudge the defendant guilty 
 of the forging and the publication charged in the two first counts, and 
 not guilty as to the residue ; and judgment was given accordingly. 
 
 Stra. 844, 845, Res v. Hayes. 
 
 It is said that the court will never award a venire facias de novo in an 
 indictment for a capital offence ; although a material fact be not found 
 by the verdict. It is likewise said, that if the facts found be not suffi- 
 cient to warrant a judgment against the defendant in an indictment for 
 a capital offence, the court will, provided a verdict be sufficient to found 
 
 Vol. X.— 42 2 e 2
 
 330 VERDICT. 
 
 (jST) Of a Ycrlict which finds a Thing that is not in Is^ue. 
 
 a judgment upon, give judgment for him ; for, that no man's life ought 
 to be twice in jeopardy for the same oifence. 
 Stra. 387, Rex v. Huggins. || See 5 Term R. 454.|| 
 
 pin Pennsylvania, when there are several issues, a general finding for the 
 plaintiff is considered as equivalent to an express negative to each plea. 
 
 Sirohecker v. Drinkle, 16 S. & R. 33. 
 
 A jury must pass on all the matters submitted to them, and cannot find 
 a verdict on a part of the plaintiff's demand without deciding the other. 
 
 Broehway v. Kinney, 2 Johns. 210; Van Bonthuyson v. Dj Witt, 4 Johns. 213.$ 
 
 (N) Of a Verdict which finds a Thing that is not in Issue. 
 
 A verdict is not bad on account of its finding a thing that is not in 
 issue, it being a maxim, that utile per inutile not vitiatur; and the court 
 will, in giving judgment, reject that part of the verdict which relates to 
 the thing not in issue as surplusage ; inasmuch as the jury had nothing 
 to do therewith. 
 
 1 Inst. 227. 
 
 If the matter in issue be, whether there are assets, and the jury find 
 that there are assets beyond the seas, the verdict is nevertheless good ; 
 for the court will, in giving judgment, reject the words beyond the seas 
 as surplusage. 
 
 G Rep. 57, Dowdale's case, Cro. Ja. 55. 
 
 If the matter in issue be, whether J S died seised of certain premises, 
 and the jury, after finding that he did die seised thereof, find that con- 
 tinual claim has, since the death of J S, been made by J N, the verdict 
 is nevertheless good ; for the court, in giving judgment, will not pay any 
 regard to what is found concerning the continual claim. 
 
 Bro. Nugat. pi. 25 ; Bro. Verd. pi. 68. 
 
 If in an action upon the case for words, the jury, after finding that the 
 defendant spoke the words in issue, find that he spoke other slanderous 
 words, the verdict is nevertheless good ; for the court will, in giving judg- 
 ment, reject the finding of the other slanderous words as surplusage. 
 
 Cro. Ja. 407, Sidenham v. Man; 2 Roll. Abr. 717, pi. 4. 
 
 In an action of scire facias against the executor of J S, the matter in 
 issue was, whether J S had been taken in execution by virtue of a capias 
 ad satisfaciendum set out in the declaration, which issued upon a judg- 
 ment obtained by the plaintiff against J S. The jury found, that J S 
 was not taken in execution by virtue of the capias ad satisfaciendum set 
 out in the declaration, but that he was taken in execution by virtue of 
 an alias capias ad satisfaciendum which issued upon the judgment. This 
 was holden to be a verdict for the plaintiff: And by the court, — As it is 
 found that J S was taken in execution by virtue of a capias ad satisfa- 
 ciendum which issued upon the judgment, the word alias, which only shows 
 the particular species of capias ad satisfaciendum, ought to be rejected 
 as surplusage. 
 
 Hob. 53, 54, Foster v. Jackson. 
 
 In an action of assumpsit, the jury found a verdict for the plaintiff, and, 
 after assessing damages to the amount of thirty pounds, added the follow- 
 ing words, the damages to be paid in dyeing, if by law they may be so paid. 
 These words being omitted in the judgment, a writ of error was brought,
 
 VERDICT. 331 
 
 (N) Of a Verdict which finds a Thing that is not in Issue. 
 
 and the omission was assigned for error. The judgment was affirmed : 
 And by the court, — As the verdict which finds for the plaintiff and as- 
 sesses damages is a complete verdict, what is added as to the manner of 
 paying the damages is nugatory, and being so it is very properly omitted 
 in the judgment. 
 
 Cro. Car. 219, Taylor v. Willes. 
 
 After an indictment found at an assize had been moved by certiorari 
 into the King's Bench, the defendant pleaded not guilty, and issue was 
 joined upon the plea by the king's coroner. The jury found the defend- 
 ant guilty of the premises, prout the coroner has complained against him. 
 Upon a motion in arrest of judgment it was said that the verdict was 
 bad, because as the indictment was found at an assize, the coroner has 
 not complained against the defendant ; and that the fault is not cured by 
 any of the statutes of jeofails. The verdict was holden to be good : 
 And by the court, — The verdict which finds the defendant guilty of the 
 premises is complete, and, consequently, as that which follows concerning 
 the complaint of the coroner ought to be rejected as surplusage, (a) it will 
 not want the help of any of the statutes of jeofails. 
 
 2 Saund. 308, Ilex v. Urlyn. || (a) As to rejecting matter as surplusage, see Pleas 
 and Pleadings, (I) 4, in Vol. vii.|| 
 
 Upon an issue directed out of the Court of Chancery, the jury found 
 a verdict in the following words. Our verdict is, that the defendant did 
 not assume to the plaintiff in manner and form as in the record is sup- 
 posed ; but notwithstanding this, if the two witnesses, J S and J N, have 
 testified the truth, as we think they have, then we find, that the defend- 
 ant did assume to reassure to the plaintiff so much of the land mentioned 
 in the record as the defendant had bought of the plaintiff, upon the pay- 
 ment of two hundred and fifty pounds by the plaintiff to the defendant 
 within three years after the assumption : and if the court shall think so, 
 we find for the plaintiff, and assess damages to the amount of twenty 
 pounds, and costs to the amount of four pounds. The verdict was de- 
 creed by the Chancellor to be a verdict for the defendant ; and Dyer, J., 
 and Ayloffe, J., whom he called to his assistance ; and the counsel for 
 both parties were satisfied with the decree. 
 
 Dyer, 372, HeyAvard's case. 
 
 If a verdict, after finding the matter in issue, find a thing which might 
 have been pleaded in abatement, as joint-tenancy, the verdict is good ; 
 for, as the defendant did not avail himself of the joint-tenancy, by plead- 
 ing it in abatement, the court will reject it as surplusage. 
 
 Bro. Nugat. pi. 27. 
 
 In an action of waste, the plaintiff declared, that the defendant, being 
 seised in fee of the premises on which the waste was committed, had en- 
 feoffed J S to the use of the defendant for life, with remainder to the plain- 
 tiff in fee. The defendant pleaded, that the feoffment was to the use of 
 himself in fee, absque hoc, that it was to the use of himself for life, with 
 remainder to the plaintiff in fee. Issue being joined upon the plea, the 
 jury found, that the feoffment was to the uses mentioned by the plaintiff: 
 but they found further, that the estate for life reserved to the defendant 
 was without impeachment of waste ; and submitted it to the court whether 
 the plaintiff ought to have judgment. Wyndham, J., was of opinion, that 
 the plaintiff ought to have judgment ; inasmuch as it appeareth, from
 
 332 VERDICT. 
 
 (0) Of a Verdict which varies from the Issue. 
 
 what is found by the verdict, that he had no cause of action. But An- 
 derson, C. J., Rhodes, J., and Perriam, J., were of opinion, that the plain- 
 tiff ought to have judgment; and by Anderson, C. J., the matter in issue 
 is found for the plaintiff; and as the defendant did not avail himself of 
 the privilege of being dispunishable of waste, by pleading it, the jury, it 
 not being in issue, had nothing to do therewith ; for which reason that 
 which is found concerning it ought to be rejected as surplusage. 
 3 Leon. 80, Pcpy's case. 
 
 In an action of assumpsit against an executor, the plaintiff declared 
 upon a promise of the defendant's testator. Issue being joined upon the 
 plea of non assumpsit, the jury found for the plaintiff: but they likewise 
 found, that the testator tvas dead before the day on which the 'promise is 
 alleged to have been made. The verdict was holden to be good : And by 
 the court, — As the jury have found for the plaintiff, their finding, that 
 the testator ivas dead before the day on which the promise is alleged to 
 have been made, ought to be rejected as surplusage. 
 
 Cro. Car. 130, Inkersalls v. Sams. 
 
 j3 A verdict which contradicts the facts admitted in the pleadings, is to 
 be disregarded. 
 
 M'Ferran v. Taylor, 3 Cranch, 280.0 
 
 (0) Of a Verdict which varies from the Issue. 
 
 A verdict which varies from the issue in a matter of substance is bad. 
 
 What is such a variance betwixt a verdict and the issue as will make 
 the verdict bad, is best to be learned from considering the determinations 
 upon the point, the principal of which in divers actions shall be men- 
 tioned. 
 
 1. In an Action of Assumpsit. 
 
 The plaintiff in an action of assumpsit declared upon a contract by two 
 persons. Issue being joined upon the plea of non assumpsit, the jury 
 found that the contract was made by only one of the persons. This was 
 holden to be a verdict for the defendant ; the contract found being differ- 
 ent from that which is an issue. 
 
 2 Roll. Abr. 707, pi. 49. 
 
 The plaintiff in an action of assumpsit declared upon a promise by four 
 
 persons. The defendants all joined in the plea of non assumpserunt infra 
 
 sex annos, and issue was thereupon joined. The jury found, that one of 
 
 the defendants had promised within six years ; but they likewise found, 
 
 that the other three had not. It was holden, that, as the jury had not 
 
 found the promise which -was in issue, the verdict was for the defendants. 
 
 2 Ventr. 151, Bland v. Haselrig and others. || But see Whitcomb v. Whiting, 
 Doug. G52; 2 Will. Saund. G4.|| 
 
 111 an action of assumpsit, the defendant, an administrator, pleaded, that 
 three judgments had been obtained against him as administrator to J S, 
 that those judgments arc still in force, and that he has assets in his hands 
 only to the value of five shillings, which are liable to those judgments. The 
 plaintiff replied, that those judgments are kept in force by fraud, and issue 
 was joined upon the replication. The jury found that one of those judg- 
 ments was kept in force by fraud. The verdict was holden to be for the
 
 VERDICT. 333 
 
 (0) Of a Verdict which varies from the Issue. 
 
 plaintiff: And by the court, — As the defendant's plea is found to be 
 false as to part, the plaintiff ought to have judgment. 
 
 Carth. 196, Beake v. Kent. ||See 1 Will. Saund. 334, 335, 337 ; 2 Chit, on Plead. 
 G37.|| 
 
 In an action of assumpsit the plaintiff declared, that the defendant was 
 indebted to him in the sum of twenty pounds, which he promised to pay 
 upon request. The defendant having pleaded non assumpsit, the jury 
 found that the defendant was indebted to the plaintiff in the sum of ten 
 pounds upon one account, and in the sum of ten pounds upon another. 
 The verdict was holden to be bad ; because, as the issue is joined upon 
 one promise, and the jury have found two promises, the variance is in a 
 matter of substance. 
 
 2 Roll. Abr. 719, pi. 18. 
 
 In an action of assumpsit, it was alleged in the declaration, that the de- 
 fendant, in consideration that the plaintiff would give credit for certain 
 goods to J S, promised to pay for the same, when he should, after the de- 
 livery of any goods, be requested so to do. The defendant pleaded non 
 assumpsit, and issue was joined upon the plea. The jury found, that the 
 defendant did promise to pay for the goods, but they did not find that a 
 request of payment had been made to him after the delivery of the goods. 
 The verdict was holden to be bad : And by the court, — As the duty could 
 not in this case arise until a request was made, the request is material, 
 and, consequently, as this is not found, the verdict is bad. 
 
 Brownl. 13, Gore v. Colethorpe; ||Cro. Eliz. 85, 91 ; 2 H. Blac. 131 ; 1 Stra. 89; 
 Carter v. Ring, 3 Camp. K. 459. || 
 
 It has been heretofore holden, that if the plaintiff in an action of assump- 
 sit declare upon an indebitatus assumpsit, he cannot recover a less sum than 
 he declares for. In an action of assumpsit the plaintiff declared, that the 
 defendant was indebted to him in the sum of fifty pounds, which he pro- 
 mised to pay. The jury found, that as to forty-seven pounds, parcel of 
 the said fifty pounds, the defendant had promised to pay it, but they like- 
 wise found, that as to the residue he had not promised to pay it. The 
 verdict was holden to be for the defendant ; because the promise found 
 is different from that which is in issue. 
 
 Cro. Eliz. 292, Bagnal v. Sacheverel. 
 
 But, however it may have been heretofore holden, it is at this day cer- 
 tain, that the plaintiff in an action of asswnpsit may recover a less sum 
 than he has declared for, notwithstanding he have declared upon an 
 indebitatus assumpsit. 
 
 And it was in a very late case holden, that, although the plaintiff in an 
 action of assumpsit have declared upon an insimul computassent, he may 
 recover damages to a less amount than the balance alleged to be due : 
 And by Yates, J. — As the promise upon which an action of assumpsit is 
 founded cannot extend further than to what is justly due, the jury, in 
 assessing damages, have a power to divide the damages alleged in such 
 manner that the plaintiff may recover what is justly due. 
 
 MS. Itep. Thompson v. Spencer, East. 8 G. 3, in K. B. ; ||2 W. Saund. 122 ; and so 
 in debt the plaintiff may now recover less than he demands in the declaration. M'Quil- 
 lin v. Cox, 1 II. Black. 249. || 
 
 After a verdict in an action of assumpsit, the promise alleged in the 
 declaration will be considered an express or even a written promise. 
 
 Huntingdon v. Todd, 3 Day's Cas. 479 ; Insurance Company of Alexandria v. 
 Young, 1 Cranch, 341 ; Becker v. Beeker, 7 Johns. 99.£f
 
 334 VERDICT. 
 
 (0) Of a Verdict which varies from the Issue. 
 2. In an Action vpon the Case. 
 
 In an action upon the case, the plaintiff declared, that the defendant, of 
 whoni he had bought two oxen, warranted them to be sound, and he alleged 
 that they were unsound. The defendant pleaded not guilty, and issue was 
 joined upon the plea. The jury found the defendant guilty as to one of 
 the oxen, and not guilty as to the other. Upon a motion in arrest of judg- 
 ment, it was insisted, that, as the issue is, whether the two oxen warranted 
 to be sound were unsound, and the verdict finds that only one of them wa3 
 unsound, the plaintiff ought not to have judgment. Judgment was given 
 for the plaintiff: and by the court, — As the action is not in this case founded 
 upon the contract,(a) but upon the deceit, the verdict is good. 
 
 Cro. Eliz. 884, Gravenor v. Mete. \\(a) But in contract the defendant would have 
 committed a breach if either of them were unsound. || 
 
 In an action upon the case for a false return to a mandamus, the plaintiff 
 declared that he was chosen bailiff of the borough of A upon the first day 
 of October in a certain year, which was alleged to be the customary day 
 for choosing a bailiff. The defendant pleaded not guilty, and issue was 
 joined upon the plea. It was proved at the trial, that the plaintiff was 
 chosen bailiff upon the twenty-ninth day of September in the year men- 
 tioned, and that this was the customary day for choosing a bailiff. It was 
 objected, that as the day, which is in this case parcel of the custom, is 
 material, the election proved is a different one from that which is in issue, 
 and that for this reason the plaintiff ought not to recover. The objection 
 was overruled, and by Holt, C. J. — As the substantial part of the issue, 
 namely, whether the plaintiff was elected according to the custom, is 
 proved, it is not material whether the election was upon the day mentioned 
 in the declaration, or not. 
 
 Carth, 228, Vaughan v. Lewis. 
 
 In an action upon the case, in which the declaration charged the enclos- 
 ing of three acres of land, the plaintiff alleged a right of common therein 
 as appurtenant to sixty acres of land, sixty acres of meadow, and eighty 
 acres of pasture. The defendant pleaded not guilty, and issue was joined 
 upon the plea. It being found by the jury, that the plaintiff had a right 
 of common in the three acres of land, as appurtenant to a messuage, and 
 ninety acres of land, meadow, and pasture thereunto appertaining ; and 
 for the residue, that he had not common ; judgment was given for the 
 plaintiff. A writ of error being brought, it was assigned for error, that 
 the right; of common found by the verdict is different from that which is 
 in issue. The judgment was affirmed : And by the court, — The right of 
 common -alleged is only matter of inducement ; the substantial part of 
 the issue being whether a wrong has been done to the plaintiff by enclosing. 
 If the issue had been, whether the plaintiff's right of common were 
 appurtenant to so much land, meadow, and pasture, as is mentioned in 
 the declaration, the verdict would peradventure have been bad ;{a) but it 
 is not material upon the present issue, whether the plaintiff's right of 
 common be found precisely as it is alleged or not. 
 
 Cro. Ja. 630, Eardley v. Turnock. \\{a) Sed vide llickctts v. Salwey, 2 Barn. & A. 
 360.|| ' 
 
 An action upon the case in the nature of a conspiracy being brought 
 against two, they both pleaded not guilty, and issue was joined upon the 
 ptca. The jury found only one of the defendants guilty. The ve. diet was
 
 VERDICT. 335 
 
 (0) Of a Verdict which varies from the Issue. 
 
 holden to be good : and by the court, — In an action upon the case, in 
 the nature of a conspiracy, one person may be found guilty. 
 
 2 Roll. Ahr. 708, pi. 52. 
 
 But if, in an action of conspiracy against two, issue bo joined upon the 
 
 plea of not guilty, and the jury find only one of them guilty, the verdict 
 
 is bad, because one person cannot be guilty of a conspiracy. (a) 
 
 2 Roll. Abr. 703, pi. 52. (a) || As a conspiracy cannot be committed by one person 
 alone, if all the defendants prosecuted are acquitted but one, and the conspiracy be 
 not charged to be with persons unknown, it is clear the acquittal of the rest is the 
 acquittal of that one also. 1 Hawk. P. C. c. 72, \ 8 ; 3 Chit. C. Law, 1141. But if 
 two persons be indicted for conspiracy, and only one of them appear and take his 
 trial, he may be found guilty though the other defendant be absent and has not 
 pleaded. Rex v. Kinnersley and Moore, 1 Stra. 193 ; and this although the other 
 conspirator named in the indictment was dead before the indictment was preferred. 
 Rex v. Nicholls andBygrove, 2 Stra. 1227; 13 East, 412, notis.\\ 
 
 3. In an Action of Covenant. 
 
 The plaintiff in an action of covenant declared, that upon the sale of 
 certain land by the defendant to him, which was estimated at a certain 
 number of acres, the defendant covenanted to pay him at the rate of 
 eleven pounds by the acre, for as many acres as should be wanting of the 
 number the land was estimated at ; and he alleged, that as many acres 
 were wanting, as did, at the rate of eleven pounds by the acre, amount 
 to the sum of seven hundred pounds. The defendant pleaded, that there 
 were not so many acres wanting, as did, at the rate of eleven pounds by 
 the acre, amount to seven hundred pounds, and issue was joined upon 
 the plea. The jury found a general verdict for the plaintiff; but they 
 assessed damages to the amount of only four hundred pounds. The ver- 
 dict was objected to as being variant from the issue ; but it was holden 
 to be good : and by the court, — As the design of the present action was 
 to recover damages, it was entirely in the breast of the jury, notwith- 
 standing they found all the acres to be wanting, to assess such damages 
 as appeared to them to be reasonable. 
 
 2 Roll. Abr. 703, Hicks v. Goats. || The plea here ought to have traversed that there 
 were any acres wanting, since the defendant is not at liberty to plead so as to tie the 
 plaintiff up to prove the tvhole of the damages stated ; and if there was one acre want- 
 ing, the plaintiff was entitled to recover pro tanto, notwithstanding his assignment of 
 a breach went further. See 2 W. Saund. 207, n. 24; Cobb v. Bryan, 3 Bos. & Pul. 
 348, and 1 AV. Saund. 312 d ; and tit. Pleas and Pleadings, (11), Vol. vii. p. 572. |j 
 
 4. In an Action of Debt. 
 
 In an action of debt upon the 2 and 8 E. 6, for not setting out tithes, 
 
 the defendant pleaded nil debet ; the jury found the value of the tithes 
 
 subtracted to be less than the value alleged in the plaintiff's declaration. 
 
 This was holden to be a verdict for the plaintiff: and by the court, — 
 
 There is a difference betwixt an action of debt founded upon a specialty, 
 
 or upon a contract, and one founded upon a statute, giving an uncertain 
 
 sum by way of severalty. In the former case, the verdict cannot be 
 
 for a less sum than is demanded, unless it be found that part of the debt 
 
 was satisfied : but in the latter case, the verdict is good, although a less 
 
 sum than is demanded is found to be due. 
 
 Cro. Ja, 449, Pemberton v. Skelton. || But in debt the plaintiff may now, in any 
 Case, recover less than he demands. 1 H. Black. 249. || 
 
 The plaintiff in an action of debt declared for the sum of twenty-four
 
 336 VERDICT. 
 
 (0) Of a Verdict which varies from the Issue. 
 
 pounds eight shillings. The defendant pleaded nil debet, and issue was 
 joined upon the plea. The jury found that the defendant was indebted 
 to the plaintiff in the sum of twenty-four pounds ; but they likewise found 
 that he was not indebted to him in the further sum of eight shillings. It 
 was holden that the plaintiff should have judgment : and by the court, — 
 The eight shillings may have been paid. 
 2 Roll. Abr. 702, Baugh v. Philips. 
 
 The plaintiff in an action of debt declared for the sum of twenty pounds. 
 
 The defendant pleaded nil debet, and issue was joined upon the plea. The 
 
 jury found that the defendant was indebted to the plaintiff in the sum of 
 
 forty pounds. This was holden to be a verdict for the defendant. (a) 
 
 2 Roll. Abr. 702, pi. 3. (a) || It would now clearly be held a verdict for the plaintiff. || 
 
 In an action of debt brought against an executor, the plaintiff declared 
 for the sum of twenty pounds, the defendant pleaded that he had no as- 
 sets in his hands, and issue was joined upon the plea. The jury found 
 that the defendant had assets in his hands to the amount of forty pounds. 
 This was holden to be a verdict for the plaintiff; for, notwithstanding it 
 vary from the issue, the substantial part of the issue, namely, whether 
 the defendant had assets in his hands sufficient to satisfy the plaintiff's 
 debt, is found for the plaintiff. 
 
 2 Roll. Abr. 702, pi. 4. 
 
 In an action of debt the plaintiff declared upon a bond dated the 25th 
 day of November. The defendant pleaded non est factum, and issue was 
 joined upon the plea. The jury found a bond dated the 15th day of 
 November. This was holden to be a verdict for the plaintiff, because the 
 substantial part of the issue, namely, whether the bond be the deed of 
 the defendant, is found for the plaintiff. 
 
 Cro. Ja. 136, Lane v. Pledall, Mich. 4 J. 1. || This would clearly now be held a 
 fatal variance. || 
 
 But it is said in a subsequent case, that the verdict would in such case 
 
 be for the defendant, because the bond found is not the bond that is in 
 
 issue ; and the case of Lane v. Pledall, is expressly denied to be law. It 
 
 is, however, in this case laid down, that if the jury in such case find a 
 
 bond dated the same day as the bond upon which the action is brought 
 
 is alleged to be dated, the verdict is for the plaintiff; notwithstanding 
 
 they likewise find that the bond was delivered upon a day different from 
 
 that on which it is dated. (b) 
 
 Salk. 463, Cromwell v. Grunsden, Pasch. 10 W. 3. (b) || Because the description 
 " dated," or " bearing date," in the declaration, is satisfied, by showing a bond bearing 
 date on the day alleged, though the delivery may be subsequent ; but the bond has 
 no operation till the delivery. Co. Lit. 46 b ; 4 East, 477 ; Cowp. 714 ; Steele v. 
 Mart, 4 Barn. & C. 272 ; Styles v. Wardle, 4 Barn. & C. 908. || 
 
 The plaintiff in an action of debt declared upon a bond entered into by 
 the defendant. The defendant pleaded non est factum, and issue was 
 joined upon the plea. The jury found a bond entered into by the defend- 
 ant and J S. This was holden to be a verdict for the plaintiff; for that, 
 as the defendant and J S did both seal and deliver the bond, it is the 
 deed of each of them ; and consequently each of them is answerable for 
 the whole money thereupon due.(c) 
 
 5 Rep. 119, Whelpdale'a case. ||(c) Unless ho plead in abatement that the other 
 ought to be joined. 1 W. Saund. 291 d ; 5 Burr. 2011 ; 1 Barn. & A. 29, 224.||
 
 VERDICT. 337 
 
 (0) Of a Verdict which varies from the Issue. 
 
 In an action of debt upon a bond, conditioned for the performance of 
 , the covenants in an indenture, one of which was that the defendant should 
 not cut down trees, the breach assigned was cutting down twenty trees. 
 The defendant pleaded that he did not cut down twenty trees, and issue 
 was joined upon the plea. The jury found that the defendant did not cut 
 down twenty trees ; but they found that he cut down ten. This was 
 holden to be a verdict for the plaintiff: and by the court, — Although the 
 verdict vary from the issue, yet, as enough is found to make the defend- 
 ant liable to the penalty of the bond, the plaintiff ought to have judgment. 
 Dyer, 115, Anon. ; 1 Inst. 282; Hob. 53. || The plea should have negatived cutting 
 anv trees ; hut in such case the finding of the jury cures the infm-mality of the issue. 
 , 2 W. Saund. 207, n. 24, and 319 ; 3 Bos. & Pul/348 ; and tit. Pleas and Pleading*, 
 (H), Vol. vii. p. 572.|| 
 
 The defendant in an action of debt pleaded payment of the money, for 
 which the action was brought, at A. Issue being joined upon the plea, 
 the jury found that the money was paid at B. This was holden to be a 
 verdict for the defendant ; for that, as the payment of the money is the 
 substantial part of the issue, it is not material where it was paid. 
 
 1 Keb. 662, Lucas v. Harlow; ||2 W. Saund. 319.|| 
 
 {In an action on st. 37 G. 3, c. 90, s. 26, for penalties against two proc- 
 tors for not obtaining and entering their certificates, one may be found 
 guilty, and the other acquitted ; for the action is founded on a tort. 
 
 2 East, 569, Barnard v. Gostling ; Ibid. 573, n., Hardyman v. Whitaker, S. P.; 
 Carth. 361, Bastard v. Hancock, S. P.} 
 
 |3ln an action of debt in the detinet, on the issue of non solvit the jury 
 found a certain sum due from the defendant to the plaintiff, without any 
 determination of the issue. Held, that the finding was good. 
 
 Thompson v. Musscr, 1 Dall. 458. 
 
 In debt on bond, issues were joined on the plea of non est factum, sol- 
 vit ad diem, and solvit post diem ; the verdict was, that "the defendant is 
 not indebted to the plaintiff." Held, that the verdict was essentially de- 
 fective, as it did not appear that the jury had agreed on any one issue. 
 
 Coffin v. Jones, 11 Pick. 42. 
 
 In an action of debt on bond, with a condition to secure the payment 
 of money only, the defendant pleaded payment and gave notice of set- 
 off ; if any part of the debt has been paid, it is proper for the jury to 
 specify by their verdict the exact balance due to the plaintiff, though the 
 judgment must be entered for the penalty. 
 
 Richman v. Richman, 5 Halst. 114.£/ 
 
 5. In an Action of Ejectment. 
 
 The plaintiff in an action of ejectment declared upon a lease from two 
 persons. Issue being joined upon the plea of not guilty, the jury found 
 that the lessors of the plaintiff were tenants in common. This was holden 
 to be a verdict for the defendant: and by the court, — As only one lease 
 is declared upon, and the verdict virtually finds two, the estates of tenants 
 in common being several, the variance is in a matter of substance. But 
 it is said, that if the jury had found that the lessors of the plaintiff were 
 coparceners, the verdict would have been for the plaintiff', because, as 
 two coparceners make only one heir, their joint lease is as good as the 
 joint lease of two joint-tenants would have been.(a) 
 
 2 Roll. Ahr. 719, pi. 25. || (a) See 1 Esp. Ca. 330 ; Adams on Ej. 184 ; 1 Wilfl. 1; 
 2 Wils. 232; and utile, tit. Ejectment, Vol. iii.|| 
 
 Vol. X.— 43 2 F
 
 338 VERDICT. 
 
 (0) Of a Verdict which varies from the Issue. 
 
 If the plaintiff in an action of ejectment declare upon a lease for a 
 term of years made at a day certain, the term demised by which is to 
 commence immediately, and the jury find a lease for the same term made 
 at another day, the verdict is for the defendant, the variance being in a 
 matter of substance.(a) 
 
 2 Roll. Abr. 704, pi. 20. \\(a) The cases referred to under this head are almost all 
 now inapplicable, as by the modern practice the lease, entry, and ouster are con- 
 fessed ; it is only necessary that the term should be of sufficient length to admit of the 
 lessor's recovering; possession before it expires ; and that the day of the demise should 
 be after the lessor's title accrues. || 
 
 But if the plaintiff in an action of ejectment declare upon a lease for a 
 term of years made the first day of May, in a certain year, the term de- 
 mised by which is to commence at the Michaelmas day following, and the 
 jury find a lease for the same term made the first day of June in the 
 same year, the term demised by which is to commence at the Michaelmas 
 day following, the verdict is for the plaintiff; for it is not material upon 
 what day the lease was in such case made, provided it was made before 
 the day on which the term was to commence. 
 2 Roll. Abr. 704, pi. 119. 
 
 If the plaintiff in an action of ejectment declare upon a lease of twenty 
 acres, and the defendant who has pleaded not guilty, be found guilty as 
 to ten acres, the verdict is good ; but it is in this case said, that if the 
 defendant had pleadad non dimisit, and the defendant had been found 
 guilty as to ten acres, the verdict would have been bad. 
 Dalis. 105. 
 
 And it is in a subsequent case laid down, that the plaintiff would in 
 such case be entitled to judgment as to ten acres, notwithstanding the 
 defendant had pleaded non dimisit. 
 
 2 Roll. Abr. 703, Brown v. Meredith, Pasch. 43 Eliz. 
 
 But in a still later case it is laid down, that the plaintiff would not in 
 such case be entitled to judgment ; for that, as the lease found is not 
 that on which issue is joined, the variance is in a matter of substance. 
 2 Roll. Abr. 720, Brown v. Ellis, Pasch. 3 Jac. 1. 
 
 If the plaintiff in an action of ejectment declare upon a lease of a house, 
 and the jury find that only part of the house is built upon the land of 
 the plaintiff, he shall have judgment for that part. 
 Roll. Abr. 704, pi. 22 ; Jenk. 268, pi. 83. 
 
 The plaintiff in an action of ejectment declared upon a lease of a hun- 
 dred acres of land. The jury found the defendant guilty as to forty acres, 
 and as to the residue not guilty. The verdict was holden to be good. 
 
 Cro. Eliz. 13, Guy v. Rand. 
 
 The plaintiff in an action of ejectment declared upon a lease of a fourth 
 part of a fifth part of a field. The jury found the defendant guilty as to 
 a third part of a fourth part of a fifth part. The verdict was holden to 
 be good : and by the court, — The jury may always find the defendant in 
 an action of ejectment guilty as to so much as the plaintiff proves a title 
 unto : but the reporter subjoins a query, In what manner the writ of pos- 
 session is in such case to be executed ? 
 
 1 Sid. 229, Ablett v. Skinner. 
 
 The plaintiff in an action of ejectment declared upon a lease of a moiety 

 
 VERDICT. 339 
 
 (0) Of a Verdict which varies from the Issue. 
 
 of certain premises. The jury found the defendant guilty as to a third 
 
 part of the premises. In order to arrest the judgment, it was said that 
 
 the verdict is bad, because it does not find the defendant guilty as to all 
 
 that the plaintiff has declared for. The rule for arresting the judgment 
 
 was discharged: and by Lord Mansfield, C. J., — There seems to be no 
 
 good reason why the plaintiff in an action of ejectment should not recover 
 
 that part of what he has declared for, to which he proves a title : and it 
 
 is laid down in 1 Sid. 229, that he may recover such part. 
 
 MS. Kep. Burgess v. Burgess, East. 30 G. 2, in B. B. ; [1 Burr. 326, S. C. ;] 
 1| 1 Espin. Ca. 330. || 
 
 If an action of ejectment be brought against a husband and his wife, 
 and only one of them be found guilty, the verdict is good. 
 Latch, 61, Hems v. Stroud. 
 
 6. In an Action of Replevin. 
 
 The defendant in an action of replevin alleged, that the plaintiff held 
 land of him by fealty, suit of court, and the yearly rent of three shillings 
 and four pence ; and he avowed the taking for rent in arrear. The plain- 
 tiff traversed the holding alleged by the defendant, and issue was joined 
 upon the traverse. The jury found that the plaintiff held of the defendant 
 by fealty, and the yearly rent of three shillings and four pence ; but that 
 he did not hold by suit of court. This was holden to be a verdict for the 
 plaintiff, because the whole of the title to distrain alleged by the avowant, 
 every part of which is material in an action of replevin, is not found. 
 
 Cro. Eliz. 790 ; Lewes v. Bucknall, Yelv. 148. 
 
 In an action of replevin, the defendant, a commoner, avowed the taking 
 of cattle damage-feasant upon the eleventh day of April in a certain year. 
 The plaintiff pleaded, that Williams, another commoner, had, upon the 
 thirtieth day of March in the same year, demised his right of common to 
 the plaintiff, to be holden by him from the twenty-fifth day of the said 
 March, for one year. The defendant traversed the demise, and issue was 
 joined upon the traverse. The jury found a demise from Williams to the 
 plaintiff, made the twenty-fifth day of March in the same year, by which 
 Williams had demised his right of common to the plaintiff for one year 
 from thence next ensuing. In order to arrest the judgment, it was insisted, 
 that the demise found is different from that which is in issue : but judg- 
 ment was given for the plaintiff. And by the court, — The substantial 
 part of the issue, namely, whether the plaintiff had at the time of taking 
 his cattle a right of common under a demise from Williams, is found for 
 him ; and the day of making the demise is not material. The report adds, 
 that, if the jury had found any other right of common in the plaintiff 
 than under a demise from Williams, the verdict would have been bad. 
 
 Hob. 72, Pope v. Skinner. || The reporter observes, that the jury might have found 
 a general verdict against the plaintiff on non dimisit, cfr., and could not safely have 
 found for him generally; and see Forty v. Imber, 6 East, B. 434; 1 Saund. 285 b ; 
 2Saund. 312, 319. || 
 
 The defendant in an action of replevin avowed the taking of cattle 
 damage-feasant. In bar of this avowry the plaintiff prescribed for a right 
 of common. Issue being joined upon the prescription, the jury found, that 
 the plaintiff had a right of common ; but they likewise found, that he ought 
 to pay yearly for the same a hen and five eggs. This was holden to be a
 
 340 VERDICT. 
 
 (0) Of a Verdict which varies from the Issue. 
 
 verdict for the plaintiff; for that, as the payment is not parcel of the pre- 
 scription, but a collateral recompense, for which the person to whom it is 
 due has a remedy, it was not necessary for the plaintiff to set out, that 
 he was liable to the payment, his title to the right of common being com- 
 plete without setting this out : but it is added, that if the jury had found, 
 that the plaintiff had a right of common upon paying a hen and five eggs, 
 the verdict would have been for the defendant ; because, as the payment 
 would then have been parcel of the prescription, the plaintiff would not, 
 in case he had omitted to set this out, have shown a complete title to the 
 right of common. 
 5 Hep. 78, Gray's case. || As to pleading prescriptions, see 1 W. Saund. 268. || 
 
 || Where to an avowry for 120/. rent in arrear, the plaintiff pleaded 
 that the said 120/. is not due, and the defendant took issue on the plea, 
 and at the trial it appeared that only 24/. rent was due, and the plaintiff 
 argued that the evidence did not support the issue, and a verdict was 
 taken for the 24/., subject to the opinion of the court, it was held that 
 this finding cured the informality of the issue, which ought to have con- 
 tained the words "or any part thereof." 
 
 Cobb v. Bryan, 3 Bos. & Pul. 348 ; and see 2 W. Saund. 319. 
 
 Where an avowry stated that the defendant held the premises at a cer- 
 tain yearly rent, to wit, the yearly rent of 72/., and the plaintiff pleaded, 
 1st, 710)1 tenait, 2d, ricns in arrear, and the first plea was found for the 
 plaintiff; it was held that the second plea became thereby immaterial, 
 and that the proper course was to discharge the jury from finding any 
 verdict upon it, but that if any verdict was entered upon it, it must be 
 entered for the plaintiff. 
 
 Cossey v. Diggons, 2 Barn. & A. 546. || 
 
 j3 A verdict in replevin that the property is not in the defendant, or not 
 in those in whom, by tho inducement in the plea, it has been stated to be, 
 is insufficient. 
 
 Chambers v. Hunt, 3 Harr. (N. J.) 339.£/ 
 
 7. In an Action of Trespass. 
 
 In an action of trespass the plaintiff declared, for the threshing and 
 carrying away of twenty bushels of barley. The defendant having 
 pleaded not guilty, the jury found him guilty of carrying away the barley, 
 but not of threshing it. This was holden to be a verdict for the plain- 
 tiff. And by the court, — Torts are several, and the carrying away of 
 the barley was a tort, for which the plaintiff is entitled to recover damages. 
 
 2 Roll. Abr. 703, pi. 15. 
 
 In an action of trespass the plaintiff declared for breaking and entering 
 
 his close. The defendant having pleaded not guilty, the jury found, that 
 
 the trespass was committed in the close, and that one acre of the close 
 
 was in possession of the plaintiff: but they likewise found, that a larger 
 
 part of the close was in the possession of tho defendant, and that a still 
 
 larger part thereof was in the possession of J S. This was holden to be 
 
 a verdict for the plaintiff. And by the court, — As it is found, that the 
 
 trespass was committed in the close, and that part of the close was in 
 
 the possession of the plaintiff, he is entitled to recover damages. 
 
 Cro. Eliz. 170 ; Dod v. Coke ; 2 Roll. Abr. 703, pi. 10. II See Richards v. Peake, 
 2 Bam. & C. 918.11
 
 VERDICT. 341 
 
 (0) Of a Verdict which varies from the Issue. 
 
 In an action of trespass, the plaintiff declared for breaking Ins close, 
 and for eating his grass with divers cattle, to wit,(a) with horses, oxen, 
 and cows. The defendant having pleaded not guilty, the jury found him 
 guilty of breaking the close and eating the grass with divers beasts ; and 
 judgment was given for the plaintiff. A writ of error being brought, it 
 was assigned for error, that it is not found, that the grass was eaten by 
 the beasts of any of the kinds mentioned in the declaration. The judg- 
 ment was affirmed. And by the court, — The substantial part of the issue, 
 namely, whether the grass of the plaintiff was eaten by divers cattle of 
 the defendant, is found ; and it is not material of what kind the beasts 
 
 were. 
 
 Cro. Ja. 662, Elston v. Durrant, ||(a) As to the effect of a videlicet in preventing 
 an immaterial averment from becoming material, see 1 W. Saund. 170, n. ; 2 "VV. 
 Saund. 291 b ; and tit. Pleas and Pleadings, (B), Vol. vii. p. 503.(1 
 
 In an action of trespass against J S and J N, the plaintiff declared for 
 taking his gun. The defendant J S pleaded, that the plaintiff made an 
 assault upon A B with the gun, and that thereupon he, in order to keep 
 the peace and preserve the life of A B, took the gun. The defendant J N 
 pleaded not guilty. Issues being joined upon both pleas, the jury found 
 the issue upon the first plea for J S, but they found J N guilty. In order 
 to arrest the judgment against J N, it was insisted, that, as the first issue is 
 found for J S, there ought not to be judgment against J N. Judgment 
 was given against him. And by the court, — As J N is found guilty, the 
 court, rather than suffer him to avail himself of the plea of justification 
 found for J S, will intend that the taking of the gun by J N was at another 
 time. But it is said, that if J S had pleaded a gift of the gun by the plain- 
 tiff, and J N had pleaded not guilty, and the issue upon the plea of J S had 
 been found for him, there could not have been judgment against J N, not- 
 withstanding the issue upon the plea of not guilty has been found against 
 him ; because it would then have appeared to the court, from the finding 
 of the issue upon the plea of J S, that the plaintiff had no cause of action. 
 
 Cro. Ja. 134, Marler v. Ailiff and another. || See 2 Mod. 68. || 
 
 j3 On a collateral issue, whether the injury complained of were the 
 same with the one which was the foundation of an action against a joint 
 trespasser, in which there had been a satisfaction, the jury found that 
 the case was precisely the same ; but three of the jurors added, that they 
 "did not think the defendant should be cleared of the guilt." Held, 
 that the issue was substantially found. 
 
 Duane v. Simmons, 4 Yeates, 441. si 
 
 8. In divers other Actions. 
 
 In an action of account, the defendant pleaded, that he had accounted 
 before J S and J N, auditors assigned by the plaintiff. Issue being 
 joined upon the plea, the jury found that the defendant had accounted 
 before J S only. This was holden to be a verdict for the defendant. 
 And by the court, — The substantial part of the issue, namely, whether 
 he had accounted to an auditor assigned by the plaintiff, is found for him. 
 
 Bro. Vcrd. pi. 99. 
 
 In an assize of darrein presentment the demandant alleged, that the 
 avoidance of the church was by deprivation of the last incumbent. Issue 
 being joined upon the allegation, the jury found, that the avoidance of the 
 
 2p2
 
 342 VERDICT. 
 
 (0) Of a Verdict -which varies from the Issue. 
 
 church was by the death of the last incumbent. This was holclen to be a 
 verdict for the demandant. And by the court, — The avoidance of the 
 church is the substantial part of the issue, the manner of avoiding being 
 only a circumstance. 
 1 Inst. 282. 
 
 In a writ of second deliverance, the plaintiff made title under a deed 
 of feoffment to A and B to his use. The defendant traversed, that the 
 deed of feoffment was to the use of the plaintiff, and issue was joined upon 
 the traverse. The jury found a deed of feoffment to A, B, and C, to the 
 use of the plaintiff. This was holden to be a verdict for the plaintiff. 
 And by the court, — The substantial part of the issue is, whether a deed 
 of feoffment was made to the use of the plaintiff; which being found, it 
 is not material whether the number of the feoffees was two or three. 
 
 Noy, 93, Dicker v. Mollard. 
 
 In a suit upon a writ of prohibition, the plaintiff alleged a modus. 
 
 The defendant pleaded, that there is not such a modus as the plaintiff 
 
 has alleged. Issue being joined upon the plea, the jury found a modus 
 
 different from that alleged by the plaintiff, and a consultation was prayed. 
 
 It was holden, that a consultation ought not to be awarded. And by 
 
 the court, — As the jury have found, that there is a modus, the defendant 
 
 ought not to be suffered to sue in the spiritual court for tithes in kind. 
 
 lVentr. 32, Anon.; [1 Term R. 427, Brock v. Richardson, S. P. ;] || Gwill. Tith. 
 Ca. 1303; Eag. & Young, 353; and ante, tit. Tythes.\\ 
 
 9. In a criminal Prosecution. 
 
 In an indictment for murder, the jury, provided they are satisfied the 
 killing was not of malice aforethought, may find the prisoner guilty of 
 manslaughter ; for the killing is the substantial part of the issue. 
 
 It is said to be usual to prefer two indictments against a person guilty 
 of homicide by stabbing, one upon the statute against stabbing, and an- ! 
 other for murder, that, in case the evidence be not sufficient to convict 
 the prisoner of murder upon the former indictment, he may be convicted 
 of manslaughter upon the latter. 
 
 Fust. 299. 
 
 But it is in other books laid down, that the person indicted upon the 
 statute against stabbing may, upon this indictment, be found guilty of 
 manslaughter ; for that the killing is the substantial part of the issue. 
 
 II. P. C. 58 ; 1 Jo. 433 ; Kel. 132. 
 
 ^ It was charged in an indictment for murder, that Mackally, the prisoner, 
 did feloniously wound Richard Fell, and that he died of the wound. The 
 jury found, that Mackally did give a wound to Richard Fell, together with 
 the circumstances which attended the giving of it, and that he died of the 
 wound; and they concluded their verdict in these words: "If upon the 
 whole matter the court shall be of opinion that the killing was murder, then 
 we find Mackally guilty of murder in the manner it is charged in the indict- 
 ment." An exception was taken, that, as the jury had not found that 
 Mackally did feloniously wound Richard Fell, the court could not adjudge 
 that the wounding was felonious. The exception was not allowed. And 
 by the court, — The jury may in any case find the fact with its circumstances, 
 and submit the law arising thereupon to the consideration of the court. 
 In the present case the jury have moreover virtually found, that the wound-
 
 VERDICT. 343 
 
 (P) Of the Words Modo et Forma in a Verdict. 
 
 ing was felonious ; for they say, that, if upon the whole matter the court 
 shall be of opinion that the killing was murder, then we find Machally 
 guilty of murder in the manner it is charged in the indictment. The 
 consequence is, that as the court have adjudged the killing to be murder, 
 the jury have found Mackally guilty of murder in the manner it is charged 
 in the indictment ; and it is therein charged that the wounding was fe- 
 lonious. 
 9 Rep. 63, 69, Mackally's case. 
 
 In an information against J S and J N, the engrossing of a thousand 
 quarters of corn was charged. The defendants having both pleaded not 
 guilty, the jury found that J S had engrossed seven hundred quarters of 
 corn. The other defendant J N was found not guilty. It was holden, 
 that judgment should be given against J S, because the information is 
 for a tort, and torts are several. 
 2 Roll. Abr. 707, pi. 48. 
 
 (P) Of a Verdict -where the "Words Modo et Forma are contained in the Traverse upon 
 
 which Issue is joined. 
 
 If issue be joined upon a traverse in which the words modo et forma 
 are contained, some circumstances, that would not otherwise be so, are 
 by these words made material, and must be found by the verdict. 
 
 2 Roll. Abr. 708, pi. 58. || See Vin. Abr. tit. Modo et Forma.\\ 
 
 If a feoffment by deed be traversed, and the words modo ct forma be 
 contained in the traverse, and the jury find a feoffment without deed, the 
 verdict is bad ; the words modo et forma being in this case essential to 
 the issue. 
 
 1 Inst. 281. 
 
 In an action of debt the plaintiff declared, that the defendant was in- 
 debted to him in the sum of forty shillings for a horse sold. The defend- 
 ant pleaded nil debet modo et forma, and issue was joined upon the plea. 
 The jury found, that the defendant was indebted to the plaintiff in the 
 sum of forty shillings for two horses sold. The verdict was holden to 
 be bad ; because the contract found is different from that upon which 
 issue is joined. 
 
 2 Roll. Abr. 702, pi. 2. || But the count now would only express horses, &c, goods, 
 wares and merchandises, sold, &c, and the only reason why the plaintiff is bound to 
 show wherein the defendant is indebted is, that it may appear that it is not on a 
 record or specialty, but on a simple contract. 2 Will. Saund. 350. || 
 
 In an action of replevin the defendant avowed the taking as a distress 
 for rent in arrear, and made title in himself to distrain, by virtue of an 
 absolute devise from J S to him of the place in which the distress was 
 taken. The plaintiff pleaded, that J S did not devise to the defendant 
 modo et forma as he has alleged, and issue was joined upon the plea. The 
 jury found a devise from J S to the defendant upon a condition prece- 
 dent ; and they also found, that the condition was performed at the time 
 the devise was pleaded. The verdict was holden to be for the plaintiff. 
 And by the court, — As the devise to the defendant is conditional, and 
 not absolute, it is not such a devise as he has alleged. 
 
 2 Roll. Abr.' 709, pi. 61. 
 
 A devise by J S, of certain premises to J N, in fee having been pleaded, 
 the plaintiff replied, that J S did not devise modo et forma as the defendant 
 has alleged. Issue being joined upon the replication, the jury found that
 
 344 VERDICT. 
 
 (P) Of the Words Modo et Forma in a Verdict. 
 
 J S devised the premises to A, for a term of years, with remainder to J N, 
 in fee, and that the term was subsisting. It was holden, that, as the devise 
 found is substantially different from that on which the issue is joined, the 
 one being a devise of an estate in possession, the other a devise of an 
 estate in remainder, it is not such a devise as the defendant has alleged. 
 1 Jon. 22-4, Rex v. Nudigate. 
 
 Upon considering the cases already cited, it will appear, that the cir- 
 cumstances traversed by traversers in which the words modo et forma 
 were contained were holden to be material, because they were essential 
 to the issues : from whence it may be fairly inferred, that the verdict 
 was not in any one of the cases holden to be bad, merely because the 
 words modo et forma were contained in the traverse upon which it was 
 joined, but because the jury had not found a circumstance, which was 
 essential to the issue. 
 
 It will appear from some other cases which shall be mentioned, that, 
 although the words modo et forma are contained in the traverse upon 
 which issue is joined, the materiality of what is traversed very seldom 
 depends upon these words. 
 
 It is in one book laid down generally, that although the words modo et 
 forma are contained in the traverse upon which issue is joined, it is not- 
 necessary that the verdict should find every circumstance which is tra- 
 versed ; for that, if all the material circumstances of the issue are found, 
 it is not necessary that any immaterial circumstance should be found. 
 
 1 Inst. 281. || And these words, though usual, are not essential in a traverse ; a id 
 the omission of them is not cause of demurrer. Com. Dig. Pleader, (G) l.|| 
 
 If a man bring a writ of entry in casu proviso upon the alienation of te- 
 nant in dower to his disherison, and allege an alienation in fee ; and the 
 tenant plead, that she did not alienate modo et forma, and issue be joined 
 upon the plea, and it be found by the jury that the tenant did alienate in 
 tail or for life, the demandant shall recover, notwithstanding the alienation 
 was not such an alienation as is alleged ; because, as the substantial part 
 of the issue, namely, whether the tenant did alienate to the disherison of 
 the demandant, is found, the manner of alienating is not material. 
 
 1 Inst. 281. 
 
 In an action of trespass, the plaintiff declared for the taking of his goods 
 upon a day certain, and at a place certain. The defendant pleaded not 
 guilty, modo et forma as the plaintiff has alleged, and issue was joined upon 
 the plea. The jury found the defendant guilty upon another day, and at 
 another place. The verdict was holden to be good ; because the substan- 
 tial part of the issue, namely, whether the goods were taken, is found, and 
 neither the day when, nor the place where, they were taken is material, 
 1 Inst. 282. || See 1 Chitty on Plead. 257 ; Stephen on Plead. 312.|| 
 
 || Where the plaintiff' declared for an assault and battery, and tearing 
 his clothes, and the defendant pleaded that he was not guilty of the said 
 supposed assaults in manner and form as the plaintiff had complained; 
 it was held that by the modo et forma the battery and laceravit were de- 
 nied as well as the assault. 
 Weathrell v. Howard, 3 Bing. 135. || 
 
 In an action of trespass quare clatisumf regit, the defendant justified un- 
 der a right of common in the loeus in quo, from the day of Pentecost in every 
 year to a day certain in the same year. The plaintiff' traversed that the
 
 VERDICT. 345 
 
 (P) Of the words Modo ct Forma in a Verdict. 
 
 defendant had a right of common modo et forma as he had alleged, and 
 issue was joined upon the traverse. The jury found, that the defendant 
 had a right of common upon the day of Pentecost in every year, and 
 from the day next thereunto, until the day certain in the same year men- 
 tioned in his plea. This was holden to be a verdict for the defendant ; 
 because the substantial part of the issue, namely, whether he had a right 
 of common at the time the trespass is charged, is found ; and it is not 
 necessary that the title of the defendant to the right of common should 
 in such case be found precisely as it is set out. But it was in this case 
 agreed, that if a man bring an assize of right of common, it is necessary 
 to set out a title thereto, and that this must be found precisely as it is 
 set out ; for that the demandant is not in such case entitled to recover, 
 unless it be found by the jury that he has the very title to the right of 
 common which is set out. 
 Moor, 864, Thorowgood v. Johnson ; 2 Roll. Abr. 708, pi. 55, S. C. 
 
 In an action of trespass, the plaintiff declared for breaking Ms house 
 and taking his goods. The defendant pleaded, that the house is holden 
 of him, as of his manor of A, by homage, fealty, escuage, suit of court, 
 and the yearly rent of one pound of cummin seed, and that he entered 
 the house and distrained the goods for three years' rent in arrear. The 
 plaintiff replied, that the house is holden of J S as of his manor of B, 
 absque hoc that it is holden of the defendant modo et forma as he has 
 alleged. Issue being joined upon the replication, the jury found, that the 
 house is holden of the defendant, as of his manor of A, by homage, fealty, 
 and the yearly rent of one pound of cummin seed, and not otherwise. 
 This was holden to be a verdict for the defendant : and by the court, — 
 Notwithstanding the verdict does not find the holding to be precisely as 
 the defendant has alleged, it finds the substantial part of the issue, that 
 the house is holden of the defendant ; which, although it would not have 
 been sufficient finding in an action of replevin, is so in the present action, 
 wherein the defendant is charged as a wrong-doer. 
 
 Yelv. 148, Goodman v. Ayling. 
 
 The declaration in an action upon the case charged the speaking of the 
 following words, — There is a great nest of thieves at Pirton, and Sir John 
 Brugis is the maintainer of them, and he is a strong thief himself. The 
 defendant traversed the speaking of the words modo et forma as the plain- 
 tiff has alleged. Issue being joined upon the traverse, the jury found that 
 the defendant spoke all the words charged, except the word strong, and 
 assessed damages for the plaintiff. Upon a motion in arrest of judgment, 
 it was insisted, that, as all the words charged are not found to have been 
 spoken by the defendant, the plaintiff ought not to have judgment : but 
 judgment was after deliberation given for the plaintiff. 
 
 Dyer, 75, Brugis v. Warneford. || See 1 Will. Saund. 242 a,|| 
 
 In an action upon the case, the plaintiff charged the speaking of the 
 following words, — If Sir John Sidenham might have his way he would 
 kill the king. The defendant traversed the speaking of the words modo 
 et forma as the plaintiff has alleged. Issue being joined upon the traverse, 
 the jury found, that the defendant spoke the following words, — I think 
 in my conscience if Sir John Sidenham might have his way he would 
 kill the king. Haughton, J., was of opinion, that as the jury have found 
 other words as well as those charged, the verdict is for the defendant : but 
 Montagu, C. J., Croke, J., and JDodderidge, J., were of opinion, that as 
 
 Vol. X.— 44
 
 346 VERDICT. 
 
 (Q) Of a Verdict not finding the Matter in Issue with Certainty. 
 
 the words charged are all found, and the other words found do not alter 
 the sense or take off the force of the words charged, the verdict is for 
 the plaintiff; and judgment was given for him. A writ of error being 
 brought in the Exchequer-chamber, Hobart, C. J., of the Common Pleas, 
 Wynch, and Denham, were of opinion that, as the manner and form of 
 speaking the words is traversed, and they are not found to have been 
 spoken precisely as they are charged, the verdict is for the defendant : 
 but Tanfield, C. B., Warburton, Bromley, and Hutton being of a different 
 opinion, the judgment of the Court of King's Bench was affirmed. 
 Cro. Ja. 407, Sidenham v. Man. 
 
 (Q) Of a Verdict which does not find the Matter in Issue -with Certainty. 
 
 In an action of ejectment for a messuage, the jury found the defendant 
 guilty as to so much of the messuage as stands upon a certain bank. The 
 verdict was holden to be bad, because it is uncertain : and by the court, 
 — Although a verdict which finds the defendant guilty as to part of what 
 is demanded in ejectment may be good, it can only be so where the de- 
 fendant is found guilty as to a certain part ; because, if the verdict do 
 not find something in certainty, the court cannot give judgment ; for 
 the maxim is, oportet quod res certa deducatur in judicium. 
 
 Mar. 97, Juxon v. Andrews. {See 2 Day, 68, Kinney v. Williams.} 
 
 In an action of dower the tenant pleaded that the husband of the de- 
 mandant was never seised of the premises of which she demanded dower. 
 Issue being joined upon the plea, the jury found that the husband was 
 seised of the premises, except so much thereof as belonged to J S. The 
 verdict was holden to be bad ; because, as it does not appear what part 
 of the premises did belong to J S, the court cannot tell of how much to 
 give judgment. 
 
 2 Roll. Abr. 694, (U), pi. 2. 
 
 In an assize the demand was of an arrear of a rent-charge of twenty 
 pounds devised to the demandant. The jury found that the rent-charge 
 was in arrear for the term of thirty years ; but they did not find when 
 the devisor died. The verdict was upon a writ of error holden to be bad ; 
 because, as the time of the devisor's death is not found, it does not ap- 
 pear at what time the thirty years ended, for which the rent-charge is 
 found to be in arrear. 
 
 Cro. Car. 521, Morris v. Prince. 
 
 In an action of debt the plaintiff declared for divers sums of money, 
 amounting in the whole to forty pounds. Issue being joined upon the 
 plea of nil debet, the jury found that the defendant was indebted to the 
 plaintiff in the sum of thirty pounds, but that the residue of the forty 
 pounds was not due to the plaintiff. Judgment being given for the 
 plaintiff, it was upon a writ of error holden, that, as the verdict does not 
 find in which of the particular sums the defendant was indebted to the 
 plaintiff, he ought not to have had judgment ; because, as it is uncertain 
 for which of the sums the judgment was given, the defendant can never 
 know how to plead the judgment in bar, in case another action should 
 be brought for any of the sums ; and the judgment was reversed. 
 
 Cro. Ja. 653, Treswoll v. Middleton. || This was before it was established, that the 
 plaintiff might recover i less sum than he demands. 1 II. Black. 249.11
 
 VERDICT. 347 
 
 (Q) Of a Verdict not finding the Matter in Issue with Certainty. 
 
 It appears from the cases already cited, that the verdicts therein were 
 holden to be bad, because they were uncertain as to something which was 
 material to the gist of the action ; and it may be inferred from the follow- 
 ing cases, that if the thing, as to which a verdict is uncertain, be not essen- 
 tial to the issue, the verdict is, notwithstanding such uncertainty, good. 
 
 In an action of trespass quare clausum fregit, the declaration charged, 
 that the trespass was committed in a certain acre of land, of which the 
 abuttals were set forth. Issue being joined upon the plea of not guilty, the 
 jury found the defendant guilty of a trespass in one half of the acre, and 
 assessed damages for the plaintiff; but they did not find in which half the 
 trespass was committed. The verdict was holden to be certain enough : 
 and by the court, — As damages are to be recovered in this action, and not 
 the land itself, the plaintiff may recover damages for a trespass in one half 
 of the acre; and it is not material in which half it was committed. 
 Nov, 125, Winksworth v. May, Mar. 97. 
 
 In an action of debt upon the 1 Jac. 1, c. 22, for felling oaks at a time 
 prohibited, not guilty was pleaded, and issue was joined upon the plea. 
 The jury found that the defendant had felled ten oaks, and that the value 
 of each was six shillings and eight pence. Upon a motion in arrest of 
 judgment it was insisted, that the verdict is bad, because the jury have not 
 added the sums together and found a precise sum. The verdict was holden 
 to be good : and by the court, — If the defendant had pleaded nil debet the 
 verdict would have been bad, for want of having found a precise sum to 
 be due ; but it is not necessary that a precise sum should be found to be 
 due, where the plea in an action of debt is not guilty. 
 
 1 Kcb. 835, Duke of Norfolk v. Johnson. 
 
 An indictment was found against a person for exercising a trade unlaw- 
 fully for the space of three months ; to wit, from a day certain to a day 
 certain. Issue being joined upon the plea of not guilty, the defendant was 
 found guilty as to one month, without saying which ; and not guilty as to 
 the two other months. Upon a motion in arrest of judgment, it was in- 
 sisted, that as it does not appear for which of the three months the defend- 
 ant is found guilty, he cannot plead a conviction upon this indictment in 
 bar of a second for the same offence. The verdict was holden to be cer- 
 tain enough : and by the court, — If a second indictment should be found 
 against the defendant, he may plead a conviction upon the first indictment 
 for one month, and traverse his having been guilty any other month. 
 
 12 Mod. 5G1, Anon. || As to pleading auterfois acquit, and convict, when the records 
 vary so that it is necessary to show the identity of the offences by averment, see 
 1 Stark. C. L. 325 ; and see tit. Pleas and Pleadings, (I) 13, Vol. vii.|| 
 
 (3 The jury must answer to the whole issue with which they have been 
 charged. 
 
 Kerr v. Hawthorne, 4 Yeates, 295. 
 
 The verdict of the jury is not vitiated by their finding, in addition to 
 what is in issue, matter merely superfluous. 
 
 Cavene v. McMichacl, 8 S. & R. 441 ; Fisher v. Kean, 1 Watts, 259. 
 
 In an action for freight and demurrage, the verdict was in these words, 
 "We find for the plaintiff, and are of opinion that the plaintiff has already 
 received, out of the property of the defendant, payment in full for the 
 amount of freight to which he is entitled." Set aside for uncertainty. 
 
 Diehl v. Evans, 1 S. & 11. 367.
 
 348 VERDICT. 
 
 (R) Of a Verdict which does not find the Matter in Issue expressly. 
 
 In a real action, if the jury find by their verdict that as to " all the de- 
 manded premises above low water-mark, the defendant has a better right 
 to recover than the tenant has to hold," such verdict is good, it being 
 sufficiently certain to enable the sheriff to execute it by habere facias. 
 
 Adams v. Frothingham, 3 Mass. 352. 
 
 After the verdict has been received and recorded, and the jury has 
 been dismissed, they cannot alter their verdict on an allegation of mistake. 
 Walter v. Junkins, 16 S. & R. 414. 
 
 But they may be sent back to correct an informality, if discovered 
 before they are dismissed. 
 
 Walfran v. Eyster, 7 Watts, 38 ; 4 Watts, 357. 
 
 When the issue joined is material, the verdict ought to find the issue 
 for or against the party tendering it. 
 Holmes v. Wood, G Mass. 1. 
 
 When a verdict finds two inconsistent material facts, it is void. 
 Stearns v. Barrett, 1 Mason, 153. 
 
 A qui tarn action for three several penalties of thirty dollars each : a 
 general verdict for one penalty, without designating the offence of which 
 .the defendant was guilty, is bad. 
 
 Whitlock v. Tompkins, 1 Penning. 273. £/ 
 
 (II) Of a Ycrdict which does not find the Matter in Issue expressly. 
 
 The matter in issue was, Whether J S had resigned a certain bene- 
 fice to a certain bishop. The jury found an instrument under the seal 
 «of the bishop, upon which there was an endorsement, that J S had re- 
 signed the benefice to the bishop, and that he had accepted the resigna- 
 tion. The verdict was holden to be bad ; because it does not find 
 expressly that J S had resigned the benefice. 
 
 Noy, 147, Smith v. Foaves. ||See 1 East, lll.|| 
 
 An estate having been granted by copy of court-roll to three persons 
 for their lives, the matter in issue was, Whether a heriot was, by the 
 custom of the manor, due upon the death of one of the three persons. 
 The jury found, that the custom of the manor did not warrant the granting 
 of an estate for three lives. The verdict was holden to be bad ; because 
 it only finds argumentatively that a heriot ought not to be paid; Ayhereas 
 it is the duty of the jury to find the matter in issue expressly. 
 
 2 Roll. Abr. 693, (S), pi. 1. 
 
 If the matter in issue be whether an estate may by the custom of a 
 manor be granted by copy of court-roll for two lives, and the jury find, 
 that an estate may by the custom of the manor be granted for three 
 lives, the verdict is bad ; because it is only argumentative to say, that, 
 inasmuch as a greater estate may by the custom of the manor be granted, 
 a less one may. 
 
 •2 Roll. Abr. 693, (S), pi. 2. 
 
 In an action of assumpsit the plaintiff declared, that the defendant in 
 consideration of four pence promised to give the plaintiff forty pounds. 
 Issue being joined upon the plea of non assumpsit, the jury found a special 
 verdict in these words, "If the law will that the jury shall give damages 
 to the amount of forty pounds, then they assess damages to that amount ;
 
 VERDICT. 349 
 
 (S) Of a Verdict which finds a Matter in a Foreign County. 
 
 but, if the law will that the jury may give damages as they please, then 
 they assess damages to the amount of three pounds and no more." The 
 verdict was holden to be bad ; because the jury have not assessed any 
 damages expressly. 
 2 Roll. Abr. 095, pi. 6. 
 
 If the matter in issue be, whether a thing is fraudulent, the court will 
 never conclude that it is so, however strong the circumstances of fraud 
 found by the jury are. 
 
 Cro. Car. 550, Crisp v. Pratt. 
 
 In an action of trover the court will never intend that the defendant 
 
 is guilty of a conversion, unless it be expressly found that he is, however 
 
 strongly the circumstances found by the jury may tend to show that he 
 
 is guilty. 
 
 2 Mod. 244, 245, Mires v. Solebay ; 10 Rep. 57. || See 2 Will. Saund. 47 e ; Wil- 
 ton v. Girdlestone, 5 Barn. & A. 847. || 
 
 The court will never intend, from any evidence of circumstances found 
 by the jury, that the defendant in an indictment is guilty of the offence 
 therein charged, unless the jury expressly find him guilty. 
 
 12 Mod. 628, Rex v. Plummer. 
 
 PWhen a declaration in trespass contains two counts for the same tres- 
 pass, and the defendant pleads the general issue as to both, and a special 
 plea in bar as to one of them ; and on trial a verdict is found for him on 
 the special plea, he is entitled to a verdict on the general issue like- 
 wise. 
 
 Curt v. Lowell, 19 Pick. 25. 
 
 When the verdict does not find the issue joined by the parties, in terms, 
 yet, if the court can collect the point in issue, the verdict will be suffi- 
 cient. 
 
 Stearns v. Barrett, 1 Mason, 153. gf 
 
 (S) Of a Verdict which finds a Matter in a Foreign County. 
 
 If the venue in an action for a transitory trespass be laid in the county 
 of A, a jury of the county of A may find a verdict in the action ; notwith- 
 standing it appear in evidence, that the trespass was committed in the 
 county of B. But it is added, that they are not bound to find a verdict. 
 
 Bro. Attaint, pi. 104. 
 
 The latter part of the doctrine of this book is in another book express- 
 ly denied to be law ; and it is in the latter laid doAvn, that although a 
 venue must in every action be laid in some place, the place is not mate- 
 rial in an action for a transitory trespass ; and that the jury of the county 
 where the venue in an action for such trespass is laid are bound, under 
 the penalty of an attaint, to find the defendant guilty, although it appear 
 in evidence that the trespass was committed in another county. 
 
 6 Rep. 47, Dowdale's case. || See 2 H. Black. 161 ; 7 Term R. 243 ; 1 Saund. 8 a, 
 and the judgment of Abbott, C. J., R. v. Burdett. 4 Barn. & A. 171 : Stcph. on Plead. 
 310.|| 
 
 In an action of debt against an executor he pleaded plene administra- 
 vit. The plaintiff replied, that the executor had assets at Exeter in the 
 county of Devon. Issue being joined upon the replication, the jury 
 found, that the defendant had assets in Ireland. This was holden to be 
 
 2G
 
 350 VERDICT. 
 
 (S) Of a Verdict -which finds a Matter in a Foreign County. 
 
 a verdict for the plaintiff: and by the court, — It is usual for merchants 
 to have a great part of their goods in foreign parts, and God forbid that 
 such goods should not be liable to their debts in England. (a) 
 
 6 Rep. 47, Dowdale's case. f| (a) Every action of a transitory nature may be laid 
 in any county in England, though the matter arises beyond the seas. Per Ld. Mans- 
 field, Mostyn v. Fabrigas, Cowp. 181; and see Melan v. Duke of Fitzjames, 1 Bos. & 
 Pul. 138.|| 
 
 It is in the general true, that the jury ought to find every local matter 
 in its proper county. 
 Bro. Verd. pi. 80 ; 2 Roll. Abr. 688, (M), pi. 1. 
 
 But if an action be brought for a local matter in the county of A, and 
 the defendant, by pleading a release in the county of B,(6) make it 
 necessary to try the issue concerning the validity of the release in the 
 county of B, the jury of the county of B may assess damages for the local 
 matter in the county of A, it being a maxim of law, that multa conce- 
 duntur per obliquum quce non conceduntur per directum. 
 
 6 Rep. 47, Dowdale's case ; Bro. Damage, pi. 53, pi. 103 ; Bro. Trial, pi. 118 ; 
 2 Roll. Abr. 687, pi. 1. \\{b) The release being a transitory matter, the plea would 
 now follow the venue in the declaration, and it would be tried in the county of A.|| 
 
 If in an action brought in the county of A the general issue be pleaded, 
 the jury of the county of A may find a local matter in any other county, 
 provided the matter be incidental to the issue joined in the county of A. 
 
 In an action of debt upon the statute against bargaining for pretended 
 titles, the bargain was alleged to have been made in the county of Nor- 
 folk ; but the land bargained for was in the county of Suffolk. The de- 
 fendant pleaded nil debet, and issue was joined upon the plea. It was 
 holden, that the jury of the county of Norfolk, who tried the issue, might 
 find the value of the land ; because the value thereof is incidental to the 
 issue. 
 
 2 Roll. Abr. 688, Pike v. Hassen, 3 Leon. 233. || See the case of Way v. Yalley, 
 6 Mod. 194, 195 ; Salk. 651, -where debt was held to lie on a demise of lands in Ja- 
 maica ; for it was founded on privity of contract, and might, therefore, be brought 
 anywhere. || 
 
 If in an action of debt brought in the county of A against an heir, he 
 plead riens per descent, and issue be joined upon the plea, the jury may 
 find assets per descent in any county ; because the heir is answerable for 
 all assets per descent. 
 
 6 Rep. 47, Dowdale's case. 
 
 In an action of detinue for a release made in the county of A, the 
 plaintiff alleged, that, by reason of the detention of the release, he lost 
 lands in the county of B. The defendant pleaded non detinet, and issue 
 was joined upon the plea. It was holden, that the jury of the county 
 of A, who tried the issue, might assess damages to the value of the land : 
 And by the court, — As the loss of the land is laid in aggravation of da- 
 mages, it is incidental to the issue. 
 
 Bro. Damage, pi. 87 ; Jenk. 20, pi. 38. 
 
 There seems to be good reason that the jury, who try an issue, should 
 in every case assess damages for a matter in a foreign county, which is laid 
 in aggravation of damages, notwithstanding the matter be local; otherwise 
 a writ must go to a jury of the foreign county to inquire of the damages
 
 VERDICT. 351 
 
 (T) Of a Verdict which is contrary to a Matter of Record. 
 
 in that county, which would not be so proper ; because a jury are not 
 liable to an attaint for a false verdict upon a writ to inquire of damages. 
 
 2 Roll. Abr. 688, (L), pi. 3. 
 
 If an action be brought in an inferior court, the jury by whom an issue 
 in the action is tried may find any matter incidental to the issue, although 
 it arise out of the jurisdiction of the court. 
 
 An action of debt being brought in an inferior court against J S as 
 heir to J N, the defendant pleaded riens per descent, and issue was joined 
 upon the plea. The jury found assets out of the jurisdiction of the court, 
 and the plaintiff had judgment. A writ of error being brought, it was 
 assigned for error, that the jury had no power to find assets out of the 
 jurisdiction of the inferior court. The judgment was affirmed : And by 
 the court, — As the matter found out of the jurisdiction of the inferior 
 court is incidental to the issue, the verdict is good. 
 Cro. Ja. 502, Bourn v. Carrington. 
 
 In an action upon the case for words, brought in an inferior court, the 
 plaintiff alleged, that, by reason of the speaking of the words, he lost cus- 
 tomers at a place out of the jurisdiction of the court. The defendant 
 having pleaded not guilty, the jury found a verdict for the plaintiff, and 
 assessed damages to the amount of a hundred marks ; and judgment was 
 given for the plaintiff. A writ of error being brought, it was assigned 
 for error, that the jury have assessed damages for a matter arising out 
 of the jurisdiction of the court, which it was said they had no power to 
 do. The judgment was affirmed : And by the court, — The jury, by whom 
 an issue is tried in an inferior court, cannot find an original matter, unless 
 the same arose within the jurisdiction of the court ; but the verdict is in 
 the present case good ; because the matter alleged out of the jurisdiction 
 of the court, which is laid in aggravation of damages, is not an original 
 matter, but incidental to the issue. 
 Cro. Car. 570, Ireland v. Lockwell. || See 1 W. Saund. 74 b.|| 
 
 It is a rule of law, that a jury cannot find a person indicted for an of- 
 fence guilty, in any other county than that wherein the offence was com- 
 mitted ; it being a maxim of law, that ubi quis delinquit ibi punietur. 
 
 6 Rep. 47, Dowdale's case. 
 
 But if J S, who has stolen goods in the county of A, carry them into 
 the county of B, he may be found guilty of larceny in the county of B ; 
 for, as the legal possession as well as the property of the goods stolen 
 does, notwithstanding the felonious taking, continue in the person from 
 whom they were taken, every moment's continuance of the illegal posses- 
 sion obtained by the thief is as much a felonious taking as the first taking 
 was ; and, consequently, he does, by continuing the illegal possession of 
 the goods in the county of B, become guilty of larceny in that county. 
 
 H. P. C. 09 ; 1 Hawk. c. 33, \ 9. || By 7 G. 4, c. 64, \ 12, where any felony or mis- 
 demeanor shall be committed on the boundaries of two or more counties, or within 
 five hundred yards thereof, or shall be begun in one county and completed in another, 
 every such felony or misdemeanor may be dealt with, inquired of, tried, determined 
 and punished in any of the said counties, in the same manner as if actually and 
 wholly committed therein. And see Archbold's C. L. 3.|j 
 
 (T) Of a Verdict which is contrary to a Matter of Record. 
 
 Every verdict, so far as it is contrary to a matter of record, is bad ; 
 because more credit is due to the record than to the verdict. 
 Bro. Verd. pi. 96.
 
 352 VERDICT. 
 
 (U) Of a Verdict which is contrary to a Matter of Estoppel. 
 
 If the jury find any thing contrary to what one of the parties to the 
 action has confessed, the verdict is as to so much bad ; because it is a 
 finding contrary to a matter of record. 
 
 Bro. Verd. pi. 96. 
 
 To a writ of scire facias brought against J S as heir to his father, upon 
 a recognisance entered into by his father, he pleaded riens per descent. 
 Issue being joined upon the plea, the jury found, that J S had land by de- 
 scent as heir to his father : and the plaintiff had execution of the land. An 
 action of ejectment being afterwards brought by J S, in order to recover 
 the possession of the same land, the jury found that the land did not de- 
 scend to J S as heir to his father, but that it came to him as donee in tail 
 upon the death of his father. The verdict was holden to be bad ; because, 
 it is contrary to the verdict in the action upon the writ of scire facias, it 
 being thereby found that the land did descend to J S as heir to his father. 
 
 Palm. 20, Crawley's case, there cited, 1 Roll. R. 443. || The first verdict seems to 
 have been expi'essly on the point in issue, and between the same parties, in which 
 case a verdict is conclusive. See judgment of De Grey, C. J., 11 Sta. Tri. 261; 
 22 Howell's Sta. Tri. 588; and see 1 Phillips on Ev. 304, and cases there collected. [| 
 
 It is in one book laid down generally, that, if a verdict have been found 
 against a tenant in tail, no one of the issue in tail can falsify the verdict. 
 1 Roll. R. 443, Crawley v. Morton. 
 
 But in another book it is said, that although no one of the issue in tail 
 can falsify a verdict, which has been found against a tenant in tail, di- 
 rectly, he may do it obliquely ; as, by showing that the tenant in tail did 
 not give a material thing in evidence, which it is in his power to give. 
 
 Ld. Raym. 1050, Traviban v. Lawrence. 
 
 If a venire facias de novo have been awarded, # the first verdict, notwith- 
 standing it be continued upon the record, is a nullity ; and, consequently, 
 the second verdict is not bad, although it be contrary to the first. 
 
 Cro. Ja. 627, Langley v. Pain. 
 
 (U) Of a Verdict which is contrary to a Matter of Estoppel. 
 
 It is more proper to plead a matter of estoppel, than to give it in evi- 
 dence ; because, when the matter of estoppel is pleaded, the judgment 
 of the court may be had thereupon without going to trial. 
 
 1 Inst. 227. 
 
 But a matter of estoppel may be given in evidence ; and if such matter 
 be given in evidence, and the jury find contrary thereto, the verdict is bad. 
 
 1 Inst. 227 ; Dyer, 171 ; 2 Rep. 4; Cro. Eliz. 140 ; 1 Leon. 206. 
 
 || But it is now settled that, unless pleaded by way of estoppel, such mat- 
 ter is not conclusive. In a late case of an action on the case for widening 
 a water channel, and thereby damaging the plaintiff's mill, the Court of 
 King's Bench held, that a verdict obtained by the defendant in a former 
 action, which had been brought by the plaintiff for the same cause, was 
 not conclusive as evidence under the general issue, though it would have 
 had that effect if pleaded in bar by way of estoppel. When a judgment is 
 pleaded as an estoppel, the plaintiff will not be allowed to discuss the case 
 with the defendant, and for the second time to vex him by the agitation of 
 the same question ; but if the defendant plead not guilty in the second 
 action, he has thereby elected to submit his case to the jury, who are to give 
 their verdict upon the whole evidence submitted to them. The jury upon
 
 VERDICT. 353 
 
 (W) Of a Verdict which is contrary to something that is confessed, &c. 
 
 the general issue are to try, not whether the plaintiff is estopped from try- 
 ing the question, but whether the defendant be really guilty of the wrongful 
 act imputed to him. 
 Outram v. Morewood, 3 East, 354 ; Vooght v. Winch, 2 Barn. & A. 062. || 
 
 If J S, after having by indenture demised certain premises for a term 
 of years, during the term bring an action of ejectment for the recovery 
 of the possession of the premises, and the indenture be given in evidence, 
 and the jury find contrary thereto, the verdict is bad ; because it is con- 
 trary to a matter of estoppel : for the jury ought in such case either to 
 find for the defendant, or to find the matter specially. 
 
 Cro. Car. 110, Iseham v. Morrice. || But see suprcl.\\ 
 
 (W) Of a Verdict which is contrary to something that is confessed, or not denied, in 
 
 the Pleadings. 
 
 If the jury find one thing contrary to some other thing, that is con- 
 fessed, or not denied, in the pleadings, the verdict is as to so much bad ; 
 because the jury had nothing to do with that which is confessed, or not 
 denied in the pleadings. 
 
 Dyer, 147; 2 Rep. 4; Cro. Eliz. 283 ; 2 Roll. Abr. 691, R. pi. 1 ; {3 Cran. 270.} 
 
 The tenant in an action of dower pleaded, that the husband of the de- 
 mandant did not die seised of the estate of which she demanded dower, 
 and issue was joined upon the plea. The jury found that the husband died 
 ceised : but they likewise found, thut the estate was not liable to dower. 
 The latter part of the verdict was holden to be bad ; because, as the plea 
 does not deny the liability of the estate to dower, it virtually confesses it. 
 2 Roll. Abr."o91, (R), pi. 2. 
 
 If the demandant in an action of waste, wherein the waste is charged 
 in a place called A, plead, that there is no such place as A, and issue be 
 joined upon the plea, and it be found against him, the jury have no power 
 to inquire whether the waste were committed ; because the commission 
 of the waste is not denied in the plea. 
 
 2 Roll. R. 091, (R), pi. 3. 
 
 An action of debt being brought upon a bond, with condition to per- 
 form an award to be made by J S, the defendant pleaded, that J S did 
 not make the award alleged by the plaintiff. The plaintiff replied, that 
 J S did make the award : and issue was joined upon the replication. The 
 jury found, that J S did make the award ; but they found likewise a mat- 
 ter in avoidance thereof.(rt) The latter part of the verdict was holden to 
 be bad ; and by the court, — The award, as the issue is only whether J 
 S did make it, shall be taken to be good, unless it appear upon the face 
 thereof to be bad ; and, as the defendant could not have rejoined any 
 matter in avoidance of the award, because this would have been a depart- 
 ure, the jury had no power to find such matter. 
 
 2 Roll. Abr. 690, pi. 10. || (a) See 1 Salk. 72 ; 1 W. Saund. 327 b, ace. ; sed vide 
 1 W. Saund. 103, note (1), contra; and see 11 East, 188. See Pleas and Pleadings, 
 (L), Vol. vn.|| 
 
 In an action of debt against an heir, upon the bond of his father, the 
 defendant pleaded, that he had nothing by descent except twenty acres 
 of land in A. The plaintiff replied, that, besides the twenty acres in A, 
 he had forty acres of land by descent in B. The defendant rejoined, that 
 he had not forty acres of land by descent in B, and the issue ioined upon 
 
 Vol. X.— 45 2 g 2
 
 354 VERDICT. 
 
 (X) What Omission in the Pleadings is cured by a Verdict. 
 
 the rejoinder was found for him. It was holden, that the plaintiff should 
 have judgment, notwithstanding the verdict for the defendant : and by 
 the court, — As the defendant has confessed the having of twenty acres 
 of land by descent, the plaintiff has a right to judgment as to these. 
 Jenk. 102, Molineux's case. 
 
 In an action of replevin the defendant alleged, that the plaintiff held of 
 him by the yearly rent of twelve shillings, and a heriot upon every aliena- 
 tion ; and he avowed the taking for a heriot. The plaintiff traversed, that 
 a heriot was due upon every alienation, and issue was joined upon the 
 traverse. The jury found, that the holding was by the yearly rent of three 
 shillings, and a heriot upon every alienation. Upon a motion in arrest of 
 judgment, it was insisted, that the defendant ought not to have judgment ; 
 because the tenure found is different from that alleged. Judgment was 
 given for the defendant : and by the court, — It is alleged in the plead- 
 ings, that the plaintiff held of the defendant by the yearly rent of twelve 
 shillings, and heriot upon every alienation ; and it is a rule of law, that 
 whatever is well alleged in the pleadings, and not denied, shall be taken 
 to be as alleged, notAvithstanding the jury find contrary thereto. 
 
 2 Mod. 5, Wilcox v. Skipwith. 
 
 (X) What Omission in the Pleadings is cured by a Verdict. 
 
 When a declaration or other pleading sets forth a good title or ground 
 of action defectively, the imperfection will be cured by a verdict. 
 
 Read v. Chelmesford, 16 Pick. 128 ; Wheeler v. Train, 3 Pick. 255; Ward v. Bar- 
 tholomew, 6 Pick. 409 ; Worster v. Canal Bridge, 16 Pick. 541 ; Avery v. Tyringham, 
 3 Mass. 160 ; Moor v. Boswell, 5 Mass. 306 ; 7 Mass. 169 ; United States v. The 
 Virgin, 1 Pet. C. C. R. 7 ; Farwell v. Smith, 2 Green, 133 ; Stilson v. Toby, 2 Mass. 
 521 ; Coleman v. Craysdale, 3 J. J. Marsh. 541 ; Dickerson v. Hays, 4 Blackf. 107 ; 
 Stanley v. Whipple, 2 M'Lean, 35 ; G'aylord v. Payne, 4 Conn. 190; Spencer v. Over- 
 ton, 1 "Day, 183 ; Fuller v. Hampton, 5 Conn. 416 ; Hendricks v. Seely, 6 Conn. 176 ; 
 Phelps v. Sill, 1 Day, 315; Russell v. Slade, 12 Conn. 455; Story v. Barrell, 2 
 Conn. 665.£f 
 
 The want of having set out the writ, which would be bad upon a de- 
 murrer, is cured by a verdict : for the court will, in support of the ver- 
 dict, intend it to have been proved at the trial that there was a writ. 
 
 2 Lill. Abr. 797. 
 
 But if a writ, which appears upon the face thereof to be bad, is set out, 
 the badness of the writ is not cured by a verdict ; for it can never be in- 
 tended, that such writ was proved to be good. 
 
 2 Lill. Abr. 797. 
 
 If it be not alleged in the declaration in an action of trespass, that the 
 trespass charged was committed upon a day certain, the declaration is 
 bad upon demurrer. But the omission of such allegation is cured by a 
 verdict; for, as the day is not material in an action of trespass, the court 
 ■will, in support of the verdict, intend, that the trespass was proved to 
 have been committed upon a day antecedent to the commencement of the 
 action. 
 
 Carth. 389, Blackall v. Eale ; Salk. 662, S. C. ; 5 Mod. 287, S. C. Com. 12. 
 
 If a defective title be set out in the pleadings, the defect is cured by a 
 verdict ; for the court will, in support of the verdict, intend, that it was 
 supplied by evidence : but, if a bad title be set out in the pleadings, the
 
 VERDICT. 355 
 
 (X) What Omission in the Pleadings is cured by a Verdict. 
 
 badness is not cured by a verdict : for the court will never intend, that a 
 title, "which is apparently bad, was proved to be good. 
 
 Plowd. 202 ; Salk. 365 ; {2 Mass. T. Rep. 521, Stilson v. Tobey; 1 Day, 183, Spen- 
 cer v. Overton; Ibid. 186, n.{ [So, if the plaintiff wholly omits to state his title; 
 for in that case there is no room for presumption. Dougl. 683 ;] { 1 Johns. Rep. 4G2, 
 470, Bayard v. Malcolm; 2 Johns. Rep. 550, S. C; 1 Saund. 228 c, note by Sent. 
 Williams.} 
 
 I A verdict does not cure a mistake in the nature of the action. 
 
 1 Cran. 332, Marine Ins. Co. of Alexandria v. Young. See 1 Cain. 323, Purdy v. 
 Delavan. } 
 
 || The rule, as deduced from the authorities by Serjt. Williams, is, that 
 where there is any defect, imperfection, or omission in any pleading, 
 whether in substance or form, which would have been a fatal objection 
 upon demurrer, yet if the issue joined be such as necessarily required on 
 the trial proofs of the facts so defectively or imperfectly stated or omitted, 
 and without which it is not to be presumed that either the judge would 
 direct the jury to give, or the jury would have given the verdict, such 
 defect, imperfection or omission is cured by verdict, by the common law, 
 or, in the phrase often used, such defect is not any jeofail after verdict. 
 But where there was any defect, omission, or imperfection, though in 
 form only, in some collateral parts of the pleading, that were not in issue 
 between the parties, so that there was no room to presume that the defect 
 or omission was supplied by proof, a verdict did not cure them by the 
 common law ; but these defects are now cured by the several statutes of 
 jeofails after verdict, and by the 4 Ann. c. 16, § 2, after judgment by 
 default. But still if the plaintiff states a defective title, or totally omits 
 to state any title, or cause of action, a verdict will not cure such defect, 
 either at common law, or by the statute of jeofails; for the plaintiff need 
 not prove more than what is expressly stated in the declaration, or is 
 necessarily implied from the facts which are stated. 
 
 1 Will. Saund. 227, and the cases there collected; and see 2 W. Saund. 319 a, b, c.|| 
 
 In an action of assumpsit upon a bill of exchange there was a verdict 
 for the plaintiff, and judgment was given for him. A writ of error being 
 brought, it was assigned for error, that it is not alleged in the declara- 
 tion, that the plaintiff did pay the money due upon the bill to the last 
 endorsee ; and that, as this is not alleged,(a) the plaintiff ought not to 
 recover ; because the defendant, unless the money were paid to the last 
 endorsee, is liable to an action for it. The judgment was affirmed : and 
 by the court — After a verdict it shall be intended that the money was 
 proved to have been paid to the last endorsee. It is alleged, that the 
 money was paid upon account of the defendant, which it cannot have 
 been, unless it was paid to the last endorsee. 
 
 Carth. 130, Brunetti v. Lewin. ||(a) It was only alleged that the money was paid 
 by plaintiff, not stating to whom.|| 
 
 p After a verdict, every assumpsit alleged in the declaration is to be 
 taken as an express assumpsit. 
 
 Insurance Company of Alexandria v. Young, 1 Cranch, 341 ; Huntingdon v. Todd, 
 3 Day's Cas. 479.0 6 
 
 ^ In an action of covenant the breach assigned was, that the defendant 
 did not offer to grant an advowson to the plaintiff before he granted it to 
 J S. The defendant pleaded, that he did not grant the advowson to J 
 S, and issue was joined upon the plea. A verdict being found for the
 
 356 VERDICT. 
 
 (X) What Omission in the Pleadings is cured by a Verdict. 
 
 plaintiff, it "was in arrest of judgment insisted, that it is not alleged, that 
 the defendant granted the advowson to J S by deed, and, consequently, 
 as no grant of advowson except it he by deed is good, there is not a 
 breach of covenant assigned. Judgment was given for the plaintiff: and 
 by the court, — It shall, in support of the verdict, be intended, that a 
 grant to J S by deed was proved. 
 
 Hutt, 54, Lightfoot v. Brightman. || See 1 Will. Saund. 227, n. (1), and cases 
 there cited. || 
 
 In another book, "wherein this case is cited, it is said, that, as no grant 
 of an advowson, except it be by deed, is good, it is to be presumed, that 
 the jury would not have found a verdict for the plaintiff, unless a grant 
 to J S by deed had been proved. 
 
 10 Mod. 301, Muston v. Yateman. 
 
 [In an action against an unqualified person for using a gun, the decla- 
 ration stated, that the defendant used a gun, being an engine for the de- 
 struction of game. In arrest of judgment it was objected, that it was 
 not averred, that the defendant used the gun for the destruction of game, 
 but the court overruled the objection. Lord Mansfield observed, that, 
 according to one way of pointing, the offence was sufficiently charged, 
 and that such an ambiguity, though it might be a good cause of special 
 demurrer, or an objection to a conviction, was cured by verdict. 
 
 Avery v. Hoole, Covqt. 825.] |J See Huntingtower v. Gardiner, 1 Barn. & C. 297. || 
 
 The omission of alleging a matter in the pleadings, which is essential 
 to the action, is never cured by a verdict ; because every such matter, it 
 being traversable, must be alleged, that it may be put in issue. 
 
 If the declaration in an action of trespass, brought by a master for the . 
 beating of his servant, do not charge, that by reason of the beating the 
 plaintiff lost the service of his servant, the omission is not cured by a 
 verdict ; the loss of service being the gist of the action. 
 
 1 Bulstr. 1G3, Anon. 
 
 The declaration in an action of trespass, brought for keeping a bull 
 accustomed to run at persons, did not charge, that the defendant knew the 
 bull was accustomed to run at persons. It was holden, that the omission 
 is not cured by a verdict ; because it is an omission of that which is the 
 gist of the action. As it was not moreover necessary for the plaintiff to 
 prove that the defendant knew the bull was accustomed to run at per- 
 sons, it not being alleged, the court cannot intend that this was proved. 
 
 Salk. 662, Buxendin v. Sharp ; Sayer, 282. 
 
 i So in an action for a deceit in a sale by a false affirmation, the want 
 of an allegation in the declaration that the defendant made the affirma- 
 tion fraudulently or knoioing it to be false, is not cured by the verdict; 
 for the fraud or scienter is the gist of such actions. 
 
 1 Johns. Rep. 453, Bayard v. Malcolm; 2 Johns. Rep. 550, S. C.} 
 [In an action on a bill of exchange against the endorser, the plaintiff 
 did not allege notice to the defendant of the refusal by the acceptor, or 
 indeed a demand and refusal by the acceptor on the day when the bill 
 was payable. It was insisted, that this was cured by the verdict ; that 
 it must be presumed that those facts were proved at the trial. But by 
 the court, — It was not requisite for the plaintiff to prove, either the 
 demand on the acceptor, or notice to the defendant ; because they are 
 neither laid in the declaration, nor are they circumstances necessary to any
 
 VERDICT. 357 
 
 (X) What Omission in the Pleadings is cured by a Verdict. 
 
 of the facts charged. If they were to be presumed to have been proved, 
 no proof at the trial can make good a declaration, which contains no 
 ground of action on the face of it. The promise alleged to have been 
 made by the defendant is an inference of law, and the declaration does 
 not contain premises from which such an inference can be drawn. 
 
 Kushton v. Aspinall, Dougl. 679. {Vide 1 Johns. Ca. 99, Leffingwcll v. White.} 
 
 In an action of debt on 19 G. 2, c. 30, for the penalty of 50/. for im- 
 pressing a mariner in the West India trade, it was not averred in the decla- 
 ration that he had not deserted from any of his majesty's ships of war. A 
 verdict was had for the plaintiff, and upon motion in arrest of judgment 
 for this omission, it was contended by his counsel, that it must be pre- 
 sumed, after verdict, that this was proved at the trial. But by the court, — 
 Nothing is to be presumed after verdict, but what is expressly stated in the 
 declaration, or what is necessarily implied from those facts which are stated. 
 At the trial it is only necessary to prove what is alleged in the declaration : 
 and here it was only alleged that the mariner had not deserted from a 
 particular ship : therefore we cannot presume, that in this case it was 
 proved he had not deserted from any of his majesty's ships. 
 
 Spieres v. Parker, 1 Term R. 141.] 
 
 {In an action on st. 84 Geo. 3, c. 23, for pirating a pattern for printing 
 calico, the omission of an averment in the declaration, " that the day of 
 first publishing the pattern was printed at each end of the piece of calico" 
 (which, together with the name of the proprietor, is required by that sta- 
 tute, the monopoly being limited to three months from the day of first pub- 
 lishing the pattern,) was holden to be aided by verdict ; it being stated in 
 the declaration that the defendants pirated the pattern "within the term of 
 three months from the day of the first publishing thereof, and while the 
 plaintiffs were entitled to have the sole right of printing the same, &c." 
 
 7 Term, 518, Macmurdo v. Smith.} 
 
 || So, where in an action on the case for an injury to the plaintiff's 
 reversion in a yard, the declaration stated injuries in terms which most 
 aptly applied to the possession only, and there was no allegation that the 
 plaintiff had been injured in his reversionary estate, the court, after 
 verdict for the plaintiff, held that the omission was not cured, and the 
 judgment was arrested. 
 
 Jackson v. Pesked, 1 Maule & S. 234. || 
 
 So, in debt on the 2 & 3 Ed. 6, c. 1, for not setting out tithes, an omis- 
 sion to state that the tithes had been paid or payable within forty years 
 next before the act, was held fatal after verdict for the plaintiff. 
 
 Butt v. Howard, 4 Barn. & A. 655. 
 
 Where the declaration alleged that the defendant was assistant overseer, 
 that a rate for relief of the poor was made and duly allowed, and although 
 defendant as such assistant overseer had the rate in his possession, and 
 plaintiff at a reasonable time demanded the inspection of it, and tendered 
 one shilling, yet defendant refused to produce it, whereby he forfeited 
 20?. ; it was held, on motion in arrest of judgment, that the count was 
 sufficient ; for if the defendant had the rate in his custody as assistant 
 overseer, it might be presumed, after verdict, that it was his duty to pro- 
 duce it when lawfully demanded. 
 
 Bennett v. Edwards, 8 Barn. & C. 702 ; 6 Bing. 230, S. C. ; and see 8 Barn. & C. 
 114.
 
 358 VERDICT. 
 
 (X) What Omission in the Pleadings is cured by a Verdict. 
 
 So, "where the plaintiff declared, that in consideration that plaintiff, at 
 defendant's request, would consent to suspend proceedings against A on 
 a cognovit, defendant promised to pay 30/. on account of the debt on the 
 first of April next, and the declaration averred generally that the plain- 
 tiff did suspend proceedings on the cognovit, it was held, that after 
 verdict this averment was sufficient, since it must be intended to have 
 been proved that plaintiff either suspended proceedings absolutely or for 
 a reasonable time. 
 
 Payne v. Wilson, 7 Barn. & C. 423. 
 
 In an action against the Bank of England, the declaration alleged that 
 the plaintiff was lawfully possessed of certain three per cent, annuities in 
 the care of the defendants, and standing in their books in the name of the 
 plaintiff, for the purpose, amongst other things, of paying him all dividends 
 which might accrue due in respect of the stock whilst the same should not 
 be transferred in the said books with the authority of the plaintiff; and that 
 the plaintiff was entitled to the stock ; and that it had not been transferred 
 in the books to any person by his authority ; and thereupon it was the duty 
 of the defendants to pay the plaintiff the dividends whilst the same was 
 not transferred, yet the defendants had not paid them. This declaration 
 was held bad for want of an averment that the dividends had been issued 
 by the government to the bank ; since, until they were issued, it was not 
 the duty of the bank to pay them ; and there was nothing in the verdict 
 of the jury to remedy the want of such an averment. 
 
 Bank of England v. Davis, 5 Barn. & C. 185. 
 
 Where the assignee of the reversion sued the assignee of the lessee in 
 covenant for rent, &c, and the plaintiff in his declaration alleged only 
 that the lessor was seised of the tenements, without showing of what 
 estate ; this was held, after verdict, sufficient. 
 
 Harris v. Beavan, 4 Bing. 646. 
 
 Where a declaration on the gaming act alleged that the party lost to 
 the defendant by playing at rouge et noire, this was held sufficient after 
 verdict, (on error,) without alleging the money to have been lost by play- 
 ing with him. 
 
 Taylor v. Willans, 3 Bing. 449. || 
 
 .6 When an issue has been tendered but not joined, if the parties pro- 
 ceed to trial, and a verdict be found by the jury, it will be sufficient to 
 support a judgment rendered upon it. 
 
 Whiling v. Cochran, 9 Mass. 532. 
 
 After a verdict, finding a promise, it will be intended that a considera- 
 tion was proved. 
 Hallv. Crandall, Kirby, 402. 
 
 The appearance of an infant is cured by the verdict. 
 Apthorp v. Backus, Kirby, 407. 
 
 A verdict cures the want of an averment of notice in an action of as- 
 sumpsit, against a town for maintaining one of its own paupers. 
 Spencer v. Overton, 1 Day's Cas. 183. 
 
 A declaration in assumpsit, laying the promise on the day after the 
 test of the writ, but the breach before, is good after verdict. 
 Bomis v. Faxon, 4 Mass. 263.
 
 VERDICT. 359 
 
 (Y) What Mistake in Copy of Issue is cured by Verdict. 
 
 Every fact necessary to be proved at the trial, in order to support the 
 declaration, must be taken to have been proved, after the verdict. 
 
 Stimpson v. Gilchrist, 1 Greenl. 202. 
 
 Where the action is brought to recover foreign money, and the value 
 is not averred, the verdict finding the value in dollars, cures the error. 
 
 Brown v. Barry, 3 Dall. 1G5. 
 
 If the declaration on an assignment of a patent right, omit to state the 
 assignment, it is cured by verdict. 
 
 Dobson v. Campbell, 1 Sumn. 319. 
 
 A declaration which in substance contains all the essentials of a cause 
 of action, is good after verdict. 
 
 Schlosser v. Brown, 17 Serg. & R. 250. 
 
 When damages are claimed in the declaration for a time after the com- 
 mencement of the suit, judgment will be arrested on error, but if the 
 time be laid under a scilicet, or it is insensible or impossible, the error 
 will be cured by the verdict. 
 
 Irvine v. Ball, 7 Watts, 327.0 
 
 (Y) What Mistake, or Omission, in the Copy of the Issue delivered, is cured by a 
 
 Verdict. 
 
 In the first count, in the copy of the issue delivered in an action of 
 assumpsit, instead of its being alleged, that the defendant was indebted to 
 the plaintiff, it was alleged, that the plaintiff was indebted to the plaintiff. 
 The other counts were right, and the mistake in the first count was cor- 
 rected in the record of nisi prius ; but it was done without leave of the 
 court. A motion being made to set aside the verdict obtained by the 
 plaintiff, on account of the variance betwixt the copy of the issue delivered 
 and the record of nisi prius, it was holden, that, as the variance is not 
 in a thing material to the issue, the verdict is good. 
 
 Barnes, 477, Johns v. Smith. 
 
 Upon a rule to show cause why the verdict obtained by the plaintiff 
 should not be set aside, it appeared, that in the recital of the writ in the 
 copy of the issue delivered, the defendant, whose name was John, was 
 called James ; that in other parts of the copy of the issue delivered he 
 was called John ; and that no defence was made at the trial. The rule 
 was discharged : and by the court, — The variance in this case is so im- 
 material, that no advantage can be taken thereof after a verdict. 
 
 MS. Rep. Mather v. Brinker, East. 4 G. 3, in C. B. ; || 2 Wils. R. 243 ; and see 
 
 1 Wils. 160.|| 
 
 || Where a bill was filed against three persons by name, and on entering 
 the finding of the jury on the postea, part of the Christian name of one 
 of them was omitted, it was held no ground of error. 
 May v. Pige, 1 Bing. 314; 8 Moo. 297. || 
 
 These words, et prcedictus querens similiter, were inserted in the copy 
 
 of the issue delivered, in the room of the words, et prcedictus defendens 
 
 similiter: the verdict was holden to be bad. 
 
 1 Barnard. 58, Scrimshaw v. Proctor. || In a late case this mistake was held 
 amendable after verdict, and not a ground for arresting the judgment. Wright q. t. 
 v. Horton, 6 Maule & S. 50 ; 1 Stark Ca. 400. || 
 
 In the copy of the issue delivered, the name of the defendant was in- 
 serted instead of that of the plaintiff, in the joining of issue ; but in the
 
 360 VERDICT. 
 
 (Y) What Mistake in Copy of Issue is cured by Verdict. 
 
 record of nisi prius the plaintiff's name was inserted. A motion was 
 made to set aside the verdict obtained by the plaintiif, on account of the 
 variance betwixt the copy of the issue delivered and the record of nisi 
 prius. The verdict was holden to be good, because it was general, and 
 there was another issue which was well joined. 
 Barnes, 475, Thompson v. Simmons. 
 
 These words, and the said plaintiff likewise, were omitted in the copy 
 of the issuo delivered. The plaintiff obtained a verdict : but as the de- 
 fendant relied upon the materiality of the omission, and made no defence 
 at the trial, a rule was granted to show cause why the verdict should not 
 be set aside. Upon showing cause, it was insisted, that the record of 
 nisi prius is right, and that the issue is amendable after a verdict. The 
 rule was made absolute : and by the court, — This is a material variance, 
 and, as the defendant relied upon it, and did not make any defence at 
 the trial, it is fatal. 
 
 Bur nes, 475, Rye v. Crossman. 
 
 In an action, brought by the endorsee of a promissory note against an 
 endorsor, the name of the endorsor was omitted in the copy of the issue 
 delivered, which was in these words, he the said endorsed, instead of these 
 words, he the said J S, endorsed; but the endorsor's name was inserted 
 in the record of nisi prius. The plaintiff obtained a verdict ; but, as the 
 defendant relied upon the materiality of the variance, and did not make 
 any defence at the trial, the verdict was set aside. 
 Barnes, 47G, Wreathcock v. Bingham. 
 
 These words, and the said plaintiff likewise, were omitted in the copy 
 of the issue delivered ; but they were inserted in the record of nisi prius. 
 Upon showing cause against a rule for setting aside the verdict obtained 
 by the plaintiff, it appeared that one of the counsel for the defendant did 
 at the trial object to the sufficiency of the plaintiff's evidence. This, 
 although no witness for the plaintiff was cross-examined, and although 
 no witness was called for the defendant, was holden to be such a making 
 of defence at the trial as cured the omission. 
 
 Barnes, 445, Grave v. Cliff; ||and sec Cowp. 407; 2 Bing. 3S4.|| 
 
 || Where in trespass there was a variance between the issue delivered 
 and the nisi prius record, and the record agreed with the declaration, the 
 court refused to grant a new trial ; for the issue delivered was no record, 
 and the defendant need not have accepted it, as it was incorrect. 
 
 Jones v. Tatham, 8 Taunt. 634. 
 
 And the court made the same determination in a case where it did not 
 
 appear what were the terms of the declaration ; since, if that was right, the 
 
 defendant ought to have returned the issue for not corresponding with it. 
 
 Doe dcm. Cutterill v. Wylde ; 2 Barn. & A. 472 ; and see 1 Chit. R. 277 ; Tidd's 
 Prac. 937. 
 
 Where, to a rejoinder concluding with a verification, the plaintiff added 
 
 the similiter, instead of taking issue on it, and he took the record down 
 
 to trial, and the defendant obtained a verdict, the court refused to grant 
 
 a new trial, but amended the record. 
 
 Grundy v. Moll, 1 New R. 28 ; and see Cooke v. Burke, 5 Taunt. 1G4 ; sed vid< 
 2 Moo. 215.11
 
 VERDICT. 361 
 
 (Z) Of divers Things, which did not fall properly under any of the foregoing Heads, 
 |land herein of Cases where the Defect of the Verdict may be supplied by Writ of 
 Inquiry, or by Amendment. || 
 
 The question was, whether a verdict, which found a deed in hcee verba, 
 found all that was recited in the deed. It was holden that it did not. 
 And by the court, — If it should be holden, that a verdict, which finds a 
 deed in hoec verba finds all that is recited in the deed, the jury, who are 
 sworn to find the truth, would, whenever there is a false recital in a deed, 
 find a falsity. It has been observed, that if a deed of bargain and sale, 
 wherein the consideration money is recited to have been paid, be found, 
 it is found that the money is paid ; but the observation does not apply, 
 it not being in such case found, that the consideration money is paid ; 
 nor is it necessary that this should be found ; for, if any sum of money 
 be mentioned in a deed of bargain and sale as the consideration, the deed 
 is good, although the money have not been paid. 
 Freem. 529, Blackmore v. Cumberford. 
 
 The panel of the jury, who were to try an indictment against Willis, 
 was by mistake annexed to the distringas upon an indictment for the 
 same offence against Brown ; and the panel of the jury, who were to try 
 an indictment against Brown, was by mistake annexed to the distringas 
 upon an indictment for the same offence against Willis. The verdicts 
 found in both cases were holden to be bad; because they were found by 
 juries, who had not authority to try the indictment. 
 
 1 Barnard. 108, Rex v. Willis and Brown ; Cro. Ja. 396. 
 
 It is in the general true, that if the jury do not, where damages or 
 costs ought to be assessed, assess either, or both, as the case may require, 
 the verdict is bad. 
 
 Trial per Pais, 259. 
 
 In an action of annuity, the jury found, that so much of the annuity as 
 the plaintiff claimed was in arrear ; but they did not assess either damages 
 or costs. The verdict was holden to be defective : and it was likewise 
 holden, that the defect could not be made good, by awarding a writ of in- 
 quiry to ascertain the damages and costs. But if in a case, wherein da- 
 mages, or costs, or both, ought to be assessed, the jury omit to assess 
 either, or both, as the case may require, it is in the power of the plaintiff 
 to make the verdict good, by releasing the damages, or costs, or both. 
 
 2 Lill. Abr. 798. 
 
 || The rule, as laid down in Cheyney's case, is, that where the court 
 ought ex officio to inquire of any thing upon which no attaint lies, (a) the 
 omission of it may be supplied by writ of inquiry : but in all cases where 
 any point is omitted, whereof attaint lies, it shall not be supplied by writ 
 of inquiry ; and, accordingly, where, in an action for libel, the defendant 
 pleaded the general issue, and eight special pleas of justification, and the 
 jury at the trial found a verdict for the plaintiff on the general issue and 
 two of the special pleas, without assessing damages, and for the defendant 
 on the other pleas ; and the court, on motion to enter up judgment for the 
 plaintiff non obstante veredicto, decided that the latter pleas were ill, and 
 awarded a writ of inquiry to assess the damages, and final judgment was 
 entered thereon in the King's Bench, the Court of Exchequer Chamber, 
 on a writ of error, reversed the judgment as to the award of the writ of 
 inquiry and final judgment thereon, and remitted the record to the King's 
 Bench, with a direction for that court to award a venire de novo to try 
 
 Vol. X.— 46 2 H
 
 362 VERDICT. 
 
 (Z) Things not comprised in the foregoing Heads. 
 
 the general issue, and issue joined on the two special pleas found for the 
 
 plaintiff; holding the verdict on these pleas to be void, because no 
 
 damages had been assessed. 
 
 Cheyney's Ca. 10 Co. 118 a; Clement v. Lewis, 3 Bro. & Bing. 297 ; S. C. in B. 
 R., 3 Barn. & A. 702. (a) The proceedings by attaint are abolished by the jury act, 
 6 G. 4, c. 50, I 60. ^ 
 
 The declaration in an action of trespass charged the selling of the plain- " 
 tiff's goods. The defendant pleaded that the goods which he had dis- 
 trained for rent in arrear, were, pursuant to the direction of the 2 W. & 
 M. c. 5, appraised by two persons sworn by the headborough, and that 
 the surplus of the money for which they were sold was, after deducting 
 the rent and charges of the distress, left in the hands of the constable. 
 The plaintiff replied, De injurid sud propria absque tall causa. Issue 
 being joined upon the replication, a verdict was found for the defendant. 
 The verdict was set aside ; a verdict was ordered to be entered for the 
 plaintiff; and a writ of inquiry was awarded for ascertaining the damages : 
 And by the court, — The present verdict ought not to stand ; because it 
 appears, from the defendant's own showing, that the selling of the goods 
 is not justifiable; for, as the constable was present, the headborough had 
 no power to administer the oath to the two appraisers. 
 
 Stra. 873, Broom v. Bice. ||In this case the proper action would now, it seems, be 
 on the case and not trespass, according to 11 G. 2, c. 19, \ 19, and 11 East, 395. || 
 
 In an action of replevin, the defendant avowed the taking of the goods 
 for the sum of thirty-six pounds in arrear for rent. The plaintiff as to 
 twelve pounds, parcel of the thirty-six pounds, pleaded payment ; and as 
 to the residue he pleaded, that it was not in arrear. Issue being joined 
 upon both pleas, the first issue was found for the plaintiff, the second for 
 the defendant. Judgment was given for the defendant : And by the 
 court, — If one issue in an action of replevin be found for the defendant, 
 he is entitled to a return of the goods ; and, consequently, the finding of 
 another issue for the plaintiff is nugatory. 
 Cro. Ja. 473, Dent v. Parso. 
 
 In an indictment upon the statute against stabbing, tried at the Old 
 Bailey, the jury found a special verdict, in which the question submitted 
 to the court was, whether the prisoner was ousted of the benefit of the 
 clergy ? The verdict being by the command of the king referred to the 
 judges, it was argued before them at Serjeant's Inn. Six of the judges 
 were of opinion that the prisoner was ousted of the benefit of the clergy ; 
 but the other five were of a contrary opinion ; and the recorder was like- 
 wise of opinion that the prisoner was not ousted of the benefit of the 
 clergy. The king being himself of the same opinion, the prisoner had 
 the benefit of the clergy. 
 
 3 Lev. 254, Rex v. Hunter; ||1 East, P. C. c. 5, § 25. Benefit of clergy is abo- 
 lished by stat. 7 G. 4, c. 28, § G.|| 
 
 [It hath been laid down, that the court will not alter a general verdict, 
 unless it clearly appear upon the face of it, that the alteration will be 
 agreeable to the intention of the jury ; the proper remedy in such case 
 being a new trial. 
 
 Spencer v. Goter, 1 II. Bl. 78. 
 
 But, where it appeared from the affidavit of eight of the jurors that the 
 foreman had made a mistake in the delivery of the verdict, and had re-
 
 VERDICT 363 
 
 (Z) Things not comprised in the foregoing Heads. 
 
 ported both issues to be found for the defendant, whereas they had agreed to 
 find one of them for the plaintiff, the court intimated a disposition to grant a 
 rule to show cause, (but the cause was not afterwards moved,) why the verdict 
 should not be amended and set right according to the truth of the finding. 
 Cogan v. Ebden, 1 Burr. 383. ||But that the court cannot receive such affidavits, 
 see Owen v. Warburton, 1 New R. 329 ; and see 2 Stark. Ill ; 8 Taunt. 2G ; 3 Bro. 
 & B. 272.11 
 
 When a considerable time has elapsed after the trial, the court will not 
 amend the postea by increasing the damages given by the jury, although 
 all the jurors join in an affidavit, stating their intention to have been to 
 give the plaintiff such increased sum, and that they conceived the verdict 
 they have given was calculated to give him such increased sum. The 
 proper time for such an explanation is at the trial. 
 
 Jackson v. Williamson, 2 Term R. 281.] 
 
 {Where a verdict is taken pro forma at the trial for a certain sum, sub- 
 ject to the award of an arbitrator, the sum afterwards awarded is to be 
 taken as if it had been originally found by the jury ; and the plaintiff is 
 entitled to enter up judgment for the amount, without first applying to 
 the court for leave so to do. 
 
 1 East, 401, Lee v. Lingard ; 3 Bos. & Pul. 244, Borrowdale v. Hitchener : 1 Bos. 
 &. Pul. 97, Higginson v. Nesbit ; Ibid. 480, Grimes v. Naish.j 
 
 || Nor will the court, after a lapse of eight years, and where the judg- 
 ment has been reversed for defect in one count, entertain a motion for 
 entering the verdict on particular counts, according to the judge's notes. 
 
 Harrison v. King, 1 Barn. & A. 161. 
 
 Nor will they amend a verdict according to the notes of an arbitrator, 
 since they have no power to compel such notes to be brought before them. 
 
 1 Chitt. R, 283.|| 
 
 /3 It is misbehaviour in the jury to take refreshments, after they are 
 sent out, and before they render their verdict, without leave of court ; 
 but the verdict will nevertheless stand, unless such refreshments were 
 furnished by the party in whose favour they find. 
 
 Harrison v. Rowan, 4 Wash. C. C. R. 32. 
 
 A verdict may be amended, when there is a mistake in the form. 
 Jones v. Yanzandt, 2 M'Lean, 612. 
 
 Where there are several counts in the declaration, some of which are 
 for demands not within the jurisdiction of the court, and the jury find a 
 general verdict, it is bad for the whole. 
 
 Kline v. Wood, 9 S. & R. 294. 
 
 A verdict may be taken after the death of a sole plaintiff, if the death 
 happens after the first day of the circuit. 
 
 Besas v. Merzereau, 18 Wend. 653. 
 
 A verdict of one mill is a nullity, on which no judgment can be en- 
 tered. 
 
 Brown v. Smith, 3 Caines, 81. 
 
 Where the jury is sworn to try the issue, when in fact there is no issue 
 joined, the verdict has no effect. 
 4 Bibb, 341. 
 
 When a verdict is given in sterling money, and the rate of such money 
 in United States currency is established by act of Congress, it is the
 
 364 VISNE OR VENUE. 
 
 (B) In what Cases Venue is necessary. 
 
 duty of the court to reduce the sum to, and record it in United States 
 money. 
 
 Beal v. M'Kiernan, 8 La. R. 572. 
 
 After a verdict, it is too late to object that the jury process has been 
 altered without proper authority, being, at most, it seems, an irregularity. 
 
 Dubois v. Keat, 8 Ad. & Ell. 485, n. 
 
 When the plaintiff succeeds in trover only as to part of his claim, the 
 defendant has a right to have the verdict entered distributively. 
 
 Williams v. Great Western Railroad Company, 1 Dowl. N. S. lG.gf 
 
 VISNE OR VENUE. 
 
 (A) Venue, what. 
 
 (B) In what Cases Venue is necessary. 
 
 (C) How the want of a Venue may be aided. 
 
 (D) What deemed a proper laying of the Venue: ||And whence the Venue shall 
 
 come. || 
 
 (E) In what Cases Venue may be changed. Wherein, 
 
 1. When the Motion for changing the Venue must be made. 
 
 2. The certainty required in the Affidavit on which the Motion is made. 
 
 3. Cases in which the Venue cannot be changed. 
 
 (A) Venue, what. 
 
 The venue, in Latin vicinetum or visnetum, is the place from whence a 
 jury are to come for the trial of causes, which is generally some neighbour- 
 ing place, locus quern vicini habitant, from whence it is called, vicinetum 
 or venue. 
 
 (B) In what Cases Venue is necessary. 
 
 The most general rules respecting the necessity of a venue are — That a 
 venue is necessary in all cases where the matter is traversable, or where 
 it affects the right of the action ; where it merely regards the person, or 
 concerns damages only, there, a venue is not necessary. But these rules 
 will be better understood by consideration of the following cases. 
 
 In an action on the ense, the defendant pleaded in abatement, that the 
 plaintiff was an alien enemy, and laid no venue: and on demurrer it was 
 adjudged to have been avcII pleaded, and the plaintiff might have replied, 
 that he was born in England generally. But, if such a matter is pleaded 
 in bar, it must be pleaded with a venue, and the plaintiff should reply, 
 that he was born in such a place in England, and in the principal case 
 judgment was given, quod biUa cassetur. 
 
 2 Ld. Raym. 124.'), Pie v. Cooper. The reason of this distinction is, because that 
 every plea concerning the person which is pleaded in abatement is triable where the 
 action is brought ; but, where such plea is pleaded in bar of the action, the venue shall 
 be alleged, because such plea is not to the person but to the right. 2 Ld. Raym. 853 •, 
 West v. Sutton.
 
 I 
 
 VISNE OR VENUE. 365 
 
 (B) In what Cases Venue is necessary. 
 
 pA plea in bar, admitting the note declared on, cannot depart from 
 the venue in the declaration, and need not therefore give one, ut semb. 
 Furman v. Haskin, 2 Gaines, 370. £f 
 
 Matters touching the person, as privilege of attorney, may be pleaded 
 without a venue, and be tried where the writ is brought. 
 2 Ld. Raym. 1172, 1173, Scawen v. Garret 
 
 In covenant against one as assignee, there is no need of laying any 
 enue, because an assignment is always intended to be made on the lands 
 
 assigned. 
 Per cur. Carth. 256, Huckle v. Wye. 
 
 |J In a plea in abatement that another is not joined as defendant, a 
 venue is unnecessary. 
 Neale v. De Garay, 7 Term R. 243 ; 1 Will. Saund. 8 a; Steph. on Plead. 306. jj 
 
 But a consideration executory is traversable, and therefore a venue 
 
 must be laid. 
 
 Cro. Eliz. 880, The Lady Shandos v. Simpson. 
 
 Where the judgment is upon a nil elicit, the want of a venue is not 
 material to set it aside, because the inquiry is not to be of any thing be- 
 sides damages, which may be inquired by any jurors in the county. 
 
 1 Lutw. 235, Remington v. Tailor. 
 
 || Where a request by the plaintiff is necessary to be alleged, and it is 
 alleged without a venue, (there being a general venue in a preceding part 
 of the declaration,) the omission cannot be taken advantage of in arrest 
 of judgment, since the stat. 4 Ann. c. 16, § 1 ; for it is matter of form 
 objectionable only on special demurrer; and this although the judgment 
 passed by default, on which an inquiry was executed. 
 
 Bowdell v. Parsons, 10 East, 359. || 
 
 [In debt for goods sold and delivered, the plaintiff declared that the 
 defendant, at Westminster in the county of Middlesex, was indebted to 
 him in a certain sum for goods sold and delivered, but alleged no express 
 contract, or place where the contract was made. 
 
 Emery v. Fell, 2 Term R. 30. 
 
 On a special demurrer for these causes, the court held the contract and 
 venue well laid. 
 
 In a replication to a plea of ne ungues accouple in a writ of dower, 
 alleging a marriage in Scotland, it is not necessary to state by way of 
 venue that the marriage was had at any place in England. In point of 
 substance, the question on the marriage in Scotland arising incidentally 
 in a suit in dower, of which the court have original jurisdiction, is for the 
 purpose of .the cause within their jurisdiction, without the assistance of a 
 fiction ; and the venue for the mere purpose of trial, being necessarily 
 the venue laid in the declaration, the inserting it in the replication would 
 be nugatory ; and the want of it, therefore, cannot be taken advantage 
 of even on a special demurrer. 
 
 Ilderton v. Ilderton, 2 II. Bl. 145.] 
 
 pin Massachusetts, a venue is required, and a declaration without one 
 is bad, on special demurrer. 
 
 Briggs v. Nantucket Bank, 5 Mass. 94. 
 
 But the venue in the margin, where no venue is laid in the declaration, 
 is sufficient. 
 
 State v. Post, 9 Johns. 81.£/ 
 
 2h2
 
 366 VISNE OR VENUE. 
 
 (C) How the want of a Venue may be aided. 
 
 It is a general principle, that the want of a venue is only curable by 
 such plea as admits the fact for the trial whereof it was necessary to lay 
 a venue, or by a verdict. 
 
 6 Mod. 222, Boisloe v. Bailey ; 3 Salk. 381, Anon. 
 
 Thus, the want of a venue is aided by pleading over : as, where in tres- 
 pass the defendant pleaded a submission to an award, and that an award- 
 was made, which he had performed, but laid no venue where the per- 
 formance was. The plaintiff replied another award, and the defendant 
 tendered issue upon it, whereupon plaintiff demurred. Holt, C. J., said, 
 that the want of a venue was aided by the pleading over. 
 2 Ld. Ilayni. 1039, Purslow v. Baily. 
 
 So, in debt upon bond, though no venue is laid where the bond was 
 made, yet, if the defendant pleads a release, this admits the bond, and 
 aids the want of a venue; per Holt, C. J. But if defendant had de- 
 murred, the want of a venue had been ill. 
 2 Ld. Rayra. 1039, Purslow v. Baily. 
 
 By the 16 & 17 Car. 2, c. 8, the want of a venue is aided after verdict ; 
 and this in cases not only where there is a wrong venue, but also where the 
 cause is tried in a wrong county, as appears from the cases in the margin. 
 
 1G & 17 Car. 2, c. 8 ; 1 Saund. 246, Craft v. Boito; S. C, Raym. 181, by the name 
 of Craft v. Winter. And it is there added, that the defendant might have demurred 
 upon it. [| See Mayor of London v. Cole, 7 Term R. 583. || 
 
 || But where in ejectment for lands in Cardiganshire the venue was 
 awarded out of Shropshire, upon a suggestion of its being the next Eng- 
 lish county, the court, after a verdict for the plaintiff, arrested the judg- 
 ment on the ground of a mistrial, Herefordshire being the next adjoining 
 English county to South Wales ; although it appeared that Shropshire 
 was in fact nearer to the lands in question, and the cause might be more 
 conveniently tried there than in Herefordshire. 
 
 Ooodright v. Williams, 2 Maule & S. 270. 
 
 But the court in such case will not set aside the verdict for a mistrial, 
 the question being upon the record. 
 
 Ambrose v. Rees, 11 East, 370. || 
 
 (D) What deemed a proper laying of the Venue : || And whence the Venue shall come.H 
 
 Many niceties which were formerly to be observed with respect to lay- 
 ing the venue, are now removed by the 4 & 5 Ann. c. 16, which enacts, 
 "That every venire facias for the trial of any issue in any action or suit, 
 shall be awarded of the body of the proper county where such issue is 
 
 triable." 
 
 4 & 5 Ann. e. 16 ; and see 24 G. 2, c. 18, whioh extends this act to trials of issues 
 on penal statutes. 
 
 For example, the venue in the declaration was laid at Leek, and not at 
 Leek in the county aforesaid. Defendant demurred, and showed the 
 want of a proper venue for cause; plaintiff joined in demurrer; and upon 
 argument the court gave judgment for the plaintiff. It was held suffi- 
 cient, according to the course of the court, to lay the venue at Leek, 
 which has reference to the county in the margin ; and since by act of 
 parliament the venire facias is to be awarded de corpore comitatus, it is 
 not necessary that any particular place in the county be laid. 
 
 Barnes, 481, Spooner v. Mihvard.
 
 VISNE OR VENUE. 367 
 
 (D) What deemed a proper laying of the Venue, &c. 
 
 pin an action of slander, the declaration was entitled Dauphin county, 
 ss. It stated that the defendant on the 5th of July, 1814, at Cumber- 
 land county, to wit, at the county of Dauphin aforesaid, in a certain dis- 
 course which he then and there had, of and concerning the plaintiff, and 
 of and concerning the murder of a certain J S, who before that time was 
 killed and murdered, he, the said defendant then and there uttered, &c. 
 Held, good after verdict. 
 
 Wills v. Church, 5 S. & It. 190.0 
 
 || In a declaration in assumpsit it is enough to allege the county for 
 venue without any parish. 
 Ware v. Boydell, 3 Maule & S. 148. || 
 
 It is a general rule likewise, that the county in the margin of a decla- 
 ration will help the venue laid in the body of it, but will not hurt it, as 
 appears from the following case : 
 
 In the margin stood the word Norfolk, in the body of the declaration 
 the venue was laid at the city of Norwich, in the county of the same city 
 throughout. The plaintiff executed a writ of inquiry of damages, di- 
 rected to the sheriffs of the city of Norwich. Had no venue been laid in 
 the body of the declaration, reference must be had to the margin ; but 
 where a proper venue is laid in the body of the declaration, the word in 
 the margin shall not vitiate it, for it is a jeofail which is helped by the 
 4 & 5 Ann. c. 16.(a) 
 
 Barnes, 483, Howse v. Haselwood. ||(o) See 10 East, 359. || 
 
 [In debt upon bond by an administrator, the declaration alleged, that 
 administration was granted by the Bishop of Lichfield and Coventry, and 
 the venue in the margin was laid in London, but the bond was stated to 
 be made at Derby, which is within the diocese. The plaintiff demurred 
 generally. The court held it well enough on a general demurrer, though 
 there possibly might have been some doubt on a special demurrer. The 
 venue being laid at Derby in the body of the declaration, the addition of 
 London in the margin did not vitiate it. 
 
 Mellor v. Barber, 3 Term E. 387. 
 
 Where the proper venue is stated in the margin of the declaration, and 
 the venue in the body of the declaration is laid at D, without showing in 
 what county D is, or at D in the county aforesaid, when the next antece- 
 dent county is S, in either of these cases the reference shall be to the 
 venue in the margin. 
 
 Sutton v. Fenn, 3 Wils. 339 ; Shirley v. Sackville, Cro. Eliz. 4G5 ; Quarles v. 
 Searle, Cro. Ja. 96.] 
 
 It is to be observed, however, that in all real actions the venue ought 
 to be laid in that county where the thing is for which the action is brought ; 
 for being local, it is only triable there ; whereas matters which are transi- 
 tory may be tried in any county, as will more particularly appear when 
 we come to consider in what cases the venue may be changed. 
 2 Lill. Abr. 782. 
 
 So likewise, in an action of debt brought for rent due for land upon a 
 lease under hand and seal, where there is no privity of contract, as against 
 an assignee, &c, the venue must not be laid out of the county where the 
 land lies for which the rent is due ; for the action is, for want of privity 
 of contract, become a local action, ratione terras, out of which the rents 
 are issuing, and not transitory ; but where the action is brought by the
 
 368 VISNE OR VENUE. 
 
 (D) What deemed a proper laying of the Venue, &c. 
 
 lessor against the lessee, there being privity of contract, the action is 
 transitory, and the demise may be laid to be made in any other county 
 than that where the land lies. 
 
 2 Lill. Abr. 782, 783 ; 1 Wils. 1C5. || And the assignee of the reversion may bring 
 debt or covenant against the lessee in any county ; for the privity of contract is trans- 
 ferred by 32 II. 8 ; 1 Will. Saund. 241 d.|| 
 
 With respect to criminal cases, it is ordained by the stat. 21 Jac. 1, c.~ 
 4, that all informations on penal statutes shall be laid in the counties 
 where the offences were committed. And upon this statute the following 
 points have been adjudged. 
 
 In an information on the 5 & 6 Ed. 6, c. 14, for buying and selling 
 live cattle contrary to the statute, it was insisted, that the information 
 ought to have been brought in Norfolk where the offence was committed, 
 and not in Middlesex. And Holt, C. J., said, that ten judges had agreed 
 in the following resolutions : — 
 
 First, That the 21 Jac. 1, c. 4, does not extend to any offence created 
 since the statute, so that prosecutions on subsequent penal statutes are 
 not restrained thereby ; but that statute is, as to them, as it were repealed 
 pro tanto. 
 
 1 Salk. 372, 373, The King v. Gaul. 
 
 Secondly, That all informations and popular actions on penal statutes 
 made before that act, must by force of 21 Jac. 1, c. 4, be laid, brought, 
 and prosecuted in the proper county where the fact was done. Again, 
 
 An information was laid on the 12 Car. 2, c. 82, for carrying wool on 
 board in order to export it ; and it was objected, that it ought to have 
 been laid where the offence was committed. But the Lord Chief Baron 
 said, that the statute Jac. 1, does not extend to any offence created since ; 
 and therefore it must now stand on the statute Car. 2 : there are no nega- 
 tive words in it, so it does not take away the prerogative of the crown to 
 lay it any where, and this at the common law would be transitory ; and 
 he overruled the objection. 
 
 Bunb. 236, Attorney-General v. Browse. But see 4 Inst. 173, where Lord Coke, in 
 his comment on this act, says, that it is but in affirmance of the true institution of the 
 common law : for vicini vicinorum facta prcesumaniur scire. 
 
 || The offence of selling coals as of a different description from what they 
 really are, contrary to the 3 G. 2, c. 26, § 4, is complete in the county 
 where the coals are delivered, and not where they are contracted for; and 
 the venue must be laid in the former county. But the offence of not justly 
 measuring such coal according to the thirteenth section of the act, is com- 
 plete at the place where the coals are kept for sale ; at which place the 
 bushel of Queen Anne is required to be kept and used for measuring coals. 
 Butterfield q. i, v. Windle, 4 East, R. 385. 
 
 In an action of debt on the pilot act, 52 G. 3, c. 39, § 34, for penal- 
 ties for continuing in charge of vessels without being licensed, and after 
 a pilot had offered, the venue must be laid in the county where the of- 
 fence is committed. 
 
 Barber v. Tilson, 3 Maulo & S. 429. 
 
 And so also in debt on the stat. 43 G. 3, c. 84, § 12, against a parson 
 for the penalty for wilfully absenting himself from his benefice. Aliter in 
 an information on 24 G. 2, c. 19, for being both a tanner and shoemaker. 
 
 Whitehead v. Wynn, 5 Maule & S. 427 ; 3 Anst. 871.
 
 VISNE OR VENUE. 369 
 
 (D) What deemed a proper laying of the Venue, &c. 
 
 Though a penal action be removed out of the proper county into an- 
 other for trial, yet the cause of action must still be proved to have hap- 
 pened in the proper county where the venue is laid. 
 
 Robinson v. Garthwaitc, 9 East, II. 296. 
 
 A scire facias on a recognisance of bail, taken in open court in the 
 King's Bench, is properly suable in Middlesex, where the record is, 
 though all the previous proceedings were in London ; and it seems that 
 it could not be sued elsewhere than in Middlesex. 
 
 Coxeter v. Burke, 5 East, R. 461 ; and see Hartley v. Hodson, 2 Moo. 66. || 
 
 It is ordained by the statute 21 Jac. 1, c. 12, that all actions brought 
 against any officers of justice shall be laid in the county where the fact 
 was committed. 
 
 For the construction on this act, see Yaughan, 113, and sequent. 
 
 It is observable, however, that the action is only confined to the pro- 
 per county where the officer is acting in execution of his office. 
 1 Stra. 446. 
 
 [The 9 G. 2, c. 35, § 26, which enacts, that prosecutions for assaults 
 on revenue officers may be tried in any county, is confined to assaults on 
 them merely as officers, and whilst they are officiating as such. And, 
 therefore, where a defendant had been acquitted on all the counts in the 
 indictment, which charged him with assaulting the prosecutor, a revenue 
 officer, in the exercise of his office, and found guilty only on that which 
 charged him with a common assault, judgment was arrested, though the 
 prosecutor in that count was described to be an excise officer, the offence 
 being laid in Surry, and the venue in Middlesex. 
 
 4 Term E. 490, Ilex v. Cartwright. 
 
 If an act of parliament directs that officers shall be sued for any act 
 they may do under that act in the county where the fact is committed, 
 and a subsequent act gives those officers several of the privileges conferred 
 by the preceding act, but does not require, as the preceding act does, 
 that the action shall be brought in the county where the fact Avas com- 
 mitted, this privilege will not attach upon the subsequent act, unless there 
 be a reference from the one act to the other, so as to incorporate them. 
 
 Bazing v. Skelton, 5 Term R. 16.] 
 
 The general rule of law as laid down by Lord Coke is, that every trial 
 shall be out of that town, parish, or hamlet, or place known out of the 
 town, &c, within which the matter of fact issuable is alleged, that is 
 most certain and nearest thereunto, the inhabitants whereof may have 
 the better and more certain knowledge of the fact. But the learning on 
 this head is greatly abridged by the statute 4 & 5 Ann. c. 16, and 24 G. 
 2, c. 28, which are taken notice of under the last head. For, by these 
 statutes it is enacted, that every venire facias for the trial of any issue 
 in any action or suit, or upon any penal statute, shall be awarded of the 
 body of the proper county (a) where such issue is triable. 
 
 1 Inst, 125 a ; 4 & 5 Ann. c. 16 ; 24 G. 2, c. 18. Before these statutes, where the 
 venue could not come from a vill, hamlet, or lieu conns, there it might have been de 
 corpore com Hat as. \\(a) And therefore it is now sufficient to state the county gener- 
 ally in the declaration, without any place. Ware v. Boydell, 3 Maul. & S. 148. || 
 
 It may therefore be sufficient to consider, out of what county the visne 
 shall come, where part of the matter to be tried is part in one county and 
 part in another. 
 
 2 Lill. Abr. 786. 
 
 Vol. X.— 47
 
 370 VISNE OR VENUE. 
 
 (E) In what Cases the Venue may be changed. 
 
 This will depend on the gist of the issue, as may be collected from the 
 following cases: 
 
 An action was brought for goods esloined, and received by the defend- 
 ant, and the tort of the esloining is alleged in one county, and the receipt 
 of them by the defendant in another county, and they are at issue if he 
 received them or not : there the visne shall be of the county where the 
 receipt is supposed. 
 
 Bro. Visne, pi. 94. 
 
 In trespass, the defendant assumed in London to cure the wound of 
 the plaintiff, &c, and applied contrary medicines in Middlesex, by which 
 the plaintiff was impaired. Per Thirn, — If they take issue upon the 
 assumpsit, visne shall be of London ; and if of the contrary medicines, 
 then of Middlesex. (a) 
 
 Bro. Visne, pi. 117. It may be added as a general rule, that in all cases where the 
 action is founded upon two things, both of which are material or traversable, and the 
 one without the other will not maintain the action, there the plaintiff may bring the 
 action in which of the counties he will. 7 Rep. 2 a, Bulwer's case ; [2 Term K. 238, 
 S. P.] || Mayor of London v. Cole, 7 Term R. 583, ace. {a) But now the general issue, 
 non assumpsit, would be pleaded, putting in issue the whole declaration ; and the 
 matter being transitory, the cause would be tried in the county where the plaintiff had 
 laid his vcnue.\\ 
 
 || In case where the injury is to the soil, the venue must be laid in the 
 county where the injury arises ; as where a trench cut in the county of 
 N, overflowed and damaged the plaintiff's lands in the county of W, and 
 an act required the action to be brought where the cause of action arose, 
 it was held the action might be brought in W. 
 
 Sutton v. Clarke, 6 Taunt. 29 ; and see Warren v, Webb, 1 Taunt, 379. || 
 
 In some cases, however, the venue shall come out of both counties. 
 For which, see Bro. Confess, and Avoid, pi. 30, or 38 H. G, p. 25, where 
 the case is more full and correct. 
 
 But where both counties cannot join, there, it is said, it may be tried 
 in either county. 
 
 2 Roll. Abr. 603, pi. 8. 
 
 || In an action on the stat. 1 & 2 Phil. & Mar. c. 12, for driving a dis- 
 tress out of the hundred into another county, the venue may be laid in 
 either county. 
 
 Pope v. Davis, 2 Taunt. 252 ; and see Cro. Eliz. 646. 
 
 But where an usurious contract is made in one county, and the money 
 received in another, here the venue in an action for penalties must be 
 laid in the county where the money is received ; for there is no offence 
 in the county where the mere contract is made. 
 
 Pearson v. M'Gowran, 3 Barn. & C. 700 ; and see Rex v. Buttery, cited 4 Barn. & 
 A. 179.|| 
 
 (E) In what Cases the Venue may be changed. 
 
 TriE general principles with respect to the changing of the venue may 
 be found under Actions local and transitory (B), vol. i. It may be 
 necessary however to consider farther, 
 
 1. When the Motion for changing the Venue must be made. 
 
 It ha3 been held that the defendant must move to change the venue be- 
 fore he pleads ; and that the plaintiff in like manner must move to dis-
 
 VISNE OR VENUE. 3.1 
 
 (E) In what Cases the Venue may be changed. 
 
 charge the rule, on his undertaking to give material evidence, before 
 defendant replies. 
 2 Stra. 858, Dickenson v. Fisher. 
 
 But a judge's summons or order for time to plead, shall be no bar to 
 a motion for changing the venue. 
 Per cur. Barnes, 489, Dennis v. Fletcher. 
 
 So likewise, where after a rule to show cause why the venue should not 
 be changed, and before it was made absolute, the defendant by inadvert- 
 ence put in a plea, yet the court held that this was no waiver of the 
 rule ; and they allowed defendant to withdraw his plea on payment of 
 costs, and made the rule absolute for changing the venue. 
 Barnes, 492, Herbert v. Flower et al. 
 
 Neither is a judge's order for an imparlance any bar to a motion for 
 changing the venue. 
 
 Barnes, 467, Blackstock v. Payne. 
 
 [The venue may be changed, after an order for time to plead, though 
 upon the terms of pleading issuably ; but not after an order for time to 
 plead, where the terms are to plead issuably and take short notice of 
 trial at the first sittings in London or Middlesex, because there a trial 
 would be lost. 
 
 Cowp. 511 ; ||7 Term R. 698 ;|| Barnes, 493 ; 1 Wils. 245, contra. ||See Tidd's Prae. 
 659, (8th edit.) || 
 
 The plaintiff was allowed to bring back the venue to the county where 
 it was originally laid, upon the usual undertaking, though the cause had 
 gone down to trial, and been a remanet for want of jurors. 
 
 Cowp. 409, Brucshaw v. Hopkins.] 
 
 |3 When the plaintiff wishes to change the venue, he must move to 
 amend, and a suggestion must be entered on the record. 
 Lee v. Kaighn, Cose, 283. 
 
 The motion will not be changed, if the motion for that purpose is not 
 made until after issue joined, and it appears that the plaintiff, if successful 
 on the trial, would lose a term in entering his judgment, should the motion 
 be granted. 
 
 Lee v. Chapman, 11 Wend. 186. 
 
 But the defendant may apply to have the venue changed after issue 
 
 joined, provided a trial has not been lost, and it will occasion no delay. 
 
 Delavan v. Baldwin, 3 Caines, 104 ; Rent v. Dodge, 3 Johns. 447 ; but Wistan v. 
 Johnson, Coxe, 260. gf 
 
 2. The Certainty required in the Affidavit on which the Motion is made. 
 
 With respect to the affidavit, it must be positive and certain. It is not 
 
 sufficient that it be affirmative, but it must also contain negative words ; 
 
 that is, it is not enough for defendant to swear that the cause of action, 
 
 if any, did arise in the county to which he would have the venue changed, 
 
 but he must likewise add, that it did not arise in the county laid in the 
 
 declaration, or elsewhere out of the county to which he would have the 
 
 venue changed. 
 
 Barnes, 478, Belshaw v. Porter. The words, cause of action, are indispensably ne- 
 cessary, for it would be insufficient to swear that the promises in the declaration were 
 made in such a county. Barnes, 477, Cole v. Gouing ; S. P., 2 Barnardist. 74, White 
 v. Love, [3 Term K. 495.]
 
 372 VISNE OR VENUE. 
 
 (E) In what Cases the Venue may he changed. 
 
 Where there are several defendants, the affidavit of one is sufficient to 
 ground a motion for changing the venue. 
 
 Barnes, 482, Box v. Read. ||See as to the affidavit, Tidd's Prac. 609, (9th edit.)|| 
 
 8 Hearsay evidence is insufficient to support a motion to change the 
 venue. 
 
 Lee v. Kaighn, Coxe, 283. 
 
 The special circumstances on which the motion is founded must be 
 made out by the affidavit. 
 
 Ker v. Whitaker, 2 Penning. 514. 
 
 It is not required that the venue should state the cause of action is not 
 transitory ; if it be not transitory, it should be shown by the other side. 
 Baker v. Sleight, 2 Caines, 46. 
 
 The affidavit of the defendant to change the venue must be positive, 
 if he swear merely to his belief, it will not be sufficient. 
 Franklin v. Underbill, 2 Johns. 374. 
 
 Such affidavit must be direct and positive, that the cause of action 
 arose in another county, this must not be stated argumentatively. 
 Manning v. Downing, 2 Johns. 453. gf 
 
 3. Cases in which the Venue cannot he changed. 
 
 With regard to the cases in which the venue cannot be changed, though 
 it has been held that the venue may be changed in all actions of a transi- 
 tory nature, yet there are divers exceptions, as in cases of privilege, 
 specialty, promissory note, or bill of exchange, || awards, charter-parties 
 of affreightment, unless some special ground be laid. (a) Aliter in actions 
 on policies of assurance. (b)\\ To which may be added, that even in the 
 case of persons privileged in this respect, such as barristers or attorneys, 
 if they are joined in an action with unprivileged persons, they cannot 
 change the venue. 
 
 Per cur. Barnes, 491, Everest v. Sansum ; 5 Taunt. 576 ; 1 Stra. 610, Townsend v. 
 Duppa et al. (a) ||2 Bos. & Pul. 355 ; 7 Taunt, 300 ; 1 Term R. 781 ; 3 Barn. & C. 
 9, 552. (b) 2 Term It. 275 ; 7 Term It. 205. || 0For cases when the venue will not 
 be changed, see Low v. Hallet, 2 Caines, 374 ; Gourley v. Shoemakers, Colem. 103 ; 
 Clinton v. Crosswell, 2 Caines, 245 ; New Windsor Turnpike v. Wilson, 3 Caines, 
 127 ; Stoutenherg v. Logg, 2 Johns. 481 ; Worthy v. Gilbert, 4 Johns. 492.gf 
 
 8 In an action of covenant, for the breach of covenant of seisin, the 
 venue cannot be changed to the county where the lands lie, without an 
 affidavit of special circumstances. 
 
 Ward v. Holmes, 2 Ilalst. 171. 
 
 The venue cannot be changed after issue joined. 
 
 Wistan v. Johnson, Coxe, 260. 
 
 The venue will not be changed on the application of one defendant, 
 when there are several defendants in a cause. 
 
 Sailly v. Ilutton, 6 Wend. 508.0 
 
 Neither is the venue in any case ever changed into a county palatine. 
 [j The venue has been frequently changed into a county palatine ; but the 
 courts require an undertaking from defendant not to assign error for want 
 of an original ; and in the C. V>. the court will not change it, if inconvenient 
 to the plaintiff, nor on application by one of several defendants. \\(a) The
 
 VISNE OR VENUE. 373 
 
 (E) In what Cases the Venue may be changed. 
 
 court have likewise refused changing it into Durham : and have also re- 
 jected a motion for changing it from Yorkshire into the city of York. 
 
 Barnes, 488, Richardson v. Walker; Barnes, 289, Lewis v. Askarn ; Barnes, 4Sl ; 
 Craster v. Cockerell. ||(o) 7 Term R. 735 ; 1 AVils. 222 ; 1 Taunt. 120 ■ Ibid. 432 : 
 5 Taunt, 87 ; and see Ibid. 031 ; 4 Maule & S. 233 ; 7 Taunt. 400 ; 2 Chit. R. 417, 
 418; Tidd's Prac. 007, (9th edit.)|| 
 
 [In an action for infringing a patent, the venue cannot be changed 
 from Middlesex to another county, because it is impossible for the party 
 applying to make the necessary affidavit, that the cause of action arose 
 wholly in such other county, and not elsewhere, it being manifest that 
 the substratum of the action, namely, the patent, is at Westminster. 
 
 Cameron v. Gray, Term R. 303.] 
 
 || And in transitory actions, where material evidence arises in two coun- 
 ties, the venue may be laid in either. 
 
 2 Term R. 275 ; 7 Term R. 583. 
 
 And if it be laid in a third county, the courts will not change it ; for the 
 defendant cannot, in such case, make the necessary affidavit, that the 
 cause of action arose in a particular county, and not elsewhere. 
 
 7 Term R. 205 ; 3 Bos. & Pul. 579 ; 3 Taunt. 404 ; Tidd's Prac. 652, (8th edit.) 
 
 And when the cause of action arises out of the realm, the courts will 
 not change the venue, because the action may as well be tried in the 
 county where the venue is laid, as in any other, where the cause of action 
 did not arise. 
 
 Cowp. 170 ; 1 II. Bl. 280 ; 1 Taunt, 259 ; 2 Taunt. 197 6 Taunt. 569 ; 4 East, 495 ; 
 2 New R. 397. 
 
 Nor in an action for a libel, written in one county, and circulated in 
 another. 
 
 1 Term R. 571, 647 ; 1 Brod. & Bing. 299. 
 
 But it may be changed to the county in which the libel was both writ- 
 ten and published. 
 
 3 Term R. 306. 
 
 And in an action on the case for overturning the plaintiff in a stage-coach, 
 the venue may be changed into the county where the accident happened. 
 
 4 Taunt. 729. 
 
 And it is no reason against changing the venue, that if changed the 
 cause is likely to be tried by persons interested in the question, if they 
 are likely to have as strong an interest on one side as on the other. 
 
 5 Taunt. 005. 
 
 Though the courts, in general, will not change the venue when it is laid 
 in the proper county, yet they will change it even then upon a special 
 ground. 
 
 1 Term R. 781 ; 1 Bos. & Pul. 20, 425 ; 3 East, 329 ; 8 Taunt. 035 ; Tidd's Prac. 
 655 ; 1 Chit. R. 324. 
 
 But in an action by an attorney for an escape, it is not a sufficient 
 ground for deviating from the general rule not to change the venue, in 
 such case that the witnesses on both sides reside in the county to which 
 the venue is wished to be changed. 
 
 2 Marsh. 152. 
 
 Though the courts will, in general, change the venue where it is not laid 
 
 21
 
 374 VOID AND VOIDABLE. 
 
 (B) What Acts are absolutely void. 
 
 in the proper county, yet if an impartial or satisfactory trial cannot be had 
 there, they will not change it ; as, in an action for words spoken of a jus- 
 tice of the peace by a candidate on the hustings at a county election. 
 Cowp. 510. 
 
 And in order to avoid delay, the courts will not change the venue, ex- 
 cept by consent, or upon an affidavit of merits, into the city of Bristol or 
 Norwich, (where there are no Lent assizes,) in Michaelmas or Hilary 
 term. 
 
 Barnes, 481 ; 1 Wils. 138 ; 11 Price, 613 ; sed vide 1 Chit. R. 334; 11 Price, 742. 
 See further as to cases where the venue may and may not be changed, Tidd's Prac. 
 vol. 1, c. 24, (9th edit,); Archb. Prac. vol. 2, p. 193, "(2d edit.)|| 
 
 VOID AND VOIDABLE. 
 
 In the law, some acts are absolutely void, and others are voidable only ; 
 for the better understanding whereof, it is necessary to consider, 
 
 (A) The Distinction between void and voidable. 
 
 (B) What Acts are void ; wherein, of the Degrees in which Acts may be void, as, 
 
 1. What Acts are absolutely void as to all Purposes. 
 
 2. What void as to some Purposes only. 
 
 3. What as to some Persons only. 
 
 4. How Acts void by Operation of Law may be made good by subsequent matter. 
 
 (C) What Acts are voidable only. 
 
 (D) How voidable Acts may be made good. 
 
 (E) How they may be avoided. 
 
 (F) By whom they may be avoided. 
 
 (A) The Distinction between void and voidable. 
 
 A thing is void which was done against law at the very time of the 
 doing it, and no person is bound by such an act ; but a thing is only void- 
 able which is done by a person who ought not to have done it, but who 
 nevertheless cannot avoid it himself after it is done ; though it may by 
 some act in law be made void by his heir, &c. 
 
 2 Lill. Abr. 807. [The doctrine in the text as to voidable acts is far from being 
 universally just. It does not hold in the case of infants. An infant, when he comes 
 of age may himself avoid a voidable act done by him in his infancy.] /3See Bouv. L. 
 1). v. Void; Id, v. Voidable.^ 
 
 (B) What Acts are absolutely void. 
 
 Acts, it is said, may be void in several degrees, according to the par- 
 ticular circumstances of the case. 
 Cart. 19, Keite v. Clopton. 
 
 It will be proper, therefore, to consider,
 
 VOID AND VOIDABLE. 375 
 
 (B) What Acts are absolutely void. 
 1. What Acts are absolutely void as to all Purposes. 
 Bond of a feme covert and infant are void. 
 
 Bro. Obligation, pi. 26. This, however, with regard to the infant must be under- 
 stood with some restriction ; for if an infant gives a bond without a penalty for ne- 
 cessaries, it is good ; and the reason why it is void, if with a penalty, seems to be that 
 the law gives validity to every act of the infant's which may be for his benefit ; but 
 it cannot be presumed to be for his benefit to enter into a penalty. Noy, 85, Delaval 
 v. Clare ; Cro. Eliz. 920 ; Ayliff v. Archdale, S. C. ; Moor, G'Jl ; 1 Inst. 172 a ; 1 
 Roll. Abr. 729 ; 1 Lev. 87, Russell v. Lee ; || Fisher v. Mowbray, 8 East, 330 ; Baylis 
 v. Dineley, 3 Maule & S. 477 ; Ingledew v. Douglas, 2 Stark. Ca. 36 ; and where a 
 feme covert having a separate estate, gave a bond for a sum advanced at her request 
 to her son-in-law, it was held, that a promise by her to pay it after her husband's de- 
 cease, was binding on her executors. Lee v. Muggeridge, 5 Taunt. 36. || [A warrant 
 of attorney given by an infant is merely void. Saunderson v. Marr, 1 H. Black. 75.] 
 || And see Storton v. Tomlins, 2 Bing. R. 475. The trading contract of an infant is 
 not void, but he may enforce it at his election. Bruce v. Warwick, 6 Taunt. 118. 
 And an infant's promise as one of two acceptors of a bill of exchange seems only 
 voidable, not void. Gibbs v. Merrill, 3 Taunt. 307 ; sed vide contra, 2 Barn. & C. 
 820.11 
 
 || The probate of the will of a feme covert is absolutely void. 
 Clayton v. Adams, 6 Term R. 605. || 
 
 So likewise the bond of a person non compos mentis, after office found, 
 is absolutely void. 
 
 4 Co. R. 128, Beverley's case. It is said the reason why the bond of ..n infant or 
 person non compos, is void, is because the law has appointed no act to be done to avoid 
 it; and the only reason why the party cannot plead non est factum is, that the cause 
 of nullity is extrinsic, and does not appear on the face of the deed. 2 Salk. 675. 
 Thompson v. Leach. And see post, What acts are voidable only. 
 
 And in general all bonds which are given for a purpose malum in se, 
 as to kill or rob another, are void. 
 
 See ante, tit. Obligation (D) and (E). 0See Badger v. Williams, 1 Chip. 137 ; 
 Whitaker v. Cone, 2 Johns. Cas. 58 ; Swett v. Poor, 11 Mass. 549 ; Toler v. Arm- 
 strong, 4 Wash. C. C. R. 297 ; Jones v. Caswell, 3 Johns. Cas. 29 ; Thompson v. 
 Davies, 13 Johns. 112 ; Gulick v. Ward, 5 Halst. 87; Hudson v. Wilkins, 4 Mass. 
 370 ; Churchill v. Perkins, 5 Mass. 541 ; Denny v. Lincoln, 5 Mass. 385 ; Beldin" v. 
 Pitkin, 2 Caines, 147. 
 
 A contract to do an illegal or immoral act is void. 
 
 Forsythe v. State, 6 Ham. 21 ; Winnebinner v. Weisiger, 3 Monr. 35.0 
 
 Likewise bonds given for the performance of a malum prohibitum, as 
 for maintenance. 
 
 And bonds to oblige persons to neglect their duty to the king and king- 
 dom, are absolutely void. 
 
 If a future lease be made to commence after the death of tenant in 
 tail, it is merely void in its creation ; for it is not to commence till the 
 title of the issue commences, and that is an elder title concurring with 
 it ; and if the law should make it otherwise than void, the law would 
 make him a trespasser. 
 
 2 Salk. 620, Machil v. Clerk. See^, (C). 
 
 If a bishop grants administration, and there are bona notabilia, such ad- 
 ministration is absolutely void, as well as to the goods Avithin his own 
 diocese as elsewhere, because he hath in such case no jurisdiction whatever. 
 
 5 Rep. 30, Prince's case ; 8 Rep. 135, Sir John Nedham's case ; Noy, 90, Cross- 
 man v. Hume. {See 2 Mass. T. Rep. 120, Wales v. Willard.} And see post, (C). 
 II As to the other cases in which administration is void, and in which voidable, see 
 Toller, Law of Ex. 120, (5th edit. :) ante, tit. Executors and Administrator s.\\
 
 376 VOID AND VOIDABLE. 
 
 (B) What Acts are absolutely void. 
 
 So likewise a judgment, given by persons who have no good commis- j 
 sion for that purpose, is void. 
 
 3 Inst. 231. And it may be added, that in general all acts done by ministers of 
 justice without authority are void. 10 Rep. 76 b. And see^jos?, (C). 
 
 || By 4 Gr. 4, c. 76, § 22, marriages in any other place than a church or 
 public chapel, &c, unless by special license, or without publication of 
 banns, or license of marriage, or solemnized by a person not being in- 
 holy orders, are null and void to all intents and purposes. 
 
 4 G. 4, c. 7G, I 22 ; and see tit. Marriage, (C).|| 
 
 /3 Commissioners were bound by law to build a courthouse, certain per- 
 sons agreed by subscription to pay the commissioners a certain sum, pro- 
 vided they would build on a certain lot ; this contract is not binding, 
 although they build on the lot, it being contrary to public policy. 
 
 County Commissioners v. Jones, 1 Breese, 103 ; see State v. Collins, 6 Hamm. 142. 
 
 Where any part of the consideration of a contract is the suppression 
 of evidence in a criminal prosecution, such contract is void. 
 
 Badger v. Williams, 1 Chip. 137. 
 
 A contract made to indemnify a party for doing an illegal or immoral 
 act, to be done at a future period, is void. 
 
 Knceland v. Rogers, 2 Hall, 579 ; 14 Johns. 381 ; 1 Caines, 450 ; see Gulick v. 
 Ward, 5 Halst. 87. 
 
 An agreement to give B $1000 on condition that he will not offer to 
 the postmaster-general to carry the mail, on a mail route, is void. 
 
 Gulick v. Ward, 5 Halst. 87. 
 
 An agreement tending to prevent a competition at a sale on execution, 
 is void. 
 
 Jones v. Caswell, 3 Johns. Cas. 29; Thompson v. Davies, 13 Johns. 112; G Johns. 
 194 ; 8 Johns. 444. 
 
 An agreement to reprint a literary work, in violation of the proprie- 
 tor's copyright, is void. 
 
 Nichols v. Ruggles, 3 Day, 145. 
 
 An agreement made between a third person and an officer to indemnify 
 the latter for neglecting his duty, is void. 
 
 Hudson v. Williams, 7 Green]. 113 ; Ayer v. Hutching, 4 Mass. 370; 5 Mass. 541. 
 See Denny v. Lincoln, 5 Mass. 385. 
 
 An agreement in restraint of trade generally throughout the state, is 
 void. 
 
 Nobles v. Bates, 7 Cowen, 307. 
 
 But when the party is restrained from trading only in a particular 
 place, or for a particular time, the contract is not void for this cause. 
 
 7 Cowen, 307. See 8 Mass. 223 ; 9 Mass. 522 ; 1 Pick. 450 ; 3 Pick. 188 ; 4 Bibb, 
 480. 
 
 An action cannot be maintained for the price of lottery tickets not 
 authorized by law. 
 
 6 Binn. 329 ; Seidenbender v. Charles, 4 S. & R. 151. See Barton v. Hughes, 2 
 P. A. Browne, 48 ; Biddis v. James, Binn. 312 ; Yohe v. Robertson, 2 Whart. 155 ; 
 Hunt v. Knickcrbacker, 5 Johns. 327. 
 
 An obligation for the sale of an office, or a deputation, is void. 
 Daton v. Rodes, 3 Marsh. 433 ; Harolson v. Dickens, 2 Car. Law Rcpos. GO. See 
 Meredith v. Ladd, 2 N. H. Rep. 517 ; Cardigan v. Page, G N. H. Rep. 183; De For- 
 rest v. Braincrd, 2 Day, 528 ; Tappan v. Brown, 9 Wend. 175.
 
 VOID AND VOIDABLE. 377 
 
 (B) What Acts are absolutely void. 
 
 An agreement in direct opposition to the laws of the place where it is 
 
 made, is void. 
 
 Hall v. Mullen, 5 Har. & Johns. 193. See Wheeler v. Russell, 17 Mass. 258 ; Far- 
 rar v. Barton, 5 Mass. 395 ; Koby v. West, 4 N. H. Rep. 285. 
 
 When a part of the consideration of an entire contract is against law, 
 the whole contract is void. 
 
 Carlton v. Whitcher, 5 N. II. Rep. 196 ; Hind v. Chamberlin, 6 N. II, Rep. 225 ; 
 Loomis v. Newhall, 15 Pick. 159. 
 
 By article of agreement under seal, it was agreed that the defendant 
 should become assistant to the plaintiffs in their business of surgeon-den- 
 tists for four years ; that the plaintiffs should instruct him in the business 
 of a surgeon-dentist, and that after the expiration of the term, the de- 
 fendant should not carry on that business in London, or in any of the 
 towns or places in England or Scotland, where the plaintiffs might have 
 been practising before the expiration of the said service. The declara- 
 tion alleged as breaches, 1st, that after the term, the defendant carried on 
 the said business in London ; 2dly, that the plaintiffs had, during the said 
 term, carried on the said business in Great Russell street, Bloomsbury ; 
 yet the defendant, after the term, carried on the said business in the 
 same place. Plea, to first breach, that London was a large and populous 
 district, containing 1,500,000 inhabitants, and that the stipulation in the 
 agreement was an undue, unreasonable, and unlawful restriction of trade. 
 Plea, to the second breach, that before the expiration of the service, the 
 plaintiffs had practised in very many towns in England, and amongst 
 others, London, Preston, Oswestry, &c, and that divers of the said towns 
 were distant from each other 150 miles ; wherefore the said stipulation 
 was an unreasonable restriction of trade, and the said agreement, as to so 
 much, was wholly void. Held, that the first plea was bad, as the cove- 
 nant not to practise in London was valid, the limit of London not being too 
 large for the profession in question, and that the latter part of it was also 
 bad, for attempting to put in issue matter of law, viz., the reasonableness 
 of the restriction. Seynble, that in considering the question of restriction, 
 the populousness of particular districts ought not to be taken into con- 
 sideration. Held, secondly, that the stipulation as to not practising in 
 towns where the plaintiffs might have been practising during the service, 
 was an unreasonable restriction, and therefore illegal and void ; but that 
 the stipulation as to not practising in London, was not affected by the 
 illegality of the other part. Every restraint of trade which is larger 
 than what is required for the necessary protection of the party with whom 
 the contract is made, is unreasonable and void, as injurious to the inte- 
 rests of the public, on the ground of public policy. 
 
 Mallan v. May, 11 M. & W. 653. 
 
 2. What Acts are void as to some Purposes only. 
 
 Void things are good to some purposes. 
 
 As, if lessee for twenty years take a lease for ten years, to begin pre- 
 sently, upon condition that if a certain thing be not done the lease shall 
 be void ; in that case, though the second lease be void on the breach of 
 the condition, yet the surrender remains good. 
 
 Finch's Law, 62. 
 
 So likewise if a feoffment be made, to be void on the non-performance 
 of a certain condition, yet, after the feoffor's entry for the condition 
 Vol. X.— 48 2 1 2
 
 378 VOID AND VOIDABLE. 
 
 (B) What Acts are absolutely void. 
 
 broken, the feoffee shall have an action for a trespass done by the feoffor 
 before. 
 
 Finch's Law, 02. 
 
 Also, if tenant at will grants over his estate, though the grant be void, 
 yet it determines his will. 
 
 Arg. Hard. 47, Jones v. Clerk. But if an act be made void by a statute, it shall 
 avail to no purpose whatever: therefore a simoniacal presentation does not so much 
 as amount to a claim. Arg. Ibid. [ A bill of exchange, or promissory note for money 
 lost at play, is void in the hands of an endorsee, though without notice, and for a 
 valuable consideration. 1 Salk. 344; 2 Burr. 1077.] ||See 4 Taunt. 083 ; 4 Barn. 
 & Aid. 212. || [The like law, where it is given on an usurious contract. Dougl. 730.] 
 || But not in case of usury, if it is in the hands of a bond fide holder fur value. St. 
 58 G. 3, c. 93. Where a statute expressly declares bills, &c, given on a certain con- 
 sideration, void to all purposes, there they are void even in the hands of a bond fide 
 holder for value, as under the gaming act, 9 Ann. c. 14, \ 1, the 45 G. 3, c. 72, $ 10, 
 17, respecting the illegal ransom of vessels, &c. ; Bowyer v. Bampton, Stra. 1155 ; 
 Chitt. on Bills, 81 ; Webb v. Brooke, 3 Taunt. ; Jackson v. Warwick, 7 Term R. 
 121. But unless the instrument is declared void, the mere illegality of the considera- 
 tion is no defence against a bond fide holder for value. Wyatt v. Buhner, 2 Espin. 
 R. 538 ; Chitt. on Bills, 81 ; unless it is taken after due, Brown v. Turner, 7 Term 
 R. 030. || [A lease of a rectory by a rector is void by his non-residence for eighty 
 days, 2 Term R. 749. An annuity deed not enrolled' pursuant to the directions of 
 the 17 G. 3, c. 26, is absolutely void. Ibid. 603.] 
 
 3. What Acts are void as to some Persons only. 
 X fraudulent gift of goods is not void against all, for it remains good 
 against the donor, and is only void against his creditors. 
 Per Anderson, Cro. Eliz. 445, Upton v. Basset. 
 
 So likewise, a feoffment upon maintenance or champerty is not void 
 against the feoffor, but against him that hath right : per Beamond, J. 
 Cro. Eliz. 445, Upton v. Basset. 
 
 Also, where a feme covert or infant are bound in an obligation with 
 others, though the bond is void as to the feme covert or infant, yet it is 
 good as to the others, who shall be sued alone, and the writ shall not abate. 
 
 Bro. Obligation, pi. 26 ; 1 Roll. R. 41, Winscombe v. Pigott. And see there whe- 
 ther it is necessary to aver the declaration, that the other is a feme covert or infant. 
 
 || By 5 & 6 E. 6, c. 16, all bargains, sales, promises, bonds, &c, for 
 sale of any offices or deputations of any offices shall be void to and against 
 them by whom such bargains, sales, &c, are made. 
 
 5 & Ed. 0, c. 10 ; and see 49 G. 3, c. 120, and tit. Offices and Officers, Vol. vii.[| 
 
 ,3 Imbecility of mind, not amounting to lunacy, or idiocy, in the gran- 
 tor of land, is not sufficient to avoid his deed, when there has been no 
 fraud in obtaining it. 
 
 Odell v. Buck, 21 Wend. 142. See Desilver's estate, 5 Rawle, 111. 
 
 All contracts made by lunatics after inquisition found, are absolutely 
 
 void. 
 
 L'Amoureux v. Crosby, 2 Paige, 422. See as to efficacy of contracts of lunatics, 
 ante, Idiots and Lunatics, (F).£f 
 
 4. How Acts void by Operation of Law may be made good by subsequent Matter. 
 In equity the consent of the heir makes good a void devise. 
 Chan. Cases, 209, Lord Cornbury v. Middleton. 
 
 So likewise, a devise void by misnomer of the corporation was decreed 
 to be a good appointment of a charitable use, •within the 43 Eliz. 
 Chan. Cases, 1.07, Anon.
 
 VOID AND VOIDABLE. 379 
 
 (C) What Acts arc voidable only. 
 
 If a lease be made by the husband, of the wife's land, and the husband 
 die, the lease is not void, but voidable, by the wife's entry. 
 
 Arg. 3 Bul.st. 272, cites Plow. Com. 05, Browning v. Beeston. [Though a lease by 
 , the husband of a ferae covert's estate (even not within 32 II. 8, c. 28,) is only voida- 
 ble, vet a mortgage of a feme covert's estate, though in form of a lease, is void, Pougl. 
 53, 54.] ||See~7 Term R. 478.|| 
 
 Likewise, if tenant in tail make a future lease for years, which by 
 
 possibility may be to commence during the life of tenant in tail, it is not 
 
 void, but voidable as to the issue. 
 
 2 Salk. 020, Machil v. Clark. See ante. 
 
 So, if an infant make a feoffment or a lease, and deliver it with his 
 
 thand, it is voidable only.(a) 
 
 2 Brownl. 248, Plomer v. Hockhead. It is there added, that if the feoffment or 
 lease be executed by letter of attorney, it is a disseisin to him. It has been said like- 
 wise, that if the infant reserve a small rent, as one penny, where the land is worth 
 100/. per ami., such lease is void. 2 Leo. 210, Humfreston's case. \\(a) Qn. What is 
 a reasonable time for the infant to avoid the lease after he attains twenty-one? 
 Holmes v. Blogg, 1 Moo. 400. || • 
 
 It is said likewise, that a deed of exchange entered into by an infant, or 
 one non sance memorice, is not void, but may be avoided by the infant 
 when arrived at age, or by the heir of him who is non sance memorice. 
 
 Perk. 281. 
 
 Also, an infant's bond of submission to an arbitration seems only 
 voidable. 
 Noy, 93, Stone v. Knight. 
 
 An infant's contract of marriage likewise is only voidable. 
 
 2 Stra. 938, Holt v. Ward, Clarencieux. ||And so also an infant's trading contract. 
 Bruce v. Warwick, Taunt. 118 ; sed vide contra, 2 Barn. & C. 826. |j 
 
 (3 All contracts made by infants contrary to their interest are void, and 
 all contracts made with semblance of advantage are voidable. 
 Rogers v. Hurd, 4 Day, 57. See 4 Conn. 376. 
 
 A feoffment by an infant is voidable, and all other conveyances made 
 
 by him in jwis, are voidable at his election. 
 
 Pearbon v. Eastman, 4 N. II. Cas. 441 ; 6 Conn. 494 ; 17 Wend. 119 ; 6 Paige, 035 ; 
 2 Tenn. 431.0 
 
 So likewise the deed of a person non compos mentis, before office found, 
 is voidable only, but cannot be avoided by the party himself. 
 
 4 Hep. 124, Beverley's case. The reason why their acts cannot be avoided by them- 
 selves, is because it is a maxim in law, that no man of full age shall be admitted to 
 stultify himself. Id. Ibid., and see ante, (B). llSee Baxter v. Earl of Portsmouth, 
 5 Barn. & C. 170. || 
 
 ,8 A contract made with a man who is intoxicated, so as not to know 
 
 what he is doing, is voidable. 
 
 Barrett v. Buxton, 2 Aik. 107. Sae 2 Verm. 97 ; 2 Rep. Const. Court, 27 ; 1 South, 
 361 ; 1 Green, 231 ; 1 Bibb, 168.0 
 
 A presentation, institution, and induction of a layman is not void, but 
 only voidable by sentence. 
 Per Pophara, Cro. Eliz. 315, Pratt v. Stocke. 
 
 Likewise, if the archbishop of a province grant administration, where 
 there are not bond notabilia to warrant a prerogative administration, yet
 
 380 VOID AND VOIDABLE. 
 
 (D) How voidable Acts may be made good. 
 
 such administration is only voidable; because the archbishop hath a 
 
 general jurisdiction over all the dioceses in the province. 
 
 Cro. Eliz. 457, Bingham v. Smeathwick. See ante, (B), note the difference. llSee 
 Toller's Law uf Ex. 120, (5th edit.)|| 
 
 So also, if letters of administration be granted to one, and after granted 
 to another, by this the first are not avoided, except by judicial sentence. 
 Cro. Eliz. 315, Pratt v. Stocke. 
 
 |j It is no objection to an action on a promissory note that it was given 
 as part of the consideration of an indenture of apprenticeship for less 
 than seven years, by being antedated, such indenture being by the statute 
 of Elizabeth, only voidable and not void. 
 Grant v. Welshman, 16 East, 207. || 
 
 An order of the justices likewise, being a judicial act, is not absolutely 
 void, but voidable only, and continues to be an order till it is avoided. 
 2 Salk. 074, Hall v. Biggs. 
 
 So likewise, the judgment of a superior court is not void, but only 
 voidable by plea or error. 
 
 2 Salk. 074, Prigg v. Adams ; S. C, Carth. 274. 
 
 Thus, an erroneous attainder is not void, but voidable by writ of error. 
 
 2 Inst. 184 ; 2 R. 3, fo. 21, 22. 
 
 ^ Though the statute of Westm. 2, 13 Ed. 1, c. 1, says finis ipso jure 
 sit nullus, yet it is not void against the party, or his issue, or him in re- 
 version ; but the issue and he in reversion have remedy to avoid it ; and 
 the words of the statute sit nullus are construed to mean that it is as 
 good as void, in respect of the defeasibleness of it. 
 
 Arg. 1 Boll. B. 158, 159, Warren v. Smith, alias Magdalen College's case. 
 
 So, where the statute of additions ordains, that if any be outlawed 
 without addition, the outlawry shall be clearly void and of no effect, yet 
 it shall not be void without writ of error. 
 
 Arg. Boll. B. 159, Smith v. Warren. 
 
 P A contract made while the defendant was under duress, may be 
 avoided. But an agreement made by a party under legal arrest is not 
 void on that ground. 
 
 Shephard v. Watrous, 3 Caines, 100. 
 
 In South Carolina, duress of goods has been holden sufficient to en- 
 able the defendant to avoid a contract. 
 
 Collins v. Westbury, 2 Bav, 211; Sasportas v. Jennings, 1 Bav, 470; but see 
 2 Gallis. 337 ; Hardin, G05.£/ 
 
 (D) How voidable Acts may be made good. 
 
 Where a lease is voidable, acceptance of the rent will make it good ; 
 but, where it is void, no acceptance or other act can make it good. 
 
 3 Bep. 04 b. ||Co. Litt. 215 a, n. l.|| Thus in the case above put, where tenant in 
 tail makes a future lease, which may possibly commence in his own life, though it is 
 voidable as to the issue, yet it may be made good by the issue's acceptance of rent. 
 Arg. 3 Lev. 271, Butler v. Baker. || As to voidable leases, see tit. Leases, (D) and (I), 
 an(i; vol. v. || 
 
 p A voidable contract of an infant may be ratified, either expressly or 
 impliedly by his acts. 
 
 Lawson v. Lovejov, 8 Greenl. 405 ; Cheshire v. Barrett, 4 M'Cord, 241. See ante, 
 toI. v. 143.
 
 VOID AND VOIDABLE. 381 
 
 (E) How they may be avoided. 
 An infant cannot confirm his contract for part and avoid it for the re- 
 mainder. 
 Bigelow v. Kinney, 3 Verm. 353 ; Dana v. Coombs, G Greenl. 89. 
 
 (E) How they may be avoided. 
 
 A deed being voidable, is to be avoided by special pleading ; and where 
 an act of parliament says, that a deed, &c, shall be void, it is intended 
 that it shall be by pleading. 
 
 5 Rep. 119 a, Whelpdale's case. 
 
 Where a deed is a voidable deed at the time of pleading ; as, if an in- 
 fant seal and deliver a deed, or one of full age deliver a deed by duress, 
 &c, the obligor must not plead non est factum; because when the action 
 was brought it was his deed, and must be avoided by special pleading.(a) 
 
 5 Rep. 119 a, Whelpdale's case. But if the seal be broken, defendant may plead non 
 est factum; for though it was once a deed, yet at the time of the plea it was not his deed, 
 Id. ibid, [(a) The reason why the defendant in this case must plead specially, and 
 not merely rely on the plea of non est factum, is not because the instrument is inform a 
 deed, but because it has an operation from the delivery. For the delivery of a deed 
 cannot be void, but is only voidable ; so that deeds which take effect by delivery can 
 be only voidable; whilst those which do not so take effect are absolutely void. 3 Burr. 
 1804 ;'l II. Black. 75. But it is not because the deed may be avoided by special 
 pleading, that it is therefore voidable ; but being only voidable, the party is bound to 
 .disclose that matter in his plea which shall avoid it; for prima facie it is good; it 
 passeth an interest; it is capable of confirmation ; its validity, therefore, shall not be 
 questioned without giving the other party an opportunity of supporting it in his repli- 
 cation.] || Neither the text nor the note afford any clear rule as to the cases where a 
 bond must be avoided by a special plea, and where the matter may be shown on non est 
 factum. The distinction seems to be, that matter which tends to show an invalid or 
 defective execution of the deed (as an execution by a lunatic, Stra. 1104, a feme covert, 
 or under fraud, or by a drunken man, Com. Dig. Pleader, 2, (W), 18 ; Bull. N. P. 
 172, or a subsequent erasure, 3 Camp. 181,) may be shown on non est factum ; but that 
 matter impeaching the deed for the illegality of its matter or consideration, whether at 
 common law or by statute, should be specially pleaded, concluding, "and so the said 
 deed is void," and not '• sic non est factum." Thus in case of a bond in restraint of 
 matrimony, or given to compound a felony, Colton v. Goodridge, 2 Black. R. 1108; 
 . Harmer v. Wright, 2 Stark. Ca. 35 ; Harmer v. Rowe, 2 Chitt. Rep. 334. So also in 
 \ cases of usury and gaming, the illegality must be specially pleaded, 1 Stra. 498 ; Com. 
 ! Dig. Pleader, 2 W. 26; 1 Saund. 295 a, note (1). So, also, that the bond was for 
 , securing the price of goods sold by plaintiff to defendant for an illegal traffic to the 
 ! East Indies. Paxton v. Popham, 9 East, 408 ; or that the bond was illegal and void 
 ! by the 49 G. 3, c. 120, against the sale of offices. Greville v. Atkyns, 9 Barn. & C. 
 462; and see Pole v. Harrobin, 9 East, 416. So, also, according to 2 Will. Saund. 
 1 59, n. (3), if a bail-bond is not made according to the stat. 23 Hen. G, c. 9, a special 
 i plea is necessary. But in Thompson v. Rock, 4 Maule & S. 338, it was held that this 
 j defence might be made on non est factum, on the ground that the plea, if special, would 
 ' in such case conclude " et sic non est factum;" and that, according to modern practice, 
 ! the plea might therefore bo general. But the learned editor of Coke's Reports, part 
 i 5, 119 b, shows that the special plea in such case would conclude (according to 
 | 1 Lord Raym. 349 ; 2 Vent. 237 ; 1 Saund. 159 ; Bro. Abr. Non est factum, 14 ;) "and 
 so the deed is void and of no effect ;" and the case therefore is of doubtful authority. 
 ; The cases of infancy and duress, in which the defence must be specially pleaded, 
 seem hardly reconcilable with the above distinction, since they impeach the execution 
 : of the deed, and do not show illegality in the matter or consideration; and in these 
 j cases, it seems the plea is a special non est factum. See 5 Coke's Rep. 119 b, note (c), 
 j and the cases there cited. In 1 Will. Saund. 295 a, note, it is said that, though usury 
 ; appear on the face of the condition, the defendant cannot demur, but it must be spc- 
 j cially pleaded. But this seems erroneous, ibid, note (f) ; and see 2 Term R. 575. || 
 
 But a feoffment or lease for life, which is declared to be void on breach 
 ; of a condition, must nevertheless be made void by re-entry, it being a free-
 
 382 VOID AND VOIDABLE. 
 
 (F) By whom they may be avoided. 
 
 hold _ conveyed by livery : whereas a lease for years on breach of the 
 condition is absolutely void, and there needs no re-entry. 
 3 Rep. 05 a, Pennant's case ; Poph. 100, Goodale v. "Wyatt. 
 || Assuming that an infant may avoid indentures of apprenticeship by 
 which he has bound himself, (which does not appear quite settled,) still 
 his leaving his master's service and going into that of another person, is 
 not such an act as will avoid the indentures. 
 
 The King v. Hindringham, 6 Term R. 557 ; Ashcroft v. Bertles, Ibid. G52 : and see 
 3 Maule & S. 497. || 
 
 (F) By whom they may be avoided. 
 
 Of a void act or deed every stranger may take advantage, but not of a 
 voidable one ; as, if there are two joint-tenants within age, and one makes 
 a lease for years, and dies, the other shall avoid it, for the lease is utterly 
 void : but, if the one leases for life, and makes livery in person, and 
 dies, the other shall not avoid it. Per Wray, C. J. 
 2 Lev. 218, in Ilumpherston's case. 
 
 p Privies in blood and representation may avoid the voidable deeds of 
 
 lunatics, but privies in law and estate cannot. 
 
 Brackenridge v. Ormsley, 1 J. J. Marsh. 245. See Cates v. Woodson, 2 Dana, 454 ; 
 Lazell v. Pinnick, 1 Tyl. 247. See ante, Infancy and Age, (I), G.tf 
 
 || Where an infant slave in the West Indies executed an indenture, 
 covenanting to serve B for a certain term of years as his servant, and B 
 covenanted to do certain things on his part, and B then came to England 
 with the slave, and A, a recruiting officer, enticed him to enlist. In an 
 action brought by B against A for seducing his servant from his service 
 the question was, Whether the allegation in the declaration that the infant 
 slave contracted to serve B for a term of years was proved, since the 
 youth was both an infant and a slave, and therefore incapable of binding 
 himself by the indenture. But Heath, J., considered the contract 
 beneficial to the infant, since by analogy to the old law respecting villains, 
 (Co. Litt. 187 b ; 11 Sta. Tri. 342,) it might be a manumission by impli- 
 cation ;(a) and the court accordingly held that the contract was voidable 
 only, and that the defendant, a stranger and wrongdoer, could not take 
 advantage of the infant's privilege of avoiding his contracts, which was 
 personal to himself. 
 
 Keano v. Boycott, 2 II. Black. 511. (a) The learned Reporter suggests that this 
 analogy is unsound ; and that by the general policy and local institutions of the W. I. 
 Islands, a slave cannot be manumitted by imputation ; and cites the law of St. Vincent, 
 prescribing a mode of manumission, with a promise for an annual allowance to the 
 slave, and enacting, that " any manumission in any other manner shall be void." But 
 quaere, whether this clause can apply to any other than express manumissions contrary 
 to the mode prescribed ; and, at all events, the master having voluntarily treated his 
 slave as mi juris, by contracting with him, would seem to be estopped from contending 
 that such contract was void; and what the master could not do, surely no stranger 
 could df>. And with respect to the infancy, whether the contract would be an implied 
 manumission or not, certainly it is not such a contract as the court could of itself 
 pronounce prejudicial, and therefore void. It seems therefore clearly only voidable, 
 and then the right of avoiding it only belongs to the infant. So that the decision 
 seems sound, whether the analogy suggested by Heath, J., be tenable or not.!]
 
 383 
 
 WAGER OF LAW. 
 
 Wager of law is a particular mode of proceeding, whereby, in an action 
 of debt(a) brought upon a simple contract between the parties, without 
 deed or record, the defendant(6) may discharge himself by swearing in a 
 court in the presence of compurgators,^) that he oweth the plainthT 
 nothing in matter and form as he hath declared. And this waging his 
 law, is sometimes called making his law. 
 
 (a) Actions of debt are the most common cases in -which defendant may wage his 
 law ; but he may likewise wage his law in actions of detinue and other cases, as also 
 in real actions, as will appear in the course of this title, (b) In some cases, however, 
 the plaintiff may wage his law. See letter _(E). (c) According to some, the compur- 
 gators should be eleven in number, for which reason every wager of law is said to 
 countervail a jury, as the defendant must wage his law, de duodecimo vianu, that is, 
 by himself and eleven more. Others hold twelve to be necessary ; but, according to 
 some, less than eleven will suffice. The defendant is sworn absolutely de Jidelitate, 
 and the compurgators de crediditate ; that is, that they believe what he swears to be 
 true. 33 II. 6, f. 8 ; 1 Inst. 295 ; 2 Shep. Abr. 190 ; 2 Vent. 171 ; Anon. N. B. It 
 has been said, that compurgators are not absolutely necessary, unless the plaintiff 
 demands them. 2 Keb. 360, Puckridge v. Brown. 
 
 For the better understanding of this title, which is now in a great mea- 
 sure obsolete,(<i) it will be necessary to consider the following heads : 
 
 (d) When a defendant has waged his law, it is a perpetual bar to the plaintiff's de- 
 mand, for the law presumeth that no man will forswear himself; but men's consciences, 
 as Lord Coke observes, are grown so large, especially in this case which passes with 
 impunity, (since no indictment for perjury lies in wager of law,) that it is now become 
 customary, instead of bringing actions of debt, to bring actions upon the case upon the 
 defendant's promise, wherein he cannot wage his law. 1 Inst. 295 ; 1 Vent. 296. 
 Actions of detinue likewise are now seldom brought, actions of trover and conversion 
 having taken place in their stead, where the conversion changes the detinue to an 
 action on the case, 
 
 (A) The Reason for allowing the Wager of Law. 
 
 (B) The Manner of waging Law. 
 
 (C) At what Time Law may be waged. 
 
 (D) In what Cases Law may be waged, and in what not. 
 
 (E) What Persons may wage their Law. 
 
 (F) Against whom Wager of Law lies. 
 
 (G) In what Cases the Defendant is barred from waging his Law, by having ex- 
 amined the Plaintiff or his Attorney. 
 
 (A) The Reasons for allowing the Wager of Law. 
 The reason wherefore, in an action of debt upon a simple contract, the 
 defendant may wage his law, is, for that the defendant may satisfy the 
 party in secret, or before witnesses, and all the witnesses may die, so the 
 law doth allow him to wage his law for his discharge. And this is pecu- 
 liar to the law of England, and no mischief issueth hereupon ; for the 
 plaintiff may take a bill or bond for his money ; or, if it be a simple con- 
 tract, he may bring his action upon his case, upon his agreement or pro-
 
 384 WAGER OF LAW. 
 
 (B) The Manner of waging Law. 
 
 mise, which every contract executory implieth, and then the defendant 
 cannot wage his law. 
 
 2 Inst. 45. j3 If the wager of law ever existed in the United States, it is now abo- 
 lished. The general rule is that an action of debt will lie against executors ; to this 
 there is an exception that it will not lie where the executor might have waged his law. 
 When this objection exists, however, the executor may waive the benefit of it; and 
 if he omit to demur, but pleads to the action, and a verdict is found against him ; he- 
 cannot take advantage of it, on this account, either in arrest of judgment, or by writ 
 of error. Childress v. Emory, 8 Wheat. 642.£f 
 
 It hath been said, however, that the only true reason of wager of law 
 is, the inconsiderableness of the ground of the plaintiff ' s demand, and it 
 suffices that the nature of the defendant's discharge be of equal validity 
 with the ground of the plaintiif's charge. Per Hatsell, J. 
 
 12 Mod. G70, The City of London v. Wood. It is an argument, says Hatsel, J., 
 that the matter is of no great value, that the plaintiff did not take care to have better 
 security for it than the slippery memory of man, and the uncertainty of a verbal con- 
 tract; so that since the tie was so slight, it is no wonder if the law will slightly dis- 
 charge it. 
 
 Originally it was not only a privilege of the defendant to discharge him- 
 self, but one which the plaintiff had, when he had no witness of his debt, 
 to put the defendant under a necessity of giving him his oath to discharge 
 himself: so it was a kind of equity in law, that the plaintiff might put 
 him to take his oath that he owed nothing to him, or confess the debt, 
 rather than the plaintiff should lose his debt, in cases where he had no 
 witnesses of it at all, or had some who were then dead. Per Holt, C. J. 
 
 12 Mod. 678, The City of London v. Wood. 
 
 The plaintiff's bare affirmance was formerly sufficient to put the defend- 
 ant to wage his law; but it is provided by Magna Charta, that "No 
 bailiff shall put any man to his law, nor to an oath, upon bare saying, 
 without witnesses brought in." Before this, as has been premised, the 
 plaintiff, on his declaration on bare affirmance, might make the defend- 
 ant swear there was nothing due. At this day, if the plaintiff produce 
 witnesses to prove his demand, the court may put the defendant to wage 
 his law ; and in such case the defendant is not at liberty to cross-examine, 
 any more than where the plaintiff in a prohibition produces witnesses to 
 prove his suggestion. 
 
 2 Salk. 683, Mood v. The Mayor of London. 
 
 (B) The Manner of waging Law. 
 
 The manner of waging of law is thus : he that is to do it must bring six 
 compurgators with him into court, and stand at the end of the bar to- 
 wards the right hand of the Chief Justice ; and the secondary asks him, 
 Whether he will wage his law ? If he answers that he will, he lays his 
 right hand on the book, then the judges admonish him and his compurga- 
 tors to be advised, and tell them the danger of taking a false oath ; and if 
 they still persist, the secondary says, and he that wagcth his laiv repeats 
 after him : Hear this, ye justices, that I, A B, do not owe to CD the sum 
 of, tj-c., nor any penny thereof in manner and form as the said CD hath 
 declared against me : so help me God. The compurgators then severally 
 make oath, that they believe he swears truly. But, before the defendant 
 takes the oath, the plaintiff is called by the crier thrice ; and if he do not 
 appear he becomes nonsuited, and then the defendant goes quit without
 
 WAGER OF LAW. 3S5 
 
 (C) At what Time Law may be waged. 
 
 taking his oath ; and if he appear, and the defendant swear that he owes 
 the plaintiff nothing, and the compurgators give it upon oath, that they 
 believe he swears true, the plaintiff is barred for ever ; for when a person 
 has waged his laiv, it is as much as if a verdict had passed against the 
 plaintiff; if the plaintiff do not appear to hear the defendant perform his 
 law, so that he is nonsuit, he is not barred, but may bring a new action. 
 
 2 Lill. Abr. 824 ; 2 Vent. 171, Anon. ; 2 Salk. 682, Anon. || But it appeared in a 
 late case to be doubtful how many compurgators were proper, and the court refused 
 to assist the defendant by assigning the number. King v. Williams, 2 Barn. & C..538.|] 
 
 (C) At what Time Law may be waged. 
 
 Day given for waging law is peremptory. Per three justices against one.. 
 
 3 Bulst. 316. And the defendant cannot afterwards waive it without the plaintiff's 
 consent, and betake himself to the country, and upon his non-appearance a deficit de 
 
 lege was entered. Bulst. 186, Harrison v. James. But there is a case where, 
 
 after the roll was marked with a deficit de lege, and costs assessed, it was moved and 
 prayed, sedente curia, that the defendant might be demanded again, and it was granted,, 
 and then defendant made his law. Noy, 42, Anon. 
 
 Where the defendant wages his law instanter, that is, the same term 
 without day given over, the plaintiff need not be called ; consequently, 
 cannot be nonsuited. Thus — 
 
 In debt by assignees of commissioners of bankrupts, defendant came 
 in and ivaged his law instanter, and it was debated if the plaintiff might 
 be nonsuited ; and at length it was agreed, inasmuch as the defendant 
 came instanter, that the plaintiff cannot be nonsuited ; for which reason 
 the plaintiff was not called, but the defendant waged his law : and so 
 the plaintiff was barred. 
 
 Sid. 366, Buckeridge v. Brown. The reporter says, vide that when defendant 
 comes instanter to wage his law, or at another day in the same term, to which the 
 plaintiff has imparled, the plaintiff shall not be demanded, nor can he be nonsuited. 
 Ibid, cites 14 H. 4, c. 19 b ; 3 H. 6, c. 50 a, S. C. ; 2 Keb. 360, by the name of 
 Puckeridge v. Brown. 
 
 But in debt where the defendant tendered to make his law immediately 
 
 that he owed nothing, $c., because the plaintiff appeared in court, it wns 
 
 awarded that the plaintiff should make his law ; and this was the folly of 
 
 the plaintiff, for he might have imparled to the law, and then at the day 
 
 he might have been nonsuited. But Brooke makes a quaere, if he may 
 
 be nonsuited at another day in the same term. 
 
 Bro. Ley Gager, pi. 85, cites 3 H. 4, c. 2 ; Brooke, tit. Nonsuit, pi. 10, S. C. says, 
 that if he had imparled to the law, such imparlance ought to be another term. 
 
 So in debt, the defendant tendered his law, and the plaintiff imparled 
 to a day in the same term; there the plaintiff shall not be demanded, 
 nor be nonsuited ; for his appearance was of record the same term, and if 
 he refuses the law, he shall be barred. 
 
 Bro. Ley Gager, pi. 96, cities 3 H. 6, c. 49. 
 
 It is said that the defendant cannot pray to be admitted to wage law 
 instanter, after imparlance, but before he may, and then the plaintiff can- 
 not be nonsuit, if the defendant perfect his law : but, if he wage his law 
 after imparlance, the plaintiff may be nonsuit. 
 
 2 Lill. Abr. 825. 
 
 In debt, the defendant waged his law, and when he came to perform 
 it, the plaintiff said, that he ivho now came is another of the same name, 
 for his action is against J S the elder ; and he who now appears is J S 
 
 Vol. X.— 49 2 K
 
 386 WAGER OF LAW. 
 
 (D) In what Cases Law may be waged, and in what not. 
 
 the younger, and prayed his judgment. Qucere, for the averment was not 
 granted or denied. 
 
 Bro. Ley Gager, pi. 91, cites 5 E. 4, c. 5. 
 
 In debt, the defendant had day given to wage his law, and at the day 
 defendant was sick of a burning fever, whereupon the court was moved 
 for another day for the defendant to come and wage his law, and offered 
 to make all this good by an affidavit ; but the court refused, and advised 
 him to plead to the country, and so he did. 
 
 3 Bulst. 263, Smink v. Barker. 
 
 In debt upon arbitrament the defendant imparled, and came back the 
 same term and tendered his law ; and per cur. he shall have his law. 
 Bro. Ley Gager, pi. 41, cites 8 H. 6, c. 10. 
 
 So in detinue, the defendant pleaded in bar, and after relinquished it, 
 and waged his law, and well ; for a man may relinquish his plea, and 
 plead the general issue, and this shall be before the plea entered. 
 Bro. Pleadings, pi. 119, cites 2 E. 4, c. 13. 
 
 In & praecipe quod reddat, the tenant came at the grand cape and waged 
 his law of non-summons, and at the day, &c, came to make his law, and 
 the demandant offered to waive the default, and prayed that the tenant may 
 plead in chief. Per Finch, you cannot do so unless the tenant will con- 
 sent to it ; and the tenant was thereof demanded, and would not consent, 
 therefore he waged his law, and the demandant took nothing by his writ : 
 but at the first day tvhen the tenant offered his laiv, the demandant might 
 have released the default, as it seems. 
 
 Bro. Ley Gager, pi. 82, cites 42 E. 3, c. 7. 
 
 In a praecipe quod reddat, where essoign is cast for the tenant at the 
 summons returned, and by his default grand cape issued ; there he can- 
 not wage his law of non-summons at the day, unless he surmises that the 
 essoign was not cast by him. 
 
 Bro. Ley Gager, pi. 90, cites 36 H. 6, c. 23 ; and see 10 H. 6, c. 9, that if he had 
 so surmised, he might wage his law. Ibid. 
 
 (D) In what Cases Law may be waged, and in what not 
 
 Wager of law is alloivable in five cases. % First in debt upon simple 
 contract, which is the common case. Secondly, in debt upon an award 
 upon a parol submission. Thirdly, in an account against a receiver for 
 receipts by his own hands. Fourthly, in detinue, though the bailment 
 were by the hands of another. Fifthly, in an amerciament in a court- 
 baron or other inferior courts not of record ; and in every of these in- 
 stances, the action is grounded on a feeble foundation, and of small 
 consideration in law. Per Hatsell, J. 
 
 12 Mod. 670, The City of London v. Wood. 
 
 It is to be observed likewise, that there is a wager of law of non-sum- 
 mons in actions real, as, where upon summons against a tenant, he wages 
 his law, saying, that he was not summoned according to the law of the 
 land. 
 
 Note. — This summons must be on the tenant's land, and if against an heir, must be 
 on the lands which did descend ; or on default, the tenant at the grand cape may wago 
 his law of non-summons. 
 
 Thus, if summons in praecipe quod reddat be served fifteen days before the
 
 WAGER OF LAW. 387 
 
 (D) la what Cases Law may be waged, and in what not. 
 
 first day of the return of the writ, the tenant may wage his law of non-sum- 
 mons : for fifteen days before the fourth day of the return will not serve. 
 Bro. Ley Gager, pi. 57, cites 24 E. 3, c. 46. 
 
 So it is said in writ of desceit, that if the sheriff returns in praecipe 
 
 quod reddat, that the tenant is summoned by J N and J O, where he was 
 
 not summoned but by one of them, the tenant may wage his law, that he 
 
 was not summoned according to the law of the land. Per Fulthorp. 
 
 Bro. Ley Gager, pi. 27, cites 50 E. 3, c. 16. And per Belk, the vouchee in praecipe 
 quod reddat shall not wage his law, that he was summoned upon the summons; for he 
 need not save his default at the grand cape ad valentiam ; but if he be returned sum- 
 moned, where he was not summoned, and after grand cape ad valentiam issues, he shall 
 have desceit of the return, &c. Ibid. 
 
 But in 33 H. 6, c. 8, in a proscipe quod reddat, the tenant made default, 
 but appeared on the return of the grand capias, and pleaded non-summons, 
 and would conclude to the country, where the proper trial was by wager 
 of law of non-summons ; and the question there was, if he could waive 
 his plea of wager of law, and betake himself to a plea concluding to the 
 country ? And the better opinion there is, that he could not put him- 
 self upon his country, and decline this wager of law ; and that case is 
 plainly out of the statute of Magna Charta, because it is not debt, nor 
 simplex loquela, but a process of non-summons, from which he was to 
 save himself. Per Holt, C. J. 
 
 12 Mod. 679, The City of London v. Wood. 
 
 It has been said, that a man may wage his law of non-summons in re- 
 summons, as well as he may in the original ; per Brian and Choke, but per 
 Catesby, contra. Qucere ; and the writ was returnable 15 Trin. and the 
 summoners summoned him about the 15th of Corpus Qhristi; and therefore, 
 per Choke, he may wage his law of non-summons, that he was not sum- 
 moned according to the law of the land ; for the law is, that he shall be 
 re-summoned by the day in the writ; but Catesby said, that he cannot wage 
 his law here by conscience, nor can he wage his law in re-summons. 
 
 Bro. Ley Gager, pi. 103, cites 1 E. 5, c. 2. 
 
 Where things are part real and part personal, the defendant may wage 
 his law sometimes for the whole, and sometimes for part only, thus — 
 
 In detinue of a box with charters and muniments, if the plaintiff counts 
 not of any charters in particular, the defendant may wage his law of the 
 whole, 19 II. 6, 9 ; because before the showing of it, the box and all in 
 it was but a chattel. 
 
 2 Roll. Abr. 108. 
 
 If detinue be brought for a chest sealed, with money and charters of 
 land in it, the law lies of the whole. 
 2 Roll. Abr. 108. 
 
 But otherwise it is, if he declares of certain charters in particular, and 
 if the writ be not that the chest was sealed. 
 2 Roll. Abr. 108. 
 
 In detinue of certain charters and muniments contained in a chest, if 
 plaintiff declares of one charter in particular, the defendant may wage 
 his law of the residue. 
 
 _ 2 Roll. Abr. 108. In such case the defendant waged his law as to all but this par- 
 ticular charter, and did it immediately; and the reason seems to be, that when it is in 
 a chest enclosed, the charters are of the nature of the chest, which is only a chattel : 
 contra of charter special ; for of this he cannot wage his law, because it concerns frank- 
 tenement. Bro. Ley Gager, pi. 61, cites 14 H. 6, c. 1.
 
 388 WAGER OF LAW. 
 
 (D) In what Cases Law may be waged, and in what not. 
 
 But in no case where a contempt, trespass, deceit, or injury is supposed 
 in the defendant, shall he wage his law; because the law will not trust 
 him with an oath to discharge himself in those cases. 
 
 1 Inst. 295 a. 
 
 Likewise where the matters charged are facts notoriously known, in 
 such case there are no precedents of wagers of law. Per Hatsell, J. 
 
 12 Mod. 671, Civit. London v. Wood ; and per Holt, C. J. The secrecy of the con- 
 tract, which raises the debt, is the reason of the wager of law. But, if the "debt arise 
 from a contract that is notorious, there shall be no wager of law. In debt upon a con- 
 tract for a sum in gross, wager of law will lie ; but, if debt be brought for rent due 
 upon a parol lease, it will not lie ; and the reason is, because it is in the realty, and 
 arises from the taking of the profits of the land, and occupation of it in the country, 
 and so the notoriety of the thing excludes the defendant from waging his law. Ibid. 
 681. 
 
 Agreeable hereto it was said by Holt, C. J., that in account, if the re- 
 ceipt was by the defendant, the defendant may wage his law, but not if 
 by the hands of a third person :(a) it is true, the law is otherwise in 
 detinue on a bailment ; for though the bailment was by the hands of a 
 third person, the defendant may wage his law ; but here the bailment is 
 not traversable, but the detainer, and that is the point of the action, and 
 the delivery might be private. 
 
 2 Salk. 683, Mood v. The Mayor of London, (a) Because the receipt is traversable 
 in this action ; 2 Roll. Abr. 109 ; and becauseit appears, from the nature of the action, 
 that a third person can prove the receipt per Holt, C. J., 12 Mod. 679 ; but in account 
 by the baron of receipt by the defendant, by the hands of the feme of the plaintiff, the 
 defendant may wage his law ; for the baron and feme are one person in law ; and, 
 therefore, it is an immediate receipt of the plaintiff himself. Bro. Ley Gayer, pi. 54. 
 
 By the 4 and 5 Annse 16, it is enacted, that actions of account may be 
 brought against a bailiff or receiver for receiving more than his just share, 
 and an action of account ivas brought upon this statute against defendant^ 
 as bailiff ad merchandizandum, who waged his law ; and upon demurrer, 
 it was objected that wager of law would not lie against a bailiff ad merchan- 
 dizandum ; but if the action had been brought against a receiver and 
 plaintiff did not show by whose hands, there, wager of law would lie ; 
 and so it was adjudged in this case for the plaintiff. 
 
 8 Mod. 303, Page v. Barns. 
 
 There is no act of parliament in express words which takes away wager 
 of law in action of debt upon arrearages of account ; but at the common 
 law the defendant shall have his law in action of debt, brought upon 
 arrearages of account, whether the account be before one auditor, or 
 many, as appears in 38 H. 6, f. 6 a. But the reason ivhy the defendant 
 shall not wage his law when the account is made before auditors, is upon 
 the statute of West. 2, c. 11, for now this statute has made the auditors 
 judges of record, because they are empowered thereby to commit the 
 defendant to prison, which none can do but judges of record. 
 
 10 Rep. 103 a, in a note of the reporter, in Alfride Denbawd's case. 
 
 Also, when the matter of the charge is pregnant with matter of law, 
 there ought to be no wager of law, for that were to swear to the law ; a8 
 in debt against husband for clothes taken up by the wife, the husband 
 shall not wage his law; because it is a point of law, whether he be liable 
 or no, viz. ; whether the clothes were for necessary apparel of the wife, 
 without which he is not liable. 
 
 12 Mod. 671, Civit. Loudon v. "Wood.
 
 WAGER OF LAW. 3S9 
 
 (D) In what Cases Law may be waged, and in what not. 
 
 In debt on an arbitrament (it is intended where the submission is by 
 parol) the defendant may wage his law ; because, though the arbitrators, 
 who are strangers, are concerned, yet the submission might be secret ; 
 and that is the foundation from w r hence the debt arises. 
 
 2 Sulk. 083, Mood v. The Mayor of London. 
 
 In debt for an amerciament in a court-baron, the defendant may w r age 
 his law. The reason is, because the matter is of small value which con- 
 cerns the lord only, transacted in pais which might be without his know- 
 ledge. But in debt on a judgment in a court-baron, the defendant cannot 
 wage his law ; for the judgment could not be but by confession or verdict, 
 ' and it was in a proper court ; all which the defendant cannot by his bare 
 oath falsify ; and the authorities to the contrary are not law ; and so it is 
 in debt on a judgment in a court of ancient demesne. 
 2 Salk. 683, Mood v. The Mayor of London. 
 
 In debt for rent on a lease-parol, the defendant cannot wage his law, 
 because his occupation is notorious, which is a better reason than because 
 it savours of the reality ; and so it is in account against a bailiff for the 
 same reason, his management and transaction being notorious. 
 
 2 Salk. 683, Mood v. The Mayor of London. 
 
 In debt brought by a jailer against his prisoner for meat and drink, 
 the defendant, per Holt, cannot wage his law, not because the jailer is 
 obliged to find him victuals ; that is not true, as appears by Plowd. 68 a ; 
 but because the defendant is in durance, and the plaintiff cannot take 
 security from him for repayment ; for a bond will be void, so that he must 
 be content with a promise : and he did not deny the case of 9 Rep. 87 b, 
 88 a, which was debt by a labourer ; it is but just that the plaintiff should 
 prove he w r as retained, rather than that the defendant should be put to 
 wage his law. (a) 
 
 2 Salk. 683, Mood v. The Mayor of London, (a) The master shall not wage his 
 law, because the labourer is compellable to serve by the statute ; but it is otherwise, 
 if he be not retained according to the statute. 1 Inst. 295 a. 
 
 But, if a victualler or common innkeeper bringeth an action for his 
 guest's victuals delivered to him, the guest may wage his law ; for a vic- 
 tualler or innkeeper is not compellable to deliver victuals till he be paid 
 for them in hand : and therewith agreeth 10 H. 7, c. 8 a. 
 
 9 Rep. 87 b, Pinchon's case. 
 
 In debt on a by-law made by the company, the defendant in a case 
 cited to be in B. R. about two years before, waged his law. But Holt, 
 C. J., said it was, because the counsel for the plaintiff did not challenge 
 it : for he wondered at it then. But this is not so strong as debt on a by- 
 law by a corporation ; for this obliges all strangers without notice ; but 
 the other only their own members, till notice : And the Chief Justice 
 denied the case in Co. Ent. 118, and the case 2 Roll. Abr. 106, pi. 9. 
 
 2 Salk. 684, Mood v. The Mayor of London. 
 
 Wager of law lies not in quo minus, because the king's revenue is re- 
 motely concerned, upon suggestion, that the plaintiff is indebted to the 
 king, and less able to pay him by the defendant's detainer of his debt. 
 Per Hatsell, J., who said this was given as a reason in Slade's case. 
 
 4 Rep. 95 b, in Slade's case ; 12 Mod. 671, The City of London v. Wood. 
 
 In debt upon a penalty given by statute, the defendant shall not wage 
 his law. 
 1 Inst. 295 a. 
 
 2k2
 
 390 WAGER OF LAW. 
 
 (E) What Persons may wage Law, and what not. 
 
 The very custom of London excludes wager of law in some actions, as 
 in debt for diet, 1 E. 4, c. 6, Bro. Examination, 18, the statute of 38 E. 
 3, c. 5, before which no wa^ger of law could be against a Londoner. Per 
 Hatsell, J. 
 
 12 Mod. 671, cites Bro. Ley Gager, 94. 
 
 So, a prescription prevents wager of law, and no man can deny it upon - 
 oath. Per Holt, C. J. 
 
 12 Mod. 683, The City of London v. Wood. 
 
 Wager of law was denied in debt for scavage arising by prescription, 
 and that confirmed by act of parliament. 
 
 2 Vent. 261, Mayor, &c. of London v. Dupester ; 2 Lev. 106, S. C. by name of | 
 Mayor, &e. of London v. Deputee. 
 
 In debt for a duty growing by a by-law, if the by-law be authorized by 
 letters patent, no wager of law lies. 
 Vent. 261, The Mayor, &c. of London v. Dupester. 
 
 So in case for toll granted by letters patent. 
 
 Vent. 261, cites 20 H. 7. In action of debt for toll by prescription, you cannot 
 wage your law : per Hale, C. J., who asked if they could show a precedent where a 
 man can wage his law in an action brought upon a prescription for a duty. 1 Mod. 
 121, pi. 26, Draper v. Bridewell. 
 
 Where a person of quality intending a marriage with a lady, presented 
 her with a jewel, and the marriage not taking effect, he brought an action 
 of detinue against her, and she taking it to be a gift, offered to wage her 
 law ; the court was of opinion, that the property was not changed by 
 this gift, being to a special intent, and therefore would not permit her to 
 do it. 
 
 2 Mod. 141, Beaumont v. . 
 
 || In an action of account, if plaintiff declares on a receipt by the 
 hands of the defendant, he may wage his law, but if by other hands he 
 shall be ousted of his law. 
 
 Walker v. Holiday, Com. K. 272; Wheeler v. Home, Willes, 208. || 
 
 (E) What Persons may wage Law, and what not. 
 
 An alien shall wage his law in that language he can speak. 
 1 Inst. 295 a. 
 
 A man outlawed, or attainted in an attaint, or upon an indictment of 
 conspiracy, or perjury, or otherwise, whereby he becomes infamous, shall 
 
 not wage his law. 
 1 Inst. 295 a. 
 
 A man under the age of twenty-one years shall not wage his law : but 
 a feme covert, together with her husband, shall wage her law. 
 
 1 Inst. 295 a. The reason why an infant cannot wage law, is said to be because 
 he cannot take an oath. 11 II. 6, 40. 
 
 Wheresoever a man is charged as executor or administrator, he shall 
 not wage his law, for no man shall wage his law of another man's deeds. 
 
 I Inst. 295 a. 
 
 So, where two ought to have their law, and one is under age, both shall 
 be ousted ; because the infant cannot, and both ought to join in plea. 
 
 II II. 6, f. 40, b. 
 
 A man who is dumb and not deaf, may wage his law of non-summons, 
 and make it, and show his assent by signs. Adjudged. 
 18 E. "8, f. 53.
 
 • 
 
 WAGER OF LAW. 391 
 
 (F) Against whom Wager of Law lies. 
 
 In an account, if the defendant before auditors pleads payment, or 
 other things given in satisfaction, the plaintiff may wage his law of it, 
 though he be plaintiff. 
 
 30 E. 3, f. 4, b. 
 
 Tenant who is summoned by one summoner where there ought to be two, 
 may wage his law, of non-summons, according to the law of the land ; but 
 vouchee shall not wage his law of non-summons upon the writ of summons. 
 
 Bro. Disceit, pi. 11, cites 50 E. 3, c. 16. 
 
 Informedon against a feme who made default, and grand cape issued 
 returnable 15 Mich., before which day she took baron, and at the day ap- 
 peared and waged her law of non-summons ; and the feme made her law 
 alone without her baron, and the writ abated. 
 
 Bro. Ley Gager, pi. 32, cites 12 H. 4, c. 24. 
 
 He who is attainted of any falsity, or is perjured, shall not wage his law. 
 
 Bro. Ley Gager, pi. 81, cites 33 H. 6, c. 32, per Litt. 
 
 In account the defendant upon his account alleged tallies of the plaintiff, 
 by which he had received certain sums of the money, and the plaintiff waged 
 his law, that they were not his tallies ; and it was admitted ; and so see 
 that the plaintiff may wage his law, and by it shall charge the defendant. 
 
 Bro. Ley Gager, pi. 40, cites 21 E. 4, c. 49. 
 
 A bailiff may not wage his law, but a receiver may. 
 
 Cro. Eliz. 790, Shyfield v. Barnfield. Per Holt, C. J. The reason the book gives 
 is, because it is in the realty, which is as much as to say, because it is notorious to 
 the country ; because the country take notice of his looking after the manor, and have 
 thereby an opportunity of knowing that he received the rents. 12 Mod. 681. 
 
 A brought debt upon a joint contract against B, C, D, and E — E ivas 
 outlawed, B, C, andD appeared by a joint supersedeas. B tendered his 
 law, that he, with the rest did not owe. and D plead nil debent per 
 patriam. It was insisted, that B should not be admitted to his law alone, 
 because they were all charged as one defendant, being for a joint debt, 
 and so they must all answer together. But this was held to be unreason- 
 able ; for if so, then by joining others with me, as joint defendants, I 
 must be subject to their plea, though they would confess the action ; and 
 though defendants may not sever in dilatories, yet in bar they may : And 
 after divers motions and precedents produced, B was received to his law, 
 and the plaintiff nonsuited. 
 
 Hob. 244, Essington v. Bourcher. 
 
 (F) Against whom Wager of Law lies. 
 In an action brought by the Prince of Wales the defendant shall wage 
 
 his law. 
 2 Roll. Abr. 110. 
 
 In a debt by a merchant stranger it lies not. 
 Palm % 14, Godfrey and Dixon's case. 
 
 "Where one is indebted by specialty to a man attainted, the king shall 
 have it, &c, contra if it be without specialty ; for there the debtor may 
 wage his law against the person attainted : contra against the king, though 
 it was upon contract only ; and therefore he shall be in a worse case than 
 he was before, and so the king shall not have the debt. Per Hamm. 
 and Holt, quod non negatur. 
 
 Bro. Ley Gager, pi. 25, cites 49 E. 3, c. 5. A man cannot wage his law against the
 
 392 WAGER OF LAW. 
 
 (G) In what Cases the Defendant is barred from waging Law. 
 
 king. Bro. Ley Gager, pi. 72, cites 50 E. 3, c. 1 ; 4 Rep. 95 b, in a note of the re- 
 porter it is said, that in every quo minus in the Exchequer, brought by the king's debtor 
 against one who is indebted to him upon simple contract, the defendant shall not have 
 his law for the benefit of the king, as appears in 8 H. 5 ; Ley, 66 ; 10 H. 7, c. 6, and 
 yet there the king is not party ; d fortiori where such debt or duty is forfeited to the 
 
 king, and he is the sole and immediate party. For debt forfeited to ike king by 
 
 common law no ley gager lies. Cro. Car. 187, Morgan v. Green. 
 
 In a quo minus in Scaceario against him who usurped upon the posses- 
 sion of the king, which was leased to the plaintiff, so that he could not 
 pay his farm to the king, the defendant may wage his law, as appears in 
 a short note there, where it is said, that in 4 E. 4, it was adjudged that 
 a man may wage his law in a quo minus; but contra anno 8 H. 5, tit. 
 Ley, pi. 6Q, in Fitz. which was agreed for law. 35 H. 8. 
 
 Bro. Ley Gager, pi. 102, cites 32 H. 6, c. 24. 
 
 In debt by assignee of commissioners of bankrupts the defendant pleaded 
 nil debet, and waged his law : and the court held that he might, though the 
 interest and power to sue in his own name be good to the plaintiff by the 
 statute of bankrupts. But otherwise, if the duty itself had been origi- 
 nally due by the statute. 
 
 Noy, 112, Osborne v. Bradshaw, cites 10 H. 7, c. 18. 
 
 If an infant be plaintiff, the defendant shall not wage his law. 
 1 Inst. 295 a. 
 
 An action doth not lie against an executor upon a concessit solvere of 
 the testator upon a special custom, per Rolle, C. J., for this would be to 
 charge an executor in an action of debt, where he may by the law wage 
 his law, and an action of debt lies not against the executor upon a simple 
 contract made by the testator. Adjournatur. 
 
 Sti. 199, Hodges v. Jane. 
 
 (G) In what Cases the Defendant is barred from waging his Law, by having 
 examined the Plaintiff or his Attorney. 
 
 The defendant's right of examining the plaintiff or his attorney, is 
 founded on the 5 H. 4, c. 8, by which it is provided, That 
 
 To eschew mischiefs which be as well within London as other places, of 
 that divers feigned suits of debt have been taken by the people of the said 
 places against divers people, surmising that they accounted before their ap- 
 prentices, and sometimes other their servants, auditors assigned, of divers 
 receipts, duties, and contracts had betwixt them, and that they were found 
 in arrearages upon the account in divers great sums, where there was never 
 receipt nor duty betivixt such parties, to the intent to make them against 
 whom, such suits were taken, to put them in inquest, and to put them 
 from the waging of their law ; the judges before ivhom such actions shall 
 be sued in cities and boroughs shall have power to examine the attorneys, 
 and others, and thereupon to receive the defendants to their law, or to try 
 the same by inquest after the discretion of judges. 
 
 If before this statute a man had entered into an account before two auditors for a 
 thing -which lay not in account, and they found him indebted, upon which the other 
 : brought writ of debt ;ig;iinst him, it was no plea for the defendant, that the matter lay 
 not in account ; for it was his folly to enter into the account ; and so at the common 
 law the defendant was without remedy. But now by this statute he may tender his 
 law, and pray that the party be examined, whether it lies in account or not, and if it 
 be found that it does not, the defendant shall make his law and go his way ; but by the 
 common law, the defendant ought to answer to the debt, which is the end of the ac- 
 count, and the judgment of the auditors, and the matter of account is only conveyance. 
 Fer Frowike, Kelw. 82 b, pi. 3. It seems, by the meaning of this statute of the
 
 WAGER OF LAW. 393 
 
 (G) In what Cases the Defendant is barred from waging Law. 
 
 examination of the attorney of the plaintiff in debt upon arrearages of account before 
 auditors, the wager of law does not lie, but that nihil debet per patriam shall be received 
 in debt upon arrearages of account before auditors. E eontrd, 50 E. 3, against Jailer, 
 for escape of one condemned before auditors assigned. Dy. 145, pi. 63, Wise's case. 
 
 In debt upon arrears of account the defendant tendered his law and 
 prayed that the plaintiff be examined, and so he tvas and said, upon oath 
 that it is as he has counted, by which the defendant was compelled to 
 answer without his law : and so see that where the defendant prays that 
 the plaintiff be examined or sworn, this is peremptory to the plaintiff in 
 this point, and so is the ley gayer of the part of the defendant, and so is 
 the oath of the plaintiff in London by the custom, where if the defend- 
 ant prays that the plaintiff show his declaration, and he do so, there the 
 defendant by this shall be condemned. 
 Bro. Examination, pi. 18, cites 19 H. 6, c. 43. 
 
 So, in debt upon arrears of account, defendant prayed that the plain- 
 tiff's attorney be examined if the matter lies in account; and so he was, 
 notwithstanding that no issue was tendered ; and upon examination of the 
 attorney, it appeared that it was for stuff bought by the defendant of the 
 plaintiff, for which he tendered his law and was admitted. 
 
 Bro. Examination, pi. 15, cites 14 H. 4, c. 19. If the attorney refuses to be exam- 
 ined the defendant shall be admitted to his law. Bro. Examination, pi. 33, cites 33 
 H. 6, c. 24. 
 
 In debt by tivo executors, who counted of arrears of account made in 
 the time of their testator : the defendant tendered his law, that he owed 
 them, and prayed that they be examined ; and the opinion of the court 
 was that they shall be examined of another's deed : contra of an attorney ; 
 for he may have information of his master, &c. And the cause of this 
 examination given by the statute is, that if it be found upon examina- 
 tion of the party upon a book that the matter does not lie in account, 
 then the law lies ; and so this case is out of the case of the statute of 
 examinations, by the opinion of the court. 
 
 Bro. Examination, pi. 5, cites 3 H. 6, c. 46, S. P. ; Bro. Examination, pi. 6, cites 
 9 H. 6, c. 8, S. P. ; Ibid. pi. 7, cites 9 H. 6, c. 58. Where executors bring action, or 
 where action is brought against them, examination does not lie; for this is to have the 
 ley gager and executors cannot wage their law. Bro. Examination, pi. 22, cites 20 E. 
 4, c. 3, per Brian and Littleton. — Debt by an executor upon arrears of account before 
 auditors in the time of the testator, the defendant tendered his law, and prayed that the 
 plaintiif be examined, and tlie executor was examined, though it was of another's deed, 
 but not precisely, whether he saw or heard of the account, or was present at it ; but 
 whether any matter which proves that it lay in account, came to his hands, and of other 
 points at the discretion of the justices, but not of the truth of the deed precisely ; and 
 upon the examination it was awarded, that the defendant answer without his law ; 
 quod nota. Bro. Examination, pi. 19, cites 21 II. 6, c. 54, 55. — But if such action was 
 brought against an executor, the plaintiff shall be examined. Ibid. 
 
 Vol. X.— 50
 
 394 
 
 OF WARRANTY. 
 
 A warranty (concerning freeholds and inheritances) (a) is a covenant 
 real annexed to lands or tenements, whereby a man and his heirs are 
 bound to warrant the same, and either upon voucher, or by judgment in 
 a writ of warrantia ehartce, to yield other lands and tenements to the value 
 of those that shall be evicted by a former title, else it may be used by 
 way of rebutter. 
 
 1 Inst. 365 a. /3An action of covenant will lie upon the words of a deed " will 
 warrant and defend the premises to A B and his heirs for ever :" and this from neces- 
 sity, as otherwise the buyer would be without a remedy in many cases, for the writ of 
 warrantia chartce is not in use. Ricketts v. Dickens, 1 Murph. 343. £f (a) There are 
 also warranties of goods and chattels upon contracts ; but warranties of lands, &c, 
 
 only are here spoken of. Bgg^For warranties of goods and chattels, see vol. i. tit. 
 
 Actions on the Case, letter (E). j3Warranty, in its original form, it is presumed, has 
 never been known in the United States. The more plain and pliable form of covenant 
 has been adopted in its place. See 4 Kent, Com. 457 ; 2 Rawle, 67, n. ; 9 Serg. & R. 
 
 268 ; 11 S. & R. 109; 4 Dall. 442 ; 2 Wheat. 45 ; Bouv. L. D. h. v.g/ Lord Coke 
 
 says, that the learning of warranties is one of the most curious and cunning learnings 
 of the law, but the subtlety out of this learning is, as will be shown, greatly abridged 
 by the statute law. 
 
 For the better consideration of this subject, we shall reduce it under 
 the following heads, under which we shall examine, — 
 
 (A) The several Kinds of Warranties. 
 
 (B) To what things a Warranty may be annexed. 
 
 (C) What Words and Clauses in a Deed will make a Warranty. 
 
 (D) What shall be deemed a good Warranty in Deed. 
 
 (E) What shall be deemed a good Warranty in Law. 
 
 (F) Of the Nature of a lineal Warranty, and how far it shall bind. 
 
 (G) What shall be deemed sufficient Assets to make a lineal Warranty a Bar. 
 
 (H) Of the Nature of a collateral Warranty at Common Law, and how far it shall 
 bar. 
 
 (I) Of the Alterations introduced by the Statute Law. 
 
 (K) What shall be deemed Warranties by Disseisin, Abatement, or Intrusion. 
 
 (L) Of the Effects of Warranty in Deed. 
 
 (M) What Use may be made of a Warranty in Deed. 
 
 (N) Who may take Advantage of a Warranty, and against whom. 
 
 (0) When a Warranty shall be said to be defeated, determined, suspended, or 
 avoided. 
 
 (P) How Warranties shall be expounded. 
 
 J3(Q) Of Warranties in the sale of Personal Chattels. 
 
 1. Express Warranties. 
 
 2. Implied Warranties.^ 
 
 (A) The several Kinds of Warranties. 
 Warranties, in their more general divisions, are of two kinds. 
 First, a warranty in deed, or an express warranty, which is when a fine
 
 OF WARRANTY. 39a 
 
 (B) To what Things a Warranty may be annexed. 
 
 or feoffment in fee, or a lease for life is made by deed, "which has an ex- 
 press clause of warranty contained in it, as when a conusor, feoffor, or 
 lessor, covenants to warrant the land to the conusee, feoffee, or lessee. 
 2 Inst. 365. 
 
 Secondly, a warranty in law, or an implied warranty, which is when it 
 is not expressed by the party, but tacite made and implied by the law. 
 
 A warranty in deed is either lineal or collateral. 
 
 A lineal warranty is a covenant real, annexed to the land by him who 
 either was owner of or might have inherited the land, and from whom his 
 heir lineal or collateral might by possibility have claimed the land as 
 heir from him that made the warranty. 
 
 1 Inst. 370. 
 
 A collateral warranty is made by him that had no right, or possibility 
 of right to the land, and is collateral to the title of the land. 
 
 Also, there is a warranty which commences by disseisin or wrong. 
 Lit. sec. 698. 
 
 Warranties likewise may be said to be either general, viz., by one and 
 his heirs to another and his heirs ; or particular, and restrained to a 
 certain person. 
 
 (B) To what Things a Warranty may be annexed. 
 
 A warranty may not only be annexed to freeholds, or inheritances cor- 
 poreal, which pass by livery, as houses and lands ; but also to freeholds or 
 inheritances incorporeal, which lie in grant, as advowsons ; and to rents, 
 commons, estovers, and the like, which issue out of lands or tenements : 
 and it may not only be annexed to inheritances in esse, but also to rents, 
 commons, estovers, &c, newly created. As a man (some say) may grant 
 a rent, &c, out of land for life, in tail, or in fee with warranty ; for though 
 there can be no title precedent to the rent, yet there may be a title prece- 
 dent to the land out of which it issueth before the grant of the rent, which 
 rent may be avoided by the recovery of the land, in which case the grantee 
 may help himself by a warrantia charts upon the especial matter. And 
 so warranty in law may extend to a rent, &c, newly created ; and there- 
 fore if a rent newly created be granted in exchange for an acre of land, 
 this exchange is good, and every exchange implieth a warranty in law. 
 And so a rent newly created may be granted for owelty of partition. 
 
 1 Inst. 366. 
 
 If a man seised of a rent-seek, issuing out of the manor of Dale, taketh 
 a wife, and the husband releaseth to the terre-tenant, and warranteth tene- 
 menta prcedicta, and dieth, and the wife bringeth a writ of dower of the 
 rent, the terre-tenant shall vouch, for that albeit the release enured by way 
 of extinguishment, yet the warranty extendeth to it, and by the warranty 
 of the land, all rents, &c, issuing out of the land, that are suspended or 
 discharged at the time of the warranty created, are warranted also. 
 
 1 Inst. 366. 
 
 But a warranty doth not extend to any lease, though it be for many 
 thousand years, or to estates of tenant by statute staple, or merchant, or 
 elegit, or any other chattel, but only to freeholds or inheritances. And 
 this is the reason, that in actions which lessee for years may have, a 
 warranty cannot be pleaded in bar ; as, in an action of trespass, or upon
 
 396 OF WARRANTY. 
 
 (C) What Words and Clauses in a Deed will make a Warranty. 
 
 the statute of 5 R. 2, and the like. But in such actions, which none 
 but a tenant of the freehold can have, as upon the statute of 8 H. 6, 
 assize, or the like, there a warranty may be pleaded in bar. 
 1 Inst. 389 a. 
 
 A warranty may be made upon any kind of conveyance, as upon fines, 
 feoffments, gifts, &c. Also a warranty may be made by and upon releases i 
 and confirmations made to the tenant of the land, although he who makes 
 the lease or confirmation has no right to the land, &c. And yet some have 
 holden, that no warranty can be raised upon a bare release or confirma- 
 tion, without passing some estate, or transmutation of the possession. But 
 the law is otherwise ; for if A be seised of lands in fee, and B release to 
 him, or confirm his estate in fee with warranty to him, his heirs and as- 
 signs, this warranty is good, and both the party and his assignee shall vouch. 
 
 1 Inst. 385 a. 
 
 (C) What Words and Clauses in a Deed will make a Warranty. 
 
 The word warrantizo, or warrant, is the only apt and effectual word to 
 make an express warranty, or a warranty in deed, and therefore this word 
 is used in fines. 
 
 1 Inst. 384. 
 
 And the words defendo, or acquitto, although they are commonly used 
 in deeds, yet of themselves, without the other, will not make a warranty. 
 1 Inst. 384 ; Litt. sect. 733 ; 5 Rep. 17, 18, Spencer's case. 
 
 The words dedi et coneessi, or dedi only, in a feoffment, make a war- 
 ranty, when an estate in fee or inheritance passes by the deed. 
 1 Inst. 384. 
 
 But the word coneessi only, or demisi et coneessi, do not maKe such a 
 warranty, in the case of a freehold or inheritance. 
 
 5 Rep. 18, Spencer's case. 
 
 And by force of the statutes of Bigamis, chap. 6, dedi is made an ex- 
 press warranty during the life of the feoffor. 
 
 1 Inst. 384 ; 4 Rep. 81, Noke's case. 
 
 If a man by deed warrants land to J S and his heirs, and the warrantor 
 does not bind his heirs to the warrantee ; or does not warrant to J S and 
 his heirs, but to J S and his assigns, these are good warranties. 
 
 Dyer, 42 ; 1 Inst. 383. 
 
 But if a man makes a feoffment in fee, and warranty to the feoffee 
 only, without naming his heirs, there the warranty shall endure only for 
 life, because it is taken strictly. And yet if the feoffee recovers in value, 
 he shall recover fee-simple, because he loses fee-simple. 
 
 Dyer, 42. 
 
 If a man makes a feoffment to one and his heirs, and binds himself and 
 his heirs to warranty against all people, and does not say with certainty to ' 
 whom, nor for how long he will warrant, yet the feoffee will have a fee- 
 simple in the warranty, as he had in the land: but, if the intent of the war- 
 ranty appears plainly by express words, the warranty shall extend no 
 farther. 
 
 Dyer, 42. 
 
 p In Pennsylvania, Arkansas, Delaware, and Missouri, the words " grant, 
 bargain, and sell," are an implied covenant that the grantor has done no
 
 OF WARRANTY. 397 
 
 (D) "What shall be deemed a good Warranty in Deed. 
 
 act or created any encumbrance by which the estate might be defeated, 
 but do not create a general warranty. 
 
 Gratz v. Ewalt, 2 Binn. 95 ; Balliot v. Bowman, 2 Binn. 98 ; Fonk v. Voneida, 
 11 S. & R. 109; Bender v. Fromberger, 4 Dall. 440; 3 Penns. 313; Bouv. L. D., 
 Grant, Bargain and Sell. 
 
 "Where there is a general warranty that, at the time of the conveyance, 
 the grantor was "seised of an indefeasible estate in fee-simple," followed 
 by a special warranty against himself and his heirs, the special warranty 
 does not control the precedent general covenant. 
 
 Bender v. Fromberger, 4 Dall. 43G.£f 
 
 (D) What shall be deemed a good Warranty in Deed. 
 
 A warranty in deed, or an express warranty, as has been said, is 
 created only by the word warrant. And 
 
 It is to be premised, that to every good warranty in deed, in order 
 that it may bar and bind, these following circumstances are requisite. 
 
 First, That the person that warrants be a person able ; for if an infant 
 makes a feoffment in fee of land, and thereby binds him and his heirs to 
 warrant the land, in this case, although the feoffment be only voidable, 
 yet the warranty is void. 
 
 1 Inst. 367 b. 
 
 But, if a man of full age and an infant make a feoffment in fee with 
 warranty, this warranty is not void in part, and good in part ; but it is 
 good for the whole against the man of full age, and void as to the infant. 
 
 1 Inst. 367 b. 
 
 Secondly, That the warranty be made by deed in writing ; for if a man 
 makes a feoffment by word, and by word binds him and his heirs to war- 
 rant the land, this is not a good warranty. 
 
 So, if a man gives land to another by his last will, and thereby binds 
 him and his heirs to warrant it ; this warranty, although the will be in 
 writing, is void, because a will in writing is no deed. 
 
 1 Inst. 386. 
 
 Thirdly, That there be some estate to which the warranty is annexed 
 that may support it ; for if one covenant to warrant land to another, and 
 make him no estate, or make him an estate that is not good, and covenant 
 to warrant the thing granted ; in these cases the warranty is void. 
 
 10 Rep. 96. 
 
 Likewise, if the estate to which the warranty is annexed is determined, 
 the warranty dependent on it is determined likewise. Thus, if a man 
 maketh a gift in tail, and warranteth the land to him and his heirs, and 
 afterwards tenant in tail maketh a feoffment and dieth without issue, he 
 shall not rebut the donor in a formedon in reverter, because that the 
 estate to which the warranty is annexed is determined. 
 
 10 Rep. 96. 
 
 Fourthly, That the estate to which the warranty is annexed, be such 
 an estate as is able to support it, and therefore that it be a lease for life 
 at the least ; for if one makes a lease for years of land, and binds him- 
 self and his heirs to warrant the land ; this is no good warranty, neither 
 will it have the effect of a warranty ; but this may amount to a covenant, 
 on which an action of covenant may be brought. 
 
 1 Inst. 378 ; 5 Rep. 17, Spencer's case. 
 
 2L
 
 398 OF WARRANTY. 
 
 (D) What shall be deemed a good Warranty in Deed. 
 
 Fifthly, That the warranty descends upon him that is heir of the whole 
 blood by the common law to him that made the warranty, and not upon 
 another ; for if tenant in tail in borough English discontinues the tail, 
 and has issue two sons, and the uncle releases to the discontinuee with i 
 warranty, and dies ; this is no good warranty to bind the younger son. 
 
 1 Inst. 12 ; Litt. sect. 735. Because a warranty cannot go according to the nature- 
 of tenements by the custom, &c, but only according to the form of the common law. 
 Litt. ibid. 
 
 So, if in this case tenant in tail discontinues the tail with warranty, 
 &c, having two sons, and dies seised of other lands in the same borough 
 in fee-simple, to the value of the land in tail; the younger son is not i 
 barred by this warranty. 
 
 1 Inst. 12 ; Lit. 735, and it is there added, that the younger son shall not be 
 barred, though assets in fee-simple descend to him from his father. 
 
 So, if one gives his land to the eldest son and the heirs male of his 
 body, the remainder to the second son, &c, and the eldest aliens with 
 warranty, having issue a daughter and dies ; this is not a good warranty 
 to bar the second son. 
 
 Litt. sect. 718. The reason is, because the warranty descended to the daughter of 
 the elder son, and not to the second son. Litt. ibid. 
 
 So, if tenant in tail has issue two daughters by divers venters, and 
 dies, and they enter, and a stranger disseises them, and one of them re- 
 leases all her right, and binds her and her heirs to warrant it; in this 
 case the warranty is not good to bar the sister, because they are of half 
 blood only, and the one cannot be heir to the other according to the 
 course of the common law. 
 
 Lit. 737. 
 
 So, if two brothers be by demi-venters, and the eldest release with 
 warranty to the disseisor of the uncle, and dies without issue ; this is no 
 good warranty to bar the younger brother ; for a warranty, as has been 
 said, must descend upon him that is heir at the common law to him that 
 made it. 
 
 1 Inst. 387. 
 
 Sixthly, It is necessary that he that is heir do continue to be so, and 
 that neither the descent of the title nor the warranty be interrupted ; for 
 if one binds him and his heirs to warranty, and after is attainted of 
 treason or felony, and dies ; this warranty does not bind his heir. 
 
 Litt. sect. 745. 
 
 So, if tenant in tail be disseised, and after release to the disseisor with 
 warranty, and after the tenant in tail be attainted of felony, and have 
 issue and die ; this warranty will not bind the issue. 
 
 Litt, sect. 746. The reason is, for that nothing in this case maketh a continuance 
 but the warranty, which cannot descend to the issue in tail, because the blood between 
 the issue and him that made the warranty is corrupt. Id. ibid. 
 
 Seventhly, That the estate of freehold that is to be barred be put to a 
 right before or at the time of the warranty made, and that he to whom the 
 warranty descends have then but a right of the land ; for a warranty will 
 not bar an estate of freehold or inheritance in esse, in possession, in rever- 
 sion, or remainder, that is not displaced and put to a right before or at the 
 time of the warranty made, though after at the time of the descent of the
 
 OF WARRANTY. 399 
 
 (D) What shall be deemed a good Warranty in Deed. 
 
 warranty, the estate of freehold or inheritance be displaced and de- 
 vested. 
 
 10 Rep. 96, Seymor's case. 
 
 And therefore if there be a father and son, and the son have a rent- 
 service, suit to a mill, rent-charge, rent-seek, common of pasture, or 
 other profit apprender out of the land of the father, and the father make 
 a feoffment in fee with warranty, and die ; this shall not bar the son of 
 the rent, common, &c. 
 
 10 Rep. 96, Seymor's case. The reason is, for that the son was actually seised of 
 the rent or common at the time of the warranty, and he who is in possession needeth 
 not put in his claim, either to avoid the fine or collateral warranty. 
 
 And although the son, after the feoffment with warranty, and before the 
 
 death of the father, had been disseised, and so being out of possession the 
 
 warranty had descended upon him, yet this warranty shall not bind him. 
 
 10 Rep. 96, Seymor's case. Because the warranty at the time of the creation of it 
 did not extend to any estate of freehold or inheritance in esse. 
 
 So, if my collateral ancestor releases to my tenant for life with war- 
 ranty, and dies, and this warranty descends upon me ; this shall not bind 
 my reversion or remainder. 
 
 10 Rep. 96, Seymor's case. 
 
 But, if in the case before, the son be disseised of the rent, &c, and 
 affirm himself to be disseised by the bringing of an assize, (for otherwise 
 he shall not be said to be out of possession of a rent, or the like,) and 
 after the father release with warranty, and die ; in this case, the collateral 
 warranty shall bar and bind the son of his rent, &c. 
 
 10 Rep. 96, Seymor's case. 
 
 And if in the last case my tenant for life be disseised, and my ancestor 
 
 release to the disseisor with warranty, and die ; this is a good warranty 
 
 to bind and bar me. 
 
 10 Rep. 96, Seymor's case. Because my reversion, as well as the estate of the 
 tenant for life, was devested at the time of the warranty made. 
 
 Eighthly, That the warranty take effect in the lifetime of the ancestor, 
 and that he be bound by it ; for the heir shall never be bound by an ex- 
 press warranty, but where the ancestor was bound by the same warranty, 
 and therefore a warranty made by will is void. 
 
 Litt. 734. 
 
 Ninthly, That the heir claim in the same right that the ancestor does ; 
 for if one be a successor only in a case of a corporation, he shall not be 
 bound by the warranty of a natural ancestor. 
 
 1 Inst. 370. 
 
 Tenthly, That the heir that is to be barred by the warranty be of full 
 age at the time of the fall of the warranty ; for if the ancestor make a 
 feoffment, or a release with warranty, and the heir at this time be within 
 age, and after he die, and the warranty descend upon him within age ; 
 this warranty shall not bind him : but, if he become of age after the war- 
 ranty of the ancestor, and before his death, in this case the warranty 
 may bar him ; therefore he must take care not to suffer a descent after 
 his full age, before his entry. 
 
 1 Rep. 140 b, Chudleigh's case.
 
 400 OF WARRANTY. 
 
 (E) "What shall be deemed a good Warranty in Law. 
 
 Warranties in law are so called, because, in judgment of law, they 
 amount to a warranty without the use of the word warrant. 
 1 Inst. 384. 
 
 Thus, the words dedi et concessit or dedi only, in a feoffment, make a good 
 warranty in law to the feoffee and his heirs during the life of the feoffor. 
 But not against the heir of the feoffor, for the heir shall not be bonnden unto a 
 warranty made by his father, unless he bind him and his heirs to warranty by express 
 words in the deed. F. N. B. 134. [Vide Gilb. Ten. by Watkins, note lvi.] j8 See 
 Ricketts v. Dicketts, 1 Murph. 343 ; S. C, 1 Car. Law Rep. 77 ; Powell v. Lyles, 1 
 Murph. 348.tf 
 
 But the word concessi only in a fine or feoffment does not make a war- 
 ranty in law. 
 
 A warranty in law may be good in its creation, although it be without 
 deed ; for if a man by his last will and testament devises lands to another 
 man for life, or in tail, rendering rent ; to this estate there is a warranty 
 in law annexed. 
 
 1 Inst. 386. 
 
 And although there be an express warranty in the deed, yet this does 
 not take away the implied warranty of the law. 
 1 Inst. 384. 
 
 Every partition and exchange implies in it, and has annexed to it, a 
 special warranty in law. 
 1 Inst. 102, 384. 
 
 If one makes a gift in tail, or lease for life, of land by deed or without 
 deed, reserving a rent, or of a rent-service of deed ; in these cases there 
 is annexed an implied warranty against the donor or lessor, his heirs and 
 assigns. 
 
 1 Inst. 334. The assignee likewise of lessee for life shall take the benefit of this 
 warranty in law. 
 
 So, when dower is assigned to a woman, there is a warranty in law in- 
 cluded, which is that the tenant in dower being impleaded, shall vouch and 
 recover in value a third part of the two parts whereof she is dowable. 
 
 1 Inst. 384. 
 
 And this warranty in law is of the nature of a lineal warranty, and 
 shall bind as a lineal warranty only, for it never bars any collateral title. 
 1 Inst. 384. 
 
 And hence it is, that this warranty and assets in some cases is a good 
 bar ; as, if a tenant in tail exchanges for other lands which are descended 
 to the issue, and he has accepted of them, or if not, that other lands are 
 descended to him. 
 
 1 Inst. 384. 
 
 But if tenant in tail of lands makes a gift in tail, or lease for life, 
 rendering rent, and dies ; this is no bar. 
 1 Inst. 384. 
 
 And yet if other assets in fee-simple descend, this warranty in law 
 and assets is a good bar. 
 
 (F) Of the Nature of lineal Warranty, and how far it shall bind. 
 
 A warranty is called lineal, when, if no deed with warranty had been 
 made by the father, then the right of the tenements should descend to 
 the heir, and the heir should convey the descent from his father, &c. 
 
 Litt. sec. 703.
 
 OF WARRANTY. 401 
 
 (F) Of lineal Warranty, and how far it shall hind. 
 
 And it is added by Lord Coke, that it is called a lineal warranty, not 
 because it must descend upon the lineal heir; for be the heir lineal or 
 collateral, if by possibility he might claim the land from him that made 
 the warranty, it is lineal, having regard to the warranty and title of the 
 land. 
 
 1 Inst. 370. 
 
 As, where a man seised of lands in fee, maketh a feoffment by his deed 
 to another, and binds himself and his heirs to warranty, and hath issue 
 and dies, and the warranty descends to his issue, this is a lineal warranty. 
 
 Litt. sec. 703. 
 
 So, if there be a grandfather, father and son, and the grandfather be 
 disseised, and the father release to the disseisor being in possession with 
 warranty, &c, and die, and after the grandfather die ; this is a lineal 
 warranty to the son : and although in this case the warranty descends 
 before the right, yet it is a good bar. 
 Litt. sec. 706 ; 1 Inst. 371. 
 
 Likewise, if there be two brothers, and the father be disseised, and the 
 eldest brother release with warranty, and die without issue, and after the 
 father die, and the warranty descend to the younger son ; this is a lineal 
 warranty to him ; for though the eldest son died in the lifetime of the 
 father, yet he might possibly have conveyed the title to his younger bro- 
 ther, if no such warranty had been. 
 
 Litt. sec. 707. 
 
 And in every case where one demands an estate- tail, if any ancestor of 
 the issue in tail, whether he had possession of the land or not, has made 
 a warranty, and if the issue, that was to bring a writ in formedon, may 
 or might by possibility have conveyed to himself a title by force of the 
 gift by him that made the warranty ; this is a lineal Avarranty, whereby 
 the issue in tail shall not be barred, except he have assets to him de- 
 scended in fee-simple. 
 
 Termes de la Ley, tit. Garranty. 
 
 As, if a man be seised of land of an estate-tail to him and his heirs of 
 his body begotten, and make a feoffment of it, and bind him and his heirs 
 to warrant it, and have issue, and die ; this warranty descending upon 
 the issue is a lineal warranty. 
 
 And if lands be given to one and the heirs male of his body, and for 
 want of such issue to the heirs female of his body, and the donee make 
 a feoffment with warranty, and have issue a son and a daughter, and die ; 
 this warranty is lineal to the son, and if the son dies without issue male, 
 it is a lineal warranty from the father to the daughter. 
 
 Litt. sec. 719. 
 
 But if the brother in his lifetime release to the discontinuee, &c, with 
 warranty, &c, and after die without issue ; this is a collateral warranty 
 to the daughter. 
 
 Litt. sec. 719. The reason is, because she cannot convey to her the right which she 
 hath by force of the remainder by any means of descent by her brother, for that the 
 brother is collateral to the title of his sister, and therefore his warranty is collateral. 
 Ibid. J 
 
 If lands be given to the husband and wife and the heirs of their two 
 bodies engendered, and they have issue a son, and the husband discon- 
 Vol. X.— 51 2 l 2
 
 402 OF WARRANTY. 
 
 (G) What shall be deemed sufficient Assets, &c. 
 
 tinue, and die, and after the wife release with warranty, and die ; this is 
 a lineal warranty to the son. 
 
 Litt. 714. The son shall not be barred in this case unless he hath assets by descent 
 in fee-simple by the mother, because their issue ought to convey their right as heirs 
 to father and mother of their two bodies begotten, per formam doni, and therefore the 
 warranty of the father and the warranty of the mother are but lineal warranties to 
 the heir. Ibid. 
 
 And if lands he given to a man and woman unmarried, and the heirs, 
 of their two bodies, and they intermarry, and be disseised, and the hus- 
 band release with warranty and die, and after the wife die ; this is a 
 lineal warranty to the issue for the whole. 
 
 1 Inst. 375. Because the issue must convey his right as heir to his father and 
 mother of their two bodies engendered, and therefore it is collateral for no part. Ibid. 
 
 And if a father give land to his eldest son and the heirs male of his 
 body, &c., the remainder to the second son, &c, if the eldest son alien 
 in fee with warranty, &c, and have issue female, and die without issue 
 male ; this is a lineal warranty to the second. 
 
 Litt. 710. 
 
 It is a rule, as to the lineal warranties, that they bar the right to a 
 fee-simple without assets, for he that demandeth fee-simple by any of his 
 ancestors, shall be barred by warranty lineal which descendeth upon him, 
 unless he be restrained by some statute. 
 
 Litt. c. 711. 
 
 But it doth not bar the right of an estate-tail, unless the heir have assets 
 by descent in fee-simple by the same ancestor that made the warranty. 
 Litt. c. 712. 
 
 Yet if the issue in tail alien the assets descended, and die, the issue 
 of that issue is not barred by this warranty and assets : but if the issue, 
 to whom the warranty and assets descended, had brought a formedon, 
 and by judgment had been barred by reason of the warranty and assets ; 
 in that case, though he aliens the assets, yet the estate-tail is barred for 
 ever. 
 
 1 Inst. 393. 
 
 But for the more clear understanding what assets are requisite to bar 
 the right of an entail, it will be proper to consider, 
 
 (G) What shall be deemed sufficient Assets to make a lineal Warranty a Bar. 
 
 The assets requisite to make a lineal warranty a bar, must have six 
 qualities. First, they, must be assets (that is) of equal value, or more, at 
 the time of the descent. Secondly, they must be of descent, if not by pur- 
 chase or gift. Thirdly, they must be of assets in fee-simple, and not in 
 tail, or for another man's life. Fourthly, they must descend to him as 
 heir to the same ancestor that made the warranty. Fifthly, they must 
 be of lands or tenements, or rents or services valuable, or other profits 
 issuing out of lands or tenements, and not personal inheritances, or an- 
 nuities, and the like. Sixthly, it must be in estate or interest, and not 
 in use or right of actions, or right of entry ; for they are no assets until 
 they be brought into possession. But if a rent in fee-simple issuing out 
 of land of the heir descend unto him, whereby it is extinct, yet this is 
 assets ; and to this purpose hath, in judgment of law, a continuance. 
 
 1 Inst. 374 b. A seigniory in frankalmoigne is no assets, because it is not 
 valuable, and therefore not to be extended ; and so it seemeth of a seigniory of homage 
 aud fealty. But an advowson is assets. Id. ibid.
 
 OF WARRANTY. 403 
 
 (II) Of the Nature of a collateral Warranty at Common Law, and how far it is barred. 
 
 Wherever the heir cannot, by any possibility, convey to himself a title 
 by force of his gift that made the warranty, then that is a collateral war- 
 ranty, and thereby the right of the heir shall be barred without any assets. 
 
 Termes de la Ley, tit. Garranty. 
 
 As, if tenant in tail discontinue the tail, and have issue and die, and 
 the uncle of the issue release to the discontinuee with warranty, &c., and 
 die without issue, this is a collateral warranty to the issue in tail, because 
 the warranty descendeth upon the issue who cannot convey himself to 
 the entail by means of his uncle. 
 
 Litt. ace. 709. The reason that the warranty of the uncle having no right to the 
 land entailed, shall bar the issue in tail, is, for that the law presumeth that the uncle 
 would not unnaturally disinherit his lawful heir, being of his own blood, of that right 
 which the uncle never had, but came to the heir by another means, unless he left him 
 greater advancement. 1 Inst. 373 a. [Lord Chancellor Cowper said, that "a col- 
 lateral warranty was certainly one of the harshest and most cruel points of the common 
 law ; because there was not so much as an intended recompense ; yet he could not 
 find, that Chancery had ever given relief in it." 10 Mod. 3, 4.J ]3 See 1 Sumn. 11. 262.^/ 
 
 If there be father and two sons, and the father be disseised, and the 
 younger son release with warranty to the disseisor, and die without issue, 
 this is a collateral warranty to the eldest son, because that of such land 
 as was the father's, the elder can by no possibility convey to him the 
 title by means of the younger son. 
 
 Litt. sec. 707. 
 
 Likewise, if there be father and son, and the son purchase lands in 
 fee, and the father of this disseise the son, and alien to another in fee by 
 deed, and by the same deed bind him and his heirs to warranty, &c, and 
 the father die, the son is barred by this warranty, which is a collateral 
 warranty, though it descendeth lineally from the father to the son. 
 
 Litt. sec. 704. The reason is, for that if no such deed with warranty had been made, 
 the son could in no manner convey his title from his father to him, inasmuch as the 
 father had no estate in right to the land, but was collateral to the title of the land. 
 Litt. sec. 705. 
 
 Also, if tenant in tail have issue three sons, and discontinue the tail in 
 fee, and the middle son release by his deed to the discontinuee, and bind 
 him and his heirs to warranty, and after the tenant in tail die, and the 
 middle son die without issue, this is a collateral warranty to the eldest 
 son, inasmuch as he can by no means convey to him, by force of the tail, 
 any descent by the middle brother. 
 
 Litt. sec. 708. But if the eldest son die without issue, the youngest brother mav 
 recover, because the warranty of the middle one is lineal to the youngest. Ibid. 
 
 PA collateral warranty without assets, it seems, does not bind the heir. 
 Forster's Lessee v. Dugan, 8 Ohio, 87. 
 
 In Pennsylvania a collateral warranty descends upon the eldest son, 
 and not upon all the heirs. 
 Jourdan v. Jourdan, 9 S. & II. 267.}} 
 
 Many other examples might be produced where these collateral war- 
 ranties at common law did bind the right of estates in fee-simple, and also 
 of estates in fee-tail. But the law in this respect has been greatly altered 
 by the following statutes : and first by the statute of Gloucester. 
 
 (I) Of the Alterations introduced by the Statute Law. 
 
 Before the statute of Gloucester all warranties which descended to 
 them which were heirs to those who made the warranties, were bars to
 
 404 OF WARRANTY. 
 
 (I) Of the Alterations introduced by the Statute Law. 
 
 the same heirs to demand any lands or tenements against the warranties, 
 except the warranties which commenced by disseisin. For such war- 
 ranty was no bar to the heir, for that the warranty commenced by wrong, 
 viz., by disseisin. 
 Litt. sec. GOT. 
 
 By this statute of Gloucester four things are enacted. 
 
 1st, That if a tenant by the curtesy alien with warranty, and die, this 
 shall be no bar to the heir in a writ of mort d 'ancestor without assets in 
 fee-simple. And if lands or tenements descend to the heir from the 
 father, he shall be barred, having regard to the value thereof. 
 
 1 Inst. 3G5. 
 
 2dly, That if the heir, for want of assets at that time descended, re- 
 cover the lands of his mother by force of this act, and afterwards assets 
 descend to the heir from the father, then the tenant shall recover against 
 the heir the inheritance of the mother by a writ of false judgment, which 
 shall issue out of the record, to resummon him that ought to warrant, as 
 hath been done in other cases, where the heir being vouched cometh into 
 court, and pleadeth that he hath nothing by descent. 
 
 1 Inst. 3G5. 
 
 3dly, That the issue of the son shall recover by a writ of cosinage, 
 aiel, and besaiel. 
 Inst. 3G5. 
 
 And lastly, That the heir of the wife after the death of the father and 
 mother, shall be barred of his action to demand the heritage of the mo- 
 ther by writ of entry, which his father aliened in the time of his mother, 
 whereof no fine was levied in the king's court. 
 
 Likewise, by the 11 II. 7, c. 20. Where a wife after her husband's 
 death shall, alone, or with her succeeding husband, alien, lease, confirm, 
 or discontinue with warranty the land she holdeth in dower, or in tail, 
 of the gift of her former husband, or any of his ancestors, such warranty, 
 &c, is made void. 
 
 And lastly, by the 4 & 5 Ann. c. 16, "All warranties which shall be 
 made after the first day of Trinity term, 1705, by any tenant for life, 
 of any lands, tenements, or hereditaments, the same descending or coming 
 to any person in reversion or remainder, shall be void and of no effect ; 
 and likewise all collateral warranties which shall be made after the said 
 Trinity term, of any lands, tenements, or hereditaments, by any ancestor 
 who has no estate of inheritance in possession in the same, shall be void 
 against his heir. 
 
 j3The statute of 4 & 5 Anne has been re-enacted in New York, 4 Kent, Com. 469, 
 3d ed. ; and in New Jersey, 3 llalst. 106 ; it is in force in Rhode Island, 1 Sumn. 235, 
 and in Delaware, Ilarring. 50. In Kentucky and Virginia, it seems that collateral 
 warranty binds the heir to the extent of assets descended. 1 Dana, 59. In Pennsyl- 
 vania, collateral warranty of the ancestor, with sufficient real assets descending to 
 the heirs, bars them from recovering the lands warranted. 2 Yeates, 509; 9 S. & R. 
 275; Bouv. L. D. Collateral Warranty.^ { See 4 Dall. 1G8, Kesselman's Lessee v. 
 Old.} 
 
 /3Thc statute of 4 & 5 Anne, c. 16, by which all collateral warranties 
 are void, unless made by one who has an estate of inheritance, does not 
 extend to Pennsylvania. 
 
 Eshelman v. Hoke, 2 Yeates, 509. £f
 
 OF WARRANTY. 405 
 
 (K) What shall be deemed Warranties by Disseisin, Abatement, or Intrusion. 
 Warranties are said to commence by disseisin in the following 
 
 cases : As, 
 
 Where there is father and son, and the son purchascth lands, &c, and 
 letteth it to the father, or any other ancestor, for term of years, or at 
 will, and the father, &c, thereof by deed cnfeoffeth another in fee, and 
 binds him and his heirs to warranty, and the father dieth, whereby the 
 warranty descendeth upon the son, this warranty commences by disseisin. 
 
 Litt. sec. 698. 
 
 In the same manner, if tenant by elegit, tenant by statute merchant, 
 statute staple, guardian in chivalry, or socage, or because of nature, 
 make a feoffment in fee with warranty ; this shall not bind the heir, be- 
 cause such warranties commence by disseisin. 
 
 Litt, sec. 698, 699 ; 1 Inst. 367. 
 
 Also, if father and son purchase lands to have and to hold to them 
 jointly, &c, and after the father alien the whole to another, and bind 
 him and his heirs to warranty, &c, and after the father die, this war- 
 ranty, as to the moiety which belongs to the son, commences by disseisin. 
 
 Litt. sec. 700. 
 
 But, if the purchase were to the father and the son, and the heirs of 
 the son, and the father make a feoffment in fee with warranty, if the son 
 enter in the life of the father, and the feoffee re-enter, and the father die, 
 the son shall have an assize of the whole. If the son, however, had not 
 entered in the life of the father, then, for the father's moiety, it had been 
 a bar to the son, for that therein he had an estate for life, and therefore 
 the warranty, as to that moiety, had been collateral to the son ; and as 
 to the son's moiety, it would be a warranty by disseisin, and so the war- 
 ranty would be defeated in part and stand good in part. 
 
 1 Inst. 367 b. 
 
 If, on the other hand, the purchase had been to the father and son, 
 and the heirs of the father, then the entry of the son in the life of the 
 father, in avoidance of the warranty, had not availed him, because his 
 father lawfully conveyed away his moiety. 
 
 1 Inst. 367 b. 
 
 If the father be tenant for life, remainder to the son in fee, and the 
 father by covin and consent make a lease for years, to the end that the 
 lessee shall make a feoffment in fee to whom the father shall release with 
 warranty, and all this be executed accordingly, and the father die, this 
 warranty begins by disseisin. 
 
 1 Inst, 365 b. 
 
 So, if one brother makes a gift in tail to another, and the uncle dis- 
 seises the donee, and enfeoffeth another with warranty, and the uncle 
 dieth, and the warranty descendeth upon the donor, and then the donee 
 dieth without issue, this warranty also begins by disseisin. 
 
 1 Inst. 365 b. 
 
 If the father, the son, and a third person are joint-tenants in fee, and 
 the father makes a feoffment in fee of the whole with warranty, and dieth, 
 and the son dieth, the warranty as to the part of the son, and the part 
 of the third person, begins by disseisin. 
 
 1 Inst. 367 a. And the third person shall not only avoid the feoffment for his own 
 part, but for the part of the son.
 
 406 OF WARRANTY. 
 
 (L) Of the Effects of a Warranty in Deed. 
 
 Also, if a man who hath no right, enters into lands, and makes feoff- 
 ment of them with warranty, this commences by disseisin. 
 1 Inst. 309 b. 
 
 Lord Coke enumerates several qualities belonging to warranties, com- 
 mencing by disseisin. 
 1 Inst. 300, 307. 
 
 First, That the disseisin is generally done immediately to the heir who 
 is bound by the warranty. 
 
 Secondly. That the warranty and disseisin are simul and semel. 
 
 And yet if a man commit a disseisin with intent to make a feoffment 
 in fee with warranty, although he make the feoffment many years after 
 the disseisin, yet being done with that intent, it shall be a warranty 
 commencing by disseisin. 
 
 5 Rep. 80, Fitzherbcrt's case. 
 
 The law is the same with respect to warranties commencing by abate- 
 ment or intrusion, if the abatement or intrusion be made with intent to 
 make a feoffment in fee with warranty, for these also commence by wrong. 
 
 1 Inst. 307 a. 
 
 So, if a tenant die without heir, and an ancestor of the lord enter be- 
 fore the entry of the lord, and make a feoffment in fee with warranty, 
 and die, this warranty shall not bind the lord, because it commenceth by 
 wrong, being in the nature of an abatement. 
 
 1 Inst. 307 a. 
 
 (L) Of the Effects of a Warranty in Deed. 
 
 The effect of a warranty in deed has been partly explained in con- 
 sidering the nature of the several kinds of warranty. It may be neces- 
 sary however to observe, that a warranty in deed always bars the war- 
 rantor himself of the land so warranted for ever ; so that all the present 
 and future rights which he hath or may have therein are thereby extinct. 
 Therefore, 
 
 If the father be disseised, and the son in his lifetime release all his 
 right in the land to the disseisor, and make a warranty of the land in the 
 deed, and then the father die, and the right of the land descend to the 
 son; in this case, although the release does not bar the son, yet the 
 warranty bars him. 
 1 Inst. 205 a and b. 
 
 For the most part, likewise, it bars the heirs of him who made the 
 warranty, to whom the said warranty descends, to demand the land 
 against the said warranty; for if the warranty be lineal, it is, as has been 
 shown, a bar of an estate in fee-simple without any assets, that is, without 
 any other land descended to him in fee-simple from the same ancestor that 
 made the warranty ; and with assets, it is a bar of an estate in tail. 
 
 1 Inst, 374 b, 384. 
 
 If the warranty be collateral, it is, with or without assets, a bar of an 
 estate in fee-simple or fee-tail, and all possibility of right thereunto. 
 But a collateral warranty doth not give a right, but only bindeth the 
 right, so long as the warranty continueth ; for if it be determined, re- 
 moved, or defeated, the right is revived. 
 
 1 In<t. 372, 374 b.
 
 OF WARRANTY. 407 
 
 (M) What Use may be made of a Warranty in Deed. 
 
 But neither the lineal nor collateral warranty can enlarge an estate ; and 
 therefore if the lessor by deed releases to his lessee for life, and warrants 
 the land to him and his heir ; this does not make his estate greater. Neither 
 will it bar titles of entry or action in cases of mortmain, consent to a 
 ravisher, mortgage, or dower: and therefore if an ancestor of the lord has 
 title to enter upon an alienation in mortmain, and he releases and makes a 
 feoffment with warranty, this warranty will neither bar him nor his heir. 
 
 10 Rep. 97, Edward Seymor's case ; 1 Inst. 385 b, 389 a. 
 
 As to the warranty which commences by disseisin, it does not, as has 
 been shown, bar any estate with or without assets. 
 
 No fine or warranty shall bar any estate in possession, reversion, or re- 
 mainder, which is not divested and put to a right; for he who has the 
 estate or interest in him, cannot be put to his action, entry or claim ; for 
 he has that already which entry, action, or claim can give him. 
 
 1 Inst. 388 b. 
 
 j3 A covenant of warranty is not broken without eviction, and this 
 must be laid in the declaration. 
 Clark v. M'Anulty, 3 S. & R. 364. See Paul v. Witman, 3 Watts & S. 407.0 
 
 (M) What Use may be made of a Warranty in Deed. 
 
 Where a lineal or collateral warranty is a bar, there, if the party 
 be impleaded by him who made the warranty, or his heirs, the party im- 
 pleaded, who is tenant of the land, may plead and show forth his war- 
 ranty against him, and demand judgment, whether, contrary to his own 
 warranty, he shall be received to demand the thing warranted ; and this 
 in pleading is called a rebutter. 
 
 Termes de la Ley, tit. Garranty. 
 
 But if the party be impleaded or sued by another for the land in an 
 action wherein he may vouch, then he to whom the warranty is made or 
 his heirs may vouch, that is, call in the warrantor or his heirs to warrant 
 the land. And this is an interpleader in the nature of an action brought 
 by the warrantor against the warrantee, wherein he that vouches, who is 
 called the voucher, is demandant, and he that is vouched, who is called 
 the vouchee, is made tenant or defendant to the action, and the voucher 
 is as it were out of the suit : and this second tenant, the vouchee, is 
 called the tenant by the warranty ; and hereupon a writ issues to the 
 sheriff to summon the vouchee to appear, which writ is called a sum- 
 moneas ad warrantizandum. 
 
 1 Inst. 101, 393. 
 
 If the vouchee appears, he must plead to the voucher : and if he shows 
 cause why he should not warrant, that must be tried; and this showing 
 of cause is called a counterplea to the voucher. 
 
 1 Inst. 101, 393. 
 
 But, if he pleads in avoidance of the warranty, it is called a counter- 
 plea to the warranty: and if he cannot defend himself against the war- 
 ranty, the stranger shall recover the land demanded against the voucher, 
 and he shall recover as much! 1 } other land against the vouchee of the 
 lands he has or had at the time of the voucher : and this recovery of 
 other lands is called a recovery in value. 
 
 1 Inst. 101, 393. I 1 } This recovery was only according to the value of the land at 
 the time the warranty was created : if the land became of increased value afterwards,
 
 408 OF WARRANTY. 
 
 (M) What Use may be made of a AVarranty in Deed. 
 
 by the discovery of a mine, or by buildings, or otherwise, the warrantor was not to 
 render in value according to that state of things, but as the land was when the war- 
 ranty was made. 4 Dall. 442 ; 3 Mass. T. Rep. 543 ; 3 Cain. 112 ; 4 Johns. Rep. 22, 
 and the cases there referred to. Personal covenants of warranty and of seisin have, 
 in modern practice, superseded the ancient warranty: and opposite opinions have been 
 entertained, in different states of the Union, with regard to the proper measure of 
 damages in actions for the breach of those covenants : — whether it should be commen- 
 surate with the ancient warranty only, and therefore be the value of the land at the - 
 time of the purchase (ascertained by the consideration paid) with interest, or should 
 be the value at the time of eviction. The former rule is adopted in New York. 3 Cain. 
 Ill, Staats v. Ex'rs of Ten Eyck : 4 Johns. Rep. 1, Pitcher v. Livingston ; in Penn- 
 sylvania; 4 Dall. 441, Bender v. Fromberger ; and in Virginia; 1 Hen. & Mun. 201, 
 Lowther v. The Commonwealth ; 2 Hen. & Mun. 164, Nelson v. Matthews ; and the 
 latter rule in South Carolina; 1 Bay. 19, Liber and wife v. Ex'rs of Parsons; Ibid. 
 2G5, Ex'rs of Gaerard v. Rivers ; and in Connecticut, Kirby, 3. In Massachusetts a 
 distinction is made between the covenant of warranty and the covenant of seisin. The 
 principle with respect to both is, that the loss sustained at the time of the breach of the 
 covenant, must be the measure of damages. But as the covenant of seisin is broken as 
 soon as the deed is executed, if the grantor has not a title, and the covenant of war- 
 rant)/ is not broken until eviction, the measure of damages, in the former case, is the 
 consideration paid, with interest ; in the latter, the value of the land at the time of 
 eviction. 2 Mass. T. Rep. 433, Marston v. Hobbs ; Ibid. 455, Bickford v. Page ; 
 
 3 Mass. T. Rep. 543, Gore v. Brazier. And the principle of that distinction was also 
 advocated by Spencer, J., in Pitcher v. Livingston, ubi supra. But in that case, and 
 also in those of Staats v. Ex'rs of Ten Eyck and Bender v. Fromberger, though in all 
 of them the action was brought for a breach of the covenant of seisin, yet the decisions 
 of the courts are founded upon principles applying with equal force to the covenant 
 of warranty ; and the former is considered as governed by the same rule with regard 
 to damages as the latter. And the cases in Virginia were on covenants of warranty. — 
 If there was any fraud or concealment, however, on the part of the vendor, lie will 
 be answerable, in an action on the case for deceit, for all the losses which may ensue. 
 
 4 Dall. 441 ; 3 Cain. Ill ; 4 Johns. Rep. 12.— If the title to part only of the land fails, 
 the measure of damages, in general, is the value of that part taken in proportion to 
 the price of the whole. But under some circumstances, the relative value of the land 
 lost will be considered. 2 Johns. Rep. 43, 46, Mann and Toles v. Pearson ; 5 Johns. 
 Rep. 49, Morris v. Phelps ; 2 Hon. & Mun. 164, Nelson v. Matthews ; 1 Bay. 19, Liber 
 and wife v. Ex'rs of Parsons. } 
 
 If the vouchee at the time of the voucher and recovery has no lands 
 descended to him to answer the warrantee, but has afterwards lands 
 falling to him by descent from that ancestor, then the voucher may have 
 a resummons, and recover the land which afterwards falls. 
 
 1 Inst. 101, 393. 
 
 But, if the sheriff returns upon the summons that the vouchee is sum- 
 moned, and he nevertheless maketh default, then he shall have a mag- 
 num cape ad valentiam, when, if ho makes default again, the judgment 
 shall be given against the voucher, and he shall recover over the value 
 against the vouchee: and if the vouchee appears and then makes default, 
 the voucher shall have a parvum cape ad valentiam, and then if he makes 
 default, judgment shall be given as before. 
 
 1 Inst. 101, 393. 
 
 But, if the sheriff upon the summons returns that lie has nothing 
 whereby he may be summoned, then after writs of alias and pluries, a 
 writ called sequatur sub suo pcriculo,(a) shall be awarded ; and if the 
 like return bo made, the demandant shall have judgment against the 
 first tenant, but he cannot recover in value against the vouchee, because 
 he was never warned, and it appeareth that he hath nothing. 
 
 (a) It is called sequatur sub siio periculo, because the tenant shall lose his land with- 
 out any recompense in value, unless he upon that writ can bring in the vouchee to war-
 
 OF WARRANTY. 409 
 
 (N) Who may take advantage of a Warranty, &c. 
 
 rant the land unto him ; and if at the sequaiur sub suo pericvlo, the tenant and the 
 vouchee make default, and the demandant have judgment against the tenant, and after 
 bring a scire facias to have execution, the tenant may have a warrantia chartce ; and 
 if he were impleaded by a stranger, he may vouch again. But if he had judgment 
 to recover in value, he shall never have a warrantia chartce, nor vouch again ; for by 
 this judgment to recover in value, he hath had the benefit of the warranty. 
 
 If the vouchee had a warranty from some other for the land, he may de- 
 raign, that is, maintain the warranty over, and shall recover in value also 
 against his vouchee in the same manner as before. 
 
 But if the warrantee to whom the warranty is made, or his heirs, be 
 impleaded in an assize, or in a writ of entry in the nature of an assize, 
 in which actions they cannot vouch, then they shall have a writ de war- 
 rantia chartve against the warrantor who made the warranty, or his heirs. 
 
 F. N. B. 34. If he be impleaded in any action in which he may vouch, then he 
 ought to vouch to warranty ; and if he will not, he shall not afterwards have a writ 
 of icarrantia chartce. 
 
 Likewise, the warrantee or his heirs may, at any time before they be 
 impleaded for the land, bring a warrantia chartce upon the warranty in 
 the deed against the warrantor or his heirs, and thereby all the land the 
 heir of the warrantor has by descent from the ancestor who made the 
 warranty, at the time of the writ brought, shall be bound and charged 
 with the warranty, into whose hands soever it goes afterwards. So, if 
 the land warranted be after recovered from the warrantee, he shall have 
 so much land over again of the other land of the heir of the warrantor, 
 or of the warrantor himself, if he be living : and although the warrantee 
 or his heirs recover in this writ, yet upon occasion he may afterwards 
 vouch the warrantor or his heirs notwithstanding. 
 
 F. N. B. 34. 
 
 It is to be observed, moreover, that it is good policy if a man suspect 
 
 any thing, to bring this writ of warrantia chartce betimes, because it binds 
 
 all the lands of the warrantor from the time of the writ brought, and not 
 
 any of his other land he had before that time, which are now aliened. 
 
 F. N. B. 34. But, if a man be vouched, he shall not render in value, but of the 
 lands he had at the time of the voucher. 
 
 But, if a man recover his warranty by writ of warrantia chartce, and 
 have bounden the land which the vouchee had at that time : yet, if he be 
 afterwards impleaded for that land for which he recovered his warranty, 
 he ought to vouch him against whom he recovered his warranty, to de- 
 fend the land, if he be sued in any action wherein he may vouch ; other- 
 wise, he shall not have advantage by recovery of his warranty in the war- 
 rantia chartce. 
 
 F. N. B. 34. 
 
 And if a man recover his warranty in a warrant ia chartce, and afterwards 
 be impleaded in an action in which he cannot vouch, as by assize or by 
 a scire facias sued forth upon a fine, &c. ; it seemeth he ought to give 
 notice to him against whom he hath recovered his warranty of the action, 
 and to pray him to show him what he shall plead to defend the land. 
 
 F. N. B. 34. 
 
 (N) Who may take Advantage of a Warranty, and against whom. 
 
 All such as are parties to the warranty, that is, such as are named in 
 the deed, shall take advantage of the warranty ; as if one warrant lands 
 Vol. X.— 52 2 M
 
 410 OF WARRANTY. 
 
 (N) Who may take advantage of a Warranty, &c. 
 
 to another, his heirs and assigns ; in this case both the heirs and assigns 
 may take advantage of it, and they may both vouch or rebut, or have a 
 warrantia chartce so as they come in in privity of estate ; for otherwise 
 the heirs or assigns cannot vouch, or have a warrantia chartce, but yet 
 they may, in many cases, rebut. (a) 
 
 1 Inst. 384 b, 385 a; 5 Rep. 71, Spencer's case, (a) As in disseisin, abatement, 
 intrusion, usurpation, or otherwise, they shall rebut, by force of the warranty, as a' 
 thing annexed to the land. 
 
 But herein a difference is to be observed, when, in the cases aforesaid, 
 he that rebutteth claimeth under the warranty, and when he that would ! 
 rebut claimeth above the warranty, for there he shall not rebut. 
 
 1 Inst. 384 b, 385 a ; 5 Rep. 71, Spencer's case. 
 
 Therefore, if lands be given to two brethren in fee-simple, with a war- 
 ranty to the eldest and his heirs, and the eldest die without issue, the 
 survivor, though he be heir to him, shall neither vouch nor rebut, nor 
 have a warrantia chartse, because his title to the land is by relation above 
 the fall of the warranty, and he comcth not under the estate of him to 
 whom warranty is made, as the disseisor, &c. doth. 
 
 If a man warrant lands to two men and their heirs, and the one make 
 a feoffment in fee, yet the other shall vouch for his moiety. 
 1 Inst. 384 b, 385 a ; 5 Rep. 71, Spencer's case. 
 
 If a man be enfeoffed with warranty to him, his heirs and assigns, and 
 he make a gift in tail, the remainder in fee, and the donee make a feoff- 
 ment in fee, that feoffee shall not vouch as assignee, because no man 
 shall vouch as assignee but he that cometh in in privity of estate ; but he 
 must vouch his feoffor, and he vouch as assignee ; but such an assignee 
 may rebut. 
 
 1 Inst. 384 b, 385 a ; 5 Rep. 71, Spencer's case. 
 
 So, if the warranty be made to a man and his heirs without this word 
 (assigns), yet the assignee, or any tenant of the land, may rebut. 
 
 If a man enfeoff A and B to have and to hold to them and their heirs, 
 with a clause of warranty, 'prseclictis A et B et eorum hceredibus et assig- 
 natis ; in this case, if A die, and B survive and die, and the heir of B 
 enfeoff C, he shall vouch as assignee ; and yet he is but the assignee of 
 the heir of one of them ; for in judgment of law, the assignee of the heir 
 is the assignee of the ancestor ; and so the assignee of the assignee shall 
 vouch in infinitum, within these words (his assigns). 
 
 1 Inst. 384 b. 
 
 If a man enfeoffeth A to have and to hold to him, his heirs and assigns, 
 and A enfeoffeth B and his heirs, and B dicth, the heir of B shall vouch 
 as assignee of A. So that heirs of assignees, and assignees of assignees, 
 and assignees of heirs, arc within this word (assigns). 
 
 1 Inst. 384 li. 
 
 But those who are not named for the most part shall not take advantage 
 of the warranty ; and therefore if land be warranted to J S without the 
 word (heirs), his heirs shall not vouch ; and regularly, if he warrant land 
 to a man and his heirs without naming assigns, his assignee shall not 
 vouch. Yet, if the father be enfeoffed with warranty to him and to his 
 heirs, and the father enfeoff his eldest son with warranty, and die, the law 
 giveth the son advantage of the warranty made to his father, because, by 
 act of law, the warranty between the father and the son is extinct. 
 Unst. 381b.
 
 OF WARRANTY. 411 
 
 (N) Who may take advantage of a Warranty, <fcc. 
 
 The warranty wrought by the word dedi, and the warranty annexed to 
 an exchange, partition, &c., do not extend to assignees. But yet in 
 cases of exchange, and of warranties by the word dedi, the assignee shall 
 rebut. 
 
 1 Inst. 384, a and b. 
 
 If a man make a feoffment in fee with warranty to him, his heirs and 
 assigns, by deed, and the feoffee enfeoff another by parol, the second 
 feoffee should vouch, or have a wctrrantia cliartce, as assignee, although 
 he hath no deed of the assignment ; because the deed comprehending the 
 warranty doth extend to the assignees of the land, and he is a sufficient 
 I assignee, although he hath no deed. 
 1 Inst. 385 b. 
 
 If a man make a feoffment in fee to A, his heirs and assigns, and A 
 enfeoff B in fee, who re-enfeoffeth A ; he or his assigns shall never vouch, 
 for A cannot be his own assignee. But if B had enfeoffed the heir of A, 
 he might vouch as assignee ; for the heir of A may be assignee to A, 
 inasmuch as he claimeth not as heir 
 
 1 Inst. 385 b. 
 
 If one makes a feoffment to two, their heirs and assigns, and one of 
 them makes a feoffment in fee, this feoffee in this case shall not take 
 advantage as assignee. 
 
 1 Inst. 385 b. 
 
 But an assignee of part of the land shall take advantage of a war- 
 ranty ; as, 
 
 If a man makes a feoffent of two acres with warranty to him, his heirs 
 and assigns, and the feoffee makes a feoffment of one acre of it to another, 
 in this case the second feoffee shall take advantaKe of the warranty as 
 assignee. 
 
 1 Inst. 385 a. 
 
 Therefore, there is a difference between the whole estate in part, and 
 part of the estate in the whole, or in any part ; for if a man has a warranty 
 to him, his heirs and assigns, and he makes a lease for life or gift in tail ; 
 in these cases the lessee or donee shall not take advantage of the warranty 
 as assignee, because they have not the estate in fee-simple, whereunto 
 the warranty was annexed ; but they may vouch the lessor or donor, and 
 by this means take advantage of the warranty. 
 
 1 Inst. 385 a. 
 
 But if a lease for life be made, the remainder in fee, such a lessee may 
 vouch as assignee, because the whole estate is out of the lessor, and the 
 particular estate and the remainder do in judgment of law, to this purpose, 
 make but one estate. 
 
 1 Inst. 385 a. 
 
 If a man enfeoffs a woman with warranty, and they intermarry and are 
 impleaded, and upon default of the husband, the wife is received, in this 
 case she may vouch her husband, ct sic e converso, if a woman enfeoffs a 
 man with warranty, and they intermarry and are impleaded, the husband 
 in this case shall vouch himself and the wife. 
 
 1 Inst. 390. 
 
 He who comes into land merely by act of law in the post, as the lord by 
 escheat or the like, shall never take advantage of a warranty ; and there-
 
 412 OF WARRANTY. 
 
 (N) Who may take advantage of a Warranty, &c. 
 
 fore if tenant in dower enfeoffs a villein with warranty, and the lord of 
 the villein enters, or a feoffment be to a bastard with warranty, and he 
 dies without issue, and the lord enters by escheat, the lord shall never i 
 take advantage of these warranties. 
 
 3 Rep. 02 and G3, Lincoln College case. 
 
 But it is otherwise, where a man comes to the land by limitation of use,- 1 
 or by common recovery, which is the act of the party ; for if tenant in 
 tail being in of another estate, that is by disseisin, or feoffment of a dis- 
 seisor, suffers a common recovery, and a collateral ancestor of the tenant 
 in tail releases with warranty to the recoveror, and after the recoveror 
 makes a feoffment to uses, which are executed by the statute of 27 H. |; 
 8, and after the collateral ancestor dies ; in this case the terre-tenants 
 may take advantage of the warranty by way of rebutter, although the 
 estate be transferred in the post. 
 
 3 Rep. 02 and G3, Lincoln College case. 
 
 So, if he to whom the warranty is made suffers a common recovery, 
 and after the ancestor dies ; the recoveror may take advantage of the 
 warranty by way of rebutter ; for any man that has the possession of 
 land, although he has no deed to show how he got possession of it, or 
 how he is assignee, may rebut the demandant, and so bar him, and defend 
 his own possession. 
 
 3 Rep. 02 and 03, Lincoln College case. 
 
 Therefore, tenant by the curtesy, donee in tail, who is in of another estate, 
 an assignee by force of a warranty made to a man and his heirs, feoffee 
 of a donee in tail, may rebut and bar the demandant by the warranty. 
 3 Rep. 02 and 03, Lincoln College case. 
 
 If one enfeoffs another of an acre of ground with warranty, and has 
 
 issue two sons, and dies seised of another acre of land in the nature of 
 
 borough English ; in this case, although the warranty descends upon the 
 
 eldest son only, yet both the sons may be vouched; one as heir to the 
 
 warranty, the other as heir to the land. 
 
 1 Inst. 370. If he should vouch the eldest sou only, he could not have the fruit of 
 his warranty ; that is, a recovery in value ; and he cannot vouch the youngest son 
 only, hecausc he is not heir at common law, upon whom the warranty descends. 
 
 So it is also of heirs in gavelkind, the eldest shall be vouched as heir 
 to the warranty, and the rest in respect to the inheritance. 
 1 Inst. 370. 
 
 In like manner, the heir at the common law, the heir of the part of 
 the mother shall be vouched, or the heir at common law may be vouched 
 alone at the election of the tenant. 
 
 1 Inst. 370. 
 
 The heir likewise at common law shall be vouched with the heir in 
 borough English. 
 1 lust. 370. 
 
 The bastard also shall be vouched with a mulier. 
 
 If a man dies seised of certain lands in fee, having issue a son and a 
 daughter by one venter, and a son by another, and the eldest son enters, 
 and dies, and the land descends to the sister; in this case, the warranty 
 descends on the son, and he may be vouched as heir, and the sister also 
 may be vouched as heir to the land. 
 
 1 Inst. 370.
 
 OF WARRANTY. 413 
 
 (0) When a Warranty shall bo said to be defeated, &c. 
 
 If two make a feoffment with warranty, and one of them dies, the sur- 
 vivor shall not be charged alone with the warranty, but the heir of him 
 that is dead shall be charged also. 
 
 1 Inst. 386 b. But, if they are jointly bound in an obligation, the survivor only 
 shall be charged. 
 
 Likewise, if two are bound to warrant land, and both of them die, the 
 heirs of both of them ought to be vouched, and shall be equally charged. 
 
 3 Rep. 14, Sir Win. Herbert's case. 
 
 If the heir be vouched in the award of three several persons, the one 
 of them only shall not be charged, but they shall be charged equally. 
 
 3 Rep. 14, Sir Wm. Herbert's case. 
 
 If a woman, an heiress of the disseisor, enfeoffs me with warranty, and 
 after she is married to the disseisee ; in this case I may take advantage 
 of this warranty against the disseisee, and rebut him upon it, if he sues 
 me for the land. 
 
 1 Inst. 365 b. 
 
 So, if the husband and wife sue me for the land of the wife, and I 
 have a warranty of a collateral ancestor of the husband's, which descended 
 to the husband ; I may make use of this to bar the husband and wife. 
 
 1 Inst. 365 b. 
 
 (0) When a Warranty shall be said to be defeated, determined, suspended, or 
 
 avoided. 
 
 When a warranty is made to a man upon an estate which he then had, 
 if the estate be defeated the warranty is defeated : and a warranty lineal 
 or collateral may be defeated, determined, or avoided, in all or in part, 
 and this is sometimes by matter in law and sometimes by matter in deed. 
 
 Litt. sec. 741 ; 1 Inst. 393 a and b. 
 
 If an estate-tail, to which a warranty is annexed, be spent, the war- 
 ranty is determined : or, if a man make a gift in tail with warranty, and 
 the donee afterwards make a feoffment, and die without issue, the war- 
 ranty is gone. 
 
 Litt. sec. 741 ; 1 Inst. 393 a and b. 
 
 So, if tenant in tail discontinue the tail, and the discontinuee be dis- 
 seised, or make a feoffment on condition, and a collateral ancestor of the 
 issue release to the disseisor or feoffor on condition, with warranty, and 
 after the discontinuee enter upon the disseisor, or on the feoffee, for the 
 condition broken, in this case the warranty made by the collateral an- 
 cestor is gone. 
 
 1 Inst. 395 a and b. 
 
 Likewise, if a seigniory be granted with warranty, and the tenancy 
 escheat, so that the seigniory is extinct, consequently, the warranty, 
 which was annexed to it, is defeated. 
 
 1 Inst. 392 b. 
 
 If the father makes a feoffment to his eldest son, and dieth, and the 
 warranty descends upon the son, the warranty is extinct. 
 
 1 Inst. 384 b. But if the father had been enfeoffed with warranty to him and his 
 heirs, the son, as has been shown, might take advantage of the warranty made to his 
 father. 
 
 If tenant in tail makes a feoffment to his uncle, and the uncle after- 
 
 2m2 
 
 \
 
 414 OF WARRANTY. 
 
 (0) When a Warranty shall be said to be defeated, &c. 
 
 wards makes a feoffment in fee with warranty to another, and after the 
 feoffee of the uncle doth re-enfeoff the uncle again in fee, and after the 
 uncle enfeoffeth a stranger in fee without warranty, and dieth without 
 issue, and the tenant in tail dieth, the warranty made to the first feoffee 
 is hereby defeated. 
 
 Litt. sec. 743. Because the uncle took back to him as great an estate from his first 
 feoffee to whom the warranty was made, as the same feoffee had from him ; and if the 
 warranty should stand, then the uncle would warrant to himself, which cannot be. 
 
 So, if the uncle makes the warranty to the feoffee, his heirs and assigns, 
 and takes back an estate in fee, and after enfeoff another, yet the war- 
 ranty is defeated, because he cannot be assignee to himself. 
 
 1 Inst. 390. 
 
 But if one makes a feoffment with warranty to the feoffee, his heirs 
 and assigns, and the feoffee re-enfeoffs the feoffor and his wife, or the 
 feoffor and a stranger ; in these cases the warranty is not defeated, but 
 continues still. 
 
 1 Inst. 390. 
 
 So, if two make a feoffment with warranty to one, his heirs and assigns, 
 and the feoffee re-enfeoff one of the feoffors ; in this case the warranty 
 is not gone. 
 
 1 Inst. 390. 
 
 And if in the first case before put by Littleton, sec. 743, the feoffee 
 
 makes an estate to his uncle in tail or for life, saving the reversion, or a 
 
 release for life, the remainder over, &c, in this case the warranty is only 
 
 suspended. 
 
 Litt. sec. 744 ; 1 Inst. 390. But it is otherwise, where the uncle hath as great estate 
 in tli3 land of the feoffee to whom the warrant}' was made, as the feoffee hath himself. 
 
 Also, if the uncle after such feoffment with warranty, or release with 
 warranty, be attainted or outlawed of felony; hereby the warranty is 
 gone ; and although he afterwards obtain his pardon, yet the warranty 
 is not revived. 
 
 Litt. sec. 745 ; 1 Inst. 391. 
 
 Also, if tenant in tail be disseised, and after make a release to the dis- 
 seisor with warranty in fee, and after the tenant in tail be attaint or out- 
 lawed of felony, and have issue and die, in this case the issue in tail may 
 enter upon the disseisor ; for nothing makes a discontinuance in this case 
 but the warranty, and the warranty cannot descend to the issue in tail, 
 because the blood is corrupt between him that made the warranty and 
 the issue : and if tenant in tail should obtain hi3 pardon, the warranty, 
 as has been said, would not revive. 
 
 Litt. sec. 746, 747 ; 1 Inst. 391. 
 
 But if tenant in tail at the time of his attainder had no issue, and 
 after the obtaining of his pardon had issue, that issue would be bound by 
 the warranty. 
 
 1 Inst. 392 a. 
 
 If a partition bo made by judgment upon a writ of partitione facienda, 
 by force of the statute of 31 II. 8, this does not defeat the warranty, be- 
 cause by writ they are compellable by the statute to make partition. 
 
 G Hep. 12, Morricc's case. 
 
 But, if a feoffment with warranty be made to two or more, and they being
 
 OF WARRANTY. 415 
 
 (0) When a Warranty shall be said to be defeated, &.c. 
 
 joint-tenants, afterwards by deed make partition ; by this the warranty 
 is determined ; for though they were compellable by writ to make parti- 
 tion, yet since they have not pursued the statute by making partition by 
 writ, the warranty is gone. 
 
 G Rep. 12, Morrice's case. 
 
 So, if there be two joint-tenants, and one of them disseises the other, 
 and he that disseises recover in an assize, and have judgment to hold in 
 severalty; hereby the warranty is determined. 
 
 6 Rep. 12, Morrice's case. 
 
 As warranties may be defeated and extinguished by matter in law, so 
 likewise they may be discharged or defeated by matter in deed : and this 
 in three several ways. 
 
 1 Inst. 392 b. 
 
 If the party that has the warranty, or the estate to which the warranty 
 is annexed, releases to him that is bound to warrant all warranties, or all 
 covenants real, or all demands ; by either of these releases the warranty 
 is gone. 
 
 Litt. sec. 748. 
 
 For, if one enfeoffs three with warranty to them and their heirs, and 
 one of them releases to one of the other two ; hereby the warranty is 
 gone for that part. But, if one of them releases to the other two, in 
 this case the warranty is not gone, but continues, and they may vouch 
 upon it. 
 
 1 Inst. 385. 
 
 If tenant in tail enfeoffs his uncle, who enfeoffs another in fee with 
 warranty, and the feoffee releases the warranty to his uncle : thereby the 
 warranty is extinct. 
 
 1 Inst. 390. 
 
 But, if a gift in tail be made with warranty, in this case a release made 
 by the tenant in tail of the warranty will not extinguish it. 
 
 1 Inst. 390. 
 
 If two make a feoffment in fee, and warrant the land to the feoffee and 
 his heirs, and the feoffee releases the warranty to one of the feoffors ; this 
 does not determine the warranty of the other as to the moiety. 
 
 1 Inst. 393. 
 
 So if one enfeoffs two with warranty, and one of them releases the 
 warranty ; this does not extinguish the warranty for the other moiety, 
 but it continues still. 
 
 1 Inst. 393. 
 
 If one warrants land to two men and their heirs, and one of them 
 makes a feoffment in fee ; hereby the warranty is not determined, but the 
 other may vouch for his moiety. 
 
 1 Inst. 385. 
 
 As warranties may be defeated in the whole, so they may be defeated 
 as to part of the benefit that may be taken of the same, as, 
 
 He who has a warranty may make a defeasance not to take any benefit 
 by way of voucher : in the like manner that he shall take no advantage 
 by way of warrantia chartce, or by way of rebutter. 
 Inst. 393 a.
 
 416 OF WARRANTY. 
 
 (P) How Warranties shall be expounded. 
 
 If the parties, between whom the warranty is, intermarry, hereby the 
 warranty is suspended during the coverture in some cases. 
 1 Inst, 390. 
 
 If tenant in tail makes a feoffment in fee with warranty, and disseises 
 the discontinuee, and dies seised ; this suspends the warranty. 
 1 Inst. 390. 
 
 In some special cases there shall be no recoveries in value upon one, 
 warranty; as, 
 
 If a disseisor gives lands to the husband and wife, and to the heirs of 
 the husband, the husband aliens in fee with warranty, and dies, the wife 
 brings a cui in vita, the tenant vouches and recovers in value, if after 
 the death of the wife the disseisee brings a prcecipe against the alienee, he 
 shall vouch and recover in value again. 
 
 1 Inst, 393 a. 
 
 So it is, where the wife brings a writ of dower against the alienee, he 
 shall recover in value again upon the same warranty. 
 1 Inst. 393 a. 
 
 And it is in the same manner if a man be seised of a rent by a de- 
 feasible title, and release to the tenant of the land all his right in the 
 land, and warrant the land to him and his heirs ; if he be impleaded for 
 the rent, he shall vouch and recover in value for the rent ; and if he be 
 impleaded for the land, he shall vouch and recover in value again for 
 the land. 
 
 Inst.. 393 a. 
 
 But in these and the like cases, the reason is in respect of the several 
 estates recovered, but for one and the same estate he shall never recover 
 but once in value ; and though the land recovered in value be evicted, 
 yet he shall never take benefit of the warranty after. 
 
 1 Inst. 393 a. 
 
 A warranty also may lose its force by taking benefit or making use 
 thereof; for after a man has once taken advantage thereof in some cases, 
 he can make no further use of it. 
 
 1 Inst. 393 a. 
 
 If in a praecipe the tenant vouches, and at the sequatur sub suo periculo 
 the tenant and the vouchee make default, whereupon the demandant has 
 judgment against the tenant : and afterwards the demandant brings a 
 scire facias against the tenant to have execution ; in this case the tenant 
 may have a ivarrantia chartce. 
 
 1 Inst. 393 a. 
 
 And if in that case a stranger had brought a praecipe against the tenant, 
 the warranty lost not its force ; but, if the tenant had judgment to recover 
 in value against the vouchee, he should not vouch again by reason of that 
 warranty, because he had taken advantage of the warranty. 
 
 1 lust. 393 a. 
 
 (P) How Warranties shall be expounded. 
 
 It is a principle of law that all warranties in general are to be favour- 
 ably construed, because they are part of men's assurances. 
 
 It is to be observed likewise, that in some cases warranties in law are 
 not taken away by express warranties ; as, if a man leaseth for life, and 
 farther bindeth himself and his heirs to warranty, here the express warranty
 
 OF WARRANTY. 417 
 
 (P) How Warranties shall be expounded. 
 
 doth not take away the warranty in law ; for if he in reversion granteth 
 : over his reversion, and the lessee attorneth, and afterwards is impleaded, 
 ' he may vouch the grantee by the warranty in law, or he may vouch the 
 lessor by the express warranty. 
 4 Rep. 81, Noke's case. 
 
 So likewise, if a man make a feoffment in fee by the word dedi, with 
 an express warranty in the deed, he may use the one or the other at his 
 election ; and the warranty wrought by this word dedi is a special war- 
 ranty, and extendeth to the heirs of the feoffee during the life of the 
 donor only. But upon an exchange, the warranty extendeth reciprocally 
 to the heirs, and against the heirs of both parties ; though the assignee 
 shall not vouch by force of such warranties. 
 4 Rep. 81, Noke's case ; 1 Inst. 384 a. 
 A partition implies a warranty in law. 
 4 Rep. 81, Noke's case ; 1 Inst. 384 a. 
 
 So, if a man make a gift in tail or a lease for life of land by deed or 
 without deed, reserving a rent, or of a rent-service by deed, this is a war- 
 ranty in law ; and the donee or lessee being impleaded shall vouch and 
 recover in value ; and this warranty in law extendeth not only against 
 the donor or lessor and his heirs, but also against his assignees of the 
 reversion ; and so likewise the assignee of lessee for life shall take the 
 benefit of this warranty in law. 
 1 Inst. 384 b. 
 
 When dower is assigned, there is a warranty in law included, that the 
 tenant in dower, being impleaded, shall vouch and recover in value a 
 third part of the two parts whereof she is dowable. 
 
 1 Inst. 384 b. 
 
 If a man of a full age and an infant make a feoffment in fee with war- 
 ranty, this warranty is not void in part and good in part ; but it is good for 
 the whole against the man of full age, and void against the infant ; for 
 although the feoffment of an infant passing by livery of seisin be voidable, 
 yet his warranty which taketh effect only by deed, is merely void. 
 
 1 Inst, 3b7 b. 
 
 If a man make a feoffment in fee, and bind his heirs to warranty, this 
 is void, because the ancestor himself was not bound: also, if a man bind 
 himself to warranty, and not his heirs, the heirs are not bound. 
 
 1 Inst. 38G a. 
 
 But a warranty in law may bind the heir, although it never bound the 
 ancestor. 
 
 1 Inst, 386 a. 
 
 If a man for him and his heirs warrant lands unto another and his heirs, 
 this is a general warranty, because it is not restrained to any person certain. 
 
 1 Rep. 1, Lord Buckhurst's case. 
 
 A warranty regularly doth extend to all things issuing out of the land ; 
 that is to say, to warrant the land in such plight and manner, as it was 
 at in the hand of the feoffor, at the time of the feoffment with warranty, 
 and the feoffee shall vouch, as of lands discharged of the rent, &c, at 
 the time of the feoffment made. 
 
 1 Inst. 388 b. 
 
 If a woman that hath a rent-charge in fee, intermarrieth with the tenant 
 
 Vol. X.— 53
 
 418 OF WARRANTY. 
 
 (Q) Of Warranties in the Sale of personal Chattels. 
 
 of the land, and a stranger releases to the tenant of the land, with war- 
 ranty, he shall not take advantage of this warranty, either by voucher 
 or warrantia eliartse ; for the wife, if the husband die, or the heir of the 
 wife living the husband, cannot have an action for the rent upon a title 
 before the warranty made ; for if the heir of the wife bring an assize of 
 mort cV ancestor, this action is grounded after the warranty, whereunto, 
 as has been said, the warranty shall not extend. 
 1 Inst. 388 b, and 389 a. 
 
 So it is, if the grantee of the rent grant it to the tenant of the land 
 upon condition, which maketh a feoffment of the land with warranty, 
 this warranty cannot extend to the rent ; albeit the feoffment was made 
 of the land discharged of the rent, for if the condition be broken, and 
 the grantor be entitled to an action, this must of necessity be grounded 
 after the warranty made. 
 
 1 Inst. 389 a. 
 
 But in the case aforesaid, when the woman, grantee of the rent, marrieth 
 with the tenant, and the tenant maketh a feoffment in fee with warranty, 
 and dieth ; in a cui in vita brought by the wife, (as in law she may,) the 
 feoffee shall vouch as of lands discharged at .the time of the warranty 
 made, for that heir title is paramount. So, if a tenant in tail of a rent- 
 charge purchase the land, and make a feoffment with warranty, if the 
 issue bring a formedon of the rent, the tenant shall vouch. 
 
 1 Inst. 389 a. 
 
 3(Q) Of Warranties in the Sale of personal Chattels. 
 1. Express Warranties. 
 If one sell a horse, warranting him to be sound, he is answerable on 
 his warranty whether he knew the horse to be sound or otherwise. 
 Kimmel v. Lichty, 3 Yeates, 2G2. 
 
 To constitute an express warranty, it is not requisite that the word 
 warrant should be used. 
 Jackson v. Wetherill, 7 S. & R. 482. 
 
 Warranty that a negro was born a slave, is not broken by a claim made 
 by the negro to his freedom, originating under the laws of another state 
 against the importation of slaves. 
 
 Davis v. Sandford, Litt. Sel. Cas. 206. 
 
 A warranty of the quantity of a cargo, is not an implied warranty that 
 
 the whole is sound. 
 Jones v. Murray, 3 Monr. 84. 
 
 Where the seller affirms at the time of the sale that a horse is not lame, 
 and says he would not be afraid to warrant him, this is a warranty. 
 
 Cook v. Moseley, 13 Wend. 277. See Whitney v. Sutton, 11 Wend. 441 ; lloberts 
 v. Morgan, 2 Cowen, 438 ; The Oneida Manufacturing Society v. Lawrence, 4 Cowen, 
 440. 
 
 To constitute an express warranty, the affirmation, at the time, must 
 be intended as a warranty ; otherwise it is a mere opinion. 
 
 Sweet v. Colgate, 20 Johns. 19G. 
 
 A sale by sample is per se a warranty that the bulk shall correspond 
 with the sample. 
 
 Boorman v. Jenkins, 12 Wend. 5G6 ; Beebee v. Robert, 12 Wend. 413 ; Gallagher 
 v. Waring, 9 Wend. 20 ; Andrews v. Kneeland, G Cowen, 354. 
 
 . 

 
 OF WARRANTY. 419 
 
 (Q) Of Warranties in the Sale of personal Chattels. 
 
 In the sale of personal property, when the property is defective, the 
 seller will be responsible, first, when there is a special warranty, though 
 the seller be ignorant of the defect ; and secondly, when there was no 
 special warranty, but the seller knew of the defect, and concealed it at 
 the time of the sale. 
 
 Glasscock v. Wells, Cooke's R. 2G6. See Westmoreland v. Dixon, 4 Hayw. 223 ; 2 
 Ycrg. 304. 
 
 Where a bill of sale of a negro contained the following words : " The 
 6aid II and S do for ever warrant and defend the title of the said negro, 
 from all persons whatever claiming or to claim her, and do likewise state 
 that we have sold her to D as a sound and healthy negro ;" this is a suffi- 
 cient warranty of soundness. 
 Ditto v. Helm, 2 J. J. Marsh. 129. 
 
 Where a bill of sale of a slave contained these words : " About eleven 
 years of age, sound and healthy, and do by these presents further covenant 
 and agree to warrant the right," &c. Held, to amount to a warranty of 
 soundness. 
 
 Gilchrist v. Marrow, 2 Car. L. Rep. 607. See Ayres v. Parks, 3 Hawks. 59. 
 
 Where the vendee proved, the vendor told him at the time of selling 
 him a mare, that he was sure she Avas perfectly safe, kind, and gentle in 
 harness : Held, that this did not amount to an express warranty so as to 
 render him liable in assumpsit, although, if made falsely, it would render 
 the seller liable to an action of deceit. 
 
 Jackson v. Wetherill, 7 S. & R. 482. 
 
 A warranty does not extend to things which, from the senses, may be 
 discerned to be otherwise. 
 Schuyler v. Russ, 2 Caines, 202. 
 
 2. Of implied Warranties. 
 
 In sales of personal goods there is an implied warranty that the article 
 sold corresponds with the commodity represented, unless there are circum- 
 stances to show the risk of determining not only the quality of the goods, 
 but the kind he purchased ; therefore, if the defendant sell, and the plain- 
 tiff purchase an article as "blue paint," and it is so described in the bill 
 of parcels, this amounts to a warranty that the article to be delivered shall 
 be blue paint, and not a different article. 
 
 Borrekins v. Bevan, 3 Rawle, 23. See Willing v. Consequa, 1 Pet. C. C. 317 ; 
 Jackson v. Wetherill, 7 S. & R. 482; Ease v. John, 10 Watts, 109. But see Holden 
 V. Dakin, 4 Johns. 421. 
 
 But though the seller is answerable to the buyer, that the article sold 
 shall be in specie, the thing for which it was sold, yet if there be only a 
 partial adulteration, which does not destroy the distinctive character of 
 the thing, the buyer is bound by the bargain. 
 
 Jennings v. Gratz, 3 Rawle, 108. But see Defreeze v. Trumper, 1 Johns. 274. 
 
 The doctrine of implied warranty that the article sold is of ordinary 
 quality of articles of its kind, applies only to articles susceptible of a 
 standard quality, or which are sold by samples. 
 
 Pollard v. Lyman, 1 Day's Cas. 15G. 
 
 An advertisement of property for sale, which gives it a higher character 
 than it deserves, does not amount to a warranty as to the quality, if the 
 purchaser relies upon his own examination. 
 
 Calhoun v. Vecchio, 3 Wash. C. C. 105 ; M-Farland v. Newman, 9 Watts, 55.
 
 420 OF WASTE. 
 
 Of Waste. 
 
 When one having possession of a personal chattel, sells it, his bare 
 affirmation amounts to a Avarranty of the title ; but when he is out of 
 possession, it is otherwise. 
 
 Ritchie v. Summers, 3 Yeates, 531, 534; Boyd v. Bopst, 2 Dall. 91 ; Hook v. Ro- 
 binson, Addis. 271. 
 
 Where the seller of a horse knew of a material defect, which in equity 
 and good conscience he ought to have disclosed, and he did not disclose 
 it, if this be unknown to the buyer, or it could not be presumed to be 
 known to a buyer of common prudence, it will vitiate the contract. 
 Dixon v. M'Clutchey, Addis. 322 ; 3 Yeates, 2G2 ; Addis. 14G. 
 
 Where the seller of a personal chattel makes a wilful misrepresentation, 
 or conceals a material circumstance, this is a fraud ; and the buyer may 
 recover damages in proportion to his confidence in the seller. 
 
 Work v. Grier, Addis. 375. 
 
 A agreed to procure and deliver to B the note of W endorsed by two 
 other persons, and afterwards he wrote to B a letter in which he said, "I 
 enclose you the note of W's, as proposed, which you will please to pass 
 to my credit." Held, that this was an implied warranty that the endorse- 
 ments on the note enclosed were genuine. 
 
 Coolidge v. Brigham, 1 Met. 547. 
 
 The word grant, in a lease for years, is a warranty of the lessor's title. 
 Grannis v. Clark, 8 Co-wen, 3G. 
 
 A representation that the vessel insured is American, is equivalent to 
 a warranty, though no warranty is contained in the policy. 
 
 Yaudenheuvel v. Church, 2 Johns. Cas. 173, n. ; Goix v. Low, 1 Johns. Cas. 341 ; 
 Murray v. The United States Insurance Company, 2 Johns. Cas. 168 ; 2 Johns. Cas. 
 173, n. ; 8 Johns. 307. £f 
 
 OF WASTE. 
 
 Waste is the committing of any spoil or destruction in houses, lands, 
 &c, by tenants, to the damage of the heir, or of him in reversion or re- 
 mainder : whereupon the writ or action of waste is brought for the reco- 
 very of the thing wasted, and damages for the waste done. 
 
 In order to state the law relative to this head, we will consider it under 
 the following divisions : 
 
 (A) In what Subjects Waste may be committed. 
 
 (B) Of the several Kinds of Waste. 
 
 (C) What Acts shall bo deemed Waste: And herein, 
 
 1. What shall be deemed Waste in Lands. 
 
 2. What shall be deemed Waste in Trees and Woods. 
 
 3. What shall be deemed Waste in digging for Gravel, Mines, &c. 
 
 4. What shall be deemed Waste in Gardens, Orchards, Fish-Ponds, Dove-Houses, 
 
 Parks, dec. 
 
 5. What shall be deemed Waste with respect to Houses, drc. And herein, 
 Of what Things annexed to the Freehold, Waste may be committed.
 
 OF WASTE. 421 
 
 (A) In what Subjects in general Waste may be committed. 
 
 (D) What shall be deemed Waste with respect to ecclesiastical Persons. 
 
 (E) What Waste shall be deemed excusable. 
 
 (F) What Waste shall be justifiable, by Reason of the Interest of the Party. 
 
 (G) Who may bring an Action of Waste. 
 
 (II) Against whom the Action of Waste may be brought : Herein, 
 
 1. Against whom it may be brought for Waste done by a Stranger. 
 
 2. How far it lies against Executors, dr. 
 
 (I) At what Time an Action of Waste shall be brought. 
 
 (K) Of the Process and Proceedings in Actions of Waste : And herein, 
 
 1. In ichat Cases the Action shall be brought in the Tenet. 
 
 2. In what Cases it shall be brought in the Tenuit. 
 (L) Of the Pleadings in Actions of Waste. 
 
 (M) Of the Judgment in Actions of Waste, and what shall be recovered thereby. 
 
 (N) In what Cases in general Waste may be restrained by Injunction in Equity. 
 And herein, 
 How far it may be restrained in Equity, notwithstanding the Words without Im- 
 peachment of Waste be contained in the Lease, dec. 
 
 (0) What Relief may be given in Equity in Cases of Waste. 
 
 (A) In what Subjects in general Waste may be committed. 
 
 The statute 52 H. 3, c. 23, § 2, enacts, that farmers,(a) during their 
 terms, shall not make tvaste,(b) sale,(e) nor exile of house, woods, and men. 
 
 This act provideth remedy for waste done by lessee for life, or lessee for years, and 
 it is the first statute that gave remedy in those cases : for the rule of the register is, 
 that there are five manner of writs for waste, viz., two at the common law, as for waste 
 done by tenant in dower, or by the guardian ; and three by statute or special law, as 
 against tenant for life, tenant for years, and tenant by the curtesy. 2 Inst. 145, [299. 
 But this opinion of Lord Coke, that there was no remedy at common law for waste, 
 except against tenant by the curtesy in dower, and a guardian, it should seem, is not 
 
 well founded. Vide Bract, lib. 4, c. 18 ; 2 Reeves's Hist. Law, 73, 74, 148,_note.] 
 
 This statute is a penal law, and yet because it is a remedial law it has been interpreted 
 
 by equity. Arg. 10 Mod. 281, in case of Hammond v. Webb. (a) Here farmers do 
 
 comprehend all such as hold by lease for life or lives, or for years, by deed or without 
 
 deed. 2 Inst. 145. It has been resolved likewise that it should extend to strangers. 
 
 Arg. 10 Mod. 281, in case of Hammond v. Webb. Although the register says sciend. 
 
 that per statutum de Marlebridge, cap. 23, data fuit qucedam prohibitio vasti versus 
 tenentem annorum, which is true; yet the statute extends to farmers for life also, but 
 this act extended not to tenant by the curtesy, for he is not a farmer ; but if a lease be 
 
 made for life or years, he is a farmer, though no rent be reserved. 2 Inst. 145. - 
 
 (6) By these word's they are prohibited to suffer waste, for it has been resolved that this 
 act extends to waste omittendo, though the word is faciant, which literally imports 
 active waste. Arg. 10 Mod. 281, in case of Hammond v. Webb, [(c) Note, the word 
 sale is not in the original act. Bracton, speaking of the terms waste, destruction, and 
 exile, says, that the two first signified the same thing ; but exilium meant something 
 of a more enormous nature ; as spoiling or selling houses ; prostrating and extirpat- 
 ing trees in an orchard or avenue, or about any house; all these were considered, says 
 he, ad maximum deformitatem a curicc et capitalis messuagii, and as they either drove 
 the inhabitants away, or had a tendency so to do, they were called exilium. Bract, 
 lib. 4, c. 18, \ 13 ; 1 Reeves's Hist. Law, 386.] 
 
 Nor of any thing{d) belonging to the tenements that they have to farm. 
 
 (d) Houses, woods, and men were before particularly named, and these words do 
 
 comprehend lands and meadows belonging to the farm. 2 Inst. 14G. Also these 
 
 general words have a further signification ; and, therefore, if there had been a farmer 
 for life or years of a manor, and a tenancy had escheated, this tenancv so escheated did 
 
 2N
 
 422 OF WASTE. 
 
 (C) "What Acts shall he deemed Waste. 
 
 belong to the tenements that he held in farm, and therefore this extended to it ; and 
 the lessor shall have a writ generally, and suppose a lease made of the lands escheated 
 by the lessor, and maintain it by the special matter, 2 Inst. 146. 
 
 Unless they have special license(a) by writing of covenant, mentioning 
 that they may do it. 
 
 (a) This grant ought to be by deed, for all waste tends to the disinheritance of the 
 lessor, and therefore no man can claim to be dispunishable of waste without deed. 
 
 2 Inst. 146. Likewise this special grant is intended to be absque impeditione vasti, - 
 
 without impeachment of waste. 2 Inst. 146. 
 
 Wliich thing if they do, and thereof be convict, they shall yield full 
 damage, and shall be punished by amerciament grievously. 
 
 And this must be understood in such a prohibition of waste upon this statute as lay 
 against a tenant in dower at the common law, and single damages were given by this 
 statute against lessee for life, and lessee for years. 2 Inst. 146. 
 
 But waste may be committed not only in houses and lands, but in 
 gardens, orchards, timber-trees, dove-houses, warrens, parks, fish-ponds, 
 and other subjects of property, as will be shown. 
 
 1 Inst. 53 a. 
 
 (B) Of the several Kinds of Waste. 
 
 There are two kinds of waste, viz., voluntary or actual, and negligent 
 or permissive. Voluntary waste may be done by pulling down or pro- 
 strating houses, or cutting down timber-trees : Negligent waste may be 
 by suffering houses to be uncovered, whereby the spars or rafters, 
 planches or other timber of the house are rotten. 
 
 1 Inst. 53 a. 
 
 A leased a house which was ruinous at the time of the demise: the 
 
 lessee obliged himself not to do or suffer any voluntary waste, &c. : the 
 
 house fell, and A brought debt : it was adjudged, that it lies ; for it is 
 
 waste, though the lessee may excuse himself upon the special matter. 
 
 Dy. 38, pi. 35 ; Ow. 92, Glover v. Pipe, and a difference was taken between an ac- 
 tion of waste, and debt on an obligation. 
 
 So, where A leased a house and land for years by indenture, in which 
 was a clause that if the lessee happens to do any ivaste, the lessor may 
 re-enter. The lessee suffered the house to fall for want of covering and 
 repairing. Though the words were (to do any waste), yet I)yer and Walsh 
 inclined that lessor might re-enter, because such waste is punishable by 
 the statute of Gloucester, and the words (any waste) is general and indif- 
 ferent to either of the two kinds of ivaste, viz., voluntary or negligent, &c. 
 
 Dy. 281, pi. 21. Of this opinion likewise is Lord Coke in his comment on the sta- 
 tute of Marlebridge, where he says, That to do or make waste, in legal understanding, 
 includes negligent as well as voluntary waste. 2 lust. 145. ||It has been held an ac- 
 tion on the case does not lie for mere permissive waste against a tenant at will, who 
 has not covenanted to repair. Gibson v. Wells, 1 New K. 2'JO ; nor against tenant for 
 years. Heme v. Benbow, 4 Taunt. 704; Jones v. Hill, 7 Taunt. 392; sed vide 
 2 Saund. 252, n. 7, cont., and see 3 Co. li. 25, note (A), (cd. Fraser.)|| 
 
 (C) What Acts shall be deemed Waste. 
 
 It has been laid down as a general principle, that the law will not allow 
 that to be waste, which is not any way prejudicial to the inheritance. 
 Het. 35, Barret v. Barret. 
 
 Nevertheless, it has been held, that a lessee or tenant cannot change the
 
 OF WASTE. 423 
 
 (C) What Acts shall be deemed Waste. 
 
 nature of the thing demised ; though in some cases the alteration may be 
 for the greater profit of the lessor. Thus, — 
 
 If a lessee converts a corn-mill into a fulling-mill, it is waste, although 
 the conversion be for the lessor's advantage. 
 
 Cro. Ja. 182, Civit. London v. Greyme. 
 
 Also, converting a brewhouse of 1201. per annum into other houses 
 let for 2001. a year, is waste, because of the alteration of the nature of 
 the thing, and of the evidence. 
 
 1 Lev. 309, Cole v. Green. 
 
 || But where the jury, in an action for waste, against a tenant for years, 
 
 in converting three closes of meadow into garden ground, gave only one 
 
 farthing damages for each close, the court gave the defendant leave to 
 
 enter up judgment for himself, on the ground that the reversion could 
 
 not be considered as injured, and de minimis non curat lex. 
 
 The Governors, &c, of Harrow School v. Alderton, 2 Bos. & Pul. 8G ; and see 1 
 Bing. 382; 1 Jac. & Walk. 651.|| 
 
 We will now consider what shall be deemed ivaste with respect to par- 
 ticular subjects of property. And, 
 
 1. Wliat Acts shall be deemed Waste in Lands. 
 
 If the tenant converts arable into wood, or e converso, it is waste ; for it 
 not only changes the course of husbandry, but also the proof of evidence. 
 Hobart's Rep. Case, 296, p. 234. 
 
 But if a lessee suffers arable land to lie fresh, and not manured, so that 
 the land grows full of thorns, &c, this is not waste, but ill husbandry. 
 
 2 Roll. Abr. 814. 
 
 Likewise, the conversion of meadow into arable is waste, for it not only 
 changes the course of husbandry, but the proof of his evidence. 
 
 1 Inst. 53 b. 
 
 But if meadow be sometimes arable, and sometimes meadow, and 
 sometimes pasture, there the ploughing of it is not waste. 
 
 2 Roll. Abr. 815. Some say, that ploughing must be prohibited by covenant to pay 
 so much an acre, for that an absolute restraint from ploughing is void. 
 
 Neither is the division of a great meadow into many parcels, by the 
 making of ditches, waste ; for the meadows may be better for it, and it 
 is for the profit and ease of the occupiers. 
 
 2 Ley, 174, pi. 210. 
 
 Likewise, converting a meadow into a hop garden, is not waste; for it 
 is employed to a greater profit, and it may be meadow again. Per 
 Windham and Rhodes, J. ; but Periam, J., said, though it be a greater 
 profit, yet it is also with greater labour and charges. 
 
 2 Ley, 174, pi. 210. 
 
 But converting a meadow into an orchard is waste, though it be to the 
 greater profit of the occupier. Per Periam. 
 2 Ley, 174, pi. 210. ||See 2 Bos. & Pul. 86. || 
 
 If a lessee plough the land stored with conies, this is not waste ; unless 
 it be a warren by charter or prescription. 
 2 Roll. Abr. 815. 
 
 So, if a lessee of land destroys the coney-boroughs in the land, it not
 
 424 OF WASTE. 
 
 (C) What Acts shall be deemed Waste. 
 
 being a free warren by charter or prescription, it seems it is not waste ; 
 for a man can have no property in them, but only a possession. 
 Ley, 174, pi. 210 ; Ow. 06, Moyle v. Moyle. 
 
 It is waste to suffer a wall of the sea to be in decay, so as by the flowing 
 and reflowing of the sea the meadow or marsh is surrounded, whereby the 
 same becomes unprofitable. But if it be surrounded suddenly by the rage 
 and violence of the sea, occasioned by wind, tempest, or the like, without 
 any default in the tenant, this is not waste. Yet, if the tenant repair not 
 the banks or walls against rivers or other waters, whereby the meadows or 
 marshes be surrounded and become rushy and unprofitable, this is waste. 
 
 1 Inst. 53 b. 
 
 So, a fortiori, if arable land be surrounded by such default ; for the 
 rrounding wasl 
 
 2 Roll. Abr. 816. 
 
 surrounding washes the marl and other manurance from the land. 
 
 2. What Acts shall be deemed Waste in Trees and Woods. 
 Trees are parcel of the inheritance, and therefore if lessee assigneth 
 his term, and excepts the timber trees, it is void ; for he cannot except 
 that which doth not belong to him by law. 
 5 Rep. 12, Saunders's case. 
 
 The lessor, after he has made a lease for life or years, may by deed 
 grant the trees, or reasonable estovers out of them, to another and his 
 heirs ; and the same shall take effect after the death of the lessee. But 
 such a gift to a stranger is void during the estate for life, because of the 
 particular prejudice which might be done to the lessee. 
 
 11 Rep. 48, Liford's case. 
 
 The lessee hath but a particular interest in the trees, but the general in- 
 terest of the trees doth remain in the lessor : for the lessee shall have the 
 waste and fruit of the trees, and the shadow for his cattle, &c, but the in- 
 terest of the body of the tree is in the lessor, as parcel of his inheritance. 
 
 11 Rep. 48, Liford's case. 
 
 Therefore, if trees are overthrown, by the lessee or any other, or by 
 wind or tempest, or by any other means disjointed from the inheritance, 
 the lessor shall have them in respect of his general ownership. 
 
 11 Rep. 81, Bowles's case. 
 
 1 Waste can be committed only of the thing demised. If, therefore, 
 the trees are excepted out of the demise, no waste can be committed by 
 cutting them down. 
 
 8 East, 190, Goodright v. Vivian.} 
 
 With respect to timber trees, such as oak, ash, and elm, (which are 
 timber trees in all places,) waste may be committed in them, either by 
 cutting them down, or topping them, or doing any act whereby the timber 
 may decay. Also, in countries where timber is scant, and beeches or 
 the like are converted to building for the habitation of man, they are 
 also accounted timber. 
 
 1 Inst. 53 a, 54 b. 
 
 Thus, waste may by committed in the cutting of beeches in Buckingham- 
 shire, because there, by the custom of the country, they are the best timber. 
 
 2 Roll. Abr. 814; || Aubrey v. Fisher, 10 East, 446 ; Wright v. Powle, Gwill. Tyth. 
 Ca. 357. ||
 
 OF WASTE. 425 
 
 (C) What Acts shall be deemed Waste. 
 
 So, waste may be committed in the cutting of birches in Berkshire, 
 because they are the principal trees there for the most part. 
 2 Roll. Abr. 814. 
 
 If the tenant cut down timber trees, or such as are accounted timber, 
 as is aforesaid, this is waste ; and if he suffer the young germins to be 
 destroyed, this is destruction. So it is, if the tenant cut down under- 
 wood, (as he may by law,) yet, if he suffer the young germins to be de- 
 stroyed, or, if he stub up the same, this is destruction. 
 
 1 Inst. 53 a. 
 
 If a lessee or his servant suffer a wood to be open, by which beasts en- 
 ter and eat the germins, though they grow again, yet it is waste ; for after 
 such eating they never will be great trees, but shrubs. 
 
 2 Roll. Abr. 815. 
 
 If a termor cuts down underwood of hazel, willows, maple, or oak, 
 which is seasonable, it is not waste. 
 
 2 Roll. Abr. 817. If usually cut and sold every ten years, it is no waste ; but if he 
 dig them up by the roots, or suffer the germins to be bitten with cattle after they are 
 felled, so as they will not grow again, the same is a destruction of the inheritance, and 
 waste lies for it. And mowing the stocks with a wood scythe is a malicious waste ; 
 and continual mowing and biting is destruction. Godb. 210, pi. 298, Sir John Gage 
 v. Smith. 
 
 If ashes are seasonable wood to cut from ten years to ten years, it is 
 not waste to cut them down for house-bote. 
 2 Roll. Abr. 817. 
 
 But, if the ashes are gross of the age of nine years, and able for great 
 timber, it is waste to cut them down. 
 2 Roll. Abr. 817. 
 
 If oaks are seasonable, and have been used to be cut always at the age 
 of twenty years, it is not waste to cut them down at such age, or under ; 
 for in some countries, where there is great plenty, oaks of such age are 
 but seasonable wood. 
 
 2 Roll. Abr. 817. 
 
 But after the age of twenty years, oaks cannot be said to be wood sea- 
 sonable, and therefore it shall be waste to cut them down. 
 2 Roll. Abr. 817. 
 
 Cutting down willows, beech, birch, asp, maple, or the like, standing 
 in the defence and safeguard of the house, is destruction. If there be a 
 quickset fence of white thorn, if the tenant stub it up, or suffer it to be 
 destroyed, this is also destruction. And for all these and the like de- 
 structions, an action of waste lieth. 
 1 Inst. 53 a. 
 
 The cutting of horn-beams, hazels, willows, sallows, though of forty 
 years' growth, is no waste, because these trees would never be timber. 
 Per Meade, J. 
 Godb. 4, pi. G. 
 
 |3 Selling or otherwise using timber unnecessarily is waste. 
 Brashear v. Macey, 3 J. J. Marsh. 93. 
 
 In Massachusetts, to cut oak trees for firewood, where such is the com- 
 mon practice, is not waste. 
 Padelford v. Padelford, 7 Pick. 152. 
 
 But it is waste to cut timber trees and exchange them for firewood. 
 7 Pick. 152. See Elliott v. Smith, 2 N. II. Rep. 430. 
 
 Vol. X.— 54 2 n 2
 
 426 OF WASTE. 
 
 (C) What Acts shall he deemed Waste. 
 
 Tenant for life may cut down timber trees for the purpose of making 
 necessary repairs to the estate, and he may sell them and purchase boards 
 •with the proceeds for such repairs, and this is no waste ; provided this be 
 the most economical way of making such repairs. 
 
 Looniis v. Wilhur, 5 Mason, 13. 
 
 Where wild and uncultivated lands, wholly covered with wood and tim- 
 ber, is leased, the lessee may fell a part of the wood and timber, to ren- . 
 der the land fit for cultivation, without being liable for waste ; but he 
 cannot cut down such timber to the permanent injury of the inheritance. 
 
 Jackson d. Church v. Brownson, 7 Johns. 227. {/ 
 
 If the lessee covenant, that he will leave the wood at the end of the 
 term as he found it ; if the lessee cut down the trees, the lessor shall pre- 
 sently have an action of covenant : for it is not possible for him to leave 
 the trees at the end of the term. So that the impossibility of perform- 
 ing the covenant shall give a present action on a future covenant. But 
 it is otherwise in the case of a house ; for there, though the lessee com- 
 mit waste, yet he may repair the waste done, before the term expires. 
 7 Rep. 15, Englefield's case ; 5 Rep. 21, Mayne's case. 
 
 The cutting of trees is justifiable for house-bote, hay -bote, plough-bote, 
 and fire-bote. 
 
 1 Inst. 53 b ; Hobart's R. C. 296 ; Bro. Waste, 130. By the common law the lessee 
 shall have them, though the deed does not express it ; but if he takes more than is 
 
 necessary, he shall be punished in waste. Bro. Waste, pi. 130. A termor may take 
 
 wood for them, because they belong to him of common right. F. N. B. 59, (N). And 
 ibid, in the new notes there (?) says, he may take oaks, elms, ash, &c, for repairs of 
 
 the house, and underwood, &c, for enclosures and firing. Covenant by lessor, that 
 
 lessee shall have house-bote, hay-bote, and fire-bote, without committing any waste, 
 on pain of forfeiting the lease, is no more than what the law appoints, and therefore 
 the covenant is vain. Bro. Eliz. 604, pi. 18, Archdeacon v. Jennor. If lessee justi- 
 fies, in waste, for cutting oaks for fire-bote, he must surmise that there was no under- 
 wood upon the land; so, it seems, where he takes ash, or other trees, which are timber. 
 Bro. Waste, pi. 89. And by the best opinion, oak and ash under the age of sixteen 
 
 years may be cut for fire-bote. Ibid. Lessee for life or years, by the common law, 
 
 cannot take fuel but of bushes and small wood, and not of timber trees : but if lessor 
 in the lease grants fire-bote expressly, then if lessee cannot have sufficient fuel as above, 
 &c, he may take great trees. 3 Le. 16, Anon. 
 
 The tenant may take sufficient wood to repair the walls, pales, fences, 
 hedges, and ditches as he found them ; but he cannot make new. 
 
 1 Inst. 53 b. In an action of waste for cutting trees, the defendant justifies, &c, 
 that they were to make a fence with pale. And by Hobard, it was good, without show- 
 ing that the fence was made of pale, &c, and now in decay. Noy, 23, Jenkins v. Jen- 
 kins. || Whether trees were cut down for the sake of repairs or not, is a question for 
 a jury. Doe dem. Foley v. Wilson ; 11 East, 56. || 
 
 Cutting dead wood is no waste. 
 1 Inst. 53. 
 
 But converting trees into coals for fuel, where there is sufficient dead 
 wood, is waste. 
 1 Inst. 53. 
 
 |3 Tenant for life in right of his wife of land and slaves, with remainder 
 in fee to one-sixth of the land after her death, cleared out wood-land in 
 the centre of the tract, not leaving sufficient timber to repair the place. 
 Held, that if there was open land sufficient for the employment of the
 
 OF WASTE. 427 
 
 (C) What Acts shall be deemed "Waste. 
 
 wife's slaves, when the husband got possession, the clearing by him was 
 waste. 
 Adm'rs of Johnson, v. Ex'rs of Johnson, 2 Hill. 290. 
 
 "Where the tenant of the demised premises had agreed not to cut down, 
 destroy, or carry away, any more wood or timber than should actually be 
 used and employed on the farm, and that he would not make any manner 
 of waste, sale or destruction of the wood or timber ; it is waste for him to 
 cut down and use wood growing on the demised premises to burn bricks 
 for sale. 
 
 Livingston v. Reynolds, 26 Wend. 115. 
 
 It is not waste to use wood for the common purposes of the estate ; as, 
 where land is annexed to a furnace, cutting wood for it is no waste. 
 Den v. Kenney, 2 South. 552. 
 
 Digging away the green sward on the banks of a river, and cutting 
 down the trees growing there, so as to expose it to be washed by the river, 
 is waste. 
 
 Scutton v. Trenton Delaware Falls Company, Sax. Ch. R. 094. 
 
 In an action of dower, the court allowed a rule to stay waste against 
 persons who were cutting down w y ood on the land out of which dower was 
 demandable. 
 
 Harker v. Christy, 2 South. TlT.fif 
 
 3. What shall be deemed Waste, in digging for Gravel, Mines, &c. 
 
 If the tenant digs for gravel, lime, clay, brick-earth, or stone hid in 
 the ground, or for mines of metal or coal, or the like, not being open at 
 the time of the lease, it is waste. 
 
 1 Inst. 53 b. But not where it is for reparation. See post, 5, Wliat shall be deemed 
 waste with respect to houses. 
 
 If a man hath land in which there is a mine of coals, or the like, and 
 maketh a lease of the land (without mentioning any mines) for life or for 
 years, the lessee for such mines as were open at the time of the lease 
 made may dig and take the profits thereof; but he cannot dig for any 
 new mine that was not open at the time of the lease made, for that would 
 be adjudged waste. 
 
 1 Inst. 54 b. 
 
 Likewise, if there be open mines in the land, and the owner lease it to 
 another with the mines in it, he may dig in the open mines, but not in 
 the close mines : but otherwise it would be, if there was not any open 
 mine there ; for then the lessee might dig for mines, otherwise the grant 
 would take no effect. 
 
 1 Inst. 54 b. 
 
 If a lessee dig slate stone out of the land, it is waste. 
 
 2 Roll. Abr. 810. 
 
 And, digging for stones, unless in an ancient quarry, is waste, though 
 the lessee fill it up again. 
 Ow. 66, Movie v. Moyle. 
 
 Likewise, if he have a lease of land, in which there was a coal-mine, 
 but not open at the time of the lease ; if the lessee open it, and assign 
 his interest, it is still waste in the assignee. But, where the lease is of 
 lands, and all mines in it, there the lessee may dig in it. 
 5 Rep. 12 a, b, Sander's case.
 
 423 OF WASTE. 
 
 (C) What Acts shall be deemed Waste. 
 
 But, if lessee of land, with mines of coals, iron, and stone, digs of the 
 coals, iron, and stones, so much as is necessary for him to use "without 
 selling, it is not waste. 
 
 2 Roll. Abr. 816. 
 
 If a lessee digs the earth, and carries it out of the land, action of waste 
 lies. 
 
 2 Roll. Abr. 810. 
 
 If a lessee digs for gravel or clay, for reparation of the house, not being 
 open at the time of the lease, it is not waste ; any more than the cutting 
 of trees for reparation. 
 
 1 Inst, 53 b. 
 
 jsA tenant in dower of coal lands may take out coal to any extent from 
 a mine already opened, or sink new shafts into the same vein. 
 Croneh v. Puryear, 1 Rand. 258. 
 
 Tenant for lives renewable for ever of lands with bog, cannot cut the 
 turf for sale. 
 Bouchier v. O'Grady, 2 Moll. 53G. 
 
 But where a bog has been demised as a bog, or all the land demised is 
 bog, and only valuable as such, the tenant may use it as he pleases. 
 Anon., 1 Hogan, 147. 
 
 The tenant cannot dig turf under a demise of " improvable bog," unless 
 he can show it was necessary to cut away the turf for the purpose of im- 
 proving it. 
 
 Pollard v. Smith, 1 Hogan, 391. 
 
 Injunction refused to restrain tenant from cutting turf as fire-bote. 
 Count de Salis v. , 2 Moll. 516.£f 
 
 4. What shall be deemed Waste in Gardens, Orchards, Fish-ponds, Dove-houses, 
 
 Parks, &c. 
 
 If the tenant cut down or destroy any fruit trees, growing in the gar- 
 den or orchard, it is waste : but if such trees grow upon any of the ground 
 which the tenant holdeth out of the garden or orchard, it is no waste. 
 
 1 Inst. 3 a. 
 
 Breaking a hedge also is not waste. 
 1 Inst, 3 a. 
 
 Likewise, destruction of saffron heads in a garden, is not waste. 
 Rro. Waste, pi. 143, cites 10 II. 7, c. 2. 
 
 || But ploughing up strawberry beds by an outgoing tenant has been 
 held to be waste. 
 
 Watherall v. Howells, 1 Camp. R. 227. || 
 
 ;3A tenant at will not allowed to break up an ancient meadow or pas- 
 ture, though the land is mossy and requires tillage. 
 Martin v. Coggan, 1 Hogan, 120. 
 
 But it is not waste to plough up land held under lease, if the land was 
 not ancient meadow or pasture at the date of such lease. 
 Morris v. Morris, 1 Hogan, 238.$ 
 
 If the tenant of a dove-house, warren, park, vivary, estangues, or such
 
 OF WASTE. 429 
 
 (C) What Acts shall be deemed Waste. 
 
 like, takes so many, that so much store is not left as he found at the 
 time of the demise, it is waste. 
 1 Inst, 53 a ; Hob. R. C. 296. 
 
 Likewise, if the lessee of a pigeon-house stops the holes, that the 
 pigeons cannot build, it is waste. 
 1 Inst. 53 a. 
 
 So likewise, suffering the pales of a park to decay, whereby the deer 
 are dispersed, is waste, 
 i Inst. 53 a. 
 
 Also, if the lessee of a hop-ground plough it up and sow grain there, 
 it is w r aste. 
 Ow. 66, Moyle v. Moyle. 
 
 The breaking of a wear is waste, and so of the banks of a fishpond, 
 80 that the water and fish run out. 
 Ow. 66, Movie v. Movie. 
 
 5. What shall be deemed Waste with respect to Houses. 
 
 Waste may be done in houses, by pulling them down or prostrating 
 them, or by suffering the same to be uncovered, whereby the spars or 
 rafters, planches or other timber of the house, are rotten. 
 
 1 Inst. 53 a. 
 
 Default of coverture of a house is waste, though the timber be standing. 
 
 2 Roll. Abr. 815. 
 
 But, if the house be uncovered, when the tenant cometh in, it is no 
 waste in the tenant to suffer the same to fall down. 
 
 1 Inst. 53 a. 
 
 Though there be no timber growing upon the ground, yet the tenant 
 at his peril must keep the houses from wasting. 
 
 1 Inst, 53 a. 
 
 If a lessee razes the house, and builds a new house, if it be not so long 
 and wide as the other, it is waste. 
 
 2 Roll. Abr. 815. But if the old house falls by being ruinous, and the lessee builds 
 a new one, it needs not be so long and wide as the old one. Bro. Waste, pi. 93. 
 
 So, if he rebuilds it more large than it was before, it is waste ; for it 
 will be more charge for the lessor to repair it. 
 1 Inst. 53 a. 
 
 /3 It is not waste for a tenant to erect a new edifice upon the demised 
 premises, provided it can be done without materially injuring the buildings 
 or other improvements already on the premises. 
 
 Windship v. Pitt, 3 Paige, 259. tf 
 
 || Where a lease contained a proviso for re-entry, if the lessee committed 
 waste to the value of 10s., and the lessor brought ejectment on this pro- 
 viso, because the tenant had pulled down some old buildings of more than 
 10s. value, and erected others of a different description, it was held that 
 the waste mentioned in the proviso was waste producing an injury to the 
 reversion to the value of 10s. ; and therefore it was a question for the 
 jury, whether such waste to that value had been committed. 
 Doe v. Bond, 5 Barn. & C. 855. ||
 
 430 OF WASTE. 
 
 (C) What Acts shall be deemed "Waste. 
 
 But, if a lessee of land makes a new house upon the land where there 
 was not any before, this is not waste ; for it is for the benefit of the lessor. 
 
 2 Roll, Abr. 815. 
 
 But, according to Lord Coke, if the tenant build a new house, it is 
 waste ; and if he suffer it to be wasted, it is a new waste. Yet, if the 
 house be prostrated by enemies or the like without a default of the tenant, - 
 or were ruinous at his coming in, and fall down, the tenant may build 
 the same again with such materials as remain, and with the other timber, 
 which he may take growing on the ground for his habitation ; but he 
 must not make the house larger than it was. 
 
 Inst. 53 a. Lord Coke, perhaps, is here to be understood of building a new house 
 in the room of one of which was before on the premises ; and thus Rolle and he may 
 be reconciled. 
 
 If the house be uncovered by tempest, the tenant must in convenient 
 time repair it. 
 
 1 Inst. 53 a. 
 
 If a lessee fling down a wall between a parlour and a chamber, by 
 which he makes a parlour more large, it is waste ; because it cannot be 
 intended for the benefit of the lessor, nor is it in the power of the lessee 
 to transpose the house. 
 
 2 Roll. Abr. 815. || See Young v. Spencer, 9 Barn. & C. 145. || 
 
 So, if he pull down a partition between chamber and chamber, it is 
 waste. 
 
 Bro. Waste, 143. 
 
 Or, if a lessee pull down a hall or parlour, and make a stable of it, it 
 is waste. 
 2 Roll. Abr. 815. 
 
 If a lessee pull down a garret over-head, and make it all one and the 
 same thing, it is waste. 
 2 Roll. Abr. 815. 
 
 If a lessee permit a chamber fore in decasu pro defectu plaustrationis, 
 per quod grossum maker emium devenit putridum, et camera ilia turpis- 
 sima et foedissima devenit, action of waste lies for it. 
 2 Roll. Abr. 815. 
 
 So, if a lessee permit the walls to be in decay for default of daubing, 
 per quod makeremium devenit putridum, action of waste lies. 
 
 2 Roll. Abr. 815. 
 
 The breaking of a pale or of a wall uncovered is not waste. 
 
 Bro. Waste, pi. 94. 
 
 But the breaking of a wall covered with thatck, and of a pale of timber 
 covered, is waste. 
 
 Bro. Waste, pi. 94. 
 
 Burning the house by negligence or mischance is waste. 
 Inst. 53 b. But by the 6 Ann. c. 31, no action is to be prosecuted against any 
 person in whose house or chamber any fire accidentally begins. 
 
 If the tenant do or suffer waste to be done in houses, yet, if he repair 
 them before any action brought, there lieth no action of waste against 
 him ; but he cannot plead, quod non fecit vastum, but the special matter. 
 
 1 Inst. 53 a.
 
 OF WASTE. 431 
 
 (C) What Acts shall be deemed Waste. (Removable Fixtures.) 
 G. Of what things annexed to the Freehold Waste may be committed. 
 
 The removing of a post in a house is waste. 
 
 42 E. 3, 6. Of posts, &c, fixed in the land, and not to the walls by termor, and 
 taken off within his term, waste does not lie, for the house is not impaired by it. Per 
 Kingsmill, J., and Grevill, Serjt Quod non negatur. Bro. Waste, pi. 104. 
 
 So, the removing of a door. 
 
 42 E. 3, 6 ; 1 Inst. 53. In waste of taking away doors, the lessee pleaded that he 
 erected them, and the court took a difference between outer doors and inner doors. Per 
 three Js. Lessee may take away the inner doors within the term, but not the outer 
 doors. Moo. 177, pi. 315. Cooke's case, alias Cook v. Humphrey. 
 
 So, the removing of a window. 
 
 42 E. 3, 6. It is waste, though the glass window be glazed by the tenant himself. 
 1 Inst. 53 a. 
 
 The digging up a furnace annexed to the franktenement, and selling 
 
 it, is waste. 
 
 Bro. Waste, pi. 143. So, though annexed by the tenant himself. 1 Inst. 53 a. The 
 difference is between a furnace fixed to the middle or to the wall of the house : in the 
 first case the lessee may take it away, but not in the last. Per Dyer and Owen, Js., 
 0\v. 71, in case of Day v. Austin. A furnace fixed in medio domus is but a chat- 
 tel, and removable ; but otherwise, if fixed to the walls. Per Walmsley. Said to 
 have been agreed in Dyer's time. Cro. Eliz. in case of Day v. Bisbich. So of a dyer's 
 vat fixed to the walls, adjudged not removable on an attachment. Cro. Eliz. 374, pi. 
 24, Day v. Bisbich. 
 
 The removing of a bench is waste, though annexed by the tenant him- 
 self. 
 Bro. Waste, pi. 143 ; 1 Inst. 53 a. 
 
 If wainscot annexed to the house be taken away, it is waste. 
 
 Bro. Waste, pi. 143 ; 1 Inst. 153 a. Though annexed by the tenant himself. Id. 
 ibid. If fixed to a wall, it is waste. Per Anderson, Cro. Eliz. 374, in case of Day v. 
 Bisbich. Wainscot annexed by the lessor or lessee, is parcel of the house, and whether 
 by great or little nails, screws, or irons, put through the post or walls of the house, is 
 all one ; but if by any way whatever it be fixed to the post or walls of the house, it is 
 waste for lessee to remove them ; and shall pass by grant of the house in the same 
 manner as the ceiling and plastering ; 4 Rep. 64, cites it as resolved, Mich. 41 & 42 
 Eliz. C. B. by the whole court, in case of Warner v. Fleetwood. But per Dodderidge, 
 J., wainscot may as well be removed by a lessee as arras hangings. Roll. 210, in 
 Bridgman's case. 
 
 Of tables dormant and fixed in the land, and not to the walls by termor, 
 
 and taken off within his term, waste does not lie ; for the house is not 
 
 impaired by it. Per Kingsmill, J., and Grevill, Serjt. 
 
 Bro. Waste, pi. 104. Tables dormant fixed cannot be removed, and if they are, it is 
 waste. Per Anderson, C. J., Cro. 374, pi. 24, E., in case of Day v. Bisbich. 
 
 Beating down a wooden wall, or suffering a brick wall to fall, is no waste, 
 
 unless it be expressly alleged that the walls were coped or covered. 
 
 Dver, 108 b, pi. 31, Earl of Bedford v. Smith. So of a mud wall, is waste. Bro. 
 Waste, pi. 143. 
 
 If waste be assigned in pulling up a plank floor and mangers of a 
 stable, plaintiff must show that the same were fixed. 
 Dyer, 108 b, pi. 31. 
 
 If lessee erects a partition, he cannot break it down without being liable 
 to an action of waste, for he has joined it to the franktenement. 
 Mo. 178, Cooke's case. 
 
 Shelves are parcel of the house, and not to be taken away ; and though
 
 432 OF WASTE. 
 
 (C) What Acts shall be deemed Waste. {Removable Fixtures.) 
 
 it is not showed that the shelves were fixed, it ought to be intended that 
 they were fixed. Per Coke, C. J. 
 
 Cro. Eliz. 329, Pyot v. Lady St. John ; 2 Bulstr. 113. 
 
 Pavement is a structure, for they use lime to finish it. 
 Cro. Eliz. 329, Pyot v. Lady St, John ; 2 Bulstr. 113. And held, that it is within 
 the intention of the covenant for repairing edifices, buildings, and it is quasi building. 
 
 If the tenant suffers the groundsels to waste in his default of defence or" 
 removing the water from off them, or of dirt or dung or other nuisance 
 which lies or hangs upon them, the tenant shall be charged, for he is 
 bound to keep them in as good case as he took them. 
 
 Ow. 43, Stickleborne v. Hatchman. If by not scouring a ditch or moat, the ground- 
 sels of the house are putrified, waste shall be assigned in domibus pro non scourando. 
 Id. ibid. 
 
 [The rule which seems pretty clearly established by the above cases, 
 that whatever is annexed to the freehold becomes part of it, and cannot 
 be removed without doing waste, has been relaxed in later times, upon 
 motives of public policy, as between two descriptions of persons, that is, 
 landlord and tenant, and tenant for life or in tail, and the remainder-man 
 or reversioner. As between landlord and tenant, it is now admitted, that 
 the latter may, during the term, take away all such chimney-pieces, wain- 
 scot, &c, and all such things necessary for trade, as brewing vessels, cop- 
 pers, fire-engines, cider-mills, &c, as he has himself put up or erected. 
 We have said during the term, for if he remove them after the term, he 
 will be a trespasser. (a) And as between tenant for life or in tail, and 
 the remainder-manor reversioner, it is also admitted, that the former may 
 remove fire-engines, cider-mills, coppers, &c, which he has erected, and 
 thereby not only enjoys the profits of the estate, but likewise carries on 
 a species of trade. And if he does not remove them in his lifetime, they 
 go to his personal representatives. But as between heir and executor, 
 the old rule of law seems still to hold ; for though in an action of trover 
 by an executor against an heir for a cider-mill, tried at Worcester be- 
 fore Lord C. B. Comyns, his lordship was of opinion, that it was personal 
 estate, and directed the jury to find for the executor ; yet Lord Mansfield 
 has observed, that that case in all probability turned upon a custom : and 
 that where no circumstance of that kind arises, the rule shall still hold in 
 favour of the heir, seems fully established by the decision of the Court 
 of King's Bench in Lawton v. Lawton, Easter, 22 G. 3. 
 
 j3 Yan Ness v. Packard, 2 Pet. R. 143 ;tf Ex parte Quincy, 1 Atk. 477; Lord Dudley 
 v. Ld. Ward, Ambl. 113; Bull. N. P. 34, S. P.; Poole's case, 1 Salk. 368; Lawton 
 v. Lawton, 3 Atk. 13 ; { 1 II. Black. 258, Fitzherbert v. Shaw ; Ibid. 259. n., Lawton 
 v. Salmon ; 3 Esp. Rep. 11, Dean v. Allalley; 2 East, 88, Penton v. Robert; 4 Esp. 
 Rep. 33, S. C. ; } || Lawton v. Salmon, 1 II. Black. 259, notes ; Penton v. Robart, 
 2 East, 88. (a) See Fitzherbert v. Shaw, 1 II. Black. 258. || Vide 3 Atk. 16, by 
 Sanders, note.] 
 
 {And the relaxation of the old rule in favour of tenants extends only 
 to erections for the purposes of trade. A tenant of a farm cannot re- 
 move buildings annexed to the freehold, which he has erected for the 
 ordinary purposes of husbandry, and the better enjoyment of the profits 
 of the land, though he thereby leaves the premises in the same state as 
 when lie entered. 
 
 3 East, 28, Elwes v. Maw. Vide Dean v. Allalley and Penton v. Robart, ubi supra.) 
 
 || In the leading cases above, (in 3 Atk. 13, Amb. 113, and 1 II. Black. 
 259,) the courts may be considered as having decided mainly on the
 
 OF WASTE. 433 
 
 (C) What Acts shall be deemed Waste. {Removable Fixtures.) 
 ground, that where the fixed instrument, engine, or utensil (and a build- 
 in^ covering the same falls within the same principle) was an accessory to 
 a matter of a personal nature, that it should be considered as personalty. 
 Lord Hardwicke says, in the case in Ambler, " A colliery is not only an 
 enjoyment of the estate, but in part carrying on a trade." And in 3 Atk. 
 he says, " One reason that weighs with me, is its being a mixed case be- 
 tween enjoying the profits of the lands, and carrying on a species of trade ; 
 and considering it in this light, it comes very near the instances, in brew- 
 houses, &c, of furnaces and coppers." Upon the same principle, Lord 
 C. B. Comyns may be considered as having decided the case of the cider- 
 mill, i. e. as a mixed case, between enjoying the profits of the land and 
 carrying on a species of trade, that of making cider. But the case of 
 ^ buildings for trade has always been put as a known allowed exception from 
 • the general rule, and the courts will not extend the exception to buildings 
 erected for mere purposes of agriculture. Accordingly where a tenant in 
 agriculture had erected at his own expense, and for the more convenient 
 ; occupation of his farm, a beast-house, carpenter's shop, fuel-house, pump- 
 1 houses, and fold-yard wall, of brick and mortar, and let into the ground, 
 ! it was held, that he could not remove them even during the term ; though 
 he thereby left the premises in the same state as when he entered. 
 
 Ehves v. Maw, 3 East, 38. See the learned and elaborate judgment of Lord Ellen- 
 ! borough. 
 
 Where the tenant erected a building (with permission of the landlord) 
 \ on a brick foundation let into the ground, with a chimney belonging to it, 
 : and with a wooden superstructure brought from another place where the 
 tenant had carried on business, and the building was used for the purpose 
 | of making varnish, it was held removable. The building here came within 
 J the exception in favour of trade. Though Lord Kenyon in his judgment 
 - hinted that gardeners and nursery men might remove greenhouses and 
 : hothouses, yet this dictum has been questioned by Lord Ellenborough, 3 
 East, 38, and by Dallas, C. J., 2 Bro. & B. 58 ; but it seems that a nur- 
 seryman by trade may clearly sell young trees raised on the demised 
 land, though it seems otherwise as to a farmer rearing trees to fill up the 
 ', demised orchards. 
 
 Penton v. Robart, 2 East, R. 88. See per Heath, J., Windham v. Way, 4 Taunt. 316. 
 
 With respect to ornamental fixtures, as chimney-pieces, wainscots, &c, 
 which are removable, (vide supra,) these are also exceptions to the gene- 
 '• ral rule, and therefore to be fairly considered, but not to be extended : 
 ; and accordingly in a late case it was held, that a tenant could not remove 
 j a conservatory erected by him on a brick foundation and attached to the 
 ' demised dwelling-house, and communicating with it by windows opening 
 ' into the conservatory, and a flue passing into the parlour chimney ; since 
 ] the building had become part of the freehold. 
 
 Buckland v. Butterfield, 2 Bro. & Biug. 54 ; 4 Moo. R. 440 ; and see Farrant v. 
 Thompson, 5 Barn. & A. 820. 
 
 And though the building is used for the purposes of trade, still if the 
 
 tenant expressly covenants to deliver up all buildings erected during the 
 
 I term he cannot remove it. 
 
 Naylor v. Collinge, 1 Taunt. 19 ; and see Thresher v. East London Water- Works, 
 ; 2 Barn. & Cres. 008. || 
 
 . Vol. X.— 55 2
 
 434 OF WASTE. 
 
 (D) What shall he deemed Waste with respect to ecclesiastical Persons. 
 
 With respect to ecclesiastical persons, it has been held, that an action 
 on the case will lie for dilapidations. 
 3 Lev. 268, Jones v. Hill. 
 
 And it has been said that dilapidation of ecclesiastical places, houses, 
 and buildings, is a good cause of deprivation. 
 
 3 Inst. 204. 
 
 If a bishop cut and sell(a) the trees of the bishopric, for this waste a 
 prohibition shall be granted, commanding him to cease doing such waste. 
 Resolved in parliament. 
 
 11 Rep. 49, cites as the Bishop of Durham's case ; ||see infra, {a) But it seems he 
 may sell, and apply the money in repairs. Amb. 176 ; 3 Meriv. 428. || 
 
 So, if a parson or vicar waste the trees of his parsonage or vicarage, a 
 prohibition shall be granted ; for it is the dowry of the church. 
 
 11 Rep. 49, Liford's case. The patron may have the prohibition. ||See Barn. C. R. 
 399 ; 2 Atk. 217 ; Amb. 176; 2 Bro. C. C. 552, acc.\\ 
 
 So, if a prebendary waste the trees of his prebend, the patron may have 
 a prohibition. Between Ackland and Atwell, prohibition granted by the 
 Lord Coventry, Lord Keeper, for the prebend of Catton in Devon. (b) 
 
 ||(6) See this case, 2 Roll. Abr. 813 ; 3 Swanst. 499, notd.\\ 
 
 It has been holden, that if a bishop, parson, or other ecclesiastical per- 
 son cut down trees upon the lands, unless it be for reparation of their 
 ecclesiastical houses, and do or suffer to be done any dilapidations, they 
 may be punished for the same in the Ecclesiastical Court, and a prohibi- 
 tion will not lie in the case : and that the same is a good cause of depri- 
 vation of them of their ecclesiastical livings and dignities. But, yet, for 
 such waste done, they may be also punished by the common law, if the 
 party will sue there. 
 
 Godb. 259, pi. 357, Salisbury Bishop's case. 
 On a motion for prohibition, the suggestion appeared to be, that the 
 parson had digged and found lead mines in his glebe, and had felled tim- 
 ber ; and it was insisted that this was waste, and prohibitable by 35 E. 1, 
 Be non prosternend. arbores, #c. But per cur. — It lies not for mines ; 
 for then mines in glebe-land can never be opened. 
 
 Lev. 107, Countess of Rutland's case. 
 ||An uninterested stranger cannot obtain a writ of prohibition to restrain 
 a bishop from committing waste in the possessions of hissee ; and it seems 
 that the bishop can only be restrained by a proceeding at suit of the 
 crown or of the metropolitan. So also as to deans and chapters. 
 
 Jefferson v. Bishop of Durham, 1 Bos. & Pul. 105 ; and see tit Prohibition (A), Vol. 
 viii. Wither v. Dean and Chapter of Winchester, 3 Meriv. 421 ; Herring v. Dean and 
 Chapter of St. Paul's, 3 Swanst. 492 ; and see note, Ibid.|| 
 
 (E) What Waste shall be deemed excusable. 
 It may be observed in general, that waste which ensues from the act 
 of God is excusable. 
 1 Inst. 53 a. 
 Thus, if a house falls by tempest, the tenant shall be excused in action 
 
 of waste. 
 
 But, if 'it be uncovered by tempest, and stand there, if the tenant has sufficient time to 
 repair it, and does not, the lessor, if the lease be made on condition of re-entry fur waste, 
 may re-enter, but not immediately upon the tempest ; for it is no waste till the tenant 

 
 OF WASTE. 435 
 
 (F) "What Waste justifiable, by Interest of the Party. 
 
 suffers it to be so long unrepaired, that the timber be rotted ; per Hull, and then it is 
 
 waste. Bro. Conditions, pi. 40. If he suffer it to continue unrepaired, so that at last 
 
 the house is cast down by a tempest, it is waste ; Mo. G2, pi. 173. 
 
 Likewise, if a house be abated by lightning, or thrown down by a great 
 wind, it is not waste. 
 
 Inst. 53 a. 
 
 So, if apple trees be torn up by a great wind, if lessee afterwards cut 
 them, it is not waste. 
 
 Bro. Waste, pi. 39 ; 2 Roll. Abr. 820, contrci; 20 H. G, c. 1 b ; jSShult v. Barker, 
 12 S. & R. 272.0 
 
 If the banks be well repaired by the lessee, and the water notwith- 
 standing subvert them, and surround his meadow, by which it is become 
 rushy, it is not waste. 
 
 Lessee for years covenanted upon a penalty of \0l. to repair the banks of a river. 
 They were afterwards broken down by a sudden outrageous flood. Fitzherbert and 
 Shelly held, that he is excused the penalty, because it is the act of God ; but he is 
 bound by his covenant to repair it, which he must do in convenient time. Dyer, 33 a, 
 
 pi. 10, 11. If banks on the river Trent are unrepaired, it is waste; per all the 
 
 justices ; because the Trent is not so violent, but that the lessee by his policy and in- 
 dustry may well enough preserve the banks, and make the water to run within its 
 bounds ; but the violence of the sea is such, that it cannot be restrained by any policy ; 
 and, therefore, it is no waste if that by tempestuousness breaks the walls and sur- 
 rounds the land. Mo. 69, pi. 187, Griffith's case. 
 
 The lessor cannot give trees during the tenant's lease. But if he grants 
 them to a stranger, and commands the tenant to cut and deliver them, 
 who does it, this shall excuse him in an action of waste. And yet the 
 tenant was not bound by law to obey and execute this command. 
 
 Bro. Done, Sec, pi. 13. 
 
 (F) What Waste shall be deemed justifiable, by reason of the Interest of the Party. 
 
 Tenant in tail may commit waste in houses as well as in all other parts 
 of the estate, notwithstanding any restraint to the contrary, and no in- 
 stance can be shown where a tenant in tail has been restrained from 
 committing waste by injunction of the Court of Chancery. 
 
 Cas. temp. Talb. 16, Glenorchy v. Bosville. And his lordship said, an injunction 
 was refused, in Mr. Saville's case of Yorkshire, who being an infant, and tenant in 
 tail in possession, and in a very bad state of health, and not likely to live to full age, 
 cut down by his guardian a great quantity of timber, just before his death, to a very 
 great value ; the remainder-man applied here for an injunction to restrain him, but 
 could not prevail. Ibid. 
 
 If tenant in tail grants all his estate, his grantee is dispunishable of 
 waste ; so, such grantee's grantee is also dispunishable. Per Clerk, J. 
 3 Le. 121, pi. 173, Anon. 
 
 If a man devises land to two in tail, and after the one devisee dies 
 
 without issue, by which the reversion in fee of one moiety reverts to the 
 
 heir of the donor, but the other devisee is tenant for life of the whole, 
 
 and after he commits waste ; action of waste lies against him by the heir 
 
 of the donor for the one moiety. 
 
 Lands were given to A and B, and the heirs of their two bodies. A died without issue, 
 and the i-emainder of the half reverted to the donor. He brought waste against B, of 
 houses and lands to him demised, and agreed that the writ was good : but it was 
 questioned, if the count shall be general, or of a half only, notwithstanding that both 
 were tenants in common of the reversion. 2 Brownl. 133, Mallet v. Mallet. 
 
 But action of waste does not lie against tenant in tail after possibility,
 
 436 OF WASTE. 
 
 (F) What Waste justifiable, by Interest of the Party. 
 
 for the greatness of the estate of inheritance which was once in him ; 
 and also, as some say, because the estate was not ivitltin the statute at 
 the creation. 
 
 11 Rep. 80 a, Lewis v. Bowles. But such tenant shall not have the trees, &c, 
 
 which lie cuts. 4 Rep. 63, Herlakenden's case. And such tenant may be restrained 
 
 in equity. See £>oo><. 
 
 If lands are given to the husband and wife, and to the heirs of the body- 
 of the husband, the remainder to the husband and wife, and to the heirs 
 of their two bodies begotten ; and the husband dies without issue ; the 
 wife shall not be tenant in tail after possibility ; for the remainder in 
 special tail was utterly void, for that it could never take effect. For so 
 long as the husband should have issue, it should inherit by force of the 
 general tail ; and if the husband die without issue, then the special tail 
 cannot take effect, inasmuch as the issue which should inherit in special 
 tail must be begotten by the husband ; and so the general, which is larger, 
 and greater, hath frustrated the special, which is less ; and the wife, in 
 that case, shall be punished for waste. 
 
 1 Inst. 28 b. 
 
 It has been agreed, that tenant for years may cut wood ; but it has 
 
 been doubted, if tenant at will may : but it seems, that as long as tenant 
 
 at will is not countermanded he may cut seasonable wood, &c. 
 
 Bro. Waste, pi. 114. Tenant at will cannot justify cutting underwood without 
 license. Per Littleton, Bro. Waste, pi. 131. 
 
 Where a man leases a ivood which co?isists only of great trees, the les- 
 see cannot cut them. 
 Bro. Waste, pi. 126. 
 
 But a lessee may justify the cutting of trees for reparation of houses. 
 
 Hobart's Rep. Case, 296 ; 1 Inst. 54 b. But in such case the termor shall pay the 
 wages and salary of the workmen out of his oivn money, and not cut wood to sell, to 
 pay the wages. Bro. Waste, pi. 112. — And if he cut trees for reparations, and suffers 
 the trees to lie and putrify, it is waste. Ibid. || Whether trees were cut down bond 
 fide for the sake of repairs is a question for a jury. Doe v. Wilson, 11 East, 56. || 
 
 Nevertheless, if lessee cuts trees for reparation, and sells them, and after 
 buys them again, and employs them for reparation, it is waste by the sale. 
 1 Inst. 53 b. 
 
 So, if lessee cuts trees, aud sells tliem for money, though with the 
 money he repairs the house, yet it is waste. 
 
 1 Inst. 53 b. || Gower v. Eyre, Coop. Chan. Ca. 156, but it seems otherwise as to 
 ecclesiastical persons. Amb. 176; 3 Meriv. 428. || 
 
 As to the cutting of timber trees for repairs by lessee, there is no differ- 
 ence whether the lessor or lessee covenants to repair the houses ; for in 
 either case it is not waste if lessee cuts them. 
 
 Mo. 23, pi. 80, Anon. If lessor covenants to repair the houses and does not, lessee 
 may cut down trees for the repairing of the houses. Brownl. 240, Anon. 
 
 If a house be prostrated by enemies of the king, or such like toithout 
 default of the lessee, the lessee may rebuild it with the same materials 
 that remain, and may cut other timber upon the land to rebuild it, but he 
 must not make the house larger than it was. 
 
 1 Inst. 53 a. If strangers, enemies of the king, destroy a house, waste does not lie; 
 but control, it' it be by traitorous subjects of the king. Bro, Waste, pi. 15. 
 
 So, if the house was ruinous at the time of the lease, and fell within 
 the term, this is not waste in the tenant. 
 
 2 Inst. 53 a ; Bro. Waste, pi. 130.
 
 OF WASTE. 437 
 
 (F) What Waste justifiable, by Interest of the Party. 
 
 But the lessee shall not cut trees to make a nezv house where there 
 was not any at the time of the lease. 
 Hobart's Rep. Case, 290. 
 
 So, if a lessee suffers a house to fall for default of covering, which is 
 waste, he cannot cut trees to repair the house. 
 Bro. Waste, pi. 39. 
 
 And in general, if the tenant suffer the house to be wasted, he cannot 
 
 justify the felling of timber to repair it. 
 
 1 Inst. 53 b. And in such ease the felling of timber to repair the same is double 
 waste. Ibid. 
 
 , If a house be ruinous at the time of the lease, though the lessee is not 
 
 bound to repair it, yet he may cut trees to repair it. 
 
 1 Inst. 54 b. If the tenant covenants to repair such ruinous houses, he may take 
 trees for it. Bro. Waste, pi. 130, cites 12 II. 8, 1. 
 
 The tenant likewise may dig for gravel or clay for reparation of the 
 house, though the soil was not open when the tenant came in ; and it is 
 justifiable as well as the cutting of trees. 
 
 1 Inst. 53 b. 
 
 So, with regard to a stable, if it fall without default of the lessee in the 
 time of the lessor, the lessee may take trees in the time of the heir to make 
 , a neiu stable, if it be of necessity. 
 Bro. Waste, pi. G7. 
 
 But, if the stable falls in default of the lessee, in time of the lessor, he 
 cannot in time of the heir cut trees to make a new stable. 
 
 Bro. Waste, pi. 67. Issue was taken whether it was well repaired in the time of 
 the plaintiff (the heir) and fell in the time of the plaintiff, in default of the defendant. 
 
 Cutting wood to burn, where the tenant has sufficient hedgeivood, is waste. 
 F. N. B. 59, (M). 
 
 Where lessee for years has power to take hedge-bote by assignment, 
 yet he may take it without assignment ; for the affirmative does not take 
 away the power which the law gives him. 
 
 Dy. 19, pi. 115, Anon. 
 
 If lessor except his trees in his lease, the lessee shall not have fire-bote, 
 
 hay-bote, &c, which he should have otherwise : and the property of the 
 
 trees is in the lessor himself. 
 
 4 Le. 162, pi. 269, Sir Richard Lewkner's case. Upon such reservation waste will 
 not lie against the tenant for cutting trees, because they are not parcel of the thing 
 leased, but trespass lies in such case. Dy. 19, pi. 110 ; IIGoodright v. Vivian, 8 East, 
 190.|| J V 6 
 
 Yet it has been said, that lessee for years, the trees being excepted, has 
 liberty to take the shrowds and loppings for fire-bote ; but if he cuts any 
 tree, it shall be waste, as w ell for the lopping as for the body of the tree. 
 
 Noy. 29, Rich v. Makepeace. 
 
 If a tenant that has fire-bote to his house in another mans land, cuts 
 wood for that intent to take his bote-wood, and the owner of the land 
 takes it away, an action of trover and conversion lies against him by the 
 tenant of the land who hath such fire-bote. 
 
 Clayt. 40, pi. 99, coram Barkley, Anon. 
 
 If the lessor is bound in a bond of 100?., and the lessee cuts tiventy 
 oaks, and sells them, and pays the obligee for his lessor, vet waste lies 
 
 02
 
 438 OF WASTE. 
 
 (G) Who may bring an Action of Waste. 
 
 against him for cutting them down, though the money was applied to the 
 use and profit of the lessor. 
 
 Dy. 36 b, pi. 38, Maleverer v. Spinke. 
 
 If A hath common of estovers in the wood of B for house-bote, and he 
 cuts down four trees for that purpose, and in the working they prove unfit 
 for the use, as for posts of a house, &c, A cannot convert this timber to, 
 any other use, &c, neither can he sell and buy other fit wood with the 
 money ; and he cannot enlarge the house with this timber, nor board the 
 sides of the barn there which had mud walls or the like before. 
 
 Clayt. 47, pi. 81, coram Barkley, Earl of Pembroke's case. 
 
 Where a rent is granted in fee, with a proviso to enter and retain till 
 satisfied of the profits ; the grantee, upon entry, cannot cut trees, or do 
 waste. Per three justices. 
 1 Lev. 171, Jemmet v. Cooley. 
 
 Cutting dead wood is no waste. 
 F. N. B. 59, (M). 
 
 If a man leases land with general words of all mines of coals, where there 
 
 is not any mine of coals open at the time of the demise, and after the lessee 
 
 opens a mine, he cannot justify the cutting of timber trees for the making 
 
 of puncheons, corses, rolls, roll-scoops, and other uteiisils, in and about the 
 
 said mine, though without them he could not dig and get the coals out of 
 
 the mine : and this is like to a new house built after the demise, for the 
 
 reparation of which he cannot take timber upon the land ; and it had 
 
 been waste to open it, if it had not been granted by express words : And 
 
 it was said by Hobart, that the law had been the same if the mine was 
 
 open at the time of the demise. 
 
 Hobart's Rep. C. 296, Ld. Darcey v. Ashwith ; and see Hutt. 19, where the case is 
 more clearly reported. 
 
 jSA tenant in dower may clear woodland assigned to her in dower, with- 
 out being guilty of waste, if she does not exceed the relative proportion 
 of cleared land considered as to the whole tract. 
 
 Hastings v. Crunckleton, 3 Yeates, 261. g( 
 
 (G) Who may bring an Action of Waste. 
 
 By 13 Edw. 1, c. 22, the action of waste is given to one tenant in com- 
 mon against another. (a) 
 
 13 Ed. 1, c. 22. (a) These words include as well joint-tenants as tenants in com- 
 mon, for both of them hold in communi; and so do old books and records term them 
 both. But though the generality of these words do extend to coparceners, yet in good 
 construction they are not within the purview of this act, because they were compellable 
 to make partition ; for this act extends not to them that had remedy by the common 
 law. 
 
 {One tenant in common cannot maintain an action on the case in na- 
 ture of waste against another tenant in common in possession of the whole, 
 having a demise from the first of his moiety, for cutting down trees of a 
 proper age and growth for being cut. 
 
 8 Term, 145, Martyn v. Knowllys. J 
 
 Where there are tenants in common for life, the one shall not have 
 trespass of trees cut against the other, but shall have waste pro indiviso, 
 though they are only tenants for term of life, &c. : but the one may have 
 trespass of corn cut against the other. 
 
 Bro. Waste, pi. 79.
 
 OF WASTE. 439 
 
 (G) Who may bring an Action of Waste. 
 
 IJWhere one of two tenants in common demised to the other his moiety 
 of the lands, of which they were jointly seised, and the tenant in com- 
 mon, lessee, cut down timber of a proper age and growth for being cut ; 
 it was held that the other tenant in common could not maintain an action 
 for waste against him, since the tenant cutting the timber could not be 
 in a worse situation than if the plaintiff had not demised to him. In 
 another form of action the plaintiff might be entitled to recover a moiety 
 of the value of the trees. 
 
 Martin v. Knowlys, 8 Term R. 145. As to injunctions for waste against one tenant 
 in common, see post, (N).|| 
 
 If one coparcener before partition makes feoffment to another, and one 
 of them does waste in the trees, waste lies. 
 11 Rep. 49 a, Liford's case. 
 
 Likewise, if two joint-tenants do waste, and after the one enters into 
 religion, waste lies against the other alone. 
 2 Roll. Abr. 828. 
 
 By the 20 Ed. 1, st. 2, an action of waste is maintainable by the heir 
 for waste done in the time of his ancestors, as well as for the waste done 
 in his own time. 
 
 13 E. 1, st. 2. It is questioned if this is not an ordinance only. See Maynard's 
 Ed. 2, 231,273,274. 
 
 This action must be brought by him that hath the immediate estate 
 and inheritance in fee-simple or fee-tail, but sometimes another may join 
 with him. 
 
 1 Inst. 53 b, 285 a. 
 
 It is said, that the reversion must continue in the same state that it 
 was at the time of the waste done, and not granted over ; for though the 
 reversioner taketh the estate back again, the action is gone, because the 
 estate did not continue. But in some special cases an action of waste 
 shall lie, though the lessor had nothing in the reversion at the time of 
 the waste done ; for if a bishop makes a lease for life or years, and dies, 
 and the lessee, the see being void, doth waste, the successor shall have 
 an action of waste. This is allowed upon a particular reason. A pur- 
 chaser shall have an action of waste, though the statute of 20 Ed. 1, 
 speaks of those that are inheritors. 
 
 1 Inst. 53 b, 35G ; 2 Roll. Abr. 825. 
 
 A tenant for life cannot have this action, but a parson, &c, may have 
 an action of waste, and the writ shall say, ad cxlmrcdationcm ecclesice, 
 for it is the dowry of the church. If a tenant doth waste, and he in re- 
 version dieth, the heir shall not have an action of waste, for waste done 
 in the life of his ancestor : for he cannot say that the waste was done to 
 his disinherison ; neither shall a bishop, master of an hospital, parson, &c., 
 have an action of waste done in the time of their predecessors. 
 
 1 Inst. 341 a ; 1 Inst. 53 b, 356 a. 
 
 If a lease is made to A for life, remainder to B for life, remainder to 
 C in fee ; no action of waste lieth against the first lessee during the estate 
 in the mesne remainder,(a) for then his estate would be destroyed. Other- 
 wise, if B had a mesne remainder for years, for that would be no impedi 
 ment, the recovery not destroying the term of years. 
 
 5 Rep. 67, 77 ; 1 Inst. 54. (a) [But in such case court of equity would interpose 
 by injunction to present waste. Perrot v. Perrot, 3 Atk. 94 ; Robinson v. Litton, Ibid. 
 210; Farrant v. Lovell, Ibid. 723 ;] (6 Yes. J. 787, Davies v. Leo.}
 
 440 OF WASTE. 
 
 (II) Against whom the Action of Waste may be brought. 
 
 If lessee for years committeth waste, and the years expire, yet the les- 
 sor shall have an action of waste for the treble damages, though he can- 
 not recover the place wasted : but, if the lessor accepteth of a surrender 
 of a lease after the waste done, he shall not have his action of waste. 
 It is said, that if a tenant repairs before action brought, he in reversion 
 cannot have an action of waste ; but he cannot plead that he did no waste, - 
 therefore he must plead the special matter. 
 
 1 lust. 285 a, 283 a ; 2 Inst. 306 ; 5 Rep. 119 ; 2 Cro. 658. 
 
 Likewise, by 11 H. 6, c. 5, where tenants for life, or for another's life, 
 or for years, grant over their estates, and take the profits to their own 
 use, and commit waste, they in reversion may have an action of waste 
 against them. 
 
 And so it is of mesne assignees ; the action lies against him that takes the profits ; 
 but this is by the statute of 11 II. 6, c. 5. For in that case the pernor of the profits 
 
 did not hold the land. 2 Inst. 302. If tenant for life or years does waste, and 
 
 grants over his estate, the writ lies against him who did the waste, and not against 
 the grantee. F. N. B. 50, (A). But if the waste be done after the alienation made, 
 then it lies against the tenant. F. N. B. 60, (L) ; but says, tamen qucere. 
 
 He in the remainder as well as the reversion may bring this action, and 
 every assignee of the first lessee, mediate or immediate, is within this act. 
 5 Rep. 77, Paget's case ; 2 Inst. 302. 
 
 £A remainder-man for life only cannot sue for waste ; the plaintiff must 
 be entitled to the inheritance ; a contingent interest is not sufficient. 
 Mayo v. Feaster, 2 M'Cord, Ch. 142. 
 
 A mortgagee of a reversion of an estate in dower, who enters after 
 condition broken, may maintain an action against the tenant for life, for 
 waste committed before his entry. 
 
 Fay v. Brewer, 3 Pick. 203. 
 
 A reversioner may sue a stranger for waste done to the reversionary 
 estate, while in the possession of the tenant. 
 Randall v. Cleaveland, 6 Conn. 328. 
 
 An action on the case in the nature of waste can be brought only by a 
 reversioner, or remainder-man in fee-simple, for tail, for life, or for years. 
 M'Laughlin v. Long, 5 liar. & J. 113. £/ 
 
 (II) Against whom the Action of Waste may be brought. 
 
 It has been said, that there are five writs of waste, two at the common 
 law, as for waste done by tenant in dower, or by guardian ; three by sta- 
 tute, as against tenant for life, tenant for years, and tenant by the curtesy. 
 It has been said, however, that tenant by the curtesy was punishable 
 for waste by the common law, for that the law created his estate as well 
 as that of the tenant in dower, and therefore the law gives like remedy 
 against them. 
 
 1 Inst. 54 a ; 2 Inst. 145, 299, 301, 305. 
 
 But on this subject the authorities in the books are very contradictory, 
 as the reader will perceive by attending to the note subjoined to the fol- 
 ing clause of — 
 
 The statute of Gloucester, 6 E, 1, cap. 5, which enacts that a man 
 from henceforth shall have a ivrit of ivasteia) in the Chancery against 
 him(b) that holds by law oj En gland, (c) 
 
 No action of waste lug before the statute of Gloucester, but against tenant in dower and
 
 OF WASTE. 441 
 
 (H) Against whom the Action of Waste may be brought. 
 
 guardian, and by the statute, action of waste is given against tenant by the curtesy for 
 
 term of life, and tenant for term of years. Bro. Waste, pi. 68. Lord Coke Bays, a 
 
 reason is required, (that seeing as well the estate of the tenant by the curtesy, as the 
 tenant in dower, are created by act in law,) wherefore the prohibition of waste did not 
 lie as well against the tenant by curtesy as the tenant in dower at the common law ; 
 and the reason he assigns is this, for that by having issue the state of the tenant by the 
 curtesy is originally created, and yet after that he shall do homage alone in the life of 
 his wife, which proves a larger estate ; and seeing that at the creation of his estate he 
 might do waste, the prohibition of waste lay not against him after his wife's decease ; 
 but in the case of tenant in dower, she is punishable of waste at the first creation of 
 
 her estate. 2 Inst. 145. But 2 Inst. 299, says, that at the common law waste was 
 
 punishable in three persons, (viz.,) tenant in dower, tenant by the curtesy, and the 
 guardian, but not against tenant for life, or tenant for years ; and the reason of the 
 diversity was, for that the law created their estates and interest ; and therefore the 
 law gave remedy against them, but tenant for life and for years came in by demise 
 and lease of the owner of the land, &c, and therefore he might in his demise provide 
 against the doin°; of waste by his lessee ; and if he did not, it was his negligence and 
 
 default. (a) Neither this act, nor the statute of Marlebridge, doth create new hind 
 
 of wastes, but gives new remedies for old wastes ; and what is waste, and what not, 
 must be determined by the common law. 2 Inst. 300, 301. j3 The statute of Gloucester, 
 6 Ed. 1, c. 5, is in force in Massachusetts so far as to give an action against the tenant 
 for life for the recovery of the place wasted, and treble damages ; except in respect to 
 tenants in dower, respecting which the law has been altered by statute. Sackett v. 
 
 Sackett, 8 Pick. 309. £f (6) If two are joint-tenants for years or for life, and one of 
 
 them does waste, this is the waste of them both as to the place wasted, notwithstand- 
 ing the words of the act are (him that holds). 2 Inst. 302. (c) Here tenant by the 
 
 curtesy is named for two causes. 1st, For that albeit the common opinion was that 
 an action of waste did lie against him, yet some doubted of the same in respect of this 
 word (tenet) in the writ, for that the tenant by the curtesy did not hold of the heir, 
 but of the lord paramount ; and after this act, the writ of waste grounded thei-eupon 
 (loth recite this statute. 2dly, For that greater penalties were inflicted by this act 
 than were at the common law. 2 Inst. 301. 
 
 Or (a) otherivise for term of life, or for term of years, or a woman (b) 
 in doiver. 
 
 (a) A lessee for his own life, or for another man's life, is within the words and 
 meaning of this law, and in this point this act introduces that which was not at the 
 common law. 2 Inst. 501. [In this point, with deference to the high authority of Lord 
 Coke, the act does not introduce that which was not at the common law ; for tenant for 
 life was punishable for waste at common law, as may be seen in Bracton, lib. 4, c. 
 
 18.] If feme lessee for life takes husband, the husband does waste, the wife dies, the 
 
 husband shall not be punished by this law; for the words of this act be, (a man that 
 holds, &c, for life,) and the husband held not for life ; for he was seised but in right 
 
 of his wife, and the estate was in his wife. 2 Inst. 301. He that hath an estate for 
 
 life by conveyance at common law, or by limitation of 'use, is a tenant within the statute. 
 
 2 Inst. 302. Tenants for years of a moiety, 3d or 4th part, pro indiviso, are within 
 
 this act ; and so it is of a tenant by the curtesy, or other tenant for life of a moiety, &e. 
 
 2 Inst. 302. (b) This is to be understood of all the five kinds of dowers whereof 
 
 Littleton speaks, viz., dower at common law, dower by the custom, dower ad ostium 
 ecclcsio?, dower ex assensu patris, and dower de la pluis beale; and against all these 
 
 the action of waste did lie at the common law. 2 Inst. 303. If tenant in doiver be 
 
 of a manor, and a copyholder thereof commits waste, an action of waste lies against 
 tenant in dower. 2 Inst. 303. 
 
 Action of waste lies against an occupant for life, because he has the 
 estate of the lessee for life, and holds for life, as the statute mentions. 
 6 Rep. 37 b, Dean and Chapter of Worcester. 
 
 If lessee for life be attainted of treason, by which the lease is forfeited 
 to the king, who grants it over to J S, and he afterwards do ivaste, though 
 he come in en le post, yet action of waste lies against him. 
 
 2 Roll. Abr. 826. 
 
 So, if a man disseise the tenant for life, and do ivaste, yet action of 
 
 Vol. X.— 56
 
 442 OF WASTE. 
 
 (II) Against whom the Action of Waste may be brought. 
 
 waste lies against the tenant for term of life; for he may have his remedy 
 over against the disseisor. 
 
 Bro. Waste, pi. 138. 
 
 ^Neither a devisee of an estate-tail, nor of a contingent fee with an 
 executory devise over, has any power to waste or destroy the inheritance. 
 
 Wellington v. Taylor, Sax. Ch. R. 314.£f 
 
 Likewise, if an estate be made to A and his heirs, during the life of 
 B, A die, the heir of A shall be punished in an action of waste. 
 
 1 Inst. 54 a, (s). 
 
 But an action of waste does not lie against tenant by statute merchant, 
 elegit, or staple, because it is not an estate for life or years, and the statute 
 mentions those who hold in any manner for life or years. Contra Fitzh. 
 Na. 58, EL, and there said, that in the register is a writ against him. 
 
 6 Rep. 37, Dean and Chapter of Worcester ; F. N. B. 58, (II), and in the new 
 notes there (a) cites 21 E. 3, 26, that a scire facias was brought against a tenant by 
 elegit, who had cut trees to pay the residue of the money to answer for the trees cut, and 
 for the plaintiff to have his land again; per curiam. By the statute against cutting 
 trees, this is in the nature of a trespass, and lies not in account, nor is he punishable 
 in waste, but in an action on the case. — Waste lies not against tenant by elegit, but 
 writ of account. Bro. Waste, pi. 78. 
 
 Some books give the reason of it to be, because the conusor, if he com- 
 mits waste, may have a venire facias ad computandum, and the waste 
 shall be recovered in the debt. 
 
 Fitz. Na. 58 b, (II). If such tenant cuts timber it sinks the debt, and the conusor 
 may have scire facias ad computandum, 3 Mod. 93, Arg. in the case of the mayor and 
 commonalty of Norwich v. Johnson. 
 
 If a man makes a lease for years, and pats out the lessee, and makes a 
 lease for life, and the lessee for years enters upon the lessee for life, and 
 does waste, the lessee for life shall not be punished for it. 
 
 2 Inst. 303. 
 
 If lessee for years makes a lease of one moiety to A, and of the other 
 moiety to B, and A does waste ; the action shall be against both ; for the 
 waste of the one is the waste of the other. 
 
 Brownl. 238, Anon. 
 
 An action of waste lies against a devisee, and the writ may suppose it 
 ex legatione ; for it is within the equity of the statute. 
 
 Bro. Waste, pi. 132. 
 
 No action of waste lies against guardian in socage, but an account or 
 
 trespass. 
 
 1 Inst. 54, S. P. contra F. N. B. 59, (E), and 2 Inst, 135, says, the heir within age 
 shall have an action of waste against the guardian in socage. — But F. N. B. 59 (E), 
 in the new notes there, (<7) it is said, that the heir in this case shall have account or 
 trespass, but not waste. — And Ibid. (A), in the new notes there (d). Note, waste 
 does not lie against the guardian in socage, but only account or trespass, according to 
 
 the nature of the waste, and says it was adjudged 16 E. 3. If guardian in socage in 
 
 right of his wife does waste, the writ shall be against the husband only. Brownl. 239. 
 
 If an estate of lands be made to baron and feme, to hold to them during 
 the coverture, &c, if they waste, the feoffor shall have writ of waste 
 against them. 
 
 Litt. sect, 381. 
 
 If feme lessee for life marries, and the husband does waste, action lies 
 against both. 
 
 2 Roll. Abr. 827.
 
 OF WASTE. 443 
 
 (H) Against whom the Action of Waste may be brought. 
 
 And, if in the above case, the husband dies, action of waste lies against 
 the ferae for the waste he committed. 
 2 Roll. Abr. 827 
 
 But if tenant in dower marries, and the husband does waste and dies, 
 the feme shall not be punished for this. 
 
 2 Roll. Abr. 827. 
 
 Likewise, if baron and feme are lessees for life, and baron does ivaste, 
 
 and dies, the feme shall be punished in waste, if she agrees to the estate. 
 
 2 Roll. Abr. 827 ; 1 Inst. 54 ; Kelw. 113, pi. 42.— Though there have been variety 
 of opinions in our books. She shall be punished by the waste done by her husband 
 in like manner as if a stranger had done it ; and after the death of her husband she is 
 
 in from the lessor. 2 Inst. 303. The feme shall not be punished for this waste ; 
 
 per Ilanke. Bro. Waste, pi. 58 ; Bro. Waste, pi. 138, says, that waste does not lie 
 against the feme. But says, quaire, If this be not the waste of both ; and says, so see 
 where there is folly in the feme, and where not. [Quaere, If this does not mean by 
 her agreeing to the estate after the baron's death.] 
 
 But if she waives the estate, she shall not be charged. 
 2 Roll. Abr. 827. 
 
 So, upon lease for years made to the baron and feme, waste lies against 
 both. 
 
 2 Roll. Abr. 827. 
 
 And, if baron and feme are joint lessees for years, and baron does 
 ivastc, and dies, action of waste lies for this against the feme. 
 2 Roll. Abr. 827. 
 
 Upon lease for life to baron and feme, waste lies against both. 
 Roll. Abr. 827. 
 
 Likewise, iifefne commits waste and then marries, the action shall be 
 
 brought against both. 
 
 2 Roll. Abr. 827. And the writ may be quod fecerunt vastum, or quod uxor, dum 
 sola fait, fecit vastum. Bro. Waste, pi. 55. 
 
 If baron, seised for life of his wife in right of his wife, does waste, 
 
 and after the feme dies, no action of waste lies against the baron in the 
 
 tenuit, because he was seised only in right of his wife, and the franktene- 
 
 ment was in the feme. 
 
 1 Inst. 54 ; 5 Rep. 75 b, resolved per tot. cur., Clifton's case, that the writ does not 
 lie ; and the reporter says, Nota reader, This judgment given upon consideration of 
 the statute of Gloucester, and of opinions obiter in 10 II. G, 11 & 12, by Strange and 
 Cottesmore ; S. C. cited by Treby, C. J., Lutw. 674, Baron v. Barkley ; and said the 
 reason is, because it cannot be said that the baron tenuit ex dimissione, according to 
 the words of the statute. 
 
 But if baron, possessed for years in right of the feme, does waste, and 
 after the feme dies, action of waste lies against the baron, because the 
 law gives the term to him. 
 
 1 Inst. 54. 
 
 A made a feoffment in fee to the use of himself and his wife, and to 
 his heirs ; there were underwoods on the lands, which were usually cut 
 at twenty-one years' growth ; A suffered them to groiv twenty-jive years, 
 and then died. Per tot. cur. — This shall bind the wife ; for where the 
 law limits a time for tenant for life to fell underwood, if it be not felled 
 in that time, it shall not be felled by a tenant for life afterwards, but it 
 shall be waste. 
 
 Godb. 4, 5, pi. G, Anon.
 
 444 OF WASTE. 
 
 (II) Against whom the Action of Waste may be brought. 
 
 Lessee for years of lands bought trees, ivith liberty to cut them doiun 
 within eighty years : afterwards the lessee bought the inheritance, and 
 devised to his wife for life, remainder to the plaintiff in fee, and made his 
 wife executrix, and died : she cut down the trees : adjudged, that an action 
 was maintainable ; for though the trees were once chattels in the lessee, 
 yet by purchasing the inheritance they are again united to the land. 
 
 Ow. 49, Anon. 
 
 If the king commits the wardship of the heir in ward unto another, and 
 the committee does waste, then, upon a surmise made thereof in Chancery, 
 the king shall send a writ unto the escheator to go to the land and see 
 if waste be done, and to certify the king thereof in the Chancery. 
 
 F. N. B. 50, (B). 
 
 If ' escheators commit waste in lands which they have in their hands in 
 custody, the heir within age, or of full age, shall have an action of waste, 
 .and -shall recover treble damages against them, and they shall suffer im- 
 prisonment two years at the least, at the king's pleasure. And so if 
 'escheators commit waste in other lands, seised into the king's hands by 
 .inquest of office. 
 J?. N. B. 59, (B). 
 
 And escheators, or other guardians of lands, in the vacation of the tem- 
 poralities of bishoprics, shall do no waste, &c. 
 
 F. N. B. 59, (B). ' 
 
 Pending a quare impedit, if the incumbent cuts trees upon the glebe, 
 :and upon the lands of copyholders of a manor, parcel of the rectory, a 
 •prohibition lies. 
 
 Hob. 30, pi. 51, Drury v. Kent. 
 
 A prohibition is awardable against any one who wastes the houses of 
 dhe parson incumbent, or cuts the trees, or does any waste. Agreed by 
 .all the justices. 
 
 Mod. 917, pi. 1303, Saccar's case. The prohibition of waste was abrogated, and the 
 .action of waste framed upon the act of Westm. 2, (c. 14,) as in the register appears. 
 :2 Inst. 140. 
 
 If tenant by the curtesy, or other tenant for life, make a lease for 
 years, and he in the reversion confirm it, and tenant by the curtesy die, 
 an action of waste lies against the lessee. 
 
 2 Inst. 302. 
 
 But if tenant by the curtesy grant over his estate, and the grantee 
 commit waste, the action of waste ought to be brought against the tenant 
 by the curtesy by the heir, and thereby he shall recover the land against 
 the assignee, for the privity, which is between the heir and the tenant 
 by the curtesy. 
 
 1 Inst. 54 ; Le. 291, pi. 397, S. P. ; 2 Inst. 301. 
 
 So, if tenant in dower grant over her estate, and after the grantee 
 commit waste, yet an action of waste lies againt the tenant in dower, for 
 the privity between them. 
 
 2 Roll. Abr. 828 ; 2 Inst, 301.— S. P. 3 Rep. 23 b, in Walker's case. The reason 
 wherefore, at the common law, the action of waste did lie against the tenant in dower, 
 or tenant by the curtesy, albeit they had assigned over their estates, was, because no 
 action of waste, by the common law, lay against (lie assignee for icaste done after the as- 
 signment; therefore the action of necessity did. for such waste, (after the assignment.) 
 lie against the tenant by the curtesy, or tenant in dower. 2 Inst. 300. And it lies
 
 OF WASTE. 445 
 
 (II) Against whom the Action of Waste may be brought. 
 
 against her, and not against the grantee, for the grantee cannot be tenant in dower ; 
 and confirmation by the heir to the tenant in dower is no bar in this action ; because it 
 
 shall not change her estate. Bro. Waste, pi. 76. Where the husband levied afnc, 
 
 and took back an estate for life, remainder to his son in tail, and died; and the son en- 
 dowed the mother, who assigned over the estate ; it was nevertheless adjudged, that waste 
 lay against her as tenant in dower. F. N. B. 55, (E), in the new notes there («). 
 
 But if tenant by the curtesy, or tenant in dower, grant over their 
 estate, and grantee do waste, and the heir, either before or after the as- 
 signment, grant the reversion over, the stranger shall have action of 
 waste against the assignee, because the privity is destroyed. 
 
 1 Inst. 54.— S. P. 3 Rep. 23 b, in Walker's case.— F. N. B. 56, (E), S. P. For one 
 cannot hold by the curtesy, but of the heir, &c. — He can hold of none but the heir, 
 and his heir by descent. 1 Inst, 316 a. — But if feoffee of the baron endow the feme, 
 and she assign over the estate, waste lies for him against the wife ; for the plaintiff 
 shall not suppose in his writ, that she held in dower of him ex assignations, but only 
 that she held in dower of his heritage. F. N. B, 56, (E), in the new notes there (a). 
 
 If lessee for life grant over his estate upon condition, and after the 
 grantee commit waste, and grantor enter for the condition broken, he 
 cannot be charged for the waste committed by the grantee. 
 
 1 Inst. 54. The action shall be brought against the grantee. And so it is in case of 
 tenant for years. 2 Inst. 302. — And the place wasted shall be recovered. 1 Inst. 54a. 
 
 So, if lessee for life make feoffment upon condition, and the feoffee com- 
 mit waste, and after the lessee re-enter for the condition broken, an action 
 of waste does not lie against him for the waste committed by the feoffee. 
 
 2 Roll. Abr. 828 ; contrd, 39 Ass. 15, by Tank. 
 
 If tenant for life ivithout impeachment of waste lease for years, or other- 
 wise, and lessee for years commit waste, he in remainder in fee shall not 
 have an action of waste ; for this lease was derived out of the privileged 
 estate for life ; and if waste lay, it should be brought against the tenant 
 for life, who made the lease, and he was dispunishable. 
 
 Sir W. Jo. 51, pi. 2, Bray v. Tracy. 
 
 If there be lessee for life, remainder in tail, remainder infeeto the lessee, 
 and he do waste, he in remainder in tail shall have an action of waste. 
 2 Roll. Abr. 828. 
 
 If lessee for life and for years commit waste, and die, his executor 
 shall not be charged for it. 
 
 2 Roll. Abr. 828, contra, 46 E. 3, 31 b, admitted ; Bro. Waste, pi. 48. A tenant 
 for life is liable for waste committed by a trespasser. Fay v. Brewer, 3 Pick. 203 ; 
 White v. Wagner, 4 Har. & J., 373.0 
 
 But a condition in a lease not to do waste, extends to the assignee, without 
 naming him, and that as inherent to the land. 
 Clayt. Rep. 126, 127, pi. 125, Ward v. Waddington. 
 
 If lessee for 100 years grant part of his term to another, and he commit 
 waste, the action shall be brought against the first lessee. 
 
 Brownl. 238, Anon. j3 An action on the case, in the nature of waste, lies against 
 the assignees of a lessee. Short v. Wilson, 13 Johns. 33.0 
 
 Lessee for years made a lease of one moiety to A, and of the other moiety 
 to B. — A does waste — the action shall be against both ; for the waste of 
 the one is the waste of the other. 
 
 Brownl. 238, Anon. 
 
 B, lessee for years r the reversion to A in fee : B assigned all his term and 
 
 2P
 
 446 OF WASTE. 
 
 (II) Against whom the Action of Waste may be brought. 
 
 interest to J S, reserving all trees growing and being on the lands, and 
 afterwards he committed waste in cutting down the trees ; A brought an 
 action against J S, and it was disputed whether the action would lie. It 
 seemed agreed, that if the reservation was good, then the action would lie 
 against the assignee ; but to prove it void, it was insisted, that what a man 
 cannot grant he cannot reserve ; so that because the lessee cannot grant the 
 trees he cannot reserve them. As to the point of law the court was divided. 
 Goldsb. 03, pi. 23, Foster's case. If tenant for years or for life assigns over his 
 lease for years, or estate for life, excepting the timber trees, and after waste is done 
 in felling down the trees, the action of waste is maintainable against the assignee, for 
 as to the lessor they are not severed from the land. 2 Inst. 302. 
 
 But the action of waste does not lie against tenant at will. 
 
 Bro. Waste, pi. 52, who says, that case lies, but not waste. — If tenant at toill to him 
 and his heirs, according to the custom, or another tenant at will cuts trees, action of 
 waste does not lie, but trespass. Per Ascough, J., which was not denied by the other 
 justices, but it is not expressed whether he shall have trespass vi et armis. Bro. 
 Trespass, pi. 147. — Tenant at will cut down trees, lessor brought trespass vi et armis 
 against him, and held good, and judgment accordingly. 4 Le. 107, pi. 271, Walgrave 
 v. Somerset. — Because otherwise he shall have no action, for waste is not maintain- 
 able ; 1 Inst. 57 a. It lies not against tenant at will for permissive waste, either by 
 common laio or by statute. Arg. Show. 315, Cunlip v. Rundle. {An action on the 
 case does not lie against him for permissive waste. 4 Bos. & Pul. 290, Gibson v. Wells.} 
 || See Gibson v. Wells, 1 New II. 290 ; Harne v. Benbow, 4 Taunt. 764; Jones v. Hill, 
 7 Taunt. 392; sed vide 2 Saund. 252, n. 7, contrd. || 
 
 Nor, according to some, against lessee for a year, {a) though the statute 
 mentions years. 
 
 2 Roll. Abr. 828, contra, 48 E. 3, 25. It lies against lessee for a year, and so from 
 year to year. Bro. Waste, pi. 52. [a) S. P., or for half a year. 2 Inst. 302. And so 
 though he holds only for twenty weeks. Plow. C. 467. 
 
 || An action on the case, in nature of waste, lies against the tenant for 
 acts done after the expiration of a notice to quit. 
 Burchell v. Hornsby, 1 Camp. 360. 
 
 J3 A mortgagee in possession may be charged with, and made to account 
 for waste. 
 
 Ilawlings v. Stewart, 1 Bland, 22.0 
 
 1. Against whom it may be brought for Waste done by a Stranger. 
 
 If a stranger commits waste, yet an action of waste lies against the 
 lessee, for in a trespass he shall recover his damages against the stranger. 
 
 49 E. 3, 26 b. The statute of Marlebridge prohibits farmers doing waste, and yet 
 if they sutfer a stranger to do waste, they shall be charged with it ; for it is presumed 
 in law, that the fanner may withstand it, et qui non obsfat quod obstare potest, face-re ' 
 videtur. || Attersoll v. Stevens, 1 Taunt. 196. || 2dly, The law does give to every man 
 his proper action, so as none be without due remedy ; and therefore, in this case, the 
 lessor shall have his action of waste against the lessee, and the lessee his action of 
 trespass against him that did the waste ; and so the loss, as reason requires, in the 
 end shall be upon the wrong-doer ; and if the lessor should not have this action of 
 waste, he should be without remedy. 2 Inst. 145, 146. 
 
 So, if a stranger disseises lessee and commits waste, waste lies against 
 lessee for this, for he shall have his remedy against the stranger. 
 
 44 E. 3, 27 b. And the lessor cannot, in such case, have trespass against the dis- 
 seisor. Bro. Waste, pi. 37, cites S. C. 
 
 If a man, who has common of estovers of land in lease, does waste in 
 cutting such wood as he ought not, action of waste lies against lessee for it;
 
 OF WASTE. 447 
 
 (II) Against 'whom the Action of Waste may be brought. 
 
 for it seems he may have trespass against commoner, for he is as a mere 
 stranger for this. 
 46 E. 3, 27 b. 
 
 A guardian shall not be punished in waste for waste done by a stranger. 
 F. N. B. 60. 
 
 If lessee for life leases for years, and lessee for years does waste, waste 
 lies against lessee for life. 
 49 E. 3, 26 b. 
 
 Tenant by the curtesy and tenant in dower shall be punished for waste 
 done by a stranger. 
 
 1 Inst. 54 a. For he in the reversion cannot have any remedy but against the 
 tenant, and the tenant shall have his remedy but against the wrong-doer, and recover 
 all in damages against him ; for voluntary waste and permissive waste is all one to 
 him that hath the inheritance. But, if the waste be done by the enemies of the king, 
 the tenant shall not answer for the waste done by them, for the tenant has no remedy 
 over against them. 2 Inst. 303. 
 
 If two are joint-tenants of a ward, and the one does waste, both shall 
 be punished in an action of waste. 
 
 1 Inst. 54 a; 2 Inst. 305, cites 3 E. 3, 18. So of waste done by one, both shall be 
 attainted for it. See 2 Inst. 303. 
 
 I] If there are two joint-tenants for life or years, and one of them com- 
 mits waste, this is deemed waste by both as to the place wasted ; but 
 treble damages shall be recovered only against the person who actually 
 committed the waste. 
 
 2 Inst. 302, Cru. Dig. tit. xviii. c. 1, § 63 ; Co. Lit. 54 a.|| 
 
 An infant shall be punished in an action of waste for waste done by 
 a stranger. 
 1 Inst. 54 a. 
 
 Baron and feme shall likewise be punished in waste for waste done by 
 
 a stranger. 
 
 1 Inst. 54 a. If an infant is tenant by the curtesy or lessee for life or years, he 
 shall answer for the waste done by a stranger, and have his remedy over ; though some 
 have holden the contrary. And so it is in case of a feme covert ; for the privilege of 
 coverture and infancy, in this case, shall not prevail against the wrong and disherison 
 done to him that has the inheritance, especially when they have their remedy over, 
 and the estate is of their own purchase or taking. 2 Inst. 303. 
 
 If baron, possessed of a lease for years in right of his feme, commits 
 waste, and after the feme dies, action of waste lies against the baron, 
 because the law gives the term to the baron. 
 
 1 Inst. 54 a. 
 
 If thieves burn the house of tenant for life without any default of 
 lessee for life in keeping his fire, the lessee shall not be punished for it 
 in an action of waste. 
 
 2 Inst. 303, cites as adjudged in 9 E. 3. 
 
 A termor shall be punished for waste done by a stranger. 
 F. N. B. 60, (G) ; || 1 Taunt. 196, 201.|| 
 
 2. How far it lies against Executors, dx. 
 
 Waste lies against one executor alone, without naming his companion, 
 if the waste was done by him alone. 
 2 Inst. 302. 
 
 If termor does waste, and makes executors and dies, the action of
 
 448 OF WASTE. 
 
 (I) At what Time an Action of Waste may be brought. 
 
 ■waste is lost, for it docs not lie against the executors, but for waste done 
 by themselves, and not for the waste of the testator ; for it is as a tres- 
 pass, which is an action personal, which dies with the person. 
 
 Bro. Waste, pi. 138 ; S. P., 2 Inst. 302. It is the same in case of administrators. 
 "Went. Off. of Exec. 127. But Brownl. 239, says, that an action of waste lies against 
 executors for waste done by testator. 
 
 Executor de son tort of a term is chargeable in waste. 
 
 3 Lev. 35, Mayor, &c, of Norwich v. Johnson, S. C. 3 Mod. 90, it was objected in - 
 error, that if the plaintiff is entitled to this action, it must be by the statute of Glou- 
 cester ; but that it will not lie against the defendant even by that statute, because the 
 action is thereby given against the tenant by the curtesy, in dower, for life or years, 
 and treble damages, &c, and that the defendant is neither of these ; and that it being 
 so penal a law shall be taken strictly. Butter cur. — This is a remedial as well as a 
 penal law, and therefore shall have a favourable construction. And the judgment 
 was affirmed. 
 
 (I) At what Time an Action of Waste may be brought. 
 
 When the reversion is devested, the lessor cannot have an action of 
 waste, because the writ is, that the lessee did waste ad ezhceredationem 
 of the lessor, and that inheritance must continue at the time of the action 
 brought. 
 
 1 Inst. 356 a. 
 
 If a man brings an action of waste, and dies before any recovery, his 
 
 heir shall not have an action for the same waste, because the damages 
 
 do not belong to him. Contra 20 E. l,(a) Liber Parliamentarism 33 6, 
 
 adjudged in parliament upon debate, and there commanded to the 
 
 justices henceforth to do accordingly in such case. 
 
 [(a) That is, the statute of 20 E. 1, c. 4 ; which statute is an authoritative decision 
 in parliament of a point arising in a cause then pending in the bench; upon Avhich 
 occasion the parliament not only declared how the law should be held in future, but 
 likewise directed the justices to proceed in that manner in the case then before them. 
 Note : This act is not to be found either upon the parliament rolls, or among the 
 statute rolls.] Lord Coke says, upon the statute of Gloucester, cap. 5, it has been 
 received for a certain rule, that if waste be committed, and he in the reversion die, 
 the action of waste fails, for that the heir cannot recover damages for the waste in the life 
 of the ancestor, and the waste was not done to the disinheritance of the heir ; and yet 
 the law extends the action of waste favourably, as much as with convenience may be, 
 lest waste which is hurtful to the commonwealth should remain unpunished. 2 Inst. 305. 
 
 If lessee for years does waste, and after lessor enters upon him by tort, 
 
 he shall not have an action of waste against him during his own seisin, 
 
 before re-entry by the lessee ; because the action ought to be in the tenet. 
 
 Bro. Waste, pi. 84 ; F. N. B. GO, (L), in the new notes there (6), says, the action is 
 suspended, and cites S. C. 
 
 If lessee for life does waste, and after aliens in fee, and lessor enters 
 for forfeiture, yet he shall have an action of waste against lessee ; for 
 peradventure if he had not entered he should be disinherited. 45 E. 3, 
 b ; 14 H. 8, 14 ; 8 H. 6, 10. (It seems in those cases he may have his 
 action in the tenet; then it is clear that it lies.) 
 
 Bro. Waste, pi. 42, cites S. C. per Finchden, that the reversioner shall not have 
 action of waste after his entry for waste done before the alienation. (In that case the 
 action was brought in the tenant.) 
 
 If tenant in dower leases for her life to him in reversion within age, 
 who never took the profits, but at full age disagrees to the lease ; he may 
 have an action of waste for waste in the mean time. 
 
 30 E. 3, c. 1G. So, if she leases to the heir within age, and a stranger, rendering rent
 
 OF WASTE. 449 
 
 (I) At what Time an Action of Waste may be brought. 
 
 on condition of re-entry for non-payment of rent. F. N. B. 55, (E), in the new notes 
 
 (a). But if at the time of, or during the waste done, the heir takes any of the 
 
 profits, the waste is dispunishable. F. N. B. 55, (E), in the new notes (a). 
 
 If, after waste done, the lessor grants over the reversion in fee, and 
 retakes it, yet lie shall not have an action for the said waste. 
 
 1 Inst. 53 b. 
 
 So, if after the waste done, the lessor grants over the reversion, and 
 retakes it to him and his feme, and to his heirs ; yet he shall not have 
 an action for the said waste, -because the estate, which was privy to the 
 waste committed, is altered. 
 
 1 Inst. 53 b. 
 
 If lease be made for life, the remainder for years, an action of waste 
 lies against lessee for life, notwithstanding the remainder for years ; for 
 de minimis non curat lex. 
 
 3 Roll. Abr. 829 : 1 Inst. 54. S. P. For the recovery therein shall destroy the term 
 far years. 2 Inst. 301 ; F. X. B. 59, (II). 
 
 But, if there be lessee for life, remainder for life, action of waste 
 does not lie during the continuance of the mesne remainder. 
 
 2 Boll. Abr. 829. But in such case an injunction has been granted out of Chancery. 
 
 Mo. 554, pi. 748, Anon., [and 3 Atk. 94, 210, 723.] Bro. Waste, pi. 5G, cites S. C. 
 
 where Persay held it did not lie ; but Belknap contra. But Broke says, that the law 
 
 at this day seems to be with Persay. For if he should have an action against the 
 
 first lessee, then the estate of him in remainder shall be destroyed ; and such con- 
 struction must be made to preserve the estate of a stranger, who is in no fault ; but 
 if remainder-man for life dies, then the waste is punishable as well before as after 
 his death. 2 Inst. 301. 
 
 So, if there be lessee for life, the remainder for life, the remainder in 
 fee to another, he in remainder shall not have an action of waste against 
 the first lessee, during the continuance of the remainder for life. 
 
 1 Inst. 54; F. N. B. 58, (C), says that it lies notwithstanding; and at 59, (II) r 
 savs, it appears by the register that the writ is maintainable, though the mesne re- 
 mainder-life be between the tenant for life and him in reversion. So, if remainder- 
 man for life surrenders his estate to him in the remainder or reversion in fee. 5 Rep. 
 
 70 b, Paget's case. And F. N. B. 58, (C), in the new notes {b), says, that waste 
 
 does not lie till after the death or surrender of the particular estate. And 1 Inst. 54 
 a,(<), says, that where it is said in the register, and in F. N. B., that waste does lie, 
 
 it is to be understood after the death or surrender of the mesne remainder. But 
 
 though he that has the inheritance cannot have action of waste during the life of the 
 remainder-man for life; yet it was resolved, that he may seize timber trees cut down 
 by the tenant for life ; and also that a trover and conversion would lie for all of them, 
 though he never seized parcel of them: for by the cutting them down an absolute 
 property is vested in the plaintiff, unless they had been cut down for reparations, and 
 
 so employed in convenient time. All. 81, 82, &c, Udall v. Udall. And Rolle was 
 
 of opinion, that an action of trover would lie for the reversioner against tenant in 
 tail, after possibility of issue extinct ; and he declared he was himself of that opinion, 
 because he had only an impunity if he committed waste, but no interest in the trees. 
 P. 10 Rep. 44 b, Jenning's case. 
 
 But, if there be lessee for life, the remainder for life, after the death 
 of the remainder-man, an action of waste lies against lessee for waste 
 committed during the continuance of the remainder. 
 
 2 Roll. Abr. 829, contra, ; 50 E. 3, 4. So, where a lease is made for years, re- 
 mainder for life, the remainder in fee ; and lessee for years does waste, and then the 
 lessee for life in remainder dies, the remainder-man in fee shall have waste, for waste 
 done during the mesne remainder for life. Mo. 18, pi. 64, Anon. 
 
 Likewise, if a feme, lessee for life, marries, and after lessor confirms the 
 estate of the baron to have for his life, by which the baron has a reversion 
 Vol. X.— 57 2 p 2
 
 450 OF WASTE. 
 
 (I) At what Time an Action of Waste may be brought. 
 
 for life ; yet, if waste be committed after, the action lies against baron 
 and feme, and this reversion is not any impediment. 
 
 2 Roll. Abr. 829 ; 1 Inst. 299 b, S. P. Because the baron himself did the waste 
 and the wrong, and therefore shall not excuse himself for doing the waste, in respect 
 that he himself has the remainder. 
 
 If lessee for life and for a year after commits waste, an action of waste 
 lies against him. 
 
 2 Roll. Abr. 829. A defendant pleaded that the lease was to him, his heirs, and 
 assigns for life, and a year after, and demanded judgment of the writ. But Thorp 
 said, that in this case the plaintiff could not have other writ than what he had, and 
 that defendant might save his estate by protestation ; and so he did, and pleaded 
 mil waste done. Bro. Waste, pi. 101. 
 
 If a man leases for life, and after grants the reversion^ for years, and 
 ••after lessee for life commits waste, no action of waste lies against him 
 •during the term for years. 
 
 1 Inst. 54 a. For he himself has granted away the reversion in respect whereof he 
 is to maintain the action. Id. ibid, and 273 a. 
 
 But, if a man leases for life or for years, and after grants a lease to 
 commence after the end of the first estate, an action lies against the first 
 lessee, notwithstanding this future interest : and the term shall be saved 
 in this case. 
 
 1 Inst, a, 54. 
 
 If there be a feoffee of land upon condition, and the feoffor enter, and 
 do trespass, and afterwards the condition be broken, and the feoffor enter, 
 yet the feoffee shall have an action of trespass against the feoffor, notwith- 
 standing that he hath not the land wherein the trespass was done. 
 
 Perk. I 97. 
 
 Where a lease is made to the husband and ivife for life or years, there 
 the wife shall not be punished after the death of her husband for ivaste 
 done by the husband. 
 
 F. N. B. 59, (J). 
 
 If a man leases to A during the life of B, the remainder to him during 
 the life of C, if he commits waste an action of waste shall lie against him. 
 
 1 Inst. 299 b. So, if a lease fee made to A for his life, the remainder to A for the 
 life of B, if A does waste, an action of waste doth lie against him ; for the wrong- 
 doer hath both the estates in him ; and of that opinion was Sir James Dyer, C. J. 
 2 Inst. 301. 
 
 But, if there be a lease for years or life, remainder to a baron and feme 
 in special tail, and lessee do waste, and the feme die toithout issue ; the 
 baron shall not maintain any action upon the statute. 
 
 Mo. 18, pi. 64, Anon. But Brown said, that if the remainder be limited over to the 
 baron and his heirs, and the feme die after the waste done, the baron (as he apprehends) 
 shall have action for this waste done in the life of his feme, because the estate of tenant 
 in tail after possibility is drowned in the inheritance. But Dyer denied it. Id. ibid. 
 
 If lessor covenants with lessee not to bring action of ivaste during two 
 years against him, and after, during the two years, lessee does waste ; 
 lessor may, after the expiration of the two years, bring action of waste 
 for the waste done within the two years ; for the covenant is no dispensa- 
 tion as to the waste, as it was said, but only with his complaint during 
 the two years. 
 
 Mo. 18, pi. 64, Anon. But otherwise it is, where one makes a lease for two years 
 dispunishable of waste; for there he has dispensed with the waste, and not with the 
 action only. Id. ibid., Anon.
 
 OF WASTE. 451 
 
 (K) Of the Processes and Proceedings in Actions of Waste. 
 
 If lessee for life without impeachment of waste, and reversioner, join 
 in a lease for years, lessee is dispunishable of waste during the life of the 
 tenant for life, but after his death he is punishable ; for, as Dyer and Brown 
 Baid, though at first it should be said to be the lease of tenant for life, 
 and the confirmation of him in reversion, yet by such death it is altered 
 into another nature, and shall be said the lease of him in reversion. 
 
 Mo. 72, pi. 196, Nudigate's case. 
 
 A seised in fee makes a lease for years, and afterwards conveys the 
 reversion to the use of himself for life, without impeachment of waste, 
 remainder in fee : lessee for years commits waste : he shall not have the 
 privilege to be dispunished of waste ; but after the death of him in rever- 
 sion for life he shall be punished. 
 
 Sir W. Jo. 51, pi. 2 ; Bray v. Tracy, Cro. Ja. 688, pi. 4, S. C, but that is only upon 
 the point of a lease for years to A, remainder for life without impeachment of waste 
 to B, remainder in tail to C, but saying nothing of the conveyance subsequent to the 
 lease for years. The court held, that the plaintiff should recover ; for though in the 
 life of B the termor by his assent might have committed waste, and he had not been 
 punishable afterwards, yet when he is dead, he that committed the waste has done it 
 to the disherison of him in remainder, and it is all one as if it had been done after 
 the death of tenant for life. 
 
 It was agreed, that the heir shall not have action of waste, in time 
 of his father, but in his own time, and issue was taken accordingly. 
 Bro. Waste, pi. 76. 
 
 (K) Of the Process and Proceedings in Actions of Waste. 
 
 The 13 E. 1, c. 14, enacts, That of all manner of waste done to the da- 
 mage of any person, there shall from henceforth be no writ of prohibition 
 awarded, but a writ of summons, so that he of whom complaint is, shall 
 ansioer for waste done at any time. And if he come not after the su?n- 
 mons, he shall be attached, and after the attachment he shall be distrained. 
 
 If the defendant be returned nihil, &c, so as peradventure he was never summoned, 
 nor any other writ served whereby he might have notice, yet a writ of inquiry of waste 
 shall be awarded by this branch of the statute, for here it is not specified that issues 
 should be returned, &c, but generally ; and by the writ the waste shall be inquired 
 of by the oath of twelve men, where the defendant or any for him may attend if he 
 will, and the jurors may find against the plaintiff. 2 Inst. 389. 
 
 And if he come not after the distress,(a) the sheriff shall be command- 
 ed^) that in proper person he shall take with him twelve, ^c, and shall 
 go to the place wasted. 
 
 (a) If the defendant appears upon the distress, and pleads, and after makes default, 
 the plaintiff shall not by this branch have a writ to inquire of the waste, because it is 
 
 out of the words and purview of this act. 2 Inst. 390. (6) Here are three things 
 
 to be observed : First, That the sheriff ought to go in proper person ; for that though 
 in rei veritate he is no judge, yet this writ is in nature of a commission unto him, and 
 he is i« loco judicis, and therefore he ought to go in propria personam. Socondly, 
 Where some have holden that the sheriff may inquire upon this writ, by oath of six 
 or eight persons, it appears that there ought not to be under twelve, for the words of 
 this branch are assumptis secum twelve. Yet this is but an inquest of office, for it is 
 taken sans mist des parties, that is, without any issue joined. Thirdly, The sheriff 
 mast go ad locum vasiatum together with the jurors, and view the same, for ista cadunt 
 
 potius sub visa quam sub avditu. 2 Inst. 390. It was agreed by the whole court, 
 
 that if six of the jury are examined upon a voire dire, if they have seen the place 
 wasted, that it is sufficient, and the rest of the jury need not be examined upon a 
 voire dire, but only to the principal. Godb. 290*, pi. 298, Gage v. Smith. 
 
 And shall inquire of the waste done, and shall return an inquest, and
 
 452 OF WASTE. 
 
 (K) Of the Process and Proceedings in Actions of Waste. 
 
 after the inquest returned they shall pass into judgment, like as it is con- 
 tained in the statute of Grloucester. 
 
 If the waste be assigned in divers towns, the sheriff and the jurors must view all 
 the places wasted in every of the towns, but he may inquire thereof in any one of the 
 towns, and this copulative doth so knit the words together, as he cannot inquire in a 
 foreign town. 2 Inst. 390. 
 
 The process incident to action of waste is, first, a writ of summons, - 
 made by the cursitor of the county where the land lies, and on the return 
 of this writ the defendant may essoin, and the plaintiff adjourn, &c. 
 Then a pone is to be made out by the filazer of the county, on the return 
 of which a distringas issues for the defendant to appear ; and upon his 
 appearance the plaintiff declares, and the defendant pleads, &c. Or, if 
 the defendant makes default, a writ of inquiry goes to the sheriff, to in- 
 quire by the oath of twelve jurors, what damage the plaintiff hath sus- 
 tained, and then the party hath judgment to recover the treble of it. 
 Also, after judgment entered, a writ of seisin is awarded to the sheriff to 
 give possession to the plaintiff of the place wasted. 
 3 Cpmpl. Attorney, 250, 251, 258, 259. 
 
 In waste against two by the bishop ad exhwredationem ecclesice, and 
 process continued till the grand distress returned, one came and the other 
 made default, and he who appeared was compelled to answer alone, for 
 the process is determined against the other. 
 
 Bro. Waste, pi. 99. 
 
 In an action of waste the jurors shall have a view of the place wasted, 
 &c, as an incident to the action of waste ; for in the action at the com- 
 mon law, the jurors should have had the view. 
 
 Vin. Abr. ( V) 22, (P) 491. It was agreed by the whole court, if the jury be sworn 
 they knew the place, it is sufficient, although they be not sworn that they saw it, and 
 although that the place wasted be shown to the jury by the plaintiff's servants, yet 
 if it be by the commandment of the sheriff, it is as sufficient as if the same had been 
 showed unto them by the sheriff himself. Godb. 209, pi. 289, Gage v. Smith. 
 
 Though the view in an action of waste was not returned on the process 
 on which the first jurors appeared, and were sworn, and tried the issue, 
 yet it was resolved to be good enough ; because although the jurors ought 
 to have the view, yet it was not necessary for the officer to return it ; but 
 the court on the trial ought to examine the matter, whether the jurors 
 have had the view or not ; for on the trial six jurors, at least, ought to 
 have had the view, else the jury shall not be taken. And a day of con- 
 tinuance was given eo quod the jurors had not the view, and interim vi- 
 deant, $c. ; and in an assize the view of the jurors is requisite, but it is 
 never returned ; for perhaps neither the sheriff nor the officer knows whe- 
 ther the jurors have had the view or not ; for the words of the writ are 
 et interim, videant, $c, and not et interim haberifac. visum: so that the 
 jurors may view the place wasted when the officer is not present ; and there- 
 fore the officer is not obliged to return the view ; but it ought to be ex- 
 amined on the trial, and the party may make his challenge to the jurors 
 for that cause, if six of them, at the least, have not had the view, and the 
 officer had returned that they had the view : yet, if it appeared on the trial, 
 by examination, that they had not the view, the return would be to no 
 purpose, nor conclude any of the parties, plaintiff or defendant. 
 
 2 Saund. 254, Green v. Cole. 
 || Where the jury found a verdict for the plaintiff, with damages, but
 
 OF WASTE. 453 
 
 (K) Of the Process and Proc&edings in Actions of Waste. 
 
 omitted to find the place wasted; the court held, that the verdict could 
 not be sustained, and made the rule absolute for a new trial. 
 
 Redfern v. Smith, 2 Bing. R. 262.{| 
 
 4 & 5 Ann. c. 16, § 8, enacts, That in any actions in any of her 
 majesty's courts at Westminster, where it shall appear to the court that 
 it will be necessary that the jurors should have the view of the place in 
 question, the courts may order special writs of distringas or habeas cor- 
 pora, by which the sheriff or other officer shall be commanded to have 
 six out of the first twelve of the jurors, or some greater number, at the 
 place in question, some convenient time before the trial, who shall have 
 the matters in question shown to them by two persons in the writ named 
 to be appointed by the court. 
 
 In an action of waste there shall be summons and severance, for the 
 writ is ad exheeredationem, and the action of waste is a plea real. 
 
 2 Inst. 307. 
 
 A plaintiff shall have costs in all actions of waste, where the damages 
 found do not exceed twenty nobles, which he could not by the common 
 law. 
 
 Stat 8 & 9 AY. 3, c. 11. 
 
 Before any waste is done, a prohibition may be had, directed to the 
 sheriff not to permit it; or he in remainder, &c, may have an injunction 
 out of the Chancery to stay the waste, and enter the house or lands, to 
 see if waste is committed, &c. 
 
 2 Inst 146, 306 ; 11 Rep. 49, Liford's case. 
 
 Though the estate be executed by the statute of uses, yet there may be 
 a general torit and special count. 
 
 Hobart's Rep. 112, Skeate v. Oxenbridge. 
 
 If the writ mentions that A, being seised of the land since 27 H. 8, 
 enfeoffed B to uses, &c, and derives under it, though the writ does not 
 mention that the feoffment was to B in fee ; yet inasmuch as the use had 
 been to make the writs so ever since the statute, it is to be allowed, though 
 if it was not in fee to B, but an estate for the life of B, it will pass. 
 But the declaration upon it ought to allege the feoffment to be in fee. 
 
 Hobart's Rep. 112, Skeate v. Oxenbridge. 
 
 A man, after the statute of 27 H. 8, made a feoffment in fee to the 
 use of himself for term of his life, and after his decease to the use of 
 J S and his heirs. The feoffee does waste, and J S brought his action 
 of waste. And now if his writ shall be general or special was demurred 
 in judgment. And Hutton and the other justices were clearly of opinion, 
 that the plaintiff ought to have a special writ ; and so it was adjudged 
 afterwards. 
 . Hetl. 79, Fossam's case. 
 
 In waste against feme on a lease made to herself for life, she pleaded 
 that the lease was made to her and her baron for their two lives, and that 
 after the baron s death no waste was done, and so did not plead to the 
 writ ; but it was said the writ had been better if the lease had been sup- 
 posed to the baron and feme. 
 
 Theloal's Dig. lib. 11, c. 52, £ 7. 
 
 Waste by the feoffees in use against the lessee for years of cestui que 
 use lies well, though no form of writ be thereof given in the register or in 
 the statute. But quaere the form of this writ ; for it was cum W. <f M.
 
 454 OF WASTE. 
 
 (K) Of the Process and Proceedings in Actions of Waste. 
 
 fuerunt seisiti ad usum C, and did not say of what estate ; and there- 
 fore held ill in this by several. 
 
 Bro. Waste, pi. 2. 
 
 In a writ of waste, if the premises of the writ recite quod non liceat 
 alieui facere vastum in domibus, boscis, et gardinis, and in the end of the 
 writ it is said that the defendant hast done waste in lands, houses, woods, 
 gardens, and exile of men; so as there is more in the end of the ivrit 
 titan is in the premises, yet the writ is good : and so if less be in the end 
 of the writ than is recited in the premises, yet the writ is good ; as if it 
 had been recited quod cum provisum sit, quod non liceat alieui facere 
 vastum, fyc. in terris, domibus, boscis, and gardinis : and in the end it is 
 recited quod defend, fecit vastum in terris only, or in boscis only, or in 
 domibus only, yet the writ is good. 
 
 F. N. B. 56, (J). 
 
 If lease be made to husband and wife for life, and for twenty years 
 after their deaths, and the wife dies and waste is committed, the wife 
 shall not be named in the writ, nor the term after her death. 
 
 Brownl. 238, Bedell v. Bedell. 
 
 Note, that the action of waste against the guardian is general, fecit 
 vastum, Sfc, de terris, Spc, quas habet vel habuit in custodia de hairedi- 
 tate prcedict., which writ doth extend as well to the guardian in socage 
 as in chivalry. 
 
 2 Inst. 305. 
 
 1. In tohat cases the Action shall be brought in the Tenet. 
 
 If lessee for life does waste, and grants his estate, yet action of waste 
 lies against him in the tenet. 
 
 2 Roll. Abr. 829. It shall be in the tenet during the term, because in the eye of the 
 law he is tenant as to the action of waste, and against him that was the wrongdoer 
 did the action accrue, which he cannot avoid by his assignment, and against him shall 
 the treble damage bo recovered, and the place wasted. And so it is of mesne as- 
 signees; a just interpretation that he that did the wrong should answer the same; and 
 this is the cause that general non-tenure is no plea in an action of waste, but special 
 non-tenure may be pleaded, as the granting over of his estate, before which no waste 
 
 was done. 2 Inst. 302. In waste it is no j)lea that the defendant had nothing in the 
 
 land the day of the writ purchased ; for if he does waste and grants his estate over, yet 
 waste lies against him ; for the grantee may say that no waste was done after the grant 
 made to him, and the other will incur no mischief if he has done no waste ; for he may 
 say that such a day he granted over his estate, before which grant no waste was done. 
 Per Finchden clearly, and the action of waste was quas tenet. And yet non-tenure is 
 no plea ; for by him waste is only trespass, and by recovering against him the grantee 
 shall lose the place wasted ; for the plaintiff has elder title than the grantee. Bro. 
 
 Waste, pi. 22. In waste quas tenet the defendant said that he had nothing the day of 
 
 the writ purchased, nor ever after, judgment of the writ, and held no plea ; for if a man 
 does waste, and grants his estate over, the writ shall say that they held as long as the 
 term continual, and by this the grantee, who is no party to the writ, shall lose the 
 place wasted. Bro. Waste, pi. 25. 
 
 If a guardian commits waste, and grants his ward over, the ward shall 
 have waste, during the infancy in the tenet, against the first guardian for 
 the said waste. 
 
 2 Inst. 305. 
 
 And if the ward brings it against any during his nonage, it shall be 
 in the tenet. 
 
 Bro. Waste, pi. 33. And yet if he was guardian before the writ purchased, he shall 
 not be charged but to his own time, and every guardian for his own time. Id. ibid.
 
 OF WASTE. 455 
 
 (K) Of the Process and Proceedings in Actions of Waste. 
 
 If a lease for life be made upon condition that if the lessee do such an 
 act, his estate shall cease, and he commit such an act, the writ shall be 
 brought against the lessee in the tenet, though his estate is ended. 
 
 Brownl. 239, Anon. 
 
 If feme lessee for life grants his estate over, and after marries, the ac- 
 tion shall suppose that tenet. 
 
 2 Roll. Abr. 829. 
 
 So, if lessee for life does waste, and after aliens, and lessor enters for 
 the forfeiture, the writ shall be in the tenet. 
 
 2 Roll. Abr. 830 ; Bro. Waste, pi. 84, takes notice only of lessee for years, (this was 
 the principal point of the case,) and that in such case the writ shall be in the tenet; 
 but that in case of lessee pur auter vie where cestui que vie dies, it shall be in the tcnuit. 
 
 Action was brought for waste in lands quas tenet pro termino annorum, 
 and counted that he leased to the defendant, 10 H. 7, for term of one year, 
 to commence at Easter next after, to continue for one year, and so the 
 next year, and so from year to year as long as the parties pleased, by 
 virtue of which possession, §c, he occupied by the space of twenty-four 
 years, and assigned the waste certain, £c. The defendant pleaded no 
 waste done, and found for the plaintiff. And the action was brought 
 anno 14 H. 8. And the court held that the count abated the writ ; for 
 where it is tenet, and is thirty years after the making, and counts of 
 twenty-four years, this is a determination of the lease a long time before 
 the writ purchased, and therefore shall be tenuit, and not tenet. 
 
 Bro. Waste, pi. 95 ; Bui where a man leases for years, and brings writ quas tenet of 
 the waste, &c, and the term expires pending the writ, yet this writ quas tenet is good, 
 quod cur. concessit. 
 
 If a lessor bring waste, the writ shall be quod fecit vastum, $c, in ter- 
 ris which he holds of him. 
 
 2 Roll. Abr. 830. 
 
 But if he in the remainder bring action of waste, the writ shall not be 
 which he holds of him, because he does not hold of him. 
 
 2 Roll. Abr. 830. 
 
 So, if such remainder escheat, and the lord bring the action of waste, 
 the writ shall not be, which he holds of him. 
 
 2 Roll. Abr. 830 ; Bro. Waste, pi. 6. 
 
 If the father lease for life and die, and afterwards his heir confirm the 
 estate of the lessee for his life, he shall have action of waste, quas tenet 
 of his demise ; because the first lease is determined by the confirmation. 
 Per Dyer and Brown. 
 
 Mo. 72, pi. 190, in Nudigate's case. 
 
 If there are two joint-tenants of land limited to them and the heirs of 
 one, and they join in a lease for years, and the tenant for life dies, the 
 other shall have an action of waste of his demise. Per Dyer and Brown. 
 
 Mo. 72, pi. 196, in Nudigate's case. 
 
 2. In what Cases it shall be brought in the Tenuit. 
 There is not any writ in Chancery in the tenuit against tenant for his 
 own life. 
 2 Roll. Abr. 830.
 
 456 OF WASTE. 
 
 (K) Of the Process and Proceedings in Actions of Waste. 
 
 But, it shall be brought in the tenuit against lessee for years after the 
 term passed. 
 2 Roll. Abr. 830. 
 
 But, if it be not brought in the tenuit, yet, if there are any words in 
 the writ which imply that it is past, it is good, as quas ei dimisit. 
 2 Roll. Abr. 830. 
 
 After the death of cestui que vie it shall be brought against the tenant 
 
 pur auter vie in the tenuit. 
 
 2 Roll. Abr. 830; Bro. Waste, pi. 47, cites S. C. And^w Persay, if lease be made 
 to the feme, and slie take baron, who does waste, and the feme die, waste against the 
 baron shall be quod tenuit. Bro. Waste, pi. 103, S. P. For he may hold over the 
 term. 
 
 If tenant pur auter vie do ivaste, and alien, and lessor enter for the 
 forfeiture, the writ shall be against hiui in the tenuit. 
 2 Roll. Abr. 830. 
 
 Likewise, if waste be brought against a guardian after full age of the 
 ward, the writ shall be in the tenuit. 
 2 Roll. Abr. 830. 
 
 So it shall be in the tenuit, if it be brought after full age against a 
 guardian for ivaste before assignment over. 
 2 Roll. Abr. 830. 
 
 If feme lessee for years do waste, and the term incur, and she marry, 
 the writ shall be against baron and feme, and shall suppose that they tenue- 
 runt. ( Qucere this, for it seems it shall be the feme tenuit dum sola fuit.) 
 2 Roll. Abr. 830. 
 
 If feme tenant pur auter vie do waste, and cestui que vie die, and the 
 feme marry, the writ shall be that the feme tenuit. 
 2 Roll. Abr. 830. 
 
 If the lessee make a feoffment, and the lessor re-enter, the action of 
 waste shall be in the tenuit, because the lease is determined. And where 
 he continues it, it shall be quas tenet. Note the diversity. 
 
 Bro. Waste, pi. 95. 
 
 So, if tenant do waste, and then surrender to his lessor, the writ shall 
 be in the tenuit, as some hold; but others hold it should be in the tenet, 
 whether he be tenant for life or years. 
 
 Bro. Waste, pi. 95 ; F. N. B. GO, (L,) in the new notes there, (b) S. P. And if he 
 in the reversion agree thereunto, he shall not have an action of waste in the tenuit, 
 for he cannot, by his own act, alter the form and nature of his action, from the tenet 
 to the tenuit; and he cannot plead that before such a surrender no waste was done. 
 2 Inst. 304. 
 
 Likewise, if grantee of a term upon condition do waste, and after the 
 grantor enter for condition broken, an action of waste shall be maintain- 
 able against the grantee in the tenuit. 
 
 5 Rep. 12 b, Saunder's case. 
 
 Where A was lessee for years and devised his term to B, and made C 
 his executor, and died, and C did ivaste, and assented to the devise ; in 
 this case, though between the executor and devisee this has relation, and 
 the devisee is in by the divisor, yet an action of waste shall be maintain- 
 able against the executors in the tenuit. 
 
 5 Rep. 12 b, Saunder's case.
 
 OF WASTE. 457 
 
 (L) Of the Pleadings in Action of Waste. 
 
 It is a good plea in waste, that the house was ruinous at the time of 
 the demise, and therefore fell : or that the house or trees fell by wind or 
 tempest. 
 
 Bro. Waste, pi. 130. 
 
 In an action of waste brought by the lessor against the lessee, the lessee 
 in respect of privity cannot plead riens en le reversion ; but he must show 
 how and by what means the reversion is divested out of him : but if the 
 grantee of a reversion brings an action of waste, the lessee may plead 
 generally, that he has nothing in the reversion. 
 
 1 Inst. 35G, a. 
 
 In an action of waste by the heir against his father, upon a gift to the 
 father and mother and to the heirs of the mother, the tenant said, that he 
 discontinued to 11 in the life of the feme, absque hoc that the plaintiff had 
 any thing in the reversion, in the right of his wife, the day of the writ 
 purchased, or after ; and the plea was held double : and per Martin and 
 others, nothing in reversion only is a good plea there. Contra, where 
 the plaintiff counts of his own lease, or of the lease of his ancestor. But 
 it is a good plea in waste ex assignatione, upon grant of reversion to the 
 plaintiff. Note the diversity. 
 Bro. Waste, pi. 85. 
 
 And in waste against tenant by the curtesy, it is a good plea that he 
 discontinued in fee to R in the life of the feme, and after II leased to him 
 for his life, saving the reversion, and so nothing in reversion the day of 
 the writ purchased, &c. 
 
 Bro. Waste, pi. 85. 
 
 And where the plaintiff counts of his own lease, or of his ancestor's, 
 the tenant may say quod non dimisit, and show how the heir has granted 
 the reversion to another to whom he attorned, after which attornment no 
 waste done. 
 
 Bro. Waste, pi. 85. 
 
 In waste the defendant said as to the grange, that the moiety was de- 
 cayed before the lease, and the other moiety was uncovered by tempest ; 
 and before the defendant could repair it, the plaintiff entered and was 
 seised the day of the writ purchased ; judgment si actio. Per Hank, the 
 last plea is double, the tempest and the entry ; but Hull, contra. 
 
 Bro. Waste, pi. 09, for, per Hull, the entry is all the matter, for the tempest is in it 
 waste, unless the defendant permits the timber to rot after the tempest. Bro. Double 
 Pica, pi. 30. 
 
 Where a lease is upon a condition, that if the tenant suffers waste he 
 may enter, there he cannot enter for uncovering by tempest, unless he 
 says that the lessee had sufficient time after to repair it, and did not. 
 Per Hull, clearly. 
 
 Bro. Waste, pi. GO. 
 
 In waste for permitting a house to be uncovered, by which the timber 
 became rotten and corrupt, defendant said, that the day of the writ pur- 
 chased, the house was sufficiently repaired ; and the best opinion was, that 
 it is no plea ; for it is in a manner double ; the one, that if waste was done 
 it is amended ; and the other, that there never was waste. But, if he had 
 
 Vol. X.— 58 2 Q
 
 458 OF WASTE. 
 
 (L) Of the Pleadings in Action of Waste. 
 
 said, that after the waste, it was sufficiently repaired before the writ pur- 
 chased, it seems to be a good plea. 
 Bro. Waste, pi. 86. 
 
 Waste in ten ashes, the defendant said, that the plaintiff gave them to R 
 C, and commanded the defendant to cut and deliver them to the said R, 
 C, by which he did so ; judgment si actio : the plaintiff said, that he did 
 not cut by his command. Per Newton and Paston, this is a negative preg- 
 nant, by which he said that he did not command him ; quod nota. 
 Bro. Negative, &c, pi. 21. 
 
 Where a lease is by deed without impeachment of waste, or by grant to 
 be discharged of waste, all by one and the same deed, the tenant may 
 rebut, and plead in bar by it, and shall not be driven to his writ of cove- 
 nant: per Paston. Brooke makes a quo?re, If he shall be driven to his 
 writ of covenant, if it be granted by another deed. 
 
 Bro. Waste, pi. 89 ; Bro. Bar. pi. S. C, and Brooke says, it seems to him, that if 
 the grant be by another deed, it may well be pleaded in bar also. 
 
 If a man leases land to another sine impedimento vasti, it shall be a 
 good bar in an action of waste ; for those words (sine impedimento vasti) 
 amount to as much as without impeachment of waste. 
 
 2 Roll. Abr. 835. 
 
 So, if a man leases the manor of D, and all lands and tenements, &c, 
 parcel of the said manor, to have the aforesaid manor, lands, woods, &c, 
 as house-bote and hay-bote, sine impedimento vasti for years ; this shall 
 be a good bar in an action of waste ; for the words (sine impedimento 
 vasti) relate to all the things demised, and the expressing of house-bote, 
 &c, is surplus and void. 
 
 2 Roll. Abr. 835. 
 
 Where the defendant justifies the waste of cutting ashes for fire-bote, 
 he ought to surmise, that there were no underwoods upon the land, &c. 
 And the same law seems to be where he takes beeches or other trees 
 which are timber, by the best opinion of the court. 
 
 Bro. Waste, pi. 89., 
 
 If lessee does waste by cutting trees, and lessor carries them away, 
 
 (admitting the carrying away tortious, for there it is held, that he may 
 
 have trespass for them against the lessor,) yet this is not any matter in 
 
 bar of the action ; but he shall be put to his trespass. 
 
 44 E. 3, 44 b. For the carrying them away by the lessor is no excuse of the waste, 
 which the lessee was guilty of by the abatement. Bro. Waste, pi. 39, cites S. C. 
 
 Waste in a house, and also in a wood in cutting the trees and selling 
 them, &c. The defendant as to the house said, that no waste was done ; 
 and to the trees, that the house was ruinous in groundsels at the time of 
 the demise, by which he cut for reparations, and put the trees in the 
 groundsels ; and per cur. this is a good plea where the plaintiff counts 
 generally of cutting trees without more, but contra where he counts of 
 sale, as here ; for there he shall answer to the sale ; by which Catesby 
 justified as above, absque hoc that he sold them, and good reason, for the 
 writ of waste is, quod non liceat alicui vastum, venditionem, seu de- 
 structionem facere in terris, domibus, boscis, $c. 
 
 Bro. Waste, pi. 112. In waste for trees cut and sold, the defendant must answer to 
 both : for the salo is traversable, and admit that he cuts and sells and buys them again, 
 and bestows them upon the repairs of the house, yet the tort which is supposed in the
 
 OF WASTE. 459 
 
 (L) Of the Pleadings in Action of Waste. 
 
 sale is not answered ; per Montague. And Knightly seemed to be of the same opinion . 
 and he ought also to conclude that it is the same waste. D. 35 b, 30 a, pi. 33, 34, in 
 case of Malverer v. Spink ; D. 90 b, pi. 8, in case of Mervin v. Lyds. 
 
 Ne venda pas is no plea, but defendant shall justify as in the plea 
 above, absque hoc, that he sold ; or shall say, no waste done generally. 
 
 Bro. Waste, pi. 112, per Choke, J. 
 
 In trespass it was agreed, that tenant for years may cut wood, but it 
 was doubted of tenant at will; but it seems that as long as tenant at will 
 is not countermanded, he may cut seasonable wood, &c. Littleton said. 
 then he ought to say, they have used such custom in the country to cut 
 underwood, for otherwise the justification is not good. Qusere inde. 
 
 Bro. Waste, pi. 114. 
 
 Note — Where hedge-bote or pale-bote are granted to be taken rcason- 
 ablv, and where certain loads or a certain number of trees are granted 
 annually for that purpose, here it is not necessary to show that the fence 
 is in decay : and note, that for fire-bote it is not necessary, at the time of 
 cutting to show the necessity: so, for reparation, for it is reason and good 
 husbandry to cut them in some convenient time beforehand ; because 
 that which is allowed certainly at some years may not be sufficient. 
 
 Nov, 23, Jenkins v. Jenkins. 
 
 If a man leases a house, and grants farther to lessee, that he may make 
 his best profit of it ; this grant shall not be any bar in an action of waste 
 for abating the house ; for the grant shall be intended, that he shall make 
 his best profit according to the law, without tort and disinheritance to 
 the lessor. Dubitatur. 
 
 17 E. 3, 7, S. C. cited, Arg. Lat. 137, in the case of Daniel v. Upley. 
 
 So, if the lease be of a wood, with grant to make his best profit of it, 
 he cannot cut and sell. Dubitatur. 
 
 17 E. 3, 7 b. 
 
 But if a man leases land, and grants farther to the lessee, that he shall 
 
 make his best profit of the mines of stones, coal, and iron, open in the 
 
 land ; this grant shall be a good bar in an action for waste for digging 
 
 coals, stone, and iron, and selling ; for the most profit of them is to sell, 
 
 and he can have little other profit. 
 
 17 E. 3, 7 b. Lessee for years of mineral lands, with liberty to dig, and make his 
 profit of the mine, digged for mine, and sold the gravel coming off it ; this is no waste, 
 if the first act of digging be not waste : for the sale is not waste, that being a subse- 
 quent act. Adjudged, Godb. 28, pi. 37 ; 27 E. C. B. Anon. 
 
 In waste by him in remainder, he ought to show the deed of remainder. 
 
 Bro. Waste, pi. 28. He shall show the deed, if it be demanded by the tenant. But 
 per Finch, he need not show it till then. Bro. Monstrans, pi. 15. 
 
 In waste against tenant for years of the lease of the plaintiff himself, 
 the defendant pleaded that the plaintiff nil habuit in tenementis but 
 jointly with his wife in tail, &c, and held a good plea. 
 
 Theloal's Dig. lib. 11, cap. 44. 
 
 So, in waste against baron and feme, on a lease to them both made 
 by the plaintiff's father, the tenants pleaded, that the plaintiff's father 
 ne lessa pas to them, modo et forma, &c, and held a good plea. 
 
 Theloal's Dig. lib. 11, cap. 52, S. 25. 
 
 But in waste against tenant in dower, she pleaded a grant made to her 
 by the heir, to hold without impeachment of waste, and averred * v -^ H43
 
 460 OF WASTE. 
 
 (L) Of the Pleadings in Action of Waste. 
 
 had assets by descent ; and the opinion was, that it is no plea : For the 
 statute of Gloucester speaks of warranty with assets to bar the tail, and 
 not of grant with assets. 
 Bro. Waste, pi. 76. 
 
 In action of waste against tenant in dower, it is a good bar, that the 
 baron who was the ancestor of the plaintiff, aliened to B, who assigned 
 to her her dower, and so the reversion is in him, and not in the plaintiff. 
 
 39 E. 3, 33. 
 
 In waste against tenant by the curtesy, or in dower, they may say, 
 
 that the plaintiff granted the reversion to M N to whom they attorned. 
 
 Bro. Release, pi. 40. If the heir granted away the reversion, and tenant attorned, 
 the action failed at common law. 2 Inst. 300. 
 
 In waste, the plaintiff counted upon a lease for years, by him made to 
 the defendant, and that he did waste : and the defendant was not suf- 
 fered to say, that he did not lease for term of years, but that he did not 
 lease modo et forma, &c. ; for if he leases for life or in fee, the defendant 
 may plead it, and traverse the count, &c. 
 
 Bro. Negativa, &c, pi. 7. 
 
 In waste against A for tenements, which he held of the lease of E, who 
 held them for term of life of the lease of his father, the defendant said, 
 that he had(a) nothing in the tenements the day of the writ purchased, 
 nor ever after ; but E was and is tenant ; judgment of the writ, and non 
 allocatur ; upon which he said, that E was tenant the day of the writ 
 purchased, abseque hoc, that he ever any thing had of the lease of E, 
 which was held a good plea, and the other maintained his writ ; quod 
 nota, and yet non-tenure is no plea in waste ; but it seems that this 
 amounts to that E non diinisit modo et forma. 
 
 Bro. Waste, pi. 35 ; Bro. Non-tenure, pi. 55. (a) Bro. Nbn-lenwe, pi. 7. 
 
 Waste was brought against tenant for life for digging clay and gravel : 
 the defendant justified, by command of the plaintiff; and the best opinion 
 was, that it is no plea; for the lessor himself cannot justify to dig it, there- 
 fore his command is void ; as if I command J S to kill my father, which 
 he does, I shall have appeal ; and in formedon, if writ of estrepement is 
 delivered to the tenant, the demandant ' cannot command him to cut the 
 trees, but estrepement lies, for those commands are void. 
 
 Bro. Waste, pi. 108. The lessor was seised in fee, but in his lease did not except 
 the gravel, and so his command, during the lease, is not good ; and, by Townshend, 
 this gravel is part of the inheritance, and he cannot grant his inheritance by parol 
 only without deed. See the Year-Book, 2 H. 7, 14. 
 
 But where W brought waste against the defendant, tenant for life, by 
 reason of a remainder to him limited by use ; and assigned the waste 
 prosterncndo horreum ; the defendant pleaded in bar, that the great 
 timber of the said barn, at the time of the death of her husband, was so 
 rotten, &c, that it could not be repaired ; this was taken to be a good 
 plea, and issue taken upon the matter. 
 
 Mo. 54, pi. 158, Ward and Uxor v. Dettensam. 
 
 The plaintiff made a lease for years to A, and before the expiration 
 thereof he made another lease of the same lands to B, the defendant, to 
 begin presently, and then brought an action of waste against him for waste 
 done during the first lease : the court said, that in such case it would not 
 be safe for him to plead no waste done, for it would be found against him,
 
 OF WASTE. 461 
 
 (M) Of the Judgment in Actions of "Waste, &c. 
 
 and if ho should plead the special matter, as aforesaid, viz., that the first 
 lease was in being at the time of the waste done, after the expiration 
 whereof no waste was done, this would be good, if the second lease was 
 not by indenture, otherwise, he will be estopped by the indenture from 
 showing that the second lease had another beginning than the indenture 
 purports, and then the waste will charge him. And if defendant pleads 
 the special matter, the plaintiff by his replication, may estop him to plead 
 any other beginning of the term than the letter of the indenture purports, 
 and it will be no departure, because it strengthens the declaration. 
 
 3 Le. 203, pi. 256, Thorp v. Wingfield. 
 
 Ancient demesne is no good plea in an action upon the statute oi 
 Gloucester, for it is only a personal action, and the statute is beneficial 
 to the commonwealth. 
 
 Ow. 24, C. B. Owen's case. 
 
 In waste for cutting down 300 oaks, the defendant pleaded as to 200 
 of them, that the house leased was ruinous, &c, and that he cut them 
 down to repair the houses, and as to the residue, that he felled and keeps 
 them to employ about the reparations tempore opportune And all the 
 court, without argument, held it no plea : For if it should be good, every 
 farmer might cut down all the trees on his farm, when there was no 
 manner of occasion to repair. 
 
 Cro. Eliz. 593, pi. 33, C. B., George v. Stamfield. 
 
 If two bring an action of waste, the release of one is a good bar 
 
 against the other. 
 
 1 Inst. 355 b. If the action by two be brought in the tennit, a release of the one is 
 a bar to both. But otherwise it is the tenet, for there the release of one does not bar 
 the other. Id. ibid. 
 
 If there be tenant for life, the remainder over in tail, and he in re- 
 mainder release to the tenant all his right, this is a good bar against the 
 releasor in a writ of waste ; and yet neither fee nor fee-tail pass. 
 
 Bro. Waste, pi. 145. But if tenant in fee release to his tenant for life all his right, 
 yet he shall have action of waste. — So, if lessee for life do waste, and grant over his 
 estate, and lessor release to the grantee ; in an action of waste against the lessee, he 
 shall plead the release : and yet he has nothing in the land. 1 Inst. 2G9 b. — And so 
 in waste shall tenant in dower, or by the curtesy, in the like case, and the vouchee and 
 the tenant in aprcecipe, after a feoffment made, and so in a contra formam collaiionis. 
 Id. ibid. 
 
 (M) Of the Judgment in Actions of Waste, and what shall be recovered thereby. 
 
 Statute of Gloucester, 6 E, 1, c. -5, enacts, That he(a) which shall be 
 attainted of waste, shall lease(b) the thing that he hath wasted: and more- 
 over shall(c) recompense thrice so much as the waste shall be taxed at. 
 
 (a) If one joint-tenant does the waste, both shall be attainted of the waste, &e. 
 2 Inst. 303. — But treble damages shall be recovered against him that did the waste only. 
 
 2 Inst. 302; ||Cru. Dig. tit. xviii. c. 1, \ 63. || (b) In an action of waste against a 
 
 lessee for life, for waste done in three acres, the defendant claims fee ; whereupon issue 
 is joined ; the jury find against the defendant, that he hath but an estate for life ; and 
 inquired further of the waste, and found the waste done in one acre only. The plain- 
 tiff cannot have judgment for the whole land, in respect of the forfeiture and treble 
 damages ; for that judgment is not according to this act, that is to say, of the place 
 wasted, and treble damages in respect of the place wasted ; wherefore he had judgment 
 according to the statute, of one acre and treble damages. 2 Inst. 305. {<:) Where- 
 soever the common law gave single damages against any, this act gives treble, unless 
 
 there be any special provision made by this act . 2 Inst. 306. This statute does 
 
 not bind the king. Per Coke, Arg. Mo. 321, in Englefields case. 
 
 2q2
 
 462 OF WASTE. 
 
 (M) Of the Judgement in Actions of "Waste, &c. 
 
 And for ivaste made in the time of wardship, it shall be done as is 
 contained in the Great Charter. 
 
 If the guardian suffers a stranger to cut down timber trees, or to prostrate any of 
 the houses, and according to his name of guardian doth not endeavour to keep and pre- 
 serve the inheritance of the ward in his custody and keeping, nor to forbid and with- 
 stand the wrongdoer, this shall be taken in law for his consent : for in this case qui rum 
 prohibit quod'proliibere potest assentire videtur; and if such waste and destruction be 
 done without the knowledge of the guardian, or with such number as he could not with- 
 stand, then ought the guardian to cause an assize to be brought against such wrong- 
 doers, by the heir, wherein he shall recover the freehold and the damages for such wrong 
 and disherison. So note a diversity between the interest of a guardian created by law : 
 for there in an assize the heir shall recover damages ; but otherwise it is in case of a 
 lease for years, which is the lessor's own act. 2 Inst. 305. 
 
 And ivhere it is contained in the Great Charter, that he which did the 
 
 waste during the custody shall lease the wardship ; it is agreed that he. 
 
 shall recompense the heir his damages for the waste, if so be that the 
 
 wardship lost do not amount to the value of the damages before the age 
 
 of the heir of the same wardship. 
 
 The committee of a ward did waste, and after tendered marriage to the heir, and he 
 refused, and married elsewhere. The waste is found by office. The question was, 
 Whether the committee may bring forfeiture of marriage? The court upon advisement 
 held, that the committee by doing waste lost only the ward of the land, and not of the 
 body, by the express words of this statute. Dy. 25 b, pi. 163, Anon. 
 
 Upon the construction of the statute of Gloucester, some question has 
 been made, Whether in this mixed action the place wasted is the prin- 
 cipal or the damages? And in divers respects the one is more principal 
 than the other: for in respect of the antiquity against tenant in dower, 
 and tenant by the curtesy, the damages are the principal ; and therefore 
 they shall be sometimes preferred, viz., the plaintiff to have execution of 
 the damages before the place wasted ; but in respect of the quality, the 
 reality is ever preferred before the personalty ; and therefore in waste, 
 if the defendant confess the action, the plaintiff may have judgment of 
 the land, and release his damages, which proves the realty to be the 
 principal ; for omne majus dignum trahit ad se minus. 
 
 2 Inst. 307. 
 
 If two coparceners lease land for life, and after waste committed one 
 dies, the aunt and niece must join in the action ; and though the niece 
 shall recover no damages, yet she shall recover the place wasted : and it 
 seems they shall hold the same in coparcenary. 
 
 F. N. B. 60, (R). 
 
 In waste at the nisi prius waste was found in four oaks in divers parts 
 in a wood : and it was doubted if he shall recover the wood or the place 
 wasted ; and at last it was awarded, that he recover the place wasted, 
 and his treble damages. 
 
 Bro. Waste, pi. 24. If termor of a wood does waste in one corner of the wood, he 
 shall not lose all the wood, per Fineux, C. J., but only the place wasted. Bro. Waste, 
 pi. 96. — But, if there are divers plots of the land in the wood in divers places, if the 
 termor does waste in the wood, he shall lose those plots, though he did not do waste 
 in them ; for those are parcel of the wood : And this seems to be where he has done 
 waste in the wood sparsim et circumquaque ; and this was said by Fineux in the Read- 
 ing of Thecher. Ibid. 
 
 If trees growing sparsim in a close are cut, in an action of waste all 
 the close shall be recovered. 
 
 1 Inst. 54 a; Brownl. 240, S. P. Anon., and the treble value shall be levied by Ji. 
 fa. &c. Id. ibid.
 
 OF WASTE. 463 
 
 (M) Of the Judgment in Actions of Waste, &c. 
 
 If waste be done in divers rooms in a house, the rooms shall be reco- 
 vered in an action of waste, and not all the house. 
 Inst. 54. 
 
 But if waste be done in a house sparsim throughout the house, all 
 the house shall be recovered. 
 
 2 Inst. 54. 
 
 If waste be done in the hall of the house, yet all the house shall not be 
 recovered, though some say that the house has its denomination from the 
 hall. 
 
 2 Inst. 54. In ancient time, it was holden by some, that if the hall was wasted, the 
 whole house should be recovered ; for that in those days the hall was the place of the 
 greatest resort and use, insomuch, that the whole house was called by the name < if 
 the hall, as Dale Hall, &c, but the purview of the statute of Gloucester is, that he 
 shall lose that thing that he hath wasted. 2 Inst. 303, 304. — Noy, attorney-general, 
 in Mr. Atkins's Reading, held, that the 15 E. 3, tit. Waste, 8, that in waste of the 
 hall the house shall be recovered, was good law, contrary to the opinion of 1 Inst. 54 a. 
 And he cited the case of Lord Abergavenny v. Sir Richard Southwell, in an action 
 of waste, for waste done in the kitchen and larder of a castle, and all the castle was 
 recovered, because a castle is not dividable, and so adjudged. 11 Eliz. See D. 272 1> ; 
 Marg. pi. 33. 
 
 If a man brings an action of waste, because the pales of a park, which 
 encompass the park, were permitted to decay ; but it is not averred that 
 there were any deer in the park, or that thereby the deer were dispersed, 
 and in this action the plaintiff recovers ; he shall not recover all the land 
 which is comprised within the pale, but only the place where the pale 
 stood. And the court seemed to incline to it in a writ of error upon such 
 judgment in bank, the judgment being affirmed in the King's Bench to 
 recover the place wasted. 
 
 2 Roll. Abr. 836. 
 
 If a man does waste, and grants his estate over, yet upon an action 
 brought against him, he shall lose the place wasted ; and his grantee, 
 who is not party to it, shall lose his interest. And therefore it is a good 
 plea for the grantee, that such a day he granted his estate over, before 
 which grant no waste was done : and in an action against the grantee it 
 is a good plea, that J N granted it to him, after which grant no waste 
 was done. 
 
 Bro. Waste, pi. 33. 
 
 In waste by two upon a lease for term of life, one was summoned and 
 severed, and the other sued forth, and assigned the waste in divers things, 
 as in cutting willows ; and found for the plaintiff, and damages were 
 taxed, and he had judgment to recover the moiety of the damages, and 
 the moiety of the place wasted, and as to the willows the court advised. 
 
 Bro. Waste, pi. 115. 
 
 If a man does waste in hedge-rows which surround a pasture, nothing 
 shall be recovered but the place wasted, viz., the circuit of the root, and 
 not the entire pasture. 
 
 Bro. Waste, pi* 136. 
 
 If the tenant of one house is disseisor of the next house, and he pulls 
 down both, and builds them into one new one, disseisee shall recover all 
 the house. 
 
 Vin. Abr. (V), 22, 509. 
 
 When waste is brought in the tenuit, damages are only to be recovered. 
 Rep. 44, Blake's case.
 
 464 OF WASTE. 
 
 (N) In what Cases in general Waste may be restrained, &c. 
 
 If lessee for years or life grants a rent out of the land so leased, and 
 afterwards commits waste, if the lord recovers the place wasted, yet the 
 land shall be charged. 
 
 Brownl. 238, Anon. 
 
 {In an action of waste against tenant for years for converting three 
 closes of meadow into garden-ground, if the jury give only one farthing 
 damages for each close, the court will give the defendant leave to enter 
 up judgment for himself, on account of the smallness of the damages. 
 2 Bos. & Pul. 86, The Governors, &c. of Harrow School v. Alderton.} 
 
 (N) In what Cases in general Waste may be restrained by Injunction in Equity. 
 
 [A court of equity will interpose by injunction to prevent the assertion 
 of a doubtful right in a manner productive of irreparable injury. There- 
 fore, where the tenants of a manor, claiming a right of estovers, cut down 
 a great quantity of timber of great value, their title being doubtful, the 
 court entertained a bill at the suit of the lord of the manor to restrain the 
 assertion of it. But in this, and indeed in all cases of waste, the title of 
 the plaintiff must be set forth fully { l \ and particularly in his bill, else the 
 defendant may demur. The bill must likewise be supported by an affida- 
 vit of the waste committed or {-} threatened ; though in some cases the in- 
 junction has been granted without one. But the court will not restrain 
 the defendant from working a mine already opened, even where there is 
 an affidavit,(tf) unless it appear that he has only a term in the estate for 
 years or for life, and that the reversion be in the plaintiff: or,(5) that it 
 be a breach of an express covenant, or an undisputed mischief. 
 
 Stonor v. Strange, Mitf. Eq. Rep. 123 ; Whitelegg v. Whitelegg, 1 Bro. Ch. Rep. 
 57 ; P. R. C. 213. {Vide 4 Ves. J. 700, Dench v. Bampton. J 1 } And it must be 
 positively sworn to,' or the injunction will not be granted. 6 Ves. J. 784, Da vies v. 
 Leo. Nor will it be granted against a defendant who is in possession and claims by 
 an adverse title. 6 Ves. J. 51, Pillsworth v. Hopton ; 8 Ves. J. 89, Smith v. Collyer. 
 | 2 } 7 Ves. J. 417 ; 11 Ves. J. 54.1 (a) Lowther v. Stamper, 3 Atk. 496. (b) Anon. 
 Ambl. 209. K ' 
 
 If a parson commit waste upon the glebe, an injunction will be granted 
 on the application of the patron. So, if the widow of the late incumbent 
 commit waste during the vacancy. 
 
 Bradly v. Stratchy, Barnardist. Ch. Rep. 399 ; Stratchy v. Francis, 2 Atk. 217 ; 
 Hoskins v. Featherstone. 2 Bro. Ch. Rep. 552 ;] { 1 Bos. & Pul. 105, Jefferson v. The 
 Bishop v. Durham.} 
 
 || The lord of a manor is now held to be entitled to an injunction and 
 account, in respect of waste committed by a copy-holder. 
 
 Richards v. Noble, 3 Meriv. 673 ; seel vide Dench v. Bampton, 4 Ves. 700. || 
 
 If a tenant for life plant woad on the land, which is of so poisonous a 
 quality that it destroys the principles of vegetation, without an express 
 power in his lease, where it is usual to have such powers, it may be con- 
 sidered as waste, and the Court of Chancery may grant an injunction. 
 
 MS. Rep. Marquis of Powis v. Dorall, Cane. 
 
 If there be lessee for life, remainder for life, the reversion or remainder 
 in fee, and the lessee in possession waste the lands ; though he is not 
 punishable for waste by the common law,(<?) by reason of the mesne re- 
 mainder for life, yet he shall be restrained in Chancery, for this is a par- 
 ticular mischief. 
 
 Moor, 554, S. P. ; I Vern. 23, S. P. ; [3 Atk. 94, 210, 723, S. P. :J {G Ves. J. 787,
 
 OF WASTE. 465 
 
 (N) Where Waste may be restrained by Injunction. 
 
 Davies v. Leo.} (c) That such lessee is not punishable by the common law, during 
 the continuance of the remainder, though after its determination he is. Vide 1 Inst 
 54 ; 2 Inst, 301. 
 
 But if such lessee has in his lease an express clause of without im- 
 peachment of waste, he shall not be enjoined in equity. 
 
 1 Vera. 23. Although a court of equity will not assist a forfeiture, yet the tenant in 
 possession shall be restrained in equity fvom committing waste in all cases in which 
 waste is punishable by law ; and fortius purpose an injunction will be granted before 
 the bill is filed. Also, iin injunction will be granted to stay waste in behalf of an infant 
 in ventre sa mere. Equity will likewise (in some particular cases) restrain the tenant from 
 committing waste, where it is dispunishable by law, either by the nature of his estate, 
 or by express grant of without impeachment of waste: but where, by the agreement of 
 the parties, the lease is made without impeachment of wade, equity will not restrain the 
 lessee from cutting timber, ploughing, opening mines, &c, though such lessee shall be 
 restrained from pulling down houses, defacing seats, &c. Hard. 96 ; 1 Chan. Rep. 13. 
 14, 100, 110 ; 2 Vera. 392, 711 ; 1 Salk. 161 ; 2 Chan. Ca. 32; 2 Chan. Rep. 94. 
 
 [A tenant for years, remainder to B for life, remainder to C in fee. A 
 is doing waste. B, though he cannot bring waste, not having the inherit- 
 ance, is yet entitled to an injunction. But if the waste be of a trivial 
 nature,(tf) and a fortiori if it be a meliorating waste, as by building on 
 the premises, (see Co. Litt. 53,) the court will not enjoin ; nor, if the re- 
 versioner or remainder-man in fee be not made a party, who possibly 
 may approve of the waste. 
 
 Roswell's case, 1 Roll. Abe. 377. (a) Mollineux v. Powell, Pasch. 1730, per Ld. 
 King ; 3 P. Wms. 203, note F ;] || Barry v. Barry, 1 Jac. & Walk. 651, acc.\\ 
 
 || In some cases, the Court of Chancery will grant an injunction against 
 mere permissive waste. 
 
 Caldwell v. Baylis, 2 Meriv. 408. 
 
 Where a tenant defending an ejectment at suit of his landlord makes 
 default at the trial, and makes use of the interval to commit wilful waste, 
 the court will grant an injunction against him in vacation ; but it was 
 refused where no ejectment was brought. 
 
 Lathrop v. Marsh, 5 Ves. 201 ;|| jSKinsler v. Clarke, 2 Hill's Ch. 618.£f 
 
 If A is tenant for life, remainder to B for life, remainder to the first 
 and other sons of B in tail-male, remainder to B in tail, &c, and B (be- 
 fore the birth of any son) brings a bill against A to stay waste, and A 
 demurs to this bill because the plaintiff had no right to the trees, and no 
 one that had the inheritance was party ; yet the demurrer will be over- 
 ruled, because waste is to the damage of the public, and B is to take care 
 of the inheritance for his children, if he has any, and has a particular 
 interest himself, in case he comes to the estate. 
 
 Dayrel v. Champness, 1 Eq. Cas. Abr. 400. 
 
 On a motion for an injunction to stay a jointress, who was tenant in tail 
 after possibility, &c, from committing waste, it was urged, that she being 
 jointress within the 11th of H. 7, ought in equity to be restrained from 
 cutting timber, that being part of the inheritance, which, by the statute, 
 she is restrained from aliening ; and the court granted an injunction 
 against wilful waste in the site of the house, and pulling down houses. 
 
 1 Eq. Cas. Abr. 400, Cook v. Whaley; [Pr. Ch. 454, S. C] 
 
 [On a bill to restrain a jointress without impeachment of waste from com- 
 mitting waste, a perpetual injunction was granted to restrain her and her 
 agent from ploughing the pasture and meadow-lands of her jointure. 
 
 Bassett v. Bassett, Finch's Rep. 190.1 
 
 Vol. X.— 50
 
 466 OF WASTE. 
 
 (N) Where "Waste may be restrained by Injunction. 
 
 But where a jointress had a covenant that her jointure should be of sucH 
 a yearly value, which fell short, though her estate was not without impeach- 
 ment of waste; yet the court would not prohibit her committing waste, 
 so far as to make up the defect of her jointure. But quaere if an action 
 of waste be brought against her, if Chancery will enjoin the action. 
 
 Finch's Eep. 190, Carew v. Carew. 
 
 It seems to be a general principle, however, that — 
 
 Tenant in tail, after possibility, shall be restrained in equity from do- 
 ing waste by injunction, &c, because the court will never see a man dis- 
 inherited ; per Chance, Finch. And he took a diversity where a man is 
 not punishable for waste, and where he hath a right to do waste ; and 
 cited Uvedale's case, 24 Car. 1, ruled by the Lord Rolle to warrant that 
 
 distinction. 
 
 2 Show. 09, pi. 53, Abraham v. Bubb. A woman, tenant in tail, after possibility 
 of issue extinct, was restrained from committing waste in pulling down houses, or 
 cutting down trees, which stood in defence of the house, and fruit trees in the garden; 
 but for some turrets of trees, which stood a land's length or two from the court, would 
 grant no injunction, because she had by law power to commit waste : and yet she was 
 nevertheless restrained in the particulars aforesaid, because they seemed to be mali- 
 cious, 2 Freem. 278, 279, pi. 349. 
 
 A devised lands, on which timber was growing, to his wife for life, re- 
 mainder to B in fee, paying several legacies within a limited time, and 
 in default of payment the remainder to C, he paying the legacies ; and 
 on a bill brought by B the court gave him leave to cut timber for the 
 payment of the legacies, though it was opposed by the tenant for life 
 and the devisee over, he making satisfaction to the widow for breaking 
 the ground by carriage, waste, &c. 
 
 2 Vera. 152, Claxton v. Claxton. 
 
 So, where a man created a term for 500 years, in trust for himself and 
 his wife for life, remainder to trustees for payment of debts and annui- 
 ties ; and by will devised the reversion thereof to A for life, without im- 
 peachment of waste, remainder to his first and other sons in tail-male, 
 with remainder over ; A being in want, the court gave him leave to cut 
 down timber to the value of 5001. though the debts and annuities were 
 not paid ; the trustees having no power to sell the timber, the debts being 
 like to have a long continuance, and there being a great deal of decay- 
 ing timber on the estate. 
 
 2 Vern. 218, Assimwall v. Leigh et al. 
 
 [A tenant for life, remainder to B his son in tail, remainder to C for life, 
 with remainders over. A files a bill in his own name and that of B his 
 son, then an infant, stating (inter alia) that there were great quantities 
 of timber upon the estate going to decay, and praying that he (A) might be 
 empowered to cut down and sell such timber as was decaying or at its full 
 growth, for the benefit of B. The defendants by their answers admitted 
 that there were several trees in a state of decay, and that it would be for 
 the benefit of all persons interested in the premises to have them cut down. 
 It was decreed, that the Master should inquire what timber was standing 
 upon the estate that was in a decaying condition, which was neither a 
 shelter nor ornament to the seat, and that such decaying timber as the 
 Master should direct should be cut down and sold, and the produce of 
 the sale invested, upon proper security, in the names of trustees for the 
 benefit of B, the infant, to be paid him when he came to age. 
 
 Bowicke v. Whitfield, 3 Cox's P. Wms. 2GG. In this case it is to be observed, the
 
 OF WASTE. 467 
 
 (N) Where Waste may be restrained by Injunction. 
 
 tenant for life was a co-plaintiff with the remainder-man in tail, and claimed no 
 benefit from the sale of the timber. But supposing a contract to be entered into be- 
 tween the tenant for life and remainder-man to share in the profits of the sale, (which 
 seems not to be unreasonable, for no timber can be cut without the consent of the 
 tenant for life,) could the court in that case authorize the cutting down of the timber? 
 For if the remainder-man in tail were to die before his estate vested in possession, 
 the rights of the person next in remainder would be varied. Where, therefore, the 
 court had authorized the cutting down of timber on the estate of an infant tenant in 
 ' tail in remainder, and the tenant for life claimed a life-estate in the money produced by 
 the sale, Lord Commissioner Eyre said, he thought the court had done wrong in doing 
 for the tenant in tail what he could not do for himself, and the money was ordered to 
 be invested in the funds, that when the infant came of age, the claims of the parties 
 might be discussed in a bill. Mildmay v. Mildmay, 4 Bro. Ch. R. 7G. It is, however, 
 a rule, that the money raised by the sale of timber cut down by tenant for life, impeach- 
 able of waste, shall be paid to him who has the first estate of inheritance, whether 
 in fee or in tail ; and this, though there may be several intermediate remainders that 
 ;may arise. Lee v. Alston, 3 Bro. Ch. R. 37. But yet, where the tenant for life has 
 also in himself the next existent estate of inheritance, subject to intermediate contin- 
 gent remainders, he shall not take advantage of his own wrong in cutting down 
 i timber, but the court will preserve it for the benefit of the contingent remainder-men. 
 Williams v. Duke of Bolton, Feb. 24, 1784, 3 Cox's P. Wms. 268, note (1). 
 
 In general, an injunction will not issue where the persons applying for 
 : it are tenants in common with the person in possession; for he has an 
 , equal title to the possession with them, and they may have a partition 
 • against him. However, where it appeared that the person in possession 
 bras insolvent, and could not pay the plaintiffs their share of the money 
 -{produced by the sale, Lord Chancellor granted the injunction. 
 Smallman v. Onions, 3 Bro. Ch. R. 021.] 
 
 || The general rule is, that the court will not grant an injunction against 
 a tenant in common, to stay mere equitable waste, though malicious de- 
 struction may be a ground for an injunction ; and where one tenant in 
 1 common becomes tenant of the other moiety, the court will restrain him 
 from ploughing up meadow or cutting timber ; since, by becoming tenant, 
 'he engages, as to one moiety, to treat the land as a tenant ought to 
 treat it. 
 Hole v. Thomas, 7 Ves. 589 ; Twort v. Twort, 16 Ves. 130; sed vide 8 Term R. 145. || 
 
 13 In Pennsylvania, the writ of estrepement of waste does not lie of 
 : course, but must be grounded on an affidavit of actual waste, done or 
 permitted. 
 
 Dickinson v. Nicholson, 2 Yeates, 281. 
 
 Chancery only interferes to prevent future waste, except where there 
 are some special grounds for equitable interference as to waste already 
 committed. 
 
 Winship v. Pitts, 3 Paige, 259. 
 
 On a bill with proper allegations filed, the chancellor "will restrain 
 waste. 
 
 Downing v. Palmateer, 1 Monr. 65. £/ 
 
 In what Cases Waste may be restrained in Equity, notwithstanding the Words without 
 Impeachment of Waste, be contained in the Lease, &c. 
 
 It is true that a lease ivithout impeachment of waste takes off all re- 
 straint from the tenant of doing it ; and he may in such case pull up, or 
 cut down wood or timber, or dig mines, &c, at his pleasure, and not be 
 liable to any action. 
 
 Plowd. 135. [At common law, the clause, without impeachment of waste, only
 
 468 OF WASTE. 
 
 (N) Where Waste may be restrained by Injunction 
 
 exempted the tenant for life from the penalty of the statute, the recovery of treble 
 value, and the place wasted, not giving the property of the thing wasted. But in 
 Lewis Bowie's case, 11 Co. 79, it was determined, that these words also gave the 
 property; the necessary consequence of which was, that in general, unless on particu- 
 lar circumstances, he was not to be restrained in equity; for that would be to deter- 
 mine that lie should not make use of that property which the law allowed him. But 
 afterwards several instances were considered, in which this very large power might 
 be exercised contrary to conscience and in an unreasonable manner by the tenant for 
 life; as where his act was to the destruction of the thing settled; which was the 
 ground of Lord Bernard's case, the strongest that could happen : yet that was not an 
 original case without precedent or judicial opinion to support it, as appears from a 
 case 5 Jac. 1, (before Lewis Bowie's case,) which probably occurred then, though the 
 determination there did not operate upon it. Per Lord Ilardwicke, 1 Ves. 2G5.] 
 
 But though the tenant may let the houses be out of repair, and cut down 
 trees, and convert them to his own use : yet, where a tenant in fee-simple 
 made a lease for years without impeachment of waste, it was adjudged, 
 that the lessor had still such a property, that if he cut and carried away 
 the trees, the lessee could only recover damages in an action for the 
 trespass, and not for the trees : Also it hath been held, that tenant 
 for life, without impeachment of ivaste, if he cuts down trees, is only ex- 
 empt from an action of waste, &c. 
 
 11 Hep. 82 ; 1 Inst. 220 ; 2 lust. 14G ; G Rep. G3 : Dyer, 184. 
 
 And if the words are, To hold without impeachment of any writ or 
 action of ivaste, the lessor may seize the trees, if the lessee cuts them 
 down, or bring trover for them. 
 
 Wood's Inst. 74. 
 
 In many cases, likewise, the Court of Chancery will restrain waste, 
 though the lease, &c, be made without impeachment of ivaste. For, 
 
 The clause of without impeachment of ivaste, never was extended to 
 allow the very destruction of the estate itself, but only to excuse for 
 permissive waste, and therefore such a clause would not give leave to fell 
 or cut down trees ornamental or sheltering of a house, much less to de- 
 stroy or demolish a house itself. Thus — 
 
 A bill was brought by a remainder-man to restrain the tenant for life, 
 without impeachment of waste, from cutting timber in Westwood Park 
 improper to be felled ; and Lord Chancellor granted the injunction to 
 restrain the defendant from cutting timber, which served for shelter or 
 ornament to the house, or which grew Sn lines, avenues, or ridings for 
 ornament, and also any other timber in the park, which was not of 
 proper growth to be felled. — And his lordship in this case declared, that 
 courts of equity had in this respect established rules much more re- 
 strictive than those of the common law ; which gave tenant for life, 
 without impeachment of waste, as large a power over the timber as 
 tenant in fee-simple, that timber might be had for public use. 
 
 MS. Hep. in Chanc. 1744, Packington v. Packington ; [3 Atk. 215, S. C. In this 
 case the plaintiff alleged, that the defendant, Sir II. Packington, had cut down a great 
 number of trees, and had threatened to cut down and destroy them all: that Sir H. 
 Packington's agent had agreed for the sale of 2000 trees, and that in consequence 
 thereof some trees had been actually felled. It does not appear from the allegations of 
 the plaintiff upon moving for the injunction, whether the agent had admitted this fact. 
 Sir II. Packington's answer was not come in. Lord Ilardwicke granted the injunction 
 to restrain Sir II. Packington, his agents, servants, and workmen, from cutting down 
 timber trees growing in Westwood Park aforesaid, which were for the shelter or orna- 
 ment of the said mansion-house there ; and also any timber trees, which were plauted 
 or grew in any lines, avenues, or ridings for the ornament of the said park, until the said
 
 OF WASTE. 469 
 
 (X) Where Waste ma}' be restrained by Injunction. 
 
 Sir II Packington should fully answer the plaintiff's bill. Reg. Lib. B. 1744, foL 325. 
 ' j6 Ves. J. 41 ( J, Lord Tamworth v. Lord Ferrers ; 8 Ves. J. 70, Williams v. M'Naniara. 
 The cutting of clumps of firs planted for ornament on a common at the distance of 
 two miles from the house will in like manner be restrained. 6 Ves. J. 197, Marquis of 
 Downshire v. Lady Sandys.} jj See Coffin v. Coffin, Jacob, 70, and G Madd. 17. || 
 
 Likewise, where A upon his marriage settled lands to the use of himself 
 and M his wife, and the heirs of their two bodies ; afterwards A died with- 
 out issue, M married D the defendant, being then tenant in tail after pos- 
 sibility of issue extinct: and M and D having felled some trees in a grove 
 Ithat grew near, and was an ornament to the mansion-house, and having 
 an intention to fell the rest; the plaintiff, to whom the lands belonged in 
 remainder, brought his bill to restrain M from felling those trees, and to 
 have an injunction to stay the committing of waste. This cause was re- 
 ferred, and if the parties could not agree, then to be set down again. 
 ,But Lord Chancellor Nottingham discovered his inclination fortiter for 
 granting an injunction. 
 
 2 Freem. Rep. 53, Abraham v. Bubb. || See S. C, 2 Show. 69 ; 2 Eq. Ca. Ab. 757, 
 and Lord Nottingham's MSS. 2 Swanst. R. 172. This case was decided by Lord 
 Nottingham on the reasons of Skelton v. Skelton, (see 2 Swanst. 170, noia ;) and ac- 
 cording to the report in 2 Freem. his lordship gives again most of the reasons and 
 cases which are stated in his MSS. of the decision of Skelton v. Skelton ; and see 
 3 Swanst. 493, nofd.\\ His lordship said, if there be tenant for life without impeach- 
 ment of waste, and he goes to pull down the houses, Sec, to do waste maliciously, this 
 court will restrain, although he hath express power by the act of the party to commit 
 waste ; for this court will moderate the exercise of that power, and will restrain 
 extravagant humorous waste, because it is pro bono publico to restrain it ; and he said 
 he never knew an injunction denied to stay the pulling down of houses by tenant for 
 life without impeachment of waste, unless it were to Serjeant Peck in Lord Oxford's 
 case, || cited Cro. Eliz. 777, || and said, he believed he should never see this court deny 
 it again. Freem. 54. 
 
 So, where a lease was made by a bishop for twenty-one years, without 
 impeachment of waste, of land that had many trees upon it, and the tenant 
 cut down none of the trees till about half a year before the expiration of 
 his term, and then began to fell the trees ; the court granted an injunc- 
 tion ; for though he might have felled trees every year from the beginning 
 of his term, and then they would have been growing up again gradually, 
 yet it is unreasonable that he should let them grow till towards the end 
 of his term, and then sweep them all away : for though he had power to 
 commit waste, yet this court will model the exercise of that power. 
 
 2 Freem. 55 ; |{ and see the report from Lord Nottingham's MSS., 2 Swanst. R. 172, 
 Lady Evelyn's case cited. Ibid. 
 
 So, in the case of tenant for life, remainder to the first son for life 
 without impeachment of waste, with remainder over, the first son, by the 
 leave of the lessee of tenant for life, comes upon the land, and fells the 
 trees, although he could not in that case be punished by an action of 
 waste, yet he was enjoined by this court. 
 
 2 Freeem. 55 ; ijand see 3 Swanst. G99.|| 
 
 Likewise, where A on the marriage of his eldest son, in consideration 
 of 10,000/. portion, settled (inter alia) Raby Castle on himself for life, 
 without impeachment of ivaste, remainder to his son for life, and to his 
 first and other sons in tail-male; afterwards, having taken some dis- 
 pleasure to his son, he got 200 workmen together, and of a sudden 
 stripped the castle of the lead, iron, glass, doors, and boards, &c, to the 
 value of 3000/. ; the court, on the son's filing his bill, granted an injunc- 
 
 2R
 
 470 OF WASTE. 
 
 (X) Where Waste may be restrained by Injunction. 
 
 tion to stay the committing of waste in pulling down the castle, and upon 
 hearing the cause, decreed not only the injunction to continue, but that 
 the castle should be repaired, and put in the same condition it was in; 
 and for that purpose a commission was to issue to ascertain what ought 
 to be repaired, and a master to see it done at the charge and expense of 
 the father, and the son to have his costs. 
 
 2 Yern. 738, 739 ; 1 Salk. 101, S. C, Vane v. Lord Bernard. 
 
 A bishop of London, in Edward the Sixth's time, made a long lease, 
 of which there were about twenty years to come, and the lease was made 
 without impeachment of waste; W, in whom by several mesne assign- 
 ments the remainder of this lease was vested, articled with brick-makers, 
 that they might dig and carry away the soil of twenty acres six feet deep, 
 provided they did not dig above two acres in the year, and levelled those 
 acres before they dug up others. The (now) bishop of London having 
 the inheritance in right of his bishopric, brought a bill to enjoin the dig- 
 ging of the ground for brick: Lord Chancellor Parker directed, that W 
 might carry off the brick he had dug, but ordered an injunction to stop 
 further digging. 
 
 1 P. Wms, 527, Bishop of London v. Webb. His lordship said, that before the 
 statute of Gloucester, waste did not lie against lessee for years, and the being without 
 ■impeachment of waste seems originally intended only to mean that the party should 
 not be punishable by that statute, and not to give a property in the trees or materials 
 of a house pulled down by lessee for years sans ivastc ; but he said, that the resolutions 
 having established the law to be otherwise, he would not shake it, much less carry it 
 further, and that he took this case, the Bishop of London v. Webb, to be within the 
 reason of Lord Bernard's case ; where, as he was not permitted to destroy the castle 
 to the prejudice of the remainder-man, so neither shall the lessee in the present case 
 destroy this field against the bishop, who has the reversion in fee, to the ruin of the 
 inheritance of the church. Ibid. 528, 529. 
 
 [A very considerable real estate was limited to Mrs. Rolt, who after- 
 wards married the defendant, the Lord Somerville, for life, without im- 
 peachment of waste, remainder to the plaintiff Rolt for life, without im- 
 peachment of waste, with several remainders over. The defendant, the 
 Lord Somerville, to make the most of this estate during the life of his wife, 
 pulled down several houses and out-buildings upon the estate, and sold 
 them, and also took up lead water-pipes, that were laid for the conveyance 
 of water to the capital messuage, and disposed thereof; and he also cut 
 down several groves of trees that were planted for shelter or ornament of 
 the capital messuage. Upon this a bill was brought by the plaintiff to 
 compel the defendant to account for the money raised by the particulars 
 before mentioned, and to put the estate in the same plight and condition it 
 was in before. The defendant demurred, and insisted that this waste was 
 committed by tenant for life without impeachment of waste, and therefore 
 he was not liable to be called to an account for what he had done either at 
 law or in equity; and if he was, yet the plaintiff could not call him to an 
 account, because he was not a remainder-man of the inheritance. Lord 
 Hardwicke, — Though an action of waste will not lie at law for what is 
 done to houses, or plantations for ornament or convenience by tenant for 
 life, without impeachment of waste, yet this court hath set up a superior 
 equity, and will restrain the doing of such things on the estate. In Lord 
 Bernard's case the court restrained him from going on, and ordered the 
 estate to be put in the same condition. In Sir Blundel Charleton's case, 
 the Master of the llolls decreed, that no trees should be cut down that
 
 OF WASTE. 471 
 
 (X) Where Waste may be restrained by Injunction. 
 
 were for the ornament of the park; but Lord Chancellor King reversed 
 that, and extended it only to trees that were planted in rows. My only 
 doubt is, as to the trees that have been cut down ; for if this bill had been 
 brought before such trees (a) had been cut down as were fur the ornament 
 or shelter of the estate, this court would have interposed : but here the 
 mischief is done, and it is impossible to restore it to the same condition as 
 to the plantations, and therefore it can lie in satisfaction only ; and I can- 
 not say the plaintiff is entitled to a satisfaction for the timber, which is a 
 damage to the inheritance ; yet, as to pulling down the houses and build- 
 ings, and taking up the lead pipes, that may be restored, or put in as good 
 condition again. In my Lord Bernard's case, there were directions for an 
 issue at law to charge his assets with the value of the damages, he not 
 having performed the decree in his lifetime. The demurrer was allowed 
 as to satisfaction on account of the timber, but overruled as to the rest. 
 
 Rolt v. Lord Sommerville, 2 Eq. Ca. Abr. tit. Waste, (A), pi. 8. {a) Even where a 
 son, tenant in tail, brought a bill against his father tenant for life, without impeach- 
 ment of waste, charging waste in pulling up a deal floor, removing some young oaks, 
 and turning meadow into plough land, but did not apply for an injunction, the bill 
 was dismissed. Piers v. Piers, 1 Ves. 521. For the ground of going into a court of 
 equity is to stay the waste, not by way of satisfaction for the damages, but by way of 
 prevention of the wrong. The account is only incident to the preventive jurisdiction 
 by injunction, and is given upon the maxim of preventing a multiplicity of suits, that 
 the party may not be obliged to proceed both at law and in equity. The court there- 
 fore have refused to entertain a bill merely for satisfaction for timber cut down after 
 the estate of the tenant who cut it down was determined, no injunction having been 
 prayed. Jesus College v. Bloom, 3 Atk. 2G2. 
 
 Sir T. A., in the same settlement in which he made himself tenant for 
 life without impeachment of waste, with full liberty to commit waste, set- 
 tled a jointure upon his wife for life, without impeachment of waste. On 
 settling another part of his estate, he created a term on trust to secure a 
 rent-charge of 300?. per annum to his wife, as a further part of her jointure, 
 and afterwards out of the rents and profits thereof to raise money from time 
 to time, to reimburse her expenses in sustaining and repairing her jointure 
 estate. A bill was brought by the daughter of Sir T. A. after his death and 
 the death of her brother without issue, against her mother, to enjoin her 
 from committing spoil and destruction on her jointure estate, and for satis- 
 faction for the damage done thereby ; suggesting that she had cut down even 
 such timber as was not fit for repairs, and young saplings, &c, leaving 
 not a twig on the estate. Lord Hardwicke, upon the general ground, con- 
 sidering the question merely as it concerned tenant for life without im- 
 peachment of waste under a settlement, seemed to think that the court 
 could not interpose to prevent such a tenant from cutting down timber in an 
 improper state. But, on the special circumstances of the case, his lordship 
 expressed himself to this effect, — This settlement is all in the settler's 
 own handwriting, who does not appear to have been a lawyer ; and though 
 a counsel was said to be employed, there is no evidence thereof. It is na- 
 tural to suppose, that from the variety of expressions in the additional 
 words to the clause, wherein he make3 himself tenant for life, he thought 
 there was some difference. Besides, the term for his wife's reimbursement 
 is extraordinary ; and it is absurd to suppose he meant to leave her at liberty 
 to cut down and strip the estate of every stick of timber, (which are the 
 natural botes for repairs,) and then to come by this term to be reimbursed 
 her expenses in buying timber of repairs : it is contrary to the plain in- 
 tent, which was that she should be tenant for life without impeachment
 
 472 OF WASTE. 
 
 (X) Where Waste may bo restrained by Injunction. 
 
 of waste, to prevent trouble in little matters ; but that she should be 
 reimbursed out of this term what she should pay out of her own pocket. 
 Therefore, as the defendant has cut down timber on this estate without 
 applying it to repairs, she shall have no benefit of this term, till she has 
 reimbursed to the estate what she has so unreasonably cut away ; and as 
 to the future, the evidence being, that she has left no timber fit even for 
 the repair of farm-houses, I shall restrain her by the decree from cutting 
 any more timber off the estate without leave of the court. 
 Aston v. Aston, 1 Ves. 264. 
 
 T D devised his real estates, situate at C, W, and B, to his wife, the de- 
 fendant, for life, remainder to E H for life, remainder to the plaintiff in fee. 
 Just before his death he added two codicils, the last of which, and the 
 material one in the present question, was in these words: — "Whereas I 
 have devised my estates by my last will and testament, as therein men- 
 tioned, and my dear wife has no power to cut down any timber ; now / 
 give unto my said wife for and during so long time as she shall continue 
 my widow, full power and authority to cut timber upon any part of my 
 estate, for her own use and benefit, at all seasonable times of the year." 
 The defendant, under this power, made contracts for, and began to fell 
 timber ; whereupon the plaintiff filed his bill against her, charging, that 
 she had cut down a great many trees that had been planted for shelter 
 and ornament to the mansion-houses, and which stood in the lawns, gar- 
 dens, and pleasure-grounds belonging to the testator, and also great num- 
 bers of saplings, and timber trees unfit to be cut, and praying an account 
 of the timber so cut, and satisfaction for the same, and an injunction to 
 restrain the defendant from committing waste and destruction upon the 
 estates. The defendant in her answer admitted, that she had cut down 
 several trees in the lawns and pleasure-grounds, but insisted that it was 
 for the improvement of the place, by widening the passages, and prevent- 
 ing damps ; she also alleged, that oak and ash trees of such a dimension 
 were accounted timber trees, and that she had cut down none under such 
 sizes. An injunction, (a) however, was granted to restrain her from cutting 
 trees which were saplings, and not proper to be cut as timber. The de- 
 fendant afterwards intermarried, and the cause coming on to be heard, (b) 
 Lord Chancellor was pleased to direct a trial at law upon the following 
 issue, viz., Whether the defendant had cut any trees or other timber which 
 had been placed, or designedly left for the ornament or shelter of the man- 
 sion-house, gardens, and pleasure-grounds at C and at W ; and also, whe- 
 ther she had cut any saplings or young trees down which are not proper 
 to be felled as timber, and what damage had been sustained thereby. 
 
 Chamberlyne v. Dummer, 1 Bro. Ch. Rep. ICG. (a) The injunction was said to issue 
 nearly in the terms of that of Obrien v. Obrien, 20th May, 17") I, which was, to restrain 
 the defendants from cutting any timber trees or other trees growing upon the estates, 
 which were planted or growing there for the ornament or shelter of the mansion-house, 
 or that grew in vistas, planted walks, or lines, for the ornament of the park part of 
 the estate, and also from cutting down any saplings growing on any part of the estate 
 not proper to be felled, till answer or further order. (6) 3 Bro. Ch. Hep. 549. 
 
 || Cutting timber where necessary for the growth of underwood is not 
 waste. 
 
 Burgos v. Lamb, 16 Ves. 179. || 
 
 A bill was filed by the eldest son, tenant in tail, expectant on the death 
 of the father, tenant for life, to restrain the father from committing waste,
 
 OF WASTE. 473 
 
 (X) Where "Waste may be restrained by Injunction. 
 
 by cutting down timber, especially such as was ornamental to the house. 
 The court, upon affidavit, and certificate of the bill filed, granted an 
 injunction to restrain the defendant from committing waste upon such 
 part of the estate, whereof he was subject to impeachment for waste, 
 and as to the mansion-house, out-houses, gardens, and orchards, timber 
 growing for ornament and shelter to the house, to restrain him from com- 
 mitting waste therein till answer or further order. 
 
 Leighton v. Leigbton, 22d March, 1747-8, 1 Bro. Ch. Rep. 167.] 
 
 || There has been much uncertainty as to what is, and what is not to be 
 considered ornamental timber. The principle on which the court has gone 
 is, that if the testator, or author of the interest by deed, had gratified his 
 own taste by planting for ornament, though he had adopted the species 
 the most disgusting to the tenant for life, and the most agreeable to the 
 tenant in tail, and upon the competition between those parties, the court 
 should see that the tenant for life was right, and the other wrong, in point 
 of taste, yet the taste of the testator, like his will, binds them ; and it is 
 not competent to them to substitute another species of ornament for that 
 which the testator designed. The question, which is the most fit method 
 of clothing an estate with timber for the purpose of ornament, cannot be 
 safely trusted to the court. 
 
 Per Lord Eldon, Ves. 149 ; and see ace. Lushington v. Boldero, 6 Madd. 149. 
 
 And, therefore, it is not enough for the affidavits to ground an injunction 
 to show that the trees are ornamental. It must be shown that they were 
 planted or left standing for the purpose of ornament. 
 
 Coffin v. Coffin, Jacob, 70. 
 
 The principle has been extended from ornament of the house to out- 
 houses and grounds, then to plantations, vistas, avenues, and all the rides 
 about the estate for ten miles round : and in the case of the Marquis of 
 Downshire v. Sandys, it was held to extend to clumps of firs on a common 
 two miles distant from the house, they having been planted for ornament. 
 
 Marquis of Downshire v. Sandys, 6 Ves. 107 ; and see Tamworth v. Ferrers, G Ves. 
 419 ; Davis v. Leo, Ibid. 787. 
 
 And the court granted the injunction where the trees were planted to 
 exclude objects from view ; holding this case within the principle. 
 Day v. Merry, 16 Ves. 375 ; and see Burges v. Lamb, Ibid. 174. 
 
 But the injunction will not be extended to trees which protect the pre- 
 mises from the effects of the sea. And the court refused in one case to 
 insert in the order the words "contributing to ornament," and the in- 
 junction was accordingly taken according to Chamberlyne v. Dummer 
 {supra) in the terms " standing for ornament or shelter." 
 
 Coffin v. Coffin, Jacob, 70; Williams v. Macnamara, 8 Ves. 70; and see Jacob, 71, 
 
 notd.\\ 
 
 /3 A -was tenant for life without impeachment of waste, except as to 
 " the timber growing in the park, avenues, demesne lands, and woods 
 adjoining to the capital messuage;" he cut timber in woods not precisely 
 answering to that description, but which were an ornament or shelter to 
 the messuage. Held that he was guilty of equitable waste, and an 
 account was directed and injunction granted. 
 
 Newdigate v. Newdigato, 2 Clark. & Fin. 601.£f 
 
 [Lands were devised to trustees to be sold, and the money to be laid 
 out in the purchase of other lands, which, when purchased, were to be set- 
 Vol. X.— 60 2 R 2
 
 474 OF WASTE. 
 
 (0) What Relief may be given in Equity, in Cases of Waste. 
 
 tied to the use of A for life, without impeachment of waste, remainder 
 over. The rents and profits of the lands to be sold were directed to be, 
 till sale, to the use of the same persons who would be entitled to the lands 
 that were to be purchased. It was decreed that A, the tenant for life, 
 could not cut down timber on the lands that were directed to be sold. 
 Countess Dowager of Plymouth v. Lady Archer, 1 Bro. Ch. Hep. 159. 
 
 Although, as appears from the above cases, an injunction will issue to 
 prevent a tenant for life without impeachment of waste from committing 
 improper waste, yet if the answer deny any intention of doing so, be not 
 excepted to, and be full, the order for the injunction will be discharged. 
 
 Countess of Strathmore v. Bowes, 2 Bro. Ch. Rep. 88.] 
 
 || The act of sending a surveyor to mark out trees is a sufficient threaten- 
 ing of waste to be a ground for an injunction. 
 
 Jackson v. Cator, 5 Ves. 688. [J 
 
 (0) What Relief may be given in Equity, in Cases of Waste. 
 
 A bill was brought to restrain tenant in dower from getting peat : Lord 
 Chancellor dismissed it with costs, as it appeared to be vexatious; the peat 
 she sold not being above the value of ten pence. But herein it was said, 
 that digging peat is in many places the ordinary bote ; and perhaps the 
 only fruit that can arise from the land. They do not carry away the 
 soil, for they dig off the turf, then take away the peat, and lay the turf 
 down again : and tenant for life can no more dig peat to sell than cut 
 down timber to sell ; and the Chancellor said, if he was to give any 
 relief, he must direct an issue ; but that the cause was of too frivolous a 
 nature to maintain the expense. 
 
 MS. Rep. Wilson v. Bragg, 3 March, 1742. 
 
 A bill being brought to redeem a mortgage, on the hearing, an account 
 was decreed, and 240/. reported due ; to which report the plaintiff had 
 taken exceptions. The cause thus standing in court, the Lord Keeper, 
 on a motion, and reading affidavits that the defendant had burnt some of 
 the wainscot and committed waste, ordered the defendant to deliver up 
 possession to the plaintiff, who was a pauper, giving security to abide 
 that event of the account. 
 2 Tern. 392, Hanson v. Derby. 
 
 A tenant for life, remainder to trustees to preserve, &c, remainder to C 
 the plaintiff in tail, remainder over, with power to A with consent of trus- 
 tees to fell timber, and the money arising to be vested in lands, &c, to 
 same uses, &c. A felled timber to the value of 3000/. with consent of 
 trustees, who never intermeddled, and A had suffered some of the houses 
 to go out of repair. C by bill prayed an account and injunction. The 
 Master of the Rolls said, that the timber might be considered under two 
 denominations, to wit, such as was thriving and not fit to be felled ; and such 
 as was unthriving, and what a prudent man and a good husband would 
 fell, &c, and ordered the Master to take an account, ike. And the value 
 of the former, which was waste, and therefore belongs to the plaintiff, who 
 is next in remainder of the inheritance, is to go to the plaintiff, and the 
 value of the other is to be laid according to the settlement, &c. But as to 
 repairs, the court never interposes in case of permissive waste, either to 
 prohibit or give satisfaction, as it does in case of wilful waste ; and where 
 iha court have jurisdiction of the principal, viz., the prohibiting, it docs in
 
 OF WASTE. 475 
 
 (0) What Relief may be given in Equity, in Cases of Waste. 
 
 consequence give relief for waste done, either by way of account, as for 
 timber felled, or by obliging the party to rebuild, &c, as in case of 
 houses, &c, and mentioned Lord Bernard's case as to Raby Castle. 
 2 Vera. But as to repairs, it was objected, that the plaintiff here had 
 no remedy at law by reason of the mesne estate for life to the trustees, 
 between plaintiff's remainder in tail, and defendant's estate for life, and 
 that therefore equity ought to interpose, &c, and that this was a point 
 of consequence. Sed non allocatur. 
 
 MS. Rep. Mich. Vac. 1733, Lord Castlemain v. Lord Craven. 
 
 A lord of a manor may bring a bill for an account of ore dug, or 
 timber cut, by the defendant's testator. — Thus, 
 
 A customary tenant of lands, in which was a copper mine, that never 
 had been opened, opened the same, and dug out and sold great quantities 
 of ore, and died ; and his heir continued digging and disposing of great 
 quantities out of the said mine. The lord of the manor brought a bill in 
 equity against the executor and heir, praying an account of the said ore ; 
 and alleged that these customary tenants were as copyhold tenants, and 
 that the freehold was in the plaintiff as lord of the manor and owner of 
 the soil : and that the manner of passing the premises was by surrender 
 into the hands of the lord, to the use of the surrenderee. It was insisted 
 for the defendants, that it did not appear that the admittance, in this 
 case, was to hold ad voluntatem domini secundum consuetudinem, &c, 
 without which words, it was insisted, there could be no copyhold, as had 
 been adjudged in L. Ch. J. Holt's time. And L. C. Cowper said it 
 would be a reproach to equity to say, that where a man has taken 
 another's property, as ore, or timber, and disposed of it in his lifetime, 
 and dies, there should be no remedy. 
 
 1 P. Wms. 40G, Bp. of Winchester v. Knight. But his lordship said, in this case, 
 that as to the trespass of breaking up meadow or ancient pasture-ground, it dies with 
 the person. Ibid. ||See Richards v. Noble, 3 Meriv. G73.|| 
 
 || And in a late case, Sir Thomas Plumer, V. C, overruled a demurrer 
 to a bill against the representative of a tenant for life, for an account of 
 equitable waste committed by him, and for relief, on the principle that, 
 where equitable waste has been committed, the court has jurisdiction to 
 make the representative of the party committing it accountable. 
 
 Lansdown v. Lansdown, 1 Madd. 141. || 
 
 Converting a brewhouse into tenements of a greater value, is waste, 
 notwithstanding the melioration, by reason of the alteration of the nature 
 of the thing and of the evidence ; and so resolved on a trial before Hale, 
 C. J., and the jury gave the verdict accordingly, and 100 marks single 
 damages, which being trebled amounted to 200?., which the Chancery 
 compelled Cole to take. 
 
 Lev. 311, Cole v. Green. 
 
 Lessee for 500 years of land, about 200?. a year, built several houses, 
 and thereby improved the rents from 2001. a year to 1400?. a year, and 
 quietly enjoyed the same for twenty years and more, and then an action of 
 waste was brought for pulling down a brick wall, and cutting down fruit 
 trees, and digging gravel for laying the foundations of the houses built on * 
 the said ground. He brought a bill setting forth, that such building could 
 not be accounted any waste, but rather a melioration and improvement of 
 the land. The defendant pleaded the statute, by which provision is made
 
 476 OF WASTE. 
 
 (O) What Rel*s>f may be given m Equity, in Cases of Waste. 
 
 for bringing actions of waste. But the court overruled the plea, and or- 
 dered the defendant to answer and to speed the cause. 
 Fin. Rep. 135, Wild v. Sir Ed. Stradling. 
 
 An under tenant of a jointress commits waste sparsim, so as at law the 
 estate was forfeited, but insisted that he had improved the estate from 40J. 
 to 60/. per armum, and offered to take a lease of it at that rent for 50 years, 
 and to answer the value of the timber on a quantum damnijicatus. Qv.cere. 
 
 2 Vern. R. 2G3, pi. 2 17, Ligo v. Smith and Leigh. 
 
 One seised in fee of lands in which there were mines, all of them un- 
 opened, by a deed conveyed those lands, and all mines, waters, trees, &c, 
 to trustees and their heirs, to the use of the grantor for life, (who soon after 
 died,) remainder to the use of A for life, remainder to his first, &c, son in 
 tail-male successively, remainder to B for life, remainder to his first, &c, 
 son in tail-male successively, remainder to his two sisters C and D and the 
 heirs of their bodies, remainder to the grantor in fee. A and B had no 
 sons, and C, one of the sisters, died without issue, by which the heir of the 
 grantor as to one moiety of the premises had the first estate of inheritance: 
 A. having cut down timber and sold it, and threatened to open the mines, 
 the heir of the grantor, being seised of one moiety ut supra, by the death 
 of one of the sisters without issue, brought his bill for an account of the 
 moiety of the timber, and to stay A's opening of any mine : and it was 
 adjudged the right to this timber belongs to those who, at the time of its 
 being severed from the freehold, were seised of the first estate of inheri- 
 tance, and the property becomes vested in them. 
 
 2 P. Wms. 240, Whitfield v. Bewit. [It appears by Reg. Lib. B. 1723, fol. 576, 
 that there were in this case trustees to preserve the contingent remainders, and the bill 
 expressly stated applications to have been made to the heir of the surviving trustee, to 
 interpose and put a stop to the commission of the waste, but that he refused to act.] 
 
 A bill was brought against the executors of a jointress to have a satis- 
 faction out of assets for permissive waste upon the jointure of the testatrix, 
 &c. But by Cowper, C., the bill must be dismissed ; for here is no cove- 
 nant that the jointress shall keep the jointure in good repair ; and in the 
 common case, without some particular circumstances, there is no remedy 
 in law or equity for permissive waste after the death of the particular 
 tenant. 
 
 Vin. Abr. tit. Wasle, p. 523, cites MSS. Rep. I G. 1, in Cane. Turner v. Buck. IjSec 
 2 Meriv. 408. |j 
 
 ||Where the reversioner of leaseholds, with the privity of tenant for life, 
 renewed the lease in his own name, and covenanted to repair the premises, 
 Sir John Leach, V. C, held, that he was to be considered as having en- 
 tered into the covenant on behalf of the tenant for life, and that the latter 1 s 
 estate was liable for dilapidations occasioned by his neglecting to repair. 
 
 March v. Wells, 2 Sim. & Stu. 87.|| 
 
 It has been said in equity, that a remainder-man for life shall, in waste, 
 recover damages in proportion to the wrong done to the inheritance, and 
 not in proportion only to his own estate for life. 
 
 1 Vern. 158, Brown v. Brown. 
 
 A being tenant for ninety-nine years, if he should so long live, remain- 
 der to trustees to preserve contingent remainders, remainder to his first and 
 other sons in tail, remainder to B in tail ; A and B before issue born of A 
 fell timber. The eldest son of A afterward brings his bill for an account
 
 OF WASTE. 477 
 
 (0) What Relief may be given in Equity, in Cases of Waste 
 
 and satisfaction of the timber against B. Per Lord Ch. — The plaintiff has 
 no remedy at law, either in his own name, or in the name of his trustees. 
 A, if he had not consented to it, should have brought trespass ; for tenant 
 for years is considered as a fiduciary for the remainder-man or his lessor. 
 If A had had an estate for life, and no limitation to trustees, the plaintiff 
 could have had no remedy ; because tenant for life might have barred, or 
 surrendered the whole estate to the remainder-man; but here the freehold 
 was in the trustees ; and the possession of the lessee for years is in law the 
 possession of the owner of the freehold. The trustees, however, could not 
 here have maintained waste, because the common law gave no action of 
 waste, but to the owner of the inheritance ; and the statute of Gloucester 
 gives the writ to the same person ; but the trustee is in no other condition 
 than a remainder-man for life. Trustees may bring a bill in equity to stay 
 waste, before the contingent remainder comes in esse. If the trustees had 
 brought such a bill, the court, as to trees actually cut, would have obliged 
 them to have made satisfaction in money, to have been secured to attend 
 the contingent uses. Where there is tenant for life or years subject to 
 waste, and timber is blown down, the owner of the first remainder in tail 
 vested shall have it ; for the common law considers an estate in contin- 
 gence as no estate : and when the tree is severed, the property vests in 
 somebody. If there be tenant for life, remainder for life, remainder in fee, 
 the remainder-man can have no action for waste, because the plaintiff must 
 recover the place wasted, which would be injustice to the remainder over; 
 but such a remainder-man of the inheritance after the intervening estate 
 may have trover for the trees, and if remainder-man for life dies, in the life 
 of remainder-man in fee, he may bring waste. Though an injunction is a 
 proper remedy, yet it has never been determined that a bill for an account 
 cannot be maintained afterward : and though a recovery was suffered after 
 waste done, it was to the use of plaintiff and his heirs, which is no new use, 
 and ought not to bar waste in equity. It is true the action of waste dies 
 with the person ; but though waste will not lie at law, as the person com- 
 mitting it is dead, yet he may have relief in this court. It is held, in all 
 cases of fraud, the remedy never dies with the person, but relief may be 
 had against the executor out of assets ; and this court will follow the assets 
 of the party liable to the demand ; and collusion in this court is the same 
 as fraud. — Decreed a satisfaction to be made to the plaintiff, for the value 
 of the timber, as he is now tenant in fee of the estate ; but would not give 
 any interest, as that would be carrying it + oo iar 
 
 MSS. Rep. Garth v. Cotton, 26 G. 2 ; [1 Ves. 521,546, S. C. ; 3 Atk. 751, S. C] 
 
 [An estate was settled upon A, for her jointure without impeachment of 
 waste, except in pulling down houses and felling timber, remainder to her 
 son B for life, without impeachment of waste generally, remainder to 
 trustees to preserve contingent remainders, remainder to his issue in tail, 
 remainder to his sister C in tail. B in the lifetime of A, and with her 
 privity, fells timbers upon the estate, and afterwards dies in her lifetime ; 
 wnereupon C brought an action of waste against A, to recover treble 
 damages, and the place wasted, and had a verdict. But it being proved 
 that the timber was cut down with the knowledge of C, and that she encou- 
 raged the doing so, a perpetual injunction was granted to restrain her from 
 proceeding any further at law. 
 
 Aston v. Aston, 1 Ves. 3%.1
 
 478 OF WILLS AND TESTAMENTS. 
 
 Of Wills and Testaments. 
 
 j| If a tenant for life has rendered accounts to the iemainder-man of tim- 
 ber cut by him during a period more than six years before a bill is filed 
 against him for an account of such timber, and of the value of it, the statute 
 of limitations cannot be pleaded to the bill ; for though, if the remainder- 
 man had brought an action of trover, the defendant might, notwithstanding 
 the accounts, have pleaded the statute, he could not have done so if an 
 action of assumpsit had been brought. 
 
 Hony v. Hony, 1 Sim. & Stu. 5G8 ; and see Barry v. Barry, 1 Jac. & W. 651. 
 
 In the Exchequer it is a rule, that where any application shall be made 
 for an injunction to stay waste, or in the nature of an injunction to stay 
 waste, before the defendant is in court, supported by affidavit, such affida- 
 vit shall be filed, and the office copy thereof produced, with the necessary 
 certificate of the bill being filed. 
 
 R. H. 1 & 2 Geo. 4, Exch. 9 Price, 88.|| 
 
 0A bill to stay waste should show a good, and not a doubtful title 
 to the place wasted, or in which waste is apprehended ; equity will not 
 interfere for that purpose, when by possibility the plaintiff's claim, now 
 confessedly uncertain, may turn out, upon evidence hereafter to be dis- 
 covered, to cover a part of the land in which it is said the waste is con- 
 templated. 
 
 Hough v. Martin, 2 Dev. fr Bat. Eq. 379.? 
 
 OF WILLS AND TESTAMENTS. 
 
 Several branches of these heads having been already treated of under 
 the articles Executors and Administrators, and Legacies and Devises, little 
 more remains than to consider what formal circumstances are necessary to 
 the perfection of a will and testament, and by what means, and for what 
 causes they may be avoided. 
 
 For the better understanding of these particulars, we will arrange the 
 matter relative to the residue of this subject under the following divisions, 
 and inquire, 
 
 (A) What is a Will and Testament, and wherein they differ. 
 
 (B) Who are capable of making a Will and Testament. 
 
 (C) What are the Requisites to constitute a good will. 
 
 (D) Of Wills in Writing :—And here, 
 
 I. What shall be a good Will in Writing to pass Lands and Tenements, #~c, Wherein, 
 
 1. In what Language and Hand a Will may be written. 
 
 2. Of the Circumstances of Signing, Attestation, Publication, &c. 
 
 3. Of the Republication: — as what will amount to a Republication, and where 
 a Republication will make a Devise good. 
 
 II. What shall be a good Will in Writing of Goods and Chattels. 
 III. What shall be a sufficient Proof of a Will. 
 
 (E) Of Nuncupative Wills. 
 
 (F) Of the Nature and Effect of a Will and Testament.
 
 OF WILLS AND TESTAMENTS. 479 
 
 (A) What is a Will and Testament, and wherein they differ. 
 
 (G) How Wills, &c. may be construed. || General Rules of Construction. And 
 herein,— Of the admissibility of extrinsic Evidence to explain them.|| 
 
 (H) How Wills may be avoided : Wherein, 
 
 1. What shall be deemed a Revocation of a Will:— And herein, 
 
 ||1. Of Revocations by cancelling, alterations, and subsequent testamentary 
 
 2. Of Revocations by subsequent contracts, changes of estate, and altera- 
 tions in circumstances.|| 
 
 2. Where a Will shall be set aside for Fraud, &c, and where Fraud is examinable. 
 
 (A) What is a Will and Testament, and wherein they differ. 
 
 A testament is a just and complete declaration or sentence of a man's 
 mind, or last will of what he would have to be done with his estate after 
 his death. 
 
 Termes de Ley, roc. Testament; Swinb. part 1, § 2 and 4; Shep. Abr. part 4, voc. 
 Testament. [Testamentum est voluntatis nostra: justa (id est, solennis et legitima) 
 sententia, de eo quod quisposl mortem suam jkri velit. 1. 1. Modestin. lib. 2, Pandect. J 
 
 Or, according to some, a will is a declaration of the mind, either by 
 word or writing, in disposing of an estate ; and to take place after the 
 death of the testator. 
 
 Carth. 38, Lea v. Lib. [Alienatio in mortis evenlum, ante earn revocabilis, reiento 
 interim jure possidendi el fruendi, est testamentum. Grot. lib. 2, De Jure Belli ac 
 Pacis, c. 6, n. 14.] A will shall have relation only to the testator's death, and not to 
 the making, for till his death he is the master of his own will; and therefore the will 
 of a papist in Ireland was held to be avoided by a subsequent statute made in that king- 
 dom, which enacts, that the lands of papists there shall not be devisable, but descend 
 in gavelkind. Vin. Abr. tit. Devise, (H. b,) p. 7. 
 
 It is in Latin called testamentum, i. e. testatio mentis, the witness of a 
 man's mind ; and to devise by testament, is to speak by a man's will what 
 his mind is to have done after his death : and it is sometimes called a will, 
 or last will, for these words are synonyma, and are indiscriminately used 
 in our law. However, by the civil law, it is only said to be a testament 
 when there is an executor (a) made and named in it; and when there is 
 none, it is but a codicil only : for a codicil is the same that a testament 
 is,(6) excepting that it is without an executor ; and a man can make but 
 one testament that can take effect, but he may make as many codicils as 
 he will. 
 
 Carth. 38, Lea v. Lib ; 1 Inst. Ill; Swinb. part 1 , § 5. [(a) Hence Vinnius gives 
 the following as the most perfect definition of a testament: Testamentum est suprema 
 contestatio in id solenniter facta, ut quern volumus, post mortem nosiram habeamus hxredem. 
 Comment, in Institut. lib. 2, c. 10. (6) The civilians define a codicil to be ultima 
 testati vel intestati voluntas minus solennis .- for by the Roman law, there might be a 
 codicil, whether the party died testate or intestate ; and if he died testate, the codicil 
 might either be precedent or subsequent to the testament: and in this case the validity 
 of "the codicil depended upon the validity of the testament; the codicil had relation to 
 the date of the testament, and required to be confirmed by the testament. But the 
 codicils of an intestate derived all their efficacy from themselves, stood in need of no 
 confirmation, and were regarded only from the day on which they were made. 
 
 And by the common law, where lands or tenements are devised in 
 writing, although there be no executors named, yet there it is properly 
 called a last will ; and where it doth concern chattels only, a testament. 
 
 1 Inst. 111.
 
 4S0 OF WILLS AND TESTAMENTS. 
 
 (A) What is a Will and Testament, and wherein they differ. 
 
 He who makes the testament is called the testator ; and when a man 
 dies without a will, he is said to die intestate. 
 Shep. Abr. part 4, voc. Testament. 
 
 A testamentary schedule without witnesses or an executor, has been 
 declared a will. 
 2 Ld. Raym. 1282, Powell v. Beresford. 
 
 [So, a writing purporting to be an indenture, but by the party making 
 it declared to be his will, has been considered as a testamentary instru- 
 ment. 
 
 Hiekson v. Witham, Finch. R. 195.] 
 
 {An endorsement upon a note "I give this note to A" may be proved 
 as testamentary. 
 
 4 Ves. J. 565, Chaworth v. Beech. See 5 Ves. J. 354, Eden v. Smyth.} 
 
 <3 Although a writing be called a deed, and the party has been advised 
 to make a deed, yet, if the operation and structure of the writing show it 
 to be testamentary, made with a view to the disposition of a man's estate 
 upon his death, it will enure as a will. 
 
 Henry's Executors v. Ballard, 2 Car. L. Repos. 595. See Millege v. Lemar, 
 4 Desaus. 617. 
 
 A paper writing executed by two persons, making a joint disposition 
 of their property, after their death, cannot be admitted to probate as a 
 conjoint or mutual will ; and it cannot operate or be proved as the sepa- 
 rate will of either of them, because it purports to be a joint and not a 
 separate will, and because it implies, from its structure, an agreement 
 between them, which is inconsistent with revocability, and it therefore 
 prevents its operation as a will. 
 
 Clayton v. Liverman, 2 Dev. & Bat. 558. 
 
 A paper containing some technical expressions which might embrace 
 the idea of a testamentary disposition of property, was not considered in 
 the nature of a will, because the acts to be done by the persons named 
 in it, were to be executed as speedily as possible, and in the lifetime of 
 the maker. 
 
 Hamilton v. Peace, 2 Desaus. 92. 
 
 A B being about to sail for the West Indies, where he afterwards died, 
 addressed a letter to C D, containing the following clause : "A thousand 
 accidents might occur to me, which might deprive my sisters of that pro- 
 tection which it would be my study to afford ; and in that event, I must beg 
 that you will attend to putting them in possession of two-thirds of what 
 I may be worth, appropriating one-third to Miss C and her child, in any 
 manner that may appear most proper." Held, to be a valid will, especially 
 after it had been proved as the last will of A B before the surrogate, and 
 administration with the will annexed had been granted by him: held also, 
 that C and her son were each entitled to a moiety of one-third of the 
 personal estate of the testator, in the hands of the administrator. 
 
 Morcll v. Dickey, 1 Johns. Ch. 153. 
 
 The court rejected a paper of instructions, signed by the testatrix, as 
 the one referred to in the will duly attested, the paper itself not having 
 been attested nor produced to the witnesses. 
 
 Sotheron, in the goods of, 2 Curt. 831.0
 
 OF WILLS AND TESTAMENTS. 481 
 
 (B) Who are capable of making a Will and Testament. 
 
 An infant, until he be of the age of twenty-one years, can make no 
 will of his lands Dy statute of 32 & 34 H. 8. But by special custom in 
 some places, vhere land is devisable by custom, he may devise it sooner ; 
 and of his g',ods and chattels, if he be a boy, he may make a will at four- 
 teen years of age, and not before ; and if a maid, at twelve years of age, 
 and not before : and then they may do it without and against the consent 
 of their tuto/, father, or guardian. 
 
 32 H. 8, c. 1, and 34 H. 8, c. 5; Swinb. part 11, § 2; & Williams v. Baker, 2 Car. 
 L. Repos. 599 # || Rob. Gav. 225 ;l| West v. West, 10 S. & R. 446.g/ 
 
 If he or she hath attained to the last day of fourteen or twelve years, the 
 testament by him or her in the very last day of their several ages aforesaid, 
 is as good and lawful as if the same day were already then expired. 
 
 32 H. 8, c. I, and 34 H. 8, c. 5. 
 
 Likewise, if, after they have accomplished these years of fourteen or 
 twelve, he or she do expressly approve the testament made in their mi- 
 nority, the same by this new will and declaration is made strong and 
 effectual. 
 
 Swinb. part 11, § 2. 
 
 And yet some say an infant cannot make a will of his goods and chattels 
 until he be eighteen years of age. 
 
 1 Inst. 89 b. [The doctrine above stated, that the testamentary power commences 
 in males at fourteen, and in females at twelve, seems to be the most relied upon. Vide 
 Hargrave's edit, of Co. Litt. 89 b, note (6).] {11 Ves. J. 11.} 
 
 It has, however, been agreed in equity, that a female may make a will 
 at twelve years of age of a personal estate, and a male at seventeen years 
 of age, or fifteen,(a) if he be a person of discretion. 
 
 2 Vem. 469. [(a) This is a very loose dictum, entitled to no attention.] |jlf there 
 be a local custom, that lands within a certain precinct shall be devisable by all manner 
 of persons at fifteen, it is good. Rob. Gav. 225. That a boy of fourteen may make a 
 will of chattels, see Ex parte Holyland, 11 Ves. ll.[| 
 
 A feme covert cannot make a will of her lands and goods, except it be 
 in some special cases : for of her lands she can make no will with or with- 
 out her husband's consent, stat. 32 & 34 H. 8 ; 4 Rep. 51 ; Bro. Testament , 
 13. But of the goods and chattels she has as executrix to any other, she 
 may make an executor without her husband's consent ; for if she does not 
 so, the administration of them must be granted to the next of kin to the 
 deceased testator, and shall not go to the husband. 
 
 12 H. 7, c.24; Perk. § 502; Fitz. Exec. 40; {2 Day, 163, Fitch v. Brainerd.} ,2 See 
 Harvey v. Smith, 1 Dev. & Bat. 1 86 ; Newberryport Bank v. Stone, 13 Pick. 420.# 
 
 j3A will executed by a feme covert devising real estate to her husband 
 is void. 
 
 Fitch v. Brainerd, 2 Day, 163.0 
 
 But even of them she can make no devise with or without her hus- 
 band's leave, for they are not devisable; and if she devise them the de- 
 vise is void. 
 
 Plowd. 52G. 
 
 Of the things due to the wife, whereof she was not possessed during the 
 marriage, as things in action, and the like, she may make her will, at least she 
 may make her husband executor of her paraphernalia, viz., her necessary 
 wearing apparel, being that which is fit for one of her rank. Some say 
 
 Vol. X.— 61 2 S
 
 *82 OF WILLS AND TESTAMENTS. 
 
 (B) Who are capable of making a Will and Testament. 
 
 she may make a will without 'her husband's leave, others doubt of this ; 
 ^owever all agree, that she, and not his executor, shall have this after her 
 husband's death ; and that the husband cannot give it away from her ; and 
 of the goods and chattels her husband has either by her or otherwise, she 
 may not make a will without the license and consent of her husband first 
 xiad so to do : but with his leave and consent she may make a will of his 
 goods, and make him her executor if she will. And it is said also, that if 
 she does make a will of his goods in truth without his leave and consent, 
 and after her death he suffers the will to be proved, and delivers the goods 
 accordingly, in this case the testament is good : and yet if the husband 
 gives the wife leave to make a will of his goods, and she does so, he may 
 revc.ke the same at any time in her lifetime, or after her death, before the 
 will is proved. But a woman after a contract with any man, before the 
 marriage, may make a will as well as any other, and is not at all disabled 
 hereby. 
 
 12 H. 7, 24; 18 Ed. 4 ; 11 Perk. § 501 ; Fitz. Exec. 5, 28, 109; Bro. Test. 11. 
 
 ||The simple assent of her husband may give eflect to the wife's dispo- 
 sition by will of her personalty, as against her nearest of kin ; but such 
 post-nuptial consent will not qualify her to dispose by will of her real es- 
 tate to the disappointment of her heir. And if her disposition by will of 
 her personal property emanate from the bare assent of her husband, it is 
 necessary to its effect that the husband shall survive the wife ; for the ope- 
 ration of such consent consists in its being a waiver by the husband of his 
 right to administer to his wife, so that if he dies before his wife the will Is 
 void against her next of kin. 
 
 Stevens v. Bagwell, 15 Ves. 156; and see Scammell v. Wilkinson, 2 East, 552; 
 Rob. on Wills, 27. See as to the assent of the husband, Smellie's Executors v. Rey- 
 nolds, 2 Desaus. GG ; Cassel's Administrator v. Vernon, 5 Mason, 332; Grimke 
 v. Grimke's Executors, 1 Desaus. 366; Bradish v. Gibbs, 3 Johns. Ch. 523; Ander- 
 son v. Miller, 6 J. J. Marsh. 573. g/ 
 
 When personalty of any kind is settled upon a married woman, whether 
 by a contract to which her husband is a party, or by the settlement or gift 
 of other persons, she has the same power over it in equity as if she were 
 a single woman, without any express provision to that effect ; for courts of 
 equity consider, if she takes personal property for her separate use, she 
 takes it with all its incidents, of which the jus disponendi is obviously one. 
 
 Fettiplace v. Gorges, 1 Ves. jun. 46 ; Rich v. Cockell, 9 Ves. 376. || 
 
 Likewise, a wife, whose husband is banished by act of parliament for 
 life, may make a will as a feme sole. 
 
 2 Vern. 104. 
 
 A mad or lunatic person, during the time of his insanity of mind, can- 
 cel make will of lands or goods ; but such a one as hath his lucida inter- 
 valla, clear or calm intermissions, may, during the time of such quietness 
 and freedom of mind, make his will, and it will be good. 
 
 SJwinb. part 11, § 3; ||8 Ves. 65 ; 9 Ves. 478; 12 Ves. 445. As to lucid intervals, 
 in which a testator may be deemed competent to make his will, see 3 Bro. C. C. 441 ; 
 11 Ves. 11; 1 Phill. R. 90; Rob. on Wills, 32, (3d edit.)[| £See Kinne v. Kinne, 
 9 Conn. 102 ; Turner v. Turner, 1 Litt. R. 102 ; Johnson v. .Moore's Heirs, 1 Litt. R. 
 371 ; Case of Cochran's will, 1 Monr. 203 ; Hathorn v. King, 8 Mass. 371 : Cook v. 
 Fisher, 1 Paige, 171 ; Dow v. Clarke, 5 Russ. 103 ; Bogardus v. Clarke, 1 Edw. 106 ; 
 Stewart's Executors v. Lispenard, 20 Wend. 255 ; Whitenach v. Strvker, 1 Green's 
 Ch. 9 ; Watson v. Watson's Heirs, 2 B. Monr. 74 ; Reed's will, 2 B. Monr. 79 ; Stone 
 ▼. Damon, 12 Mass. 488. £/
 
 OF WILLS AND TESTAMENTS. 483 
 
 (B) Who are capable of making a Will and Testament. 
 
 £ One who is still under guardianship 5s non compos may make will, if 
 actually of sound mind. 
 
 Stone v. Damond, 12 Mass. 488; Breed v. Pratt, 18 Pick. 115.^ 
 So also, an idiot, i. e. such a one as cannot number twenty, or tell what 
 age he is, or the like, cannot make a will or dispose of his lands or goods ; 
 and although he make a wise, reasonable, and sensible will, yet it is void : 
 but such a one as is of a mean understanding only, that has grossum caput, 
 and is of the middle sort, between a wise man and a fool, is not prohi- 
 bited to make a will. 
 Swinb. part 11, § 4. 
 
 An old man likewise, who, by reason of his great age, is childish again, 
 or so forgetful that he forgets his own name, cannot make a will, for a will 
 made by such a one is void. 
 
 Swinb. part 11, § 1 ; 6 Rep. 23, Marquis of Winchester's case. 
 
 .5 If at the making of the will the testator understands what he is doing, 
 he has sufficient capacity ; it is not essentially necessary that he should be 
 able to manage his affairs generally. 
 
 Kinne v. Kinne, 9 Conn. 102. 
 
 Mental capacity to make a will is always presumed ; incapacity must 
 
 be proved. 
 
 Lessee of Hoge v. Fisher, Pet. C. C. Rep. 163. See Stevens v. Vancleve, 4 Wash. 
 C. C. Rep. 262.g/ 
 
 || When the mind of a dying person is reduced by the stress of his ma- 
 lady, or by general exhaustion, to such a state of mental depression and 
 debility as to be incapable of a determinate testamentary act, a paper signed 
 by him as his will, under such circumstances, will be rejected by the ec- 
 clesiastical court ; especially if such instrument contain internal evidence 
 of intellectual weakness, and disturbs the settlement of the testator's af- 
 fairs by a former well-considered will made by him when in full possession 
 of his mental powers. 
 
 Brouncker v. Brouncker, 2 Phill. R. 57. 
 
 Mental incapacity may invalidate only a part of a will, as, in a late case, 
 where a testator wrote the first part of w T hat was propounded as his will 
 with his own hand, but the concluding part was written by the executor, 
 who was principally benefited, and who was the active agent in bringing 
 the witnesses to the house of the deceased. 
 
 Bellinghurst v. Vickers, 1 Phill. 187 ; and see Wood v. Wood, Ibid. 357. [| 
 
 So also it seems a drunken man, who is so excessively drunk that he is 
 deprived of the use of his reason and understanding, during that time may 
 not make a will ; for it is requisite when the testator makes his will, that he 
 be of sound and perfect memory, i. e. that he have a competent memory 
 and understanding to dispose of his estate with reason. 
 
 Swinb. part 11, § 1, and § 6. 
 
 A man who is both deaf and dumb, and is so by nature, cannot make 
 
 a will ; but a man who is so by accident, may by writing or signs make 
 
 a will ; and so may a man who is deaf or dumb by nature or accident. 
 
 Swinb. part 11, g 1 and 10 ; and see Inst. Jur. Civ. lib. 2, tit. 12 ; and Yin. Conini. 
 Ibid. ; Huber, prsel. Ibid. 
 
 And so also may a man that is blind. 
 
 Swinb. part 1, § 1 and 11. j3See Stevens v. Vancleve, 4 Wash. C. C. Rep. 262.0
 
 484 OF WILLS AND TESTAMENTS. 
 
 (B) Who are capable of making a Will and Testament. 
 
 But an alien enemy,(a) persons convicted and attainted, and recusants 
 convict, cannot make" a testament of lands or goods. 
 
 Woou, inst. 335. ||(a) That is, if he have no license from the king. See 1 Black . 
 Com. 372 ; Hargr. Co. Lit. 2 b, n. 8.|| 
 
 Neither may the head, or any of the members oi a corporation, make a 
 will of the lands or goods they have in common, for they shall go m suc- 
 cession. 
 
 Fitz. Abr. Test. ; 1 Perk. § 498. 
 
 A traitor attainted, from the time of the treason committed, can make no 
 will of his lands or goods, for they are forfeited to the king : but after the 
 time he has a pardon from the king for his offence, he may make a will of 
 his lands and goods as any other man. 
 
 Swinb. part 11, § 12 ; 5 & 6 Ed. 6, c. 11, § 9. So, if he dies before attainder, his 
 will is o-ood. Likewise his will of goods, which he hath as executor to another, is 
 good, for they are not forfeited. Id. ibid. 
 
 A man who is attainted or convicted of felony cannot make a testament 
 of his lands or goods, for they are forfeited : but, if a man be only indicted, 
 and die before the attainder, his will is good for his lands and goods both ; 
 and if he be indicted, and will not answer upon his arraignment, but stand 
 mute, &c, in this case his lands are not forfeited, and therefore he may 
 make a will of them. 
 
 Swinb. part 11, § 13. N. B. The forfeiture of a felon's lands relates to the time of 
 the fact committed, but the forfeiture of goods to the time of the judgment given. 
 
 And if a man kill himself, his will, as to his goods and chattels, is void, 
 but as to his lands is good, |Jbecause there is no attainder. || 
 
 Plow. Gl, Hales v. Petit. ||In the early jurisprudence of Rome suicide did not invali- 
 date the testament, and it was resorted to occasionally by persons apprehensive of 
 capital punishment in order to avoid the forfeiture, which consequence Tacitus calls 
 the pretiumfestinandi. However, this was altered by the emperors, and the will of a 
 suicide was only good in case the self-destruction proceeded from impatience of pain or 
 loss of reason. See Cod. Lib. vi. tit. 22, §2.|| 
 
 A man likewise who is outlawed in a personal action cannot make a will 
 of his goods and chattels, so long as the outlawry continues in force, but 
 of his lands he may make a will.(a) 
 
 Swinb. part. 11, §21. \\(a) The outlawry absolutely forfeits his chattels to the 
 king, but the rents of the lands are only forfeited after inquisition and during the out- 
 lawry. II 
 
 But note : That however the wills of traitors, aliens, felons, and out- 
 lawed persons are void as to the king or lord that has right to the lands or 
 goods by forfeiture or otherwise : yet the will is good against the testator 
 himself, and all others but such persons only. 
 
 Wood, v. 1, 791 ; Shep. Abr. part 4, roc. Test. 
 
 And note also : By the civil law, the wills of divers others, as excom- 
 municate persons, heretics, usurers, incestuous persons, sodomites, libellers, 
 and the like, are void ; but by our law, the wills of such persons, at least 
 as to their lands, are good by the statutes that enable men to devise their 
 lands. 
 
 Wood, v. 1, 791 ; Shep. Abr. part 4, voc. Test. 
 
 In short, all persons whosoever, male or female, old or young, lay or 
 spiritual, at any time before their death, whilst they are able to speak so 
 distinctly, or write so plainly, that another may understand them, and per- 
 ceive that they understand themselves, may make wills of their lands,
 
 OF WILLS AND TESTAMENTS. 485 
 
 (C) What are the Requisites to constitute a good Will. 
 
 goods, and chattels, and that although they have sworn to the contrary ; 
 and none are restrained of this liberty, but such as are before named. 
 Wood, v. 1, 791 ; Shep. Abr. part -1, voc. Test. 
 
 £When a paper purporting to be a will is wholly written by the testator 
 niraself, it is prima facie evidence thrt he was in his senses, and the onus 
 probandi to overthrow the presumption lies on those who impugn it. 
 
 Temple v. Temple, 1 H. & M. 47G.g/ 
 
 (C) What are the Requisites to constitute a good Will. 
 
 To constitute a good will it is necessary, 
 
 First, That the testator be a person legally capable of making a will. 
 See, " Who are capable of making a Will " (B) ante. 
 
 Secondly, That there be a person to take, and one that is capable ; for 
 in all gifts by devise, or otherwise, that are good, there must be a donee in, 
 esse, and not in posse only, and one that shall have capacity to take the 
 thing given, when it is to vest, or the gift shall be void. 
 
 Shep. Abr. part 4, pi. 13, voc. Test. 
 
 And hence it is, that where the devisee of lands or goods, or an executor 
 of a will, doth die before the devisor, or him that makes the will, the devise 
 and will is void, and that neither the heir nor executors shall have the 
 thing devised. 
 
 Shep. Abr. part 4, pi. 13, voc. Test. ,• Plow. 345, Breet v. Rigden. 
 
 A devise to the wife for life, and after to the children unpreferred, is good. 
 
 1 And. 60, Amner v. Luddington. 
 
 But a devise by a man to his heir and his heirs is void. 
 
 2 And. 11, Garmyn v. Arstete. 
 
 One devised his leases of lands to B, his eldest son, except the sum of 
 140/. to be paid out for portions for his daughters, and made B his execu- 
 tor ; and held a good devise to them after this manner, and that the daugh- 
 ters might sue for it in the ecclesiastical court, or court of equity. 
 
 Shep. Abr. part 4, pi. 13, voc. Test. 
 
 If one devise to the son in tail, and if he die without issue, to the next 
 
 of his name ; the daughter after married cannot have it, for she is not of his 
 
 name. 
 
 Cro. Eliz. 532, Bon v. Smith. But if she had not been married, she would have had 
 it, as being next of the name. Id. ibid. 
 
 One seised of a manor and lands deviseth the same to his son, and after, 
 by another part of his will, deviseth part of the same to another of his 
 sons; these devises are good, and they shall be joint-tenants. 
 
 3 Leon. 11. 
 
 Thirdly, That the testator, at the time of making his wall, have animum 
 testandi, i. e. a mind or serious intention to make such a will. 
 Sweet v. Boardman, I Mass. 258. tf 
 
 For it is the mind, not the words of the testator, that gives life to the 
 will : since if a man rashly, unadvisedly, incidently, jestingly, or boastingly, 
 and not seriously, writes or says that such a one shall be his executor, or 
 have all his goods, or that he will give to such a one such a thing ; this is 
 no will, nor to be regarded. And the mind of the testator herein is to be 
 discovered by circumstances ; for if at the time he be sick, or set himself 
 seriously to make his will, or require witnesses to bear witness of it, it shall 
 
 2s 2
 
 486 OF WILLS AND TESTAMENTS. 
 
 (C) What are the Requisites to constitute a good Will. 
 
 be deemed in earnest ; but, if it be by way of discourse only, or of some- 
 what he will do hereafter, or the like, it shall be taken for nothing. 
 
 Swinb. part 1, §3; /2 Harrison v. Rowan, 3 Wash. C. C. R. 580; Hoge v. Fisher, 
 1 Pet.C.C. R. 163; Baker v. Lewis, 4 Rawle, 356; Sterretv. Douglass, 2 Yeates, 48 ; 
 Dornick v. Reichenback, 10 S. & R. 84 ; Stevens v. Vancleve, 4 Wash. C. C. R. 262.# 
 
 /3 A testamentary paper began as follows : " My wish, desire, and intention 
 now is, that if I should not return, (which I will, no preventing providence,) 
 what I own shall be divided as follows," &c. It then proceeded of the 
 testator's property, with reference to the state of his family, as it then ex- 
 isted, supposing his wife to be pregnant. He went on the proposed journey, 
 returned home, and died, about a month afterwards. Held, that the dis- 
 posal was subject to the condition of his dying away from home, and there- 
 fore that the paper ought not to be admitted to probate. 
 
 Todd's will, 2 Watts & S. 145. 
 
 A mistake in drafting a will does not render it void. 
 
 Comstoek v. Hadelyme Ecclesiastical Society, 8 Conn. 254. $ 
 
 Fourthly, That the mind of the testator in making his will be free, and 
 not moved by fear, fraud, or flattery. 
 
 For when a testator is moved to make his testament by fear, or circum- 
 vented by fraud, or overcome by some immoderate flattery, the same is 
 void, or at least voidable by exception ; and therefore, if a man, by occa- 
 sion of some present fear or violence, or threatening of future evils, does 
 at the same time, or afterwards by the same motive, make a will, it is void, 
 not only as to him that puts him so in fear, but as to all others, although the 
 testator, confirms it with an oath ; but if the cause of fear be some vain 
 matter, or, being weighty, be removed, and the testator afterwards, w r hen 
 the fear is past, confirm the testament, in this case, perhaps, the will may 
 be good. And if a man, by occasion of some fraud(a) or deceit, be moved 
 to make a will, if the deceit be such as may move a prudent man or woman, 
 and if the end be evil also, the will is void, or voidable at the least ; but, 
 if the deceit be light and small, or if it be to a good end, as where a man 
 ! s about to give all his estate to some lewd person, from his wife and chil- 
 dren, and they persuade the testator, that the lew r d fellow is dead, or the 
 like, and thereby procure him to give his estate to them, this is a good 
 will. And one may, by honest intercessions, and modest persuasions, 
 procure another to make himself or a stranger executor to him, or the like, 
 and this will not hurt the will. Also, a man may use fair and flattering 
 speeches to move the testator to make his will, and to give his estate unto 
 himself, or some friend of his ; except it be in case where the flatterer first 
 threatens him, or puts him in fear,(6) or to his flattery joins fraud and deceit ; 
 or where the testator is a person of weak judgment, or under the govern- 
 ment of the flatterer, or in danger from him ; as when the physician shall 
 persuade his patient under his hand to make his will, and give his estate to 
 himself ;(c) or the wife attending on her husband in his sickness shall neglect 
 nim, and in the mean time flatter him to give her all : or where the per- 
 suader is importunate, and will have no denial : or when there is another 
 testament made before ; for, m all these cases, the will will be in danger 
 to be avoided. If I be much privy to another man's mind, and he tells 
 me often in his health how he intends to settle his estate, and he being sick, 
 I, of my own head, draw a will according to his mind, before declared to 
 me, and bring it to him, and ask him, whether this shall be his will or no, 
 and he considers of it, and then delivers it back to me, and says, Yes ; this
 
 OF WILLS AND TESTAMENTS. 487 
 
 (D) Of Wills in Writing. 
 
 :s a food will. But if otherwise, some friends of a sick man, of their own 
 Leeds, sheui make a will, and bring it to a man in extremity of sickness, 
 ana read it to him, and ask hirn, whether this shall be his will, and he sa)S 
 Yes, yes ; or if a man be in great extremity, and his friends press him much, 
 and so wrest words from him, — especially if it be in advantage of them, or 
 some friends of theirs : in these cases the wills are very suspicious. 
 
 Swinb. part 11, §25, and part 7, §2,3, and 4; & Brown v. Molliston, 3 Whart. 129.gr 
 (a) iV. B. Fraud in wills of lands is only examinable in the courts of common law, not 
 of chancery. Swinb. 478. And fraud in a will of personal estate is only examinable in 
 the ecclesiastical court. 2 P. Wms. 286, Steventon v. Gardiner et al. ||As to the 
 effect of fraud in setting aside a will, see post, (G), and see Mountain v. Bennett, 1 Cox 
 R. 353. || (6) For in that case it is to be presumed, that the testator is rather moved by 
 fear, than by the subsequent flattery, (c) For the law will presume that the testator 
 did it lest the physician should neglect or forsake him. 
 
 @A may by fair argument and persuasion induce another to make a will 
 even in his own favour. 
 
 Miller v. Miller, 3 S. & R. 2G9. But see Elliott's will, 2 J. J. Marsh. 342.# 
 
 Fifthly, That the will be made in the form prescribed by law. 
 
 #A will of personal property must be executed according to the laws of 
 the place where the testator had his domicil at the time of his death : if not 
 so executed, it will not pass personal property in a foreign country, although 
 executed according to the laws of that country. 
 
 Desesbats v. Berquier, 1 Binn. 336. g/ 
 
 The forms which the law prescribes differ according to the species of 
 property which is to be disposed of, that is, whether it be real or personal. 
 And this leads us to consider the several kinds of wills and testaments, and 
 the circumstances requisite to each. 
 
 (D) Of Wills in Writing. 
 
 There are two sorts of wills or testaments : First, in writing, which is, 
 where the mind of the testator, in his lifetime, by himself, or some other 
 by his appointment, is put in writing ; or, secondly, by word, or without 
 writing, which is, where a man is sick, and for fear that death, or want of 
 memory or speech, should surprise him, that he should be prevented, if 
 he stayed the writing of his testament, desires his neighbours and friends 
 to bear witness of his last will, and then declares the same presently, by 
 word, before them ) and this is called a nuncupative or nuncupatory will or 
 testament ; and this being after his death proved by witnesses, and put in 
 writing by the ordinary, is of as great force for any other thing, but land,(«) 
 as when at the first in the life of the testator it is put in writing. See of 
 Nuncupative Wills, post, (E). 
 
 1 Inst. Ill ; Perk. § 476; Wood, part 1, 787. (a) In some cities and boroughs 
 lands may pass as chattels by will nuncupative or parol, without writing. 1 Inst. 111. 
 [But not without writing, and signed and attested in like manner as wills of other lands, 
 since the stat. 29 Car. c. 3.] 
 
 A codicil is also in writing or by word, as a will or testament is. 
 1 Inst. 111. 
 
 The civilians have other divisions of wills and testaments, solemn and 
 unsolemn, privileged and unprivileged, whereof the common law makes 
 no mention. 
 
 By the common law, no lands or tenements, (except by particular cus- 
 tom,) were devisable by any last will or testament, neither could they be
 
 488 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. {Of Lands.) 
 
 transferred from one to another, but by solemn livery of seisin, matter of 
 record, or sufficient writing.(a) Because it was presumed, that the testator 
 would do that in extremis that he would not do in his health ; that it pro- 
 ceeded from the distemper of his mind, by the anguish of his disease, or 
 by sinister persuasion, to which in his sickness he was more subject. 
 
 1 Inst. Ill b ; 1 Roll. Abr. 608. (a) The true reason seems to be from the nature 
 of the feudal tenure and the relation that was first established betwixt the lord and his 
 tenant. For though donations after length of time were made to the tenant and his 
 heirs, or the heirs males or females of his body, under certain duties and services ex- 
 pressly reserved, or which the law created ; and though the word heirs, &c, be words 
 of limitation, and appropriated to measure out the length or continuance of the estate; 
 yet they were always understood the heirs of the present tenant, who being liable to 
 the same services when they came into the tenancy, the lord was to have the tuition 
 and education of such heirs, in case they happened, by reason of their minority, to be 
 incapable of performing the services, that so he might, by his care and discipline, 
 secure to himself tenants always capable thereof, either in their own persons, if they 
 happened to be males, or by proper marriage with his tenants, if they proved to be 
 females; and, therefore, by no act of the tenant's could he dispose of the feud, so as to 
 defeat the lord of the advantages of his seigniory. And hence it was, that a tenant 
 could not devise it even to his own heir, so as to make him a purchaser thereof; for 
 then he coming in not by the donation of the lord, but the disposition of the tenant, 
 though he remained liable to the naked services, yet the lord lost the advantage of ward- 
 ship, marriages, &c, which were annexed only to those who came in upon the terms 
 of his own donation by descent. 1 Eq. Cas. Abr. 401. 
 
 But this being altered by statute, we are next to inquire — 
 
 I. What shall be a good Will in Writing to pass Lands and Tenements. 
 
 The stat. 32 H. 8, c. 1,(6) usually called the Statute of Wills, enacts, 
 That every person having manors, lands, &c.,(c) shall have power to give, 
 dispose, will, and devise by will,(d) in writing or otherwise,(e) by act exe- 
 cuted in his lifetime, all his said manors, &c. ; any law, statute, &c, to v 
 the contrary notwithstanding. 
 
 (b) There have been several resolutions concerning wills made pursuant to this sta- 
 tute since the making thereof; but as the statute 29 Car., which is now the proper pat- 
 tern to follow, has altered the forms by requiring more ceremony and greater exactness, 
 it will be sufficient barely to mention some of the cases on this statute of 32 H. 8. (c) That 
 the lands must be sua, and therefore lands purchased after the will is made will not 
 pass. Vide Plow. 344. [Sed vide 2 Ves. jun. 427.] ||A codicil confirming will of 
 lands in general words will pass lands purchased between making the will and codicil. 
 See 7 Term R. 487. I| (d) A devise of an authority to executors to sell, is within the 
 act. Moor, 341. (e) A man beyond sea wrote a letter, in which he declared his will 
 lobe that his land should go in such a manner; and adjudged a good will. Moor, 
 177. So, if a man had ordered one to make his will, and thereby to devise Whiteacre 
 to A and his heirs, and Blackacre to C and his heirs, and he had written the devise to 
 A, but before the devise to C was written, the devisor died ; yet as to A this had been 
 a good devise. 3 Co. 31 b. So, a will was held good where a lawyer took only short 
 notes, with design to reduce it into form, which he afterwards did, but the devisor died 
 . before it was read to him. 1 And. 34. A will wrote without the appointment of the 
 testator, if read to him, and approved by him, was held good, signing and sealing not 
 oeing necessary. Cro. Eliz. 100; Dyer, 72 a; 2 Leon. 35. 
 
 "And further, by the statute of frauds and perjuries, 29 Car. 2, c. 3 
 § 5, all devises and bequests of any lands or tenements devisable by the 
 statute of wills, or by any particular custom, shall be in writing, and 
 signed by the party devising the same, or some other person in his pre- 
 sence, and by his express directions, and shall be attested and subscribed 
 in the presence of the said devisor by three or four credible witnesses, or 
 else they shall be utterly void and of none effect. 
 
 "And by § G, no devise in writing of lands, tenements, or hereditaments
 
 OF WILLS AND TESTAMENTS. 489 
 
 (D) Of Wills in Writing. (Of Lands.) 
 
 or any clause thereof, shall be revocable, other than by some other will or 
 codicil in writing, or other writing declaring the same, or by burning, can- 
 celling, tearing, or obliterating the same by the testator himself, or in his 
 presence, and by his directions and consent : but all such devises and be- 
 quests shall remain in force until the same be burnt, &c, in manner afore- 
 said, or unless the same be altered by some other will or codicil in writino-, 
 or other writing of the devisor, signed in presence of three or four wit- 
 nesses, declaring the same." 
 
 Therefore, if a will be of lands or tenements, it must be in writing, and 
 it must be committed to writing at the time of the making thereof; and it 
 is not sufficient that it be put in writing after the death of the testator, being 
 first made by word of mouth only, for then it is but a nuncupative still. 
 But, if the will be first made by words of mouth, and be afterwards written 
 and then brought to the testator, and he approve of it for his will : or if the 
 testator, when he declares his mind, appoint that the same shall be written, 
 and thereupon the same is written accordingly in the lifetime of the testa- 
 tor, these are good wills of land, and as good as if they had been written 
 at the first. Therefore, if one be very sick, and another come to him and 
 ask him whether his wife shall have his lands, and he say, Yes ; and a 
 clerk being present, put this in writing, without any precedent, command- 
 ment, or subsequent allowance of the sick man, this is no good will of the land. 
 So, if one declares his whole mind before witnesses, and sends for a notary 
 to write it, and dies before he comes, and the notary writes it after his 
 death, this is no good will of the lands, but a good nuncupative will for the 
 goods and chattels, except the testator declares his mind to be, that it shall 
 not be his will unless it be put in w T riting ; for then, perhaps, it may not 
 be a good will, even for his goods and chattels. So, if he that writes the 
 will cannot hear the party speak, and another, that doth stand by the sick 
 man, tells him w T hat he says ; in this case, if there be none others present 
 to prove that he reported the very words of the sick man, this will be no 
 good will of the land. But if a notary takes directions from the sick man 
 for his will, and after goes away and writes it, and then brings it again 
 and reads it to the testator, and he approves it ; or, if it be written from 
 his mouth by the notary according to his mind, and his mind were to have 
 it written, although it be not showed or read to him afterwards, these are 
 good testaments. So, if the notary only take certain rude notes or direc- 
 tions from the sick man, which he agrees to, and they be afterwards writ- 
 ten fair in his lifetime, and not showed to him again, or not written fair 
 until after his death ; these are good wills of lands. But if a sick man bid 
 the notary make a will of his lands, but do not tell him how, and the notary 
 make a devise of it after his own mind, this is no good will : and yet if it 
 be after read unto him, and approved by the testator, it may be good. If 
 a will be found written in the testator's house, and not known by whom, 
 and it be read unto and approved by the testator, this is not a good will 
 in writing for lands and goods. 
 
 Wood, part 1, 798 ; Dy. 72; Plow. 345. 
 
 Having shown how far writing is necessary, it remains to consider, 
 
 1. In what Language and Hand a Will may be written. 
 
 It is not material in what matter or stuff, whether in paper or parchment, 
 nor in what language, whether in Latin, French, Dutch,(a) or any other 
 tongue, or in what hand or letters, whether in secretary hand, Roman hand, 
 
 Vol. X.— 62
 
 490 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. {Signing, Attestation, $rc.) 
 
 or court hand, (6) or in any other hand, a will be written, so that it be fair 
 and legible, that it be read and understood : neither is it material whether the 
 same be written at large, or by notes or characters usual or unusual, as 
 XXs. for twenty shillings, or when the figure 1 is used instead of the letter 
 A, if it be usual in the testator's writing, or the like, for the will is good 
 notwithstanding. So also, if some words be omitted, or improper sentence 
 used, when the intent and meaning is apparent ; as, where a man says, 
 " I make my wife of this my last will and testament," leaving out the 
 word executrix, yet the will is good : and this shall be understood. But 
 if it be so done as it cannot be read,(c) or by reading the mind of the testa- 
 tor cannot be known, then the will is void and of no force ; in like manner 
 as a nuncupative will is, when the words spoken are so ambiguous, ob- 
 scure, and uncertain, that thereby the meaning of the testator cannot be 
 known or understood. 
 
 Swinb. part 4, § 28. (a) But N. B. It must be so framed as to pass estates accord- 
 ing to the rules of our law. 1 Vern. 85, Bovey v. Smith. \\{b) Though written in 
 pencil, that circumstance only will not prevent a testamentary paper being received. 
 1 Phil. R. 1 ; 2 Phil. 173. || (c) Where a will was written so blindly that it was scarce 
 legible, and the legacies were in figures, it was referred to a master to examine what 
 those legacies were, and he to be assisted by such as were skilled in the art of writing. 
 1 P. Wms. 425, Masters v. Masters. 
 
 We now proceed to treat, — 
 
 2. Of the Circumstances of Signing, Attestation, Publication, &c. 
 
 The clauses of the 29 Car. 2, above recited, having rendered those cir- 
 cumstances necessary, it is next to be inquired, When, in legal construc- 
 tion, these requisites shall be deemed to have been complied with ? which 
 may be best collected by attention to the following cases. 
 
 It has been held, that sealing a will is a signing within the statute of 
 
 frauds and perjuries. 
 
 2 Str. 764, Warneford v. Warneford ; [Gryle v. Gryle, 2 Atk. 176; serf vide Smith 
 v. Evans, 1 Wils. 313, and Right v. Price, Doug]. 244 ;] ||Ellis v. Smith, 1 Ves. jun. 
 11 ; Wright v. Wakeford, 17 Ves. 459, contra. || 
 
 ||" I, John Thomas, do make this my will," is equivalent to a signature. 
 Morison v. Tumour, 18 Ves. 183. 
 
 Whether a will, executed by a person not able to write, by making his 
 mark, is good, does not appear to be expressly decided; but as it has been 
 held, that the mark of a witness in such case is a sufficient signing, the same 
 would no doubt be held as to a mark by the testator. 
 
 Harrison v. Harrison, 8 Ves. 185; Addy v. Grix, Ibid. 504 ; Wright v. Wakefield, 
 17 Ves. 459 ; Rob. on Wills, 94. || 
 
 /3 Where a testator's hand was guided by another person with his consent, 
 and he afterwards acknowledged it ; held, that in point of law this was the 
 act of the testator. 
 
 Stevens v. Vancleve, 4 Wash. C. C. R. 262.g/ 
 
 But a will in writing need not be sealed ; but it is added, — qucere, if it 
 be good to pass freehold or inheritance ? 
 
 Perk. 477; {1 Dall. 94, Hight v. Wilson.} ||Sealing is not indispensable, nor is it 
 sufficient without signing. 17 Ves. 459. || 
 
 Where the testator owns his hand before the witnesses who subscribe the 
 will in the testator's presence, the will is good, though all the witnesses did 
 not see the testator sign ; and it is observable that the statute of frauds
 
 OF WILLS AND TESTAMENTS. 49] 
 
 (D) Of Wills in Writing. (Signing, Attestation, ^c.) 
 
 does not say, the testator shall sign his will in the presence of three wit- 
 nesses ; but requires these three things : first, That the will should be ir. 
 writing. Secondly, That it should be signed by the testator. And, thirdly, 
 That it should be subscribed by three witnesses in the presence of the 
 testator. 
 
 3 P. Wms. 254, Stonehouse et ux. v. Evelyn; [Grayson v. Atkinson, 2 Ves. 454. 
 S. P.] ; {1 Ves. J. 11, Ellis v. Smith;} ||Addyv. Grix, 8 Ves. J. 504, ace; Westbeech 
 v. Kennedy, 1 Ves. & Bea. 363. || 
 
 /3An attestation in the same room with the testator is a sufficient sub- 
 scription in his presence. 
 
 A. Howard's will, 5 Monr. 202.g/ 
 
 Nevertheless, a will has been held to have been well executed, though 
 it was not mentioned in the attestation to have been signed in the presence 
 of the testator. 
 
 2 Stra. 1109, Croft v. Pawlet ; |] Brice v. Smith, Willes R. l.[| {It is not necessary, 
 in Pennsylvania, that there should be subscribing witnesses to a will. 1 Dall. 94, 
 Hight v. Wilson.} 
 
 {Where one only of the witnesses subscribes his name, and the other two 
 attest the will by setting their marks, the attestation is good within the statute. 
 
 8 Ves. J. 185, Harrison v. Harrison; Ibid. 504, Addy v. Grix. 
 
 It is not necessary to the validity of the execution of a will of lands by 
 a blind man, that it should be read over to him in the presence of the at- 
 testing witnesses. 
 
 5 Bos. & Pul.415, Longchamp v. Fish.} 
 
 If a will is attested by three witnesses, who severally signed their names, 
 not being present together ; yet each signing being in the presence of the 
 testator, makes it a good will within the statute. 
 
 2 Ch. Cas. 109, Anon. [So, Jones v. Luke, Feb. 1, 1742, B. R., 2 Atk. 176, by 
 Sanders' notes; 2 Ves. 455, S. G.j ||See the Roman law on this point stated, Rob. 
 on Wills, p. 124.|| 
 
 But if a man subscribes and publishes his will in the presence of two 
 witnesses, and they subscribe it in his presence, and after makes a codicil 
 in writing, reciting that he had made a former will and confirmed the same, 
 (except what was excepted by the codicil,) and declares, that the codicil 
 shall be taken as part of his will, and publishes it in the presence of one 
 of the witnesses to the first will and another new witness ; this is not a good 
 will, for there were not three subscribing witnesses in the presence of the 
 testator ; and one of the witnesses to the codicd never saw the will. Ad- 
 judged, though it was objected, the will and codicil made but one will, 
 and the circumstance of three witnesses wanting to complete the will was 
 perfected by the codicil. 
 
 3 Mod. 262, Lea & Lib. 
 
 So, if a man makes a will in several pieces of paper, and there are three 
 witnesses to the last paper, and none of them ever saw the first ; this is not 
 a good will. 
 
 3 Mod. 263, Lea & Lib. 
 
 || An unattested testamentary paper cannot pass an interest in real estate, 
 unless it be clearly referred to in a will duly attested, so that there can be 
 no doubt as to the paper referred to. It cannot be incorporated in the will 
 merely because it is found in the same cover therewith, endorsed as being 
 the party's will. 
 
 Smart v. Prujean, 6 Ves. 560 ; and see Wilkinson v. Adam, 1 Ves. & Bea. 445 ; 
 De Bathe v. Fingal, 16 Ves. 167.11
 
 492 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. (Signing, Attestation, §c.) 
 
 £When there is a clause of attestation to a paper, but it is not attested, 
 it is not conclusive evidence of the abandonment, by the testator, of his in- 
 tention that it should operate as a will. 
 
 Jones v. Kea, 4 Dev. 301. g/ 
 
 [It was proved that C made his will, consisting of two sheets of paper, 
 all of his own handwriting, and signed his name at the bottom of each 
 page ; and that he also made a codicil of his own handwriting upon one 
 single sheet, and called in H, showed him both the sheets of his will, and 
 his signature to every page thereof, and told him that was his will ; and 
 then showed H the codicil, and desired him to attest both the will and the 
 codicil : which he did, in the presence of the testator, and in the manner 
 appearing upon the face of the instrument, and then went out of the room. 
 V and L came in immediately afterwards, and the devisor showed them the 
 codicil, and the last sheet of the will, and sealed both before them. C then 
 took each of them up severally as his act and deed for the purposes therein 
 mentioned. Then the witnesses attested the same in the testator's presence, 
 but never saw the first sheet of the will ; nor was that sheet produced to 
 them ; nor was the same, or any other paper, upon the table. Both the 
 sheets of the will were found with the codicil in the testator's bureau, after 
 nis death, all wrapped up in one piece of paper; but the two sheets of the 
 will w r ere not pinned together. And the question upon these facts was, 
 Whether this will was duly executed according to the statute of frauds ? 
 After three several arguments before the Court of King's Bench, and one 
 argument before all the judges in the Exchequer Chamber, Lord Mansfield 
 delivered the judgment. His lordship said, that the question made at the 
 trial, and submitted by the case, as it then stood, turned upon the solemnity 
 of the execution; and they were of opinion, "that the due execution of 
 this will could " not be come at, in the method wherein the matter was 
 then put ;" that if this were considered as a special verdict, they thought 
 it was defectively found as to the point of the legal- execution of the will ; 
 that every presumption ought to be made by a jury, in favour of such a will, 
 when there was no doubt of the testator's intention ; and that they all 
 thought the circumstances sufficient to presume that the first sheet was in the 
 room : and that the jury ought to have been so directed : but, upon a spe- 
 cial verdict, nothing could be presumed ; therefore they were all of opinion, 
 " that it ought to be tried over again ;" and if the jury should be of opinion, 
 "that it was then in the room," they ought to find for the will generally, 
 and they ought to presume, from the circumstances proved, "that the will 
 was in the room." 
 
 Bond et al. v. Seawell et al., 3 Burr. 1773 ; S. C, Black. R. 407, 422, 454.] 
 
 A will of lands was originally executed in the presence of two witnesses 
 only, and at the distance of four years afterwards, the testator re-executed 
 his will, by drawing a pen on the old strokes, in the presence of one other 
 person, who likewise subscribed his name as a witness to it. Upon an 
 ejectment, brought by the heir at law, and on a special verdict, it was deter- 
 mined by the court, that this will was properly executed, and attested un- 
 der the statute of frauds and perjuries. 
 
 MS. Rep. Jones v. Dale, B. R. Hil. 16 G. 2 ; [2 Atk. 176, by Sanders, notes, S. C. ; 
 2 Ves. 455, S. C] 
 
 It was determined by the Lord Chancellor, that a will is well proved, 
 though the witnesses did not see the testator sign his name ; if he declared
 
 OF WILLS AND TESTAMENTS. 493 
 
 (D) Of Wills in Writing. {Signing, Attestation, $rc.) 
 
 it to be his handwriting to them, and they attested it in his presence, and 
 
 in the presence of each other. 
 
 MS. Rep. Grayson v. , in Cane. 25 & 26 G. 2 ; [Grayson v. Atkinson, 2 Ves. 
 
 454, S. C. ;] ||Addy v. Grix, fi Ves. 504 ; Westbeech v. Kennedy, 1 Ves. & B. 362.|] 
 
 A will was attested by three witnesses, in the presence of the testator 
 and of each other, but the testator did not write his name or put his seal 
 in their presence, but pointed to the paper and said, that was his will, and 
 he had wrote it, and that his name, William Ellis, subscribed, was his 
 writing and name ; and laid his hand on the seal, and said, that was his 
 seal. On a question in this cause, Whether this will, so executed, was 
 good as a revocation of a former will, under the sixth section of the statute 
 of frauds ? Lord Hardwicke, assisted by Lord C. J. Willes, Strange, 
 Master of the Rolls, and the Chief Baron, held clearly that it was ; it not 
 being doubted but that it was good as an original- mil, according to the 
 authorities determined on this head, that the owning it to be his handwrit- 
 ing w r as sufficient. 
 
 MS. Rep. Ellis v. Smith, Hil. & Mich. 27 G. 2 ; [Dougl. 244, notes, S. C. ;] !|1 Ves. 
 jun. 11 ;[| Dormer v. Thurland, 2 P. Wras. 509. 
 
 || So where a will of lands was subscribed by three witnesses in the pre- 
 sence and at the request of testator, it was held sufficiently attested within 
 the statute, although none of the witnesses saw the testator's signature, 
 and only one of them knew what the paper was. 
 
 White v. Trustees of the British Museum, 6 Bing. 310.|| 
 
 The testator desired the witnesses to go into another room, seven yards 
 distant, to attest his will, in which there was a window broken, through 
 which he might see them. And it was held, that this will was well at- 
 tested according to the statute of frauds : for though the statute requires 
 attesting in the testator's presence, to prevent another will from being ob- 
 truded in the place of a true one, yet it is enough if the testator might see. 
 It is not necessary that he should actually see them signing ; for, at that 
 rate, if a man should but turn his back, or look off, it would vitiate the 
 will : and the signing was in the view of the testator ; he might have seen 
 it, and that is enough. So, if the testator, being sick, should be in bed 
 and the curtain drawn. 
 
 2 Salk. 688, Shires v. Glascock. [In Casson v. Dade, 1 Bro. Ch. Rep. 99. Lord 
 Thurlow, relying on the authority of this case, inclined to think a will well attested, 
 where the testatrix could see the witnesses through the windows of her carriage, and 
 of the attorney's office.] 
 
 But where one devised lands to J S and his heirs, and duly subscribed 
 his will in the presence of three witnesses ; who, for the ease of the testa- 
 tor, went down stairs into another room, and attested the w T ill there, which 
 was out of the presence of the testator : and the heir at law was prevailed 
 on to join in a lease and release of the devised premises, in trust for the 
 devisee ; the will and the release were both set aside ; for the release recit- 
 ing that the will was duly executed, was suggestio falsi, and the conceal- 
 ing from the heir, that it was not duly executed, was suppressio veri ; either 
 of which circumstances are good reasons for setting aside a release or con- 
 veyance. 
 
 I P. Wms. 239, Broderick v. Broderick. 
 
 ||And if the testator is in such a position that he cannot in any manner 
 
 2T
 
 494 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. (Signing, attestation, tyc.) 
 
 see the witnesses, the will is not duly attested. But if it is attested in 
 
 such a place that the testator may see it done, this is sufficient. 
 
 Doe d. Wright v. Manifold, 1 Maule& S. 294 ; Todd v. Earl of Winchilsea, Moo. 
 & Malk. Cas. 12; Morrison v. Arnold, 19 Ves. 671. || 
 
 If the testator writes the will with his own hand, though he does not 
 subscribe his name, but seals and publishes it, and three witnesses sub- 
 scribe their names in his presence, it is a good will :(a) for his name being 
 written in the will it is a sufficient signing : and the statute does not direct, 
 whether it shall be at the top, bottom, &c. ; and, by three judges against 
 one, sealing is a signing within the act. And note ; it is not said in the 
 act, that the signing shall be in the presence of the three witnesses at the 
 same time. 
 
 3 Lev. 1, Lemayne v. Stanley. ||(a) According to the report of this case in Freeman, 
 the court was of opinion, that if the testator had his name on a stamp, it would be 
 enough if he impressed his name instead of signing it. And in Strange v. Barnard, 
 2 Bro. C. C 585, it was held that stamping was equivalent to sealing. By the civil 
 law, if a testator could not write, he was admitted to make his mark, but an eighth 
 subscribing witness (seven being the ordinary legal number,) was called in to subscribe 
 in place of the testator. Cod. 6, 23, l.|| 
 
 /3In New York, a testamentary paper found in an iron chest, among the 
 valuable papers of a deceased person, without signature, having an attes- 
 tation clause, without witnesses, written by the deceased, with his name in 
 the beginning, evincing much foresight and deliberation in its provisions, 
 and disposing of both real and personal estate to a large amount, according 
 to the common law, as generally understood and received in England and 
 in that State, on the 19th of April, 1775, when the common law was 
 adopted as a part of the law of New York, is a good will of the personal 
 estate bequeathed by such will. 
 
 Watts v. The Public Administrator, 4 Wend. I68.5/ 
 
 J S, before the statute of 29 Car. 2, viz. in 1668-9, wrote his will with 
 his own hand on a sheet of paper, and the writing went to the bottom on 
 one side, and half-way on the backside, which will, at the end of it, had 
 the name and seal of J S, and notice was taken in his own hand of some 
 interlineations. At a very little distance on the backside of the same pa- 
 per, a codicil was written, which extended almost to the bottom of the 
 same backside of the paper, and was dated 1679, which was after the sta- 
 tute of frauds, and had the name of the devisor subscribed, and his seal 
 affixed ; in which codicil a legacy as to a house was revoked, and the 
 same was thereby devised to A for life, and after to his brothers succes- 
 sively, but notice was not taken of the names of his brothers in the codi- 
 cil, but they were named in the will. At the top of the will was written, 
 "Signed, sealed, and published, as my last will and testament, in the pre- 
 sence of the same, being written here for want of room below." This 
 was likewise written in the testator's own hand, and then the names of the 
 three witnesses were subscribed ; two of those witnesses were dead, and 
 the third was produced at the trial, who testified that he was servant to the 
 testator for four years, and about twenty-seven or twenty-eight years ago, 
 he and the other two witnesses were called up in the night, and sent for 
 into the testator's chamber, who produced a paper folded up, and desired 
 him and the others to set their hands as witnesses to it, which they all 
 three did in his presence ; but they did not see any writing, nor did the 
 testator tell them it was his will, or say what it was ; but he believes
 
 OF WILLS AND TESTAMENTS. 495 
 
 (D) Of Wills in Writing. (Signing, Attestation, &c.) 
 
 this to be the paper, because his name is there, and the names of the other 
 witnesses, and he never witnessed any other deed or paper for the testa- 
 tor ; and though the testator did not set his name or seal to the will in 
 their presence, yet he had often seen him write, and believes the whole 
 will and codicil to be of his handwriting. And Lord Chief Justice Tre- 
 vor inclined that here was sufficient evidence to find the codicil well ex- 
 ecuted, and the jury found it accordingly. 
 
 Comyns's Rep. 197, Peate v. Ougley; ||Vin. Abr. tit. Devise, (N), 7, pi. 12.|] It 
 was insisted, that upon this evidence it is apparent that the codicil was written before 
 the execution of the will ; for otherwise there was no reason that the witnesses should 
 write their names at the top of the first side of the will, and the words written by the 
 testator's own hand as the reason of it, had been false, if the codicil had not then been 
 upon that paper: for there would have been sufficient room below the will for the wit- 
 nesses to attest it. The witness also says, that the execution was about twenty-seven 
 or twenty-eight years ago ; which time is subsequent to the codicil. But it was said, 
 the execution is sufficient within the statute ; for there is no necessity that the wit- 
 nesses see the testator write his name ; and if he writes these words, " Signed, sealed, 
 and published as his will," and prays the witnesses to subscribe their names to that, 
 it will be a sufficient publication of his will, though the witnesses do not hear him de- 
 clare it to be his will; and a case was mentioned, determined by Lord Chancellor 
 Shaftesbury, before 29 Car. 2, where a man wrote his will with his own hand, and also 
 these words, " Signed and published in the presence of," and no witnesses had sub- 
 scribed it; this was held to be a sufficient publication. Ibid. 
 
 A B made a will or testament schedule, all of his own handwriting, as 
 follows : " In the name of God, Amen. I, A B do make this my last will 
 and testament for fear of mortality till I can settle it more at large. I do 
 give and bequeath 1000/. unto D P to be paid by my executor (or) admi- 
 nistrator : and for sure payment thereof, I do charge all the real and per- 
 sonal estate which I have in the world, I being very desirous to make a 
 provision for the said D Pfor several good reasons inducing me thereunto. 
 In witness whereof I have hereunto set my hand, this present 7th day of 
 December, 1704. Signed A B." He delivered the same to the said D P, 
 and about a fortnight before his death, A B declared he had left with D P 
 an unquestionable security for 1000/., charged upon his real and personal 
 estate, and that he had done the same for fear of mortality, till such time 
 as he could make a full and complete will ; which he declared he would 
 do as soon as his wife was brought to bed, but that he waited to see if it 
 were male or female. He died suddenly 6th February, 1794, leaving his 
 wife then lying in of a daughter. The Judge of the Prerogative Court 
 gave sentence against the will, and pronounced that A B died intestate. 
 On appeal to the delegates (among whom were Holt, C. J., Price, B., and 
 Judge Dormer) the sentence was reversed, and they pronounced for the 
 will. 
 
 2 Ld. Raym. 1282, Powel v. Beresford. 
 
 A, by will in writing, attested by three witnesses, devised a copyhold 
 estate to his wife ; and afterwards the testator, on the day of his death, 
 directed his nephew to obliterate some devises, but said nothing as to the 
 copyhold devised to his wife, and then caused a memorandum to be written, 
 that he examined, perused, and approved of the will as so obliterated and 
 altered by his nephew in his presence, but did not republish it in the pre- 
 sence of three witnesses, but directed his nephew to have.it written out 
 fair ; but before it was brought back he became delirious ; and this was 
 held a good will as to the copyhold. 
 
 2 Vern. 498, Burkitt v. Burkitt. £ To make a valid will, the testator must have in-
 
 496 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. {Signing, Attestation, ^"c.) 
 
 tended the paper to operate as it stood, without a further act to complete it, and that 
 must appear from the paper itself. Murry v. Murry, 6 Watts, 356. See Barnett's ap- 
 peal, 3 Rawle, 15.# 
 
 Testator gave instructions to make his will of his real and personal 
 estate, and when it was brought to him he made several alterations, and 
 then wrote the whole over as altered, with his own hand : this being found 
 in his study, though not signed or sealed, w T as held a good will. Note; 
 the first sentence was, that he died intestate, but that was reversed by the 
 delegates. 
 
 Comyns's Rep. 453, Limbery et al. and Hide. ||See Sikes v. Snaith, 2 Phil. 351 ; 
 Wood v. Wood, 1 Phil. 365. || fi Memoranda written from the dictation of the deceased, 
 and proved by two witnesses to have been read to, and approved of, by him; held, in 
 Pennsylvania, to constitute a sufficient will. Rohrer v. Stehman, 1 Watts, 442.g/ 
 
 A will of lands made before the statute of frauds, had but two witnesses, 
 and the testator died after the statute, without altering his will, and his 
 Honour thought it a good will to pass the lands ; but the other side insist- 
 ing to have it tried at law, he directed it accordingly. 
 
 Prec. in Chan. 77, Serjeant v. Puntis. 
 
 A witness proving a will of lands, swears that he subscribed the will, 
 as a witness in the same room with, and at the request of, the testatrix ; 
 two others swore, that they saw the will executed by the testatrix, and 
 that they subscribed the same in the testatrix's presence ; a fourth witness 
 was gone beyond sea, and therefore could not be examined. Cowper, C, 
 doubted as to the proof of the execution of this will, but would declare no 
 opinion on the point until farther application, saying, that the heir at law, 
 then an infant, might by that time come of age. Afterwards Lord Maccles- 
 field held, that the bare subscribing by the witnesses in the same room 
 did not necessarily imply it to be in the testator's presence, for it might be 
 in a corner of the room in a clandestine, fraudulent way ; and then it would 
 not be a subscribing by the witness in the testator's presence, merely be- 
 cause in the same room ; but that here it being sworn by the witness, that 
 he subscribed the will at the testatrix's request, and in the same room, this 
 could not be fraudulent, and was therefore well enough. 
 
 1 P. Wms. 740, Longford v. Eyre. The proper way of examining a witness to 
 prove a will as to lands, is that the witness should not only prove the executing of the 
 will by the testator, and his own subscribing it in the presence of the testator, but like- 
 wise that the rest of the witnesses subscribed their names in the testator's presence; 
 and then one witness proves the full execution of the will, since he proves that the tes- 
 tator executed it; and likewise that the three witnesses subscribed it in his presence. 
 Per Lord Chan. Macclesfield, Ibid. 741 ; {1 Esp. Rep. 391, Doe v. Smith.} ||As to 
 '-he proof of wills, see post, (D) II1.|| 
 
 || Where the testator was blind, it was held not necessary to read over 
 the will to him before execution in the presence of the attesting witness. 
 
 Longchamp v. Fish, 2 New R. 415. || 
 
 [The law, as stated by Lord Macclesfield in the last case, seems con- 
 formable to the decision of the Court of King's Bench in the case of Right 
 and Price, in which the court held, that corporal presence merely was not 
 sufficient, unless there was likewise mental knowledge of the fact. In this 
 case, on the last day on which the testator made an effort to sign the will, 
 but failed, the witnesses being present, the form of an attestation was 
 written on the second sheet, and they put their names to it in the room 
 where the testator lay, but he was in a slate of insensibility. And the 
 question was, Whether this will was duly executed for passing lands
 
 OF WILLS AND TESTAMENTS. 497 
 
 (D) Of Wills in Writing. {Signing, Attestation, &c.) 
 
 according to the statute of frauds ? In support of the will it was argued, 
 tnat insensibility was something short of death, and if the testator was alive, 
 it could not be said that the will was not attested in his presence. That 
 the question was, Whether the testator having done all that was necessary 
 on his part, and the attestation having been made according to the words 
 of the statute, a fair transaction should be set aside because a formality 
 required, according to an implied intention of the legislature, had not been 
 complied with : that it did not appear but that the testator might, by pos- 
 sibility, have opened his eyes while the witnesses were subscribing their 
 names ; and that, according to the law as laid down in Shires and Glas- 
 cock, would have been sufficient. Sed per curiam, — The court will lean 
 in support of a fair will, and not defeat it for a slip in form, where the 
 meaning of the statute has been complied with : this was the principle of 
 Shires and Glascock's case, and other cases of that sort. But the case then 
 before the court was not one where there was a measuring cast and room 
 for presumption. All the witnesses knew, at the time of the attestation, 
 that the testator was insensible. He was a log, and totally absent to all 
 mental qualities. That it was usual in precedents of wills to say, that the 
 witnesses subscribed at the request of the testator: that indeed was not ex- 
 pressly required by the statute, but the practice showed the general under- 
 standing, and the nature of the thing implied a request. The attestation in 
 the testator's presence was as essential as his signature, and all must be 
 done while he was in a capacity to dispose of his property. In this case 
 the testator could not know whether the will that he had begun to sign was 
 that which the witnesses attested ; he was dead to all purposes or power 
 of conveving his property. 
 Right v. Price, Dougl. 241.] 
 
 || Whether an acknowledgment of the witness to the testator of his hand- 
 writing to the attestation is sufficient, seems not to have been expressly 
 decided, though it would seem clearly not according to the words of the 
 statute. 
 
 See Rob. on Wills, 124. || 
 
 The inhabitants of an incorporated town, to whom property is devised 
 for the support of a school, are competent witnesses to support the will. 
 
 Cornwell v. Isham, 1 Day, 35. 
 
 An executor who has acted under the will and accepted the trust, who 
 derives no beneficiary interest under it, is a competent witness to establish 
 the will. 
 
 Comstock v. Hadelyme Ecclesiastical Society, 8 Conn. 254.^ 
 
 It has been determined, that a trust of an inheritance must be devised in 
 the same manner as a legal estate. Thus where — 
 
 J S, seised of lands in fee, conveyed them by lease and release to trus- 
 tees, to the use of them and their heirs, in trust, that (after such moneys 
 raised as therein mentioned) the trustees should convey to A* his heirs and 
 assigns, or to such person or persons as he or they should direct ; the 
 moneys were raised, and A by will attested only by two witnesses devised 
 the premises to B. Lord Chan. Macclesfield said, there could be no ques- 
 tion but that a trust of an inheritance could not be devised otherwise than 
 by a will attested by three witnesses, in the same manner as a legal estate ; 
 for if the law were otherwise, it would introduce the same inconveniences 
 
 Vol. X.— 63 2 t 2
 
 49S OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. (Signing, Attestation, $*c.) 
 
 as to frauds and perjuries, as were occasioned before the statute, by a de- 
 vise of the legal estate in fee-simple. Decreed the will void, and that the 
 trustees should com r ey the premises to the testator's heir at law. 
 
 2 P. Wms. 258, Wagstaff v. WagstafF. And liis lordship held, that as the will did 
 not refer to the deed of trust, but A had undertaken to devise the land as owner thereof, 
 without any relation had to the pretended power ; this made it much stronger against the 
 will. Ibid. 260. — It was said arg. that this will, though not good by way of devise, 
 should be so by way of appointment, like a copyhold surrendered to the use of a will, 
 which may be devised by a will attested by two witnesses, or one witness only. But 
 his lordship said, that the copyhold passes by a surrender, and not by the will, and that 
 if this matter had not been settled, it might be more reasonable to say, when I have 
 surrendered my copyhold to the use of the will, a will of this copyhold shall be so exe- 
 cuted, and in such manner, as by the act of .parliament a will of lands ought to be exe- 
 cuted; but this case having been ruled otherwise, he said he would not shake it. Ibid. 
 258. InHil. Vac. 1727, his honour admitted it to be settled that where a copyhold in fee 
 is surrendered to the use of a will, such will, though executed in the presence of one or 
 two witnesses only, is good, because it passes by the surrender, and not by the will, 
 which is only a declaration of the use of a surrender : but that if a copyholder be seised 
 only of the trust or equity of redemption of the copyhold, and devise such trust or 
 equity of redemption, there must be three witnesses to the will ; for here can be no 
 precedent surrender to the use of the will to pass this trust; and the trust and equity of 
 redemption of all lands of inheritance are within the statute of frauds, otherwise great 
 inconvenience would arise therefrom ; and it is no prejudice to the lord to comprise the 
 trust of a copyhold within that statute, because the person who has the legal estate of 
 the copyhold is tenant to the lord, and liable to answer all the services. Ibid. 2G1. 
 Anon. — But in the case of Tuft'nel and Page, East. 1740, Lord Hardwicke was of 
 opinion, that the trust of a copyhold would pass by a will not attested according to the 
 statute of frauds, as a copyhold surrendered to the use of a will would do; for that 
 equity ought to follow the law, and make it at least as easy to convey a trust as a legal 
 interest: and decreed accordingly. Ibid, at the bottom of the p. 261. {17 East, 299, Doe v. 
 Danvers.} ||See post, p. 500; and see 55 G. 3, c. 192, by which a disposition by will 
 of copyholds is rendered as valid, without a surrender by testator, as it was before 
 with one.(| 
 
 Upon an issue directed out of Chancery, wherein the question was, 
 Whether a man was compos or not at the time of executing the will ? it was 
 held by the Chief Justice, that it was not necessary that all the witnesses to 
 the will should see it executed ; if one of them saw it executed, and the 
 others were present, he said it would be sufficient. 
 
 Barnard. Rep. in B. R. 367, Durrant v. Durrant. 
 
 J S, possessed of a term of five hundred years in Blackacre, afterwards 
 purchases the fee-simple in B's name, and devises Blackacre by will, all 
 of his own handwriting, to C in fee ; but the will was neither dated, sub- 
 scribed, nor attested. Decreed per his honour, that as this was a term 
 which would have attended the inheritance, and in equity have gone to 
 the heir, and not to the executor, in which respect it was to be considered 
 as part of the inheritance, so the will which was not attested by three Wit- 
 nesses, as the law required it to be when land was to pass, should not carry 
 this term. 
 
 2 P. Wms. 236, Whitchurch v. Whitchurch. A will not attested, &c, as in the 
 presentcase, will be sufficient to pass a term in gross; but not a trust of a term attend- 
 ant on an inheritance, nor consequently the term itself. Per his honour, Ibid. 23H. — 
 A will not attested as the statute of frauds requires, shnll not pass any estate of yrbii !i 
 the heir, as heir, would otherwise have had the benefit. Per his honour. Ibid. — Gilb. 
 Rep. in Eq. 168, S. C. ; 2 Mod. Cases in Lav. and Equity, 121, S.C. ||Rob. on Wills, 1, 
 158, 162. I| 
 
 Upon an ejectment by the heir at law, the question for the opinion of the 
 
 court was, Whether it should be left to a jury to determine, whether the 
 
 witnesses to a will ''being all dead) set their names in the presence of the
 
 OF WILLS AND TESTAMENTS. 499 
 
 (D) Of Wills in Writing. (Signiyig, Attestation, $c.) 
 
 testator, and this merely upon circumstances without any positive proof? 
 Per cur., — This is a matter fit to be left to a jury, which is all that is re- 
 ferred to the court. The witnesses, by the statute of frauds, ought to sot 
 their names as witnesses in the presence of the testator ; but it is not re- 
 quired by the statute that this should be taken notice of in the subscription 
 to the will ; and whether inserted or not it must be proved ; if inserted, it 
 does not conclude but it may be proved contra, and the verdict may find 
 contra ; then, if not conclusive when inserted, the omission does not con- 
 clude it was not so, and therefore it must be proved by the best proof the 
 nature of the thing will admit. In case the witnesses be dead, there can- 
 not probably be any express proof, since at the execution of wills few are 
 present but the devisor and witnesses ; then, as in other cases, the proof 
 must be circumstantial, and here are circumstances. First, three witnesses 
 have set their names, and it must be intended they did it regularly. Secondly, 
 one witness was an attorney of good character, and may be presumed to 
 understand what ought to be done rather than the contrary. And there 
 may be circumstances to induce a jury to believe, that the witnesses set 
 their hands in the presence of the testator, rather than the contrary ; and 
 it being a matter of fact, it was proper to be left to them ; as, whether the 
 livery was given on a feoffment, when no livery is endorsed ; whether a 
 deed was executed when only a counterpart was produced, &c. And the 
 court was of opinion, that the plaintiff ought to be nonsuited. 
 
 Comyns's R. 531, Hands v. James. 
 
 A will shall not be read on proof of a witness's hand, unless there be 
 positive proof that he is dead. 
 
 Comyns's R. 614, Bishop v. Burton. {Proof of the witness's hand is sufficient if he 
 is not in the kingdom ; 5 Ves. J. 404, Lord Carrington v. Payne; or if proper inquiry 
 has been made for him, and nothing can be heard of him ; 9 Ves. J. 5, M'Kenire v. 
 Frazer: or if he has become insane. 9 Ves. J. 381, Bernett v. Taylor.} 
 
 Upon a trial at bar concerning the execution of a will, it did not appear 
 
 upon the face of it, that the attestation of the witnesses was made in the 
 
 presence of the testator, which being objected to, a case Avas cited, where 
 
 Lord Chief Justice Eyre held it a matter proper to be left to a jury, whether 
 
 they believed it to be so done or not : and Mr. Justice Chappel cited a 
 
 case to the same purpose, quod curia concessit, and held it not necessary it 
 
 should be inserted in the will, that the attestation was in the presence of 
 
 the testator, though by the statute it is necessary it should in fact be so 
 
 attested. 
 
 Vin. Abr. tit. Devise, (N), 9, pi. 4, Croft on dem. of Dalby v. Pawlet; ||2 Stra. 1109. 
 S. C. ; and see Brice v. Smith, Willes R. 1, Lord RanclirTe, v. Parkins, 6 Dow. 202.|! 
 
 If a copyholder, after admittance, surrenders the lands to the use of his 
 last will, and by his last will gives them to A, but the will is not attested 
 by any witnesses ; yet A is well entitled to the lands. Per Lord Chan- 
 cellor. 
 
 Barnard. Rep. in Chan. 11, 12, Tuffnel v. Page. And his lordship said, that the 
 reason is, that the party is in by the surrender, and not by the will, anil therefore it ie 
 good, though there be no witnesses at all ; but that it. is necessary that the will be in 
 writing, and if it be so, it is sufficient, if it be signed by the party ; and so it is where 
 a person is entitled to the trust of a copyhold, though there were no surrender at all to 
 the use of the will, nor the will attested* by any witness, yet it is sufficient to give the 
 trust of a copyhold estate. Per his lordship, Id. ibid. ||See Noel v. Hoy, 5 Madd. 
 38. || [The necessity that a will of copyholds should be in writing, is questioned by 
 Mr. Watkins in his Treatise on Copyholds.] 
 
 A surrender was made of a copyhold estate to trustees, to the use of the
 
 500 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. (Signing, Attestation, $-c.) 
 
 will ; which was made with only two witnesses to it. It was admitted, 
 that a will of a copyhold estate does not require three witnesses ; but this 
 is a devise of a trust relating to lands, so within the very words of the 
 statute of frauds : the heir controverting the surrender and the will, this 
 point was not determined, but two issues ordered. 
 
 Select Cases in Chan. 42, Appleyard v. Wood. Lord Chancellor seemed to be of 
 opinion, that the devise of a trust must ensue the nature of the estate, and not make it 
 necessary to have three witnesses, as the copyhold might be devised without three 
 witnesses; but this may be a question to be determined when the issues are tried. 
 Ibid Vin. Abr. tit. Devise (N), 1 pi. 4, S. C, states it thus:— A seised in fee of copy- 
 hold lands, makes a surrender to the use of B and C, and their heirs, to the use of his 
 will, and devises the land to D. Parker, Chan., was of opinion, that the circumstances 
 Tequired by the statute 29 Car. 2, in devises of lands, ought to be observed in this case : 
 for, by this surrender the fee of the copyhold was in the surrenderors, and only a trust 
 devised by the will, which cannot pass by the devise, without the circumstances re- 
 quired by the statute of frauds, in relation to devises of lands, be duly observed. But 
 the counsel insisting that a devise of copyhold is not within the statute, Lord Chan- 
 cellor said, that if the surrender had been only to the use of the will, that might have 
 been a question in this case, but now it is not ; however, he inclined to think it neces- 
 sary in that case, but would not determine that point, that not being the case before 
 him. 
 
 |1 A devise of a customary freehold requires an execution and attestation, 
 according to the statute of frauds, since it is distinguishable from a copy- 
 hold ; but it has been held otherwise where there is a custom in the manor 
 to surrender such customary estate to the use of a will. 
 
 Hussey v. Grills, Ambl. 299 ; Cook v. Danvers, 7 East, 299. 
 
 By the custom of a manor, the legal interest in customary lands was not 
 devisable, but was transferable by a deed of bargain and sale, having the 
 effect of a surrender, in which the operating words were " bargain, sell, 
 and surrender;" on presentment of which, admittance was granted to the 
 alienee ; but an equitable interest in such lands might pass Joy devise. A 
 tenant of the manor conveyed his customary lands by bargain and sale to a 
 trustee, upon trust for such person as the tenant, by any deed or instrument 
 in writing, or by his last will, or any codicil thereto, or any instrument in 
 the nature of a last will or codicil, to be by him legally executed, should 
 appoint or devise the same ; and under this conveyance the trustee was 
 admitted ; it was held, that the equitable interest in the lands could net 
 pass by the unattested codicil of the tenant. 
 
 Willan v. Lancaster, 3 Russell, 108. |J 
 
 A will made beyond sea, of lands in England, must be attested by three 
 witnesses. 
 
 2 P. Wins. 293. {But a will of personal property must be executed according to the 
 law of the testator's domicil at the time of his death. 1 Binn. 336, Desesbats v. Ber- 
 quier. See Executors and Administrators, (A,) and 3 \ es. J. 418. } 
 
 || Lands in the East Indies, held by a tenure of the nature of fee-simple, 
 do not pass by an unattested will, but descend to the person who would be 
 heir at law in England. 
 
 Gardiner v. Fell, 1 Jac. & W. 22. See Sheddon v. Goodrich, 8 Ves. 481.|j 
 
 J S had a power at any time during the joint lives of him and M 
 his wife, by his last will, or any writing purporting to be his last will, 
 under his hand and seal, attested by three or more credible wit- 
 nesses, (if he should die before his wife, without any issue between 
 them then living,) to charge lands with any sum or sums of money not 
 exceeding 2000/., to be paid to such persons and in such proportions
 
 OF WILLS AND TESTAMENTS. 501 
 
 (D) Of Wills in Writing. (Publication, &c.) 
 
 as he should appoint : with the like remainder to M if she should die with- 
 out issue in the life of her husband, J S. There was no issue of the mar- 
 riage ; and J S, by his last will in writing under his hand, attested by three 
 witnesses, but not sealed, reciting his power, &c., disposed of 2000Z. to 
 the plaintiffs (being his relations) in the proportions therein mentioned. 
 There were three witnesses to the will. Two of the witnesses swore that 
 the will was signed by the testator, in the presence of all the three witnesses ; 
 but the third swore, that the testator, having written and signed the will 
 before, called for the witnesses, and declared that writing to be his last 
 will, and that all the three witnesses were then present, and subscribed 
 their names in his presence. Lord Chanceller King referred it to the 
 judges of B. R., who determined (on argument) that the will was void as a 
 charge for want of being sealed. 
 
 2 P. Wms. 506, Dormer, &c. v. Thurland,&c. Lord Chas. King said, that though 
 he himself inclined to think the will of the lands good, if the testator should acknow- 
 ledge the name to be his, and the witnesses should subscribe in his presence, yet that 
 point should be reserved to the defendant; and said, that he took this will to be a good 
 one, and, being so, to be a good charge. But in the case of Stonehouse and Evelyn, in 
 proving a will disposing of a real estate, the proof was full that the three subscribing 
 witnesses did subscribe their names in the presence of the testatrix ; but one of them 
 said, he did not see the testatrix sign, but that she owned, at the same time the wit- 
 nesses subscribed, that the name signed to the will was her own handwriting, which 
 Sir Joseph .Tekyll held, without all doubt, to be sufficient. 3 P. Wms. 254. And 
 ibid, the reporter says, that on his mentioning his honour's opinion above to .Mr. Jus- 
 tice Fortescue Aland, he said, it was the common practice, and that he had twice or 
 thrice ruled it so upon evidence on the circuit; and that it is sufficient if one of the 
 three subscribing witnesses swears the testator acknowledged the signing to be his 
 own handwriting ; and it is remarkable, that the statute of frauds does not say that the 
 testator shall sign his will in the presence of three witnesses, but requires these three 
 things : first, that the will should be in writing ; secondly, that it should be signed by 
 the testator; and, thirdly, that it should be subscribed by three witnesses in the pre- 
 sence of the testator. 
 
 A will of land w T as duly signed by testatrix in the presence of A, and 
 also published; which A wrote the will, but is now dead: his hand was 
 proved. After this the testatrix called in B to be a witness to the will ; 
 she told him it was her will, and published it as such ; after this she called 
 in C and did the same. The question was, Whether these witnesses at- 
 testing this will at several times, though all in the presence of the testatrix, 
 w r ere according to the statute of frauds and perjuries ? Baron Price held it 
 ill, (a) at Lent assizes at Devon, 1717. 
 
 Vin. Abr. tit. Devise, (N), 10, Ca. 3, p. 128. (a) For the intent was, that all the wit- 
 nesses should be together, that one might testify for the other; and this was a ready 
 way to let in fraud and perjury, for after the first witness had attested it, there might 
 be a rasure or interlineation. Per Baron Price. Ibid. 
 
 Lord Keeper Wright held a publication of a will before three witnesses, 
 
 though at three several times, good within the statute, and thought the 
 
 writing of the will with the testator's own hand a sufficient signing within 
 
 the statute, though not subscribed or sealed by him; but doubted whether 
 
 owning the subscription to be his was sufficient: but the validity of the 
 
 will is a question at law, and therefore ordered it to be tried. 
 
 Pr. Ch. 185, Cook v. Parsons; || Jones v. Lake, 2 Atk. 176; see the doctrine of the 
 civil law as to the witnesses attesting at separate times stated. 1 Roberts, 121, notd.\\ 
 
 If a man draws up his own will, and sends it to counsel to be advised of 
 the legality of it, this is no will, unless it has a publication after he receives 
 it back from his counsel. If after his will comes from counsel, with alter-
 
 502 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. (Publication, &c.) 
 
 ations made by counsel, the party puts his seal to it, or subscribes his name, 
 or writes upon it, " this is my will ;" though there be no witnesses to it, 
 yet this is a good publication, because any of those declare his intent, that 
 it should be his will : and though it have no formal beginning, but begin, 
 "also I give and bequeath;" and though there be blanks for the names of 
 such persons as he says he has made a lease or feoffment to, to perform his 
 will, if there be such a lease or feoffment, this is a good will, and shall 
 direct those persons, to whom such lease, &c, is made, to perform all 
 things according to the directions of such will. 
 
 Vin. Abr. tit. Devise, (N), 2, pi. 16. |jThis case was before the statute of frauds, 
 29 Car. 2.|| 
 
 0A will is duly published, when it is written and signed by the testator 
 with his own hand ; or when he has signed one not written by himself, and 
 it is attested by the witnesses as the statute requires. 
 
 Ray v. W'alton, 2 Marsh. 74. g/ 
 
 If a testator signs his will, but delivers it as his act and deed, yet this 
 will be a sufficient publication. 
 
 Vin. Abr. tit. Devise, (N), 7, Ca. 13, p. 125. ||This case was before the statute of 
 frauds, 29 Car. 2.|| 
 
 [Where the witnesses were deceived by the testator at the time of the 
 execution, and were led to believe, from the words used by the testator at 
 the execution of the instrument, that it was a deed and not a will (for it 
 was delivered as his act and deed, and the words " sealed and delivered" 
 were put above the place where the witnesses were to subscribe^ their 
 names:) it was adjudged by the court, as it is said, for the inconveniences 
 that might arise in families from having it known that a person had made 
 his will, that this was a sufficient execution. 
 
 Trimmer v. Jackson, 4 Burn's Eccl. Law, 117. ||See per Lord Hardwicke in Ross 
 v. Ewer, 3 Atk. 161, and Rob. on Wills, vol. ii. 101. || 
 
 So, if the devisor show the will unto the witnesses, saying, " This is my 
 last will and testament," or, " herein is contained my last will," this ; .s 
 sufficient without making the witnesses privy to the contents thereof, pro- 
 vided the witnesses be able to prove the identity of the writing; that is to 
 say, that the writing showed is the very same writing, which the testator 
 in his lifetime affirmed before them to be his will, or to contain his last will 
 and testament. 
 
 Swinb. 52 ; Godb. O. L. 66. 
 
 And a publication may be inferred from circumstances, and will have the 
 same force to render the instrument valid, as if expressed by parol decla- 
 ration. 
 
 In a case which came on at the assizes at Lincoln before Mr. Justice 
 Dennison and a special jury, the facts were these : W made his will in his 
 own handwriting, thereby devising his real estate, and the form of attes- 
 tation was in these words, " signed, sealed, published, and declared for the 
 last will and testament of the said W,in the presence of us," I M, J W, and 
 \V P. The heir at law brought an ejectment ; and, to prove the will, the 
 devisee produced W P, one of the three subscribing witnesses, who de- 
 posed, that about July, 1760, J W, then butler to W, the devisor, came 
 and told him that he must come to his master ; that, upon entering the room, 
 he found his master sitting with a table before him, on which were some 
 papers open ; and that his master called him and the said J W, and I M,
 
 OF WILLS AND TESTAMENTS. 503 
 
 (D) Of Wills in Writing. (Publication, &c.) 
 
 (then his housekeeper,) up to the table to him, where they all came ; then 
 W further addressed himself to them all, desired them to take notice, and 
 then took a pen, and, in all their presence, signed and sealed each part of 
 his will, and laid both the said parts open and unfolded before them to 
 subscribe their names as witnesses thereto, which they all did, by the direc- 
 tion of the said W, in his presence, and in the presence of each other, 
 he showing them severally where to write their names. But that the said 
 W, otherwise than as above, did not declare or publish either part to be his 
 will, or say what it was. The counsel for the plaintiff contended, that 
 this was not a sufficient proof, by one witness, of a complete execution of 
 the will : and they produced, on the other hand, the other two subscribing 
 witnesses, who, in many particulars, did not give a clear and distinct evi- 
 dence ; and could not recollect whether they had signed one or two pa- 
 pers ; or w T hether then, or at any time before the said W's death, they un- 
 derstood what they had so witnessed to be W's will, though J W seemed 
 to admit he conjectured it so to be. But both J W and I M swore that 
 they did not see the said W either sign or seal any part of his will : that 
 P, the other subscribing witness, was not at that time in the room, when 
 (at the said W's desire) they wrote their names to the two papers as they 
 then appeared; that W did not declare or publish it as his will, nor did 
 they know it to be a will. The counsel for the devisee then called R P, 
 the testator's groom, who swore, that one morning, in the beginning of 
 July, 1760, J W told him, that his master had much wanted him, and that, 
 upon his the said R P's offering to go to his master to receive his orders, 
 J W told R P, that the business was done, and that J P had supplied his 
 place, and that he the said W P, J W, and I M, had that morning been 
 witnessing their master's will. And S being called, swore, that in the be- 
 ginning of July, 1760, I M came one morning after breakfast into the 
 kitchen, and told her that she, and J W, and W P, had that morning wit- 
 nessed their master's will, though he had not told them it was so. Upon 
 the state of the evidence on both sides, it was insisted for the plaintiff, that 
 as the law stood before the statute of frauds, publication of a will was an 
 essential part thereof; and, if so, there w T a^' nothing in that statute to take 
 it away : and it was further insisted, that, by the said statute, one requisite 
 to a good and valid devise of lands was, that it should be attested and 
 subscribed in the presence of the devisor by three or four credible wit- 
 nesses, and that the words attested and subscribed must import, that it should 
 be published as a devise or will by the testator, in the presence of the wit- 
 nesses. On the contrary, for the defendant, it was contended, that neither 
 before nor since the statute, publication was necessary, and further, sup- 
 posing any such publication was necessary, that the testator had used words 
 and done acts which amounted to a publication within the meaning of the 
 statute, which had not directed or prescribed any particular form or man- 
 ner in which such publication should be made ; that the testator's using 
 these significant words to all the witnesses when he called them up to the 
 will, " take notice ," and then signing both parts of his will, and then de- 
 livering both the parts thereof to the witnesses to attest, directing them 
 where to sign their names, and to witness each part under the common and 
 usual form of attestation, which the witness did, was a sufficient execution 
 and publication of his will ; the words "signed, sealed, published, and de- 
 clared" being all written in the testator's own handwriting, and the wit- 
 ness P, swearing that both parts of the will lay open to the inspection of
 
 504 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. (Republication.) 
 
 all the witnesses when they subscribed their names, and it appearing, by 
 the evidence of P and D, that both the other witnesses had declared that 
 they had been attesting W's will. And they said that this was a much 
 stronger case than that of Peate and Ongly, supra. And Mr. Justice Deni- 
 son was of opinion, that, if the witnesses for the defendant were credited 
 by the jury, this was a due execution within the statute, and a sufficient 
 publication ; and the jury found accordingly for the defendant. But the 
 plaintiff's counsel insisted that the point, whether a good publication or 
 not, should be reserved for a case to be argued above. However, the 
 matter was compromised on the defendant's remitting the costs. 
 
 Wallis v. Wallis, 4 Burn's Eccl. Law, 127. 
 
 An illiterate man drew up himself, and wrote on two sides of a sheet of 
 paper, several devises and bequests, which he subscribed ; but they were 
 neither signed nor witnessed. He afterwards added a memorandum, (so 
 called by the testator himself,) beginning at the end of the second, or the 
 beginning of the third side of the same sheet of paper, by which he dis- 
 posed of a part of his personal estate, but said, that he did not mean thereby 
 to disannul any part of his former devise or dispositions. This memoran- 
 dum was subscribed by him in the presence of three witnesses, and he de- 
 clared it to be his last will in their presence, and he delivered it to them, 
 and desired them to subscribe and attest it, which they did in his presence, 
 and in the presence of one another. The Court of King's Bench held this 
 to be a sufficient publication of the original will to pass the real estate. 
 
 Carleton v. Griffin, 1 Burr. 549.] 
 
 An uncle having devised his estate from his nephew and heir at law, a 
 younger brother of the heir at law, at the uncle's funeral, snatched the will 
 out of the hands of the executor, and tore it in many small pieces, but most 
 of them, and particularly that part wherein was the devise of the land, were 
 picked up and stitched together again: and on a bill to have the will esta- 
 blished, it was decreed, that the devisee should (a) hold against the heir, 
 and he to convey to him, although there was no direct proof made that the 
 heir directed the tearing of the will. 
 
 2 Vern. 441, Haynes v. Haynes. (a) A will, though gnawn to pieces by rats in the 
 life of the devisor, if by joining the pieces together the contents can be known, will be 
 good. So, if a will continues in writing at the death of the devisor, though <jnawn, 
 burnt, or lost after, it shall stand good. Allen, 2, 55. {See 2 Binn. 406, Havard v. Da- 
 vis; 1 Bay. 464, Legare v. Ashe.} A writing, in form of an indenture, and sealed 
 and delivered, if proved to be intended a will, shall be good as such. 1 Ch. Cas. 218. 
 1 Mod. 117. 
 
 3. Of the Republication of a Will — What will amount to a Republication ; and where 
 a Republication will make a Devise good. 
 
 If a man devises certain lands, and after aliens them to a stranger, and 
 repurchases, and after shows his intent, that the said will shall be his will; 
 this is a new publication, and the lands shall pass by the devise. 
 
 1 Vern. 330, Hall v. Dunch. &A will may, in Pennsylvania, be republished by pa- 
 rol. Jones v. Hartley, 2 Whart. 103. See Linginfelter v. Linginfelter, Hardin, 119, 
 Jackson v. Potter, 9 Johns. 312.^ 
 
 & Any circumstance whatever, plainly indicative of the testator's satisfaction 
 with a paper as his will, at a particular period, may be taken as a republi- 
 cation from that time. 
 
 Hatch v. Hatch, 2 Hayw. 32.
 
 OF WILLS AND TESTAMENTS. 505 
 
 (D) Of Wills in Writing. (Republication.) 
 
 So, the testator's saying his will was in a box in his study amounted to 
 a new publication. 
 
 2 Vern. 209, Cotton and Cotton; 1 Freem. 264, states it thus : — A devised his lands 
 in D, and all his other lands unto his wife, and after purchased other lands, and then 
 discoursing with B, B desired him to let him have those new purchased lands at the 
 rate that he bought them. A answered no ; for that he had made his will, and settled 
 his estate, and intended that his wife should have his whole estate. The court strongly 
 inclined that this was a new publication, and applied particularly to the lands; and 
 that it was no matter for alleging, quod dixit animo testandi, for that must necessarily 
 
 be intended, when the discourse had particular reference to the will. 2 Chan. R. 
 
 138, 140, S. C. says, a trial at law having been had upon this point, a special verdict 
 was found by C. J. North's directions ; and on a solemn argument, all the judges of C. 
 B. held it a republication of the will, and that the lands belonged to the wife, and that 
 the Court of Chancery affirmed the judges' opinion. 
 
 If a man seised of lands, devises all the lands to J S, and afterwards put- 
 chases the manor of D, and after writes in his will that J D shall be his 
 executor : yet this is not any new publication, to make the lands pass. 
 
 1 Roll. Abr. 618. j2A will once revoked by a written declaration, cannot be set up 
 by a republication by parol. Witter v. Mott, 2 Conn. 67 ; see 2 Whart. 103 ; Hardin, 
 119.?/ 
 
 But if, after the purchase of the manor of D, he delivers the first will a? 
 his will, and says, that it shall be his will, without putting any words 
 thereto ; yet this is a new publication to make the lands newly purchased 
 pass. 
 
 1 Roll. Abr. 618; 1 Salk. 237. 
 
 So, if a man seised of lands in D devises to another by his will in 
 writing all his lands in D, and after purchases other lands in D, and after 
 one J S comes to him, and requests him to give him the buying of the lands 
 last purchased ; and he answers him, that he will not, but that his intent 
 was, that those lands should go to his executors (the devisee being made 
 executor by the will) as his other lands should : and after the devisor 
 causes a codicil to be writ, in which there is a devise of several personal 
 things, as corn and implements of household, and annexes to it his first 
 will ; and after dies without other publication ; yet this shall be a sufficient 
 publication to make the lands newly purchased to pass by the will, for 
 there need no other words in the will than there were before ; and his 
 intent appears that it should be his will, by annexing the codicil. 
 
 1 Roll. Abr. 618. 
 
 But if a man has issue of two daughters, A and B, and he devises lands 
 to A and to the heirs of her body, and for want of issue to B, and A dies 
 in the lifetime of the testator, leaving issue, though after the testator annexes 
 a codicil to his will, and thereby disposes of some part of his personal 
 estate ; yet this will not amount to a republication of the will, nor give 
 any title to the issue of A, though the testator had declared in his will, 
 that B had married against his consent, and that what he had given her 
 was in full of her portion, and in bar of any further part of his real estate. 
 
 1 Abr Eq. Cas. 407; 2 Vern. 722, Hutton v. Simpson. [Ld. Camden, speaking 
 of this case in the Attorney-General v. Downing, Ambl. 374, says, "In Hutton v. 
 Simpson, it is said that annexing a codicil to a will, if it relates only to personal estate, 
 will not operate as a republication ; but I am of opinion, that either the report is mis- 
 taken, or that it is not law. The principal question was not, Whether the codicil was 
 a republication of the wilH but, Whether the sense of the words, heirs of the body, could 
 be altered by the death of the testator's daughter in his lifetime'? and the testator after- 
 wards making a codicil, held, they could not; as in Stead v. Berrier, 2 Jon. 135." 
 His lordship, therefore, was of opinion, that a will of lands w»nld be republished by a 
 
 Vol. X.— 64 2 U
 
 506 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. {Republication.) 
 
 codicil that related wholly to personalty, provided it was attested by three witnesses, 
 grounding himself upon this, as Lord Thurlow observed, that where the testator an- 
 nexes a codicil to his will, he treats them as one instrument, and makes them so from 
 that lime. Lord Thurlow therefore thought, that where a testator speaks of a codicil 
 to be annexed to his will, he speaks again of his will, and at least, in cases of personal es- 
 tate, it amounts to a republication. Coppin v. Fernyhough, 2 Bro. Oh. R. 296 ;] {4 Bro. 
 C. 0. 2, Barnes v. Orowe; 7 Ves. J. 98, Pigot v. Waller, ace, which see, infra, p. 
 510, 511.} 
 
 It has been doubted, if one devises a lease to his daughter, and after- 
 wards renews the lease, and afterwards adds his codicil to his will without 
 taking any notice of the lease, whether the renewal of the lease is a 
 revocation, and whether the adding of a codicil to his will is a republica- 
 tion. 
 
 2 Vern. 209. 
 
 It has been said, however, that if a codicil be executed after making a 
 will and purchasing lands, it will amount to a republication, and pass the 
 lands purchased after making the will, and that it was so determined by 
 all the judges in the case of Acherley and Vernon : which see, infra. Sed 
 quare, unless it appears he had his real estate under consideration. 
 
 xMSS. R. Gibson v. Rogers, in Cane. Trin. 23 G. 2; [Ambl. 93, S. C] |]That the 
 case of Acherley v. Vernon is now confirmed, see post, p. 507, and 3 Younge & J. 285 ; 
 1 Meriv. 285.|| 
 
 A having given a legacy inter alia to his son Joseph, Joseph died, and 
 he afterwards had another Joseph, and then by a codicil to his will, con- 
 firming his will, he took notice, that since the last, it had pleased God to 
 give him another son, and gave him a smaller legacy. Determined, that 
 this was a republication of his will, and amounted to a substituting of the 
 second Joseph in the place of the first ; and gave him the first legacy as 
 well as the second. 
 
 MS. Rep. Perkins and Micclethwaite; ||1 P. Wms. 275, S. C.|| 
 
 If a man has issue three sons, A, B, and C, and devises lands to B in 
 tail, remainder to C; and B has issue two sons, and dies; and after the 
 devisor says, " My will is, that the sons of B shall have the lands devised 
 to their father, as they should have had if he had lived and had died after;" 
 and then the devisor dies : whether this should amount to a new publica- 
 tion, dubitatur ; two judges against two. 
 
 Cro. Eliz. 422, Fuller v. Fuller. ||The better opinion seems to be that of Gawdy 
 and Olinch, that it was not a new publication. |j 
 
 If J S has issue two sons, William and Robert, and Robert has issue a 
 son named Robert, and J S devises lands to his son Robert, and his heirs ; 
 and by the same will gives his grandson 50/., and Robert his son dies; 
 and after J S by parol republishing his will, says, " Robert, my grandson, 
 shall take by my will as Robert my son should have done:" yet the grand- 
 son shall not have the lands, for lands cannot pass but by will in writing ; 
 and his son Robert cannot import his grandson Robert, especially when, 
 by the same will, he has made a distinction between his son and grandson. 
 The judgment to the contrary, given by three judges against the opinion 
 of Scroggs in the Common Pleas, is said by the reporter to have been re- 
 versed in B. R. (as he heard,) though it was argued, that the words of the 
 will were proper enough to pass the lands to the grandson; for that the 
 addition of grand only imported a distinction between father and son while 
 living; but that the father being dead at the time of the republication, the 
 grandson might properly be described by the name of son. 
 
 1 Lev. 213, Strode v. Berager; 1 Vent. 341 ; 2 Jones, 135; Raym. 408.
 
 OF WILLS AND TESTAMENTS. 507 
 
 (D) Of Wills in Writing. (Republication.) 
 
 J S, by a will dated 17th Jan. 1711, devised to M his wife 1000/. per 
 annum for her life, to issue out of his real estate, his capital messuage at 
 H, &c. ; to his sister E 200/. per annum for her life ; and 1000/. to L her 
 daughter, for her portion ; and after other legacies, he devised the residue 
 of his real and personal estate to A, B, C, D, and F, and their heirs, exe- 
 cutors, and administrators, on trust to vest the residue of his personal estate 
 in lands of inheritance ; and that his trustees should stand seised and pos- 
 sessed of his real and personal estate to the uses of his will, during his 
 wife's life ; and after her decease, if he should die without issue, to the 
 intent that his freehold and leasehold estate, and the lands to be purchased, 
 should be settled to the use of the defendant G for ninety-nine years : then 
 to his first and other sons in tail-male, &c. J S purchased several fee-farm 
 rents, assart rents, and other lands and tenements ; and then by a codicil, 
 2d Feb. 1720, being two days before his death, he recites that he made a 
 will, dated 1st Jan. 1711, and then says, " I hereby ratify and confirm the 
 said will, except in the alterations hereafter mentioned. The portion to 
 my niece L shall be made up 6000/., and what I have given to my sister 
 and niece shall be accepted by them in satisfaction of all they may claim 
 out of my real and personal estate, and on condition they release all right, 
 &c, to my executors and trustees in my will named ; and thus having pro- 
 vided for my sister and niece, I devise all the lands by me purchased since 
 my will, to my trustees and executors in my will named, to the same uses, 
 and subject to the same trusts to which I have mentioned to devise the 
 manor of H and the bulk of my estate ; and I revoke that part of my will, 
 whereby I appoint A, B, and C, three of my trustees in my will ; and I 
 desire K and N to be two of my trustees, and devise my said real estate to 
 them accordingly." Lord Chancellor Macclesfield, 20th Nov. 1723, de- 
 creed, that the will was confirmed by the codicil ; that J S signing and 
 publishing his codicil in the presence of three witnesses was a republica- 
 tion of his will, and both together made but one will ; and by the said will 
 and codicil, his fee-farm rents, assart rents, and lands, contracted to be 
 purchased, and all his real and personal estate, (except the copyhold pur- 
 chased before his will,) did well pass. On appeal to the Lords, the de- 
 cree was affirmed. 
 
 Comyns'sR. 381,Acherley v. Vernon; [3 Bro. P. C. 107,S.C] J S, by will, dated 
 25th March, 1700, devised all his lands to A his nephew and his heirs, and directed that 
 
 he should take the surname of Lytton ; and his personal estate be devised to Dame 
 
 Russel, his sister, and the said A, and made them executors. Afterwards J S pur- 
 chased the equity of redemption of some mortgages in fee, which were mortgaged to 
 him before he made his will, and 13th Jan. 1704, by a codicil attested by three wit- 
 nesses, he says, "I make this codicil, which I will shall be added to and be part of my 
 last will, which I have formerly made." And Lord Ch. Cowper, assisted hy Sir John 
 Trevor, Master of the Rolls, and Lord C. J. Trevor, and Tracey, J., 16th June, 1708, 
 decreed, that this was not a republication. For since the statute 29 Car. 2, there can 
 be no devise of lands by an implied republication ; for the paper in which a devise of 
 lands is contained, ought to be re-executed in the presence of three witnesses. Cited 
 arg. in the case of Acherley v. Vernon, as the case of Lytton v. Viscountess Falk- 
 land ; vide Comyns's R. 383. A, by will, dated 11th October, 1G81, only executed, 
 
 took notice that his lands were settled upon his son B and C in tail-male, and then de- 
 vised in these words : — " In case my sons shall have no issue male, then, for the pre- 
 servation of my name and family, I devise my said lands to rny brother G and the 
 heirs male of his body issuing." G died in the life of the testator, having issue a son; 
 then Lord Lansdown, by which the devise to G in tail-male lapsed. Aug. 15, 1701, 
 the testator sent for seven persons, and said, "I sent for you to be witnesses to my 
 will, and sometimes to be witnesses tp the reoublication ol my will ;" and then took a
 
 508 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. (Republication.) 
 
 codicil, dated same day, in one hand, and the will in the other, and said, "This is my 
 will whereby I have settled my estate, and I publish this codicil as part thereof;" and 
 then signed the codicil which lay on the table with the will, in the presence of the wit- 
 nesses, who subscribed it in his presence. By this codicil he devised in these words: 
 "Whereas I heretofore made my will, dated 11th Oct. 1684, which I do not intend 
 wholly to revoke ; but in regard to the many accidents and alterations in my family 
 and estate, I by this codicil, which I appoint to be taken as part of my will, devise as 
 follows;" and then devised several manors, &c, to his son B in fee, and 1000/. per 
 annum to his nephew, then Lord Lansdown, for life. He then put the will and codi- 
 cil together in a sheet of paper, and sealed them up in the presence of the same wit- 
 nesses ; but the will was not unfolded in their presence, nor did any of them write 
 their names as witnesses on or under the will, or on the same paper; but on the codi- 
 cil only. And Parker, C. J., and the whole court, held this no republication. For 
 since the stat. 29 Car. 2, there shall be no republication by implication ; but the will 
 must be re-executed, otherwise a devise of lands shall not be good. Comyns's R. 384. 
 Vide 10 Mod. 96. Since the 29 Car. 2, the same forms are necessary to the repub- 
 lishing of a will as to the first making of it. Resolved per Lord Ch. Cowper, Trevor, 
 C. J., and Tracey, J. Vide 10 Mod. R. 98. [In the principal case, however, it is 
 clear that Lord Macclesfield did not adhere to the rule he laid down in Lord Lans- 
 down's case, because the will was there (in the principal case) held to be republished 
 without re-execution, and consequently must have been republished, notwithstanding 
 the Statute of Frauds, by implication. Per Lord Commissioner Eyre, 4 Bro. Ch. 
 R. 9.] {In Pennsylvania, a will may be republished by parol. 2 Binn. 406, Havard 
 v. Davis.} |jSee Piggott v. Waller, 7 Ves. 98, and post, 510. ]| 
 
 [So, one devised his manors to A, B, and C, and all his messuages, 
 
 lands, tenements, and hereditaments in the county of , or elsewhere 
 
 in any part of England, subject to an annuity, to the use of P for life, re- 
 mainder, &c, and, afterwards, entered into an agreement for the purchase 
 of lands ; and then made tw T o codicils, the latter of which was on a sepa- 
 rate paper, and though not dated, was agreed to have been made about 
 four or five days before his death ; and recited therein that, having in his 
 will appointed several limitations and remainders of his estate, some of 
 which were not agreeable to his present intent, he revoked so much as 
 should be found inconsistent with that codicil, ratifying and confirming the 
 other parts which should not interfere therewith. This paper was attested as 
 " signed, sealed, and published, and declared by the testator, as a codicil 
 to his last will and testament." It being contended, that the first codicil 
 would not amount to a republication of the will as to the lands newly pur- 
 chased, the agreement respecting them not being to be carried into execu- 
 tion until subsequent to the date thereof; the question was, Whether the 
 last codicil, which was subsequent to the time stipulated for carrying the 
 agreement into execution, was a republication of the will as to these lands? 
 And it was contended, that it could not be a republication, because it was 
 not by way of endorsement, or annexed to the will, or shown that the will 
 itself was at that time before the testator. But Sir John Strange, Master 
 
 /» r* • • 
 
 of the Rolls, was of opinion, that notwithstanding these objections, the lat- 
 ter codicil amounted to a republication ; because it was an express decla- 
 ration, that the rest of his intent, not inconsistent therewith, should con- 
 tinue and be confirmed : and his honour said, that it might be mischievous 
 to hold that no republication could be but by the testator's taking the will 
 in his hands and republishing it by an endorsement on it, or annexing the 
 codicil to the will itself; the person intending to republish might be at a 
 distance from the will itself, or might not have it in his power, by its being 
 in custody of another ; and the testator might know the substance, though 
 he could not repeat the particulars. 
 Potter and Potter, 1 Ves. 437.
 
 OF WILLS AND TESTAMENTS. 509 
 
 (D) Of Wills in Writing. {Republication.) 
 
 And it was admitted by the counsel, in the case of Gibson and Mont- 
 fort, that if there was, in a codicil, a general clause of confirmation of a 
 will ; as, if the testator therein say, "I confirm my will," this would make 
 that codicil amount to a republication ; because it would be the same as if 
 the testator had republished every devise in the will over again. And of 
 that opinion was Lord Hardwicke. 
 
 Gibson v. Montford, 1 Ves. 489, 493; and Potter v. Potter, supra. {So if the codi- 
 cil, after reciting the will, contains this expression, " which I fully approve of." 9 Ves. 
 J. 374.} 
 
 This point was also so decided in the case of Doe on the demise of Pate 
 against Davy. There D by will, in 1767, after giving several legacies, 
 made the following residuary devise : "And, as to all the rest and residue of 
 my estate, of what nature, kind, and quality soever, I give, devise and be- 
 queath the same unto VV P, &c, according to the nature of the respective 
 estates." The testator then purchased some customary estates, and after- 
 wards surrendered them to such uses, intents, and purposes as he should 
 by his last will and testament in writing thereof direct, limit, and appoint. 
 He then made a codicil, by which, reciting that he had, by his will, devised 
 all his fee-farm rents in manner therein mentioned, he devised the same to 
 C D, &c, and then proceeded as follows : " I do hereby ratify and confirm 
 all and every the gifts, devises, and bequests, contained in my said will, 
 except what I have hereby altered. And I do desire, that this present 
 writing may be annexed to, accepted, and taken as a codicil to my will, to 
 all intents and purposes." And the question was, Whether the execution 
 of the codicil, subsequent to the purchase and surrender of the copyhold 
 estates, amounted to such a republication of the will as to pass them ? In 
 favour of the heir at law, an attempt was made to distinguish this case 
 from that of a devise of freehold, upon the ground that at the date of the 
 will the testator had no copyhold estate, clearly then he had no intention 
 to pass any estate of copyhold to the devisee. Then he afterwards pur- 
 chased the lands in question, and surrendered them to such uses as he should 
 declare by his last will, not to the uses declared or to be declared by his 
 last will. He then made a codicil, by which he ratified and confirmed 
 every gift in his will, except what he had particularly altered by it. This, 
 then, it was said, was a ratification only of what he had before expressly 
 given by his will. But the will contained no gift or devise of any copy- 
 hold lands, nor did the codicil refer to any ; on the contrary, it was clear 
 that the only object the testator had in adding the codicil was, to make the 
 particular alteration there mentioned ; consequently the copyhold lands 
 were undisposed of, and the heir at law was entitled to them by descent. 
 Sed per curiam, — The case of Acherley and Vernon is in point, that the 
 codicil reciting that the testator had made his will, and ratifying and con- 
 firming it, in the alterations aforementioned, was a republication of the 
 will, and both together made but one will, whereby the lands purchased 
 after the will passed. 
 
 Doe on dem. Pate v. Davy, Cowp. 158. 
 
 And Lord Hardwicke, in the above-mentioned case of Gibson and Mont- 
 fort, thought that if the proposition there admitted was law, then any other 
 words that amounted to a confirmation of a will would do as w r ell as words 
 expressly confirming it. And, therefore, that the codicil in the principal 
 case reciting, that "whereas the testator had, by his last will of such a 
 date, given and devised to his executors a sum of money in trust for A, 
 
 2v2
 
 510 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. (Republication.) 
 
 and another in trust for B, he revoked those legacies, and desired that 
 writing should be a further part of his said last will and testament," 
 amounted to a republication to give the will operation upon lands svbse- 
 quently purchased, under a sweeping clause, "as to all the rest, residue, 
 and remainder of the testator's real and personal estate of what nature and 
 kind soever ;" for, his lordship said, though there were not the words, I 
 confirm my will, yet there were the words I desire, &c, between which and 
 an actual confirmation there seemed very little distinction. But the case 
 going off upon another ground, no judgment was given thereupon. 
 
 Gibson v. Montfort, 1 Ves. 489, 493, el supra. 
 
 A B by will devised his real estates to certain uses. Afterwards, by 
 deed, he conveyed them to the same uses, until he married, and then to 
 new uses. After the execution of the deed, but before marriage, the tes- 
 tator, by a codicil, attested by three witnesses, and entitled, A codicil which 
 I direct and desire to be annexed, and taken and considered as part of my last 
 will, makes a farther disposition of a part of his personalty, and imposes a 
 forfeiture on any person who should disturb his wife ; after the codicil he 
 marries. Lord Northington was very clearly of opinion, that the codicil 
 was a republication of the will, being declared to be part of it, and annexed 
 to it. 
 
 Jackson v. Hurlock, Ambl. 407. (jSee Meggison v. Moore, 2 Ves. 630.|| 
 
 W B, being seised and possessed of real and personal estate, made his 
 will duly attested to pass real estates, and thereby gave and devised all his 
 messuages, &c, and all other his real estate situate at F or elsewhere, to 
 the plaintiffs in trust to sell, and dispose of the money arising from the sale 
 in the manner thereby directed : after making the will, the testator made a 
 codicil thereto, bearing date the 5th November, 1785, not duly attested to 
 pass real estates, by which he made some provisions in consequence of the 
 marriage of one of his daughters. After the making and publication of his 
 will and such first codicil, he bought the equity of redemption of an estate 
 then in mortgage for a term of 500 years ; and the fee, subject to the term, 
 was afterwards conveyed to him. After this transaction, he made another 
 codicil to his will, dated 27th October, 1788, whereby he made some altera- 
 tions in the state of his affairs, and disposed of a leasehold estate ; but the 
 codicil did not mention the lands purchased since the date of the will, and 
 concluded thus: " In witness whereof I the said testator W B have to this 
 my writing contained in this and part of the preceding sheet of paper, which 
 I declare to be a codicil to my said last will and testament, and which is 
 to be accepted and taken as part thereof, set my hand," &c. The execu- 
 tion of this last codicil was attested by three witnesses. The first was be- 
 gun, and partly written on the last sheet of the testator's will, and was a 
 continuation from the foot of the said will, and the second codicil was be- 
 gun, and partly written on the last sheet of the first codicil, and was a con- 
 tinuation from the foot of the said first codicil, and the will and codicils 
 were annexed to each other by or at the request of the testator. It was 
 determined that the last codicil in this case amounted to a republication of 
 the will, and acted upon the after-purchased estate. Lord Commissioner 
 Wilson observed, that the testator saying, " I desire the codicil shall be 
 part of my will," was equivalent to saying, " they shall be one instrument." 
 
 Barnes v. Crow, 4 Bro. Ch. R. 2 ; ||7 Ves. 486, S. C.|| 
 
 || Robert Piggott, by his will of 4th December, 1824, devised all his real
 
 OF WILLb AND TESTAMENTS. 511 
 
 (D) Of Wills in Writing. (Republication.) 
 
 estates in Salop not settled on his eldest son, and all his manors and real 
 estate in the counties of Warwick, Northampton, Huntingdon, and Cam- 
 bridge, to trustees and their heirs, upon trust, in case his personal estate 
 should be deficient to raise a sum adequate to pay his debts, and the ce- 
 mainder to be for his eldest son Robert Piggott for life, and after his 
 decease in trust for the first and every other son of Robert Piggott succes- 
 sively in tail-male, remainder to testator's right heirs for ever ; and he gave 
 to his two daughters 5000/. apiece, and by a codicil duly executed to pass 
 real estate, he recited the will and made alterations in the legacies given 
 by it. On the 22d February, 1736, the testator purchased and had con- 
 veyed to him the remaining third of the manor of Chesterton in Hunting- 
 donshire (he having before only two-thirds of it ;) and by a codicil of 2Gth 
 June, 1742, " Made and published by me Robert Piggott, &c, and to be 
 annexed to my will and made part thereof to all intents and purposes," 
 the testator revoked the legacies given by his will and former codicil to his 
 daughter Frances, and directed only 100/. to be paid to her in lieu thereof. 
 The question arising, whether the second codicil had the effect of republish- 
 ing the will so as to pass the estate purchased in 1736, Sir William Grant, 
 M. R., after a review of the cases, determined, on the authority of Barnes 
 v. Crow, that the will was republished by the codicil. 
 
 Piggott v. Waller, 7 Ves. 93. 
 
 So also, where a testator made three codicils of different dates, endorsed 
 on the back of his will, and the two first referred to lands purchased since 
 the will, and disposed of them according to the directions of the will re- 
 specting the testator's general estate, but they were attested by only two 
 witnesses, and the third codicil simply appointed a new executor in room 
 of one named in the second codicil, and was attested by three witnesses : 
 it was held, that the third codicil was a republication of the will and of the 
 second codicil, and that the lands acquired subsequently to the will passed 
 according to the disposition of the will as to the testator's lands in general. 
 
 Guest v. Willasey, 2 Bing. 429. The court afterwards, on the case being remitted 
 to them, held, that the third codicil was a republication of the first. 3 Bing. 614. 
 
 A codicil, therefore, properly executed, makes the will speak (as it is 
 expressed) at the date of the codicil, unless a contrary intention appear. 
 
 Goodtitle v. Meredith, 2 Maule & S. 5 ; and see Duffieki v. Elwes, 3 Barn. & C. 
 731 ; Rowley v. Eyton, 2 Meriv. 128. /6 Brownell v. D' Wolf, 3 Mason, 486.g/ 
 
 But if the will had reference to a power existing at its date, but extin- 
 guished previous to the codicil, the codicil cannot have the effect of re- 
 publishing the will, although another power is substituted for that which 
 was extinguished. Thus, where a man by his marriage settlement, having 
 a power to charge a sum of 2000/. on certain premises, made his will ac- 
 cordingly, disposing of this sum, and afterwards, by a subsequent settle- 
 ment, extinguished his former power, ami-created to himself a new power 
 of charging the same sum on other property, and afterwards made a 
 codicil with three witnesses, making no mention of the power ; Sir W. 
 Grant, M. R., held clearly, that the power itself being gone before the 
 death of the testator, the will had nothing to operate upon, and could not 
 be applied to the new power. It is true, he observed, a codicil has the 
 effect of republishing a will, and makes it speak at the time of the repub- 
 lication. But here the will speaks only of the power given b\ the mar-
 
 512 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. (Republication.) 
 
 riage settlement, which was as much gone as if it had never existed. It 
 was a new power for a new consideration, affecting different estates. 
 Holmes v. Coghill, 7 Ves. 499 ; and see Lane v. Wilkins, 10 East, 242. 
 
 The effect of a codicil upon a will, in making it speak as to all property 
 possessed at the date of the codicil, may be restrained by the manner in 
 which the codicil is expressed. Thus, where the codicil, reciting the de- 
 vise by the will, revoked the same as to two of the trustees, and then de- 
 vised the said lands, &c, lands purchased between the will and codicil 
 were adjudged not to pass. 
 
 Bowes v. Bowes, 2 Bos. & Pul. 500 ; Parker v. Biscoe, 8 Taunt. 699 ; Smith 
 v. Dearmer, 3 Younge & J. 285. 
 
 Where a will, containing a general devise of the testator's estate, is re- 
 published, an estate contracted for after such devise will, in equity, pass 
 in virtue of such republication. 
 
 Broome v. Monck, 10 Ves. G05 ; Hulme v. Heygate, 1 Meriv. 285. || 
 
 J H being seised in fee of certain freehold lands called A, part thereof 
 situate in the county of E and other part thereof in the county of C, and 
 being likewise seised of certain other lands called B, partly freehold and 
 partly copyhold, in the county of E, duly made and published his last will, 
 bearing date 13th of March, 1732, and thereby devised all his messuages, 
 lands, tenements, and hereditaments, as well freehold as copyhold, situate, 
 lying, and being in the counties of S, E, and C, or either of them, to his 
 wife for life, and after her decease to various uses : and devised all the rest 
 and residue of his real and personal estate to his wife, her heirs, executors, 
 and administrators, and appointed her his sole executrix. The testator, 
 at the time of making his will, was mortgagee ont of possession of three 
 fifth parts of certain copyhold premises holden of the manor of D, in the 
 county of E, which he afterwards purchased and was admitted to on 20th 
 October, 1735, and in the same year purchased one other fifth part of the 
 same premises, all of which he surrendered thus: "To the uses, intents, 
 and purposes, declared or to be declared in and by his last will and testa- 
 ment." — In the year 1736 he directed a 50/. legacy to be struck out of his 
 will, and subscribed the following memorandum in the presence of two 
 witnesses: " September 31st, 1736. The 50/. legacy to the poor of the 
 parish of W, scratched out as above, was done in his presence, and by his 
 immediate order, he having paid it himself." The testator died the fol- 
 lowing year, without revoking or altering his will, or making any codicil 
 thereto, except the codicil or testamentary declaration above mentioned. 
 On a question sent out of Chancery, Whether the copyhold lands to which 
 the testator was admitted the 20th October, 1735, and which he surren- 
 dered to the use of his will, were subject to any of the uses mentioned in 
 his will of the 13th March, 1732 ? The Court of King's Bench certi- 
 fied, that the surrender did, by express reference to the uses declared by 
 the will, adopt and apply the words of the will to these copyhold lands, as 
 if the testator had been seised thereof at the time of making his will ; and 
 therefore they were subject to the uses to which all the testator's copyhold 
 lands in the county of E were devised by his will. Lord Mansfield's words, 
 in delivering the opinion of the court, deserve attention : " The stating 
 the nature of a republication will go a great way in the construction of this 
 surrender. When a man republishes his will, the effect is, that the terms and 
 words of the will should be construed to speak with regard to the property
 
 OF WILLS AND TESTAMENTS. 513 
 
 (D) Of Wills in Writing. (Republication.) 
 
 he is seised of at the date of the republication, just the same as if he had 
 had such additional property at the time of making his will. Therefore if 
 one devises lands by the name of B, C, and D, and purchases new lands, 
 and republishes his will, the republication does not concern such new lands, 
 because the will speaks only of the particular lands B, C, and D. But if 
 the testator in his will says, I give all my real estate, a republication will 
 affect all such newly-purchased lands, because it is then the same as if the 
 testator had made a new will. Apply this rule to the case of a surrender, 
 and I am of opinion that the surrenderor may express himself so as to 
 make it relate to a will actually made ; and that the copyhold lands so sur- 
 rendered will pass by it. Suppose a testator, seised of copyhold lands, 
 makes his will without a surrender, if he afterwards surrender them to the 
 use of his will, such surrender will clearly make his will good, and is ef- 
 fectual to pass them ; because it only obviates the mode and form of con- 
 veyance. What has the testator done here ? having made his will and 
 declared his lands to uses, he surrenders his newly-purchased copyhold 
 lands to the uses, intents and purposes, declared or to be declared in his 
 will : it is precisely the same thing as if he had said, — ' And whereas 
 I have made a will so and so, and devised all my estate to J S to such 
 and such uses, I mean these newly-purchased lands should pass to the 
 same uses.' I cannot possibly make a doubt as to the construction: 
 and there was no occasion to strike out the legacy of 50?., unless he in- 
 tended that particular part of his will should be cancelled, and the rest 
 stand." 
 
 Heylin v. Heylin, Cowp. 130.] ||See 1 Term R. 455, n. (/) ; 8 Ves. 286; 11 East, 
 246.|| 
 
 It was determined upon the opinion of all the judges, that if a will be 
 made, and afterwards another will without cancelling the former ; and then, 
 by an act subsequent to both, the first will be confirmed, the limitations 
 in that will so confirmed will take place ; and also, that if there are two 
 inconsistent wills of the same date, neither of which can be proved to be 
 last executed, they are both void by the common law for uncertainty, and 
 will let in the heir at law ; and also, that although the wills are dated the 
 same day, the limitations may take place if they are consistent in both, 
 to the disinherison of the heir at law : and upon this opinion, the order 
 appealed from, which was a dismission of the plaintiff's bill in the Court 
 of Exchequer in Ireland, was confirmed in favour of Lord Anglesey, by 
 the House of Lords. See the printed copy. 
 
 MS. Hep. Phipps v. Anglesey, in Lorn. Proc. June, 1751 ; [5 Bro. P. C. 45, S. CV] 
 
 {A testator made a will dated 25th November, 1752, and on the 31st 
 March, 1756, he made another will different from the former. By a 
 codicil in 1776, reciting that he had devised his real estate by his last 
 will dated 25th November, 1752, he charged his real estates with his 
 debts and the legacies given by the codicil, and appointed executors. 
 This was held to be a republication of the will of 1752, and a revocation 
 of that of 1756 ; establishing the principle that a codicil referring to a 
 former will as the last will cancels intermediate wills. 
 
 3 Ves. J. 402, Lord Walpole v. Lord Orrery ; 4 Ves. J. 615, 616.— The court re- 
 jected evidence offered to prove a mistake of ,the testator, and that ho did not mean 
 to refer to the will to which the codicil did expressly refer. 
 
 But if a will be made on 27th May, 1790, to which five codicils are 
 afterwards added, by the fourth of which the testator revokes the bequest 
 Vot.. X.— 05
 
 514 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. ( Goods and Chattels.) 
 
 of certain annuities in the will, and by the fifth, after reciting that he 
 had made his will, dated 27th May, 1790, he changes his executor, and 
 adds, "and I do hereby confirm my said will in all other respects," this 
 does not set up the bequests in the will which were revoked by the fourth 
 codicil. There is a great distinction between wills and codicils in this 
 respect. If a man ratifies and confirms his last will, he ratifies and con- 
 firms it with every codicil that has been added to it. All the codicils 
 are parts of the will. 
 
 4 Ves. J. 610, Crosbie v. Macdoual.} 
 
 || Where a testator makes two wills, the latter of which is inconsistent 
 with the former, if he afterwards destroy the second will, leaving the 
 first in a perfect state, the original will has been held to be set up again ; 
 which doctrine seems to stand upon this principle, — that the first will, 
 being ambulatory during the testator's life, is in existence without any 
 alteration at the time when its operation is to begin ; and that which 
 was to be destructive of its operation is out of the way at the moment 
 when it was to have its destructive effect. 
 
 Glazier v. Glazier, 4 Burr. 2512. 
 
 But if a legacy given by will be adeemed, a codicil, ratifying and con- 
 firming the will, has not the effect of setting up the adeemed legacy. 
 Monck v. Monck, 1 Ball & B. 298 ; and see Rob. on Wills, 2, 168.|| 
 
 j3 A testator sitting in his bed and holding a paper in his hand, in the 
 presence of the witnesses, said : " This is my will ; it was signed and wit- 
 nessed in 1824, and I have called you to witness it is my last will and 
 testament;" and then requested that a certificate of this republication 
 and acknowledgment should be written on the will, which was done 
 accordingly, and it was signed by the attesting witnesses, though not by 
 the testator himself. Held, that this was a good republication. 
 
 Reynold's Lessee v. Shirly, 7 Ohio, 39. £j 
 
 II. What shall be deemed a good Will in Writing of Goods and Chattels, 
 
 If it be a will of goods and chattels, and be complete, there must be 
 an executor named in it, and that executor that is named must be capable 
 of the executorship ; for this is the principal thing in it. And be there 
 never so many legacies given, and no executor made, this will is but a 
 codicil, and cannot be properly called a testament ; for here the party 
 dies intestate, and an administration of the goods must be granted ; but 
 where there is an executor, although there be no legacy given, yet it is 
 properly said to be a testament. 
 
 Shop. Abr. 14, voc. Testament. 
 
 \ A testator executed his will in due form of law. One of the legatees 
 ha ving afterwards died in the lifetime of the testator, he gave verbal instruc- 
 tions for a new will, which were committed to writing by his friend, in 
 Miller to take the advice of counsel as to the legality of the limitations 
 therein contained. The testator afterwards drew up a memorandum (nearly 
 agreeing with those instructions) all written with his own hand, but in 
 which his name no where appeared, and gave it to the same friend, together 
 with the original will, for the purpose of drawing a new will from the two. 
 The draft of a new will was accordingly prepared, comprising the subject 
 matter of the original will and the memorandum, and being presented to
 
 OF WILLS AND TESTAMENTS. 515 
 
 (D) Of Wills in Writing. {Goods and Chattels.) 
 
 the testator, was approved by him ; but the signing of it was postponed, 
 until he could also execute a release of a mortgage whicli he held on part 
 of the estate of his deceased brother. The release was prepared, and 
 approved by the testator, but, being interlined, was returned to the per- 
 son who wrote it, to be transcribed. Before a fair copy was made and 
 delivered to the testator, he was in a state of delirium, and so continued 
 till lie died, without having executed the release or the draft of the new 
 will. That draft was afterwards lost, but was proved to agree in sub- 
 stance, if not in words, with the original will and the memorandum. The 
 original will was established, and the memorandum was also established 
 as a good codicil to it to pass personal estate, although it remained in 
 the hands of the writer of the draft from the time when it was first de- 
 livered to him until after the death of the testator. 
 2MIen. & Mun. 467, Cogbill v. Cogbill. 
 
 C L, in March, 1760, wrote a letter to her attorney containing instruc- 
 tions for drawing her will. After the signature were these words : " This 
 you have under my hand if any thing should happen before the writing 
 is drawn up ;" and in a postscript the following passage : " This only by 
 way of memorandum in case I should go off suddenly." She died on the 
 2d of August in the same year. The prerogative court pronounced 
 against this paper, as being a conditional paper ; the operation of it de- 
 pending on the testatrix dying suddenly ; whereas she had time to make 
 a formal will ; and parol evidence was admitted. But the delegates re- 
 versed the sentence ; and pronounced for the paper as the last will and testa- 
 ment of the deceased ; thinking it a perfect paper and an absolute disposition. 
 4 Ves. J. 200, n., Habberfield v. Browning, in 1773. 
 
 W M, on 2d October, 1785, drew up in his own handwriting a paper 
 beginning: "A plan of a will proposed to be drawn as the last testament 
 of W M," and endorsed: "A plan designed for the last will and testa- 
 ment of W M." The bequests in the paper were in terms of present gift, 
 and it was dated and subscribed by him. Below the signature, and of 
 the date of 6th October, was a codicil, likewise signed by him as follows : 
 ' ; I must not forget my good friends M and C H, who desire will accept 
 five guineas each for a ring." In December, 1789, he drew up another 
 paper, as : "A plan I propose to draw will from, abrogating all the others 
 I have already drawn out:" this contained a few bequests inconsistent 
 with the former paper, but broke off in the midst of a sentence, and was 
 left unfinished. The former paper was found loose in a desk in his office, 
 where he kept only his official papers, and not any important private pa- 
 pers ; and the latter in a bureau in the parlour of his dwelling-house in a 
 bundle of letters and papers. Parol evidence I 1 } was also given of fre- 
 quent declarations of W M, showing his intention that the former paper 
 \v.i.s not, and should not bo his will. The judge of the prerogative court 
 pronounced against the validity of the paper of December, 1789, and for 
 the validity of the paper of 2d October, 1785, and of the codicil dated the 
 6th of the same month ; and upon an appeal to the delegates from that 
 part of the sentence which established the will and codicil of October, the 
 sentence was affirmed. But a commission of review was granted, and the 
 commissioners of review reversed the two former sentences, pronounced 
 against the validity of the pretended will and codicil of October, 1785, 
 and declared that W M was dead intestate. Lord Loughborough, in
 
 516 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. ( Goods and Chattels.) 
 
 giving his reasons for recommending the granting of a commission of a 
 
 review, considered the paper, not as a will, but only a project of a will ; 
 
 not a complete definite rule and law for settling his fortune. 
 
 4 Ves. J. 186, Matthews v. Warner; 5 Ves. J. 23, S. C; 2 Hen. & Mun. 515, S. 
 C. cited. J 1 } It was admitted only dc bene esse, subject to the opinion of the judges 
 whether the paper was on the face of it a will or not ; they agreed that if there icas 
 a doubt whether a will or not, parol evidence should be admitted. 4 Ves. J. 190, 208. 
 
 A will disposing both of real and personal property was signed and 
 sealed by the testator, and contained a clause of attestation, which was 
 not subscribed by any witnesses. The paper was considered imperfect by 
 Dr. Calvert on account of the clause of attestation not being witnessed ; 
 and he admitted parol evidence; on which he set aside the paper. But 
 the delegates were of opinion, that, it being a will both of real and per- 
 sonal property, it was, reddendo singula singulis, a perfect disposition 
 of personal estate, and therefore a good will : and they rejected parol 
 evidence against it. 
 
 4 Ves. J. 200, n., Cobbold v. Baas. 
 
 If a man leaves twenty several papers behind him executed at different 
 times, in respect to personal estate, they shall all be taken as one will, 
 and admitted to probate ; and the court will endeavour to reconcile them 
 together so that they may all answer as near as. possible the intention of 
 the testator. 
 
 2 Atk. 87, Stone v. Evans. See 3 Ves. J. 1G0, Coxe v. Basset ; 5 Ves. J. 280, 
 JBeauchamp v. Earl of Hardwicke. 
 
 But this must be understood only where there are Several papers par- 
 tially disposing of the testator's property, and neither of which purports 
 to be in itself a complete will. If there are two separate papers, both 
 •called wills, inconsistent with each other, it is not the rule to prove both 
 in the ecclesiastical courts. The last is the will. From the nature of 
 the instrument it revokes the other. If the last purports to be the whole 
 "will, a complete, substantive will, they do not prove both. Unless there 
 is something to show it was meant to be coupled with another instru- 
 ment, it is not taken to be a codicil. 
 
 3 Mod. 208, Kitchen v. Basset; 4 Ves. J. 616, Crosby v. Macdoual.} 
 
 || Unless a will of personalty is made and proved according to the forms 
 required by the nineteenth, twentieth, and twenty-first sections of the 
 statute of frauds, 29 Car. 2, c. 3, above set out as to nuncupative testa- 
 ments, or unless it is the case of a soldier on actual military service, 
 within the twenty-third section, such will of personalty must, under the 
 operation of the statute, be in writing. 
 
 Bob. on Wills, 1, 183. 
 
 But it may be effectual without the name or seal of the testator, pro- 
 vided the handwriting can be proved: and it is good in the handwriting 
 of another person, if signed by the testator, or without his signature, if 
 it can be shown to have been made according to his instructions, and to 
 have received his approbation. 
 
 Godolph. O. L. part 1, c. 21: Comyn's B. 452 ; Gilb. B. 260 ; 2 Phill. B. 351 ; 1 
 Phill. B. 365 ; |3 Watts and Leroy, appellants, and the Public Administrator, respon- 
 dent, 4 Wend. 168.0 
 
 As to \\\e form of the instrument, the ecclesiastical courts are not scru- 
 pulous. A memorandum, or scrap of paper, though unsigned and undated,
 
 OF WILLS AND TESTAMENTS. 517 
 
 (D) Of Wills in "Writing. ■ {Proof of Wills.) 
 
 written by a person in contemplation of death, and with a design to make 
 it operative after that event, may be proved as testamentary. 
 
 See the cases stated in Linbury v. Hyde, Com. R. 452 ; Cox v. Basset, 3 Yes. jnn. 
 158 ; Matthews v. Warner, 4 Ves. 200; Harris v. Bedford, 2 Phill. R. 177; Chaworth 
 v. Beach, 4 Ves. 565; Thomas v. Wall, 3 Phill. R. 23; Friswell v. Moore, 3 Phill. 
 R. 135. 
 
 But if the paper is left unfinished by the testator when he had an op- 
 portunity of finishing it, or if it carry on the face of it evidence of an in- 
 tention to perfect it by some further solemnity, it will not be received as 
 a testamentary disposition. 
 
 Griffin v. Griffin, cited 4 Ves. 197 ; and see 9 Ves. 249 ; 1 Dow. R. 437 ; 1 Meriv. 
 503. j3 See Harrison v. Rowan, 3 Wash. C. C. R. 580.£f 
 
 But the mere intention to have the paper copied is not such a further 
 solemnity, if the testator is prevented by death from executing a fair copy. 
 
 Huntington v. Huntington, 2 Phill. R. 213 ; and sec 3 Ibid. 109 ; j3 Dunlop v. Dun- 
 lop, 10 Watts, 153.9' 
 
 The mind and intention apparent in the paper are every thing, and 
 the form is comparatively nothing. 
 
 See Nichols v. Xicholls, 2 Phill. R. 180. 
 
 Even if a testator, by a paper subsequent to his will, say that he has 
 bequeathed property by the will, which is not bequeathed by it, the paper 
 may be proved as a testamentary paper, and the property may pass by 
 it. And if the instrument is in form of a deed of gift, if its purpose is 
 testamentary and not to operate till death, the Ecclesiastical Court will 
 grant probate of it. 
 
 " Druce v. Denison, 6 Ves. 397 ; Thorold v. Thorold, 1 Phill. R. 1 ; and see 2 Ves. 
 & B. 378 ; 1 Phill. 216 ; 2 Phill. 575. 
 
 No particular materials are requisite for the writing of the paper ; it 
 may be in pencil or in ink ; but when the question is, whether it is a final 
 testamentary disposition, or a mere memorandum, preparatory to some 
 formal disposition, the circumstance of its being in pencil or ink is ma- 
 terial : and the will may be in the shape of answers to questions, provided 
 it appear to be spontaneous. 
 
 1 Phill. 1 ; 2 Phill. R. 173 ; 1 Phill. R. 33. 
 
 It has been regretted by Lord Eldon, in a case where the testator left 
 four inconsistent testamentary papers, and probate was granted of all of 
 them, that the provisions of the statute of frauds do not apply to wills 
 of personalty. 
 
 5 Ves. 280.|| 
 
 See titles "Executors and Administrators" and "Legacies," and 
 Burn's Ecclesiastical Law, tit. Wills, (8th edit.) 
 
 III. What shall be sufficient Proof of a Will. 
 
 A written will, when it is written with the testator's own hand, proves 
 itself, and therefore needs not the help of witnesses to prove it ;(a) and for 
 this cause, if a man's will be found written fair and perfect, with his own 
 hand, after his death, although it be not subscribed with his name, sealed 
 with his seal, or have any witnesses to it, if it be known or can be proved to 
 be his hand, it is held to be a good testament, and a sufficient proof of 
 itself; but if it be sealed with his seal, and subscribed with the name of the 
 testator, and can be proved by witnesses, it is the more authentic ; and 
 
 2X
 
 518 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. {Proof of Wills.) 
 
 "when it is found amongst the choicest evidence of the testator, or fast 
 locked up in a safe place, it is the more esteemed ; for if it be written in 
 another hand, and the testator's hand and seal, or one of them, not to it, 
 although it be found in such a place as before, yet some proof will be ex- 
 pected of it further by witnesses in that case ; and if writing be found 
 under the testator's own hand, yet if it be but a scribbling writing, writ- 
 ten copy wise, with a great distance between every line, without any date, 
 in strange characters, with many interlineations, and lying amongst his 
 void papers, or the like ; this will not be esteemed a sufficient will, nor a 
 good proof of it, but it shall be accounted rather a draft or image of the 
 testator's will, for a direction to him after to make his will by ; and yet 
 if it can be proved that the testator did declare himself that this should 
 be his will, this will be a good will, and a good proof of it. 
 
 Swinb. part 4, £28, and part 7, \ 13. j8 (a) When the will is written wholly by the 
 testator himself, it is said by the civilians to be an holograph will or testament. See 
 Civil Code of Louisiana, art. 1581 ; 5 Toull. n. 357 ; 1 Stuart's (L. C.J Rep. 327.£f 
 N. B. The law in these particulars, with respect to wills of lands, d'e, is altered by 
 29 Car. 2, c. 3, before taken notice of, which makes it necessary for the will to be sub- 
 scribed by the testator, or some one in his presence, and to be subscribed in his pre- 
 sence by three witnesses. /3 See Harrison v. Burgess, 1 Hawks, 384.$ 
 
 If it be proved, that the testator said his testament was in such a schedule, 
 in the hands of J S, and J S produce a writing, deposing it to be the same, 
 this is a sufficient proof: but if he says withal, it is written with his own 
 hand, then it seems some other proof, as by comparing hands, or the 
 like, that it is his hand wherein it is written, will be expected. 
 
 Swinb. part 4, §28. 
 
 If the witnesses will prove the writing produced to be the last will of 
 the testator, or that he said it was, or it should be his last will, or that 
 it was the same writing that was showed to them, and whereunto they 
 are Avitnesses, although they never heard it read, or set their hands to it, 
 it is a sufficient proof. 
 
 Swinb. part 4, £ 28. 
 
 Where there is no question or opposition moved or had about or against 
 a will, there the oath of the executor alone is esteemed a sufficient proof 
 of it, and in that case regularly no other proof is required; and where more 
 proof is necessary, it is in the discretion of the ordinary what proof to ad- 
 mit or allow ; and those witnesses, for number, nature, and quality, or such 
 other proof that he deems and accepts for sufficient, is sufficient ; and the 
 will so proved by such witnesses, or such other proof, is sufficiently proved. 
 
 { Two witnesses, at least, are essential, in Pennsylvania, to the proof of every testa- 
 mentary writing. And that seems to be also the law of England. 1 Dall. 278, Lewis 
 v. Maris. } 
 
 [The doctrine above stated applies only to a will of personal estate ; 
 for if a bill be brought to establish a will of real estate against an heir, 
 all the witnesses, if living, must be examined as to the sanity of the tes- 
 tator. And this rule is so strictly insisted upon by courts of equity,(a) 
 that they will not dispense with it, though the heir at law, by his answer, 
 state, that he believes the will to have been duly made, &c. 
 
 Ogle v. Cook, 1 Vcs. 177; Grayson v. Atkinson, 2 Ves. 454; Townshend v. Ives, 1 
 Wils. 210; || Harris v. Ingledew, 3 P. Wins. 92; and sec Powell v. Cleaver, 2 Bro. 
 C. C, 504. And Lord Eldon, C, held, that on an issue devisavit vel non directed by the 
 Court of Chancery, all the witnesses to the will must be examined. Bootle v. Blun- 
 dcll, Coop. C. C. 136; 19 Ves. 494, S. C. ; and see Wood v. Stanc, 8 Price, 013. But 
 in a late case, where on such an issue only one witness was examined, Sir J. Leach,
 
 OF WILLS AND TESTAMENTS. 519 
 
 (D) Of Wills in Writing. (Proof of Wills.) 
 
 M. R., refused the heir-at-law a new trial on that ground. Wright v. Tathnm, 1830.|| 
 (a) Potter v. Potter, 1 Ves. 274. The discovery of the insanity of the testator has oc- 
 casioned the setting aside of a will, even after twenty years' possession under it, and 
 that too against a purchaser. Squire v. Pershall, 8 Vin. Abr. 109, pi. 13.] 
 
 |j Where the evidence proves the execution of the will, but the witnesses 
 have not been examined as to the sanity of the testator, the cause will be 
 adjourned at the hearing, and liberty given to exhibit an interrogatory 
 to prove his sanity. 
 Abrahams v. Winshup, 1 Russell, 52G. 
 
 A will of real estale cannot be proved on a reference before the master. 
 Leohmere v. Brazier, 2 Ja. & W. 289. || 
 
 All persons, male and female, rich and poor, are esteemed competent 
 witnesses to prove a will, save only such as are infamous, as perjured per 
 sons, and the like; and such as want understanding and judgment, as 
 children, infants, and the like ; and such as are presumed to bear affec- 
 tion, as kindred, tenants, servants, and the like. (a) A legatee is reputed 
 a competent witness to prove any other part of the will but his own 
 legacy, or to prove any thing against himself touching his own legacy, 
 but not otherwise ; and therefore, Avhere there are two witnesses of a 
 will, wherein either of them have somewhat bequeathed unto himself, this 
 will cannot be sufficiently proved for those legacies, but for the rest of 
 the will it may be sufficiently proved. But see posted. 
 
 Swinb. part 4, \ 24. \{a) Qu. Whether the official signature of a vice-consul abroad 
 to a certificate on the will, is a sufficient signature as a witness within the statute. 
 11 Ves. 240. || /3See as to the qualification of the witnesses to a will, Hampton v. Gar- 
 land, 2 Hayw. 147 ; Eelbeck's devisees v. Granberry, 2 Hayw. 232 ; Bateman v. Ma- 
 riner, 1 Murph. 176 ; Martin v. Hough, 2 Hawks, 368 ; Daniel v. Proctor, 1 Dev. 
 428.tf 
 
 [It has been a considerable question, who those witnesses were that are 
 described in the act by the word "credible," as will appear from the fol- 
 lowing cases : T I, seised of hereditaments in fee, made his will, and thereby 
 devised the same to W H, and his heirs, and signed, sealed and published 
 the will in the presence of three witnesses, who subscribed the same. One 
 of the witnesses was W II, the devisee. It was objected, that this devise 
 was void, W II not being a credible witness thereto under the statute of 
 frauds. On the part of the devisee it was contended, that the will was 
 good notwithstanding the statute, for the devisee was a man of indisputable 
 credit: that, though he could not be sworn upon a trial, yet it could not be 
 said but that there were three witnesses to the will, and that the will had 
 been well proved by the other two witnesses : that there was a difference 
 between a matter which went to the credit of a Avitness's testimony, and a 
 matter which went in bar of it ; that the former excluded persons from 
 being witnesses, as if a man were attainted of treason, or convicted of 
 perjury or forgery, or any other matter of attaint; but that, where there 
 was only an interest which barred him from being a witness, but did not 
 touch his credit, it was otherwise : that the intent of the act was to prevent 
 perjuries ; but this could not be within the mischief of the statute ; be- 
 cause the devisee, being a witness, could not be sworn and examined upon 
 it ; and therefore the case was out of the statute. 
 
 Hilliard v. Jennings, Com. R. 91 ; S. C, 1 Freein. 510 ; 1 Ld. Raym. 505, Ca. B. 
 R. T. W. 3, 276, Garth. 514. Notd. In the last reporter, this case is misstated in 
 several points; particularly by stating that his credibility at signing depended upon 
 his competency at law, without stating why the latter, viz.: the competency at law,
 
 520 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. [Proof of Wills.) 
 
 was the criterion of the former, viz., the credibility at signing ; namely, that no person 
 who would be incompetent to prove a will on a trial could be credible to attest it upon 
 the execution. And also by narrowing his conclusion to the very case before him, by 
 saying, "the will was void quoad the devise, and as to the devise ;" from whence it is 
 natural to infer, that it might have been good as to any other devise. Whereas, if he 
 had stated the general proposition or principle, the reader could not have been misled. 
 The reason why the emphasis is laid on that devise is, that, in fact, all the rest of the 
 will relates to personalty, respecting which the will was clearly good. 
 
 But it was argued on the other side, and so held by the court, that this 
 will was not executed according to the statute of frauds ; for that a man 
 who could not be a witness, which was the plaintiff's case, could not be a 
 credible witness : that the intent of the act was to prevent frauds as well as 
 perjuries ; which intent would be evaded if the devisee should be admitted 
 to be a witness, for he, being a party interested, might be induced to use 
 fraud ; and it was said, that the statute appointed three witnesses, &c, to 
 the end that the transaction might be in such a solemn and notorious 
 manner, that they might see that the devisor, being infirm as well in under- 
 standing as in body, as all men generally in extremis were, did not suffer 
 any imposition ; but that, if persons who could not give evidence of their 
 subscription should be admitted to be credible witnesses, it was to admit so 
 many dead letters to be witnesses, which entirely evaded the intention of 
 the act ; and upon this point judgment was given against the devisee.] 
 
 A testator by his will devised lands, and gave to the wife of John Hailes 
 an annuity of 201. a year, to her sole and separate use ; and to J. Hailes 
 and his wife each of them a legacy of 10Z., and charged his whole real 
 and personal estate with the payment of all his legacies and annuity : J. 
 Hailes was one of the subscribing witnesses to this will ; the legacies and 
 satisfaction for the annuity were tendered and refused, and the question 
 now was on a special verdict, whether this will was good and well attested 
 within the statute of frauds and perjuries ? The court were of opinion, 
 that the will was not properly attested, as Hailes was interested, and 
 therefore not a credible witness ; and gave judgment for the plaintiff, 
 the testator's heir at law. 
 
 MS. Rep. Anstey v. Dowsing, Mich. 1744, B. R.; [2 Stra. 1253, S. C. This cause 
 was afterwards carried on appeal to the Exchequer-chamber, where there was a differ- 
 ence of opinion among the judges: but the parties compounding, it was never deter- 
 mined. 1 Ves. 503. j 
 
 [On a bill for establishment of a will in the case of an infant, the objec- 
 tion taken was, that it appeared, on examination on the interrogatories, 
 that one of the witnesses to the will was a creditor for a bill of fees and 
 disbursements, and had not released. It was insisted, that, on an account 
 taken, he would be found not to be a creditor. The Lord Chancellor sent 
 it to the master, to inquire whether he was so ; then it was objected, that 
 the condition of the witness, as was determined in the case of Anstey and 
 Dowsing, must be taken to be at the time of attestation ; and that if in- 
 terested then, he could not be a good witness. It was answered, that if 
 that doctrine prevailed, it would overturn many wills, for servants were 
 often made witnesses, who generally had legacies given them. But, on the 
 master's special report, it appeared, that the witness to the will, at the 
 time of the second examination, was not a creditor of the testator; and 
 it not appearing, at the time of attestation, that he was, Lord Hardwicke 
 said, he would not enter into a minute inquiry whether he was or not. 
 Price v. Loyd, 1 Ves. 503; Ibid. 374.]
 
 OF WILLS AND TESTAMENTS. 521 
 
 (D) Of Wills in Writing. {Proof of Wills.) 
 
 In order to remove the doubts which had arisen who were to be deemed 
 legal witnesses within the statute of 29 Car. 2, c. 3, § 5, it is enacted by 
 25 Geo. 2, c. 6, "That any person shall attest the execution of any will or 
 codicil, which shall be made after the 24th June, 1752, to whom any bene- 
 ficial devise, legacy, estate, interest, gift, or appointment of or affecting 
 any real or personal estate,(a) other than and except charges on lands, 
 tenements, or hereditaments, for payment of any debt or debts, shall be 
 thereby given or made, such devise, &c, or appointment, shall so far only 
 as concerns such persons attesting the execution of such will or codicil, or 
 ^ any person claiming under him, be utterly null and void : and such person 
 shall be admitted as a witness to the execution of such will or codicil, 
 within the intent of the act of 29 Car. 2, notwithstanding such devise, &c. 
 
 ||(a) Sir W. Grant, M. R., held that a legacy to a subscribing witness to a will of 
 personalty was void, since the statute extended to all wills and codicils. Lees v. 
 Summersgill, 17 Yes. 509. But it has since been decided, that the statute does not 
 extend to wills of personal estate. Brett v. Brett, 3 Addam's R. 210 ; Emanuel v. 
 Constable, 3 Russell, 43G.|| 
 
 "And it is also enacted, that in case, by any will or codicil made or to 
 be made, any lands, tenements, or hereditaments are or shall be charged 
 with debt; and any creditor, whose debt is so charged, hath attested, or 
 shall attest, the execution of such will or codicil, such creditor shall be 
 admitted as a witness to the execution of such will or codicil, within the 
 intent of the said act. That if any person hath attested the execution of any 
 will already made, or shall attest the execution of any will, &c, made on 
 or before the 24th June, 1752, to whom any legacy is or shall be thereby 
 given, whether charged upon lands, tenements, or hereditaments, or not ; 
 and such person before he shall give his testimony concerning the execu- 
 tion of such will, &c, shall have been paid, or have accepted or released, 
 or shall have refused to accept such legacy or bequest, upon tender made 
 thereof; such person shall be admitted as a witness to the execution of 
 such will, &c, within the intent of the said act. Provided that in case of 
 tender and refusal, such legatee shall in no wise be entitled to such legacy, 
 but shall be barred from his legacy ; and in case of acceptance, such 
 legatee shall retain his legacy, which shall have been so paid, satisfied, or 
 accepted, notwithstanding such will or codicil shall afterward be adjudged 
 to be void. That in case a legatee, &c, who hath attested the execution 
 already made, or which shall be made on or before June 24, 1752, shall 
 die in the testator's lifetime, or before he shall have received or released 
 or refused (on tender) his legacy, such legatee shall be a legal witness to 
 the execution of such will, &c, within the intent of the said act of 29 Car. 
 2 ; proviso, that the credit of every such witness so attesting, &c, and 
 all circumstances relating thereto, shall be subject to the consideration 
 and determination of the court and the jury before whom any such witness 
 shall be examined, or his testimony or attestation made use of; or of the 
 court of equity in which his testimony or attestation shall be made use of; 
 in like manner as the credit of witnesses in other cases ought to be con- 
 sidered of and determined. No person to whom any beneficial estate, in- 
 terest, gift, or appointment shall be given or made, which is thereby enacted 
 to be null and void, or who shall have refused to receive any such legacy 
 or tender as aforesaid, and who shall have been examined as a witness 
 concerning the execution of such will or codicil, shall, after he shall have 
 been so examined, demand, or take possession of or receive any profit or 
 
 Vol. X.— GO 2x2
 
 522 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. {Proof of Wills.) 
 
 benefit of or from any such estate, &c, given by any such will or codicil ; 
 or demand, receive, or accept from any person, any such legacy or bequest, 
 or any satisfaction or compensation for the same, in any manner, or un- 
 der any colour or pretence whatsoever. This act not to extend to the case 
 of any heir at law, or of any devisee in a prior will or codicil of the same 
 testator, executed and attested according to the act of 29 Car. 2, or any 
 person claiming under them respectively, who has been in quiet possession 
 for two years next preceding the 6th May, 1751, as to such lands, tene- 
 ments, or hereditaments, whereof he has been in quiet possession as afore- 
 said. This act not to extend to any will or codicil, the validity or due exe- 
 cution whereof hath been contested in law or equity by the heir of such 
 devisor, or the devisee in any such prior will, or will or codicil so con- 
 tested, or any part thereof, or for obtaining any codicil, for recovering the 
 lands, &c, mentioned to be devised in any other judgment or decree relative 
 thereto, on or before the said 6th of May, 1751, and which has been 
 already determined in favour of such heir at law, or devisee in such prior 
 will or codicil, or any person claiming under them respectively, or which 
 is still depending, and has been prosecuted with due diligence; but the 
 validity of every such will or codicil, and the competency of the witnesses 
 thereto, shall be adjudged and determined in the same manner as if this 
 act had never been made. No possession of any heir at law, or devisee in 
 such prior will or codicil as aforesaid, or of any person claiming under them 
 respectively, which is consistent with, or may be warranted by, or under 
 any will or codicil attested according to the intent of this act, or where the 
 estate descended or might have descended to such heir at law, till a future 
 or executory devise by virtue of any will or codicil attested according to 
 this act, should or might take effect, shall be deemed to be a possession 
 within the intent of the clause herein last contained. This act shall extend 
 to such of the British colonies in America where the 29 Car. 2 is by act 
 of assembly made, or by usage received as law ; or where by act of assembly 
 or usage the attestation and subscription of a witness or witnesses are 
 made necessary to devises of lands, &c, and shall have the same force and 
 effect in the construction of, or for the avoiding of doubts upon the said 
 acts of assembly, and laws of the said colonies, as the same ought to have 
 in the construction of, or for the avoiding doubts upon, the said act in 
 England. Provided always, that as to the cases arising in any of the said 
 colonies, no such devise, legacy, or bequest aforesaid shall be made null 
 and void by virtue of this act, unless the will or codicil whereby such 
 devise, &c, shall be given, shall be made after March 1, 1753." 
 
 [But, notwithstanding this statute, the question respecting the credibility 
 of witnesses was again brought under consideration in the Court of King's 
 Bench on a special verdict, in the case of Wyndham and Chetwynd. In 
 that case W C being seised of lands, &c, made his will and a codicil 
 thereto, bearing date 14th May, 1750 ;(«) and after devising certain parts 
 thereof in the will, charged the residue of his real and personal estates 
 with the payment of all his just debts, legacies and encumbrances. The 
 will and codicil were duly executed in the presence of, and subscribed by, 
 S S, 11 B, and I H. — S S and I H were attorneys at law, and had been 
 employed by W C, in or about the year 1747, to solicit a private act of par- 
 liament, and charged him as debtor in their books for the fees and expenses 
 of soliciting thereof, the sum of 318^., and the charge continued so until 
 and after the death of W C. Some time after which S S and R. B delivered a
 
 OF WILLS AND TESTAMENTS. 523 
 
 (D) Of Wills in Writing. {Proof of Wills.) 
 
 bill for passing this act to the trustees appointed in the act for the pur- 
 poses therein mentioned : there was a clause in the act for payment of the 
 expenses attending the same, and before the examination of S S and R B 
 as witnesses on this ejectment, there was received from the trustees the 
 sum of 302/. 4s. 8hd., and the trustees were willing to have paid the re- 
 mainder of the demand, if it had not been for a miscalculation. There 
 was likewise a current account open and subsisting between S S, R B, and 
 W C for other business, on the balance of which account, if stated at that 
 time, S S and R B were indebted to W C 138?. 14s. lOd. Also at the 
 death of W C there was due and owing from him to I H the other sub- 
 scribing witness, who was his apothecary, 18/. 5s. 5c/., 111. whereof were 
 due on the 25th December, 1749, on simple contract ; W C dieth on 
 17th May, 1750. There were mortgages upon W C's estates at the time 
 of his signing the said will and codicil, and of his death, to the amount 
 of 24,000/. And at the time of his death he owed 1600/. upon bond, and 
 2874/. upon simple contract. His personal estate then amounted to 
 13,972/., and was sufficient to pay all the simple contract and bond debts. 
 The estates in mortgage were of sufficient value to discharge the encum- 
 brances thereupon. The executor of W C paid I H, one of the witnesses, 
 the sum of 18/. 5s. 5d. after W C's death and before his examination in 
 the cause. Upon these facts the question was, Whether these paper writ- 
 ings, or either of them, were or were not duly executed, so as to pass 
 lands ? This depended upon two questions ; first, Whether the facts, as 
 stated, did make these interested witnesses, and render them not credible ? 
 Secondly, if so, Whether the subsequent circumstances did not remove 
 the objection, and re-establish their credibility ? On the first it was ar- 
 gued for the devisee, that these witnesses were no legatees, and derived 
 nothing from the gift or bounty of the testator; that they were justly en- 
 titled to payment of their debts, though no will had ever been made ; that 
 the personal assets were the proper fund for them to resort to, and that it 
 was sufficient to pay their demands, therefore they were not interested in 
 the charge on the real estate. On the second, it was contended that they 
 were competent witnesses at the time of the examination, their debts be- 
 ing then discharged. That the word credible in the statute 29 Car. 2, c. 
 3, was an ambiguous expression, and capable of many senses, but there 
 seemed to be a parliamentary exposition thereof in the statute of the 4th 
 and 5th Anne, c. 16, § 14, whereby three witnesses were required to au- 
 thenticate a nuncupative will, and it was declared, that such as were good 
 witnesses in trials at common law should be deemed good witnesses to 
 establish a nuncupative will. Now allowing the same exposition to take 
 place on the statute of frauds, then, as these witnesses would be unexcep- 
 tionable on a trial at law in respect of interest, so they would be compe- 
 tent, and, therefore, credible witnesses to the present devise. On the 
 other side, it was argued for the heir at law, that, at the time of the at- 
 testation, the witnesses were interested, and therefore incompetent ; and 
 that then, and not the time of examination, was the proper time of in- 
 specting their credibility, else it would open greater opportunities of fraud 
 and perjury than existed before the act ; that it would be setting up wit- 
 nesses to hire, and would put the validity of a will in the power of the 
 witnesses, by releasing or not releasing their interest. That if a witness 
 was unexceptionable at the time of attestation, and afterwards became 
 infamous or insane, the will was nevertheless a good will, which proved 
 that his condition at the time of attestation was alone to be regarded :
 
 524 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. {Proof of Ullls.) 
 
 that the word credible meant something more than competent ; that the 
 law required competency before, and it was not to be imagined that the 
 learned compiler of this statute, Lord Hale, would put in a word that at 
 best was superfluous ; that in the statute of the 13th Car. 2, against deer- 
 stealing, and in all the game laws, the expression of credible witnesses 
 was used, which had always been understood to mean more than compe- 
 tent, and to give the justices a discretion, whether they Avould convict 
 upon such testimony or not, though the witnesses were, in law, strictly 
 admissible ; and the cases of Hilliard and Jennings, and Anstey and 
 Dowsing, were cited. After the court had taken some time to consider 
 of it, they all agreed, that the will was duly attested by three credible 
 witnesses. And Lord Mansfield(6) delivered a very elaborate judgment, 
 in which he took occasion to enter very fully into the discussion of the 
 meaning of the word " credible " in the statute of frauds ; which his lord- 
 ship considered as capable of being conferred on an interested witness 
 by payment or a release. 
 
 Wyndham v. Chetwynd, 1 Burr. 414. {See 1 Johns. Ca. IGo, Jackson v. Woods.} 
 |!(a) Before the time when the statute 25 Gr. 2, c. 0, took effect. || (6) In a subsequent 
 ease it is stated that Lord Mansfield, previous to his delivering his opinion in the last- 
 mentioned case, declared, that il was his own, and he was personally answerable for all 
 its errors ; the judgment of the court being general, that they held the will duly exe- 
 cuted according to the statute. Lord Camden, arg. in Doe v. Kersey, infra. 
 
 John Knott, by a paper-Writing purporting to be his will, devised his 
 real estates to his wife for life, and, after the decease of his wife, devised 
 certain hereditaments, therein particularly described, to trustees and 
 their successors for ever, upon trust to apply the rents and profits thereof 
 to such poor people within the lordship of Maulsmeaburn as he therein 
 named, viz., indigent orphans under ten years of age, unable to labour, 
 poor aged people utterly past labour, poor impotent people, lame or 
 blind, and who could not labour ; and to put out the children of such 
 poor people as above, either sons or daughters, apprentices as soon as 
 they were fit for it. This paper-writing was signed, sealed, and published 
 by the said John Knott, in the presence of Henry Holme, Robert Burra, 
 and John Mitchell, who subscribed the same in the presence of the devi- 
 sor. Henry Holme and Robert Burra were two of the trustees above 
 named ; and they, and also John Mitchell, the other subscribing witness, 
 were, at the time of attesting, and long afterwards, seised in fee-simple 
 of lands, &c, within the lordship and township of Maulsmeaburn afore- 
 said, and during the time aforesaid were possessed of and occupied the 
 same, and inhabited within the lordship ; the lordship of Maulsmeaburn 
 was a large district, and maintained its own poor, and the witnesses to 
 the will were chargeable and taxable, and were actually charged, assessed, 
 taxed, and paid towards the poor, and all other taxes of the said lordships. 
 It appealed that Henry Holme and Robert Burra had, previous to the 
 time of the trial, released all their interest under the said paper-writing, 
 purporting to be the will of the said John Knott, to the other trustees 
 therein named ; and also that they, and John Mitchell the other witness, 
 had severally conveyed away and disposed of all their respective estates 
 and interest lying in the within lordship and township of Maulsmeaburn 
 before the trial. And the question was, Whether this paper-writing, 
 purporting to be the will of John Knott, was sufficient to pass the here- 
 ditaments in manner above mentioned'.'' which depended upon the ques- 
 tion, Whether the release and disposition of their respective estates and
 
 OF WILLS AND TESTAMENTS. 525 
 
 (D) Of Wills in Writing. {Proof of Wills.) 
 
 interests had restored the credit of the witnesses ? for, if not, it must fall 
 
 to the ground, as the objection to it was not cured by the act of the 25 
 
 G. 2. And it was held by Olive, Bathurst, and Gould, against the opinion 
 
 of {M Pratt, 0. J., that a witness, incompetent at the time of attestation, 
 
 might purge himself afterwards, either by release or payment, and become 
 
 competent by the rule of law. But the cause was afterwards, to avoid 
 
 any further litigation, adjusted by agreement, and the parties divided the 
 
 estate between them. 
 
 Doe on dem. of Hindson v. Kersey ; 4 Burn's Eccl. L. 88. || See Clarke v. Gannon, 
 1 By. & Moo. Ca. 31. jj {*} His argument in this case is inserted in 1 Day, 41, n.} 
 
 || Where a witness was interested under the will at the time of his exami- 
 nation, though he was not so at the execution of the will or at the death 
 of the testator, Lord Thurlow held him a good witness without argument. 
 
 Brograve v. Winder, 2 Yes. 634. 
 
 In a late case, A B by his will, devised an estate to M B, for life ; and 
 at her decease to E II, and her heirs for ever. T II, one of the three 
 attesting witnesses, was the husband of E II, at the time of the attesta- 
 tion. The testator died shortly after making the will, leaving M B and 
 E II, and the witness T H, surviving. E H died in the lifetime of M B, 
 leaving T H, her husband, surviving, and the plaintiff, her eldest son and 
 heir at law. T H died in 1819, and M B, the first devisee for life, in 
 1820. And the question was, Whether the will was duly attested on the 
 ground of the interest of T H, the witness, in right of his wife's remainder 
 under the will. For the plaintiff it was contended, upon the authorities 
 of Holdfast dem. Anstey v. Dowsing, Wyndham v. Chetwynd, and Hind- 
 son v. Kersey, that a party having an interest under a will, but divesting 
 himself of it previous to his examination, might be a witness to prove the 
 will ; and consequently, that T II, if he had been alive, might have been 
 called as a witness, since he derived no benefit, his wife having died be- 
 fore the life-estate of M B, was determined : and even that if he took any 
 benefit under the will, the statute 25 G. 2, c. 0, extinguished it. For the 
 defendant it was argued, that T II was not a credible witness, since he 
 had an interest at the time of his attestation ; and that the statute could 
 not extinguish the interest, since it was his wife's, and not legally his 
 own. The Court of King's Bench gave a certificate that the will was 
 not duly executed. Qucere, if T II had lived, whether he might have 
 been a witness to prove the will ? 
 
 Hatfield v. Thorp, 5 Barn. & A. 589. || 
 
 But a legatee may be a witness against a will ; for the reason why a le- 
 gatee is not a witness for a will being, because he is presumed to be partial 
 in swearing for his own interest, it follows that a legatee, when he swears 
 against a will, swears against his interest, and so is the strongest evidence. 
 
 Oxendon v. Penrice, Salk. 091, 095. j3To exclude the testimony of a subscribing 
 witness, his interest must be derived from the will itself. Allen v. Allen, 12 Term. R. 
 172.£f 
 
 And if it stand indifferent to the witnesses, whether the will, under 
 which they are legatees, and to which they are witnesses, be valid or not ; 
 the witnesses, though legatees, are credible. 
 
 ]3 As to who may or may not be examined as a witness to a will, see Jackson v. 
 Betts, G Cowen, 377 ; Dan v. Brown, 4 Cowen, 483 ; Jackson v. Yiekory, 1 V end. 
 406; Jackson v. Laguere, 5 Cowen, 221; Jackson v. La Grange, 19 Johns. 380 ; 
 Jackson v. Thompson, Cowen, 178.0 
 
 Thus, a devisee died on the 10th of February, 1746, having made a
 
 526 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. {Proof of Wills.) 
 
 will, dated 15th of May, 174G, of his whole estate, real and personal, 
 charged with debts and legacies : tho three subscribing witnesses, as be- 
 ing in his service at his death, had legacies ; one 30Z. a year for life, the 
 two others pecuniary legacies ; all three released the 2d of February, 
 1746. The testator had also made a former will on the 20th of Decem- 
 ber, 1744, attested by three disinterested persons, under which the three 
 subscribing witnesses to the will of 1746 would have had the same_ lega- 
 cies. A bill was brought in Chancery to have the latter will established. 
 It was contended, that notwithstanding the will of 1744, (which the tes- 
 tator had revoked, as he thought, effectually, and might probably have 
 cancelled,) it was a benefit to the witnesses, at the time of subscribing, 
 to have a legacy under the latter will. But the Lord Chancellor was 
 clearly of opinion, that these were good witnesses ; for, at the death of 
 the testator, it was indifferent to them which will prevailed ; and his lord- 
 ship declared the will of the 15th of May, 1746, to be well proved, es- 
 tablished it, and decreed the trust. 
 
 Lord Ailesbury's case, cited 1 Burr. 427. || This was before the stat. 25 G. 2, c. 6.|| 
 
 The question on a special case reserved at the assizes, was, Whether a 
 person who, before the time of attestation, had been indicted, tried, and 
 convicted for stealing a sheep, and was found guilty to the value of ten 
 pence, and had judgment of whipping, was a sufficient witness within the 
 statute ? The whole Court of Common Pleas were clearly of opinion, 
 after three argmnents at the bar, that he was not a competent witness. 
 
 Pendock v. Mackender, 4 Burn's Eccl. Law, 93, II. 28 G. 1 ; { Willes, 6G5, S. G. ; 
 2 Wils. 18, S. C.{ 
 
 || Where a witness was insane, proof of his handwriting was allowed, for 
 he was considered as dead ; and so also where the witness was abroad. 
 
 Carrington v. Payne, 5 Ves. 404 ; Bennet v. Taylor, 9 Ves. 381. || 
 
 pWhen the subscribing witness is out of the jurisdiction of the court, 
 his handwriting may be proved as if he were dead. 
 
 Engles v. Bruinglon, 4 Yeates, 345. g 
 
 When the subscribing witnesses are dead, and no proof of their hand- 
 writing can be obtained, as must frequently happen in the case of old 
 wills, ft will be sufficient to prove the signature of the testator alone. 
 
 In a case where the handwriting of two subscribing witnesses was 
 proved, and no account could be given of the third, the will being above 
 thirty years old, and the testator having been dead for twenty years, an 
 objection was made to the proof of the will ; but the Master of the Rolls 
 said, he could not see any distinction in this respect, between a will and 
 a deed, except that the former, not having effect till the death, wants a 
 kind of authentication which the other has ; that is from the nature of the 
 subject: but in this case, he added, I think the proof sufficient; for, in 
 a late case in the Court of King's Bench, Cunliff v. Sefton, an inquiry 
 of the same kind was held sufficient. The Master of the Rolls therefore 
 held, that the execution of the will had been sufficiently proved. 
 
 Mackenzie v. Frazer, 9 Ves. 5 ; and sec James v. Parnell, Turner & lluss. 417 ; 
 2 East, 183. 
 
 In the case of Calthorpc v. Gough and others, at the Rolls, a will, thirty 
 years old, (reckoned from the date of the will, not from the testator's death,) 
 was not proved by witnesses ; and it was said at the bar, that proof was not
 
 OF WILLS AND TESTAMENT. 527 
 
 (D) Of Wills in Writing. ( Proof of Wills. ) 
 
 necessary on account of the age of the will ; and in support of this, a case 
 of Mackerv v. Newbold was cited, in which Sir Lloyd Kenyon, tlien Mas- 
 ter of the Rolls, is said to have decided, that a will, above thirty years 
 old, should be read without proof, although the testator had died very 
 recently. That point, however, was not decided in the case of Calthorpc 
 v. Gough, because the plaintiff', the heir at law, admitted the will, and 
 claimed under it. In the late case of Lord Ranclifle v. Parkynse, the 
 Lord Chancellor is reported to have expressed an opinion, that a will, 
 thirty years old, if there has been possession under it, proves itself when 
 the attestation records the fact of the signing of the witnesses in the 
 testator's presence; and if the signing is not sufficiently recorded, yet 
 that the fact of possession under the will, and claiming and dealing with 
 the property as if it had passed under the will, would be cogent evidence 
 to prove the duly signing by the witnesses. The general rule seems to 
 be, that a will, thirty years old, unless there has been possession under 
 it, ought to be proved like any other will. 
 
 4 Term 11. 707, n. (a) ; G Dow. R. 202. See Phillips on Evidence, vol. i. 503.fl 
 
 [The attesting witnesses may, upon examination, deny the facts, which, 
 upon the face of the instrument, they are presumed to have attested. 
 But in this case, the devisee may produce evidence to contradict their 
 testimony, (a) 
 
 Hudson's case, Skin. 79 ; Pike v. Badmerino, 2 Stra. 1096 ; Lowe v. Jolliffe, 
 1 Black. R. 365. W'here, on an ejectment brought upon a will, a woman had sworn 
 against her own attestation, Yeates, J., said, that she ought not to have been admitted 
 to give this evidence. And Lord Mansfield observed, that this would not invalidate 
 the will ; for that there were cases where one witness had supported a will, by swear- 
 ing that which the other two witnesses attested, although those two had denied that 
 they did so. And, in the principal case, a new trial was granted, the verdict having 
 been given against the devisee apparently upon this ground. Goodtitle v. Clayton, 
 4 Burr. 2224.] ||(«) If an attesting witness to a will impeach its validity on the ground 
 of fraud, and accuse other subscribing witnesses who are dead of being party to the 
 fraud, the party claiming under the instrument may give evidence of their general 
 good character. Doe v. Stevenson, 3 Esp. Ca. 284; 4 Ibid. 50 ; 1 Camp. 210.|| 
 
 Witnesses have been examined to prove the testator's intent. 
 
 2 Ld. Kaym. 1320, Clifl'e et al. v. Gibbins et al. [So, MaUabar v. Mallabar, Ca. 
 temp. Talb. 79.] 
 
 The probate of a will cannot be controverted at common law. 
 
 1 Ld. llaym. 262, Sir Richard Baine's case. N. B. Though neither the courts of 
 law nor the courts of equity can determine the validity of a probate adversarily ; yet 
 if it comes in incidentally, and the incident is admitted by the parties, those courts 
 may determine it, and hold the parties bound by the admission. Atk. 630, Sheffield 
 v. The Duchess of Buckingham. j3The probate of a will is a judicial act. which can- 
 nut be called in rpiestion in a collateral suit. Bailey v. Bailey, 8 Ohio, 239 ; Card v. 
 Grinman, 5 Conn. 164.£[ 
 
 A recital of a will in a copyhold admittance is evidence against any 
 but the heir. 
 1 Ld. Raym. 735. 
 
 Qu. If the probate or register of a will be evidence to prove a pedigree. 
 1 Ld. Raym. 745. || See Bull. N. P. 246. || 
 
 According to Holt, C. J., the registrar's book is good evidence to prove 
 a will concerning lands. 
 Ld. Raym. 631, St. Leger v. Adams. || See Bull. N. P. 24G.||
 
 528 OF WILLS AND TESTAMENTS. 
 
 (D) Of Wills in Writing. [Proof of Wills. 
 
 Parol evidence is not admitted to contradict the words of a will. 
 
 Ld. Raym. 1261, Lowfield v. Stoneman, ct Cas. temp. Talb. 240, Brown v. Selwin ; 
 /3 Avery v. Chappel, 6 Conn. 270; Spalding v. Harrington, 1 Day, 8.0 || But it is 
 admitted to explain a latent ambiguity, Cheney's case, 5 Hep. 08 ; Beaumont v. Fell, 
 2 P. Wms. 141 ; Thomas v. Thomas, 6 Term R. 076 ; Andrews v. Dobson, 1 Cox's 
 Ca. 425 ; Careless v. Careless, 1 Meriv. 384 ; Price v. Page, 4 Ves. 680 ; Roberts, p. 
 Ill, c. 3, \ 4 ; or to rectify a mistake or misdescription, Hewson v. Reed, 5 Madd. 
 455; Dobson v. Waterman, 3 Ves. jun. 308, note.|| 
 
 The declarations of the testator, before and at the time of making his 
 will, and afterwards, if so near as to be a part of the res gestce, are admis- 
 sible to show fraud in obtaining the will. But declarations made at a 
 considerable distance of time after making the will, particularly if the 
 will has been in the testator's possession all the time, are not admissible. 
 
 Smith v. Fenner, 1 Gallis. 170.0 
 
 And proof of a will cannot be made against a man by the confession 
 of his own witness, without the actual production of the will itself. 
 
 1 Ld. Raym. 730, Pyke v. Crouch. 
 
 An executor may be sued for a legacy where he proves the will, though 
 he does not live in that diocese. 
 
 1 Ld. Raym. 847, Edgworth v. Smalridge. 
 
 A will was made in French and proved in French, and under it in the 
 same probate the will was translated into English, but it appeared to be 
 falsely translated. It was objected, that the translation being part of the 
 probate, and allowed in the spiritual court, it must bind ; and the applica- 
 tion must be to that court to correct the mistakes, which until then must 
 be conclusive. But per his honour, nothing but the original is part of 
 the probate ; neither hath the spiritual court power to make any transla- 
 tion : and supposing the original will was in Latin, (as was formerly very 
 usual,) and there should be a plain mistake in the translation of the 
 Latin into English, surely the court would determine according to what 
 the translation ought to be. And so it was done in this case. 
 
 1 P. Wms. 526, L'Fitt v. L'Batt. 
 
 )3 In Pennsylvania, the certificate of the register of wills, that a will of 
 lands has been duly proved and approved before him, and a copy thereof 
 annexed, is primd facie evidence of such will, though a copy of the pro- 
 bate is not set out. 
 
 Logan v. Watts, 5 S. & R. 212 ; Dormick v. Reichenbach, 10 S. & R. 84. See 
 Miller v. Carothers, 6 S. & R. 223 ; Coates v. Hughes, 3 Binn. 498.0 
 
 || An executor or the wife of an executor taking no beneficial interest 
 
 may be a witness to prove a will. 
 
 Bettison v. Bromley, 12 East, 250 ; Phipps v. Pitcher, Taunt. 220 ; 1 Madd. 144- 
 (5 When the executor derives no benefit under the will, he is a competent witness to 
 establish it. Comstock v. Hadelymc Ecclesiastical Society, 8 Conn. 254.0 
 
 /3lf either husband or wife be a witness to a will, containing a devise 
 
 or legacy to the other, such legacy or devise is void, and the witness is 
 
 competent. 
 
 Jackson v. Woods, 1 Johns. Cas. 63 ; Jackson v. Durland, 2 Johns. Cas. 314 ; 
 Jackson v. Denniston, 4 Johns. 311.0 
 
 And although he take an interest, he may be a witness for a devisee 
 to establish the will as a will of real estate ; for that does not prove it a 
 good will of personalty. 
 
 Doe dem. Wood v. Teage, 5 Barn. & C. 335. ||
 
 OF WILLS AND TESTAMENTS. 529 
 
 (E) Of Nuncupative Wills. 
 
 pEach of the witnesses to a will must separately depose to all the facts 
 required to complete the chain of evidence. 
 
 Hock v. Hock, S. & R. 47. See Mullen v. M'Kelvy, 5 Watts, 399. 
 Parol evidence that deceased had made a will in writing, and of the 
 contents of such writing, insufficient as a will. 
 Clark v. Morton, 5 Rawle, 235. 
 
 Where the witness testified that she saw the testator sign the paper, 
 and acknowledge it to be his act and deed; held, that this was sufficient 
 proof of its execution as a will. 
 
 Loy v. Kennedy, 1 Watts & S. 396. 
 
 The inhabitants of a corporate town, to whom property is devised for 
 the support of a school, are competent witnesses to support the will. 
 
 Corn-well v. Isham, 1 Day, R. 35. 
 
 In Tennessee, the sons of a devisor are competent witnesses to a will, 
 provided none of the lands of the deceased are devised to them. 
 Allen v. Allen, 2 Tenn. 172. 
 
 One who holds a covenant of warranty from the testator is a competent 
 witness to a will ; the heir or devisee are equally liable to him. 
 Thompson v. Shocman, 1 Bibb, 401. £/ 
 
 (E) Of Nuncupative Wills. 
 
 "By stat. 29 Car. 2, c. 3, § 19, for the prevention of fraudulent prac- 
 tices, it is enacted, 1. That no nuncupative will shall be good where the 
 estate thereby bequeathed shall exceed the value of thirty pounds, that is 
 not proved by the oaths of three witnesses, at the least, that were present 
 at the making thereof, and bid by the testator to bear witness that such 
 was his will, or to that effect. And by stat. 4 Ann. c. 16, § 14, it is de- 
 clared, That all such witnesses as are and ought to be allowed to be good 
 witnesses upon trial at law, by the laws and customs of this realm, shall 
 be deemed good witnesses to prove any nuncupative will, or any thing 
 relating thereto. 
 
 "Nor unless such nuncupative will were made in the time of the last 
 sickness of the deceased, and in the house of his, her, or their habitation 
 or dwelling, or where he or she has been resident for ten days or more 
 next before the making of such will, except where such person was sur- 
 prised or taken sick being from his own home, and died before he re- 
 turned to the place of his or her dwelling. 
 
 § 20. "That after six months passed after the speaking of the pretended 
 testamentary words, no testimony shall be received to prove any will nun- 
 cupative, except the said testimony, or the substance thereof, were com- 
 mitted to writing within six days after the making of the said will. 
 
 § 21. "That no letters testamentary, or probate of any nuncupative 
 will, shall pass the seal of any court, till fourteen days, at the least, after 
 the decease of the testator be fully expired, nor shall any nuncupative 
 will be at any time received to be proved, unless process have first issued 
 to call in the widow, or the next of kindred to the deceased, to the end 
 they may contest the same, if they please. 
 
 § 22. " That no will in writing concerning any goods or chattels, or 
 personal estate, shall be repealed ; nor shall any clause, devise, or bequest 
 therein be altered or changed by any words or will by word of nouth 
 
 Vol. X.— 67 2 Y
 
 530 OF WILLS AND TESTAMENTS. 
 
 (E) Of Nuncupative "Wills. 
 
 only, except the same be in the life of the testator committed to writing, 
 and after the writing thereof read to the testator, and allowed by him, 
 and proved to be so done by three witnesses at the least. 
 
 § 23. " Provided that any soldier in actual military service, or any ma- 
 riner or seaman (a) being at sea, may dispose of his movables, wages, and 
 personal estates, as before the making of this act." 
 
 N. B. It has been ruled in equity, that before probate, a nuncupative will is not 
 pleadable in any court against an administrator. 1 Ch. Cas. 192, Verhorne v. Brewin. 
 || (a) For the regulations as to seamen's wills, see 55 G. 3, c. 60, and Burn's Ecc. L. 
 tit. Witts, (8th edit.) || 
 
 A being ill, desired B to make her will, who wrote down only names 
 and initial letters to this effect, viz. : To Tho. West, 200/., to Jo. Dev., 
 100?., to Reb. Cro. 50?., to self, 10?., and to several other persons, in like 
 manner, to above 400?. ; which being more than her estate, B made an al- 
 teration in the second column, by subtracting part of the sums from some 
 of the legatees, as set down in the second column, and then told A the 
 sense of the proposed devises : there were two persons in the room that did 
 not hear any thing that passed between A and B, but only heard the testa- 
 trix at last pronounce, that all was well. B went to a scrivener to have 
 the devises drawn out at length and w form, and before she returned the 
 testatrix died: the judge below pronounced for this will; but upon appeal 
 to the delegates, it was reversed ; and in this case it was agreed, that if the 
 will had been written in words at length, so as they had carried a sense and 
 meaning in themselves, it had been a good will ; for that there was one 
 witness that' wrote it, and two that heard the testatrix pronounce that it was 
 well: which would have been intended to have amounted to a second wit- 
 ness, in regard it appeared on all hands, by several witnesses, that the tes- 
 tatrix did then seriously dispose herself to make her will ; and for that was 
 quoted the case of one Pepper, where a person disposed herself to make 
 her will, and dictated it to a person who wrote it down ; and another, not 
 called in as a witness, lay behind the hangings, out of curiosity ; and yet 
 such will was allowed to be good, being proved by these two witnesses: 
 but they distinguished this case, because the will was not substantive, but 
 was to take its sense from the interpretation of the witness ; and so there 
 %vould be innuendo upon innuendo, which made purely a nuncupative 
 will: and as such, not being attested by the number of witnesses appointed 
 by the statute of frauds and perjuries, the will and legacies were void. 
 
 1 Abr. Eq. Cas. 403. |3 To entitle a nuncupative will to probate, the provisions of 
 ihe law must be strictly complied with. Case of P. E. Yarnall's alleged will, 4 Rawle, 
 40. See Prince v. Hazelton, 20 Johns. 502.£l 
 
 Doctor Shallmer, by Avill in writing, gave 200?. to the parish of St. Cle- 
 ment's Danes, and after, Prew the reader coming to pray with him, his 
 wife put him in mind to give 200?. more towards the charges of building 
 their church, at which, though Dr. Shallmer was at first disturbed, yet 
 after he said he would give it, and bid Prew take notice of it : and the 
 next day be bid Prew remember of what he had said to him the day before, 
 and died that day. Within three or four days after, the doctor's wife puts 
 down a memorandum in writing of the said devise, and so did her maid. 
 Prew died about a month after, and amongst his papers was found a memo- 
 randum of his own writing, dated three weeks after the doctor's death, of 
 what the doctor said to him about the 200?., and purporting that he had put 
 it in writing the same day it was spoken : but that writing which was men-
 
 OF WILLS AND TESTAMENTS. 531 
 
 (E) Of Nuncupative "Wills. 
 
 .ioned to be made the same day it was spoken did not appear, and these 
 ihree memorandums did not expressly agree. About a year after, on ap- 
 plication by the parish to the commissioners of charitable uses, and pro- 
 ducing these memorandums and proof by Mrs. Shallmer and her maid, 
 they decreed the 200?. But on exceptions taken by the executors, the de- 
 cree was discharged of the 200?., and Lord Chancellor held it not good, 
 because it was not proved by the oath of three witnesses ; for though 
 Mrs. Shallmer and her maid had made proof, yet Prew was dead ; and 
 the statute in that branch requires not only three to be present, but that 
 the proof shall be by the oath of three witnesses. 
 1 Abr. Eq. Gas. 404. 
 
 A daughter deposits 180?. in the hands of her mother, (the defendant,) 
 and afterwards makes her will in writing, and thereby clevises several le- 
 gacies, and makes her mother executrix, but takes no manner of notice of 
 the 180?. Afterwards, by word of mouth, she desires her mother to give 
 the 180?. to the plaintiff, if she thought fit, and then soon after died : the 
 mother proved the Will, and this bill was brought against her, to have the 
 180?. paid. The mother, by her answer, admits she had such a sum in 
 her hands, that her daughter did make such a request to her, but that she 
 left it to her election, whether she would give it to the plaintiff or not, by 
 the very form of the devise : and insisted, that she did not think fit to give 
 it to the plaintiff. And in this case it was agreed, that this was not good 
 as a nuncupative will, being above 30?. and not reduced into writing within 
 six days after the speaking, as the statute requires. 2dly, That if the de- 
 fendant had insisted on the statute of frauds and perjuries, the court could 
 not have relieved the plaintiff as upon a trust ; but in this case the de- 
 fendant having by answer confessed the trust, there was no danger of per- 
 jury from variety of proof, which was the mischief the statute intended to 
 provide against ; and therefore the court took it to be in nature of a trust, 
 and decreed for the plaintiff: for the defendant expressly swore, she did 
 not think fit to give it to the plaintiff, and that the testatrix had left her at 
 liberty. But this decree was against the opinion of several at the bar, 
 who thought it too hard on the election left in the mother : but the court 
 principally relied on the case of Kingsman and Kingsman, where a man 
 devised away an estate of 2000?. per annum, and upwards, from his son 
 and heir to a bargeman ; and by his will devised 20?. per annum, to his 
 son, with this clause, that if he behaved himself well, and gave no trouble 
 or disturbance concerning her will, that he might make it up 80?. if he 
 thought fit : and the court decreed the 80?. per annum to the son. But 
 note, the 80?. per annum, in the case of Kingsman and Kingsman, seems 
 to have been decreed purely upon the circumstances and hardships of the 
 case ; but in the present case there were no such circumstances or in- 
 gredients of hardship on the plaintiff: but quaere, for it seems to be a 
 trust in the hands of the mother. 
 
 1 Abr. Eq. Cas. 404 ; Gil. Eq. K. 146, Jones v. Nabbs ; ||S. C. nom. Nab v. Nab, 
 10 Mod. R. 404.|| 
 
 || The dying person is required by the statute to bid the persons present 
 bear witness that such is his will, or to that effect ; and the statute, with 
 respect to this as well as its other requisitions, hath always been strictly con- 
 strued. Thus, in a late case, where a person in her last sickness called her 
 children to her bedside, together with another individual who was in the
 
 532 OF WILLS AND TESTAMENTS. 
 
 (F) The Nature and Effect of a Will and of a Codicil. 
 
 house, and declared to them her will as to the disposition of her property, 
 without more in the case, though the credit of the witnesses was unshaken, 
 the paper propounded as nuncupative was rejected for want of the rogatio 
 testium, which ought to be explicit and particular. 
 
 Bennett v. Jackson, 2 Phill. R. 190 ;|| p Brown v. Brown, 2 Murph. 350.0 
 
 j8 A nuncupative will not made at the habitation of the deceased, nor 
 where he had resided for ten days next preceding, but authenticated as the 
 law requires, ought to be established notwithstanding he was very unwell 
 when he left home, if afterwards he was taken more dangerously ill, and 
 died where the will was made. 
 
 Marks v. Bryant, 4 II. & M. 91. 
 
 A man at his own house, on his death-bed, and in his proper senses, 
 sent for a neighbour to make his will, who in his presence and that of a 
 witness took notes for that purpose ; the sick man requested the writer to 
 make his will, and directed each note to be taken ; a third witness was not 
 present when the first witness began to take the notes, but was present 
 afterwards, and heard some of the notes dictated ; two of the witnesses 
 swore that the notes, or most of them, were read to the decedent, but were 
 not positive that the whole were, nor did the sick man, who was then in 
 his senses, read them himself. After the first witness had made a draft 
 of the will from the notes, the decedent was incapable of reading or hear- 
 ing it read, being at that time delirious. Held, that the notes taken as 
 aforesaid were a good nuncupative will. 
 
 Mason v. Durman, 1 Munf. 456. £f 
 
 (F) The Nature and Effect of a Will or Testament, and of a Codicil. 
 
 A will or testament is of that nature, that it differs much from other 
 acts and deeds that men do and execute in their lifetime ; for although it 
 be made, sealed, and published in ever so solemn a manner, jet it has 
 no life nor virtue in it until the testator's death ; for it is a maxim in law, 
 omne testamentum morte eonsummatum est, et voluntas est ambulatoria 
 usque ad extrcmum vitm exitum: it is therefore resembled until death to 
 the interlocutory sentence, and after death to the definitive sentence of 
 a judge ; and hence it is said, sed legum servanda fides, suprema voluntas 
 quod mandat fierique jubet parere necesse est. 
 
 1 Inst. 112 ; 4 Rep. 01 b, Forse and Hembling's case. But N. B. though it does 
 not take effect till after the testator's death, yet it is inchoate, though "not consummate, 
 from the execution of it ; and to many purposes in law shall relate to the time of the 
 
 .king of it. 1 P. Wms. 97, Lord Bindon v. Earl of Suffolk. 
 
 And for this reason a man may alter or make void his will at his plea- 
 sure ; and he may make as many new wills and testaments as he pleases, 
 and there is no way to bar a man of this liberty. 
 
 Shop. Abr. part 4, p. 9, voc. Test. 
 
 And the latter testament always revokes and overthrows the former ; but 
 otherwise it is of a codicil, for a man may make as many of these as he 
 will, and make no testament at all. Or, if he makes a testament, he may 
 afterwards maio as many codicils as he will, and one of them will not 
 overthrow the other ; for in the first case they must be all annexed to the 
 letters of administration, and the administrator must perform them ; and 
 in the latter case they must be all annexed to the testament, and the 
 executor must take care to perform them. 
 
 Lit. 1G8, Swinb. p. 1, I 5 ; Bro. Test. 20.
 
 / OF WILLS AND TESTAMENTS. 533 
 
 (G) How Wills shall be construed, &c. 
 
 A testament, therefore, is said to have three degrees. 1st, An incep- 
 tion, which is the making of it. 2dly, A progression, which is the publi- 
 cation of it. 3dly, A consummation, which is the death of the testator. 
 Shep. Abr. part 4, p. 9, voc. Test. 
 
 In grants, therefore, the first is of the greatest force, but in testaments 
 
 the last is of the greatest force. 
 
 1 Inst 112 b. But if the latter will cannot be found, or the contents of it are unknown, 
 it is no revocation of the former. Show. Cas. in Pari. 146. [Vide infra.] 
 
 But, when a testament is perfect by the death of the party, it as effec- 
 tually gives and transfers estates, and alters the property of lands and 
 goods, as acts executed by deeds in the lifetime of the parties ; for hereby 
 descents of lands are prevented. And a man may make estates in fee- 
 simple or fee-tail, for life or years, of lands, tenements, rents, rever- 
 sions, or services, as effectually as by deed ; and these estates also will be 
 good without any livery of seisin or attornment ; and hereby also rents, 
 and power to distrain for them, may be reserved, conditions created and 
 annexed to estates or things devised. 
 Shep. Abr. part 4, p. 10, voc. Test. 
 
 And, therefore, they that take by devises of land, are said to take in 
 the nature of purchasers. 
 
 And if, therefore, a tenant in tail makes a feoffment to the use of him- 
 self in fee, and after devises the same land to his wife in fee, and dies, 
 the son is not remitted though the father dies seised, for the devise pre- 
 vents the descent. 
 
 Dyer, 221.. pi. 16. 
 
 (G) How Wills shall be construed. || General rules of Construction : and herein, — Ot 
 the admissibility of extrinsic Evidence to explain them.j| 
 
 )3 In all cases the intention of the testator is to govern, if it be not in- 
 consistent with the policy of law. 
 
 Holmes v. Williams, 1 Root, 332 ; Lutz v. Lutz, 2 Blackf. 72 ; Finlay v. King's 
 Lessee, 3 Peters, 346 ; Morton v. Perry, 1 Mete. 440 ; Jarvis v. Buttrick, 1 Mete. 480 ; 
 Richardson v. Noyes, 2 Mass. 56 ; Davis v. Hayden, 9 Mass. 514; Homer v. Shelton, 
 2 Mete. 194 ; Lamb v. Lamb, 11 Pick. 371 ; Crocker v. Crocker, 11 Pick. 252 ; Hayden 
 v. Stoughton, b^lck. 528; Bowers v. Porter, 4 Pick. 198.0 
 
 It is to be ftbserved, that where the words of a will have a plain sense, 
 and no doubt is in any matter within or without the words, touching the 
 matter of the devise, there the words of the will shall always be taken to 
 be the intent of the devisor, and his intent to be what the words say. 
 
 2 And. 17, Lowen v. Bedd. || See 7 Ves. 391 ; 9 Ves. 205. || 
 
 {And the words must be understood in their legal sense, unless by the 
 context or by express words they plainly appear to be intended otherwise. 
 4 Ves. J. 329 ; 5 Ves. J. 401, 818 ; 7 Ves. J. 535. 
 
 Every word of a will must have a meaning imputed to it, if it is capa- 
 ble of a meaning without a violation of the general intent, or of any 
 other provision in the will with which it may appear inconsistent. 
 
 4 Ves. J. 329, 698, 818 ; 5 Ves. J. 247 ; 6 Ves. J. 102. 
 
 General words in a will may be restricted, to render the whole will 
 consistent. 
 6 Ves. J. 129 ; 7 Ves. J. 403 ; 10 Ves. J. 595.} 
 
 2y2
 
 534 OF WILLS AND TESTAMENTS. 
 
 (G) How Wills shall be construed, &c. 
 
 That all the words of a will are to be carried to answer the intent of 
 the devisor ; but this is to be understood in cases where the intent of the 
 party may be known by the words that are in the will. 
 2 And. 10, 11, 134; j3 Gardner v. Wagner, Bald. R. 459.£/ 
 
 jsA will is to be construed according to the laws and usages of the 
 country where the testator resided when he made it, unless there is some- 
 thing in the language which repels or controls such conclusion. 
 Harrison v. Nixon, 9 Peters, 483. £f 
 
 That if there are inconsistent and contradictory words in a will, some 
 words must be rejected to make it sense. Thus, where a testator gave 
 the interest of a sum of 6000?. to Mary Comfortle, his daughter, for her 
 life, and after decease gave the money between Charles Comfortle her 
 husband, and their children : and in another part of the will he said, 
 " and in case there be no such child or children, I give it to Charles Com- 
 fortle and such children." Lord Chancellor rejected these latter words, 
 as they were absurd and contradictory. 
 
 MS. Rep. Boon v. Comfortle, Pas. 24 G. 2, in Cane; [2 Ves. 277, S. C. by the name 
 of Boon v. Cornforth.J { "The rule with regard to cases of this sort is, if upon a gene- 
 ral view of the will I can collect the general intention, or any one particular object, 
 and there are expressions in the will in some degree militating with it, if I plainly see 
 those expressions are inserted by mistake, I may reject them. But I cannot reject 
 any words, unless it is perfectly clear they were inserted by mistake ; and if two parts 
 of the will are totally irreconcilable, I know of no rule but by taking the subsequent 
 words as an indication of a subsequent intention." Per Sir R. P. Arden. 5 Ves. J. 
 247, Sims v. Doughty ; 6 Ves. J. 102; 3 Ves. J. 320.} 
 
 {Words may be supplied in a will to render a sentence complete and 
 intelligible, in aid of the apparent intent to be collected from the whole 
 context. 
 
 6 East, 486, Doe v. Micklem. 
 
 A mistake in a will cannot be corrected, or an omission supplied, un- 
 less it is perfectly clear, by fair inference from the whole will, that there 
 is such mistake or omission. Where there is a clear mistake, or a clear 
 omission, recourse is to be had to the general scope of the will, and the 
 general intention to be collected from it. 
 
 4 Ves. J. 45, Mellish v. Mellish ; Ibid. 57, Phillips v. Chamberlaine ; 3 Ves. J. 362, 
 Clarke v. Norris.} 
 
 A having a wife and no children, made his will and said, — lest it should 
 please God that he should not return, he gave and devised a real and 
 personal estate, or to that effect. He returns, has children, and dies, 
 without altering his will : the plaintiff being a legatee, and there being a 
 direction in the will for the sale of the real estate to pay his legacy, Lord 
 Chancellor was of opinion that the disposition was merely contingent, and 
 that no part of the will was to take effect but on the contingency of his 
 return ; and so avoided determining the principal question, how far the 
 alteration of the testator's circumstances would be a presumptive revoca- 
 tion as to the real and personal estate ; but as to the personalty, seemed 
 '"O rely on the case of Lug and Lug ; and as to the real estate, he said 
 ihat the statute of frauds and perjuries made a material difference be- 
 tween that and the personal estate. 
 
 MS. Hop. Parsons v. Lenow, Hil. 22 G. 2, in Cane; [1 Ves. 189, and Ambl. 557, 
 S. C. by the name of Parsons v. Lanoe ;] || 1 Wils. 243, S. C. ; and see Sinclair v. 
 Hone, 6 Ves. 607; Johnstone v. Johnstone, 1 Phill. R. 485. [I
 
 OF WILLS AND TESTAMENTS. 535 
 
 (G) How Wills shall be construed, &c. {General Hales.) 
 I A testator in the West Indies made a codicil as follows : "In case I 
 die before I join my beloved wife, I leave to her all my property, 500/. 
 to my brother D excepted." He had then taken leave of his wife, in- 
 tending to go to England to solicit promotion ; but that voyage being 
 prevented by accident, he returned to her. They lived together there, 
 and returned together to England. The testator afterwards went to 
 Corsica, and from thence to Lisbon, where he died about three years 
 after the date of the codicil. The codicil was held to be contingent, and 
 not to have taken effect under these circumstances, the contingency re- 
 ferred to not having happened. And though the codicil had been proved 
 in the ecclesiastical court, that was not considered conclusive ; probate 
 of the codicil not being refused except in a plain case. 
 6 Yes. J. GOT, Sinclair v. Hone.} 
 
 That a will must have a favourable interpretation, and as near to the 
 mind and intent of the testator as may be, and yet so withal as his intent 
 may stand with the rules of law, and not be repugnant thereunto ; it being 
 a rule or maxim of law, Quod ultima voluntas testatoris perimplenda est, 
 secundum verum intentionem ; and that, Sed legum servanda fides, su- 
 prema voluntas quod mandat fierique jubet par ere necesse est. In deeds, 
 the rule of construction is, that the intention must be directed by the 
 words ; but in wills the words must follow the intent of the devisor ; and 
 such a construction is to be made of them as to make use of all the 
 words, and not of part, and so as they may stand together, and have no 
 
 contrariety in them. 
 
 Shep. Abr. part 10, voc. Testament; Bridg. 105, Standish v. Short. 
 
 That such a sense shall be made of a devise, that it may be for the 
 profit of the devisee, and not to his prejudice. 
 
 Shep. Abr. part 11, p. 11, voc. Test. 
 
 That general and doubtful words in a will shall not alter an express 
 devise before, nor carry any thing contrary to the apparent intent. 
 
 Shep. Abr. part 11, p. 11, voc. Test. ; ||8 Term R. 118 ; 6 Ves. jun. 129.|| 
 
 That the clauses and sentences of a will shall be severally transposed 
 to serve the meaning of it. And construction shall be made of the words 
 to satisfy the intent, and they shall be put in such order as that the in- 
 tent may be fulfilled. . 
 
 Shep. Abr. part 11, p. 11, voc. Test. || See Willes R. 1 ; 2 Yes. & B. G7 ; 2 Meriv. 
 R. 386 ; 9 East 2G7 ;|| |3 Reno's Executors v. Davis, 4 H. & M. 283.0 
 
 That no sense may be framed upon the words of a will, wherein the 
 testator's meaning cannot be found. 
 
 Shep. Abr. part 11, p. 11, voc. Test. 
 
 That to give a thing to such a person to whom the law gives it, is as if it 
 had not been given ; and so a devise of a man's land to his heirs is void. 
 
 Styles, 148, 149. 
 
 That a construction of a will must be gathered out of the words of the 
 will, and not by any averment. 
 
 Shop. Abr. part 11, p. 11, voc. Test. 
 
 That though a parol averment shall not be admitted to explain a will, 
 so as to expound it contrary to the import of the words ; yet when the 
 words will bear it, a parol averment may be admitted. As, for instance, 
 to ascertain the person, but in no case to alter the estate. 
 
 1 Freein. 292, Steede v. Berrier ; 5 Rep. 08, Lord Cheney's case ; [2 P. Wms. 137 ;
 
 536 OF WILLS AND TESTAMENTS. 
 
 (G) How "Wills shall be construed, &c. ( General Rules.) 
 
 I Ves. 231 ; 1 Atk. 411 ; 2 Yes. 216 ; 1 P. Wins. 674; 2 P. Wms. 142 ; Ambl. 175 ; 3 Yes. 
 jun. 148. Parol averments are admitted to aid the exposition of a written will, not only 
 where there is an ambiguity as to the person, or as to the subject matter devised, but 
 also where words of equivocal import are used expressive of the quantity of interest, or 
 extent of the subject matter of the devise. Thus, a testatrix by her will gave the fol- 
 lowing bequests : " I give to M P the sum of 5001. stock in long annuities. I give to M 
 
 II the sum of 5001. stock in long annuities ; I also give unto Miss I B the sura of 2001. 
 stock in long annuities, the interest thereof to accumulate, till she shall attain twenty- 
 one, and then the whole to be transferred to her by my executors. Also, I give unto Miss 
 H D the sum of 1001. stock in long annuities, the interest thereof to accumulate, until 
 she attains twenty-one, and then the whole to be transferred to her by my executors: — 
 And all the rest and residue of my estate and effects, both real and personal, whatso- 
 ever and wheresoever, I give, devise, and bequeath the same, and all and every part there- 
 of, unto my said two nephews M F and T F, their heirs, and executors, administrators, 
 and assigns for ever." It turned out that the testatrix had only 120?. a year long an- 
 nuities. And the question was, Whether the legatees should have the respective sums 
 given to them raised by sale of so much of the stock as would produce the same ; or 
 whether they were entitled under the will to annuities of the sums respectively given 
 them, and consequently to divide the 1207. a year between them, leaving nothing to 
 the residuary legatees ? And this depended upon the question, Whether, in this case, 
 the court could let in averments of the state of the testatrix's property at the time of 
 her decease ? Upon the first hearing of the cause, Lord Thurlow was of opinion, that 
 parol evidence could not be admitted ; because, the testatrix having used words so near 
 those a man of business would make use of to dispose of so much per annum, the court 
 were bound to declare the legatees entitled to the things as described, viz., annuities. 
 But, on a rehearing of the cause, his lordship changed his opinion. He said, he 
 should have thought that had the will stood clear of all other criticisms, although it 
 were not an accurate description of 500?. joint interest in the annuities, yet it was a 
 sufficient one of 500?. stock in the long annuities ; at the same time it was impossible 
 not to observe that the expression " the sum of 500?." was going out of the way. But 
 accurate phrases were not called for ; and if the words were found to express the in- 
 tention of the testatrix, that was sufficient, and if it had stood by itself, it was suffi- 
 cient to show what the words meant, " an annual sum of 500?." The difficulty oc- 
 curring was this, that she had been speaking of a sum of 500?., which expression, if 
 standing alone, ought not to be interpreted by any other context, but must take its 
 whole complexion from the word stock: but, if it stood with the context to admit of 
 any other construction upon it, he must consider what the testatrix meant by the whole 
 of the words "the sum of 500?., &c," and the additional words "the interest thereof 
 to accumulate." According to the natural sense of the words " sum of 500?. given to 
 A at twenty-one, and the interest thereof to accumulate,'" he must suppose the first sum 
 to be the principal sum, and the second the interest of the principal sum. It had been 
 contended that the word "stock" in the annuities could not mean the annuity; 
 because it would extend to the three per cents., which were annuities, but there the 
 stock was denominative of the capital sums ; otherwise as to the long annuities, they 
 were denominated so by the annuity ; and the circumstance of their being both annui- 
 ties made it very probable, that if a person were to speak of it as a gross sum, he 
 would speak of the stock, and not of the annuity merely. So far practice might war- 
 rant, that if the words had ended with annuities, without speaking of interest, there 
 would have been no necessity for evidence to have controlled them : but the second 
 part of the sentence, "and the interest thereof to accumulate," raised a doubt whether 
 she meant a sum as producing interest, or the stock itself. The term interest was not 
 a jiroper phrase, but this was not a grosser inaccuracy than those in the rest of the 
 will : the word transferred had been relied on as a technical phrase, but it weighed 
 nothing, because the thing to be bequeathed was not the stock, but the produce of 
 the stock together with the stock itself. The interest, which was the growing produce 
 of the legacy she meant to give, was to be laid out in order to accumulate, she must 
 have meant by the word annuity something. There was no doubt if the word stock 
 had been left out, but the meaning would be that the sum of 500?. was to be disposed 
 if in long annuities, and to make a produce, and that produce to accumulate until 
 the legatee should attain twenty-one. This being the doubtful interpretation upon 
 the face of the will, the question arose, Whether the state of the testatrix's fortune 
 was not applicable to the construction of the will? It appeared by some other parts 
 of the will, that she was extremely unxious to make an ample provision for the 
 family of the Fouereaus ; considering then the situation of her fortune, it was porfectly
 
 OF WILLS AND TESTAMENTS. 537 
 
 (G) How Wills shall bo construed, &c. {Extrinsic Evidence.) 
 
 inconsistent to say, that she could mean to give ten times more than she was worth in 
 legacies. His lordship's opinion therefore was, that the judgment must be reversed, 
 and that he could let in the evidence of the value of the estate, not to control the be- 
 quests which the testatrix had made in words themselves distinct, nor to control a be- 
 quest which she had made of a subject which she had accurately described ; but, be- 
 cause the words she had used in the description were, upon the whole of the context, 
 uncertain whether she intended it as the interest of the gross sum to accumulate, or 500/. 
 per annum. The peculiarity of this will furnished sufficient doubt to warrant the ad- 
 mission of collateral evidence to explain it, and, if so, the statement of the testatrix's 
 fortune was applicable to the purpose of such an explanation. Fonereau v. Puintz, 
 1 Bro. Oh. Rep. 472.] 
 
 {Where there is no connection by grammatical construction or direct 
 words of reference, or by the declaration of some common purpose, be- 
 tween distinct devises in a will, the special terms of one devise cannot be 
 drawn in aid of the construction of another, although in its general terms 
 and import similar, and applicable to persons standing in the same degree 
 of relationship to the testator ; and there being no apparent reason, other 
 than the different wording of the clauses, to presume that the testator 
 had a different purpose in view. 
 9 East, 267, Right v. Compton. 
 
 The effect of a positive bequest is not to be controlled by inference 
 and argument from other parts of the will. 
 8 Ves. J. 42, Jones v. Colbeck.} 
 
 || In the construction of wills free from ambiguity, the general rule is, 
 that evidence of the value of the estate devised, or of the amount of the 
 testator's property, will not be admitted in order to raise an argument in 
 favour of a particular construction. Whatever may be the amount, the 
 general rule of construction must prevail. 
 
 Doe d. Handson v. Fyldes, Cowp. 833 ; Standen v. Standen, 2 Ves. jun. 593 ; 
 3Breckenridge v. Duncan, 2 A. K. Marsh. 51 ;£f Richardson v. Edmonds, 7 Term R. 
 040 ; Doe v. Dring, 2 Maule & S. 455 ; Bootle v. Blundell, 1 Meriv. 210 ; Jones v. 
 Tucker, 2 Meriv. 537 ; Attorney-general v. Grote, 3 Meriv. 310 ; Smith v. Doe d. 
 Jersey, 2 Bro. & B. 473 ; 5 Barn. & A. 387. j3 Parol evidence is inadmissible to ex- 
 plain, vary, or enlarge the words of a will, except in the case of a latent ambiguity, or 
 to rebut a resulting trust. Mann v. Mann, on Appeal, 14 Johns, l.j/ 
 
 Where the subject of the devise is described by reference to some 
 extrinsic fact, it is not only competent, but absolutely necessary, to admit 
 extrinsic evidence for ascertaining that fact, and through that medium, 
 to ascertain the subject of the devise. This is not done with a view to 
 explain the will, or to add to its contents, but to ascertain w r hat is in- 
 cluded in the description used in the will. 
 
 Sandford v. Raikes, 1 Meriv. 040, 053. )3 Parol evidence of the intention of the tes- 
 tator cannot be admitted to vary the express terms of the will. Avery v. Chappel, G 
 Conn. 270 ; Spalding v. Harrington, 1 Day, 8.£/ 
 
 Where there is a devise of an estate purchased by A, or a farm in the 
 
 occupation of B, it must be shown, by extrinsic evidence, what estate it 
 
 was that A purchased, or what farm was in the occupation of B, before 
 
 it can be shown what is devised. 
 
 Hulme v. Heygate, 1 Meriv. R. 285 ; 1 Meriv. 053 ; and see Lowe v. Lord Ilunt- 
 ingtower, 4 Russell, 532, nota. 
 
 So, in all cases where there is a latent ambiguity in a will, which is 
 only raised by reference to extrinsic facts, other extrinsic evidence may 
 be shown to do away and explain the ambiguity ; as where a person had 
 
 Vol. X.—GS
 
 538 OF WILLS AND TESTAMENTS. 
 
 (G) How Wills shall be construed, &c. (Extrinsic Evidence.) 
 
 two sons baptized John, and, conceiving that his elder son was dead, de- 
 vised lands generally to his son, and the elder was in fact living, the 
 younger may, in pleading or in evidence, allege the devise to him, and 
 produce witnesses to prove his father's intent, and that he thought the 
 elder was dead. 
 
 Cheyney's ca., 5 Rep. 68 b ; and see Altham's case, 8 Rep. 155 ; Hob. 32; Jones v. 
 Newman, 1 Black. R. GO ; Harris v. Lincoln, 2 P. Wins. 136; Careless v. Careless, 
 1 Meriv. 384 ; Doe v. Westlake, 4 Barn. & A. 57. 
 
 And so, where a devise in a will is to a person designated by a Christian 
 and surname, without any other description, and no such person appears 
 to claim the legacy, or seems to have been known by the testator, parol 
 evidence is admissible to show that both names are mistaken. 
 
 Beaumont v. Fell, 2 P. Wms. 140 ; Doe dem. Cook v. Danvers, 7 East, 303 ; and 
 for other instances of latent ambiguities where parol evidence has been received, see 
 Selwood v. Mildmay, 3 Ves. 306 ; Goodtitle v. Southern, 1 Maule & S. 299 ; Doe v. 
 Jersey, 1 Barn. & A. 550 ; Whitbread v. May, 2 Bos. & Pul. 593 ; Doe v. Oxendon, 
 3 Taunt. 147 ; 4 Dow. 65, contra; Thomas v. Thomas, 6 Term R. 671 ; Doe v. Jer- 
 sey, 3 Barn. & Cres. 871 ; and Hewson v. Reed, 5 Madd. 451. 
 
 But where the will is upon the face of it ambiguous and uncertain, the 
 only mode of arriving at its meaning is, by construing one part of it by 
 another ; and no external evidence of the declarations of the testator, or 
 of other facts, is admissible ; and if the ambiguity is incurable, the heir 
 at law must take. As, for example, if the devise is to one of the sons 
 of J S, who has several sons, such an uncertainty in the description of 
 the devisee cannot be explained by parol proof. 
 
 3 East, 172 ; 2 Vera. 624 ; 8 Rep. 155 a ; Baylis v. Attorney-General, 2 Atk. 239. 
 
 And so, a blank for the devisee's name cannot be supplied by parol 
 proof. 
 
 But if the surname only is mentioned, and a blank left for the Christian 
 name, parol evidence is admissible to show who the testator meant. The 
 distinction between the two cases being, that in the former it is uncertain 
 whether the testator had fixed on any object of his bounty ; while, in the 
 latter, it is clear he had some person in view ; and to persons intimate 
 with him, the imperfect description might sufficiently point him out. 
 
 Price v. Page, 4 Yes. 680 ; Abbott v. Massie, 3 Ves. 148 ; Andrews v. Dobson, 1 
 Cox Ca. 425. See Phill. on Evid. 1, 540, (7th edit.) and ante tit. Evidence, (G). As 
 to particular rules of construction, and the force of particular expressions, and the 
 creation of particular estates by will, see tit. Legacies and Devises.\\ 
 
 p In the construction of a will, one name may be substituted for another, 
 when it is manifest that not only the name used was not intended, but 
 that a certain other name was necessarily meant. 
 
 Connolly v. Pardon, 1 Paige, 291 ; Dent v. Pepys, 6 Mad. 350.0 
 
 One part of a will shall be expounded by another : as where a man 
 leaves an estate to another and his heirs, and afterwards mentions to 
 have given him an estate-tail ; heirs shall be taken to mean heirs of the 
 body, and the devisee shall take only an estate-tail. 
 
 2 Freem. 267, Bamfield v. Popham. |3See Covenhoven v. Shuler, 2 Paige, 122 ; 
 Adie v. Cornwell, 3 Monr. 279.£f 
 
 || Effect ought to be given to the whole will, if possible, and the inten- 
 tion should be collected from all the parts thereof to avoid repugnancy,
 
 OF WILLS AND TESTAMENTS. 53V 
 
 (G) How "Wills shall be construed, &c. [Extrinsic Evidence.) 
 
 and a codicil is to be considered as part of it. Such, indeed, is the 
 
 respect paid to intention, that a construction may be made to support it, 
 
 when plain, upon the whole will, even against strict grammatical rules. 
 
 But an express disposition cannot be controlled by inference. 
 
 Leon. 229 ; 2 Bulst. 178 ; Gittins v. Steele, Swanst. 28 ; Gray v. Minnethorpe, 3 
 Ye,, jun. 105; 11 Yes. 148; 1 Yes. jun. 269. 
 
 Words of desire are of imperative obligation if the subject and object 
 be certain, unless there is plainly an option or discretion intended to be 
 given. If a testator uses technical phrases, he must be supposed to un- 
 derstand them, unless by other parts of the will he manifests the con- 
 trary. Primd facie words must be understood in their legal sense, 
 unless a contrary intent plainly appears. 
 
 Roberts on Wills, 1, 355. and cases there cited : Morris v. Bishop of Durham, 10 
 Yes. 522; Phillips v. Garth, 3 Bro. C. C. 60; Holloway v. Holloway, 5 Yes. 401; 
 Window v. Tighe, 2 Ball & B. 204; ^Brunson v. Hunter's Adm'r, 2 Hill's Ch. 490.&' 
 
 The same words in different parts of a will should be construed in the 
 same sense, unless the general intention call strongly for a different con- 
 struction : and sometimes they may have a different force as applied to 
 different subjects. 
 
 2 Chan. Ca, 169 ; 2 Yes. 016 ; /3 Elliot v. Carter, 12 Pick. 436.£f 
 
 General words will be controlled to render the whole will consistent : 
 but every word ought to have effect, if possible, so as it consist with the 
 general intention. 
 
 Strong v. Teat, 2 Burr. 912 ; Doe v. Reade, 8 Term R. 118 ; and see 6 Yes. 129 ; 
 9 Yes. 205 ; 8 Yes. 295. 
 
 3 Specific words have a technical effect derived from usage and sanc- 
 tioned by decisions. 
 
 Hawley v. Northampton, 8 Mass. 3 ; Ide v. Ide, 5 Mass. 500 ; Needham v. Ide, 5 
 Pick. 510. But the technical force of words will be counteracted by rational implica- 
 tion. Vauchamp v. Bell, 6 Madd. 643. 
 
 But when the will is evidently drawn by an unskilful man, the terms 
 used shall receive their popular, not their technical meaning. 
 Harper v. Wilson, 2 A. K. Marsh. 466. 
 
 When a word or expression has no intelligent meaning or an absurd 
 one, or it is clearly repugnant to the clear intent of the will, it may be 
 rejected. 
 
 Bartlett v. King, 12 Mass. 537 ; 5 Pick. 510. 
 
 The testator is presumed to have used words in their ordinary sense, 
 unless it appears from the context that he used them in some other sense ; 
 or unless by a reference to extrinsic circumstances, the use of the words 
 in their ordinary sense would render the provision of the will insensible 
 or inoperative. 
 
 Mowatt v. Carow, 7 Paige, 187.£f 
 
 If words admit of a twofold construction, the rule is to adopt that 
 which may tend to make good the instrument, and to effectuate rather 
 than to frustrate : and if words are rejected or supplied by construction, 
 it must always be in support of the intent. 
 
 Per Lord Mansfield, 3 Burr. 1634. 
 
 "And" must be read as "or," where such reading is necessary in or-
 
 540 OF WILLS AND TESTAMENTS. 
 
 (H) How Wills may be avoided. 
 
 der to a reasonable construction of the will, or where it is necessary in 
 order to give effect to all the words. 
 
 1 P. Wins. 434 ; 2 Atk. 643 ; 1 Swanst. R. 330 ; 6 Ves. jun. 311 ; 7 Ves. jun. 459. 
 
 So "or" is sometimes to be read as a copulative, and shall not, where 
 it comes at the end of a period, disjoin the preceding sentences if the in- 
 tent be against it. 
 
 3 Atk. 390 ; 1 Wils. 140 ; 9 East, 366 ; 6 Ves. jun. 341 ; 12 Ves. 112 ; j3 Reg v. 
 Enslin, 2 Mass. 554 ; Carpenter v. Heard, 14 Pick. 449 ; Navison v. Taylor, 3 Halst. 
 43 ; Den v. Migway, 3 Green, 330 ; Bouv. L. D. Disjunctive Term ; 2 Rop. Leg. 290 ; 
 1 P. Wins. 433 ; 2 Cox, 213 ; 2 P. Wms. 383 ; 1 Bing. 500 ; 1 Yeates, 41, 319 : 1 S. 
 & R. 141 ; 1 Wend. 396 ; 6 Toull. n. 703 and 704 ; O'Brien v. Heeney, 2 Edw. 242 ; 
 Mills v. Dyer, 5 Simm. 435,£/ 
 
 The intention of the testator is not to fail because it cannot take effect 
 to the full extent, but it is to work as far as it can. 
 3 P. Wms. 259. 
 
 Neither the want of merit in the object, nor the want of prudence in 
 the disposition, nor any disproportion in the amount of the property 
 given, will afford a ground for controlling or not giving effect to a will. 
 
 Thellusson v. Woodford, 4 Ves. 312, et seq.\\ 
 
 j3When a testator has a fee in a house, and devises it to another sim- 
 ply, it passes a fee in such house. 
 Holmes v. Williams, 1 Root, 332. 
 
 When there is a doubt, vested rather than contingent remainders are 
 favoured. 
 
 Olney v. Hulls, 21 Pick. 311 ; Dingley v. Dingley, 5 Mass. 535 ; Shattuck v. Sted- 
 man, 2 Pick. 468 ; Bowers v. Porter, 4 Pick. 198. 
 
 Implied legacies are not to be supported, unless the intent is clear. 
 
 Grout v. Hopgood, 13 Pick. 159 ; Hart v. Executors of Hart, 2 Desaus. 57 ; Rath- 
 bone v. Dyckman, 3 Paige, 9. 
 
 General legacies are more favoured than specific ones. 
 22 Pick. 299 ; Briggs v. Hosford, 22>ick. 288. 
 
 The heir at law is not to be disinherited, unless such be clearly the in- 
 tention of the testator. 
 
 Heyden v. Stoughton, 5 Pick. 528. 
 
 In the construction of a will, the general rule is to consider the will, as 
 to lands, to speak at the time of its elate ; and as to personal estate at 
 the time of testator's death. 
 
 Smith v. Edrington, 8 Cranch, 66 ; Allen v. Harrison, 3 Call, 289. 
 
 The words in a will may be transposed in order to make a limitation 
 sensible, or to effectuate the general intent of the testator. 
 Covenhoven v. Shuler, 2 Paige, 122. 
 
 The strict grammatical sense of words in a will may be rejected to 
 carry into effect the intent of the testator. 
 Rathbone v. Dyckman, 3 Paige, 9. 
 
 "Her" was construed into "their," to give effect to the intent of 
 the testator. 
 
 Keith v. Perry, 1 Desaus. 353. g/ 
 
 (II) How Wills may be avoided. 
 Wills may be avoided either by act of the party himself, as by revo- 
 cation; or by legal sentence after the death of the testator, as for fraud, 
 $c. Therefore we will consider,
 
 OF WILLS AND TESTAMENTS. 541 
 
 (It) How Wills may be avoided. {Revocation by cancelling, <f*c.) 
 
 1. What shall be deemed a lie vocal ion of a Will : \\And herein, 
 
 1. Of Revocations by cancelling, alterations, and subsequent testamentary Acts.|| 
 
 By the 29 Car. 2, c. 3, it is enacted, " That no devise in writing of 
 lands, tenements, or hereditaments, or any clause thereof, shall be revo- 
 cable, otherwise than by some other will or codicil in writing, or other 
 writing declaring the same, or by burning, cancelling, tearing or obliterat- 
 ing the same by the testator himself, or in his presence and by his direc- 
 tions and consent, but shall continue, &c, unless altered by some other 
 will or codicil in writing, or other writing of the devisor, signed in the 
 presence (a) of three or more credible witnesses declaring the same." And 
 by the same act, " no will in writing concerning personal estates shall be 
 repealed, nor any clause or bequest therein altered by words, or will by 
 word of mouth only, except the same be, in the life of the testator, com- 
 mitted to writing, and read to and allowed by him, and proved to be done 
 by three witnesses. "(5) 
 
 ||(a) Notwithstanding these words, this clause is construed conformably with the 
 fifth section as to the execution of the original will ; and it is not held necessary that 
 the testator should sign, provided he acknowledges the will, in the presence of the 
 witnesses. See Roberts on Wills, vol. 2, p. 1 ; Dougl. R. 244, notis; Ellis v. Smith, 
 1 Ves. jun. 11. (b) See 2 Roberts on Wills, 105 ; 4 Ves. jun. 196, note, (a).|| 
 
 <3 Where the testator wrote below his will, " It is my intention, at some 
 future time, to alter the tenor of the above will, or, rather, to make 
 another will ; therefore be it known if I should die before another will is 
 made, I desire that the foregoing be considered as revoked, and of no 
 effect," is a present revocation. 
 
 Brown v. Thorndike, 15 Pick. 388.tf 
 
 || Sir S S duly made his will on 2d March, 1810, occupying fifteen 
 sheets of paper. The will was prepared from heads or instructions left 
 with Sir S S for his approbation, after which it was returned to his solicitor 
 to prepare the will, but signed in pencil by the testator, that it might operate 
 in case of accidents in the mean time. It contained, amongst other be- 
 quests, one of 2000Z. to the younger children of F S, Esq., Sir S's brother; 
 but this legacy being struck through in the instructions was omitted in the 
 formal will, in consequence of Sir S's expectation, explained to the soli- 
 citor, that the family of Lord C would provide for the younger children of 
 F S. The will when executed was delivered to the solicitor, while the 
 testator retained the instructions for reference. Sir S died 11th July, 1811, 
 and a probate of the will only was obtained. The instructions were found 
 in his secretary, and contained an obliteration of a legacy to Mr. G, the 
 deceased's steward, with a mark in the margin to refer to it, and this en- 
 dorsement on the outside : " If any legacy includes Mr. G in this or any 
 other will or codicil, I revoke it. — S S, February, 1811." The pencilled 
 obliteration of the legacy of 2000?. to F S's children was crossed through, 
 and the deceased had, on the 29th March, 1811, signed every sheet of the 
 will except the second, containing the obliteration of Mr. G's legacy. On 
 a suit to compel the executors to prove this paper of instructions it was 
 proved that the testator, after the execution of the will, had reason to 
 believe that the C family would not provide for the children as expected, 
 and that he said to persons in his confidence he supposed he must provide 
 for the children, and expressed an intention of altering his will. Sir John 
 Nicholl said that the presumptions were strong against the paper, as it had 
 
 2Z
 
 oil OF WILLS AND TESTAMENTS. 
 
 (H) How Wills may be avoided. {Revocation by cancelling, &c.) 
 
 been superseded by a more formal instrument : that the alterations were 
 equivocal — they might be intended to be operative, they might be delibera- 
 tive only : it was mere conjecture ; and the court could not pronounce for 
 the alterations where the intention with which they were made was not 
 proved to the extent required by the rules of decision. 
 
 Sitwell v. Parker, Pre. Court Doc. C, 2 Roberts on Wills, 107 ; and see Dickenson 
 v. Dickenson, 2 Phil. R. 173, where the pencil alterations were admitted ; and see 
 Mence v. Mence, 18 Ves. 348. || 
 
 But, where a man, by will in writing, devised the residue of his personal 
 estate to his wife, and after, she dying, he, by a nuncupative codicil, be- 
 queathed to J S all that he had given to his wife, it was resolved good ; 
 for, by the death of the wife, the devise of the residue was totally void ; 
 and the codicil was no alteration of the former will, but a new will for 
 the residue. 
 
 2 Raym. 34. 
 
 Revocations by the act of the party are either express, as where the 
 devisor expressly declares his mind, that his will should be revoked ; or 
 implied, as where the estate or thing devised is altered after making of 
 the will. 
 
 2 Abr. Eq. Cas. 709, Sir Richard Templeman's case, Mich. 4 Anne, in C. B. N. B. 
 Where the spiritual court set aside a Avill as revoked by the testator, their sentence 
 extends only to the personal estate, and does not revoke a devise of the real estate. 
 3 P. Wms. 100, Sir Samuel Marwood v. Turner. /3When a second will contains an 
 express clause of revocation, the preceding will is revoked, though it may not be 
 formally cancelled. Boudinot v. Bradford, 2 Dall. 208. £j 
 
 If the latter part of a will is inconsistent with the former part of it, it 
 supersedes and revokes it. Per Reynolds, C. B., and Comyns and 
 Thompson, Barons, in Scacc. 
 
 Fitzgibbons, 195, Attorney-General v. Governor and Company of Chelsea Water- 
 works. 
 
 /3 When two wills are existing at the same time, and the testator destroys 
 the second will, without doing any other act, the preceding will is, in 
 general, ipso facto, revived. 
 
 Boudinot v. Bradford, 2 Dall. 2G8 ; Lawson v. Morrison, 2 Dall. 289 ; Havard v. 
 Davis, 2 Binn. 400. 
 
 Where a testator having made a will, afterwards made another will 
 containing a clause expressly revoking the former will ; and afterwards 
 destroyed the second will, and died leaving the first uncancelled ; held, 
 that such clause, proprio vigore, operated instantaneously to effect a revo- 
 cation. 
 
 James v. Marvin, 3 Conn. 570. 
 
 A resident of the island of Jamaica made his will there, sufficient to 
 pass lands in Ohio; afterwards he removed to Ohio, where he made a 
 nuncupative will. Held, that such nuncupative will did not revoke, in 
 whole or in part, the will made in Jamaica. 
 
 M'Cune's Devisees v. House, 8 Ohio, 144.£f 
 
 It was agreed to be the constant rule of this court, that where a legacy 
 was given to a child, who afterward, upon marriage or otherwise, had the 
 like or greater sum, it should be intended in satisfaction of the legacy, 
 unless the testator should declare his intent to be otherwise ; and it was 
 said, the words of ratifying and confirming do not alter the case, though
 
 OF WILLS AND TESTAMENTS. 543 
 
 (H) How Wills may be avoided. {Revocation by cancelling, dbe.) 
 
 they amount to a new publication, being only words of form, and de- 
 claring nothing of the testator's intent in this matter. 
 
 2 Freem. R. 224, Irod v. Hurst. [For cases on this point, see tit. Legacies, D).l 
 || See Monck v. Monck, 1 Ball & B. 298, Drinkwater v. Falconer, 3 Yes. J. 623 : and 
 see ante as to Publication and Republication.\\ 
 
 Thus, defendant's testator by his will gave his four daughters GOO?, 
 apiece, and afterward married his eldest daughter to the plaintiff, and gave 
 her 700?. portion ; after that he makes a codicil, and gives 100?. apiece to 
 his unmarried daughters, and thereby ratifies and confirms his will, and 
 dies. Plaintiff preferred his bill for the legacy of 600?. given to his wife 
 by the said will. And his honour held, that the portion given by the 
 testator in his lifetime should be intended in satisfaction of the legacy. 
 
 2 Freem. R. 224, Irod v. Hurst. || See tit. Legacies, Vol. vi.|| 
 
 J S had four daughters, A, B, C, and D, and by his will devised to A 
 1000?., and by the same will devised to them 1500?. apiece for their por- 
 tions ; which last sums of 1500?. were to be raised out of a real estate 
 devised by his will for that purpose. A marries in J S's lifetime ; and 
 J S gave her 4000?. portion. And per Lord K. Wright, this 4000?. 
 portion must be taken to be a satisfaction of the 1500?. given A by the 
 will for her portion ; and a revocation of the will pro tanto : but as to 
 the 1000?., that being a general legacy, A must have it, notwithstanding 
 the 4000?., given her for her portion. 
 
 Prec. in Chan. 183, Ward v. Lant. 
 
 J S devised lands in S to A, his son, for ninety-nine years, determinable 
 upon three lives, and by his will charges the said lands with an annuity 
 of 50?. per annum to his daughter M, and afterward devises the same 
 lands for ninety-nine years, determinable upon three other lives, reserv- 
 ing 50?. a year rent ; this is, during the continuance of the lease, a re- 
 vocation ; but it is no revocation as to the 40?. per annum annuity, there 
 being rent enough reserved to satisfy that. 
 
 Yin. Abr. tit. Devise, (R. 2,) pi. 16, Parker v. Lamb. 
 
 J S by will [inter alia) devises to B, his younger son, 750?., and after- 
 wards buys him a cornet of horse's commission, and paid 650?. for it, 
 and it was proved he intended this 650?. should be discounted out of his 
 legacy, and that he would strike so much out of the will, as soon as the 
 accounts came to London to him, but died before they came, without 
 altering his will. Decreed that the money paid for his commission shall 
 go in diminution of the legacy, and be taken in payment and satisfaction 
 for so much. 
 
 Prec. in Chan. 263, Hoskins v. Hoskins. 
 
 A by will gave his children several legacies, and to his eldest son 2000?. 
 
 Afterwards he gave him 400?. to go to Italy ; and being a merchant, 
 
 enters on the debtor side of his book, My son debtor 400?. Then by a 
 
 codicil, having taken an account of the estate, and finding it would not 
 
 answer all the legacies, he retrenches 400?. out of each of the younger 
 
 children's legacies, without taking any notice of the eldest son, or his 
 
 400?. His honour decreed the whole 2000?. to the eldest son. 
 
 Prec. in Chan. 298, Bird v. Hooper. His honour mentioned the case of Lord 
 Guernsey, who married a daughter of Sir John Banks, with whom le had a consider- 
 able fortune in land. Afterwards Sir John builds a house upon the land, and being 
 a merchant makes an entry, Lord Guernsey debtor so much, for building the house ;
 
 544 OF WILLS AND TESTAMENTS. 
 
 (II) How Wills may be avoided. [Revocation by cancelling, &c.) 
 
 an i then makes his will, and devises the residue of his estate to his two daughters; 
 and yet it was held, that this house should fall into the lump of the furtune given to 
 Lady Guernsey. Ibid. 
 
 /3 A testator seised of two tracts of land, and possessed of some personal 
 estate, devised one tract to his son, and the other to the family of his 
 daughter, and gave to a bastard child of his daughter a legacy of 400/„ 
 After he had so made his will, the testator sold the land he had devised to 
 his daughter's family, and incurred debts on judgments under which his 
 other tract was sold, leaving at his death not more than enough to pay 
 the legacy of 400/. Held, that these circumstances did not amount to a 
 revocation of the will. 
 
 Wogan v. Small, 11 S. & E. 141.0 
 
 A man makes his will duly executed and attested according to the statute 
 of frauds and perjuries, and at the same time, in like manner, executes a 
 duplicate thereof. Some time after, the testator, having a mind to change 
 one of his trustees, orders his will to be written over again, without any 
 variation whatsoever from the first, save only in the name of that trustee ; 
 and when it was so written over, he executes it in the presence of three 
 witnesses, and the three witnesses subscribed their names, but not in his 
 presence : after this the testator cancels the duplicate, by tearing off the 
 seal, and then dies. And the question was, Whether this second will, not 
 being good as a will to pass lands, should yet be a revocation of the first ; 
 and if it should not, whether the cancelling the other should be a revocation 
 thereof within the statute of frauds and perjuries ? And it was decreed, 
 that neither the making of the second nor the cancelling of the first was a 
 revocation thereof ; though in the second there was an express clause, that 
 he did thereby revoke all former and other wills. Wherein my Lord Chan- 
 cellor took this distinction, that the second was not intended barely a revo- 
 cation of the first, so as to signify his intention of dying intestate, or with- 
 out any will ; but it was intended as an effectual will to pass the lands to 
 the persons, and in the manner thereby devised : and therefore if it was not 
 good as a will to that purpose, it was no revocation of the first, but as it 
 was supposed to be valid as a will for passing the lands by the second ; 
 and if a man by his will devises lands to A, and after makes a second will, 
 and thereby devises the same lands to B, if this second will be not good 
 as a will to pass the lands to B, it shall be no revocation of the devise in 
 the first to A ; for it is plain A was to lose only what B was to gain ; and 
 if B gains nothing by the second, A shall lose nothing that was given him 
 by the first. But, if a man executes a second will, which appears to have 
 no other intention than to revoke the first, and to die intestate, though this 
 second be not in all circumstances duly executed as a will whereby to pass 
 lands, yet it will operate as a revocation of the first. And as to the cancel- 
 ling or tearing of the first will, that is no revocation of it in this case, because 
 that was no self-subsisting independent act, but done to accompany, or in 
 way of affirmation of the second ; it Avas done from an opinion, that the 
 second had effectually revoked the first, and therefore he tears the first as 
 of no use ; but the first was not effectually revoked by the second ; and 
 the act of tearing the first will not destroy it neither ; for though a man may, 
 by the statute of frauds, as effectually destroy his will, by tearing or can- 
 celling it, as by making a second ; yet if he does make a second, and in- 
 tends that as a revocation of the first, if it be insufficient for that purpose, as 
 n the principal case, the tearing or cancelling being only in consequence
 
 OF WILLS AND TESTAMENTS. 545 
 
 (II) How Wills may be avoided. (Revocation by cancelling, dr.) 
 
 of liis opinion, that lie made a good second will, it shall not destroy the 
 first ; but it ought to be set up again in equity. 
 
 1 Abr. Eq. Cas. 407. fiQu. Whether a will devising real estate attested by three 
 witnesses, ean be revoked, by a subsequent will attested by two witnesses only? Bel- 
 den v. Carter, 4 Day, 66. But see Witter v. Mott, 2 Conn. 67. (j 
 
 But if a man cancels or revokes either the duplicate or original will, 
 there is an effectual avoiding of both, they being both but one will, and 
 therefore must stand or fall together. 
 
 2 A T ern. 742, Onions v. Tyrer; ||1 P. Wms. 345; Prec. in Chan. 459 ;j| j3 Betts v. 
 Jackson, 6 Wend. 173. £/ 
 
 P Testator having made a will devising real estate, duly attested, after- 
 wards wrote on the back of it, and subscribed the following words: 
 " This will is invalid, March 9th, 1813, as L S has agreed that my wife 
 shall claim no right of dower, and bound himself accordinirlv." Held, 
 that this declaration was an express revocation of the will. 
 
 Witter v. Mott, 2 Conn. 67. £/ 
 
 [A testator, (who had for two months together frequently declared him- 
 self discontented with his will,) being one day in bed near the fire, ordered 
 M W, who attended him, to fetch his will, which she did, and delivered it 
 to him. it being then whole, only somewhat erased. He opened it, looked 
 at it, then gave it something of a rip with his hands, and so tore it as 
 almost to tear a bit off, then rumpled it together, and threw it on the fire, 
 but it fell off. It must soon have been burnt, had not M W taken it up, 
 which she did, and put it in her pocket. The testator did not see her take 
 it up, but seemed to have some suspicion of it, as he asked her what she 
 was at, to which she made little or no answer. The testator at several 
 times afterwards said, that was not and should not be his will, and bid her 
 destroy it. She said at first " So I will, when you have made another;" 
 but afterwards, upon his repeated inquiries, she told him that she had 
 destroyed it, though in fact it was never destroyed ; that she believed he 
 imagined it was destroyed. She asked him who his estate would go to 
 when the will was burnt ? he answered, to his sister and her children. He 
 afterwards told a person that he had destroyed his will, and should make 
 no other until he had seen his brother J M, and desired the person to tell 
 his brother so, and that he wanted to see him. He afterwards wrote to 
 his brother, saying, " I have destroyed my will which I made ; for upon 
 serious consideration, I was not easy in my mind about that will ;" and 
 desired him to come down, saying, " If I die intestate, it will cause uneasi- 
 ness." The testator, however, died without making another will. The 
 jury, with the concurrence of the judge, thought this a sufficient revoca- 
 tion of the will ; and so it was held to be by Lord Chief Justice De Grey 
 and the whole court, on a motion for a new trial, and the rule discharged : 
 the Chief Justice observing, that this case fell within two of the specific 
 acts described by the statute of frauds ; it was both a burning and a tear- 
 ing : and that throwing it on the fire, with an intent to burn, though it was 
 only very slightly singed and fell off, was sufficient within the statute. 
 
 Bibb v. Thomas, 2 Black. R. 1043.] /3As to what will amount to a cancellatioa, see 
 Betts v. Jackson. Wend. 173 ; Jackson v. Betts, 9 Wend. 20.S ; Idley v. Brown, 
 11 Wend. 227 ; Pan v. Brown, 4 Cowen, 483; Jackson v. Halloway, 7 Johns. 394; 
 Avery v. Pixley, 4 Mass. 4GO.0 
 
 p When a testator intends to revoke a will, sends for it, and the devisee 
 Vol. X.— 69 2 z 2
 
 546 OF WILLS AND TESTAMENTS. 
 
 (H) How Wills may be avoided. {Revocation by cancelling, &c-) 
 prevents him, the will is not thereby revoked, but the devisee holds as 
 trustee for the heirs. 
 
 Gains v. Gains, 2 Marsh. 190. 
 
 Directing a will to be burned by the. person who has possession of it, 
 and who refuses to do so, is not a revocation. 
 
 Giles's Heirs v. Gills's Executors, Conf. Rep. 174. 
 
 The destruction of a will, even by the testator himself, does not amount 
 to a revocation, if the testator had not capacity. Though the instrument 
 is not in being, if its contents are known, it can be proved. 
 
 Idley v. Bowen, 11 Wend. 227 ; Jackson v. Halloway, 7 Johns. 394. 
 
 A man makes his will in writing, and thereby devises all his real and 
 personal estate to his wife, her heirs and executors, in trust to pay his debts 
 and legacies ; and then devises several legacies to his children, and other 
 persons, and concludes, "In witness whereof I have to this my last will 
 and testament, containing nine sheets of paper, and to a duplicate thereof, 
 to be left in the hands of such a one, set my seal to every sheet thereof, 
 and to the last of the said sheets my hand and seal, in the presence of three 
 witnesses, who all subscribed their names in due form of law." ^ After- 
 wards the testator being minded to add other trustees to his wife, and 
 make some alterations in his will, sends for a scrivener, and gave directions 
 to prepare a draught of instructions for another will, which the scrivener 
 does accordingly, and the testator read it over and approved of it very 
 well, and sets his hand to it ; and being at a tavern, thinking that he had 
 now made a new will, he pulls out of his pocket the first will and tears off 
 the seals from the first eight sheets, which the scrivener seeing, asked him 
 what he was a-doing ? " Why," says he, " I am cancelling my first will." 
 "Pray," says the scrivener, "hold your hand, the other will is not per- 
 fected; it will not pass your real estate for want of being executed pursu- 
 ant to the statute of frauds and perjuries." " I am sorry for that," says 
 he, and immediately desisted from tearing off any more of the seals ; and 
 in some short time after dies, without having done any thing further to per- 
 fect the second will or cancel the first. After his death, on application to 
 the spiritual court by the wife, who was made executrix of his last will, 
 they sentenced it a good will as to the personal estate, and admitted her to 
 prove it : ami on a bill brought by the legatees against the wife, and other 
 trustees, to have a specific performance of the trust in the first will, and 
 that the estate might be sold, pursuant to the directions of that will ; it was 
 insisted upon, that the first will was revoked either by making the second, 
 or by tearing off the seals from the first ; but Lord Chancellor held, that 
 the subsequent will could be no revocation as to the real estate, not being 
 executed according to the statute of frauds and perjuries ; and that as to 
 the tearing off the seals from the first eight sheets, that not being done 
 animo canceUaiuli, was no revocation ; and that the seal remaining Avhole 
 to the last sheet was sufficient, and in strictness it was not necessary that 
 all the sheets should be sealed : but because the spiritual court had sen- 
 tenced the second a good will of the personal estate, his lordship held it a 
 <>-ood will for the whole personal estate, and that such legatees of personal- 
 ties in the first will, as arc left out in the second, must lose their legacies ; 
 but for those that had legacies by the first "will chargeable on the real estate, 
 if the same legacies were devised to them by the second will, that they 
 should still continue chargeable on the real estate ; provided such legacies
 
 OF WILLS AND TESTAMENTS. 547 
 
 (II) How Wills may bo avoided. (Revocation, by cancelling, dr.) 
 
 were not increased or enlarged by the second will : for though the second 
 will was not sufficient in itself to charge the real estate, yet since the 
 real estate remained well devised by the first will, they should be still 
 secured by that real estate ; for they were not devised out of land like a 
 rent, but only secured by land, which before was well devised ; but for 
 new absolute personal legacies devised by the last will, they should b • 
 chargeable only upon the personal estate, and should have the preference 
 to be first paid out of the personal estate before the other legacies in the 
 first will, charged upon the real estate, because they had several funds, 
 out of which they were to be paid ; the personal legacies in the last will 
 out of the personal estate, which was well devised by that will ; and the 
 legacies charged upon, or secured upon the real estate, which was de- 
 vised, by the first will, out of the real estate. 
 
 1 Abr. Eq. Cas. 409 ; Hyde v. Hyde, 3 Chan. R. 155, S. C, and decreed and adds, 
 that all agreed that the second will, though not sealed and subscribed as the statute 
 of frauds directs ; yet it is good for the personal estate, it being casus omissus out of 
 the statute, and then it was good at common law. Ibid. 161. 
 
 0A cancellation is primd facie evidence of a revocation, but if made 
 with intent of executing a new will, and that intent fails, the cancellation 
 is conditional and shall have no effect. 
 
 Bethell v. Moore, 2 Do v. & Bat. 3U.£f 
 
 || So also where the testator, being angry with one of the devisees named 
 in his will, began to tear it with the intention of destroying it, and, hav- 
 ing torn it into four pieces, was prevented from proceeding further, partly 
 by the efforts of a bystander, who seized his arms, and partly by the en- 
 treaties of the devisee. Upon this he became calm, and having put by 
 the several pieces, he expressed his satisfaction that no material part of 
 the will had been injured, and that it was no worse. The learned judge 
 left it to the jury to say whether he had completely finished what he in- 
 tended for the destruction of the will, and the jury having found that he 
 had not, the court considered that they had drawn the right conclusion 
 from the facts, and supported the will. 
 
 Doe dem. Perkes v. Perkes, 3 Barn. & Aid. 489.|| |3See Burns v. Burns, 4 S. & K. 
 297 ; Boudinot v. Bradford, 2 Dall. 266 ; Lawson v. Morrison, 2 DalL 267, note.0 
 
 [On a special verdict in ejectment, the jury found, that A, seised in fee 
 of the lands in question, made his will, and thereby devised them in man- 
 ner therein stated, and after making that testament, viz., &c, he made 
 aliud testamentwm in scriptis, but what were the contents thereof, or its 
 purport, or effect, they did not know. The question was, Whether the 
 latter will, so found, was a revocation in law of the devise of the lands in 
 the former ? And the court declared their opinion, that they were not 
 satisfied the second will did revoke the former ; because it was not found 
 that any lands were devised by the second will, so that it might or might 
 not be consistent with the former ; and when the matter stood indifferent, 
 the court would not suppose a revocation of a will solemnly made. And 
 this judgment was affirmed on appeal to the House of Lords. 
 
 Seymour et al. v. Nosworthy in Scac. ; Hard. 374, S. C. ; Show. Pari. Ca. 146, S. 
 C. by the name of llitehins v. Basset, in Banco Regis, 3 Mod. R. 203 ; Comb. 90 : 2 
 Salk. 592 ; 1 Show. 537. 
 
 On a special verdict in ejectment, the jury found, that L, seised in fee 
 of chambers, and having a considerable personal property, in 1748, by 
 will, duly attested to pass real property, gave and devised all his real and
 
 548 OF WILLS AND TESTAMENTS. 
 
 (II) How Wills may be avoided. {Revocation by cancelling, &c.) 
 
 personal estate, of what nature or kind soever, or wheresoever, unto bia 
 dear friend H : that, afterwards, in the year 1766, L made and published 
 another will and testament in writing, in the presence of three subscribing 
 witnesses, who duly attested the same'; that the disposition made by L in 
 the will of 1756 was different from the disposition in the will of the year 
 1748, but in what particulars was unknown to the jurors ; but they did 
 not find that the testator cancelled his tvill of the year 1756, or that the 
 defendant destroyed the same; but what ivas become of the said will, the 
 jurors said they were altogether ignorant. The question was, Whether 
 the latter will, being expressly found by the jury to be different from the 
 former, was a revocation of it ? Those who argued, that the last will, 
 thus found, revoked the first, attempted to distinguish this ease from that 
 of Hitchins and Basset, upon the grounds that, in this case, the jury were 
 so far from being totally ignorant of the contents of the second will, that 
 they were enabled to find, and did find, that the disposition in 1756 was 
 different from that in 1748 ; and.they contended, that the fact that it con- 
 cerned lands was sufficiently found by the mode of devising, and that it 
 extended to the estate in question, was inferred from the testator's having 
 no other estate which required the solemnities of the statute of frauds. 
 But, on the other side, it was contended, that, before a latter will could 
 be determined to revoke a former, it must be shown to contain an incon- 
 sistent disposition, or circumstances must be made out from whence that 
 might be presumed, as spoliation, or the like ; but here the jury expressly 
 found, that they did not know in what the difference consisted, though 
 they found it different ; that nothing could be presumed upon a special 
 verdict ; nothing specifically appeared touching the will in 1756 ; and the 
 arguments for its being a revocation were fallacious ; for it did not ap- 
 pear what were the contents thereof, et denon apparentibus et non exist- 
 entibus eadem est ratio : that presumptions were always in the affirmative, 
 there could not be any negative presumption ; that no presumption could 
 arise from a diversity, unless that diversity were shown and found ; that 
 therefore a second will in the dark, which neither the jury nor the court 
 ever saw, and were wholly ignorant of the contents of, ought not to be 
 set up ; for, if it were, an heir might avail himself, by destroying the 
 second will, to defeat both wills. And upon these grounds it was ad- 
 judged, in the Court of King's Bench, on a writ of error from the Court 
 of Common Pleas, that the latter will, so found, was not a revocation, 
 and the judgment below reversed; and that reversal was afterwards af- 
 firmed in the House of Lords. 
 
 Goodright v. Harwood, 3 Wills. 497 ; 2 Black. R. 937 ; Cowp. 87 ; 7 Bro. P. 0. 
 
 44 
 
 „And where the testator devised his personal estate to A, and his real 
 estate to B, and A died, and the testator afterwards acquired other real 
 property by devise and purchase, and then made a second will, disposing 
 by name of his after-acquired testamentary property to C, and then added, 
 " As to the rest of my real and personal estate, I intend to dispose of it 
 by a codicil thereafter to be made to this my will,"— it was held that this 
 was no revocation of the first will : for even supposing the future disposi- 
 tion to be intended to be inconsistent, (which did not appear,) a mere 
 intention to revoke did not amount to a revocation. 
 
 Thomas v. Evans, 2 East, 488. 
 
 The revocation by a codicil must either be by express words, or by in- 
 consistency of devise. Where a testator devised estates for life without
 
 OF WILLS AND TESTAMENTS. 549 
 
 (II) How Wills may be avoided. (Revocation by cancelling, dc.) 
 
 impeachment of waste, and then by a codicil directed the trustees to let 
 until the tenant for life married; the leases to be under certain restric- 
 tions, one of which was that they should not be unimpeachable of waste, 
 the codicil was held not inconsistent, and therefore no revocation. 
 
 Lushington v. Boldero, Coop. C. R. 21G ; and see Hicks v. Hearle, 1 Youuge & J. 
 47U ; Duffield v. Elwes, 3 Barn. & C. 705. 
 
 Where a will and codicil gave a power to sell to certain persons at a 
 fixed price, and a subsequent codicil devised the premises to trustees to 
 be sold for payment of debts, and subject thereto on the trusts of the will, 
 the codicil was held a revocation. 
 Bridger v. Rice, 1 Jac. & Walk. 74. 
 
 Where an alteration was made in a will by a codicil, and also by an 
 interlineation, and the testator cancelled the codicil, it was held that this 
 set up the will in its original state, although the interlineation in the will 
 was left standing. 
 
 Utterson v. Utterson, 3 Ves. & Bea. 122. * 
 
 W T here the testator bequeathed as follows : "As to all that my lease- 
 hold house in L, and all my household goods and furniture there, and at 
 S, and as to all my plate, linen, china, pictures, live and dead stock, and 
 all the residue of my goods, chattels, and personal estate, I give and be- 
 queath the same to A," and by a codicil he revoked the bequest "of the 
 residue," and gave " the residue of his said personal estate" to B ; it was 
 held, that the gift of the general residue only, and not of the articles 
 enumerated, was revoked. 
 
 Clarke v. Butler, 1 Meriv. R. 304 ; and see Lord Carrington v. Payne, 5 Ves. 404 ; 
 Holder v. Howel, 8 Ves. 97 ; Gallini v. Noble, 3 Meriv. 091 ; Hotham v. Sutton, 
 15 Ves. 319. 
 
 Where the codicil revoked legacies in the will on the supposition that 
 the legatees were dead, on its being proved that they were living, it was 
 held that the revocation did not take effect, and they were entitled to 
 take. 
 
 Campbell v. French, 3 Ves. jun. 321. As to effect of a mistake on a testamentary 
 disposition, see Rob. on Wills, 2, 41 ; and see the instance of such mistake or mis- 
 representation mentioned by Cicero de Oratore, lib. 1, c. 38 : " Quae potuit igitur esse 
 causa major, quam illius militia? de cujus morte cum domum falsus ab exercitu nun- 
 tius venisset, et pater ejus, re credita, testamentum mutasset ; et quem ei visum esset, 
 fecisset haeredem, essetque ipse mortuus — res delata est ad centumviros cum miles 
 domum revenisset egissetque lege in haereditatem paternam." 
 
 { One devised his personal estate to A and his real estate to B. After 
 A's death, the devisor, having acquired other real property, some by de- 
 vise, and some by purchase, made a second will, disposing by name of 
 his after-acquired devised estate to C, and then added, "As to the rest 
 of my real and personal estate, I intend to dispose of it by a codicil here- 
 after to be made to this my will." This is no revocation of the first will, 
 even if it be considered that he meant to include the property thereby 
 devised ; because it is a mere declaration of an intent to dispose of it in 
 future ; and non constat that such disposition would be inconsistent with 
 the first will. But it does not appear that he meant to include the same 
 property in the residuary clause ; for he had other property, both real 
 and personal, undisposed of by either of the instruments ; namely, his 
 personal property which had lapsed by the death of A, and his real pro-
 
 550 OF WILLS AND TESTAMENTS. 
 
 (II) How Wills may be avoided. [Revocation by cancelling, &c.) 
 
 perty purchased by him after the date of his first will, which alone he 
 might have intended to dispose of by a future codicil. 
 
 2 East, 488, Thomas v. Evans. Before the statute of frauds, an intention to revoke 
 in future expressed by parol, was no revocation. Cro. Ja. 497, Cranvel v. Sanders, 
 Moor. 874, Case of the Co-heirs of Sir W. Rider. } 
 
 A testator made a will of his lands, and afterwards gave the same lands 
 to the same person by a latter will, but omitted to cancel the former, and 
 afterwards cancelled the latter, and both wills were in the testator's cus- 
 tody at the time of his death, the second cancelled, the first uncancelled. 
 The question was, Whether, under these circumstances, the first will was 
 to be considered as revoked, and the devisor consequently dead intestate. 
 Per curiam, — A will is ambulatory till the death of the testator. If the 
 testator let it stand till he die, it is his will ; if he do not suffer it to do 
 so, it is not his will. Here, though the testator made two wills, yet the 
 second Avill never operated ; for it was only intentional, and the testator 
 changed his intention, and cancelled the second, so that it had no effect : 
 it was as no will at all, being cancelled before his death ; then the former*, 
 which was never cancelled, stood as his will ; for none of the cases of 
 revocations in law, by alteration of circumstances, applied to this sort of 
 case ; and it was clearly not a revocation within the meaning of the sta- 
 tute of frauds, none of the circumstances delineated in that statute ex- 
 isting in this case. (a) 
 
 Goodright v. Glazier, 4 Burr. 2512; and see Perk. fol. 210, §479 ; 44 Ass. pi. 30, 
 M. 44 E. 3, 33. ||But the Court of Delegates have held as to wills of jxrsonalty, that 
 the mere act of cancelling the second will does not alone revive the first, without other 
 circumstances. 1 Phill. R. 375, 400 ; and see 2 Rob. on Wills, 32. || {Parol evidence 
 may be given to show whether the testator, by cancelling the second will, meant to 
 revive the former instrument or to die intestate. The evidence does not go directly 
 to destroy an existing will, but merely to prove that he did not intend to re-establish 
 a will which he had once actually destroyed. 2 Dall. 200, Boudinot v. Bradford ; Ibid. 
 280, Lawson v. Morrison.} (a) Vide \ 0. 
 
 N, in 1759, duly executed his last will and testament, and also a dupli- 
 cate thereof, but at the same time declared that it was not a will to his 
 liking, and that he should alter it. Afterwards, in 1761, he made another 
 will, which was also duly executed, the devises in which were different from 
 those in the will of 1759, and at the end of it there was a declaration, by 
 which he revoked all former wills. After executing the latter will, N 
 took one part of the old will in his hands, tore off the name and seal, and 
 directed the person who had made the new will to cut off the names of the 
 witnesses to the old one, which he did in N's presence. N at the same 
 time said, that a duplicate of the former will was in the hands of W, a 
 devisee therein. He then delivered the new will to the person who made 
 it, requesting him to take it away with him to his house, and keep it, for 
 reasons Avhich he mentioned. Afterwards a principal devisee in the last 
 will died, soon after which the testator sent for the last will, and in 1762 
 had this will returned him. The testator, before his death, sent for an 
 attorney to make a new will, but became senseless before he arrived. On 
 his death, one part of the will of 1759, and also the will of 1761, were 
 r ound together in a paper, both cancelled. The other part of the will of 
 1759 was found uncancelled in the testator's room among other deeds and 
 papers; how it came there did not appear; but W, a devisee therein, was 
 in the house when the searches were made. And the question was, Whe- 
 ther the testator died intestate, or not ; that is, whether the will of 1759
 
 OF WILLS AND TESTAMENTS. 551 
 
 (H) How Wills may be avoided. (Revocation by cancelling, &c.) 
 
 was revoked? And it was held, that the will of 17.59 was clearly re- 
 voked: first, by the new will of 17G1, which was a complete, legal, and 
 effectual will, and would have revoked the former, whether it had been 
 cancelled or not; because at the end of it there was a declaration, by 
 which he revoked all former wills : secondly, because the testator had 
 actually cancelled the will of 1759. 
 
 Burtonshaw v. Gilbert, Coop. 49. || See Wiusor v. Pratt, 2 Bro. L B. G56 ; Stride 
 v. Cooper, 1 Phill. R. 334.11 
 
 || Where a testator cancels the part in his custody, the strong legal 
 presumption is, that the duplicate in the possession of another person was 
 not meant to prevail. If both are in the possession of the testator, the one 
 cancelled and the other uncancelled, the presumption of revocation still 
 holds, but it has less strength. If both are in the testator's possession, 
 the one altered and cancelled, and the other in statu quo prim, the pre- 
 sumption against the operative existence of either may still remain, but 
 with a strength yet more diminished. 
 
 Pembertoii v. Pemberton, 18 Ves. 290. 
 
 Where a testator devised lands to two trustees, in trust for certain pur- 
 poses by a will duly executed, and afterwards struck out the name of one 
 of the trustees, leaving the general purposes of the trust unaltered, and 
 did not republish his will : it was held that this did not operate as a gene- 
 ral revocation, so as to let in the heir, since the testator's intent was only 
 to revoke by substituting another good devise ; and as this could not take 
 effect for want of the requisites of the statute, it should not operate as a 
 revocation ; and at most, it could only be a revocation pro tanto as to the 
 trustee, whose name was obliterated, leaving the devise good as to the 
 old trustee, whose name was retained. 
 
 Short v. Smith, 4 East, 419. See Larkins v. Larkins, 3 Bos. & Pul. 10, 109, ace. : 
 Grantley v. Garth waite, 2 Russell, 90, H 
 
 M, by his will, gave particular lands, and his personal estate to be laid 
 out in lands, to charitable uses; and then by a codicil, reciting his will, and 
 that he had devised his lands to such uses; "but that there had been an 
 act of parliament, intituled, ' the mortmain act,' and being in doubt whether 
 the devise made by him to such charitable uses would be good or not, and 
 being still desirous, as far as in him lies, to confirm his said will, never- 
 theless if, by the act of parliament, or by any construction of law there- 
 upon, the estate is not well devised, and cannot go to those uses, then and 
 in such case he gave the lands to B and his heirs." Afterwards M made 
 another codicil, reciting as before, and, "that being advised the devise of 
 his lands would be void, and it being his intention the charity should be 
 continued, and being advised his personal estate could be given, he did there- 
 fore, by this codicil, give his personal estate to the charitable uses before 
 mentioned, and he did thereby give his real estate to B." Between the 
 time of making the will and the codicils, the mortmain act passed ; and 
 the question was, Whether, upon the construction of all the instruments, 
 the last codicil was a revocation of the first will ? which turned upon the 
 point, whether the last codicil, as to its revoking the will, Avas put singly 
 upon the point of law, whether the devise was valid or not under the mort 
 main act ; or whether the testator, having been advised that his personal 
 estate had been so much increased as to be sufficient to support the charity, 
 (for the codicil was made a considerable time after the will,) taking the
 
 552 OF WILLS AND TESTAMENTS. 
 
 (H) How Wills may be avoided. (Revocation by Codicil.) 
 
 whole into his consideration, viz., the point of law upon the statute, viz. 7 
 that the devise of the real estate would be void, the fact that he might 
 make a good disposition of his personal estate to the uses of the charity, 
 and that it would be sufficient for the purpose, meant an actual revocation 
 of the will as to the real estate in all events. And on a case sent from the 
 Court of Chancery to the Court of King's Bench, they certified that the 
 real estates were well devised to B by the last codicil ; the necessary con- 
 clusion from which is, that it was a revocation of the will. 
 Attorney-general v. Lloyd et al., 3 Atk. 552; S. C, 1 Ves. 32. 
 
 £me made his will, devising the bulk of his real estate to three trustees on 
 certain trusts, and some particular lands to charitable uses. He then made 
 a codicil, which he published and declared should be annexed to and be 
 taken as part of his will ; and making some alterations thereby in the dis- 
 position of the trust of the bulk of his estate, after reciting the devise to 
 the charity, he devised the same lands, together with another piece of land, 
 to the same three trustees and two others, and their heirs, upon the same 
 special trusts and confidences as in the will, and concluded with confirming 
 all other parts of his former will. Upon these instruments it became a 
 question, Whether this trust for the charity could take effect ? The doubt 
 arose from the circumstance of the mortmain act having passed in the time 
 that intervened between the making of the two instruments. If the co- 
 dicil revoked the will as to the charity, it was clear that it could not take 
 effect ; because the devise to it in the codicil, that being made after the act 
 passed, was void. It was therefore contended by those who opposed the 
 devise to the charity, that by the codicil, the devise both as to the legal 
 estate and trust was revoked ; for the whole fee, at law, was certainly 
 altered, by the devise, to five trustees instead of two. It passed to different 
 persons in different manners ; the trustees must claim under the codicil : 
 an ejectment must have been brought in their five names ; they must 
 have joined in any conveyance : the adding more land also showed an 
 intent to make a new regulation. But Lord Hardwicke was of opinion, 
 that the beneficial interests and profits to the charity were not revoked but 
 confirmed by the codicil ; and one ground of his lordship's opinion was, 
 from the nature of the instrument which effected a devise only in the de- 
 gree expressed ; and therefore, though the codicil effected a new devise 
 of the legal estate by giving it to the same trustees and two others, and 
 an alteration of the trust estate by a variation of the devise of the surplus 
 profits, it left the trust for the charity exactly the same as under the will. 
 
 Willet v. Sanford, 1 Ves. 178, 186. 
 
 S being seised in fee of a house at Bath, and of other freehold estates 
 of the yearly value of 300?., and of other estates of the value of 500?. a 
 year in remainder after the death of his father, made his will, and thereby 
 gave all his lands in possession, reversion, or remainder, except the house 
 at Bath, upon trust to sell and dispose of the said lands ; and to place the 
 money arising therefrom upon real security, and out of the interest and pro- 
 duce thereof, to pay his wife four hundred pounds a year, in lieu of so much 
 a year which she would be entitled to by their marriage settlement. And 
 he gave to his wife, in satisfaction of the remaining 500?. which she could 
 claim by the settlement, his house in Bath for her life, and, after her death, 
 devised it to his eldest son. After reciting his wife's bein£ enseint, he 
 gave to such child, whether son or daughter, 3000?. to be paid out of
 
 OF WILLS AND TESTAMENTS. 553 
 
 (H) How Wills may be avoided. [Revocation by Codicil.) 
 
 the moneys arising by the sale of the lands, and to be paid at his or her 
 age of twenty-one. He did further by his will direct, that, when the 
 estates directed by him to be sold were actually sold, and the moneys 
 arising from them invested in the said securities, 100/. a year should be 
 given to his wife for the bringing up of his daughter M and cut;/ after-born 
 child: and if his said daughter, or such after-born child, should happen to 
 die before his or her legacy should become due, that then such legacy 
 should sink into the residuum for the benefit of his son. After some pecu- 
 niary legacies he gave the rest, residue, and remainder of his estate, &c, 
 to his son ; but, in case he should die before twenty-one without issue, he 
 then gave and becpueathed the same residuary estate to the child with which 
 hit wife was enseint, if a son, as his own for ever: but, in case such child 
 should prove a daughter, then he gave the same residuary estate betAveen his 
 two daughters as tenants in common. At the time of making his will the 
 testator had a son and a daughter, and his wife was enseint with another 
 child (a daughter) afterwards named J M. After the date of the will, the 
 testator sold his house at Bath, and had two daughters born, J M and A S. 
 After the sale of the house in Bath, and the birth of his two daughters, the 
 testator, in his own hand, made the following alterations in his will ; but 
 the making thereof was not attested, nor the will republished. — In the de- 
 vise to the trustees the exception of the house at Bath was struck out. — In 
 declaring the trusts of that devise, so far as related to his wife's annuity, 
 he interlined the word "fifty," so that the annuity was altered to 450?. 
 The bequest to his ivife of the house in Bath was struck out, and the re- 
 mainder to his son. The recital of his wife s being enseint, and the legacy 
 of 3000?. ivere struck out, and instead thereof, he inserted these words, 
 " I give to my two daughters, J M and A S, 2000?. each.'" In the direction 
 for bringing up his daughters, he made the word "daughter" daughters, 
 and instead of the words " after-born child," he inserted the names u J3f 
 and A 8." In the clause respecting the lapse of the legacies, the word 
 "daughter" w us made plural, the words "after-born child" vi eve struck out, 
 and instead of " his or her" the word " their" was inserted. He also made 
 alterations as to his pecuniary legacies. The residuary devise to the child 
 of which the wife was enseint was likewise struck out, and instead of 
 the word "two" before "daughters" he substituted the word "three." 
 The question referred to the opinion of the court was, " Whether, by the 
 will of the testator, as altered, obliterated, and interlined by him, any, and 
 what part, of the real estate therein mentioned, passed thereby to any per- 
 son, and to whom ? Which depended upon whether the alterations and 
 obliterations in the will amounted to a total revocation of it with respect to 
 the real estate. And the court, (declining to give any opinion as to the 
 legacies to the daughters, recommending the decision of that point to be 
 deferred until the son, then an infant, should come, of age,) as to the de- 
 vise to the trustees to sell, were clearly of opinion it was not revoked but 
 continued in force ; and they certified accordingly. 
 
 Sutton v. Sutton, Cowp. 812. J 
 
 A, in December, 1715, makes his will, and signs, seals, and publishes 
 it in the presence of four witnesses, who attest and subscribe the same in 
 his presence, and thereby gives to H P, his son, and to his heirs and assigns 
 for ever, his lands, &c. The 2d of January following, he orders one O to 
 make an alteration in his will, and interlines these words: "I give unto 
 my wife, A P, and her assigns, my lands in W for her life ; and after her 
 
 Vol. X.— 70 3 A
 
 554 OF WILLS AND TESTAMENTS. 
 
 (H) How Wills may be avoided. [Revocation by Codicil.) 
 
 decease to my son H and his heirs." The will is read to the testator, and 
 he approves of it with the interlineation : he puts his seal upon the wax in 
 the presence of three of the same witnesses, but does not write his name 
 de novo, neither do the witnesses subscribe theirs de novo. The question 
 was, Whether this was a good devise to A P for her life ? This doubt 
 was chiefly upon the 29 Car. 2, whether this alteration was not a revoca- 
 tion within the statute. Every bequest is to continue in force until the 
 same be burnt, &c, by the testator or his direction, in his presence, or 
 unless the same be altered by some other will or writing of the devisor, 
 signed in the presence of three or four witnesses, declaring the same. If 
 the will be signed, it may be in any part ; and per Parker and Eyre, — The 
 putting a seal is a good signing ; for, per Parker, C. J., the intention of 
 the parties signing it, and the witnesses attesting, is only that the witnesses 
 may know it again. This act is fully penned, and is not to be expounded 
 away. Per Powis, — Here is no danger of fraud or perjury : here is a 
 new devise, and not an alteration only. Per Eyre, — Every thing is right, 
 save the new subscribing by the witnesses; the case of Lea v. Libb in 
 Shower, 68, 69, is right ; nobody can say this new bequest was signed in 
 the presence of the testator. Per Eyre and Parker, — There must be more 
 than a bare revocation. It must be signed in the presence of three wit- 
 nesses. The altering a will must be understood of a revoking, i.e. an' alter- 
 ation by revocation. The latter implies the whole will, the former of any 
 part, otherwise this alteration will clash with the former clause ; so that 
 if the testator revokes the whole or part, it shall be by will or writing, 
 signed in the presence of Avitnesses, but they are not obliged to subscribe. 
 Per Eyre, — If H P had been here found heir at law, then A, the lessor 
 of the plaintiff, might have been helped ; for if this be an alteration, so 
 as II is not to have the lands till after A's death, she will have an estate 
 by operation and implication of law. 
 
 Yin. Abr. tit. Devise, (R), 4, pi. 3, Townshend v. Pearce. 
 
 [So, if a testator devises an absolute estate in fee to A, and afterwards, 
 by a subsequent devise, gives him only an estate-tail in the same land ; 
 it is a revocation only to the extent of the difference between an estate- 
 tail and an estate in fee. 
 
 Per Lord Mansfield, Cowp. 90.] 
 
 B, by will duly executed pursuant to the statute of frauds, and elated in 
 October, 1738, gave and devised 800/. to his sister E, and also 400/. to his 
 sister L, and other small pecuniary legacies, and then gave all his real and 
 personal estate, not otherwise therein disposed of, after payment of his debts 
 and legacies, to S, his brother, and appointed him executor. Afterwards 
 B, by a subsequent will, dated May, 1741, and revoking all former wills, 
 gave and bequeathed ft>0/. to his sister L, and 400/. to his sister E, and 
 the rest and residue of his estate, real and personal, he disposed of as before. 
 But the latter will was not executed according to the statute of frauds. 
 Lord Hardwicke being of opinion, that these legacies being to be taken 
 originally as personal, because although the latter words created a charge 
 upon the land, yet they were in their primary intention personal ; the next 
 question was, Whether the legacies given by the first will were revoked bv 
 the second in toto, they being given differently and to different persons ; or, 
 whether the legacies given by the seCond Avill were to be considered as 
 only modifications of the first, and, consequently, as revocations of them
 
 OF WILLS AND TESTAMENTS. 555 
 
 (II) How avoided. (Revocation by subsequent Jtu-ise, dr.) 
 
 pro tanto only ; the consequence of which would be, that the latter lega- 
 cies would continue a charge upon the land ? And Lord Hard wick e was 
 of opinion, that the legacies given by the second will were to be con- 
 sidered as part of the money given by the first, only new-modelled or 
 qualified ; and that the second will, therefore, was a revocation of the 
 first pro tanto only ; and, accordingly, decreed the raising of the less 
 sums out of the real estate of the testator. 
 
 Brudonell v. Boughton, 2 Atk. 268. || See 1 Ves. & B. 446 ; Rose v. Conynghame, 
 12 Ves. 29.|| 
 
 If A by his will devises all the residue of his personal estate to B and 
 C, and makes them executors ; and after, by a codicil, cancels and revokes 
 every legacy, thing, and part relating to B, and revokes his being exe- 
 cutor ; shall have the whole. A revocation, without a new gift, shall 
 have the same effect as if it had been expressly given ; and whether it be 
 by codicil or obliteration, it is the same. 
 
 MS. Rep. Humphries v. Taylor, in Cane, Hill. 25 G. 2. || See 4 East, 419.|| 
 
 {So if a devise be to three persons as joint-tenants in fee, and the tes- 
 tator afterwards strike out the name of one of the devisees^ and there be 
 no republication, the erasure will operate only as a revocation of the will 
 pro tanto ; and the other devisees will take the whole. But if the other 
 devisees were to acquire any estate which they had not before, something 
 beyond a mere revocation would be necessary. If, therefore, the devi- 
 sees had been tenants in common, upon the erasure of one name, the re- 
 maining two would take no more than two-thirds of the estate. 
 
 3 Bos. & Pul. 16, 109, Larkins v. Larkins. 
 
 So where one devised lands to two trustees in trust for certain pur- 
 poses, and afterwards struck out the name of one of those trustees and 
 inserted the names of two others, leaving the general purposes of the trust 
 unaltered, though varying in certain particulars, and did not republish 
 his will : it was held that his intent appearing to be only to revoke by 
 the substitution of another good devise to other trustees, as such new de- 
 vise could not take effect for want of the requisites in the statute of 
 frauds, it should not operate as a revocation ; or at most it could only 
 operate as a revocation pro tanto, as to the trustee whose name was obli- 
 terated : leaving the devise good as to the old trustee whose name was 
 retained : the insertion of the names of the new trustees being for want 
 of a proper publication inoperative. 
 
 4 East, 419, Short v. Smith. } 
 
 || Where testator bequeathed as follows : "As to all that my leasehold 
 house in L, and all my household goods and furniture there and at S, and 
 as to all my plate, &c, and all the residue of my goods and personal es- 
 tate, I give and bequeath the same to A ;" and by a codicil he revoked 
 the bequest of the residue to A, and gave " the residue of his said per- 
 sonal estate to B ;" the gift of the general residue only, and not of the 
 articles enumerated, was revoked by this codicil. 
 
 Clarke v. Butler, 1 Meriv. 304. J] 
 
 A subsequent devise to a person incapable of taking, is a revocation 
 of a precedent devise to a person capable. This was approved by the 
 counsel on both sides as good law. 
 
 10 Mod. 233, Roper v. Radcliffe ; || 1 Bro. P. C. 450. ||
 
 556 OF WILLS AND TESTAMENTS. 
 
 (H) How avoided. [Revocation by Changes of Estate, &c.) 
 
 Thus, in a devise of lands to A, if afterwards the devisor devises the 
 
 same lands to B, who was a papist, both devises are void ;(a) for though 
 
 the last is void as a will, yet it is good as a revocation. 
 
 Vin. Abr. tit. Devise, (R), 3, p. 141. \\{a) But by the 18 G. 3, c. GO, papists tak- 
 ing the oath thereby required are empowered to take lands by descent or purchase. || 
 
 || Where there was a devise of real estates to be sold, and the produce 
 to be applied in the same manner as the residue of the personal estate, 
 and testator made a codicil, not executed so as to pass real estate revok- 
 ing the bequest of the residue, it was held that this did not affect the 
 will as to the real estate. 
 
 Gallini v. Noble, 3 Meriv. 691 ; and see Francis v. Collier, 4 Russell, 331. [j 
 
 |j 2. Of Revocations by subsequent Contracts, Changes of Estate, and Alterations in 
 
 Circumstances. || 
 
 Per Hardwicke, Lord Chancellor, — The general principle is, that at 
 the time of the devise, the devisor must have a disposing capacity, and 
 an estate in the land devised ; and the estate must remain in the same 
 plight and condition until his death : for the least alteration by any act 
 of his makes it a different estate, and shows a different intention, and 
 therefore is an actual revocation. Thus, if one seised in fee clevises, then 
 enfeoffs another to the use of himself in fee, though it is the old use that 
 remains, yet it is a revocation, though it is his, on the feoffment. So of 
 a bargain and sale without enrolment. So, if a man, thinking himself 
 tenant in fee, devises, and then, apprehending himself to be only tenant 
 in tail, suffers a recovery with intent to confirm his will, it is a revoca- 
 tion.^) As to mortgages, they are exceptions out of the rule. At law 
 a mortgage for years, and in equity a mortgage in fee, are revocations 
 pro tanto only ; and the reason is, that a mortgage is only a security ;(b) 
 and though it be a conveyance of a real estate, yet in this court it is a 
 chattel interest only, and goes to the executor, and it gives no dower. 
 In the case wherein these leading principles were established, after the 
 testator had devised all his manors, lands, tenements, and hereditaments, 
 he by a deed conveyed an advowson which he was seised of at the time 
 of making his will, to, and to the use of trustees and their heirs, in trust 
 to present the church when void to a particular person, if qualified, on 
 the terms prescribed therein ; and if such person should be incapable, 
 then to present such clerk as A should nominate ; and in default of nomi- 
 nation by him, as the trustees should think fit. The person intended 
 was presented ; and on a bill brought by the heir at law of the testator, 
 to have a legal conveyance of the residue of the advowson ; the question 
 was, Whether this deed, being only a trust for a particular purpose, aa 
 it was alleged, was a total or partial revocation ? It was determined by 
 Lord Chancellor, after arguing as above, that it was a total revocation ; 
 it being a grant of the legal interest; and the trust was a real and bene- 
 ficial interest given by it to the trustees, that of nominating themselves 
 in default of A's nominating ; and he decreed a conveyance to be made 
 according to the prayer of the bill. 
 
 MS. Rep. Sparrow v. Hardcastle, in Cane., Pasc. 27 G. 2; [3 Atk. 798, and Ambl. 
 224 ;] || 7 Term R. 416.|| [But see 2 Ves. jun. 432, 433.] || \b) So, also, if a testator, 
 aftor having made his will, levies a fine to such uses as he shall appoint, and dies with- 
 out a new will, the will prior to the fine is revoked. Doe v. Dilnot, 2 New R. 401 ; 
 and see Darley v. Darley, 3 Wils. 6 ; Brydges v. Chandos, 2 Ves. jun. 430 ; Parker v. 
 Biscoe, 8 Taunt. 099 ; 3 Moo. 24. And where the tenant to the praecipe was named
 
 OF WILLS AND TESTAMENTS. 557 
 
 (H) How avoided. [Revocation by Changes of Estate, dr.) 
 
 Edward, his real name being Edmund, the will was still held revoked, as the recovery 
 ■was good by estoppel against the testator and all claiming under him. Doe v. Llau- 
 daff, 2 New R. 491. (6) See G Yea. 221 ; 17 Ves. 134 ; 2 Hob. on Wills. 58. And 
 bo the conveyance of a testator's property, effected by his becoming bankrupt, is held 
 no revocation as to the surplus. Charman v. Charman, 14 Ves. 580.|| 
 
 J S, seised of a lease for lives, devises it ; and afterwards J. S surren- 
 ders the old lease, and takes a new one to him and his heirs for three 
 lives. Decreed by Lord Chancellor King, that this renewal of the lease 
 was a revocation of the will as to this particular. 
 
 3 P. Wms. 106, 170, Marwood v. Turner. For by the surrender of the old lease, 
 J S the testator had put all out of him, had divested himself of the whole interest, so 
 that there being nothing left for the devise to work upon, the will must fail ; and the 
 new purchase being of a freehold descendible, could not pass by a will made before 
 euch purchase. Ibid. 171. pRoburn v. Shortridge, 2 Blackf. 480.gf 
 
 So, where a testator devised by his will a leasehold estate under Mag- 
 dalen College, Oxon, and after the making of his will renewed his lease 
 by surrendering the old one, and making a new lease ; it was determined 
 by Lord Chancellor, that this was a revocation of his will. And though 
 the testator, after the renewal, looking among his papers, had said "this 
 is my will," that was held to be no republication. 
 
 MS. Rep. Sir Tho. Abnev V. Miller in Can. Trim 1743. || See Slater v. Norton, 
 16 Ves. 114; Ibid. 197 ;|| [2 Atk. 593; and 2 Ves. 418, S. C. Note.— In this case 
 there were two leases, and as to the disposition of one of them the Chancellor held, 
 that the will remained valid, because the lease was incomplete at the testator's death, 
 for although he had surrendered and accepted a new lease, yet it was not sealed with 
 the college seal, till after his death.] 
 
 [A testatrix devised all her lands, tenements, and hereditaments at W 
 in Yorkshire, and all her tithes and ecclesiastical dues out of W aforesaid, 
 or any other town or places near the same. At the time of making the 
 will, she was possessed of a lease of these tithes under the Archbishop of 
 York. After making the will, she surrendered this lease, and took a new 
 one, of which she was possessed at the time of her death. The question 
 was, Whether the renewal was a revocation of the will ? And the court 
 held, that it was ; for there is no real distinction between the words all 
 my tithes at W, and the words all my lease or interest in my lease at W ; 
 because both must refer to the interest she had at the time of making the 
 will. Then that interest did not remain at the death of the testatrix ; 
 for, by the surrender, she so far altered her interest, that what were her 
 tithes under the lease at making the will, could not be considered, under 
 the foot of this clause, as being the same at the time of her death ; but 
 she acquired a new estate in them, to commence at and run out to a dif- 
 ferent period of time. It must then be considered, that the testatrix 
 acquired a new interest subsequent the will, and, consequently, such an 
 interest as would not pass by the words used. 
 
 Rudstone v. Anderson, 2 Ves. 418. 
 
 Again, S by his will, among other devises, gave and devised unto B 
 the perpetual advowson and disposal of the living or rectory of W for 
 ever, together with the tithes of all sorts thereof. The rectory of W was 
 held by the testator by lease from New College, Oxford, for the term of 
 ten years. After the will made, the testator surrendered up that lease, 
 and took a new lease from the college for ten years more, and was pos- 
 sessed of the rectory, by virtue of that lease, at the time of his decease. 
 And the question was, Whether the devise of the advowson was revoked 
 
 3a2
 
 558 OF WILLS AND TESTAMENTS. 
 
 (H) How avoided. (Revocation by Changes of Estate, &c.) 
 
 by the surrender and renewal ? And it was held, that the surrender and 
 renewal were a revocation. 
 
 Hone v. Medcraft, 1 Brp. Chan. R. 261. 
 
 It is necessary here to observe, on these cases of revocations of wills 
 respecting leases by subsequent surrender and renewal of the lease, that 
 they turn merely on the penning of the will, viz., whether the words are 
 sufficient to pass the subsequent renewed interest, and not on any ina- 
 bility in point of law to give by will an after-taken lease ; and therefore 
 if such lease be disposed of by will by a proper form of words, it will pass 
 notwithstanding any subsequent renewal. As, if a testator give "all his 
 estate, right, and interest, he shall have to come in such lease at the time 
 of his death:" such right of renewal will pass by a general devise of the 
 residue ; or by a devise of the lease together with the right of renewal. 
 And in the latter case, if the devisor do nothing, the expiration of ths> 
 old term will not bar the devisee ; because the devise carries the right of 
 renewal as well as the lease itself. 
 
 Powell on Devises, 589. Vide Bunter and Cooke, Salk. 237 ; 1 P. Yf ras. 575 ; 
 2 Atk. 599 ; 3 Atk. 177. 
 
 Upon this principle Lord Hardwicke held, in the case of Sterling v. 
 Lydiard, that where the testator clearly meant to dispose of his whole 
 personal estate, a renewal of a lease, after the will made, was no revo- 
 cation of it. In the case alluded to, the testator devised in the following 
 manner, viz., "As to all and singular my leasehold estate, goods, chattels, 
 and personal estate whatsoever, I give the same to my daughter A :" and 
 if she died without issue living, then he limited it over in the same man- 
 ner to B. In the residuary clause the testator repeated the words "all 
 and singular, $0." After making this will, he renewed a lease with the 
 dean and chapter of Windsor. And on the question, Whether this re- 
 newal was a revocation of the will as to the lease ? Lord Hardwicke 
 said, there was no doubt but the leasehold estate passed by the will. The 
 lease here was not a specific legacy : it was nothing like it. The clause 
 was only an enumeration of the several particulars of the testator's per- 
 sonal estate, but the devise was general of the whole. 
 
 Sterling v. Lydiard, 3 Atk. 199. ' 
 
 |j Thomas James, by will, devised life leasehold lands to his wife, and 
 after her decease to his brother's daughters for such estate as should be 
 then to come therein, and directed that the fines for renewal should be 
 paid by his wife during her life, and after her decease, by his brother's 
 three daughters, as such fines became due : he then made a disposition as 
 follows, — "I give and bequeath to my wife Judith James, during her life, 
 all my messuages, lands, and tenements, in Vine Street, in the parish of 
 Lambeth, which I hold in lease under Sir William East, (the premises in 
 question,) for all the residue of my term and interest therein ; and after her 
 decease, I give, and bequeath the same to my godson Thomas James, his 
 executors and administrators, for all the residue of the term and interest I 
 shall have to come therein at my decease." The testator, at the time of 
 his will, was in possession, under a lease dated 12th August, 17(59, granted 
 by Sir William East, of the premises in Vine Street, to hold for twenty-one 
 years, from Lady-day preceding, if the lessor and two other persons should 
 so long live, with a covenant by the lessee, that, in case of the death of 
 any of the said lives (being the lives upon which the lessee held those pre-
 
 OF WILLS AND TESTAMENTS. 559 
 
 (II) How avoided. {Revocation by Changes of Estate, dc.) 
 
 mises, with others, from the Archbishop of Canterbury,) before the expi- 
 ration of the term, and the lessor should renew from the archbishop, he, 
 the lessee, his executors, &c, would pay a proportionate share, with the 
 other tenants, of the fines to the. archbishop upon any such renewal : and 
 Sir W. East covenanted, upon such renewal of the original lease by the 
 archbishop, to grant a new lease of the premises thereby demised, for tin 
 remainder of the term of twenty-one years, which should be then to come 
 and unexpired: but the lease contained no direct covenant for farther re- 
 newal. The testator died in December, 1790, the lease, which expired 
 on 25th March preceding, not having been renewed by him, but he had 
 remained in the occupation of the premises until his death, and half a 
 year's rent under this occupation had been paid by him, after the expira- 
 tion of the lease, during his life. Some time after the testator's death, 
 on the 29th March, 1791, Sir W. E. granted to Judith James a new lease 
 of the premises in question, to hold from the 25th day of March for forty- 
 two years, if three persons named should so long live. The bill was filed 
 by Thomas James named in the will, against the executors of Judith 
 James, the testator's widow, praying that the renewal by Judith James 
 might be declared to be on the trusts of the will. The answer insisted 
 that she took a lease for her own benefit ; and this was the question. The 
 Master of the Rolls dismissed the bill, on the ground that the testator 
 contemplated giving nothing beyond the interest which he had existing at 
 his death. On appeal, the Lord Chancellor considered that the equitable 
 question before him must depend on the legal question, whether, if the 
 lease had been renewed to the testator, it would have passed. The con- 
 struction depended on the whole context of the will : and his lordship 
 thought, that although there was a difference in the leases, the lease in 
 question not containing the same direct covenant for renewal which oc- 
 curred in the others, yet there was enough in the lease in question point- 
 ing that way, to lead the testator to think that the expiration of the term 
 would not put an end to the interest, and some parts of the will were 
 evidently intended to pass the renewed lease. 
 James v. Dean, 11 Ves. jun. 383. || 
 
 Again, C, in right of a prebend, in 1714, demised certain estates by in- 
 denture to one of his children for twenty-one years, and afterwards a sur- 
 render was yearly made thereof, and a new lease granted by C. The les- 
 see always executed a declaration of trust, declaring that his or her name 
 was made use of in such lease, in trust for the father for so many years 
 as he should live of the term, and then for such person or persons as he 
 should by deed or will appoint ; and in default thereof, to and among his 
 children equally. In January, 1735, C made his will, and, after giving 
 several legacies, bequeathed to his son T all the rest of his goods, chattels, 
 and estate, luhether real or 'personal, in possession and reversion, and made 
 him executor. And then came this supplemental clause: — "Item, It is 
 my mind and will, that T shall have the disposal of the lease of my pre- 
 bend of made to my daughter S, and that he shall receive to him- 
 self all the profits and advantages arising from it." Afterwards, in 
 August, 1739, a surrender and new lease was made to S, and a declara- 
 tion of trust delivered as before mentioned. Then C died ; and Lord 
 Hardwicke, upon that part of the case which related to the operation and 
 extent of the words in the will, said that the question was, Whether the 
 benefit of the renewed lease in 1739 passed to T by the will of 1735?
 
 560 OF WILLS AND TESTAMENTS. 
 
 (II) How avoided. [Revocation lnj Changes of Estate, &c.) 
 
 which depended upon the question, Whether the will of 1735 was suffi- 
 cient to pass not only the trust of the lease then in being, but also the 
 benefit of the subsequent renewals ? And he took the construction of 
 this clause in as extensive a manner as i£ the testator had particularly 
 recited and repeated the lease and declaration of trust, and given it to 
 his son ; the effect of which would have been to have given him the whole 
 trust, not the trust of the then existing term only, but also all the re- 
 newals ; and therefore extended to all future leases as well as those in 
 being. The word advantages was undoubtedly sufficient to take in all 
 the advantages and benefits belonging to the trust. It comprised not 
 only the profits but the renewals, which were consequential. The words 
 of the will were very sufficient to pass not only the trust and beneficial 
 interest then subsisting, but also the renewed lease. 
 Carte v. Carte, 3 Atk. 174.] 
 
 || So, also, Sir Thomas Cave, being seised in fee of estates, agreed by 
 marriage articles to settle the same so as to secure his intended wife's 
 jointure and the portions of younger children, and then upon his eldest 
 son and his heirs male. He then devised the same estates, in case he 
 should happen to die without leaving issue of his body at his decease, sub- 
 ject to any jointure he might make, to trustees for 500 years, on certain 
 trusts ; and subject thereto, he devised all his real estate to his uncle the 
 Reverend Charles Cave. The testator, after this will, conveyed the same 
 estates, by lease and release, to releasees, to the use of himself and his 
 heirs, till the marriage, and for default of issue, subject to a term for 
 securing his wife's jointure, to himself in fee. The testator married ac- 
 cordingly, and died without issue, leaving his sister, Mrs. Sarah Otway, 
 his heir at law ; and on an ejectment brought against the heir, on the de- 
 mise of the trustees under the will, the question was, whether the will was 
 revoked by the subsequent settlement ; and the Court of Common Pleas, 
 and afterwards the Court of King's Bench, held that it was. As the tes- 
 tator parted with the estate, notwithstanding the old use resulted to him 
 again, still the conveyance operated as a revocation, since it drew out 
 of the testator the subject matter on which the will was to operate. 
 
 Goodtitle v. Otway, 1 Bos. & Pul. 570 ; 7 Term It. 399 : and see Cave v. Holford, 
 2 Yes. 0U4. 
 
 And in the case of Vawser v. Jeffery, (where it was held, that a cove- 
 nant to surrender copyhold lands previously devised would amount to a 
 revocation, if the surrender would have that effect at law,) Lord Eldon 
 said, — " It is now settled, at least I shall so consider it, until the House 
 of Lords decides the contrary, that if a man devises a fee-simple estate, 
 and afterwards for securing a jointure, instead of limiting a jointure, 
 which would be quite enough, by lease and release, conveys the estate 
 out of which the jointure is to come to the use of himself for life, with 
 remainder to the intent and purpose that the intended wife may take a 
 rent charge, and to the use that she may distrain, and then to enter, with 
 remainder to trustees for ninety-nine years, the better to secure the join- 
 ture, with the ultimate remainder to himself and his heirs, although the 
 moment he takes the seal oft' the wax, his old estate is instantly vested in 
 himself, that is a revocation of the will." 
 
 Vawser v. Jeffery, 2 Swanst. 273 ; 16 Ves. 519. 
 
 In the above case, which was sent for argument to the King's Bench, it 
 was there, however, held, that the testator having devised copyhold lands
 
 OF WILLS AND TESTAMENTS. 561 
 
 (II) How avoided. (Revocation by Changes of Estate, drc.) 
 
 to A for life, with different remainders over, and having surrendered thein 
 to the uses of his will, and afterwards conveying his estates to trustees and 
 their heirs, to secure a jointure to his intended wife, and subject to a term 
 for that purpose to himself in fee, and having surrendered his copyhold 
 lands to those uses, that this did not amount to a total revocation of his 
 will, but that the devisee took the copyhold land, subject to the charge 
 created by the settlement. It was admitted in the argument, that a similar 
 settlement of freeholds would have been a revocation of a previous devise ; 
 but in case of copyholds, it was argued the surrender to the uses of the 
 settlement passed no more than was required for effectuating the settle- 
 ment, and the testator was still in as of his old estate. 
 
 Vawser v. Jeffery, 3 Barn. & A. 462 ; and sec S. C. 3 Iluss. 479 ; Hodges v. Green, 
 4 Russ. 28-H 
 
 If a man devises lands, and afterward mortgages the same for years, 
 and then levies a fine sur conusance de droit come ceo, and not a fine sur 
 concessit; this will be a revocation: but if there had been a fine sur 
 concessit, it had revoked only pro tanto. 
 
 Yin. Abr. tit. Devise, (P), pi. 10. 
 
 If A devises lands to B and his heirs, and afterwards mortgages the 
 same lands to J S for years, or in fee, though a mortgage in fee be a total 
 revocation at law, yet in equity it shall be a revocation pro tanto only. 
 
 1 Vera. 329, 342, 97, 141, 182 ; 1 Salk. 158, S. P. : {3 Yes. J. 085, Earl Temple v. 
 The Duchess of Chandos ; 5 Yes. J. 050, Baxter v. Dyer. See Yes. J. 218, 219, 
 221,222,223; 8 Yes. J. 126.} 
 
 || And a devise of real estate is not revoked as to the surplus by the 
 bankruptcy of the testator. 
 Charnian v. Charman, 14 Yes. 580. || 
 
 {But though a mortgage in fee, or a conveyance in fee for payment of 
 debts, is only a revocation pro tanto, yet if the conveyance operates an 
 alteration of the estate beyond the mere purpose of securing the payment 
 of debts, it is a total revocation. 
 
 Yes. J. 199, Harmood v. Oglander ; 8 Yes. J. 100, S. C. { 
 
 So, if a man seised in fee devises it to J S in fee or for life, and after- 
 wards makes a lease to J D for years, this, even at law, shall not be a 
 revocation, but during the years ; for this intent does not appear further 
 than during the term for years. 
 
 1 Roll. Abr. GIG, Montague v. Jeffries; ||Yin. tit. Devise, n.|| 
 
 So, if a husband possessed of a term for forty years, devises it to his 
 wife, and after leases the land to another for twenty years, and dies ; 
 this lease is not any revocation of the whole estate ; but only during the 
 twenty years, and the wife shall have the residue by the devise. 
 
 1 Roll. Abr. G16, Wilcox's case. 
 
 B Where a testator, after having made his will by which he devises an 
 estate to A, grants a part of it, the will attaches pro tanto, and carries 
 it to the devisee. 
 
 Brush v. Brush, 11 Ohio, 287.tf 
 
 But, if A clevises lands to B and his heirs, and twelve years after leases 
 the same lands to B for sixty years, to commence after his death, and 
 delivers the deed to a stranger, to the use of B, who does not deliver it to 
 B till after the death of A, this is a revocation of the whole estate ; for 
 both estates are not consistent nor can vest in B at the same time ; and it 
 
 Vol. X.— 71
 
 562 OF WILLS AND TESTAMENTS. 
 
 (II) How avoided. {Revocation hy Changes of Estate, dx.) 
 
 was plainly the intention of the devisor, that B should have the less 
 estate only. And it was so adjudged, though objected, that it was the 
 intention of A that B should have his liberty to take by the lease or de- 
 vise, B not having agreed to the lease in the life of A. 
 
 1 Abr. Eq. Cas. 410. 
 
 But, if the lease made to the devisee had been to begin either in prx- 
 senti or futuro, in the life of the devisor, it had not been a revocation, 
 for inasmuch as the lease might have determined in his life, it was con- 
 sistent with his will. 
 
 Cro. Ja. 49, Coke v. Bullock. ||See Baxter v. Dyer, 5 Yes. C5G.]| 
 So, where A by will devised to his younger son a certain messuage for 
 ninety-nine years, if three lives lived so long, yielding and paying to his 
 sister, the plaintiff, 20?. per annum until twelve years old, and thence 40?. 
 per annum for life : and afterwards the said A for 300?. fine demised the 
 said messuage to J S for ninety-nine years, if three lives lived so long, 
 yielding and paying 50?. per ann um to A the testator, his heirs and assigns : 
 though it was held at the Bolls to be a revocation, yet on an appeal to my 
 Lord Keeper, he decreed it to be no revocation, and that the daughter 
 should be paid her annuity ; and he said, that the rule is, where a subse- 
 quent act shall amount to a revocation by implication, it must be a neces- 
 sary implication : and the act must be wholly inconsistent with the devise. 
 
 2 Vera. 495, Lamb v. Parker ; 2 Freem. 284, S. C, says, Ld. Keeper seemed to be 
 of opinion, that it was not a revocation, because the three lives in the lease might die 
 before the testator, and then the devise would take place ; but referred it to the judges 
 of B. R. by way of a case to determine. 
 
 So, wdtere A devised lands to trustees to pay his debts, and then to 
 
 pay his wife 200?. per annum for her life ; and the testator living several 
 
 years after, his debts increased from 2000?. to 10,000?., for 8000?. whereof 
 
 his said trustees were bound, and afterwards A the testator, by deed and 
 
 fine, conveyed his lands to his said trustees to sell to pay his debts, and 
 
 the surplus to him and his heirs : though the wife joined with him in the 
 
 fine and conveyance, yet this was no revocation of the wife's 200?. per 
 
 annum, and she was decreed the 200?. per annum out of the surplus 
 
 money after the debts paid. 
 
 2 Vera. 241, Vernon v. Jones ; 2 Freem. 117, S. C, says, the Lords Commissioners 
 Trevor, Bavvlinson, and Hutchins, were of opinion that the surplus being to his invn 
 right heirs, that it was still in his own power, and should be subject to his disposal by 
 the will ; and the case of Hall and Dench was cited, where, after a devise of lands, 
 the devisor made a mortgage in fee ; and adjudged, that the devisee should have the 
 
 equity of redemption. Free, in Chanc. 32, S. C. says, the lords commissioners held 
 
 that neither the mortgage and fine, nor deed of trust, should be a total revocation of 
 the will, being made for particular purposes ; but that after debts paid, the widow 
 should have the 200Z. per annum. 
 
 But in a case where Edward Earl of Lincoln had mortgaged the manor • 
 i I' S to the defendant Wynn and his heirs for 12,000?., and afterwards, hy 
 liis will, in default of issue male of his own body, devised it to Sir J ran. 
 Clinton (who was to succeed him in the honour) for his life, with remain- 
 der to his first and other sons in tail-male, with other remainders over; 
 and appointed that his household goods at his chief house at S should re- 
 main there as heir-looms to the next heir male, who should be Earl of Lin- 
 coln, and made Sir Fran. Clinton executor : afterwards the carl (who was | 
 xery whimsical) took a fancy to one Mrs. Calvert, daughter to the Lord 
 Baltimore, and fancied he should marry her, though it was proved in the
 
 OF WILLS AND TESTAMENTS. 563 
 
 (II) How avoided. [Revocation by Changes of Estate, dec.) 
 
 cause, there never was any intention of such marriage in her, or in any of 
 her relations, nor any treaty about it ; and in this fancy he makes a lease 
 and release of those premises to the defendant Davenport and Townshcnd, 
 and their heirs, (in consideration of the said intended marriage, as it was 
 expressed,) to the use of himself and heirs, till the said intended marriage 
 took effect : then as to part in trust for Mrs. Calvert and her heirs, in lieu 
 of dower, and as to the rest in trust that the trustees should sell it, to dis- 
 encumber that part limited to Mrs. Calvert, and the surplus of the money 
 to his executors and administrators. There was no farther progress to- 
 wards the marriage, and some time after the earl died without any alter- 
 ation of his will, and the honour descended to Sir Fran. Clinton, (who 
 had but a very small estate, if any,) who died soon after ; and the plain- 
 tiff, his eldest son and heir, an infant of about seven years old, brought 
 his bill to have the redemption of the mortgage, and a conveyance of the 
 estate ; and the defendants A, B, and C, who were cousins and coheirs of 
 Earl Edward, brought a cross bill, that they might redeem and have the 
 estate conveyed to them. And the only question was, Whether this lease 
 and release were a revocation of the will? It was said for the plaintiff 
 that the earl had but an equitable interest, the whole estate being before 
 mortgaged in fee, and therefore it ought to be considered according to 
 equity ; and that though such a lease and release would have been a re- 
 vocation of a devise of a legal estate, yet it will not be so here ; for the 
 reason the law goes upon in judging it a revocation is, because the lease 
 and release is a conveyance of the estate, and so ex necessitate rei a revo- 
 cation of the devise : and it is plain the law goes upon this, and not upon 
 any supposed alteration in the person's will. For if a man makes a will, 
 and thereby devises lands to J S and his heirs, and afterwards articles to 
 sell the lands to J D and his heirs, and receives the purchase-money, and 
 dies before any conveyance made, these articles will be no revocation of 
 Lis will : and yet it is as plain his mind and intention, as to those lands, 
 is altered, as much as if he had actually made a conveyance to J D, and 
 in case of an equitable interest, the lease and release makes no alteration 
 of the estate, so as to induce a necessity of adjudging it a revocation, as 
 there is in case of a legal estate: it is plain as to his intention, that he 
 did not intend any revocation or alteration of his will, unless or until that 
 marriage should take effect; for by the release it is limited, that till that 
 marriage it should continue to him and his heirs, which is just as it was 
 before : and that marriage having never taken effect, the estate continues 
 just as it was. And it cannot be pretended, that this lease and release 
 are any express revocation of his will ; and the Court of Chancery is so 
 far from following the strict rules of legal revocations, that it often relieves 
 against them. And therefore, if a man devises Blac'kacre to J S and his 
 h. -.;.-, and afterwards mortgages it to J D and his heirs, this, in law, is a 
 revocation of the devise, and yet in equity it shall be none farther than 
 to let in the mortgage ; and to this purpose were cited several cases. And 
 therefore, since the court of equity must interpose for one side or the 
 other, it was concluded it ought to interpose for the present earl, and that 
 he ought to have the redemption of the estate, as devised by the will of 
 'Earl Edward. For the defendant it was said, that such a lease and release 
 would have been a revocation of a devise of a legal estate, and that equi- 
 table estates are governed by the same rules that legal estates arc ; and 
 there is no fraud or circumvention, nor other equitable circumstances, to
 
 564 OF WILLS AND TESTAMENTS. 
 
 (II) How avoided. {Revocation by Changes of Estate, dr.) 
 
 make the court vary from that rule in this case ; and the will is in disin- 
 herison of the heir, who is always favoured in all courts. And a3 to the 
 cases put, where mortgages have been held to be no revocation in equity, 
 it was said, the reason of that is, because mortgages are not considered 
 as conveyances of the estate, but only charges upon it : and my Lord 
 Keeper was of this opinion, and decreed the plaintiff's bill to be dis- 
 missed, and the coheirs to have the redemption of the mortgage. 
 
 1 Abr. Eq. Cas. 411 ; 2 Freem. 202. Resolved, it was a revocation. And upon an 
 appeal, so held in Bom. Proc. by a majority of two lords only. [" This court," mean- 
 in"' a court of equity, " has no authority, nor has ever attempted to exercise an autho- 
 rity, to determine that revocations of wills are subject here to different rules from those 
 that would govern at law." By Lord Ch. Loughborough, 2 Ves. jun. 426. " With 
 regard to all the doctrine of revocation as applied to legal estates in courts of law, 
 courts of equity will apply the same doctrine in equity." By the Master of the Rolls, 
 2 Ves. jun. 598.] 
 
 So, where Sir John Husband, by will in writing dated the 12th of Feb- 
 ruary, 1708, devised several pecuniary and specific legacies, and then gave 
 all the rest of his real and personal estate, after all his debts and legacies 
 paid, to John Pollen, on condition he took the name of Husband upon 
 him, and the heirs male of his body, with divers remainders over : after- 
 wards by lease and release, the 80th of August, 1709, Sir John Husband, 
 together with J S his trustee, conveyed several manors and lands in the 
 county of Warwick to trustees, and their heirs, to the use of himself for 
 life, without impeachment of waste, and that the trustees and their heirs 
 should execute such conveyance arid conveyances thereof as the said Sir 
 John by writing under his hand and seal, or by his last will and testa- 
 ment, should direct or appoint ; and in 1710 Sir John died, without alter- 
 ing or revoking the said will, or making any other appointment touching 
 the said real estate: the question was, Whether this lease and release 
 were a revocation of the will or not ; the original bill of Pollen being to 
 establish the will, and the cross bill to set aside the will, and have an 
 account of the profits. And it was decreed, that the lease and release 
 were a revocation of the will. 
 
 1 Abr. Eq. Cas. 412, Pollen v. Husband. 
 
 !So if a testator, after having made his will, levy a fine to such uses 
 as he shall by deed or will appoint, and die without making any new 
 will, the will made prior to the line is revoked thereby. 
 5 Bos. & Pul. 401, Doe v. Dilmot. 
 
 A, seised in fee of the manors of Stamford, &c, and also of the manors 
 of Swinford and South Kilworth, entered into marriage articles by which 
 he agreed to settle his estates so as to secure his intended wife's 
 jointure, and the portions of younger children, and to settle the 
 Stamford estate upon his eldest son in strict settlement, subject to part 
 of such jointure and portions. He then devised all the estates, in case 
 he should die without issue and subject to such jointure as he might 
 make, to trustees for five hundred years, upon certain trusts expressed 
 in the devise. Afterwards by separate deeds of lease and release, he 
 conveyed, 1st, the Stamford estate to trustees in fee to the use of 
 himself in fee till the marriage, with divers limitations in pursuance 
 of the articles, and subject to a term of five hundred years for securing 
 pari of his wife's jointure, remainder to himself in fee; 2dly, The Swin- 
 t'oril and South Kilworth estate to trustees in fee, to the use of himself in 
 fee till the marriage, and after that to the use and intent that his intended
 
 OF WILLS AND TESTAMENTS. 565 
 
 (II) How avoided. (Revocation by Changes of Estate, dx.) 
 
 wife should take the other part of her jointure thereout if she survived 
 him, and after his death, remainder to trustees for five hundred years to 
 secure such jointure, remainder to himself in fee. He afterwards married, 
 and died without issue. It was held that the deeds of settlement, whereby 
 he parted with the whole estates devised, operated as a revocation of the 
 will, though he took back a fee by the same instruments, and though they 
 were consistent with the provisions of the will; and also that the latter 
 estate was not excepted from this revocation by the circumstance of the 
 conveyance of that estate to the trustees being merely for the purpose of 
 creating a term to secure the wife's jointure. 
 
 2 Yes. J. G04, n. ; 3 Ves. J. 050; 4 Yes. J. 850, Cave v. Holford ; 1 Bus. & Pul. 
 570 ; 7 Term, 399, Goodtitle v. Otway. Parol evidence of an intention not to revoke 
 was rejected.,' 
 
 A having issue four daughters, and no male issue, devises lands to trus- 
 tees, in trust to permit his daughter S to receive the rents and profits un- 
 til her marriage or death ; and in case she married with the consent of 
 two of the trustees and her mother, then to convey the premises to her 
 and her heirs ; but, if she died before marriage, or married without such 
 consent, then to convey to other persons : afterwards S married in the life- 
 time of her father, and with his consent, and he settled part of those lands 
 on her and her husband, and died. And it was held, that this settlement 
 was no revocation of the will, as to the devise of the other lands. 
 
 2 Yern. 720, Clarke v. Berkley. 
 
 So, J S having four daughters, A, B, C, and D, in 1705, by will de- 
 vises several parcels of his estate severally to his four daughters, and inter 
 alia he devises to trustees all his lands, tenements, and hereditaments in E 
 and F, or either of them, or near thereto adjoining, in trust for A until her 
 marriage or death ; and in case she married with the consent of her trus- 
 tees, then for her and her heirs, or for such person as she should appoint, 
 &c. But in case she married without consent of her trustees, and forfeited 
 her estate, then to her other sisters equally among them, &c. In 1708 the 
 plaintiff Clarke married A with the consent of J S, and he settles upon the 
 marriage (his wife, who had these lands in jointure, joining with him) part 
 of these lands devised to her by his will, after the death of her mother, and 
 also 11. per annum in fee-farm rent, which was doubtful if it passed by the 
 will or not. In 1709 J S died without altering his will. (Note, J S, in a 
 letter to Clarke upon the treaty of marriage, declared what he would give 
 him with his daughter in present, and that she would be a better fortune 
 at his death.) Quere, If this devise to A in fee, upon condition of mar- 
 rying with the consent of trustees, be dispensed with or performed by 
 her marrying in J S's lifetime, and with his consent ? And Cowper, C. 
 was of opinion, that by the marriage with the consent of the father, the 
 condition is dispensed with, and the devise become absolute. 
 
 Yin. Abr. tit. Devise (U), pi. 11 ; Clarke et ux. v. Lucy et al. For, per Lord Chan- 
 cellor, conditions of this kind, be the conditions precedent or subsequent, arc in nature 
 of penalties and forfeitures ; and if the substantial part and intent be performed, equity 
 should supply small defects, and favour the devisee ; and his lordship observed, that it 
 was admitted that here was no forfeiture ; and said, should he take away the estate 
 from the first devisee, when it cannot go to the devisee over, it would descend to heirs 
 at law, which certainly was never the intent of the testator. One question in this case 
 was, If the father giving and settling, upon A's marriage, part of the lands devised 
 to her by the will precedent to the marriage, be a revocation of the whole devise to her, 
 or only pro tanto, as was settled on her upon the marriage? And Lord Chancellor 
 
 3B
 
 566 OF WILLS AND TESTAMENTS. 
 
 (H) How avoided. [Revocation brj Changes of Estate, &c.) 
 
 held, that the lands settled by the father, upon the marriage of A, is a revocation only 
 pro tanto of the lands devised to her, and not of the whole devise; for implied revo- 
 cations ought to be plain and certain, and the inconsistency most apparent, which is 
 not so in this case : for why may not the father give his daughter all these lands at his 
 death, though it was not proper for him to part with them all in his lifetime ? Though 
 he gave part by deed, why may he not give her the rest by will ? Decreed for plain- 
 tiff, the wife, for all the lands devised to her by will. Ibid. ; and see ante, 2 Vera. 
 720. Clarke v. Berkley, &c. 
 
 B, in 1714, by lease and release, conveyed certain estates in II to him- 
 self for life, remainder to his first and other sons in tail, remainder to B 
 for life, remainder to his first and other sons in tail, remainder to the 
 right heirs of B, subject to a power of revocation by any deed or writing 
 under his hand and seal, &c, so as that, at the time of such revocation, 
 he settled other land in Yorkshire free from encumbrances to the same 
 uses. B afterwards made his will in 1729, and thereby, among other 
 things, devised all his lands in Yorkshire and elsewhere to trustees upon 
 trusts therein mentioned. Then B, in 1730, by lease and release, in- 
 tended by him as an execution of the power of revocation reserved in the 
 former deeds, conveyed a distinct estate in Yorkshire to the uses of the 
 former settlement in 1714, but this estate was deficient in value and sub- 
 ject to a term for securing children's fortunes, and, therefore, the settle- 
 ment of it not a good execution of the power reserved in the former deed. 
 But the lease and release, in 1730, being made subsequent to the will of 
 1729, was clearly held to be a revocation of the will quoad the devise of 
 the Yorkshire estate, as part of all the testator's lands, &c, in Yorkshire 
 mentioned to be devised by the will ; and that estate therefore was not 
 subject to the trusts created thereby. 
 
 Burgoyne v. Fox, 1 Atk. 57G. 
 
 So where a man by his Avill gave an estate in fee to one of his sisters, 
 and after this made a marriage settlement, wdierein he limited the estate in 
 strict settlement, remainder to his own right heirs ; that settlement was 
 held, notwithstanding the remainder was limited to his own right heirs, 
 and so the old use, to be a revocation of the whole devise to the sister. 
 
 Martin v. Savage, Barnard. 189 ; S. C. cited 1 Yes. 440. 
 
 Again, it was held by Lord Hardwicke, in the case of Bennet and Wade, 
 that a recovery suffered of land after a will made, gave a new estate therein 
 to the tenant to the praecipe, although the limitations were to the old uses : 
 and, consequently, that a will thereof made previously was revoked by it. 
 
 Bonnet v. Wade, 2 Atk. 325 ; (5 Bos. & Pul. 491, Doe v. Bishop of Landaff, S. P.} 
 
 Again, A, being under his marriage settlement tenant for life, with re- 
 mainder to trustees to preserve contingent remainders, with remainder to 
 his first and other sons in tail, remainder to himself in fee, made his will, 
 and thereby devised and settled estates as in his will mentioned ; and then, 
 by indenture of lease and release, conveyed the same hereditaments to B, 
 his heirs and assigns for ever, and afterwards, by another indenture, recit- 
 ing the foregoing lease and release, and that the same was to make B ten- 
 ant to the praecipe, for suffering a recovery, the uses whereof were therein 
 declared, as to the lands in question, to be to himself and his heirs. Then 
 a recovery was suffered, after which A the testator died without republish- 
 ing his will, and without there having been any issue of the marriage. The 
 question was, Whether the deeds executed and the recovery suffered were, 
 under the circumstances of this case, a revocation of the will ? The coun-
 
 OF WILLS AND TESTAMENTS. 567 
 
 (II) How avoided. {Revocation by Changes of Estate, &c.) 
 
 sel for the devisee argued that, in this case, the deeds and recovery did 
 not amount to a revocation, the same being executed and suffered by A 
 ■without any intention appearing upon the state of the case to alter or re- 
 voke his will ; that a recovery by tenant for life, remainder to trustees, 
 &c, was a nullity, an innocent recovery, and in this case nugatory ; that 
 A's estate for life was not devisable ; that all he could devise was his re- 
 version or remainder in fee, and that thereof he could not suffer a recovery ; 
 that the recovery thereof only operated on his life-estate, which amounted 
 to nothing. But the Court of Common Pleas afterwards certified, that the 
 deeds executed, and the recovery suffered, were a revocation of the will, 
 but did not give their reasons for this decision. But the ground thereof 
 seems to have been, that, by the recovery, A drew the whole interest in the 
 land to himself, and got one entire fee, a total new estate in fee which 
 could not be defeated but by the entry of the trustees to preserve contin- 
 gent remainders; and that his former estate for life, with contingent re- 
 mainders, «fec, and remainder over in fee, were all gone, until the trustees 
 should enter for the forfeiture, which they never did : so that A died seised 
 of an estate in fee in possession of the lands comprised in the settlement, 
 which was a different estate from that which he had when he made the will. 
 Darley v. Parley, 3 Wils. 6 ; S. C, 7 Bro. P. C. 177.] ||Seo Lord Loughborough's 
 remarks in Brydges v. The Duchess of Chandos, 2 Ves. jun. 430. || 
 
 A made his will, and thereof his brother executor, and devised unto 
 his executor all his estate both real and personal, and four years after- 
 wards he marries, and then by a codicil makes his wife his executrix. 
 And the question was, Whether the brother should have the personal es- 
 tate ? And it was urged that he should ; for he does not take it as exe- 
 cutor only, but by express words of gift in the will, and it appears that 
 there was not only a benefit intended him as executor, for even the real 
 estate was devised to him ; but it being in proof that he had not any real 
 estate in the world, it was said by my Lord Chancellor, that the personal 
 estate was designed him only as executor : and it was thereupon decreed 
 for the widow, the executrix. 
 
 2 Vern. 23, Wilkinson v. . 
 
 An alteration of circumstances has been considered as an implied revo- 
 cation. Thus, 
 
 J S, being a bachelor, made his will, and devised a legacy of 500/. to 
 his brother, and other legacies to other persons, and devised his real es- 
 tate to Eliz. Close and her heirs ; and afterwards intermarried with the 
 same Eliz. Close, and died, leaving her privement enseint with a son, 
 without making any alteration in his will ; and the main question in the 
 case was, Whether this alteration in the testator's circumstances did, of 
 itself, without more ado, amount to a revocation ? Those who argued for 
 its being a revocation, relied on the case of one Ayres,(a) in which it was 
 resolved by the judges, that where a man that was unmarried made 
 a will and devised away his estate, and afterwards married and had a 
 child, and died without making any revocation of his will, this alteration 
 of circumstances was, in itself, a revocation of the will. And a case was 
 cited out of Cicero,(7>) where one, thinking his son dead, devised his estate 
 to another ; yet the son returning, it was held he should have it, because 
 it was not to be supposed he would have disinherited him without reason. 
 On the other side it was argued, that though alteration of circumstances 
 may, in some cases, amount to a revocation of a will, jet it does not in
 
 568 OF WILLS AND TESTAMENTS. 
 
 (II) How avoided. {Revocation by Marriage, dr.) 
 
 this case ; for there is nothing but what a reasonable man might do, no- 
 thing unjust or unjustifiable. It appeared he had an intention of marry- 
 ing Eliz. Close when he made his will, though perhaps he might not know 
 when he died that his wife was eJiseint, or if he did, yet it is not uncom- 
 mon for many who are kind to, or fond of their wives, to leave their, 
 children wholly in their power, to make them the more dutiful to her, and 
 that he must know the son would be the wife's heir, as well as his ; and 
 would have the estate as such, if she did not dispose of it from him. 
 Lord Keeper was clearly of opinion, that alteration of circumstances 
 might be a revocation of a Avill of lands as well as of a personal estate ; 
 and that, notwithstanding the statute of frauds and perjuries, which does 
 not extend to an implied revocation ; but no such alteration appears here, 
 for no injury is done any person ; for those are provided for, whom the 
 testator was bound to provide for, and so establish the will. 
 
 1 Abr. Eq. Cas. 413, Brown v. Thompson, 1 P. Wms. 304, in a note : this reporter 
 says, that this case was heard at the Bolls, 8 Dec. 1701, where Sir John Trevor held, 
 that a subsequent marriage, and having children, was a revocation of a will of land, and 
 dismissed the bill of the legatees, claiming legacies charged on the estate by such will. 
 And the reporter adds, that he finds in the registrar's book, that Wright, Lord Keeper, 
 in July following, reversed the order of dismission, and decreed the payment of the 
 legacies, (a) 1 P. Wms. 304, S. C. cited by Sir John Trevor, Master of the Polls, 
 and appears to have been the case of Eyre v. Eyre, said to be reported to Sir John 
 by Treby, C. J., and some eminent civilians. Ibid, in a note. {1 Wash. 140, Wilcox 
 v. Kootes, S. P.} (6) Vide Cic. do Oratore, Cantab, ed. p. 09, 102, &c. ; Dig. L. ult. 
 de IIa3red. Inst. [Upon the principle which the Master of the Polls went upon in 
 Brown v. Thompson, it was decided in the Exchequer, upon a will made by one in the 
 lifetime of a former wife who died without issue, whereupon he married a second wife 
 by whom he had issue ; that the testator's second marriage, and having issue by that 
 marriage, was a total revocation of the will made in the lifetime of the first wife. 
 Christopher v. Christopher, cited in 4 Burr. 2182, in Scacc. 1771. See also Welling- 
 ton v. Wellington, 4 Burr. 2171. — The same question occurred in the case of Spragge 
 against Stone. In this case there were two wills. The first will was made in Jamaica 
 in 1704, by which the whole estate, real and personal, was devised to a stranger. The 
 testator married in 1705, and had issue in 1760. Afterwards, on the 10th of October, 
 1700, the testator made another will, which was in his own handwriting, but not duly 
 attested according to the statute of frauds, by which he devised his estate, real and per- 
 sonal, to his wife in trust for his son. It had been decreed in the Court of Chancery 
 in Jamaica, that the marriage and birth of a child, and the second will, amounted to 
 a revocation as to the personalty, but not as to the real estate. But on appeal to the 
 privy council, (Parker, Chief Baron, De Grey, Chief Justice, and Sir Eardly Wilmot, 
 being present,) the decree as to the real estate was reversed, and it was declared, that 
 the subsequent marriage and birth of a child were, in point of law, an implied revoca- 
 tion of the will of 1704. No notice was taken of the second will in the order of re- 
 versal. Spragge v. Stone, at the Cockpit, £0th March, 1773, cited in Dougl. 35.] 
 j In the case Ex parte the Earl of Ilchester, 7 Ves. J. 348, 300, it was held by Lord 
 Eldon, assisted by Sir AVm. Grant and Lord Alvanley, that a second marriage and 
 the birth of children, if the wife and children were provided for by settlement, and 
 there were children by the former marriage, was a case of exception from the rule 
 that marriage and the birth of a child revoke a will. — Qua're whether the birth of 
 more children subsequent to the date of the will, and then the testator's second mar- 
 riage, bv which he has no children, are a revocation. 4 Ves. J. 840, Gibbons v. Count. } 
 ||See Doe v. Lancashire, 5 Term B. 49 ; Ex parte Earl of Ilchester, 7 Ves. 348.|| 
 
 {A by will provided an annuity for B with whom he cohabited; and 
 directed his trustee and executor, out of his real estate, in case he should 
 have any child or children by B, to raise 3000Z. to be paid to and amongst 
 his said children ; and devised the remainder of his estate over to several 
 of his relatives. Afterwards he married B and had several children by her.
 
 OF WILLS AND TESTAMENTS. 569 
 
 (II) How avoided. [Revocation by Marriage, d-c.) 
 
 Such subsequent marriage and births did not revoke his -will, the objects 
 having been contemplated and provided for. 
 5 Ves. J. G63 ; 2 East, 530, Kennobel v. Scrafton. } 
 
 Though marriage and the having of children has been deemed a revo- 
 cation of a will, yet it is only a presumptive revocation ; for if it appears 
 by any expression, or other means, to be the intent of the devisor, that his 
 will should continue in force, the marriage will be no revocation of it. 
 
 1 Ld. Raym. 441, Lugg v. Lugg; ||2 Salk. 592, S. C.|| /3See Coates v. Hughes, 
 3 Binn. 498; Tomlinson v. Tomlinson. 1 Ashm. 224.gf 
 
 [Thus, J N seised in fee, inter alia, of the estates in question, in June, 
 1770, being a widower without children, and his sister A being his heir at 
 law, made his will in writing duly attested, and thereby devised the same 
 estates to trustees, to the intent that the chancellor, master, and scholars 
 of the University of Cambridge, and their successors, should receive an 
 annuity thereout upon trust to be applied as directed, in a book covered 
 with marble paper, of his own handwriting, &c, by the will referred to ; 
 and subject to and chargeable with the said annuity, and the powers and 
 remedies for recoverv thereof, in trust for his own right heirs and assigns 
 for ever. The ivill did not contain any devise of any other part of the testa- 
 tor s real estate. After making this will the testator married ; but previous 
 to the marriage, and after making the will, he conveyed certain lands, of 
 the annual value of 12301., to trustees for the purpose of securing to his 
 intended wife a clear yearly sum of 800?. in case there should be no son 
 of the marriage, and 6001. if there should be a son, by way of jointure and 
 in bar of dower, with remainder to himself in fee. The estates devised by 
 the will were not comprised in this conveyance. The testator had issue 
 of the said marriage one daughter. After her birth, he, continuing seised 
 as aforesaid, subscribed his name to another paper-writing in the presence 
 of three witnesses, who, at his request, subscribed their names thereto in 
 his presence and in the presence of each other, the effect of which was as 
 follows: viz., "Memorandum of what J N said in the presence of A, B, 
 and C on the day of , that as his will was made before he mar- 
 ried a second time, he had there devised his estate to his heir male ;" and 
 then, after mentioning other circumstances, it states, " that he also particu- 
 larly devises, that the college gift may be paid and disposed as he has in 
 the said will directed. The parchment book respecting the college gift is 
 to stand. Mr. B had instructions for this and drew it up." But, before 
 the signing of this paper by J N, he struck out this latter part of the me- 
 morandum by drawing his pen across it, saying to the person who reduced 
 it into writing, " You may draio your pen through what you have new 
 written, for there is a parchment book with the will in the hands of B 
 that mentions all about it." Soon after this the testator died. And one 
 question Avas, Whether this will, and the devise therein to the charity, 
 was revoked by the subsequent marriage and birth of a child ? And it 
 was held that it was not; for a subsequent marriage and birth of a child 
 affording a mere presumption, which in this case, as in every other, might 
 be rebutted by every J 1 } sort of evidence, the declaration of the testator, 
 as to drawing the pen through the latter part of the instrument last 
 executed, and referring to his will as a subsisting instrument, was decisive 
 evidence to rebut the presumption, that the change of his circumstances 
 furnished an intent to revoke. 
 
 Brady v. Cubitt, Dougl. 31. {i j Vide 4 Ves. J. 848 ; 5 Ves. J". GG4 ; 2 East, 530. j 
 
 Vol. X.— 72 3 b 2
 
 570 OF WILLS AND TESTAMENTS. 
 
 (II) How avoided. {Revocation by Marriage, <£c.) 
 
 But it does not seem that either of these circumstances, viz., marriage 
 and the having of children, would singly suffice to raise the presumption 
 of an intended revocation. 
 
 A testator having made his will, after some small legacies to his collatei al 
 relations, constituted his wife residuary legatee. After the making of the 
 will, viz., in 17G3, his wife was brought to bed of a daughter, upon 
 whose birth the testator added a codicil, whereby he directed that the 
 legacies should be paid, and that an annuity of 300£. per annum should 
 be secured on the residuum and paid to his daughter. The codicil and 
 will were found together. In 1765 another daughter was born, and in 
 1768 a son, who was a posthumous child, the testator being dead about 
 six months before his birth. And the question, on a case sent out of 
 Chancery by Lord Camden for the opinion of Sir George Hay, was, 
 Whether the subsequent birth of children was a revocation of this will ? 
 And it was determined, that the subsequent birth of children, even in 
 case of personalty, did not amount to a revocation. 
 
 Shepherd v. Shepherd, Dougl. 38, note (10).] 
 
 || But it is now settled that marriage, and the birth of a posthumous child, 
 are facts which impliedly revoke a will of lands made before marriage. 
 And Lord Kenyon, in expounding the rule, and referring to the civil law, 
 from whence it is taken, said, that it did not so much depend on the pre- 
 sumption of intention to revoke as on a tacit condition annexed by legal 
 construction to the will, that in such an event the will should not stand. 
 
 Doe v. Lancashire, 5 Term R. 49. 
 
 But where the testator had married and had children before the will, and 
 afterwards made a will, and then married again, and had children by the 
 second marriage, who were provided for by settlement, this was held an 
 exception to the rule in question, and the will was held not revoked. 
 
 Ex parte Earl of Uchester, 7 Ves. 348. 
 
 It is settled, that the revocation only takes place where the children 
 of the second marriage are unprovided for. 
 Kennebel v. Scrafton, 2 East, 530. 
 
 And the birth of a posthumous child alone is not a revocation, though 
 
 the testator die without leaving children, and do not know of his wife's 
 
 pregnancy, the court not choosing to go beyond the principle of Doe v. 
 
 Lancashire. 
 
 Doe v. Barford, 4 Maule and S. 10; Shepherd v. Shepherd, 5 Term R. 51, n. Whe- 
 ther the marriage alone of a woman is sufficient to revoke her will, see Forse v. 
 Hembling, 4 Rep. Gl a, and jwst. /3ln Pennsylvania, the birth of a child is, of itself, 
 sufficient to revoke the will so far as respects the share or proportion of the estate of 
 such child's father. M'Knight v. Read, 1 Whart. 213. £j 
 
 And where two unmarried sisters, under twenty-one, had made mutual 
 wills in each other's favour, and one married, it was held no revocation 
 of the will of the other. 
 
 Hinckley v. Simmonds, 4 Ves. 1G0. 
 
 j3 A feme sole makes a will, marries, and survives her husband ; the 
 will is valid. 
 
 Wood v. Bullock, 3 Hawks, 298.0 
 
 And where the testator, being a widower, having a son and two daugh- 
 ters, by will gave all his real and personal estate in trust for those children, 
 and in case of their deaths, over, and while they were living married again
 
 OF WILLS AND TESTAMENTS. 571 
 
 (II) How avoided. (Revocation by Marriage, &c.) 
 
 and had a daughter, it was held by Sir W. Grant, that the second marriage 
 and birth of the daughter was no revocation of the will. In all the cases, 
 the effect of the revocation had been to let in an after-born heir to an estate 
 disposed of by will before his birth. The condition implied in those cases 
 was, that the testator, when he made his will in favour of a stranger or 
 remote relation, intended that it should not operate if he should have an 
 heir of his own body. In this case there was, he said, no room for the 
 operation of such a condition, as the testator had children at the date of the 
 will, of whom one was his heir apparent, who was alive at the time of the 
 second marriage, of the birth of the children by that marriage, and of the 
 testator's death ; upon no rational principle, therefore, could the testator 
 be supposed to have intended to revoke his will on account of the birth of 
 other children, those children not deriving any benefit whatever from the 
 revocation, which would have operated only to let in the eldest son to the 
 whole of that estate which ho had by the will divided between that eldest 
 son and the other children of the first marriage. In this case the Ecclesi- 
 astical Court had decided that the will was revoked as to personal estate. 
 
 Sheath v. York, 1 Ves. & B. 300. 
 
 Before the doctrine was settled as to real estate, it had been settled 
 by the Ecclesiastical Courts, with the concurrence of the common-la w 
 judges, sitting in the Court of Delegates, that marriage and the birth of 
 a child would amount to a revocation of a will of personal property ; and 
 even the implication arising by marriage and birth of children may give 
 way to circumstances. 
 
 Forse v. Ilembling, 4 Rep. 61 a, and post, 580. 
 
 Thus, where a man made his will, and thereby bequeathed legacies, and 
 appointed his wife residuary legatee, his wife died, and the testator married 
 again, and had one child by the second wife. He afterwards embarked 
 with his second wife and her son, and all the children of the first marriage. 
 The ship in which they embarked was never afterwards heard of, and was 
 admitted to be lost. After a full and ingenious argument on both sides, 
 Sir William Wynne delivered the judgment of the Ecclesiastical Court, 
 holding, that, under the special circumstances of the case, there was no 
 ground on which to presume a revocation of the will. 
 
 Wright v. Netherwood, Salk. R. (Evans's edit.) ; 2 Rob. on Wills, 117. 
 
 In a late case in the Ecclesiastical Court it was held, that the birth of 
 children alone may, in certain circumstances, be sufficient to ground a 
 presumption of revocation ; Sir John Nicholl saying, he could not help 
 thinking that the concurrence of marriage was not an essential part, and 
 that the birth of children, after the making of a will by a married man, 
 may have imposed as strong a moral duty upon him, forming the ground- 
 work of presumed intention, and may be accompanied by circumstances 
 for making as indisputable proof of real intention, as if the will had been 
 made previous to the marriage. 
 
 Johnson v. Johnson, 1 Phill. R. 477 ; and see Ilollway v. Clarke, 1 Phill. R. 341 ; 
 Gibbons v. Count, 4 Ves. 848. 
 
 And a second marriage and birth of a child have been held, in the 
 same court, a revocation of the will of a widower, notwithstanding the 
 child died in the lifetime of the testator. 
 
 Emerson v. Boville, 1 Phill. 342.|| 
 
 [A being at variance with his wife, by his will, made in 1739, and exe-
 
 572 OF WILLS AND TESTAMENTS. 
 
 (II) How avoided. [Revocation by Changes of Estate, d*c.) 
 
 cnted at a tavern, gave all his estate, real and personal, to his brother, 
 and made him executor. And in 1740, A, by a deed poll, gave and 
 granted to his wife all his substance which he then had or might there- 
 after have. The question was, Whether this will was revoked by the 
 deed poll ? Et per Lord Chancellor, The latter instrument cannot take 
 effect as a grant or deed of gift to the wife ; because the law will not per- 
 mit a man to make a grant or conveyance to his wife in his lifetime, 
 neither will a court of equity suffer the wife to have the whole of the hus- 
 band's estate while he is living ; for it is not in the nature of a provision, 
 which is all the wife is entitled to. But then, another consideration re- 
 mains, viz., though it cannot take effect as a grant to the wife, yet, whe- 
 ther it be not an act so inconsistent and repugnant to the will, that it 
 may, though an act not strictly legal, amount to a revocation ? And his 
 lordship said, that he was of opinion it was, and declared, that the will 
 was revoked as to all the personal estate by the deed poll. 
 
 Beard v. Beard, 3 Atk. 72. || These imperfect instruments arc revocations, not on 
 the ground of indicating an intention to revoke, but because they import an inten- 
 tion of altering the condition of the estate, which the law holds to be an act of revo- 
 cation. See per Lord Ilardwicke, Ambl. 216 ; 2 Atk. 598; 7 Term 11. 41G.|| Note. 
 The deed poll only extended to personal estate. 
 
 || Where a tenant to the prcecipc is made for the purpose of suffering a 
 recovery, and no other proceedings are had, a previous will is neverthe- 
 less revoked. 
 
 Harmood v. Oglander, C Yes. 199. 
 
 W T hether a deed, intended to operate as an appointment to uses, but 
 
 incapable of operating as a valid appointment from a deficiency of power 
 
 in the party executing the deed, or a neglect of some formality necessary 
 
 in its execution, may still have effect as a revocation of a will, does not 
 
 seem clearly settled ; though Lord Kenyon, in one case where the point 
 
 was not adjudicated, thought the deed was a revocation. 
 
 Shove v. Pinck, 5 Term R. 124, 310 ; and see Lord Alvanley's observations, 7 Ves. 
 374, where it was decided that a testamentary appointment of a guardian was not re- 
 voked by a subsequent testamentary appointment not executed according to the statute 
 and not strictly importing revocation ; || and see Eilbeck v. Wood, 1 Russell, 564. || 
 
 The testatrix, b}^ will duly executed, devised all her freehold property 
 to trustees for the use of B, and seven days after executing the will, she 
 conveyed a part of her property to trustees for a charitable foundation, 
 pursuant to the statute of mortmain, 9 G. 2, c. 36, and nine days after- 
 wards she made a codicil, attested by three witnesses, to be taken as part 
 of her will ; by which codicil she appointed another trustee, and ordered 
 her money out on mortgage to be first applied in payment of her debts. 
 The testatrix died within twelve months after the deed was executed pur- 
 suant to the statute. The third section of the statute provides, that no 
 lands shall be given for charitable uses, unless by deed executed before 
 two witnesses, twelve months before the death of the donor. The court 
 held, that the will was not revoked by the indenture. 
 
 .Matthews v. Venables, 2 Bing. R. 136. 
 
 Where a deed is void as being covinously made, it seems clearly held 
 to be incapable of operating as a revocation for its complete nullity ; and 
 in a court of equity, a deed obtained by fraud or compulsion, has, in a case 
 before Lord Thurlow, been held equally inoperative against a subsisting will. 
 IJis lordship observed, that the reason against admitting such an instrument
 
 OF WILLS AND TESTAMENTS. 573 
 
 (II) How avoided. [Revocation by Changes of Estate, d'r.) 
 
 to have the effect of a revocation was strong in that court, since, .when 
 aj plication is made by a proper party, it will be ordered to be delivered 
 up, and then it is implicitly declared to be no need. 
 Uawcs v. Wyatt, 3 Bro. C. C. 15G; and see 7 Ves. 348 ; G Vos. 215. || 
 
 M made her will, and thereby devised a messuage in L, to her sister 
 for life, and after her decease to trustees to sell the same, and to apply 
 100?., part of the produce thereof, to A, and other parts to other persons, 
 and gave the residue to C. After the making of the will, the testatrix 
 sold the estate for 2500?., part of which was left on mortgage of the estate, 
 and the remainder laid out in the purchase of stock. Then the testatrix 
 died without republishing the will ; and the question was, Whether this 
 sale was a revocation of the will ? And it was held that it was, for there 
 was an absolute disposition made by the will, and, before that could take 
 effect, another absolute disposition inconsistent with it. 
 
 Arnold v. Arnold, 1 Bro. Ch. R. 401.] 
 
 A devise was made of a term carved out of an inheritance for ninety- 
 nine years, before the statute of 3 & 4 W. k M. c. 14, of fraudulent de- 
 vises, in trust to pay 14?. per annum to a grand-daughter for life ; and 
 after the making of this will, the devisor mortgaged this land for live 
 hundred years (which is a revocation in law for the term, but the devisee 
 has an equity to redeem the mortgage ;, the mortgagee assigns over the 
 mortgage to the plaintiff, who was a creditor by bond to the testator, and 
 the reversion in fee descended to the testator's heir at law. Per Cowper, 
 Chancellor, — The mortgage is a revocation pro tanto of the devise of the 
 annuity, and she must keep down the interest, or pay a third part of the 
 redemption ; but being a devisee, she may redeem the mortgage without 
 paying the bond. 
 
 Yin. Abr. tit. Devise (Y), pi. 2, Saunders v. Hawkins. 
 
 A devises lands to an executor for payment of debts, and recites that 
 a particular schedule of them was annexed to the will, remainder over. 
 Afterwards he mortgages part of the said lands, and pays most of the 
 schedule debts with the money. And it was decreed, that this mortgage 
 is not a revocation, either in all or part, and that the will ought to ex- 
 tend to all the debts that should be owing at the time of his death, and 
 not to the schedule debts only ; and that the mortgage was only a security, 
 and not an appointment how it should be made. But this decree was 
 reversed, though without prejudice to the heir at law. 
 
 Yin. Abr. tit. Devise (11), G, pi. 25, Bernardiston v. Carter. 
 
 If lands are devised to one in fee, and afterwards mortgaged to the same 
 devisee, it is a revocation in toto, being inconsistent with the devise ; 
 though it was agreed, if the mortgage had been to a stranger, it had been 
 a revocation quoad the mortgage only.* Decreed per Lord Macclesfield. 
 
 Tree, in Chan. 514, Harkness v. Bayley ; {5 Yes. J. G5G, Baxter v. Dyer,_expressly 
 conird, and this ease said to be totally misreported. Ibid. GG4, Peach v. Phillips, also 
 contra.} \\ But sec Lord Eldon's note of this case, 5 Yes. 6G1, from which it appears 
 the transaction was not a mortgage, and the conveyance was clearly inconsistent with 
 the devise ; and Lord Eldon accordingly, in Baxter v. Dyer, 5 Yes. G5G, held, that a 
 mortgage to the devisee was not a revocation of the devise.|| 
 
 J S, by his will, gives his daughter 500?. for her portion, and afterwards 
 marries her to A, and gives her 300?. for her portion in marriage, and 
 lived four years after, without revoking his will. Afterwards the husband
 
 574 OF WILLS AND TESTAMENTS. 
 
 (II) How avoided. {Revocation by Changes of Estate, cf-c.) 
 
 is a bankrupt, and the assignees brought a bill against the father's executor 
 for the 500/., or at least to recover 200/. to make up the portion tantamount 
 to the 500/. legacy. Lord Chancellor Parker with great clearness held, 
 that giving a daughter a portion by will, and afterwards a portion in mar- 
 riage, is by the law of all other nations, as well as Great Britain, a revoca- 
 tion of the portion given by the will ; and dismissed the bill with costs. 
 
 1 P. "Wms. G81, Hartop v. Whitmore ; Prec. in Chan. 541, S. C, states it thus: 
 J S by will gave 30.07. portion to M his daughter, if she married with her mothers 
 consent, but if not, then 200/. only ; M afterwards, in the lifetime of her father and 
 mother, married without the consent of either of them, but the father was afterwards 
 prevailed on to give her 200/. and died without altering his will. M's husband after- 
 wards becoming a bankrupt, his assignees brought a bill to have the 300/., or at least 
 the 200/. given M by her father's will ; but the bill was dismissed, for that the 200/. 
 given by the father in his lifetime was a satisfaction of the legacy, and a revocation of 
 the will as to that portion ; and the 300/. was to take place on her marrying with her 
 mother's consent, which could only be intended after the father's death, and conse- 
 quently the legacy never became due at all. [Vide supra Legacies (D).J 
 
 Testatrix having three daughters, A, E, and M, by will devised 1000/. 
 to A, 800/. to E, and 500/. to M. After this will was made, plaintiff 
 courted A, and upon a treaty of marriage, testatrix gave a note for 500/. 
 payable within six months after the marriage to plaintiff, in augmentation 
 of her daughter's portion left by her father ; and the next day the mar- 
 riage w T as had ; and upon the same day the testatrix AYas taken ill, and 
 died six days after, without altering or making a new will : but she de- 
 clared, that she intended that her daughter A should have but 1000/. 
 from her, and that now since she had given her this 500/. she must alter 
 her will ; and sent for an attorney to do it; but when he came she was 
 light-headed, and died soon after. And it was said by the defendants, 
 the executors, that the testator's assets were not sufficient to pay the 
 plaintiff the 500/. upon the note, and the 1000/. legacy, and likewise the 
 legacy left to the other two daughters. And two points were made : first, 
 If this 500/. note shall be taken in part of satisfaction of the 1000/. lega- 
 cy? Secondly, If parol evidence shall be admitted to prove the intent 
 of the testatrix ? And per Lord Chancellor Parker, — The circumstances 
 of testatrix and her family may be given in evidence to expound the will, 
 but not any parol declarations to explain the words of the will, or to con- 
 trol it ; that in this case there is no doubt upon the words of the will ; 
 but the question is, If the testatrix has not advanced part of the legacy 
 in her lifetime upon the marriage of her daughter ? And the evidence 
 is only as to the satisfaction ; and thereupon his lordship admitted the 
 evidence to be read; and directed the Master to see if there were assets 
 sufficient to pay all the legacies ; and upon report, the court to determine 
 as to the quantum due to the plaintiff. 
 
 Yin. Abr. tit. Devise (Y), 2, pi. 10, Pepper ct ux. v. Winyeve et ux. 
 
 J S devised to M his wife six houses in bar of dower, and, subject to 
 his legacies, he devised (the rest of) his real and personal estate to his two 
 daughters and their heirs, in moieties ; and afterwards, in consideration 
 of the marriage of A his eldest daughter with B, J S by marriage articles 
 covenanted to settle one moiety of his real estate to the use of himself for 
 life, remainder to the use of the said B and A his intended wife for their 
 lives, remainder to the younger children of the marriage in tail general, 
 remainder to the said B in fee ; and also covenanted that he would stand 
 possessed of one moiety of all such personal estate as he should leave at
 
 OF WILLS AND TESTAMENTS. 575 
 
 (II) How avoided. [Revocation by Changes of Estate, dr.) 
 
 his death (subject only to his debts, and such legacies as should amount to 
 5000/.) in trust for B and his said intended wife for their lives, and after- 
 wards to be paid to their younger children. Lord Chancellor King held, 
 that though this was but a covenant, and therefore at law no revocation of 
 the will by which the testator had disposed of his real estate, yet that the 
 same being for a valuable consideration, was in equity tantamount to a 
 conveyance, and, consequently, in equity a revocation of the will as to the 
 moiety of the six houses devised to the testator's wife, so that B was entitled 
 to one clear moiety of the real estate, and to an account of the rents, &c, 
 thereof, from J S's death ; but as to the six houses devised to the testator's 
 wife, it being his intent that she should have them, the court held, that she 
 should have a satisfaction out of the remaining moiety, and that the wife 
 should not suffer by the marriage-articles, there being enough out of the 
 other moiety to supply and satisfy the devise of the six houses to her. 
 Therefore, as to the other moiety of the real estate, it was decreed, that the 
 testator's widow was to have for her life six houses, part thereof, and 
 the residue of such moiety subject to the wife's estate for life in the six 
 houses to be divided between the two daughters equally. 
 
 2 P. Wnis. 328, Rider v. Wager. And his lordship thought this case the stronger, 
 because, after the marriage-articles entered into J S had executed a codicil, confirm- 
 ing his will subject to the articles, which confirmation was a republication of his will, 
 and as if he had written it over again, or had afterward for a valuable consideration 
 assigned over a moiety of his real and personal estate to his eldest daughter, by which 
 the said moiety thus disposed of did no longer continue any part of the said J S's 
 estate ; so that the testator afterward, by devising a moiety of his real and personal 
 estate, must be intended to have meant the remaining moiety only, and to have 
 divided that moiety into moieties. Ibid. 334-. Note. After the making of the will 
 and codicil, the testator and his wife, by lease and release and fine, mortgaged the 
 premises ; and it was urged that this was a revocation of the will ; but per Lord 
 Chancellor, — It can only be a revocation pro tanto. Ibid. 334. |j See post, 578, and 
 Yes. G54, Yawser v. Jeffery; 10 Yes. 519. || 
 
 J S on his marriage with F's daughter settled 5001. per ann. on her ; he 
 afterwards surrendered some copyhold estates to the use of his will which 
 lie made, and gave the copyhold to his wife. Afterwards J S, on the 
 death of his wife's father, became entitled to 1500/. in right of his wife ; 
 then J S levied a fine, and made a new settlement, and increased her join- 
 ture 300/. per ann., but never altered his will. And per Lord Chancellor, 
 — The settlement is a revocation of the will, for such lands as are com- 
 prised in it ; but the copyhold is not, and therefore passes by the will. 
 
 Select Cases in Chanc. 48, Lannoy v. Lannoy. 
 
 J S, in 1699, leaves to A 8784?. in trust, to be by her invested in 
 lands, and to settle the same on herself for life, remainder to the heirs 
 of B. A decree was had against A to lay out the money in hinds, and 
 to settle the same according to J S's will. A purchases lands to the 
 value of 3300/., and devises those lands to C (who was heir at law to B) 
 and her heirs, and gives several legacies, which could not be paid if the 
 devise were not to be taken as part of satisfaction ; and for that reason 
 it was so decreed by Lord Chancellor King. 
 
 Select Oases in Chanc. 03, Gibson v. Scudamoro. 
 
 A and B were tenants in common of lands in fee. A by will dated 25th 
 Jan., 1719, devises her moiety of the said lands unto trustees and their 
 heirs, upon trust to sell the same for the purposes therein mentioned ; and 
 afterwards A and B made partition by deed, dated 16th May, 1722, and a 
 fine was levied, and the uses were declared to be, as to one moiety in seve-
 
 576 OF WILLS AND TESTAMENTS. 
 
 (II) How .avoided. [Revocation by Ctianges of Estate, dc.) 
 
 ralty to A in fee, and as to the other moiety in severalty to B in fee. In 
 1724 A died without revoking or altering her said will, leaving J S her 
 only son. Lord Chancellor declared, that the will was well proved, but 
 referred it to the judges of B. R., "Whether the deed of 16th May, 1722, and 
 the fine levied pursuant thereto, was not a revocation of the will ? And 
 Raymond, C. J., Rage, Probyn, and Lee, Justices, certified their opinions 
 to be, that the will was not revoked by this deed and fine, and that A's 
 share of the land contained in this deed and fine passed by the will. 
 
 Vin. Abr. tit. Devise (It), 6, pi. 30; Luther v. Kirby, 3 P. Wms. 1G9, by way of 
 note cites S. C. by the name of Luther v. Kidby, and says, the judge's certificate 
 appears to be so by the registrar's book ; with which Lord Chanc. King concurred, 
 and ordered that the several trusts in A's will should bo established. [So, Swift v. 
 Iloberts, 3 Burr. 1490; Bridges v. Duchess of Chandois, 2 Ves. jun. 429.] It is 
 added in P. AVm.'s report, that if A devises lands and levies a fine, and the caption 
 and deed of uses are before the will, but the writ of covenant is returnable after the 
 will, this seems a revocation ; because a fine operates as such from the return of the 
 
 writ of covenant, and not from the caption. See Salk. 341. Lloyd and the Lord 
 
 of Say and Seale ; and yet this is a hard case, since by the caption the party conusor 
 does all his part, and the rest is only the act of the clerk or his attorney, without any 
 particular instructions from the party, 
 
 [But, if the conveyance, by which a partition is made, be for any other 
 purpose except merely that of partition, though it be nothing more than 
 conveying the estate to such uses as the party may appoint, it will operate 
 as a revocation of a will previously made. 
 
 {7 Ves. J. 5G4 ; 8 Ves. J. 281 ; 10 Ves. J. 25G, 2G4.} 
 
 Thus, where T died in 1741, seised in fee of lands which were gavelkind, 
 leaving two sons R and H, who both entered therein upon their father's 
 death, and were each seised of an undivided moiety thereof; and, they 
 being so seised, R made his will, and devised all his lands and tenements 
 and all his moiety to his wife : afterwards a deed of partition was made and 
 executed by and between R and H, and the lands in question were allotted 
 to R, and it was covenanted therein, that they and their wives should all 
 join in levying a fine, (which was done,) and that the same, as to the lands 
 in question, should enure to the use of R and such person and persons, 
 and for such estate and estates, as he should, by deed or will, limit, direct, 
 or appoint ; and, in default of such appointment, to the use of R in fee: 
 Lord Chief Justice Lee held this to be clearly a revocation of the will, 
 and not like the case of a bare partition only unattended by a fine or con- 
 veyance to a new use, wdiich would not have been a revocation. 
 
 Tickner v. Tickner, cited 1 Wils. 309, and 3 Atk. 742, 745, 750. So, Brydges v. 
 Duchess of Chandois, 2 Ves. jun. 429. [j Lord Eluon has observed upon these cases 
 of Luther v. Kidby, and Tickner v. Tickner, that "mere partition, whether by com- 
 pulsion or agreement, is not a revocation of a will ; but the slightest addition as a 
 power of appointment prior to the limitation of the uses is sufficient." Knolleys v. 
 Alcock, 7 Ves. 5G4. And again : — " The case of partition is a sort of special case. 
 Each party can compel the other to make partition ; the estate is the same, though 
 enjoyed afterwards in a different quality and in another mode. And upon a principle 
 compounded a little of these two reasons, it has been held that that which can be com- 
 pelled, if dine voluntarily, and provided nothing more is done than mere partition, 
 .shall not revoke the will. I say, provided nothing more is done: for it has been long es- 
 tablished, that if the object is to do anything beyond the partition, it will be a revoca- 
 tion. It is tried by the fact, whether the arts demonstrate any intention to go beyond 
 the mere partition; and, notwithstanding the expressions of the judges in some of the 
 reports, that Luther v. Kidby and Tickner v. Tickner cannot stand together, they have 
 stood together a considerable time, and in my opinion are perfectly reconcilable." At- 
 torney-General v. Vigors, 8 Ves. 281; and see Maundrell v. Maundrcll, 10 Ves. 25G.|| 
 
 {And if the partition is of such a nature as to deprive the testator of all
 
 OF WILLS AND TESTAMENTS. 577 
 
 (II) How avoided. [Revocation by Changes of Estate, <Cr.) 
 
 interest in the land described in the will, it will be a revocation. Thus if 
 F and P are coparceners of estates in the counties of B, L and 0, and 
 F devises all his real estates in the counties of L and 0, and afterwards 
 partition is made, by which the estates in the county of B are allotted 
 to F, and those in the counties of L and to P, the will is revoked : nor 
 has the devisee any right to compensation from the heir. 
 5 Vcs. J. 648, Knollys v. Alcock ; 7 Ves. J. 558, S. C. 
 
 An exchange revokes a previous devise, though the land after the 
 death of the devisor be restored to his heir, under an arrangement made 
 in consequence of a defect discovered in the title of the other party to 
 the exchange. 
 
 8 Ves. J. 256, 278, Attorney-General v. Vigor.} ' 
 
 By marriage articles it was agreed, that the wife's lands, whereof she 
 was seised in tail, should be conveyed to the husband in fee : they mar- 
 ried : the husband made his will and devised these lands : then the hus- 
 band and wife suffered a recovery of these lands, to such uses, and for 
 such estates, as they should jointly appoint, and in default of such ap- 
 pointment to the use of the husband and his heirs. She died without 
 appointing. Per Hardwicke, Ch. — This amounts to a revocation of the 
 will. And in this case the following rules were laid down. 
 
 MS. Rep. Parsons v. Freeman, M. 25 G. 2 ; [3 Atk. 741, S. C; Ainbl. 116, S. C. ; 
 1 Wms. 341, S. C. The introductory part of this argument is thus stated by Lord 
 Loughborough in 2 Ves. jun. 431, from my Lord Hardwieke's notes: — "It is admitted, 
 that if the testator had been seised in fee at the date of the will, and had afterwards 
 suffered a recovery, that would be a revocation ; and yet the objection would have held 
 equally there of the alteration being made only for the particular purpose of enabling 
 him and his wife to dispose without any other form of conveyance. There are a great 
 variety of cases, and nice and artificial distinctions, upon the favour to the heir. One 
 rule, however, is certain ; that if a man is seised in fee, and disposes by will, and after- 
 wards makes a conveyance, taking back a new estate, that is a revocation ; so, if he 
 devises the land, and levies a fine without any use declared, this is a revocation, and 
 yet he takes back the old use unaltered, which is a prodigiously strong case. But 
 these cases admit of limitations and distinctions ; and therefore if a testator makes a 
 conveyance for life or years, that being a particular, partial purpose, no more than will 
 answer that purpose is revoked; the line being drawn, and the purpose specified with 
 a declared intent of going thus far and no farther. These are the rules of law : the 
 counsel have doubted whether they extend to equitable interest, without citing autho- 
 rities ; but I think they hold in equity, and am of opinion that what is a revocation at 
 law shall hold in equity ; as it would be very mischievous, that the same sort of con- 
 veyance should not be a revocation in both cases. Therefore, if a man having an equi • 
 table estate makes his will, and then executes a conveyance, and disposes of it, or de- 
 clares the uses to himself, that will be a revocation, if it would be so of a legal estate at 
 law. But still this revocation follows the rule of law ; and therefore if the conveyance be 
 of part only, and for a particular, partial purpose, it shall be a revocation pro tanto only 
 Upon this principle is Vernon v. Jones ; so, Ogle v. Cooke, that where the conveyance 
 amounts only to a security, it is only a charge upon the land, and no revocation ; and 
 as the heir may in all those cases have the surplus, so shall the devisee." ||Where a 
 testator seised in fee of an estate, devised it, and after making his will, conveyed it, by 
 way of mortgage, to trustees, with a proviso in the deed, that on payment of tlie money, 
 the mortgagees should reconvey to him, his heirs, and assigns, or to such persons as 
 he should appoint by deed in writing, it was held, the conveyance was only a revoca- 
 tion of the will pro tanto, notwithstanding the trust to convey to such persons as the 
 mortgagor should appoint ; for this provision gave no new power of conveyance to the 
 testator. Brain v. Brain, 6 Madd. 221 ; sed vide Ward v. Moore, 4 Madd. 'MS. But 
 where a man devised an estate of which he was equitably seised, under a contract to 
 purchase it, and the estate was afterwards conveyed to trustees to such uses as the de- 
 visor should appoint by deed, with two witnesses, or will, with remainder to the trustee 
 for the life of the devisor, to bar dower, and to the devisor in fee, the will was held to 
 be revoked by the conveyance. Rawlins v. Burges, 2 Ves. & B. 382.11 
 
 Vol. X.— 73 3 G
 
 578 OF WILLS AND TESTAMENTS. 
 
 (H) How avoided. (Revocation by Changes of Estate, &c.) 
 
 If a man seised in fee devises, and then makes a conveyance by fine, 
 feoffment, or recovery, and takes back a new estate, it is certainly a revo- 
 cation ; and so if he takes back the old use unaltered, from a presumption 
 that he could not have made such a conveyance without an intention to alter 
 his will : but if after making his will he had made a lease, or charged it 
 with a sum of money, &c, it would only have been a revocation pro tanto. 
 The rules are the same in the devise of a real, and of a personal estate, 
 with regard to charges made afterward : but if a man, having an equi- 
 table estate in fee, devises it, and then takes a conveyance of the legal 
 estate, it is no revocation. The equitable estate will not pass by will, but 
 the heir at law by descent of the legal estate may become a trustee for the 
 devisee, who may call for a conveyance of the estate. If a man contracts 
 by articles for the purchase of lands, and, before a conveyance, devises the 
 lands and dies ; the devisee shall have the lands and call for a conveyance 
 from the vendor. If a man, seised of a legal estate, makes his will, and 
 then conveys the legal estate to another in trust for himself, it is a revo- 
 cation. If in this case the husband had only taken the legal estate by the 
 recovery to execute it into the equitable estate, it would have been no 
 revocation ; but new uses are appointed, and though the wife died without 
 making any appointment, that will not alter the case, for here he took 
 the fee by the recovery differently qualified, subject to different condi- 
 tions, differently conveyed. But, if two parceners make partition, levy 
 a fine, and declare the use, that will not be a revocation, because it is to 
 effectuate the partition. 
 
 || If the owner of an unqualified equitable fee devise it by his will, and 
 afterwards takes a conveyance of the unqualified Jegal fee, this is no 
 revocation of the will, because the conveyance was incident to the equi- 
 table fee. But if he afterwards takes a qualified conveyance of the legal 
 fee for the purpose of preventing dower, it is a revocation of the will, 
 being a change in the quality of the estate and not incident to the equi- 
 table fee. 1 1 
 
 Ward v. Moore, 4 Madd. 368 ; ||and see p. 577.|| 
 
 [S in 1733 surrendered copyhold tenements to the use of T and B his 
 wife, for their lives, remainder to the heirs and assigns of T, and they were 
 accordingly admitted ; and then T surrendered to the use of his will. B 
 died, leaving issue by T — G the eldest, and I the youngest son. In 1744, 
 T the father surrendered these tenements to the intent that the lord should 
 regrant them to the use of T and his heirs until his marriage with S, and 
 then to the use of T and S for their respective lives, remainder to the heirs 
 of their two bodies, remainder to the right heirs of^ T. No admission was 
 had by T under this surrender. Afterwards, viz., in 1757, T devised the 
 estates to S his wife for life, remainder to I his youngest son, and M his 
 wife, for their respective lives, and died, leaving S his widow, and G his 
 eldest son and heir. In 1759, S was admitted for her life on the former 
 surrender made on her marriage, and then G the son was admitted to the 
 reversion expectant on her decease. I, the youngest son, died: then S the 
 tenant fur life died. Afterwards M, the widow of I, was admitted by virtue 
 of the will of T and the surrender to the use thereof. The question was, 
 Whether by the subsequent acts, the surrender to the use of the will was 
 at an end ? It was argued that, by the surrender in 1744, every thing 
 passed out of T the devisor, consequently there was an end of the surrender 
 to the use of his will in 1733 ; and, he never having been admitted, nor 
 of course surrendered to the use of his will, in consequence of the new
 
 OF WILLS AND TESTAMENTS. 579 
 
 (H) How avoided. {Revocation by Changes of Estate, dx.) 
 
 limitation in 1744, nothing passed by the will of 1757. Sed per curiam, 
 
 unanimously, — The old use in fee granted to T in 1733, to -which he was 
 
 then admitted, and which was surrendered to the use of his will, was not 
 
 taken out of him by the new limitation and surrender of 1744. He had 
 
 therefore no occasion to be re-admitted to it for the purpose of surrendering 
 
 to the use of his will, but shall be construed to be in of his old estate. 
 
 Thrustout on the dem. of Gower v. Cunningham, 2 Black. R. 1046.1 || See Vawser 
 v. Jeffery, 3 Barn. & A. 468 ; 2 Swanst. 268. || 
 
 A being seised in fee, settled his estate by lease and release in 1712, to 
 the uses thereinafter specified, with liberty, nevertheless, at his will and 
 pleasure, to dispose of, alienate, or change the said estate, or any part 
 thereof, for any estate or estates whatsoever, as he should think fit, and 
 to revoke all and every the uses thereby limited ; and then declares the 
 uses to himself for life, with several remainders, and a remainder over to 
 D in (fee) tail. The said deed contained the following powers : first, a 
 power for A by any deed or writing, signed, sealed, and delivered in the 
 presence of two or more witnesses, to demise, lease, limit, or appoint the 
 said premises to any person whatsoever, for any term or terms whatsoever, 
 and for so much yearly rent as he should think fit. And that it shall 
 and may be lawful to and for the said A at any time during his natural 
 life, at his will and pleasure, to grant, sell, or demise the said premises, or 
 any part thereof, or by any deed or writing under his hand and seal, or 
 by his last will, &c, in writing, signed, sealed, delivered, and published 
 in the presence of three or more witnesses, to revoke, repeal, and make 
 void all and every or any the use and uses, estate and estates, trusts, and 
 limitations before raised, and to declare or limit the same, or such new 
 uses as should seem most meet to him, and then and from thenceforth, the 
 estates before limited and so revoked, to cease, &c. : and that the said A 
 may dispose of the same premises, and every part thereof, to such other 
 person and uses as he shall think fit ; any thing, &c, to the contrary not- 
 withstanding. The first part of this proviso, viz., " to grant, sell, or de- 
 mise," appears inserted by interlineation. In 1715, A by lease and re- 
 lease, reciting that he was indebted as specified in a schedule annexed, 
 conveyed his estate to W R and W S and their heirs, in trust to pay the 
 said debts by the annual profits, or mortgage or sale of the premises, ami 
 after payment thereof, to pay the overplus, if any, and reconvey such parts 
 of the premises as should remain unsold, to the said A, or to such person 
 and persons, and to such uses, &c, as A by any deed or writing, under 
 his hand and seal, attested by two or more credible witnesses, should 
 limit, &c. This release was attested by two witnesses only. A died 
 without issue. Lord Chancellor, assisted by Lord Chief Baron Reynolds 
 and the Master of the Rolls, was of opinion, that A intended to reserve 
 an absolute power over this estate, and either to revoke it by an express re- 
 vocation, or by a conveyance to different uses, which are the two kinds of 
 revocation, as is evident as well from the preamble, which is interwoven 
 with the consideration of the deed, as from the proviso : and in consequence 
 of that intention, it is reasonable to suppose he meant to have a power to 
 defeat it, without taking any notice of it ; and if no power had been reserved 
 in the body of the deed, then would the preamble have given a general 
 power. That a conveyance to different uses would have been a revoca- 
 tion as effectual as an express revocation, and that he thought any other 
 construction would be forced and unnatural. That if A had stepped with 
 the first words of the proviso, viz., "to grant, sell, or demise," he had
 
 580 OF WILLS AND TESTAMENTS. 
 
 (H) How avoided. {Revocation by Marriage, dec.) 
 
 reserved an absolute power. Then come the words, " or by any deed or 
 writing." Or is plainly a disjunctive introductory of a different sentence, 
 and a different power, which is plain by the words immediately following, 
 viz., "And then the uses so revoked and repealed," which refer to the 
 express power of revocation. That if the second part of the clause, "or 
 by any deed or writing," &c, had been dropped, and it had been, "or to 
 repeal," &c, it is plain they would be distinct powers : and his lordship 
 asked, Why those words should alter the case ? that the circumstance of 
 three witnesses is only applicable to the express revocation ; but it neither 
 goes to the first power, nor to the general power of disposing at the end of 
 the clause, viz., "And that the said A shall and may dispose," &c, which 
 is as much a distinct power as can be, and is larger than the first ; for by this 
 he might give his estate (tail) by will. That the express power of revoca- 
 tion could not by this construction be thought nugatory, for within the first 
 power he could not be reinstated in his former estate without a conveyance 
 and reconveyance ; nor could he have devised it. But admitting it to be 
 so, he thought general intention is not to be superseded, because a subse- 
 quent part of the deed is surplusage : and that the whole legal estate 
 passed to the trustees by the deed of 1715. Decreed 12 June, 1730. 
 
 Lill. Prac. Conv. 390, 400, Fitzgerald v. Lord Fauconberge ; Fitzgibb. R. 207, S. C. ; 
 and as to the interlineation, the Lord Ch. said, that the party that put it in thought it 
 would be of some use or other, and it could be of no use but to give A an unlimited 
 power over the estate ; and as A's intention was to reserve such a power, his lord- 
 ship said he would not abridge it. Ibid. 223. 
 
 Though a covenant or articles do not at law revoke a will, yet if entered 
 into for a valuable consideration, amounting in equity to a conveyance,(a) 
 they must consequently be an equitable revocation of a will, or of any 
 writing in nature thereof. A woman's marriage is alone a revocation of 
 her will. (5) 
 
 2 P. Wms. 624, Cotter v. Layer, (a) See S. P. resolved in the case of Sir Barn- 
 ham Ryder and Sir Charles Wager, Ibid. 332. || Bennett v. Tankerville, 19 Ves. 170. || 
 (6) See 4 Rep. 61. [But if the husband die in the lifetime of the wife, then the will, 
 it seems, will revive, and on her death afterwards take effect as if no marriage had 
 intervened. Therefore, saith Serjt. Manwood in Brett v. Rigden, Plowd. 343, a, if a 
 feme sole make her will the 1st day of May, and give land thereby, and afterwards, 
 the 10th day of May, she take husband, who dies the 20th day of May, and afterwards 
 the woman die the 30th day of May, the devise is good; for it does not take effect uutil 
 her death, at which time she was discovert, as she was at the time of making the will. 
 — And it is observable, that the case of Forse v. Hembling, 4 Rep. 61, wherein it was 
 adjudged, that the will of a feme sole was revoked by marriage, does not seem to im- 
 peach the case here put, for the reason given ; for that judgment is not only because 
 she afterwards married, but also because she was covert baron at the time of her death. 
 And it is to be noted, that it is only upon the authority of Forse v. Hembling, that 
 the Lord Chancellor King delivers in so unqualified a manner the doctrine in the text, 
 that a woman's marriage is alone a revocation of her will. ||It seems that in Mrs. 
 Lewis's case it was held, that a will made by a woman before marriage, was so totally 
 revoked by her marriage, that it could not revive on the subsequent death of her 
 husband. 4 Burn, E. L. c. 47 ; and see Doe v. Steeple, 2 Term R. 684. || 
 
 {If two unmarried sisters make mutual wills in favour of each other, 
 the marriage of the one does not revoke the will of the other. 
 
 4 Ves. J. 160, Hinckley v. Simmons. See 3 Ves. J. 402, Lord Walpole v. Lord 
 Orford.} 
 
 [By articles made in 1777, previously to the marriage of the Duke of 
 Chandos, the duke covenanted that he would, within six months after the 
 marriage cause various freehold and copyhold estates to be well and
 
 OF WILLS AND TESTAMENTS. 5S1 
 
 (II) IIow avoided. (Revocation by Marriayc.) 
 
 effectually conveyed, so that he might be seised thereof, to the intent that, 
 in case the duchess should survive him, she might become entitled to 
 dower ; and also that he would, within twelve months after the marriage 
 and after such conveyances, settle the said estates, subject to the dower of 
 the duchess, to the use of himself for life, remainder to trustees to preserve 
 contingent remainders, remainder, after the decease of the duke and duchess, 
 to trustees for a term of years, to raise portions for younger children ; and 
 subject thereto and to dower, to the use of the first and other sons in tail 
 male, with remainder to the right heirs of the duke. The duke also cove- 
 nanted, that in case the dower should not be equivalent to 2000/. per annum, 
 his heirs, executors, or administrators would make good the deficiency. 
 By his will, bearing date Jan. 9th, 1780, the duke confirmed the articles ; 
 and all the real estates, which he had by the articles agreed to settle, he 
 devised, in case he should die without issue male, or in case of failure of 
 issue male in his wife's lifetime, to his wife for life, remainder to his 
 daughters as tenants in common in tail, with other limitations. The duke 
 afterward executed a settlement, by which he disposed of the fee, and 
 which purported to be in execution and performance of the articles ; but in 
 truth contained many clauses and modifications inconsistent both with the 
 articles and will. Lord Chancellor Loughborough held, that as the settle- 
 ment did not pursue the articles, it could not be referred to them, so as 
 to form one instrument, and was therefore a revocation of the will. 
 Brydgos v. Duchess of Chandos, 2 Ves. jun. 417. || See Rob. on Wills, 2, p. 61. || 
 
 But where, by articles prior to marriage, the husband being seised in fee, 
 covenanted to convey his estates to trustees, to the use of himself for life, 
 remainder in trust to secure an annuity to his wife in bar of dower, re- 
 mainder to trustees for years to raise portions, remainder to the sons and 
 daughters successively in tail, remainder to his own right heirs, and after- 
 wards made his will, and devised the reversion in fee in the event of his 
 dying without issue ; and subsequent to the will executed a settlement in 
 pursuance of the articles, by which he conveyed the estates to trustees and 
 their heirs, upon the trusts and to the uses of the articles : it was holden 
 with great clearness, that the will was not revoked by this settlement ; that 
 the settlement was nothing more than a mere legal execution of the articles : 
 nothing more than giving the legal estate in lieu of the equitable estate, of 
 which the testator was seised at the time of making the will ; that the tes- 
 tator devised nothing more than the reversion in fee ; that his acquiring 
 the legal interest made no difference ; and that the person to whom the 
 estate was conveyed was a trustee for the purposes of the will. 
 
 Williams v. Owen, 2 Ves. jun. 395. |] See Lord Alvanley's vindication of this case 
 in Ilarmood v. Oglander, 6 Ves. 221. || 
 
 By deed, in 1750, S was made tenant for life, remainder to his son in 
 tail, and, in 1651, the father and son joined in a bargain and sale to W, 
 and his heirs, to make him a tenant to the praecipe in order to suffer a com- 
 mon recovery, the uses of which were declared to be to S, the father, for 
 life, remainder to the son in fee-simple. Trinity term began the 7th June, 
 1751. On the 8th of June the son made a will, whereby he disposed of 
 all his real estate. In the same term a writ of entry was sued out return- 
 able Quindcn Trin., viz., 16th June, and the recovery was completed the 
 same term. Soon afterwards the testator died. And a doubt arising as to 
 the validity of the will, a case was sent out of Chancery for the opinion 
 
 3c2
 
 582 OF WILLS AND TESTAMENTS. 
 
 (H) How avoided. (Revocation by Changes of Estate, drc.) 
 
 of the Court of King's Bench ; and the question was, Whether the lands 
 in dispute passed by this will made after the bargain and sale, and after 
 the beginning of the term, but before the return of the writ of entry ? 
 And the Court of King's Bench certified that the will was valid. The 
 foundation of which opinion seems to have been, that the court con- 
 sidered the whole transaction as one conveyance, each part whereof must 
 relate to the date of the bargain and sale, which was the principal part, 
 and which was perfected, made absolute, and delivered from objections, 
 by the subsequent ceremonies. 
 
 Selwyn v. Selwyn, 1 Black. R. 251 ; S. C. 2 Burr. 1131. So explained by Lord 
 Mansfield, 4 Burr. 19G2, and S. C, 1 Black. R. 700. 
 
 So, in 1724, a copyhold estate was surrendered to the uses of a mar- 
 riage settlement, which left in the surrenderor the reversion in fee, and 
 a power to devise the same by will ; afterwards a surrender was made by 
 him to the use of his will, and a will made accordingly. Then, in 1751, 
 the surrenderor was called upon by the steward to be admitted to some 
 of the particular estates created by the original surrender in 1724, which 
 was done. And the question was, Whether this admittance operated as 
 a revocation of the prior will ? And the court held that it did not : be- 
 cause the whole transaction might be considered as one and the same, 
 and then the admittance in 1751 would relate to the surrender in 1724, 
 and be prior to the will. 
 
 Roe on the dem. of Noden v. Griffiths, 1 Black. R. 005 ; S. C. 4 Burr. 1952.J 
 || See Vawser v. Jeffery, 3 Barn. & A. 402 ; 2 Swanst. 208. || 
 
 Tenant in tail, remainder to himself in fee, devises his lands to A, and 
 then suifers a recovery to the use of himself in fee, and dies without issue 
 male : this is a revocation of the will. 
 
 3 P. Wins. 103, Marwood v. Turner; ||and see 7 Term R. 410, note.|| 
 
 || So, if a testator, after having made his will, levy a fine to such uses 
 as he shall by deed or will appoint, and die without making any new 
 will ; the will made prior to the fine is thereby revoked. 
 
 Doe v. Dilnot, 2 New R. 401. || 
 
 A, 23d June, 1729, made his will, and executed two duplicates thereof 
 before three witnesses, and made B and C (since deceased) executors ; 
 and one of the duplicates was delivered to B. A died 2d October, 1780, 
 and about three weeks before his death he made several alterations and 
 obliterations with his own hand, in the duplicate remaining in his own 
 custody, making a new devise of his real estate, and a new residuary 
 legatee, and a new executor, entirely striking out the names of the first 
 devisees, residuary legatee, and executors, and altered several of the for- 
 mer legacies, and inserted or interlined new legacies ; and soon after wrote 
 another will with his own hand, agreeable in a great measure, but not 
 altogether, to the will or duplicate so altered, with a conclusion in these 
 words : "In witness whereof, I, the said testator, have to each sheet set 
 my hand, and to the top, where the sheets are fixed together, my hand and 
 seal, and to the last thereof my hand and seal, and to a duplicate of the 
 amc tenor and date, this day of 1730." But there was no 
 
 signing or fixing together. The testator soon after began to write another 
 will, word for word with the last, so far as it goes, but went no farther 
 than devising his lands. He lived six days after, and was in good health, 
 and might have finished and executed both or either of the latter
 
 OF WILLS AND TESTAMENTS. 583 
 
 (H) How "Wills may be avoided. (Revocation.) 
 
 wills if he had thought fit. He never sent or called upon B for the dupli- 
 cate of the first will in his hands, though B lived in town. After the death 
 of the testator, all the testamentary papers or schedules were found lying 
 all in loose and separate papers upon a table in his closet, not signed or 
 executed; and the duplicate of the first will was found on the same table, 
 altered and obliterated, (ut supra,) with his name and seal thereto whole and 
 uncancelled. Sentence was given in the Prerogative Court, for the dupli- 
 cate of the first will in B's hands, and confirmed upon appeal to the de- 
 legates, viz., Lord Raymond, C. J., and Probyn, J., Dr. Tindale, and 
 Dr. Bramston, (who were all the delegates present,) after four days' so- 
 lemn hearing ; and upon a commission of review, (granted by Lord Chan- 
 cellor King, upon the petition of Hyde, the executor named in the new 
 will,) was again affirmed by the opinion of all the delegates, (except Dr. 
 Pinfold,) viz., of the judges, Reynolds, C. B., Page, J., and Comyns, EL, 
 and two doctors of the civil law, chiefly on the reason, as the reporter 
 says he heard, that the testator did not intend an intestacy, and by the 
 alterations and obliterations in his own duplicate of his first will, he appeared 
 only to design a new will, which, as he never perfected, the first ought to 
 stand ; and testator not calling for the duplicate of the first will in B's 
 hands, strengthens the presumption of his intent not absolutely to destroy 
 his first will till he had perfected another, which he never did. 
 Vin. Abr. tit. Devise, (R), 2, pi. 17, Hyde v. Mason. 
 
 J S devised all his real and personal estate to trustees A, B, and C, 
 their heirs, executors, and administrators, in trust to pay 151. per arm. 
 to the plaintiffs (his two sisters) for their lives, and after several legacies, 
 the surplus in trust for the dissenting ministers at Reading, &c, and gave 
 300/. to each trustee, and 201. per ann. to each, while they took care in 
 executing the trust. Afterward by lease and release of subsequent date 
 to the will, the testator conveyed all his real estate unto and to the use 
 of the said A, B, and C, and their heirs, with a proviso to be void on 
 payment of 10s. And by another deed of the same date, the testator 
 gave all his personal estate to the said A, B, and C, proviso to be also 
 void on payment of 10s. But J S kept both the deeds in his own cus- 
 tody, and soon after died ; and the said A, B, and C obtained administra- 
 tion cum testamento annexo as trustees. The trustees for some years 
 paid the 151. per ann. apiece to each of the testator's sisters ; but after- 
 wards refused to continue the payment thereof, and also refused to pay 
 any of the dissenting ministers ; but kept the rents, &c, to their own use. 
 The two sisters, (the heirs at law,) and their husbands, brought their bill 
 against the surviving trustee, insisting that the deed of conveyance of 
 the real estate and the deed of gift of the personal estate had revoked 
 the will, and that there was a resulting trust for them, as heirs at law ; 
 or at least that they (the sisters) were entitled to their 15/. per ann. an- 
 nuities. The defendant insisted on the plaintiffs' having forfeited their 
 annuities by bringing their bill, there being a clause in the will, that if they 
 (the sisters) disputed the will, then they should forfeit their annuities. 
 Lord Chancellor Talbot decreed, that the annuities should be paid to the 
 two sisters, with the arrears and growing payments thereof; but the sur- 
 plus was decreed to go to the dissenting ministers. 
 
 MS. Rep. Mich. 1734, Lloyd et ux. et al. v. Spillet et al. ; [3 P. Wms. 344. S. C. ; 
 2 Eq. Ca. Abr. 241, pi. 30, 776, pi. 25, S. C] [This decree was affirmed on a re- 
 hearing before Ld. Ilardwicke, 2 Atk. 148. J
 
 584 OF WILLS AND TESTAMENTS. 
 
 (II) How Wills may be avoided. [Revocation.) 
 
 Sir John Wobrych by will, in August, 1722, devised bis estate to trustees 
 for the term of 200 years, for payment of all his debts. In December 
 following he devised the same to other trustees for 300 years, in trust to 
 pay some particular debts by specialty mentioned in the deed, and all en- 
 cumbrances that affected the estate. In June, 1728, he died; and the 
 question was, If the deed in December was a total revocation of the 200 
 years' term ? And at the Rolls both terms being held to be consistent, the 
 plaintiff now brought a bill of review ; and Talbot, Lord Chancellor, was 
 of opinion, that the deed in December was intended only as a collateral 
 security, for payment of the debts therein mentioned, and such others as 
 were a charge on the estate ; and that Sir John did not depart from his 
 former intentions of paying all his debts, but only to give preference to 
 those comprised in the 300 years' term, which by law were preferred to 
 the simple contract debts ; and therefore he declared, that so much of 
 the 200 years' term should be sold as would satisfy the purposes of the 
 deed ; and afterwards the 200 years' term should commence. 
 MS. Rep. Mich. 9 G. 2, Weld v. Acton, &c. 
 
 [It has been held, upon the principle that no actual alteration is made in 
 the thing devised, that the changing of trustees, where the estate originally 
 devised is only the trust, will not amount to a revocation in law. Thus, 
 where A made his will, and devised that his feoffees in trust should make 
 a lease to C and D for eighty years, at a certain rent payable to his ex- 
 ecutors ; and, being afterwards resolved to change the feoffees in trust, 
 caused them, or some of them, to join with him in a feoffment of the de- 
 vised hereditaments to new trustees and their heirs, to the use of A and 
 others, until A limited or ordered new uses thereof, which he never did ; 
 it was held that the feoffment was, in equity, no revocation of the will. 
 
 Bark v. Zouch, 1 Rep. Ch. 23 ; and vide Coles v. Hancock, 2 Ch. R. 109. 
 
 So, "W by his will devised all his real estate in Berkshire to certain 
 trustees and their heirs, to the use of his first and second sons, &c, suc- 
 cessively in strict settlement, with remainder to his own right heirs ; and 
 afterwards made a codicil to his will, by which, after reciting that since 
 the publication thereof he had contracted for the purchase of certain lands, 
 he directed the trustees and executors in his will to pay the purchase-money 
 out of the residuum of his personal estate ; and that, on payment thereof, 
 the said purchased lands should be conveyed, settled, and limited to the 
 same uses and on the same trusts, as, by his will, he had limited and de- 
 clared concerning his other estates. Afterwards the testator himself com- 
 pleted the purchase referred to in the codicil, and took a conveyance of 
 the purchased estates to certain trustees, therein named, in fee, in trust 
 for himself and his heirs, soon after which he died. And the question 
 was, Whether the conveyance of the new purchased lands to the trustees, 
 subsequent to the will and codicil, was not, as to those lands, a revoca- 
 tion ? And it was decreed that this was no revocation ; for, before the 
 purchase completed, the vendor was but a trustee for the purchaser, and 
 on the completion of the purchase was but taking the estate home. 
 Fullarton v. Watts, cited Dougl. 091, Cane. T. 14 G. 3 ; ||2 Ves. jun. 002. || 
 
 G, seised of manors and freehold lands in fee, by indenture mortgaged 
 the same in fee : afterwards G, on the marriage of his son, conveyed these 
 estates to trustees, in trust to secure an annuity to his son and his intended 
 wife for and during the joint lives of himself and his son, and subject
 
 OF WILLS AND TESTAMENTS. 585 
 
 (H) How Wills may bo avoided. (Fraud) 
 
 thereto, to himself for life, remainder over, the ultimate remainder to 
 himself in fee. Then G made his will, by which he devised the reversion 
 in fee of part of these lands to trustees in fee upon certain trusts and to 
 certain uses not material to be stated, and devised the reversion in fee 
 of the other part to the same trustees and their heirs, in trust to sell and 
 dispose thereof, and, with the money arising from the sale, to pay and 
 discharge all principal and interest due on any mortgages or other en- 
 cumbrances affecting these estates, and, from and after payment thereof, 
 to apply the residue of such purchase-moneys in paying and discharging 
 the fortunes therein before given to his younger children. Then the 
 mortgagee, in consideration of the mortgage-money paid in, conveyed the 
 mortgaged estates comprised in the marriage settlement to the trustees 
 by lease and release to the uses and trusts therein limited, freed and dis- 
 charged from all equity, terms, provisoes, and conditions of redemption. 
 Afterwards, by lease and release, reciting the above facts, the same es- 
 tates, comprised in the marriage settlement, were conveyed by the trus- 
 tees to a trustee in trust for G in fee. Then G died without having done 
 any other act to revoke or alter his will. And one question was, Whe- 
 ther these instruments amounted in law to a revocation ? And it was 
 contended that they did ; for, at the time of the will, the legal estate was 
 in the mortgagee, and, after the will, was transferred from her and con- 
 veyed to a ti'ustee ; and, though the equitable interest might have re- 
 mained the same after the conveyance to the trustee, yet, there having 
 been an alteration of the legal estate after the will, that, it was said, 
 would operate as a revocation. Sed per curiam, unanimously, — G, at 
 the time of the devise, had merely the equitable fee in him, the mortgagee 
 was his trustee. Then, on payment of the mortgage money, she con- 
 veyed the legal estate in fee to the trustee, which was merely transferring 
 it from one trustee to another ; and there has been no determination or 
 case in which the change of a trustee has been held to revoke a will. 
 Therefore the court thought the will was not revoked. 
 Doe v. Pott, Dougl. 710. || See per Ld. Eldon, 11 Ves. 554. Jj 
 
 Where one partner gave by his will to two of his partners one-ninth 
 of one-twelfth of the profits reserved to him, over and above her shares 
 reserved to them by the articles of copartnership ; and afterwards, on the 
 expiration of the partnership under those articles, renewed it with those 
 same partners, and gave them a greater interest than they had under the 
 former articles ; Lord Hardwicke held, that the renewal of the articles 
 was not a revocation of the will. 
 
 Backwell v. Child, Ambl. 2G0.] 
 
 {A testatrix gave a fund over which she had a power of appointment, 
 and some specific articles, to trustees in trust for her residuary legatee 
 afternamed ; and gave the general residue to A. By a codicil she revoked 
 the bequest of the residue, and gave it to A and B. A was held to be 
 solely entitled to the fund under the appointment and the specific articles, 
 they being separated from the residue by the testatrix. 
 
 6 Ves. J. 153, Roach v. Haynes; 8 Yes. J. 584, S. C.} 
 
 2. In what Cases the Court will set aside a Will for Fraud : || and whore such Fraud 
 
 is examinable. || 
 
 Jekyll, Lord Commissioner, took a difference between a will and a deed 
 gained upon a weak man, and upon a misrepresentation or fraud ; for if a 
 Vol. X.— 74
 
 586 OF WILLS AND TESTAMENTS. 
 
 (H) How Wills may be avoided. (Fraud.) 
 
 will be gained from such by false misrepresentation, this is not a suffi- 
 cient reason to set it aside in equity ; as was determined in the Duke of 
 Newcastle's will, betwixt Lord Thanet and Lord Clare, and in the case 
 of Boclvil and Roberts : but, where a deed, which is not revocable as a 
 will is, is so gained from such a person, and without any valuable con- 
 sideration, the same ought to be set aside in equity. 
 2 P. Wms. 270, James v. Greaves. 
 
 [So, Lord Hardwicke, in the case of Bennett and Wade, said, that so 
 far as the bill sought to set aside the will there in question, it was impro- 
 per ; for the court could not make a decree of that kind, but only direct 
 an issue devisavit vel non. 
 
 Bennett v. Wade, 2 Atk. 324. 
 
 And, in the case of Webb and Claverden, which arose on a bill brought 
 by the heir at law, charging fraud and circumvention in obtaining a 
 will ; Lord Hardwicke said, that the court would not determine a fraud 
 in procuring a will, without directing a trial at law, which was done ac- 
 cordingly. 
 
 Webb v. Claverden, 2 Atk. 424.] 
 
 A will obtained in extremis and upon importunity of testator's wife, 
 his hand being guided in the writing of his name, has been set aside. 
 
 Vin. Abr. tit. Devise (Z), 2, pi. 7, Moneypenny v. Brown. || The circumstance that 
 one residuary legatee was the attorney who drew the will is not decisive evidence of 
 fraud. Paine v. Hall, 18 Ves. 475. || 
 
 A will likewise concerning land may be good at law, as being well ex- 
 ecuted, and yet be set aside in equity for fraud : As where — 
 
 A by will had devised his lands to M, his mother, in fee ; M was after- 
 wards told by J S, that this will would not be good, but ought to be 
 guarded, as he called it, and that he would make another will for A, 
 which he would take care should be sufficiently guarded. J S afterward 
 drew a will, by which A gave the land to M, for life only, remainder to 
 J S, in fee. Upon a bill to establish the first will, because of the ill- 
 practices used in obtaining the after-will, Lord Chancellor Cowper di- 
 rected an issue in Middlesex, where the will was made, though the lands 
 lay in Shropshire, to try whether the will, by which the lands in fee were 
 devised to M, was the last will of A. 
 
 1 P. Wins. 287, 289, Goss v. Tracy. If A had devised lands to M, in fee, and 
 afterwards J S had told A, and not M, that the will was void for want of its being well 
 guarded ; and that he would make another will for A, that should be effectually 
 guarded, and accordingly had made another will for A, whereby the estate had been 
 devised to M, for life only, remainder to J S, in fee ; this would be a good will in law. 
 if attested pursuant to the statute of frauds, but would be set aside in equity for the 
 fraud ; but as to the evidence of the testator's being non compos when he made this 
 second will, that is to be tried at law. Per Lord Chancellor, Ibid. 288. A will, 
 though good at law, may yet be set aside in equity for fraud : as if A should agree to 
 give B bank bills to the amount of 1000Z., in consideration that B would make his 
 will, and thereby devise his land to A ; and accordingly B does make his will, and A 
 gives B tin' baftk bills, which prove to be forged ; this, though a good will at law, 
 shall nevertheless be avoided in equity by A's heir for a fraud. Per Lord Chancellor, 
 Ibid. ; 2 Vera. R. 699. || See 9 Ves. 519.|| See in 1 Chan. R. 12, 66, instances of a 
 will of land being set aside in equity for fraud. 
 
 [A bill was brought to set aside a will for fraud, on suggestion that the 
 testator was incapable of making it, by being perpetually in liquor, and 
 particularly when he executed the will. And the defendant pleaded that
 
 OF WILLS AND TESTAMENTS. 587 
 
 (II) How Wills may be avoided. (Fraud.) 
 
 the will was duly executed, and that it ought to prevail, till, upon an issue 
 at law, it should be found to be otherwise. Per curiam, — The plea must 
 be allowed; for you cannot in this court set aside a will for fraud. (a) 
 
 Anon. 3 Atk. 47 ;] ||1 Ves. & B. 542; 1 Cox. R. 353. (a) This is settled by the 
 decisions in 2 Atk. 324 ; 3 Bro. P. C. 476 ; 2 P. Wins. 270 ; and see Roberts on Wills, 
 2, p. 181.|| 
 
 A bill was brought to be relieved against a will obtained by fraud and 
 imposition, upon this case. The plaintiff's son had made a will in Jan- 
 uary, 1716, and thereby devised all his real and personal estate to the 
 plaintiff, his father, but falling ill soon after, at a great distance from his 
 father, of a consumption, of which he died, defendant persuaded him to 
 make a new will, some short time before his death, whereby he devised all 
 his real and personal estate to defendant (being his kinsman) upon trust to 
 pay his debts and legacies; but says nothing of the residuum ; but there 
 was a general clause of revoking all former wills, &c. There were several 
 witnesses to prove an imposition and contrivance, and false suggestion to 
 induce the testator to make this new will, sufficient to satisfy the court that 
 it was unfairly obtained, but the will was regularly signed, sealed, and 
 published, according to the statute of 29 Car. 2, and so a good will at 
 law. Lord C. J. Parker, having taken time to consider of it, decreed 
 defendant to account for the personal estate, having just allowances, &c, 
 and to convey the real estate to plaintiff, subject to the payment of 
 testator's debts, as a trustee for the plaintiff. 
 
 Vin. Abr. tit. Devise (Z), 2, pi. 11 ; Bransby v. Keridge, &«. ; [1 P. Wins. 548, S. 
 C. cited. But this decree of Lord Parker was afterwards reversed by the Lords ; 3 
 Bro. P. C. 358 ; and so, it seems, was another of his decrees of alike kind in Andrews 
 v. Powys, 8 Vin. Abr. p. 548 ; 11 Vin. Abr. p. 59 & 66. For Lord Hardwicke, in 
 Barnsley v. Powell, 1 Ves. 287, says : " It is certainly now settled by the Lords in 
 Bransby v. Keridge, that this court cannot set aside a ivill of personal estate for fraud , 
 nor will I infringe on what is laid down there, and in Powys v. Andrews, and in the 
 case of Mr. Hawkins's ivill; and in Bennett v. Wade, Lord Hardwicke speaks of the 
 case of Andrews v. Powys in like terms. But, where a will was both of real and per- 
 sonal estate ; and as to the former it had been found by the jury to be forged, and the 
 plaintiff's consent to probate had been procured by fraud ; Lord Hardwicke, upon the 
 ground of this fraud, and not upon any supposition of a right to examine the validity 
 of the will in contradiction to the probate, relieved against the will, and ordered the 
 defendants to consent to a revocation of the probate ; and intimated that if this should 
 not be consented to, he should go further and make the executors trustees. Barnsley 
 v. Powell, ubi suprcl. So, too, in Sheffield v. Duchess of Buckingham, 1 Atk. 630. 
 Lord Hardwicke granted an injunction to restrain the duchess from further contro- 
 verting the will of her husband ; but he founded this injunction on an admission of 
 the will by the duchess in a former suit, in which it was agreed to be well proved : 
 and he admitted that in an adversary way the Court of Chancery or a court of law 
 could not determine on the validity of a probate. See Mr. Hargrave's learned argument 
 on the effect of sentences of courts ecclesiastical in cases of marriage.} 
 
 A bill was likewise brought to set aside a will of a personal estate, and 
 to stay the probate, upon a suggestion of its being obtained by fraud ; 
 and the defendant demurred to the jurisdiction of Chancery, whereupon 
 an injunction was moved for, insisting that the demurrer confessed the 
 fraud, and that fraud was cognisable in equity as well as in the spiritual 
 court ; but the injunction was denied. 
 
 2 P. Wms. 286, Stevenson v. Gardiner. And per cur. the spiritual court has juris- 
 diction of fraud relating to a will of personal estate, and can examine the parties by 
 way of allegation touching the same, and if the will was read falsely to testatrix, then 
 it was not her will. Ibid. {See 5 Ves. J. 647.}
 
 588 OF WILLS AND TESTAMENTS. 
 
 (H) How Wills may be avoided. [Fraud.) 
 
 {Parol evidence may be given of questions asked by the testator at the 
 time of executing his will, whether the contents were the same as those 
 of a former will, to which he was answered in the affirmative ; in order 
 to set aside the latter will on the ground of fraud. So evidence may be 
 given to show that one paper was substituted for another. 
 
 8 Term, 147, Doe v. Allen. 
 
 So parol evidence to show that the testator executed a will under 
 duress may be received ; but the subsequent declarations of the testator 
 himself to that effect are not admissible. 
 
 2 Johns. Rep. 31, Jackson v. Kniffen, by three judges against two. See 2 Binn. 
 406, Havard v. Davis. 
 
 A particular clause inserted in a will by fraud or mistake may be ex- 
 punged, and the rest of the will established. 
 
 Barton v. Robins, Parmenter v. More, Garnett v. Sellers, Price v. Barnsley, and 
 Bridge v. Arnold, cited 5 Yes. J. 639. 
 
 And an addition has been made to a will, where a clause was omitted 
 by mistake. 
 
 Thus the testator, Dr. Gerrard, had given instructions to an attorney to 
 make his will, and a few months afterwards wrote to the attorney to ap- 
 point another executor, and directing his wife's name to be inserted as 
 residuary legatee. The attorney forgot her Christian name, and therefore 
 left a blank for her name ; and the will being returned to the testator he 
 did not fill up the blank ; but her name appeared in the instructions. 
 The omission being accounted for, the will, together with the instructions, 
 was pronounced for as the last will of the deceased. 
 
 5 Ves. J. 640. 
 
 A similar case occurred upon the will of a Mr. Janssen, containing a 
 provision for his two daughters, and giving instructions to his attorney 
 for giving the residue to one of them. That direction was at the top of 
 the instructions. The attorney thought it better to put the residuary 
 clause at the end, but when he got to the end he forgot it ; and the 
 testator did not observe the omission. The delegates established the 
 appointment in favour of the daughter as residuary legatee. 
 
 5 Yes. J. 640. See 8 Yes. J. 97, Holder v. Howell. } 
 
 Where a bill is brought to prove a will of lands, the sanity of the tes- 
 tator must be proved ; but it is otherwise in case of a deed of trust to 
 sell for payment of debts. 
 
 3 P. Wms. 93, Harris v. Ingledew. A will was set aside after forty years' posses- 
 sion under it, upon account of the insanity of the devisor, and although in prejudice 
 of a purchaser. Vin. Abr. tit. Devise (Z), 2, p. 169, Squire v. Pershall. {The sanity 
 of the testator is to be presumed until the contrary appears: the proof of his mental 
 ;ncapacity lies upon him who alleges it. But after a general derangement has been 
 shown, it is then incumbent on the other side to prove that the testator was sane at 
 the very time when the will was executed. 5 Johns. Rep. 144, Jackson v. Van Dusen. 
 Aiil?, Yol. v. p. 7 ; contra., 1 Mass. T. Rep. 71, Phelps v. Hartwell ; Ibid. 335, Blaney 
 v. Sargeant. As to the proof of sanity, see further 3 Mass. T. Rep. 330, Poole v. 
 Richardson ; 1 Wash. 225 ; 1 Hen. & Mun. 476, Temple & Taylor v. Temple ; 1 Bay, 
 335, lleyward v. Hazard.} 
 
 A will hath relation only to the testator's death, and not to the making ; 
 for till his death he is master of his own will : and therefore the will of a 
 papist in Ireland was held to be avoided by a subsequent statute made in
 
 OF WILLS AND TESTAMENTS. 589 
 
 (II) How Wills may be avoided. (Fraud.) 
 
 that kingdom, which enacts, that the lands of papists there shall not be 
 devisable, but descend in gavelkind. 
 Vin. Abr. tit. Devise, (H), G, pi. 7, Burk v. Morgan. 
 
 It has been said, fhat wills (of personal estates only) though gained 
 by fraud, if proved in the spiritual court, are not to be controverted in 
 equity. Thus, where — 
 
 A made his will, and thereby gave the plaintiff the greatest part of 
 his personal estate, to the value of 5000Z., as was proved in the case ; 
 but one B, his maid-servant, had, in his sickness, prevailed on him (as 
 was alleged) to make another will, and to marry her a week before his. 
 death, when he lay in his sick bed, at six of the clock at night, though it 
 was really proved by two ministers, that she was, a year before, actually 
 married to the defendant M, and was then his wife ; and that M procured 
 the license for the marriage of A to B. And this will being set up by 
 M, executor to B, though it appeared there was as gross practice as could 
 be, in gaining the will, the testator being non compos, both at the time 
 of making this will, and also at the time of his supposed marriage ; and 
 that in his health he knew that M and B were married ; and that B sup- 
 pressed the first will : yet that will so set up, being proved in the Pre- 
 rogative Court, and the matter in question being purely relating to the 
 personal estate, the Lord Chancellor was of opinion, that whilst that pro- 
 bate stood, this matter was not examinable in Chancery ; and though the 
 fraud was fully proved, and was opened to him, he would not hear any 
 proofs read, but dismissed the bill. 
 
 2 Vern. 8 & 9, Archer v. Mosse. 
 
 So, where an executor proved a will of a personal estate, wherein one 
 of the legacies was forged, it was decreed, that the executor had no re- 
 medy in equity, but ought to have proved the will, with a special reser- 
 vation as to that legacy. 
 
 1 P. Wins. 388, Plume v. Beal. 
 
 But though wills (of personal estates only) gained by fraud, and proved 
 in the Spiritual Court, are not to be controverted in equity, yet if the 
 party claiming under such will comes for any aid in equity he shall not 
 have it. 
 
 2 Vern. 76, Nelson v. Oldfield. 
 
 It has been determined likewise, that the courts of equity can hold 
 plea concerning a legacy, and likewise concerning the devise of the resi- 
 duum, which is but a legacy : and they may, in notorious cases, decree a 
 legatee, who has obtained a legacy by fraud, to be a trustee for another ; 
 as if the drawer of the will should insert his own name instead of the name 
 of a legatee. 
 
 1 Stra. G73, Marriot v. Harriot. 
 
 ]| And where a strong case was made out on affidavits of the executor's 
 undue influence over the testatrix, of her habitual intoxication, &c, the 
 Court of Chancery granted an injunction to restrain the executor claim- 
 ing under the will and under an alleged gift inter vivos, from converting 
 the property into money. 
 
 Edmunds v. Bird, 1 Ves. & B. 542 ; and see 6 Yes. 172 ; 2 Yes. & B. 262. || 
 
 But it has been decreed in the House of Lords, that a will of a real 
 estate could not be set aside in a court of equity for fraud or imposition, 
 
 3D
 
 590 OF WILLS AND TESTAMENTS. 
 
 (H) How Wills may be avoided. (Fraud.) 
 
 but must first be tried at law on devisavit vel non, being matter proper 
 
 for a jury to inquire into. 
 
 1 Abr. Eq. Cas. 406, Bransby v. Keridge. ||See Jones v. Jones, 7 Price, 663; 
 Trimbleston v. D' Alton, 1 Bligh. R. N. S. 427. || 
 
 1 1 On an issue of devisavit vel non, directed by the Court of Chancery 
 to try the validity of the will of Mr. Bennett, tried at the bar of the 
 Court of Exchequer, the heir at law sought to set aside the will on the 
 ground of weakness in the testator, and dominion exercised over his mind 
 by others. It appeared that he was naturally weak and childish, and 
 drank to such an excess as to affect both body and mind, and was under 
 the influence of the devisee, a woman for whom he had an inclination. 
 The Chief Baron Eyre, in summing up, told the jury there was another 
 ground, which, though not so distinct as actual force, yet, if it could be 
 proved, would certainly destroy the will ; that is, if a dominion was ac- 
 quired by any person over a mind of sufficient sanity to general purposes, 
 and of sufficient soundness to regulate his affairs in general, yet if such 
 dominion were acquired over him as to prevent his exercise of that dis- 
 cretion, it would be equally inconsistent with the idea of a disposing 
 mind ; and perhaps the most probable instance of such a dominion being 
 acquired was, that of an artful woman, like the present, having taken 
 possession of a man and subdued him to her purpose. The case must 
 turn on one or other of these grounds, — either on the general capa- 
 city of Mr. B. to act for himself in the momentous instance of making 
 his will, or on the ground of dominion or influence acquired over him by 
 the woman. He did not think it necessary to go so far as to make a 
 man absolutely insane, so as to be an object for a commission of lunacy, 
 in order to determine the question whether he was of sound and disposing 
 mind, memory and understanding. A man, perhaps, might not be in- 
 sane, and yet not equal to the important act of disposing of his property 
 by his will. His lordship, on the whole, thought the weight of evidence 
 in favour of the plaintiff; and the jury found accordingly in favour of the 
 will. 
 Mountain v. Bennett, 1 Cox's R. 353. || 
 
 pAn alteration made in a will by a person claiming under it, whether 
 material or immaterial, renders it void. 
 Jackson v. Malin, 15 Johns. 293. 
 
 But an immaterial alteration to a will, made by a stranger, does not 
 invalidate it. 
 
 Malin v. Malin, 1 Wend. 625. (j
 
 ^INDEX TO VOL. X. 
 
 A. 
 
 Advancement, what shall be considered a trust, and what an, 209. 
 Agistment, what, 12. 
 
 when tithable, 12. 
 Agreements concerning tithes, 72. 
 
 when usurious, 268. 
 Alien enemy cannot make a will, 484. 
 Allowance to trustees, when to be made, 260 
 Alteration, effect of an, in a will, 590. 
 Animalia fntctuosa, what, 14, 15. 
 Animalibus inutilibus, what, 14, 
 
 utilibus, what, 14. 
 Animals, when the young of, are tithable, 24. 
 Apportionment of tithes in a parish, 32. 
 Assent of husband, effect of, 482. 
 Attestation to a will, effect of, 490. 
 
 where to be made, 491. 
 
 clause, effect of, 492. 
 
 B. 
 
 Bargain and sale to uses, effect of, 147. 
 
 Bees, when tithable, 26. 
 
 Birth of a child, how far a revocation of a will, 570. 
 
 Blind, effect of will of one who is, 496. 
 
 Bog, when tenant may dig, 428. 
 
 Breach of trust, effect of, 213. 
 
 c. 
 
 Cancelling of a will, effect of, 541, 546. 
 
 prima facie evidence of revocation, 54t. 
 Certainty required in a verdict, 346. 
 Cestui que trust, power of, 258. 
 right of, 258. 
 
 may convey trust-estate, 258. 
 trust property when liable for debts of, 259. 
 forfeitures by, 259. 
 suits by and against, 261. 
 how far protected, 263. 
 what acts of, will destroy a trust, 217. 
 Change of venue, when motion for, to be made, 370. _ _ 
 
 certainty required in an affidavit on which a motion is made to, 61 I 
 cases when there can be no, 372. 
 Childishness will invalidate a will, when, 483. 
 Children, posthumous, to what entitled, 567, 570. 
 Coal, when tenant in dower may dig, 428. 
 Codicil, what, 487. 
 
 effect of, 511. 
 nature of, 532. 
 Collateral warranty, nature of, 403, 404. 
 who bound bv, 403. 
 
 (591)
 
 592 INDEX. 
 
 Commissions, when trustees are entitled to, 260. 
 Composition real, payment of tithes by, 49. 
 Compurgators, who are, 383. 
 
 how sworn, 383. 
 Construction of a will, how made, 533. 
 Consummation of a will, what, 533. 
 Contingent remainders, how to be executed, 157. j 
 Contract, when usurious, 268. 
 Conusance of jurisdiction of Universities, how to be demanded, 106. 
 
 by whom to be demanded, 106. 
 when to be demanded, 107. 
 Conveyances to uses, of the several sorts of, 129. 
 feoffments, 130. 
 fines, 130. 
 recoveries, 130. 
 Copulative terms, effect of, 540. 
 Corn, when tithable, 10. 
 
 Counts, consequences of joining good and bad, 309. 
 Covenant to stand seised to uses, nature and effect of, 136. 
 
 who may make, 137. 
 to whom may be granted a, 137. 
 consideration necessary to, 140. 
 extends how far, 140. 
 by what words created, 144. 
 
 D. 
 
 Deaf and dumb cannot make a will, when, 483. 
 
 Declaration of trust, what amounts to a, 193. 
 
 Deeds declaring the uses of feoffments, fines and recoveries, 130. 
 
 Defects cured by verdict, what are, 354. 
 
 Depasturing, what, 12. 
 
 Descendable, a use is, 119. 
 
 Discharge of tithes by grant, 65. 
 
 bull, 65. 
 
 order, 66. 
 
 unity of possession, 70. 
 Disjunctive terms, effect of, 540. 
 Dovediouses, waste to, 428. 
 Dower cannot be had in a use, 125. 
 Drunkard cannot make a will, when, 483. 
 
 E. 
 
 Eggs, when tithable, 24. 
 
 Equity will grant relief in cases of waste, when, 474. 
 
 Estrepement, when it lies, 467. 
 
 KviJence in cases of usury, 304. 
 
 Excusable waste, what is, 434. 
 
 Executors when liable for, 447. 
 
 Executory fees, how limited, 149. 
 
 with regard to freeholds, 152. 
 resnect to chattels, 154. 
 Exilium, what, 421. 
 Extrinsic evidence, when proper to explain a will, 537. 
 
 F. 
 
 Feme, not dowable in a use, 125. 
 
 covert, not able to make a will, 481. 
 Ferce natures, when animals, tithable, 24. 
 Fidei commissa, what, 113. 
 
 abolished in Louisiana, 113. 
 Fidei commissarius, who, 113.
 
 INDEX. 593 
 
 Fish, when tithable, 26. 
 
 ponds, waste to, 428. 
 Fixtures, when it is waste to remove, 431. 
 
 trade, what, 433. 
 Forfeiture, cannot be of a trust, 124. 
 Fraud, when will can be set aside for, 585. 
 Fruit when not tithable, 7. 
 
 G. 
 
 Gardens, what, 428. 
 
 General verdict, what, 308. 
 
 Glebe lands, when tithable, 48. 
 
 Grammar, a will, not always to be construed according to the rules of, 540. 
 
 H. 
 
 Handwriting, in what, a will may be, 489. 
 
 to a will, how proved, 499. 
 Hay, when tithable, 10. 
 
 Hazard, what will take a contract out of the statutes of usury, 285. 
 Heirs, effect of, in a will, 488. 
 Hereditaments, meaning of, 126. 
 Holograph testament, what, 518. 
 Honey, when tithable, 26. 
 Houses, waste to, 428. 
 
 I. 
 
 Immaterial issue, effect of a verdict on, 323. 
 Inception, what, 533. 
 Infant, when able to make a will, 481. 
 Informal issue, effect of verdict on, 323. 
 Injunction lies to restrain waste, 464, 467. 
 Insensible issue, effect of a verdict on, 326. 
 Insufficient issue, effect of a verdict on, 326. 
 Intestate, who is, 480. 
 
 J. 
 
 Judgment in actions of waste, for what given, 461. 
 Jury, power of, over verdict, 315. 
 
 effect of separation of, 317. 
 
 consequences of misbehaviour of, 317, 318. 
 Juror, consequences of misbehaviour of, on verdict, 316. 
 Justifiable waste, what is, 435. 
 
 L. 
 
 Land, waste to, 423. 
 
 Language, in what, a will may be written, 489. 
 
 Leases concerning tithes, 72. 
 
 Jjer loci, when to govern in the construction of wills, 534. 
 
 Liability of trustees, what, 247, 253. 
 
 for neglect in calling in debt, when, 250. 
 
 interest, when, 250. 
 
 using trust money, 251. 
 
 misapplying funds, 251. 
 
 each other, 255. 
 Limitation, an express trust is not within the act of, 192. 
 
 of actions in cases of usury, 300. 
 Lineal warranty, what is a bar to, 402. 
 Lunatic, when able to make a will, 482, 483. 
 
 Vol. X.— 75 3 d 2
 
 594 INDEX. 
 
 M. 
 
 Mark, -when a sufficient signature, 490. 
 
 Marriage, how far a revocation of a will, 568. 
 
 Matter of estoppel, of a verdict which is contrary to a, ^352. 
 
 record, of a verdict which is contrary to a, 351. 
 Meadows, waste to, 423, 428. 
 Mines, what is waste to, 428. 
 Misbehaviour of jurors, verdict set aside for, 316. 
 
 parties, verdict set aside for, 321. 
 Mixed tithes, how to be set out, 44. See Tithes. 
 Modo et forma, effect of, 343. 
 Modus, what, 50. 
 
 certainty required in a, 53. 
 
 of a, which has not been constantly paid, 57. 
 
 of a leaping, 58. 
 
 of a rank, 58. 
 
 of a, which amounts to prescription, 56. 
 
 liable to fraud, 61. 
 
 for such persons as live out of the parish, 01. 
 
 extent of a, 62. 
 
 suit in equity to establish a, 90. 
 
 N. 
 
 Negligent waste, what, 422. 
 Non decimendo, prescription in a, 63. 
 Nuncupative will, what, 487, 529. 
 equisites of, 530. 
 
 Orchards, waste to, 428. 
 
 0. 
 
 Parks, waste to, 428. 
 Pencil, a will may be written with a, 490. 
 Permissive waste, what, 422. 
 Person, meaning of, 126. 
 Persona mixta, who is a, 26. 
 
 Personal tithes, who is liable to pay, 9. bee, Tithes. 
 what, 9. 
 how paid, 39. 
 Persuasion of a testator, effect of, 487. 
 Post obit, not usurious, 286. 
 Posthumous children, to what entitled, 567. 
 F'ower of revocation of uses, 160. 
 relating to lands, what, 100. 
 
 is appendant, 160. 
 in gross, 160. 
 of cestui que trust, 258. 
 Predial tithes, what, 11. See Tithes. 
 
 how set out, 39. 
 Prescription non decimendo, what, 03. 
 Presentation to the livings of papists, when to be made, 1U7. 
 
 to whom to be made, JU9. 
 how the right of, may be prevented, 108. 
 proceedings in equity, relating to, 109. 
 how right of. may be divested, 110. 
 
 Privy verdict, what, 308. 
 
 Process in actions of waste, form of, 451. 
 
 Progression, what, 533.
 
 INDEX. 595 
 
 Prohibition lies to a suit in spiritual court for subtraction of tithes, 79. 
 Properties of an estate in use, 113. 
 
 it is alienable at common law, 113. 
 by statute, when, 115. 
 Publication what is a, of a will, 490. 
 what is evidence of, 502. 
 
 R. 
 
 Recitals, when established by a verdict, 361. 
 
 Refreshments, when a verdict will be rendered void, because the jury took, 3G3. 
 Remainders, how to be executed, 157. 
 defeated, 158. 
 
 where there is no power of revocation, 158. 
 where is an express power, 160. 
 suspended, revived, or extinguished, 167. 
 Repairs of trust-estate, how to be borne, 253. 
 Republication of a will, what, 504. 
 
 how made, 504. 
 parol, when sufficient, 505. 
 not, 505. 
 Resulting uses, what, 176. 
 trust, what, 199. 
 
 when one buys land, and the money is paid by another. 208. 
 must arise at the time of making deed, 208. 
 cannot be against intention of the parties, 208. 
 Revocation of a will, what, 541. 
 
 is express or implied, 542. 
 effect on a former will, 542. 
 by cancelling, what, 541, 546. 
 codicil, effect of, 552. 
 subsequent devise, 555. 
 change of estate, 557. 
 marriage, 568. 
 Right of cestui que trust, 258. 
 
 s. 
 
 Sealing to a will, when required, 490. 
 
 not, 490. 
 Second uses, what, 184. 
 
 Securities, when avoided on the ground of usury, 285. 
 Seised, meaning of, 126. 
 Shifting uses, what, 104. 
 Signature to a will, what is a sufficient, 490. 
 Silva ccedua, what, 21. 
 Small tithes, what, 33. 
 Special verdict, what, 309. 
 
 requisites of, 313. 
 when defective, 313. 
 Stock, what, 536. 
 Subtraction of tithes, suit for, 76. 
 
 in spititual court, 76. 
 Chancery, 82. 
 action upon the statute against, 91. 
 Suit in spiritual court for subtraction of tithes, 76. 
 
 a court of equity for subtraction of tithes, 82. 
 
 T. 
 
 Tenet, when waste lies in the, 454. 
 Tcnuit, when waste lies in the, 456. 
 Terms which wait on the inheritance, what, 168. 
 in gross, how limited, 173.
 
 596 INDEX. 
 
 Testament, what, 479. 
 Testator, who is, 480. 
 
 must he capable to make a will, 485. 
 intend to make a will, 485. 
 have a free mind, 486. 
 Tithes, what, 5. 
 
 origin of, 5. 
 nature of, 5. 
 what things pay, 7. 
 who liable to personal, 9. 
 what predial things pay, 11. 
 agistment, how paid, 12. 
 of corn, 10. 
 hay, 16. 
 wood, 17. 
 
 young of animals, 24. 
 eggs, 24. 
 wool, 25. 
 fish, 26. 
 honey, 26. 
 bees, 26. 
 milk, 26. 
 to whom general, to be paid, 26. 
 
 parochial, to be paid, 27. 
 right to a portion of, in a parish, 32. 
 by whom, to be paid, 33. 
 what shall be considered small, 33. 
 
 how far custom of a parish is to be regarded in setting out, 30. 
 time and manner of paying personal, 39. 
 setting out predial, 39. 
 paying mixed, 44. 
 tithes done by custom, 45. 
 composition real, 49. 
 when payment of, suspended, 46. 
 
 when a modus is a real composition of, 50. See Modus. 
 of a prescription in non decimando, 63. 
 discharge of, by grant, 65. 
 " bull, 65. 
 order, 66. 
 
 unity of possession, 70. 
 agreements and leases concerning, 72. 
 suit in spiritual court for subtraction of, 76. 
 
 Chancery for subtraction of, 82. 
 where prohibition lies to a suit in spiritual court, for subtraction of, 7.). 
 suit in equity, to establish a modus, 90. 
 action upon the statute against subtraction of, 91. 
 Trade fixtures, what are. 433. 
 Traitor cannot make a will, 484. 
 Trees, waste to, 424, 428. 
 
 when to be cut down without committing waste, 436. 
 Trial in cases of usury. 304. 
 Trustees, how far answerable for each other, 255. 
 removed, 258. 
 compensation of, 260. 
 suits by and against, 261. 
 corporations may be, 262. 
 when executors will be considered, 262. 
 who shall be considered. 262. 
 what act of, shall defeat a trust, 217. 
 when guilty of a breach of trust, 213. 
 how far favoured, 247. 
 liability of, 247, 253. See Liability. 
 for neglect, 250. 
 interest, 250.
 
 INDEX. 597 
 
 Trustees, liability of, for using trust money, 251. 
 
 misapplying funds, 251. 
 buying trust estate at an under value, 253. 
 letting insolvent co-trustee have trust funds, 253. 
 mixing up trust funds with his own, 253. 
 Trusts, what, 188. 
 
 nature of, 190. 
 
 general rules relating to, 190. 
 difference between executed and executory, 190. 
 not liable to escheat, 191. 
 
 act of limitations does not operate on express, 192. 
 secret, not recognised, 193. 
 what amounts to a declaration of, 193. 
 is a resulting, 199. 
 
 trust by implication, 199. 
 when to be executed, 225. 
 Tythes, what, 5. See Tithes. 
 
 u. 
 
 Underwood, what, 21. 
 Universities, what, 101. 
 
 of, their courts and privileges, 102. 
 
 conusance of jurisdiction, how to be demanded, 106. 
 
 by whom to be demanded, 106. 
 of their privileges with regard to presentation to the livings of papists, 107. 
 Uses, what, 111. 
 
 incidents of, 111. 
 origin of, 113. 
 alienable, 113. 
 
 property of an estate in, at common law, 113, 114. 
 
 by statute, 115. 
 
 is descendible, 119. 
 devisable, 122. 
 not extendible, 124. 
 not forfeitable, 124. 
 not liable to dower, 124. 
 inconveniences of, 125, 
 
 alteration in conveyances to, by stat. 27 II. 8, c. 10, 126. 
 of the several sorts of conveyances to, 129 
 deeds declaring the, of feoffments, 130. 
 
 fines, 130. 
 recoveries, 130. 
 who may declare, 130. 
 to whom, may be declared, 132. 
 how declared, 133. 
 when to be declared, 134. 
 in what cases averments may be made of, 135. 
 
 what consideration necessary to a covenant to stand seised to uses, 140. 
 by what words a man may covenant to stand seised to uses, 144. 
 several kinds of, 149. 
 in possibility, 149. 
 cases out of the statute of, 167. 
 terms in gross may be limited to uses, 173. 
 resulting, what, 176. 
 by implication, 176. 
 of shifting, 1S4. 
 manner of pleading, 187. 
 Uses and Trusts, 111. See Uses; Trusts. 
 Usury, what, 204. 
 
 at common law, what, 264. 
 
 by statute, 265. 
 
 an agreement required to constitute, 272. 
 
 what contract is affected with, 273, 274.
 
 598 INDEX. 
 
 Usury, charge of commissions when not, 281. 
 
 it is, 281. 
 fair purchase of a bond or note is not, 281. 
 to constitute, the contract must be usurious in its inception, 283. 
 there must be a loan, 284. 
 
 unlawful interest reserved, 284. 
 
 an agreement that the money shall be returned, • 
 
 284. 
 an intention to violate the law, 284. 
 what hazard will take the contract out of the statute of, 285. 
 in what cases securities shall be avoided in consequence of, 287. 
 relief given on contracts tinctured with, 293. 
 how far securities affected, 295. 
 pleadings in cases of, 299. 
 trial and evidence in cases of, 304. 
 
 V. 
 
 % Venue, what, 364. 
 
 when necessary, 364. 
 
 not required, 365. 
 sufficiently laid, 365. 
 what is a proper laying of the, 366. 
 may be changed, when, 370. 
 
 in what cases, 370. 
 when there can be no change of, 372. 
 Verdict, what, 300. 
 
 de bene esse, what, 307. 
 privy, what, 308. 
 general, what, 308. 
 
 effect of, 363. 
 special, what, 309. 
 
 province of the court on, 313. 
 when bad, for misbehaviour of a juror, 316. 
 power of the jury over, 315. 
 
 when bad, for misbehaviour of one of the parties, 321. 
 on informal issue, effect of. 323. 
 immaterial issue, effect of, 323. 
 insensible issue, effect of, 326. 
 insufficient issue, effect of, 326. 
 of a, which does not find all that is in issue, 327. 
 of a, which finds a thing not in issue, 330. 
 of a, which varies from the issue, 332. _ 
 
 in assumpsit, 332. 
 case, oo4. 
 covenant, 335. 
 debt, 335. 
 ejectment, 337. 
 replevin, 339. 
 trespass, 340. 
 other actions, 341. 
 criminal prosecutions, 342. 
 of a, where the words modo et forma, are contained in the traverse upon 
 
 which issue is joined, 343. 
 of a, which does not find the matter in issue with certainty, 340. 
 of a, which does not find the matter in issue expressly, 348. 
 of a, which finds a matter in a foreign country, 349. 
 of a, which contrary to a matter of estoppel, 352. 
 of a, which contrary to a matter of record, 351. 
 
 of a, contrary to something, confessed or not denied in the pleadings, 353. 
 what omission in the pleadings is cured by, 354. 
 
 copy of the issue is cured by, 359. 
 how far a, establishes rocitals in a deed, 361. 
 may be taken after death of a sole plaintiff, when, 363. 
 in what currency to be given, 363, 364. 
 in trover, how to be entered, 364.
 
 INDEX. 599 
 
 Yicinetum, what, 3G4. 
 Void, what, 374. 
 
 difference between voidable and, 374. 
 what acts are absolutely, 374. 
 
 is to all purposes, 374. 
 acts of infant, when, 374. 
 
 feme covert, when, 374. 
 probate of a will of feme covert, is, 375. 
 bond for a purpose malum in se, 375. 
 
 malum prohibitum, 375. 
 ministerial acts, when, 375. 
 agreement in restraint of trade, 376. 
 
 for sale of an office, is, 376. 
 what acts are void as to some purposes only, 377. 
 what acts are void as to some persons only, 378 
 acts by operation of law, when made valid, 378. 
 Voidable acts, how made valid, 380. 
 avoided, 381. 
 by whom avoided, 382. 
 Voluntary waste what, 422. 
 
 w. 
 
 Wager of law, what, 383. 
 
 in what actions allowed, 383. 
 reasons for allowing, 383. 
 manner of, 384. 
 when, 385, 
 in what allowed, 386. 
 to whom allowed, 390. 
 against whom allowed, 391. 
 when defendant is not entitled to, 392. 
 Warranty, what, 394. 
 
 * kinds of, 394. 
 
 to what things a. may be annexed, 395. 
 what clauses in deed will make a, 396. 
 deemed a good, in a deed, 397. 
 in law, 400. 
 alterations by statute respecting, 403. 
 effects of, in a deed, 406. 
 what use may be made of a, in deed, 407. 
 who may take advantage of a, 409. 
 who liable on a, 409. 
 when avoided, 413. 
 how expounded, 416. 
 in the sale of personal chattels, 418. 
 express, of personal chattels, 418. 
 implied, of personal chattels, 418, 419. 
 when the action of, shall be in the tenet, 454. 
 
 tenuit, 456. 
 judgment in actions of, 461. 
 when restrained by injunction, 464, 467. 
 what relief equity will give in cases of, 474. 
 Waste, what, 420. 
 
 on what subjects committed, 421. 
 several kinds of, 422. 
 what acts shall be deemed, 422. 
 in lands, what, 423. 
 
 trees, woods, &c, what, 424. 
 digging gravel, mines, &c, what, 427. 
 gardens, what, 428. 
 orchards, what, 428. 
 fish-ponds, what, 428. 
 dove-houses, what, 428. 
 parks, what, 428. 
 meadows, what, 428.
 
 600 INDEX. 
 
 Waste, in houses, what, 429. 
 
 removal of fixtures, when, 431. 
 by ecclesiastical persons, what, 434. 
 what is excusable, 434. 
 justifiable, 435. 
 who may bring an action of, 438. 
 against whom an action of, may be brought, 438, 440. 
 when executors liable for, 447. 
 when an action of, may be brought, 448. 
 process and proceedings in, 451. 
 Will, what, 478, 479. 
 
 difference between testament and, 479. 
 what paper will amount to a, 480. 
 who may make a, 481, 484. 
 
 infant, when, 481. 
 feme covert, when, 481. 
 lunatic, when, 482. 
 non compos, when, 483. 
 drunkard, when, 483. 
 alien enemy, when, 484. 
 traitor, when, 484. 
 suicide, when, 484. 
 heretics, when, 484. 
 •equisites of, 485. 
 
 1. a legal testator, 485. 
 
 2. a devisee, 485. 
 
 3. an intention to make a, 485. 
 
 4. testator must be free, 486. 
 
 5. must be in form, 487. 
 kinds of, 487. _ 
 
 in writing, 487. 
 
 1. to pass lands, 488. 
 
 2. to pass goods, 514. 
 
 3. what is proof of, 517. 
 nuncupative, 529. 
 
 nature and effect of, 532. 
 how construed, 533. 
 avoided, 540. 
 
 revoked, 541. See Revocation. 
 Witness to a will, who may be,491, 493, 497, 517 to 529. 
 
 number required, 500. 
 Wood, when tithable, 17. 
 Woodland, when it i-s no waste to clear, 438. 
 Wool, when tithable, 25. 
 Words, meaning of, 126. 
 
 person, 126. 
 
 seised, 126. 
 
 hereditaments, 120. 
 
 lawful seisin, state and possession, 127. 
 
 impeachment of waste, 467. 
 
 acquitto, 396. 
 
 dejendo, 396. 
 
 concessi, 396, 400. 
 
 demist, 396. 
 
 grant, bargain, and sell, 396. 
 
 seised of an indefeasible estate in fee-simple, 397. 
 
 dedi, 400. 
 
 assigns, 410. 
 
 and, 539. 
 
 or, 539. 
 Writing, in what, a will may be, 490. 
 
 Y. 
 
 Young of animals, when tithable, 24.
 
 ^GENERAL INDEX. 
 
 A. 
 
 Ab initio, who is a trespasser, ix. 448. 
 Abandonment, what, vi. G80. 
 
 when required, vi. 680. 
 
 not required, vi. 081. 
 to be made, vi. 682, 684. 
 acceptance of, vi. 682. 
 effect of, vi. 688. 
 of an assignment, what, i. 388. 
 Abatement, what, i. 1. 
 
 ^ 1o as in, to the jurisdiction of the court, i. 1. 
 person of the plaintiff, i. 2. 
 person of the defendant, i. 5. 
 demise of the king, i. 11. 
 death of parties, i. 11. 
 by reason of coverture, i. 18. 
 defect in writ, i. 20. 
 another action pending, i. 28. 
 of writ of error, iii. 352. 
 in partition there is no, v. 294, 297. 
 in trespass, ix. 514. 
 of legacies, what, vi. 298. 
 there is no, of specific legacies, vi. 298. 
 of legacy to executor for his pains, vi. 300. 
 for piety, vi. 299. 
 Abbot, power of, to make leases, v. 480. 
 Abduction, offence of, vi. 482. 
 Abeyance, remainders in, viii. 337. 
 Abortion, effect of an attempt to procure, vii. 186. 
 Absence when a forfeiture of office, vii. 322. 
 
 not, vii. 311. 
 Acceptance, effect of, vi. 780. 
 
 supra protest, vi. 787, 807. 
 
 what is good, vi. 798. 
 
 implied, vi. 800. 
 
 who bound by, vi. 802. 
 
 by agent, vi. 802. 
 
 effect of qualified, vi. 803. 
 
 after dishonour, vi. 804. 
 special, vi. 804. 
 bv intei'vention, vi. 808, 
 effect of, vi. 809. 
 
 of rent, a waiver of right of re-entry, v. 669. 
 Acceptor, when discharged, vi. 811. 
 
 accommodation, how far liable, vi. 813. 
 effect of discharge of, vi. 816. 
 Accessaries, in manslaughter there are no, vii. 205. 
 
 process of outlawry against, vii. 334. 
 Accession, who entitled to the, of swans, viii. 24. 
 Accident is not a battery, i. 372. 
 
 jurisdiction of chancery as to, ii. 688. 
 
 Vol. X.— 76 3 E (001)
 
 602 GENERAL INDEX. 
 
 Accidental stroke, effect of, ix. 462. 
 
 Accommodation notes and bills may be proved against the estate of bankrupt, when, 
 
 i. 701, 808. 
 acceptor, when liable, vi. 813. 
 Accomplice can be a witness, when, iii. 485. 
 Accompt, what, i. 43. 
 
 against whom it lies, i. 44. 
 Accord and satisfaction, what is, i. 54. 
 
 how pleaded, i. 61. 
 when a good plea, ii. 614. 
 
 not a good plea, vii. 597. 
 case of, iv. 124. 
 Account, what, i. 43. 
 
 against Avhom it lies, i. 44. 
 bill for an, vi. 562. 
 by mortgagee, how made, vii. 164. 
 stated, when assumpsit lies on, i. 396. 
 of burial fees, when evidence, iii. 574. 
 Accounts of churchwardens, ii. 245. 
 Accrue, when right of action is said to, vi. 381. 
 Accumulative legacy, what, vi. 298. 
 
 when bequeathed in same writing, vi. 298. 
 
 different writings, vi. 298. 
 Acid spirit of sulphur, buildings for manufacture of, a nuisance, vii. 229. 
 Acknowledgment of deeds by wife, effect of, ii. 49. 
 
 a debt, effect of, vi. 370, 400, 401. 
 what is, vi. 402. 
 to a stranger, effect of, vi. 403. 
 Acquiescence of husband not binding upon the wife, ii. 53. 
 
 in partition, effect of, ii. 362. 
 Act of bankruptcy, what is an, i. 641, 798. 
 
 departing the realm an, i. 642. 
 remaining abroad an, i. 643. 
 debtor absenting himself an, i. 645. 
 beginning to keep house an, i. 646, 803. 
 debtor suffering himself to be arrested, i. 648, 649, 803. 
 
 outlawed, i. 648. 
 procured his goods to be sequestered, i. 648. 
 convey his property, i. 648, 649, 803. 
 what an, without reference to intent, i. 652. 
 relation of, i. 746. 
 God, what, ii. 154. 
 
 its effects, ii. 335. 
 
 when rent is apportioned by the, viii. 520. 
 law, its effects, ii. 337. 
 
 when rent is apportioned bj, viii. 520. 
 parties, its effects, ii. 338. 
 infant, when void or voidable, v. 117. 
 how avoided, v. 138. 
 confirmed, v. 141. 
 parliament, when repealed, effect on covenant, ii. 590. 
 covenantee, when an excuse for non-performance of the covenant, ii. 593. 
 covenantor, when a sufficient evidence of a breach of covenant, ii. 595. 
 of a stranger, when good, ii. 341. 
 in pais, what, v. 125. 
 
 when binding on infant, v. 125. 
 not binding, v. 125. 
 Acts of legislature, how proved, iii. 533. 
 
 parliament, when binding on the king, viii. 92 ; what, ix. 217. 
 Congress, how passed, ix. 213, 214. 
 Action of covenant, when a proper remedy, ii. 559. 
 when prematurely brought, effect of, ii. 516. 
 upon the 31 Eliz. c. 5, pleadings in, ix. 27. 
 Actions, one to abate when two are brought for the same thing, i. 28. 
 different kinds of, i. 63.
 
 GENERAL INDEX. 603 
 
 Actions, in what cases they will lie, i. 66. 
 
 ■what things may be joined in the same, i. 69. 
 
 local and transitory, i. 78. 
 
 qui tain, in what cases they lie, i. 88. 
 
 on the case, i. 102. 
 
 by assignee of bankrupt, i. 751. 
 
 by administrator de bonis non, iv. 25. 
 
 when several causes of, may be joined, iv. 127, 133. 
 
 may be sustained by heir in right of ancestor, when, iv. 614. 
 
 aga'inst the hundred, under the statutes of hue and cry, when to be brought, 
 
 iv. 705. 
 on penal statutes, limitation of, vi. 371. 
 of assault and battery, limitation of, vi. 372. 
 slander, limitation of, vi. 372. 
 
 trespass, detinue, trover, replevin, account, and case, limitation of, vi. 375. 
 debt on award, limitation of, vi. 377. 
 on foreign judgment, limitation of, vi. 378. 
 
 contract founded in maleficio, limitations of, vi. 375. 
 equitable demand, limitation of, vi. 378. 
 when prematurely brought, vi. 825. 
 upon judgments, costs in, ii. 533. 
 for violation of patent right, viii. 134. 
 
 evidence in, viii. 134. 
 declaration in, viii. 134. 
 by assignee of a part, viii. 135. 
 jurisdiction of courts in, ii. 810, 
 of debt, what may be set off in, viii. 641. 
 by and against sheriff, viii. 720. 
 removal of, to U. S. courts, ii. 810. 
 Actionable words, what, ix. 33. 
 
 charging crimes, ix. 33. 
 
 treason, ix. 33. 
 murder, ix. 33. 
 perjury, ix. 34. 
 forgery, ix. 37. 
 burning barn, ix. 40. 
 fornication, ix. 41. 
 adultery, ix. 42. 
 regrating, ix. 42. 
 vagrancy, ix. 44. 
 illegal voting, ix. 44. 
 embracery, ix. 44. 
 charging contagious distemper, ix. 45. 
 an officer, ix. 45. 
 a trustee, ix. 45. 
 a tradesman, ix. 48. 
 a clergyman, ix. 48. 
 a physician, ix. 48. 
 an attorney, ix. 50. 
 Acliones nominatce, what are, ii. 682. 
 Actus, what, iv. 665. 
 
 Addition, in pleading, want of, its effects, i. 9. 
 required in an indictment, v. 73. 
 to writing, effect of, iii. 601. 
 of estate or degree, vii. 9. 
 
 mystery, vii. 12. 
 which is a conveyance to the action, vii. 13. 
 want of, how to be taken advantage of, vii. 19. 
 Ademption, what, vi. 198. 
 
 when there is an, of stock, vi. 207. 
 goods, vi. 208. 
 
 share in a partnership, vi. 208. 
 Adhering to the king's enemies, treason, ix. 398. 
 Adjective words, how construed, ix. 78. 
 Adjournment of parliament, how made, ii. 675. 
 Adjustment, effect of, vi. 677.
 
 , 
 
 604 GENERAL INDEX. 
 
 Administration purges the wrong of executor de son tort, •when, iv. 32. 
 by whom to be granted, iv. 43. 
 in peculiar jurisdiction, iv. 49. 
 form of taking out, iv. 50. 
 what is an acceptance of, iv. 54. 
 bond, when to be given, iv. 56. 
 
 form of, iv. 56. 
 may be revoked, when, iv. 60. 
 to whom granted, iv. 65. 
 to one or more persons, iv. 68. 
 for one thing or all the estate, iv. 68. 
 Administrator, definition of, iv. 5. 
 
 in Maryland, person of colour cannot be, iv. 8. 
 
 alien may be, iv. 8. 
 
 different kinds of, iv. 17. 
 
 durante minoritate, who may be, iv. 15. 
 
 what he may do, iv. 16. 
 his authority determines when, iv. 19. 
 de bonis non, when to be appointed, iv. 23. 
 to what entitled, iv. 24. 
 for what liable, iv. 24. 
 actions by, iv. 25. 
 pendente lite, iv. 34. 
 foreign, power of, iv. 46. 
 acts of, when valid, iv. 61. 
 distinction between executor and, iv. 133. 
 one of several, may plead the act of limitation, vi. 405. 
 is not bound to plead the act of limitation, vi. 406. 
 when scire facias will lie against, viii. 609. 
 Admiralty jurisdiction of D. C, ii. 815 ; vii. 445 ; viii. 19. 
 
 ordinary, ii. 815. 
 
 in prize suits, ii. 815. 
 cases of salvage, ii. 816. 
 cases of torts, ii. 816. 
 on contracts, ii. 816. 
 extraordinary, ii. 817. 
 
 in cases of seizure under the impost laws, ii. 817. 
 captures in U. S., ii. 818. 
 court of, ii. 733. 
 
 jurisdiction of, ii. 734. 
 
 over what places, ii. 735. 
 things, ii. 736. 
 contracts, ii. 739. 
 by what law it proceeds, ii. 744. 
 in what form, ii. 744. 
 Advancement, what, iv. 97 ; vi. 216. 
 
 to Avhat it must be charged, iv. 97. 
 charges when an, iv. 97. 
 depends upon circumstances, iv. 99. 
 when it is a resulting trust, iv. 99. 
 profits, not an, iv. 98. 
 by the custom of London, iii. 43. 
 what is a trust, find what an, x. 209. 
 Adultery of the wife, effect of, as to the husband's liability for necessaries furnished 
 to her, ii. 39, 45. 
 how punished in ecclesiastical courts, viii. 57. 
 Admittance of copyholder, ii. 389.^ 
 
 what acts amount to. ii. 399. 
 
 difference between surrender, presentment, and, ii. 400. 
 time of making, ii. -in I. 
 ,\d verse possession, effect of, vi. 307, 370. 
 
 against tenant in common, A'i. 369. 
 what is, vi. 370. 
 Advertisement in newspaper, when continuance in is wrong, iii. 26. 
 Affecrment, when required, iv. 241.
 
 GENERAL INDEX. 605 
 
 Affoorment, by whom to be made, iv. 243. 
 Affidavit, what, i. 14G. 
 
 manner of taking, i. 14G. 
 when necessary, i. 150. 
 defective, i. 152. 
 to hold to bail, when good, i. 539. 
 
 when made before a foreign magistrate, i. 541. 
 when evidence, iii. 559, 564. 
 Affirmation, form of, iii. 512. 
 Affirmative covenants, what, ii. 551. 
 pleas, what, vii. 591. 
 
 to be actionable, how far words must be, ix. G9. 
 statutes, what, ix. 234. 
 After-purchased lands, devise of, void, vi. 159. 
 
 born children, when to take as remainder-men, vi. 313. 
 Age, what is full, v. 98. 
 
 its effects upon dower, iii. 192. 
 Agents, how they ought to contract, i. 157. 
 
 when liable for money had and received, i. 405. 
 how appointed, i. 520. See Attorney in Fact. 
 in what name to make contracts, i. 525. 
 when they may transfer their power, i. 526. 
 power of, how revoked, i. 528, 529. 
 Agent, authority of, vi. 558. 
 
 may sign and endorse notes, when, vi. 558, 560. 
 who makes insurance may abandon, vi. 559. 
 recognition of his acts, effect of, vi. 559. 
 to receive rents may determine the tenancy, vi. 559. 
 cannot exceed his authority, vi. 561. 
 delegate his authority, vi. 561. 
 act adversely to his principal, vi. 573. 
 when personally liable, vi. 564, 572. 
 may sue, when, vi. 568. 
 public, not liable, vi. 569. 
 must obey instructions, vi. 572. 
 Agistment, what, x. 12. 
 
 when tithable, x. 12. 
 " Agreed," effect of this word in a lease, v. 564. 
 Agreement, what, i. 153. 
 
 who are capable of making, i. 154. 
 
 when decreed in specie in equity, i. 158. 
 
 unreasonable and fraudulent, i. 158. 
 
 entered into ex turpis causa, void, i 167. 
 
 voluntarv, when valid, i. 165. 
 
 what are* within the statute of frauds, and perjuries, i. 170. See Statute 
 
 of Frauds. 
 by executors and administrators, when binding, i. 172. 
 to pay the debt of another, i. 173. 
 made in consideration of marriage, i. 176. 
 entire, must be completed to entitle plaintiff to recover, i. 411. 
 concerning tithes, effect of, x. 72. 
 when usurious, x. 268. 
 Aid prier, nature of, vii. 632. 
 
 Alehouses, how far inns are within statutes respecting, V. 226. 
 Alia enormia, what may be given in evidence under, ix. 50;>. 
 Alias dictus, effect of, vii. 8. 
 Aliens, who are, i. 193. 
 friend, i. 210. 
 enemy, i. 210. 
 disadvantages of, i. 201. 
 cannot inherit, i. 202. 
 
 rule on this subject in some of the American State 1 ?, i. 202. 
 cannot hold lands, i. 203. 
 
 be endowed, i. 206. 
 how far subject to the laws, i. 208. 
 
 3e2
 
 606 GENERAL INDEX. 
 
 Aliens, what actions they may maintain, i. 210. 
 cannot be admitted as attorneys, i. 483. 
 ■when they may sue in D. C, ii. 818. 
 cannot sit in parliament, ii. 061. 
 enemy cannot make a will, x. 484. 
 how to be tried, v. 359. 
 
 cannot be devisees, when, vi. 10. See Enemy. 
 merchants allowed to trade, vi. 554. 
 may sue, when, vi. 555. 
 
 be arrested, when, i. 210. 
 act as attorneys in foot, i. 520. 
 be endowed, when, iii. 192. 
 be executors or administrators, iv. 8, 9. 
 take leases, vi. 555, 556. 
 be made bankrupts, vi. 555. 
 hold property, vi. 556. 
 be guilty of treason, ix. 382. 
 to what duties liable, ix. 130. 
 Alienage, a good plea in abatement, i. 3. 
 
 a good ground of challenge to a juror, i. 207. 
 when it may be pleaded, i. 214. 
 Alienation, conditions in restraint of, when good, v. 670. 
 
 void, viii. 393. 
 All actions and suits, effect of release of, viii. 286. 
 Allegiance, what, viii. 46. 
 
 all subjects bound by their, viii. 47. 
 
 citizens of the United States cannot cast off their, viii. 48. 
 Allodarii, who are, ix. 362. 
 Allowance what made to bankrupt, i. 771, 805. 
 to trustees, when to be made, x. 260. 
 Alluvion, what, ii. 735. 
 
 rights of king to, viii. 19, 22. 
 Almanac, writing in, evidence of pedigree, iii. 579. 
 Alteration in writing, effect of, iii. 603. 
 a note, effect of, vi. 847. 
 policy, when material, vi. 638. 
 a bond, when allowed, vii. 273. 
 a will, effect of, x. 590. 
 Alternate bequest, effect of, vi. 117. 
 Altum mare, what, ii. 737. Vide High Seas. 
 Ambassador, who is, i. 215, 219. 
 
 what suits he may bring, i. 216. 
 not amenable to the laws, when, i. 216. 
 may be suspended, or required to depart, i. 217. 
 those in the train of an, equally exempted, i. 220, 221. 
 how protected in the United States, i. 221. 
 privilege of, cannot be waived, i. 222. 
 residing abroad may be elected to parliament, ii. 667. 
 Ambiguitj 7 may be explained by parol evidence, when, iii. 605, 606. 
 Amendments, i. 222. 
 
 at common law, i. 223. 
 of declaration, i. 224. 
 statutes of, and jeofails, i. 226. 
 of criminal proceedings, when, i. 237. 
 civil proceedings, i. 239. 
 original process, i. 239. 
 imparlance roll, i. 242. 
 plea roll, i. 243. 
 jury process, i. 243. 
 verdict, i. 246. 
 when they may be made after terdict, i. 247. 
 when aided by verdict, i. 247. 
 of judgments, when allowed, i. 251. 
 at what time allowed, i. 255. 
 of record, when defaced, allowed, i. 259.
 
 GENERAL INDEX. 607 
 
 Amendments, of proceedings in equity, i. 259. 
 plea, when allowed, vii. 041. 
 information, when to he made, viii. 105. 
 indictment, when to he made, v. 87. 
 relating to jury when allowed, v. 370. 
 Amends, effect of tender of, ix. 301. 
 Amercement, what, vii. 183. 
 
 and fines, iv. 225. See Fines. 
 difference between fines and, iv. 230. 
 American ante-nati, allegiance of, viii. 48. 
 Amotion of members of corporations, for what, ii. 458. 
 Amoved.? manum, writ of, viii. 102. 
 Ancient demesne, what, i. 203. 
 
 privileges annexed to, i. 204. 
 may become a frank fee, i. 200. 
 how pleaded, i. 207. 
 lights, what, i. 110. 
 
 injunction to restrain obstructions to, v. 209. 
 deed, how proved, iii. 599. 
 will how proved, iii. 000. 
 statutes, what, ix. 213. 
 Animalia fructuosa, what, x. 14, 15. 
 Animallbus inutilihus, what, x. 14. 
 
 iitilibus, what, x. 14. 
 Animals, injuries by, i. 117, 118. 
 when unsound, i. 110. 
 
 heir or executor entitled to, iv. 83. 
 ferce nalara; what, iv. 431, 432. 
 
 when subject of larceny, iv. 170. 
 trover does not lie for, ix. 050. 
 when death is caused by, whether owner is guilty of murder, vii. 180. 
 who is entitled to wild, viii. 251. 
 when the young of, are tithable, x. 24. 
 Annual rests, when to be made, vii. 170. 
 Annuity, what, i. 208. 
 
 in what it differs from a rent, i. 209. 
 how created, i. 270. 
 remedies for the recovery of, i. 273. 
 statutory provisions in relation to, i. 278. 
 of setting aside, i. 280. 
 when it is to commence, i. 290. 
 determine, i. 290. 
 how principal of, to be secured, i. 290. 
 
 belonging to a bankrupt, when it vests in his assignees, i. 730. 
 curtesy of, not allowed, iii. 8. 
 cannot be apportioned, vi. 312; viii. 481. 
 effect of specific bequest of, vi. 294. 
 Answer in equity, when amendable, i. 201, 202. 
 
 evidence, iii. 550. 
 of one defendant, effect of, iii. 557. 
 required before the dissolution of injunction, v. 219. 
 injunction when granted till, v. 220. 
 by a corporation, how made, v. 220. 
 Antecedent, rule of construction of, viii. 400. 
 Antiqua custuma, what, ix. Ill, 118. 
 Appeal, what, i. 291. 
 
 different kinds of, i. 291. 
 of death, i. 291. 
 larceny, i. 291. 
 rape, i. 293. 
 mayhem, i. 293. 
 in what courts it may be brought, i. 293. 
 who may bring an, i. 294. 
 within what time it must be brought, i. 295. 
 in what county it must be brought, i. 295.
 
 60S GENERAL INDEX. 
 
 Appeal, how to be made, i. 29G. 
 writ of, i. 296. 
 
 declaration in cases of, i. 297. 
 plea in, i. 298. 
 false, how punished, i. 298. 
 when it may be taken in U. S. Courts, ii. 800. 
 from an inferior to a superior ecclesiastical court, ii. 723. 
 of mayhem, who is entitled to, vi. 408. 
 
 may be without indictment, v. 51. 
 Appearance, by an infant, i. 231. 
 
 fatal on error, v. 123. 
 of infant, must bo by guardian or prochein ami, v. 148. 
 
 wife, who is an infant, may be by prochein ami, ii. 61. 
 in outlawry, how made, vii. 363. 
 its effect to cure error, iii. 375. 
 Appellate jurisdiction of C. C. ii. 812. 
 
 by writs of error, ii. 812. 
 appeals from D. C. ii. 813. 
 certiorari, ii. 813. 
 procedendo, ii. 813. 
 Appendant, what is, iw 533. 
 
 common, what, ii. 261. 
 Appointment, when complete, vii. 290. 
 
 effect of a bequest subject to power of, vi. 268. 
 of tithes in a parish, effect of, x. 32. 
 Apportionment of contracts, when allowed, i. 414, 415. 
 common, how made, ii. 277. 
 interest may bo made, vi. 312 ; vii. 179. 
 dividends, not allowed, vii. 179. 
 
 rent, when to be made, viii. 472, 478, 480, 481, 493, 514. 
 in an annuity there is no, viii. 481 ; vi. 312. 
 of rent in respect of time, viii. 513. 
 
 the estate, viii. 515. 
 by acts of the parties, viii. 517. 
 act of law, viii. 520. 
 manner of, viii. 522. 
 Apprentice, who, vi. 500. 
 
 difference between servant and, vi. 501. 
 
 manner of binding, vi. 501. 
 
 for what service, may bo bound, vi. 508. 
 
 who can bind themselves, vi. 508. 
 
 power of master over, vi. 510. 
 
 justices of the peace may bind, vi. 510. 
 
 disputes between master and, vi. 510. 
 
 cannot be compelled to work on Sunday, vi. 513. 
 
 for what time, may be bound, vi. 519. 
 
 must serve time, to be entitled to follow a trade within the 5 Eliz. 
 
 vi. 520. 
 assigning of, effect of, vi. 526. 
 how taken care of, when master dies, vi. 528. 
 dissolution of contract between master and, vi. 530. 
 when master entitled to wages of, vi. 534. 
 how bound in London, iii. 49. 
 trover does not lie for an, ix. 649. 
 Appropriation of payment, when to be made, vii. 262 ; iii. 314. 
 
 by whom to be made, vii. 262. 
 civil law as to, vii. 262. 
 Approvement, what, i. 299 to 302. 
 
 and enclosure of commons, ii. 272. 
 Approver, who is an, i. 299. 
 
 effect of accusation of, v. 51. 
 Appurtenances, meaning of, iv. 520, 533, 690 ; vi. 136. 
 Appurtenant, common, what, ii. 262. 
 Arbitrament, what, i. 302. 
 
 matter in controversy, i. 303. 
 Arbitration, when claims of bankrupt may be submitted to, i. 758.
 
 GENERAL INDEX. 609 
 
 Arbitration, when executors may submit to, iv. 101. 
 Arbitrators, who may be, i. 317. 
 their power, i. 317. 
 
 how they must make their award, i. 318. 
 entitled to compensation, i. 322. 
 
 change of opinion of, does not invalidate the award, i. 322. 
 misconduct of, ground for setting aside an award, i. 365. 
 no bill will be sustained against, when so agreed, i. 368. 
 Archbishop's jurisdiction in granting letters of administration, iv. 45. 
 Archdeacon, court of, ii. 721. 
 Arches, court of, ii. 718. 
 Argumentative, pleas must not be, vii. 606. 
 Arm of the sea, jurisdiction over, vii. 446. 
 right to fish in, vii. 455. 
 effect of grant of, vii. 521. 
 Arms, papists not allowed to keep, vii. 374. 
 Arrears of a debt, what passes by a bequest of, vi. 195. 
 
 annuity cannot be apportioned, vi. 312. 
 Arrest by private person, effect, ix. 464, 468, 469. 
 
 at request of bailiff, ix. 465. 
 on Sunday, effect of, ix. 407. 
 
 in civil cases, void, i. 601. 
 a justice of the peace may make an, ix. 470. 
 
 soldiers are free from, ix. 166. _ .... 
 
 whether the defendant can be twice arrested for the same cause of action, i. 54o. 
 cannot be arrested on a new promise to pay a debt, after 
 being discharged under the insolvent laws, i. 545. 
 what makes an, i. 600. 
 of aliens, when, i. 210. 
 when constable is required to make, ii. 348. 
 witnesses and parties not liable to, ii. 633, 634. 
 who is privileged from, viii. 158. See Privilege, Witness. 
 
 officers, when, viii. 158, 164. 
 persons attending court, viii. 168. 
 duty of sheriff on, viii. 712. 
 Articles, what so called in Chancery, iii. 526. 
 perishable, meaning of, vi. 676. 
 of war, English, ix. 164. 
 Assault and battery, i. 370. 
 
 what is an assault, i. 371. 
 
 a battery, i. 371. 
 how charged, i. 372. 
 justified, i. 373. 
 punished, i. 378. 
 costs in an action of, ii. 497. 
 in consequence of gaming, how punished, iv. 459. 
 limitation on actions of, vi. 374. 
 Assent of executor to a legacy, effect of, vi. 331. 
 implied, what, vi. 331, 332. 
 that first taker, shall take, effect of, vi. 332. 
 husband, effect of, x. 482. 
 Assessing damages, how, iii. 60. 
 
 pursuant to plaintiff's right, iii. 68. 
 jointly and severally, iii. 72. 
 manner of, iii. 78. 
 Assets, what are, in the hands of executor, iv. 72. 
 
 heir, iv. 629. 
 equitable, how distributed, iv. 111. 
 how marshalled, iv. 114. 
 Assignee, rights of, i. 384, 387. 
 
 of bankrupt, rights of, i. 717. 
 
 official, under the stat, 1 & 2 W. 4, i. 796, 797. 
 
 of bankrupt, choice of, i. 677. 
 
 rights of, i. 677, 804, 805. 
 duties of, i. 677. 
 
 Vol. X.— 77
 
 610 GENERAL INDEX. 
 
 Assignee, of bankrupt, may compound debts, when, i. 813. 
 
 redeem pledges, when, i. 813. 
 effect of deeds of, i. 815. 
 covenantor, when liable, ii. 308, 566. 
 bankrupt, when liable for rent, ii. 570. 
 mortgagee, how to foreclose mortgage, vii. 160. 
 
 account, vii. 163. 
 a bond, rights of, vii. 238. 
 Assignment, what, i. 379. 
 
 of what things it may be, i. 379. 
 manner of making an, i. 383. 
 voluntary, i. 385. 
 compulsory, i. 390. 
 
 when it shall be considered complete, i. 385. 
 conditions in an, i. 387. 
 abandonment of, i. 388. 
 preferences in, i. 388. 
 fraud in, i. 389. 
 equitable, its effects, i. 403. 
 when it is a breach of condition, ii. 309. 
 of breach of covenant, how made, ii. 597. 
 dower, how made, iii. 210. 
 by whom, iii. 210. 
 what court, iii, 214. 
 error, how made, iii. 368. 
 
 in law and fact, iii. 370. 
 
 for that which is contrary to the record, iii. 371. 
 for party's advantage, iii. 373. 
 of a chose in action, by the government of the U. S., effect of, viii. 156. 
 Assignor, when liable, i. 383. 
 rights of, i. 386. 
 
 continues liable after assignment, when, ii. 571. 
 Assigns, meaning of, vii. 61. 
 Assize, what, i. 390. 
 
 form of proceedings in, i. 390. 
 when it lies, i. 392 ; vii. 305 ; viii. 496. 
 what seisin is sufficient in an, i. 393. 
 how demandant's title is to be set forth in an, i. 394. 
 Assumpsit, what, i. 395. 
 
 when the proper action, i. 396. 
 lies on an account stated, i. 396. 
 
 promise to pay a specialty, i. 397, 417. 
 does not lie on lease for years, reserving rent, i. 398. 
 what consideration requisite to support, i. 418. 
 indebitatus, when it lies, i. 452. 
 what to be pleaded in discharge of, i. 459. 
 lies against a corporation, ii. 446. 
 
 executors for a legacy, when, vi. 335. 
 is a proper remedy on a policy under seal, continued by parol endorse- 
 ments, vi. 748. 
 when money can be tendered in an action of, ix. 351. 
 Attachment, what, i. 462. 
 
 when granted, i. 462. 
 
 against sheriffs, marshals, and other officers, i. 468. 
 parties, i. 355, 469. 
 attorneys, i. 470. 
 witnesses, i. 470. 
 referees, i. 471. 
 
 printers and publishers, i. 471. 
 proceedings on, i. 471. 
 court of, ii. 767. 
 in London, iii. 51. 
 
 what goods and property are subject to, iii. 51. 
 in whose hands it may be made, iii. 54. 
 when it may be made, iii. 54. 
 proceedings in foreign, iii. 59.
 
 GENERAL INDEX. 611 
 
 Attainder, effect of, viii. 15. 
 
 no bill of, to be passed, viii. 44. 
 how limited, iv. 338, 349. 
 Attaint, how j mishable, v. 383, 388. 
 Attempt to commit a misdemeanour, when indictable, v. 55. 
 
 not, v. 78. 
 Attestation clause in a deed, effect of, iv. 220. 
 
 will, effect of, x. 492. 
 to a will, effect of, x. 490: 
 
 where to be made, x. 491. 
 Attesting witness, when to be produced, iii. 59G, 597. 
 who incompetent to be an, iii. 597. 
 Attornment to a stranger, when void, v. 561. 
 Attorney, who is an, i. 474. 
 
 may refer his client's cause, i. 315. 
 
 attachment for contempt against, i. 470. 
 
 admission of, how made, i. 474. 
 
 certificates of, when introduced, i. 478. 
 
 when several are in partnership how far responsible for each other, i. 479. 
 
 appearance by, when good, i. 484. 
 
 retainer of, i. 485. 
 
 when an attachment may be had against, i. 463. 
 
 when he must file his warrant, i. 487. 
 
 when his authority ceases, i. 488, 489. 
 
 power of, i. 489. 
 
 determination of the authority of an, i. 492. 
 
 fees of, how recovered, i. 494. 
 
 privileges of, i. 505 ; viii. 160, 163, 164. 
 
 cannot be arrested, when, i. 505, 506. 
 
 compelled to serve as overseer of the poor, i. 506. 
 punishable, when, i. 506, 463. 
 may be struck off the roll, when, i. 509. 
 cannot practise, when, i. 509. 
 cannot be bail, i. 562. 
 when he loses his privileges, viii. 174. 
 privilege of, how pleaded, viii. 175, 178. 
 can be a witness, when, iii. 480. 
 cannot be compelled to serve as constable, ii. 346. 
 when unlawfully suspended from practice, may be restored by mandamus, 
 
 vi. 428. 
 what is slander of an, 3x. 50. 
 
 when a new trial will be granted for the neglect or mistake of the, ix. 616. 
 Attorney in fact, how appointed, i. 518. 
 
 implied authority of, i. 519, 523. 
 who may be, i. 520. 
 infants, i. 520. 
 feme covert, i. 520. 
 
 persons attainted, outlawed, or excommunicated, i. 520. 
 aliens, i. 520. 
 
 wife to make livery to her husband, i. 520. 
 wife may act for her husband, i. 520. 
 effect of leases by, v. 574. 
 cannot be appointed by wife, ii. 55. 
 Auction sale void, when, iv. 387. 
 
 Auctioneer's declaration cannot contradict conditions of auction sale, iii. 617. 
 Audience, court of, ii. 619. 
 Audita querela, what, i. 510. 
 
 Avho may be relieved by, i. 510. 
 infant, i. 510. 
 conusee, i. 510. 
 against whom it may be issued, i. 510. 
 baron and feme, i. 511. 
 executors, i. 511. 
 in what cases it will lie, i. 511 ; iii. 322. 
 for matters which occurred after judgment, i. 512.
 
 612 GENERAL INDEX, 
 
 Audita querela, is not, per se, a supersedeas, i. 517, 518. 
 
 when a supersedeas, ix. 283. 
 Auditors, their powers and duties, in actions of accompt, i. 51. 
 Aula regis, when created, ii. G37. 
 Author of a libel, who is, vi. 353. 
 Authority, how to be exercised, vi. 559. 
 implied, vi. 561. 
 
 to buy, what is sufficient, vii. 126. 
 of a court of competent jurisdiction,' its effects, i. 406. 
 effect of payment made under a void, i. 406, 491. 
 of an attorney at law, i. 485—488, 491, 492. 
 what shall be a determination of, i. 492. 
 what is considered an, i. 518. 
 implied, i. 519. 
 who may execute an, i. 520. 
 when well executed, i. 520. 
 
 executed by agent in the name of his principal, i. 525. 
 cannot be transferred, i. 526. 
 joint, how executed, i. 525. 
 when and how revoked, i. 528, 529. 
 naked, when revoked, i. 529. 
 
 coupled with an interest, when not revokable, i. 529, 530. 
 may be executed by wife, when, ii. 54. 
 to commit a prisoner, when lawful, iii. 392, 
 how executed by attorney, iv. 221. 
 of an agent, revoked by lunacy, v. 30. 
 justice of the peace^ v. 404. 
 coroner, v. 395. 
 how executed, v. 572. 
 Auxiliary covenants, when extinguished, ii. 590. 
 Averia camcce, cannot be distrained, iii, 173. 
 Average, vi. 617. 
 
 kinds of, vi. 617. 
 
 mariners do not contribute to general, vi. 618. 
 what shall contribute to general, vi. 618. 
 goods not entitled to general, vi. 623. 
 loss, what, vi. 674. 
 effects of, ii. 746. 
 Averments required in a declaration, vii. 483, 491. 
 must be positive, vii. 510. 
 of performance required, vii. 485. 
 conditions precedent, vii. 485. 
 when required in slander, ix. 88. 
 effect of, in slander, ix. 73. 
 Avoidance, requisites of pleas in, vii. 583. 
 Avowant, is in the nature of a plaintiff, viii. 526. 
 
 tenant in common may be an, viii. 526. 
 Avowry, nature of, viii. 526, 558. 
 
 requisites of, viii. 558, 561. 
 rules in, viii. 559. 
 parties to, viii. 562, 563. 
 Award, what, i. 302. 
 
 must be according to the submission, i. 323. 
 when to be made, i. 321. 
 must be certain, i. 331. 
 mutual, i. 336. 
 lawful and possible, i. 339. 
 final, i. 340. 
 construction and effect of, i. 343. 
 how pleaded, i. 348. 
 extinguishes original demand, i. 348 
 performance of, will be compelled by attachment, i. 355. 
 
 by bill in equity, i. 380. 
 in what cases, may be relieved against, i. 362.
 
 GENERAL INDEX. 613 
 
 B. 
 
 Badge of fraud, what is a, iv. 423, 424. 
 Bail, civil, what, i. 530. 
 
 how it differs from mainprise, i. 530. 
 who may take, i. 531. 
 
 when insufficient, whether sheriff is liable, i. 534. 
 how taken, i. 535. 
 
 for what cause of action it may be demanded, i. 538. 
 where the demand is uncertain, i. 543. 
 when twice for the same cause of action, i. 545. 
 in actions on statutes, i. 548. 
 who shall not be required to give, i. 548. 
 on removal of a cause, i. 551. 
 in error, i. 552. 
 
 common, when required, i. 557. 
 
 manner of putting in, excepting to, and justifying, i. 559. 
 who cannot be, i. 562. 
 to what time, shall have relation, i. 563. 
 when discharged, i. 564, 565. 
 irregularity in taking, amended, i. 565. 
 proceedings against, i. 565. 
 when fixed, i. 567. 
 
 discharge of principal will discharge the, i. 570. 
 in criminal cases, i. 581. 
 
 by whom taken under laws of U. S., i. 581, 588. 
 whom in N. Y., i. 585. 
 in N. J., i. 585. 
 in S. C, i. 585. 
 Justices of jail delivery, i. 587. 
 King's Bench in England, i. 588. 
 other courts, i. 593. 
 House of Lords, i. 593. 
 after conviction, i. 588. 
 taking insufficient, punishable, i. 594. 
 in what form taken, i. 596. 
 
 denying, delaying, or obstructing, punished, i. 596. 
 discharged by certificate of bankrupt, when, i. 784. 
 when scire facias will lie against, viii. 616. 
 sheriff required to take, viii. 712. 
 bond, when to be taken, viii. 714. 
 form of, i. 535, 577. 
 proceedings on, i. 575. 
 Balance, what passes by a bequest of, vi. 195. 
 Bailee, when he may use the thing bailed, i. 607. 
 
 no action lies against him, till after demand, i. 607. 
 gratuitous, when liable, i. 608. 
 has a qualified property in thing bailed, i. 609. 
 when guilty of felony, iv. 180, 182. 
 cannot support replevin, viii. 553. 
 may maintain trespass, ix. 457. 
 Bailiff, what, i. 598. 
 
 of liberties or franchises, i. 602. 
 to lords of manors, i. 604. 
 how appointed, viii. 677. 
 lease made by, when good, v. 568. 
 Bailment, what, i. 606. 
 
 of pledge, i. 607. 
 borrowing another, i. 615. 
 when things bailed are lost or destroyed, i. 617. 
 how divided, i. 621. 
 Bank book, when evidence, iii. 576. 
 
 notes, when a good tender, vii. 176 ; ix. 314, 319. 
 Bankrupt, who is a, i. 628, 798. 
 
 3F
 
 614 GENERAL INDEX. 
 
 Bankrupt, who are creditors of, i. 659, 684, 801. 
 
 his property vested in commissioners and assignees, i. 717 
 
 in a foreign country, how far it passes to his assignees, i. 731- 
 proceedings against, i. 806, 811. 
 debts for which he is not discharged, i. 807. 
 property, how distributed, i. 765, 809. 
 
 disposed of, i. 812. 
 partner, i. 814. 
 surplus of his estate, i. 771. 
 allowance to, i. 771, 805. 
 discharge of, i. 771, 807. 
 certificate when a bar, i. 771, 806, 807. 
 
 when not a bar, i. 799. 
 how he must demean himself, i. 768. 
 who is entitled to a legacy made to a, vi. 312. 
 Bankruptcy, what is an act of, i. 641. 
 
 departing the realm, an act of, i. 642. 
 remaining abroad, i. 643. 
 depart from dwelling-house, i. 643. 
 debtor absenting himself, an act of, i. 645. 
 beginning to keep house an act of, i. 646. 
 debtor suffering himself to be arrested, i. 648. 
 
 outlawed, i. 648. 
 procuring his goods to be seized, i. 648. 
 conveying his property, i. 648. 
 what are acts of, without reference to intent, i. 652. 
 relation of act of, i. 746. 
 second, effects of, i. 814. 
 proceedings in, matter of record, i. 814. 
 voluntary, i. 798. 
 involuntary, i. 798. 
 
 of partner dissolves partnership, i. 590. 
 effect of, on a mortgage, vii. 115. 
 Banns, when required, vi. 463. 
 
 origin of, vi. 463. 
 Baptism, omission of, punished, vii. 375. 
 Bar, what is, to an action of accompt, i. 50. 
 an insufficient, i. 249. 
 to an appeal, i. 298. 
 of dower, what shall be, iii. 218. 
 what are pleas in, vii. 531. 
 trial at, what, ix. 566. 
 Bargain and sale, what, ii. 1, 
 
 who may make a, ii. 3. 
 what may be the subject of, ii. 5. 
 consideration of, ii. 7. 
 enrolment of, ii. 8. 
 how made, ii. 7. 
 how pleaded, ii. 12. 
 to uses, effect of, x. 147. 
 Bargemen are common carriers, ii. 151. 
 Barn, rights of tenant who has leased a, v. 613. 
 Baron, ii. 13. See Husband. 
 Baronies, how created, ii. 636. 
 Barrator, who is, ii. 74. 
 
 proceedings against, ii. 75. 
 punishment of, ii. 76. 
 Barratry, what, ii. 74 ; vi. 662, 668. 
 
 when it must happen, to make insurers liable, vi. 668. 
 insurers when not liable in cases of, vi. 661. 
 Barrister, what is slander of a, ix. 50. 
 Bastard, who is a, ii. 77, 100. 
 capacities of, ii. 87. 
 when he can inherit, ii. 87. 
 bequest to, supported when, ii. 88.
 
 GENERAL INDEX. 615 
 
 Bastard, has no heirs, ii. 89. 
 eigne, who is, ii. 92. 
 acknowledgment of, effect of, ii. 87. 
 how provided for, ii. 95. 
 settlement of, ii. 98. 
 murder of, ii. 107. 
 may be a devisee, vi. 10. 
 when it is actionable to call one a, ix. 55. 
 Bastardy, what, ii. 70. 
 
 how tried, ii. 89. 
 
 order of, ii. 95, 96, 101. 
 
 who to institute proceedings in, ii. 98, 102, 105. 
 
 proceedings in, ii. 105. 
 
 who may complain, ii. 105. 
 form of complaint, ii. 105. 
 before whom to be made, ii. 105. 
 nature of the prosecution, ii. 105. 
 form of the indictment, ii. 10G. 
 evidence, ii. 100. 
 judgment in, ii. 106. 
 Battery, trespass lies for a, ix. 462. 
 
 committed by accident, consequence of, ix. 462. 
 by false imprisonment, ix. 462. 
 Bawdy-house, charge of keeping a, is actionable, ix. 44. 
 Beacons, king's prerogatives in, viii. 33. 
 Beasts of the plough cannot be distrained, iii. 173. 
 ferce natures, cannot be distrained, iii. 171. 
 Bees, when subject of larceny, iv. 178. 
 ownership of, iv. 432. 
 action for taking, ix. 458. 
 when tithable, x. 26. 
 Beginning to keep house an act of bankruptcy, i. 646, 803. 
 Belief, when the plaintiff swears to his, as to the defendant's indebtedness, whether 
 
 sufficient, i. 541. 
 Benefit of clergy, when allowed, iv. 190. 
 abolished, iv. 191. 
 
 when party convicted of manslaughter entitled to, vii. 205. 
 outstanding terms, vii. 118. 
 inventory, what, iv. 55. 
 Betake, effect of this word in a lease, v. 601. 
 Beyond sea, meaning of, vi. 392. 
 
 act of limitations does not operate on persons, vi. 392. 
 Bigamy, what, ii. 107. 
 
 punishment of, ii. 108. 
 evidence in cases of, ii. 109, 110. 
 Bill of exchange, what, ii. 117 ; vi. 763. 
 nature of, vi. 764. 
 kinds of, vi. 764. 
 consideration of, vi. 765. 
 when payable, vi. 766, 767. 
 days of grace on, vi. 767. 
 usance on, vi. 706. 
 inland, vi. 767. 
 stamps on, vi. 772. 
 negotiable, vi. 777. 
 form of, vi. 777. 
 must be payable in money, vi. 777. 
 
 not out of particular fund, vi. 777. 
 at all events, vi. 779. 
 by whom payable, vi. 785. 
 
 drawer, vi. 785. 
 acceptor, vi. 785. 
 endorser, vi. 785. 
 to whom payable, vi. 788. 
 effect of endorsement of, vi. 788, 790.
 
 616 GENERAL INDEX. 
 
 Bill of exchange, what is tantamount to payment of, vi. 833. 
 action on, vi. 834. 
 
 when provable in bankruptcy, i. 703, 808. 
 exception, ii. 112. 
 
 when to be granted, ii. 113. 
 by whom taken, ii. 113. 
 to what it may be taken, ii. 113. 
 not in criminal cases, ii. 114. 
 judge must sign, ii. 114. 
 
 on the trial, ii. 114. 
 when after, how, ii. 115. 
 how to be taken, ii. 116. 
 how proved, ii. 116. 
 
 mandamus lies to common pleas to seal a, vi. 429. 
 when a mandamus will lie to compel the judges to sign a, vi. 444. 
 sale, what, ii. 111. 
 of ships, ii. 112. 
 for gaming debt, when good, iv. 453. 
 
 not, iv. 455, 456. 
 of indictment, how to be found, v. 53, 54. 
 in chancery, when evidence, iii. 555. 
 equity, when amendable, i. 259. 
 
 to compel performance of award, i. 360. 
 equity may be filed by husband for himself and infant wife, ii. 57. 
 of lading, what, vi. 757; ii. 117. 
 
 may be assigned, vi. 757. 
 effect of assignment of, vi. 757. 
 endorsement of, vi. 758. 
 how passed in parliament, ii. 670. 
 
 when injunction lies to prevent the negotiation of, v. 201, 213. 
 Binding apprentice, manner of, vi. 501. 
 
 form of, vi. 502, 503. 
 Birth, what, iii. 16. 
 
 register of births, when evidence, iii. 573, 574. 
 of a child renders devise void, when, vi. 159. 
 revocation of a will, when, x. 570. 
 Bishop's jurisdiction in granting letters of administration, iv. 49. 
 Blank, effect of a bequest to, vi. 189. 
 endorsement, effect of, vi. 789. 
 in obligation, when it may be filled up, iii. 603. 
 Blind, effect of will of one who is, x. 490. 
 Blockade, effect of, ii. 750. 
 
 violation of, vi. 731. 
 Blood, wbat shall work corruption of, iv. 349. 
 
 who is of another's, vi. 148. 
 Bockland, what, iv. 490, 491, 493. 
 Body, bringing in the, viii. 718. 
 Bog, when tenant may dig, x. 428. 
 Boilery, what passes by grant of, iv. 530. 
 Bona, meaning of, vi. 196. 
 
 peritura, when not to be sold on credit, vi. 561. 
 
 plea in an action of account, i. 53. 
 notabilia, what, iv. 46. 
 
 nature of, iv. 47. 
 value of goods to make, iv. 46. 
 Bond, what, vii. 237. 
 
 cannot be assigned at law, vii. 237. 
 may be assigned in equity, vii. 237. 
 when a, will extinguish simple contract, vii. 237. 
 
 joint and several, vii. 250. 
 condition of, when legal, vii. 259. 
 consideration of, when lawful, vii. 259. 
 breach of condition of, how assigned, vii. 261. 
 presumption of payment of, vi. 376. 
 for resigning benefices, effect of, ix. 13.
 
 GENERAL INDEX. 617 
 
 Bond, for resigning benefices, power of court of equity over. ix. 19. 
 
 when saved, ix. 20. 
 objections to, ix. 22. 
 Books when they may be inspected, iii. 581. 
 
 of original entries, when evidence, iii. 582, 583. 
 corporation are evidence, iii. 580. 
 prison when evidence, iii. 580. 
 registry of births, &c, iii. 573, 574. 
 bank, when evidence, iii. 576. 
 ledger, when evidence, iii. 571. 
 log, when evidence, iii. 576. 
 
 shop, when evidence, iii. 582. See Almanac, Family Bible. 
 Borough-English, what, ii. 118. 
 
 custom of, in descents, iii. 111. 
 Borrower, duty of, i. 615. 
 
 Bote, copyholder may take hedge, house, and plough, ii. 378. 
 Bottomry, what, ii. 120; vi. 749. 
 
 condition of a bond of, vi. 750, 751. 
 bond, requisites of, vi. 751. 
 may be the subject of insurance, vi. 640. 
 Boundaries how ascertained, iv. 5£2. 523. 
 
 effect of misdescription o/, v. 633. 
 control courses and distances, viii. 152. 
 who entitled to trees growing on, ix. 498. 
 Boxing, consequences of death from, vii. 203. 
 Breach of a condition, what, ii. 306. 
 
 when advantage can be taken of, ii. 312. 
 what is a dispensation of, ii. 315. 
 effect of, to reinstate a party who enters, ii. 316 
 of covenant, what, ii. 592. 
 
 when well assigned, ii. 597. 
 condition, how to be assigned in pleading, vii. 261. 
 covenant, how stated in a declaration, vii. 493. 
 prison, what, vii. 487. 
 
 when felony, vii. 179. 
 trust, effect of, x. 213. 
 Bread, when the adulteration of, is a nuisance, vii. 228. 
 Breaking, what, sufficient in burglary, ii. 132. 
 Brewhouse, when a nuisance, vii. 229. 
 Bribery of officer, how punished, vii. 324, 325. 
 Brickmaker, when considered a trader, i. 799. 
 Bridges, repairs to, ii. 120. 
 
 when nuisances, vii. 227. 
 Bringing money into court, when, ix. 310. See Tender. 
 
 upon the common rule, ix. 340. 
 at what time upon the common rule, ix. 342. 
 pleading, ix. 344. 
 consequences of, ix. 345. 
 in what cases, ix. 450. 
 in an action of assumpsit, ix. 351. 
 upon the case, ix. 352. 
 of covenant, ix. 353. 
 debt,ix. 354. 
 ejectment, ix. 356. 
 against a justice of the peace, ix. 357. 
 of replevin, ix. 358. 
 trespass, ix. 358. 
 trover, ix. 359. 
 British vessels, how registered, vi. 850. 
 Broker, who is, i. 801. 
 
 power of, vi. 560. 
 may be made a bankrupt, i. 639. 
 Buggery, what, ix. 158. 
 
 derivation of the word, ix. 158. 
 Vol. X.— 78 3 i 2
 
 618 GENERAL INDEX. 
 
 Building, trespass to, ix. 487. 
 Burgage, of tenure in, ix. 378. 
 Burglary, what, ii. 132. 
 
 breaking is sufficient, ii. 132. 
 entry is sufficient, ii. 134. 
 shall be accounted night in cases of, ii. 13&. 
 in what place it may be committed, ii. 136. 
 Burglariter, when required in an indictment, v. 68. 
 Burial, fine for unlawful, vii. 375. 
 Burning barn, charge of, actionable, ix. 40. 
 Business hours, what are, vi. 824, 825. 
 Butcher, when considered a trader, i. 799. 
 Buying pretended titles, offence of, vi. 410, 415. 
 
 office, offence of, vii. 296. 
 By-law, what, ii. 140. 
 
 when void, ii. 141, 148, 150. 
 
 in restraint of trade, ii. 143. 
 
 to prevent nuisances, ii. 146. 
 
 affecting strangers, not valid, ii. 147. 
 
 how proved, iii. 580. 
 
 c. 
 
 Cabinet of curiosities, what passes by a bequest of, vi. 196. 
 Cancelling, surrender of lease cannot be by, v. 658. 
 of a will, effect of, x. 541, 546. 
 
 prima facie evidence of revocation, x. 547. 
 Capias ad satisfaciendum , effect of discharge from, iv. 151. 
 
 utlagatum, how sheriff to execute process of, vii. 327. 
 
 effect of, vii. 343. 
 ad respondendum, when it may be issued, iii. 694. 
 effect of arrest under a, iii. 697. 
 in withernam, when issuable, viii. 540. 
 Capiatur, when to be entered, iv. 229, 230. 
 pro fine, taken away, v. 116. 
 when taken away by statute, vii. 552. 
 Caption of an indictment, when requisite, v. 92. 
 
 form of, v. 93, 94. 
 Capture of ship, effect on seamen's wages, vi. 605. 
 
 of loss by, vi. 603. 
 Carriages for the use of the king's forces, ix. 175. 
 Carriers, who are common, ii. 151. _ 
 
 when entitled to his hire, ii. 152. 
 for what liable, ii. 152. 
 
 not liable, ii. 152. 
 duties of, ii. 152. 
 
 notice given by, effect of, ii. 157, 159. 
 interest of, in property in his charge, ii. 160. 
 regulations of, by act of parliament, ii. 160. 
 liability of, i. 625. 
 when guilty of larceny, iv. 183. 
 
 trover lies against, ix. 636, 637. 
 not, ix. 660. 
 Carrying away required to constitute larceny, iv. 187. 
 Cartmen are common carriers, ii. 151. 
 Case, action on the, i. 102. 
 
 who may bring an, i. 103. 
 against whom it lies, i. 105. 
 for what injuries it lies, i. 106. 
 when it has accrued, i. 110. 
 for fraud and deceit, i. 111. 
 for injuries, i. 117. 
 
 committed by officers, i. 130. 
 
 tradesmen. L 134. 
 for a nuisance, i. 137.
 
 GENERAL INDEX. 619 
 
 Case, action on the, for a conspiracy, i. 138. 
 
 lies though there is another remedy, i. 143. _ 
 
 the wrongdoer be punishable criminally, i. 145. 
 when it lies by or against executors, iv. 126, 138. 
 lies for the profits of an office, vii. 306. 
 difference between trespass and, ix. 440. 
 when a proper remedy, ix. 441, 463. 
 when money may be tendered in an action on the, ix. 352. 
 Cashier of a bank, authority of, vi. 558. 
 Castle, curtesy not allowed in a, iii. 8. 
 dower not allowed in a, iii. 196. 
 guard, tenure by, ix. 377. 
 Cattle cannot be distrained, when, iii. 173, 174. 
 Caveat not to take probate of will, iv. 50. 
 Cepi corpus, writ of, vii. 364. 
 Cepit, when required in an indictment, v. 68. 
 
 in alio loco, plea of, viii. 557. 
 Ceremonies of marriage, what, vi. 462. 
 Certain, to be actionable, how far words must be, ix. 71, 72. 
 Certainty, what, required in an award, i. 331. 
 in a grant, what is, iv. 525. 
 required in a verdict, x. 346. 
 Certificate of bankrupt, when a bar, i. 771, 806, 807. 
 
 when not, i. 799. 
 attorney, when introduced, i. 478. 
 when a cause may be removed by, ii. 801. 
 trial by, ix. 559. 
 Certiorari, what, ii. 162. 
 
 out of what court to issue, ii. 162. 
 
 when it is a proper remedy, ii. 163. 
 
 rule as to, in the several states, ii. 163. 
 
 not a writ of right, ii. 165. 
 
 may be used to remove equitable proceedings, ii. 166. 
 
 to what court it lies, ii. 167. 
 
 requisites to be performed before obtaining it, ii. 168. 
 
 return to, ii. 170. 
 
 costs in, ii. 171. 
 
 not grantable, when, ii. 174. 
 
 to whom it must be directed, ii. 178. 
 
 when a supersedeas, ii. 178 ; ix. 284. 
 
 not, ii. 179. 
 how to be returned, ii. 179. 
 effect of, in removing record, ii. 181. 
 proceedings on, ii. 182. 
 when a proper remedy, iii. 366. 
 when granted on diminution of record, iii. 344. 
 will not lie in N. J. to remove proceedings of arbitrators, i. 370. 
 Cestui que trust, power of, x. 258. 
 right of, x. 258. 
 
 trust property when liable for debts of, x. 259. 
 forfeitures by, x. 259. 
 suits by and against, x. 261. 
 may convey trust-estate, x. 258. 
 how far protected, x. 263. 
 what acts of, will destroy a trust, x. 217. 
 Challenge of grand jurors, when to be made, v. 312. 
 to the array, for what causes, v. 343, 346. 
 
 partiality of sheriff, good cause of, v. 343. 
 to the favour, what, v. 343. 
 
 tried by the court, v. 354. 
 polls, what, v. 347. 
 want of capacity in juror, a good cause of, v. 348. 
 when jury is convened from an improper place, it may be, v. 351. 
 peremptory, when allowed, v. 362 
 by the king, v. 364.
 
 620 GENERAL INDEX. 
 
 Challenge, when to be taken, v. 365. 
 how to be tried, v. 366. 
 alienage good cause of, i. 207. 
 Chamber, ejectment lies for a, iii. 275. 
 Champerty, what, ii. 183. 
 Chance-medley, what, vii. 184, 205, 207. 
 Chancellor, origin of his authority, ii. 681. 
 Chancery will not set aside an award when relief can be obtained at law, i. 370. 
 
 when a new trial will be granted by a court of, ix. 583. 
 Change of venue, when motion for, to be made, x. 370. 
 
 certainty require** in an affidavit on which a motion is made to, x. 371. 
 cases when there can be no, x. 372. 
 Charges by one joint-tenant, shall sever the joint-tenancy, when, v. 288. 
 upon lands, what, vi. 19, 269. 
 a legacy, effect of, vi. 289. 
 Charitable uses, ii. 188. 
 
 statute of 43 Eliz. relating to, ii. 192. 
 
 when it is in force, ii. 193. 
 construction of, ii. 193. 
 gifts, how construed, ii. 196. 
 Charters belong to the owner of inheritance, iv. 84. 
 not the subjects of larceny, iv. 175. 
 its effect, ii. 439. 
 must be accepted, ii. 439. 
 Charter-party, what, vi. 628. 
 
 master of vessel may make, vi. 628. 
 form of, vi. 629. 
 action on, vi. 629. 
 covenants in, vi. 631. 
 annulled, how, vi. 631. 
 dissolved by a blockade, vi. 633. 
 Chase, right to, ix. 483. 
 
 Chastity, a charge of violation of, actionable, ix. 42. 
 
 Chattels of tenants in common, how to be seised under a judgment against one, v. 304. 
 Check, what is a good tender of a, ix. 315. 
 Cherokee nation not a foreign state, ii. 798. 
 Chester, county palatinate of, ii. 756. 
 
 Child in ventre sa mere may take a legacy, when, vi. 170, 182. 
 Childishness will invalidate a will, when, x. 483. 
 Children, who included under the name of, vi. 149. 
 effect of bequest to, as a class, vi. 170. 
 living at the date of will, alone entitled, vi. 170, 182. 
 entitled to legacy when fund is divisible, vi. 182. 
 of second marriage, when entitled to a legacy, vi. 182 
 younger, who are, vi. 183. 
 the term, may include grand-children, vi. 184. 
 how rendered legitimate, ii. 78. 
 puberty of, vi. 80. 
 
 part, by the custom of London, iii. 43. 
 posthumous, to what entitled, x. 567, 570. 
 Chirograph of a fine, what, iv. 249. 
 Chivalry, who is guardian in, iv. 5o9. 
 Choses in action may be assigned by the king, viii. 156. 
 
 assigned by the government, effect of, viii. 156. 
 when subject to sequestration, viii. 632, 633. 
 of wife, how far vested in the husband, ii. 21. 
 belonging to bankrupt will pass to his assignees, i. 741. 
 Christianity, reviling of, libellous, vi. 346. 
 Church, offence of not going to, punished, iv. 645. 
 
 what are offences against established, iv. 650. 
 Churchwarden, duties of, ii. 236. 
 
 manner of choosing, ii. 237. 
 
 interest over thing belonging to the church, ii. 241. 
 their duty in making presentments, ii. 244. 
 accounts of, ii. 245.
 
 GENERAL INDEX. 621 
 
 Churchwarden, prohibition against, ii. 247. 
 
 when they may contract, i. 156. 
 Cinque ports, court of, ii. 780. 
 
 chancery court of, ii. 781 
 Circuit courts established, ii. 802. 
 organization, ii. 802. 
 jurisdiction, ii. 807 ; ix. 501. 
 
 in bankruptcy, i. 812. 
 Circumvention, when fraudulent, iv. 390. , 
 
 Citizens of the United States may expatriate themselves, vi. &&S, 
 
 cannot cast off their allegiance, vm. 4«. 
 naturalized, duties of, viii. 48. 
 corporations aggregate are not, ii. 448, 451. ' 
 Civil death of husband, effects of, ii. 64. 
 liability of officer, vii. 325. 
 jurisdiction flows from the king, viii. 55. 
 Claim and entry, right of strangers by, iv. 276. 
 of conusance, what, vii. 526. 
 what is released by the word, viii. 283. 
 of property, when to be made in replevin, viii. 545. 
 Class, who shall take, when legacy is given to a, vi. 181. 
 effect of giving a bond to a, vii. 249. 
 libel on a, vi. 343. 
 slander on a, ix. 72. 
 Clergy, when benefit of, allowed, iv. 190. 
 
 not, vii. 205. . 
 
 Clergyman in the celebration of marriage is a public officer, vi. 4bd. 
 how far privileged, v ; ii. 162. 
 what is slander of a, ix. 48. 
 Clerk, when execution may issue against, iii. 722. 
 Clocks, duties on, ix. 134. 
 Close, ejectment does not lie for, iii. 275. 
 Coachman, when not a servant, vi. 186. 
 Coal, when tenant in dower may dig, x. 428. 
 Codicil, what, x. 487. 
 
 effect of, x. 511. 
 
 nature of, x. 532. # .. 
 
 Coercion of husband, when an excuse for wife's criminal acts, n. 3b. 
 Co-executors, acts of, how far binding, iv. 37. 
 Cohabitation when presumptive evidence of marriage, ii. 46. 
 proof of marriage, vi. 471. 
 bond given for past, when good, vii. 260. 
 future, void, vii. 260. 
 Coins, king's prerogative, in relation to, viii. 37. 
 value of, in the United States, viii. 39. 
 punishment of counterfeiting, viii. 39. 
 when it is treason to counterfeit, ix. 402. 
 Collatio bonorum, what, iv. 97. 
 Collateral descent, what, iii. 106. 
 
 warranty, effect of, viii. 431. 
 
 nature of, x. 403, 404. 
 who bound by, x. 403. 
 Colloquium of the person accused, required to support an action for slander, ix. 4_, 
 
 93, 104, 
 Collusion, what, iv. 381. . 
 
 between parties, to defeat attorney's remedy, not allowed, i. BOO. 
 Colonies, by what laws governed, viii. 46. 
 Colour, in pleading, what, vii. 613. 
 
 what is giving, ix. 529. ..... . ., nri 
 
 Commencement of suit will prevent the running of the act of limitation, vi. ,,J.> 
 
 of binding operation of a statute, ix. 220. 
 Commerce, Congress have a right to regulate, viii. 28. 
 Commission of bankrupt, what, i. 658. _ ... _„ 
 
 cannot be sustained against an infant, l. 1 99. 
 joint, against partners, i. 815.
 
 622 GENERAL INDEX. 
 
 Commission of bankrupt, separate, i. 815. 
 
 for an office, when complete, vii. 290. 
 to committee of lunatic, when allowed, v. 14. 
 of justice of the peace, form of, v. 398. 
 Commissioners of bankrupt, their duty, i. 668. _ 
 
 property to which they are entitled, l. 717 
 fees of, i. 814. 
 
 when creditor cannot be, i. 810. 
 of charitable uses, duties of, ii. 217. 
 sewers, court oi, ii. 784. 
 review, court of, ii. 722. 
 to take depositions, how to act, iii. 522. 
 Commissions, when trustees are entitled to, x. 260. 
 Commissumjidei, what, vi. 161. 
 Commitment, what, ii. 248. 
 
 for what offences there may be, ii. 248. 
 by whom to be made, ii. 249. 
 to what prison, ii. 250. 
 requisites previous to, ii. 252. 
 form and requisites of, ii. 253, 254. 
 to what court to be certified, ii. 259. 
 prisoner how discharged from, ii. 259. 
 form of regular, iii. 395. 
 Committee of lunatic, duties of, v. 11. 
 
 who is to be, v. 13. 
 where he must reside, v. 13. 
 power over lunatic, V. 13. 
 allowance to, v. 14. 
 how accountable, v. 14. 
 cannot make a lease, v. 15. 
 improve estate, v. 15. 
 purchase land, v. 15. 
 trustee, when to convey, v. 3f 
 may surrender lease, v. 39. 
 renew lease, v. 39. 
 Common, extinguishment of, what, iv. 148. 
 
 prayer, offence against book of, iv. 641. 
 recoveries, what, iv. 288. See Recoveries. 
 law, effect of, in construing statute, ix. 244. 
 what, ii. 260. 
 several kinds of, ii. 260. 
 appendant, ii. 261. 
 appurtenant, ii. 262. 
 in gross, ii. 264. 
 pur cause de vicinage, ii. 2C5. 
 rights of owner of the soil in, ii. 266. 
 remedies as to rights, in, ii. 267-— 270. 
 approvement and enclosure of, ii. 272. 
 apportionment and extinguishment of, ii. 277. 
 Commoner, rights of, ii. 267. 
 
 remedies of, against the lord, ii. 268. 
 against, ii. 269. 
 against strangers, ii. 270. 
 Commorant, what, vii. 12. 
 Companion, meaning of, ix. 386, 393. 
 Compassing the king's death, what is, ix. 381. 
 Compensation, what, viii. 639. 
 
 difference between set-off and, viii. 639. 
 discount is synonymous with, viii. 640. 
 Complaint, in cases of bastardy, ii. 105. 
 Composer of a libel, who is, vi. 353. 
 Composition, when it may take place in a qui tarn action, i. 99. 
 
 cases of bankruptcy, \ 758,313 
 
 real, payment of tithes by, x. 49. 
 Compulsory, when words of permission are, vi. 439. 
 Compurgator, who are, x. 383.
 
 GENERAL INDEX. C23 
 
 Compurgators, how sworn, x. 383. _ 
 
 Concealment of property an act of bankruptcy, 1. b06. 
 birth of bastard child, n. 107. 
 
 facts by owner of property, when a sufficient exoneration of a com- 
 mon carrier, ii. 155. 
 facts, when fraudulent, iv. 387, 388. _ 
 
 in cases of insurance, effect of, vi. 691. 
 a mortgage by mortgagee, effect of, vii. 132. 
 Concessimus, effect ofjhis word, ii. 558 ; vii. 200. 
 Concord, what, iv. 247. 
 Concurrent leases, what, v. 492. 
 Conditions, what, ii. 279. 
 
 kinds of, ii. 279. ... 
 
 precedent, ii. 291 ; vi. 2, 1 ; vm. oSO. _ 
 
 remainders that arise on, vm. ooO. 
 subsequent, ii. 291 ; vi. 271 ; viii. 380. _ 
 
 remainders that arise on, vm. 3bU. 
 
 legal, vi. 271 ; vii. 259. 
 illegal, vi. 271; vii. 259. _ 
 
 in restraint of marriage, vi. £i 1, -b/. 
 
 terrorem, vi. 272, 274. 
 not to dispute a will, vi. 271. 
 of an assignment, when, i. 387. 
 against changing a bequest, vi. 289. 
 in restraint of trade, ii. 300. 
 not to give evidence, ii. 300. 
 possible, vi. 271. 
 
 impossible, ii. 304, 305 ; vi. 271. 
 void, ii. 284,298, 305; vi. 159. 
 repugnant, ii. 301. ... .. 
 
 difference between limitations and, vm^obi ; ii. tol. 
 
 covenant and, ii. 287, 
 how created, ii. 280, 282, 283. 
 to what annexed, m 283. 
 whom reserved, ii. 284. 
 who bound by, ii. 285. 
 effect of performance of, vii. 60, G2._ 
 •what is a sufficient performance of, n. 319, o6U. 
 
 by whom, n. 319. 
 to whom, ii. 321. 
 when, ii. 323. 
 where, ii. 328. 
 executing a release, vi. 289. 
 returning from a voyage, vi. 2f0. 
 performing services, vi. 290. 
 to marry, viii. 390. 
 what will excuse the non-performance of, ii. 325. 
 what is a breach of, ii. 300 ; vii.j32. 
 of auction sales, effect of, iii. 617. 
 effect of appointment of executor upon, iv. ob. 
 performed, effect of plea of, vii. 265. 
 Conditional legacies, effect of, vi. 270. 
 tender, not good, ix. 315. 
 Confession in cases of bigamy, effect of, u. 111. 
 
 by party, effect of, iii. 635. . 
 
 Confidential agents, contracts with, when set aside, iv. 398, 4UU. 
 Confirmation of void acts, how made, v. 141. 
 implied, v. 143. 
 of lease by an infant, what is a, v. 44 -- 
 
 ecclesiastics, how made, v._OoO. 
 whom to be made, v. 532, 543. 
 when to be made, v. 540. 
 contract, effect of, vii. 246. 
 Conflicting statutes how construed, ix. 257. 
 Confusion of goods, effect of, ix. 480.
 
 624 GENERAL INDEX. 
 
 Congress may levy taxes, &c, ix. 108. 
 Connivance, when fraudulent, iv. 389. 
 Consanguinity, when a good cause of challenge, v. 344. 
 Conscience, court of, ii. 791. 
 
 jurisdiction of, ii. 792. 
 Consent, condition of marriage with, vi. 287. 
 
 when condition precedent must be given before marriage, vi. 287. 
 when required to be in writing, may be by letter, vi. 287. 
 general, when valid, vi. 287. 
 when once given, sufficient, vi. 287. 
 given conditionally, effect of, vi. 277. 
 when presumed, vi. 287. 
 does not confer jurisdiction, ii. 618. 
 rule, what, iii. 279. 
 Consequences of a tender, ix. 328. 
 
 profert in curia, ix. 338. 
 bringing money into court, ix. 345. 
 Consequential injuries, action for, ix. 441. 
 Conservators of the peace, who are, v. 394. 
 Consideration of a bond, when good, vii. 259. 
 
 void, vii. 260. 
 to pay an old debt, when good, vii. 261. 
 
 withdraw opposition to insolvent, void, vii. 261. 
 difference between an executed and an executory, vii. 569. 
 may be traversed, when, vii. 569. 
 Consideration, what sufficient to support an agreement, i. 165, 166. 
 defined, i. 418. 
 
 requisite to create an assumpsit, i. 418. 
 idle, void, i. 418. 
 executed, i. 430. 
 against law, i. 432. 
 
 how it must be averred in a declaration, i. 444. 
 of bargain and sale, ii. 7. • 
 Consistory courts, what, ii. 720. 
 Conspiracy, an action on the case will lie for, i. 138. 
 to cheat, an indictment lies for a, v. 58. 
 consequences of a, vii. 201. 
 Constable, how chosen, ii. 343. 
 
 who obliged to serve, ii. 346. 
 power of, ii. 348. 
 
 not protected by warrant, when, ii. 351, 352. 
 suits against, what must precede, ii. 353. 
 . expenses of, how paid, ii. 354. 
 court of, established, ii. 706. 
 when it is murder to kill a, vii. 200. 
 Const 'it uimus, when required in a commission, vii. 290. 
 Construction and effect of an award, i. 343. 
 
 of covenants, how made, ii. 576. 
 customs, iii. 33. 
 words, iii. 25. See Words. 
 
 " inevitable dangers of the river," iii. 25. 
 " survivor," vii. 268. 
 grants, how made, iv. 526. 
 leases, v. 548. 
 
 slanderous words, ix. 60, 61. 
 doubtful words, ix. 75, 76. 
 adjective words, ix. 78. 
 disjunctive words, ix. 80. 
 copulative words, ix. 80. 
 a statute, by whom made, ix. 237. 
 rules of, ix. 238, 255. 
 when two are passed same day, ix. 221. 
 which are retrospective, ix. 221. 
 effect of preamble and enacting clause, ix. 241. 
 which concerns the public good, ix. 251.
 
 GENERAL INDEX. 625 
 
 Construction of a statute, remedial, ix. 251. 
 
 penal, ix. 252. 
 will, how made, x. 533. 
 Constructive treason, what, ix. 391. 
 
 possession, when sufficient to support trespass, ix. 455. 
 escape, what, iii. 402. 
 Consuls, when they may sue and be sued, ii. 819. 
 Consummation of a will, what, x. 533. 
 
 Contagious distemper, when charge of, is slanderous, ix. 45. 
 Contemplation of bankruptcy, what, i. 804. 
 
 Contempt, what authority may punish for, i. 473. Vide Attachment. 
 how punished, ii. 633. 
 
 publication of proceedings of court, when a, ii. 631. 
 Context, to be taken into view in construction, ii. 577. 
 
 Contingent debts, when they may be proved against a bankrupt's estate, i. 707, 807. 
 
 to be paid, iv. 108. 
 remainders, what, viii. 315. 
 
 to whom transmissible, viii. 317. 
 how destroyed, viii. 337. 
 to be executed, x. 157. 
 Continual claim, its effects to preserve entry, iii. 126. 
 
 what is requisite to make it effectual, iii. 127. 
 time in which it may be made, iii. 128. 
 Continuance, when amended at common law, i. 224. 
 necessary, vii. 680, 683. 
 how to be entered, vii. 684. 
 at what time to be entered, vii. 684. 
 of parliament, how made, ii. 675. 
 
 a cause, when to take place, ix. 579. 
 Continuando, when required in a declaration in trespass, ix. 510. 
 Contra pacem, when requisite in an indictment, v. 85. 
 
 trespass, ix. 502. 
 curonam et dignitatem regis, when requisite, v. 86. 
 formam statuti, when requisite, v. 90. 
 Contraband articles, effect of having, ii. 752. 
 Contracts for the sale of lands, how to be made, i. 178. 
 
 not to be performed within a year, how to be made, i. 182. 
 entire, must be completed, to entitle plaintiff" to recover, i. 411. 
 when they are complete, i. 414. 
 divisible, i. 415. 
 conditional, how fulfilled, i. 415. 
 
 when made by several, how far each contractor is liable, i. 419. 
 unlawful, will not be enforced, i. 443. 
 immoral, cannot be enforced, i. 444. 
 fraudulent, void, i. 444. 
 
 when an executory, passes to bankrupt's assignees, i. 736. 
 jurisdiction of D. C. in cases of, ii. 816. 
 of administrator, when binding on him, iv. 124. 
 when usurious, x. 268. See Usury. 
 Contractors, when they are several, how far each is liable, i. 419. 
 Contribution, when heir entitled to, iv. 616. 
 
 to be made by tenant in common, v. 307. 
 
 between the corpus and the interest of the thing given, 
 vi. 302. 
 Conusance, kinds of, ii. 627. 
 
 of jurisdiction of universities, how to be demanded, x. 106. 
 
 by whom to be demanded, x. 106. 
 when to be demanded, x. 107. 
 Conusor, what to do, iv. 246. 
 Conversant, meaning of, vii. 12. 
 Conversion, what is a, ix. 631 ; ii. 491. 
 
 Conveyance of wife's land, by husband and wife, effect of, ii. 49, 51. 
 when fraudulent against purchasers and creditors, iv. 401. 
 to uses, kinds of, x. 129. 
 
 feoffments, x. 130. 
 
 Vol. X.— 79 3 G
 
 626 GENERAL INDEX. 
 
 Conveyance to uses, kinds of, fines, x. 130. 
 
 recoveries, x. 130. 
 Conviction, when a defendant may be bailed after, i. 588. 
 Convocation, court of, ii. 717. 
 Convocium, what, ix. 29. 
 Convoy, warranty to sail with, vi. 727. 
 Co-obligors, how liable, vii. 249. 
 Cook, when entitled as a mariner, ii. 740. 
 Coparcenary, nature of inheritance of, ii. 355. 
 
 nature of estate in respect to actions, ii. 356. 
 Coparceners, ii. 355. 
 
 actions by or against, ii. 356. 
 partition among, ii. 358. 
 Copartner, cannot authorize an appearance for another, i. 485. 
 Copies, how proved, iii. 533, 537. 
 Copulative words, how construed, ix. 80. See Construction. 
 
 terms, effect of, x. 540. 
 Copyright, what, ii. 368. 
 
 for what granted, viii. 141. 
 injunction lies to protect a, v. 198, 215. 
 Copyhold, what, ii. 368. 
 
 nature and tenure of, ii. 369. 
 how created, ii. 370. 
 
 in what respect it partakes of the nature of freehold, ii. 370. 
 acts of parliament which extend to lands held by, ii. 372. 
 particular customs as to some, ii. 378. 
 general customs which extend to all, ii. 378. 
 ands, by whom they may be granted, ii. 383. 
 by whom they cannot be granted, ii. 386. 
 grants, their operation, ii. 388. 
 what things may be holden in, ii. 387. 
 surrender of, ii. 389. 
 
 when supplied in equity, ii. 392. 
 fines payable for, ii. 406. See Fines. 
 extinguishment of, ii. 411. See Extinguishment. 
 forfeiture of, ii. 413. See Forfeiture. 
 where and how to be sued for, ii. 422. 
 
 belonging to bankrupt, when they pass to his assignees, i. 721. 
 curtesy not allowed in, iii. 7. 
 dower not allowed in, iii. 196. 
 extinguishment of, iv. 147. 
 Copyholder, lease by, when good, v. 563. 
 Coram nobis, writ of, iii. 367. 
 Corn, what, vi. 676. 
 
 rice not included under the term, vi. 676. 
 when tithable, x. 16. 
 Cornage, tenure by, ix. 377. 
 Corody may be the subject of a lease, v. 438. 
 Coronation, ceremony of, viii. 10. 
 oath, form of, viii. 11. 
 Coroner, who is, ii. 424. 
 
 several kinds of, ii. 424. 
 qualifications of, ii. 425. 
 how chosen, ii. 425. 
 
 over what place he has jurisdiction, ii. 426. 
 authority in taking inquisitions, ii. 427. 
 powers of, judicial and ministerial, ii. 428. 
 may fine a juror, ii. 429. 
 jurisdiction over subject-matter, ii. 430. 
 traversing and quashing inquisition, ii. 431. 
 power as to appeals, ii. 432. 
 when acts of one shall be good, ii. 433. 
 fees of„ ii. 433. 
 
 may De discharged for misdemeanors, ii. 435. 
 is a conservator of the peace, v. 395. 
 Corporal penalties for smuggling, ix. 152. See Penalties.
 
 GENERAL INDEX. 627 
 
 Corporate officers, how elected, ii. 467. 
 
 removed, ii. 474. 
 Corporations, ii. 43G. 
 
 definition, ii. 437. 
 
 different kinds, ii. 437. 
 
 by whom and how created, ii. 438. 
 
 names of, ii. 440. 
 
 how names may be varied in grants, ii. 441. 
 
 what things are incident to, ii. 445. 
 
 assumpsit lies against, ii. 446. 
 
 in what name they may be sued, ii. 449. 
 
 distringas, when it will lie against, ii. 450. 
 
 liable for torts, ii. 450. 
 
 what they may do without deed, ii. 452. 
 
 foreign, powers of, ii. 451. 
 
 limited in their powers, ii. 445. 
 
 how they differ from natural persons, ii. 448. 
 
 are to sue or be sued, ii. 449. 
 grants by and to, ii. 448. 
 what they may take by succession, ii. 454. 
 when members shall be personally liable, ii. 455. 
 members, how constituted, ii. 457. 
 amotion of, ii. 458. 
 concurrence of, ii. 459. 
 election and amotion of, ii. 465. 
 regularity of proceedings of, ii. 461. 
 how they are visited, ii. 477. 
 dissolved, ii. 480. 
 
 by misuser, ii. 481. 
 
 neglect of corporators, ii. 482. 
 forfeiture, ii. 482. 
 surrender of their charter, ii. 482. 
 to contract, i. 158. 
 may appear by attorney, i. 485. 
 
 how to prove debts against a bankrupt estate, i. 809, 810. 
 may distrain, when, iii. 165. 
 books of, when evidence, iii. 580. 
 may be executors, when, iv. 8. 
 how to make grants, iv. 503. 
 cannot be joint-tenants, v. 241. 
 need not deliver a deed, v. 539. 
 Corporators, when personally liable, ii. 455. 
 Correction, when justifiable, i. 374 — 376. 
 Corruption of blood, how limited, iv. 338, 349. 
 Costs in certiorari, ii. 171. 
 de incremento, ii. 484. 
 
 when limited by the amount of damages, ii. 485. 
 in actions of slander, ii. 495. 
 
 assault and battery, ii. 497. 
 double and treble, ii. 498. 
 how awarded to defendant, ii. 502. 
 who entitled to, ii. 516. 
 when de bonis testatoris, ii. 516. 
 
 propriis, ii. 516, 517. 
 for and against informers, ii. 522. 
 against paupers, n. 524. 
 
 the government, ii. 524. 
 informers in qui tarn actions, ii. 524. 
 in replevin, ii. 525. 
 on writs of error, ii. 508. 
 feigned issues, ii. 532. 
 interlocutory proceedings, ii. 534. 
 actions upon judgments, ii. 533. 
 when proceedings are set aside, ii. 533. 
 
 plaintiff cannot go on to trial, ii. 538.
 
 628 GENERAL INDEX. 
 
 Costs, when the cause is put off, ii. 537. 
 security for, when required, ii. 537. 
 when they may be set off, ii. 538. 
 how assessed, ii. 539. 
 in the courts of the United States, ii. 546. 
 
 1. amount of, ii. 546. 
 
 2. to whom allowed, ii. 547. 
 
 3. against whom, ii. 547. 
 
 4. in what cases, ii. 547. 
 
 5. who is entitled to, ii. 547. 
 
 6. when they will not be given, ii. 547. 
 nominal parties, when liable for, ii. 548. 
 security for, ii. 548. 
 
 when required of non-residents, ii. 548. 
 in Kentucky, ii- 548. 
 Indiana, ii. 548. 
 Illinois, ii. 548. 
 Pennsylvania, ii. 548. 
 New Jersey, ii. 549. 
 Missouri, ii. 549. 
 North Carolina, ii. 549. 
 Virginia, ii. 549. 
 of insolvents, ii. 549. 
 miscellaneous case, ii. 549. 
 regulation as to taxation of, in the courts of the U. S., ii. 823. 
 when given in qui tarn actions, i. 98. 
 on amendments, i. 255. 
 provable against bankrupt, i. 698. 
 in cases of new trial, by whom paid, ix. 587. 
 
 ejectment, iii. 268. 
 when executors liable for, iv. 141. 
 infant liable for, v. 153. 
 
 not liable for, v. 153. 
 prochein ami, liable for, v. 153. 
 in admiralty, how awarded, vii. 440. 
 Cotton, usage as to the sale of, iii. 29. 
 Counsel may be enjoined from divulging client's secrets, v. 208. 
 
 when a new trial will be granted for the mistake of, ix. 616. 
 Counsellor at law not guilty of maintenance, vi. 413. 
 Count, difference between a declaration and a, vii. 464. 
 when they may be joined, vii. 472. 
 consequences of joining bad with good, x. 309. 
 Counterfeit bank bills, payment made in, not good, i. 412. 
 Counterfeiting money, when treason, ix. 402. 
 Counters, what so called, ii. 791. 
 County palatine of Chester, ii. 756. 
 Lancaster, ii. 760. 
 Durham, ii. 759. 
 court, ii. 776. 
 
 how to be set out in an indictment, v. 82. 
 Courses and distances controlled by boundaries, viii. 152. 
 Court, what is a, ii. 616. 
 
 how constituted, ii. 617. 
 jurisdiction, how given to, ii. 618. 
 
 no foreign government can establish a, in the U. S. ii. 619. 
 when jurisdiction is determined, ii. 622. 
 several kinds of, ii. 624. 
 of Parliament, ii. G34. 
 Chancery, ii. 681. 
 
 is an officina breviitm, ii. 681. 
 ordinary jurisdiction, ii. G83. 
 extraordinary jurisdiction, ii. 684. 
 its present jurisdiction, ii. 687. 
 King's Bench, ii. 689. 
 
 jurisdiction in criminal matters, ii. 690.
 
 GENERAL INDEX. 629 
 
 Court, of King's Bench, jurisdiction in civil causes, ii. 691. 
 
 over inferior jurisdictions, ii. 692. 
 form of its proceedings, ii. 696. 
 
 its presence suspends the power of other courts, ii. 696. 
 Common Pleas, origin of, ii. 697. 
 Exchequer, nature of, ii. 698. 
 
 jurisdiction of, ii. 699. 
 proceedings in, ii. 705. 
 the constable and earl marshal, ii. 706. 
 manner of holding, ii. 706. 
 jurisdiction of, ii. 707. 
 proceedings of, ii. 709. 
 the justices of Oyer and Terminer, ii. 709. 
 
 manner of appointing commissioners, ii. 710. 
 jurisdiction of, ii. 711. 
 proceedings of, ii. 712. 
 justices of assize, ii. 713. 
 
 the peace, ii. 715. 
 ecclesiastical, ii. 716. 
 of convocation, ii. 717. 
 
 Arches, ii. 718. 
 prerogative, ii. 719. 
 of audience, ii. 719. 
 faculties, ii. 719. 
 peculiars, ii. 720. 
 consistory, ii. 720. 
 of archdeacon, ii. 721. 
 delegates, ii. 721. 
 commissioners of review, ii. 722. 
 the marshalsea and palace, ii. 753. 
 palatinate, ii. 755. 
 
 the county palatine of Chester, ii. 756. 
 Durham, ii. 759. 
 Lancaster, ii. 760. 
 Ely, ii. 761. 
 the forest, ii. 762. 
 justice-seat, ii. 763. 
 swainmote, ii. 765. 
 attachments, ii. 767. 
 the sheriff's torn, ii. 768. 
 leet, ii. 774. 
 county, ii. 776. 
 of hundred, ii. 777. 
 baron, ii. 778. 
 of the cinque ports, ii. 780. 
 stanneries, ii. 783. 
 commissioners of sewers, ii. 784. 
 pipowders, ii. 789. 
 in London, ii. 790. 
 of hustings, ii. 790. 
 sheriffs', ii. 791. 
 of conscience, ii. 791. 
 martial, how organized, ix. 183. 
 
 trial by, ix. 551. 
 of equity, power of, over bonds to resign a benefice, ix. 19. 
 Courts of the United States, ii. 793. 
 
 Senate of the U. S. 795. 
 Supreme Court, organization of, ii. 796. 
 jurisdiction of, ii. 797. 
 
 civil, ii. 797. 
 original, ii. 797. 
 appellate, ii. 799. 
 mandamus, ii. 80a. 
 Circuit, ii. 802. 
 
 3 G 2
 
 <530 GENERAL INDEX. 
 
 Oourts of the United States, Circuit, organization of, ii. 802. 
 
 jurisdiction of, ii. 807. 
 
 civi'l, ii. 807. 
 
 at law, ii. 807. 
 original, ii. 807. 
 removal of actions, ii. 810. 
 mandamus, ii. 812. 
 appellate, ii. 812. 
 equity, ii. 813. 
 criminal, ii. 814. 
 District, ii. 814. 
 
 organization, ii. 814. 
 jurisdiction, ii. 815. 
 
 civil, ii. 815. 
 
 admiralty, ii. 815. 
 
 ordinary, ii. 815. 
 extraordinary, ii. 817. 
 cases of seizures, ii. 818. 
 when an alien sues, ii. 818. 
 when the U. S. sue, ii. 818. 
 when consuls are parties, ii. 819. 
 in bankrupt cases, ii. 819. 
 in equity, ii. 819. 
 criminal jurisdiction, ii. 819. 
 Territorial, ii. 820. 
 
 Florida, ii. 820. 
 Wisconsin, ii. 820. 
 Iowa, ii. 821. 
 will not enjoin proceedings in a state court, v. 210. 
 when they may punish for contempts, i. 473. 
 of bankruptcy established, i. 793. 
 review established, i. 793. 
 commissioners, i. 794. 
 in the District of Columbia, jurisdiction of, i. 815. 
 
 the territories of the United States, jurisdiction of, i. 81f 
 Circuit, jurisdiction of, i. 815. 
 Cousins, who takes under a bequest to, vi. 188. 
 Covenant, agreement, what, ii. 550. 
 
 in Kentucky, what, ii. 550. 
 affirmative, what, ii. 551. 
 negative, what, ii. 551. 
 dependent, ii. 551. 
 independent, ii. 551. 
 express, how created, ii. 552. 
 implied, how created, ii. 555. 
 parties to, ii. 560. 
 joint and several, ii. 580, 563. 
 real and personal, ii. 564. 
 principal and auxiliary, ii. 590. 
 when the heir is bound by ancestor's, ii. 564. 
 executors bound by testator's, ii. 564. 
 
 may take advantage of testator's, ii. 565. 
 assignee is bound by assignor's, ii. 560. 
 
 may take advantage of assignor's, ii. 572. 
 assignor shall continue liable on, ii. 571. 
 which bind by force of stat. 32 H. 8, c. 34, ii. 757. 
 how construed, ii. 576. 
 what is a breach of, ii. 592. 
 
 performance, ii. 592. 
 difference between a condition and a covenant, ii. 287. 
 running with the land, when mortgagee is liable for, vii. 58. 
 when a release, viii. 248. 
 not to sue, effect of, viii. 249, 276. 
 between high and under sheriff, viii. 673. 
 of ancestor, when for the benefit of heir, iv. 610.
 
 GENERAL INDEX. 631 
 
 Covenant, agreement, of ancestor, when binding on the heir, iv. 613. 
 to stand seised to uses, x. 140. 
 
 consideration, x. 140. 
 extends how far, x. 140. 
 how created, x. 144. 
 effect of, x. 136. 
 who may grant, x. 137. 
 to whom granted, x. 137. 
 action of, when a proper remedy, ii. 559. 
 it will not lie, iii. 93. 
 
 on a policy, vi. 748. 
 may be maintained by executor, when, iv. 126. 
 when a breach shall be well assigned, ii. 597. 
 plea in, ii. 603. 
 
 performance, when well pleaded, ii. 605. 
 when money may be tendered in, ix. 353. 
 when injunction lies to prevent breach of, v. 214. 
 Covenantors, effect of death of one of several joint, ii. 563. 
 
 act of, evidence of breach of covenant, ii. 595. 
 Covenantees, when they may maintain several actions, ii. 563. 
 effect of death of one of several joint, ii. 563. 
 act of, to discharge covenant, ii. 593. 
 Coverture, when a good plea in abatement, i. 13. 
 
 how far property of wife accruing during, belongs to the husband, ii. 27. 
 Covin, what, iv. 381. 
 
 jurisdiction of chancery as to, ii. 688. 
 Credit, when an action lies for goods sold on, i. 414. 
 mutual, what, i. 810. 
 when a factor can sell on, vi. 561. 
 
 cannot sell on, vi. 561. 
 Creditors, who are joint, i. 801. 
 
 who joint and several, i. 801. 
 who are mutual, i. 810. 
 cannot act as commissioner, when, i. 810. 
 of bankrupt, who are such, i. 681. 
 their rights, i. 686. 
 when they have an election, i. 688. 
 who are petitioning, i. 659, 801. 
 an assignor, rights of, i. 387. 
 may be executor, iv. 13. 
 effect of his being appointed executor, iv. 13. 
 what fraudulent conveyances are void as to, iv. 401. 
 Crime against nature, ix. 158. 
 Criminal proceedings when amendable, i. 237. 
 jurisdiction of C. C, ii. 814. 
 D. C, ii. 819. 
 conversation, effect of, vi. 493. See Adultery. 
 
 evidence of, vi. 495. 
 case, when a new trial will be granted in a, ix. 622. 
 Criminals cannot be executors, when, iv. 8. 
 Criticism, when not a libel, vi. 339. 
 Crop, who is entitled to, viii. 452. 
 
 copyholder, when, ii. 381. 
 out-going tenant, iii. 23. 
 heir, iv. 83. 
 executor, iv. 83. 
 
 on death of devisee for life, vi. 198. 
 replevin does not lie for a, viii. 550. 
 liable to seizure, viii. 703. 
 Crown, who inherits the, viii. 10. 
 
 property, rules relating to, viii. 84. 
 Cruelty of husband towards wife, effect of, ii. 44. 
 when divorce allowed for, vi. 499. 
 of master, when a discharge of apprentice, vi. 513. 
 Cry depais, what, iv. 693.
 
 632 GENERAL INDEX. 
 
 Cul de sac, when a public highway, iv. G68. 
 
 Curators, who are, iv. 538. 
 
 Curia regis, its ancient jurisdiction, ii. G40. 
 
 Ciirialis, meaning of, vi. 410. 
 
 Curtesy, what, iii. 5. 
 
 its requisites, iii. 5. 
 
 who may or may not be tenant by the, iii. 0. 
 
 in what estate allowed, iii. 7. 
 
 not allowed, iii. 7. 
 of wife, iii. 9. 
 quality of the estate on which it is allowed, iii. 10, 17. 
 seisin of wife, required in, iii. 11. 
 title to, how destroyed, iii. 18. 
 Custom, what, iii. 20. 
 
 how established, iii. 20. 
 persons affected by, iii. 21. 
 what are unlawful, iii. 22. 
 when it shall bind, iii. 28. 
 to what extended, iii. 33. 
 how destroyed, iii. 34. 
 certainty of, required, iii. 31. 
 how alleged and pleaded, iii. 35. 
 
 proved, iii. 36. 
 descents according to, iii. 111. 
 lease to be construed by the, v. G13. 
 must be accurately stated in the declaration, vii. 504. 
 of merchants, force of, vi. 553. 
 Customs of London, iii. 36, 37. 
 
 respecting a freeman's estate, iii. 40. 
 children's part, by the, iii. 43. 
 advancement, by the, iii. 43. 
 hotchpot, by the, iii. 43. 
 wife's part by, iii. 47. 
 legatory or dead man's part, by, iii. 47. 
 as to femes covert, iii. 49. 
 proceedings to recover debts, by, iii. 50. 
 foreign attachment, by, iii. 51. 
 Customs, what, ix. 106. 
 
 of, in general, ix. 107. 
 origin of, ix. 108. 
 ancient state of, certain, ix. 117. 
 present state of the, fx. 121. 
 Castas rotulorum, duties of, vii. 297. 
 Cut, meaning of, vi. 409. 
 Cy pres, doctrine of, ii. 209. 
 
 D. 
 
 Damages in trespass, ix. 547. 
 
 when a new trial will be granted for smallness of, ix. 605. 
 
 excessive, ix. 607. 
 in trover, measure of, ix. 681. 
 what, iii. 57. 
 entire, what, iii. 68. 
 in trover, what, iii. 63, 65. 
 who entitled to, iii. 58. 
 against whom, iii. 60. 
 
 railroad company, iii. 65. 
 bank directors, iii. 66. 
 joint trespassers, iii. 72. 
 several trespassers, iii. 72. 
 quantum of, iii. 60, 68. 
 
 when beyond the penalty of a bond, ii. 599. 
 
 not, iii. 63 ; vii. 239. 
 loss of good bargain not allowed, iii. 65.
 
 GENERAL INDEX. 633 
 
 Damages, quantum of vindictive, when given, iii. 65. 
 when to he mitigated, iii. 03. 
 interest, iii. 62. 
 double, iii. 81. 
 treble, iii. 81. 
 
 when court may increase, iii. 75. 
 must be assessed pursuant to plaintiff's right, iii. 68. 
 in maritime cases, iii. 81. 
 
 patent cases, iii. 82. 
 on a contract made by mistake, iii. 61. 
 how assessed, iii. 60. 
 in mayhem, vi. 408. 
 on bills, vi. 848. 
 for not replacing stock, vi. 61. 
 
 an escape, viii. 720, 721. 
 cannot be recovered, when, iii. 60. 
 Damnum absque injuria, no action will lie for, i. 67, 108, 109. 
 Date of a deed, what, iv. 219. 
 
 when there are two dates, iv. 220. 
 when required in a bond, v. 243. 
 manner of making, v. 498. 
 when required in a lease, v. 485. 
 
 the day to be counted, v. 485. 
 of a lease, v. 613. 
 
 how to be stated in an indictment, v. 81. 
 Days of grace, what, vi. 767, 830. 
 effect of, vi. 767. 
 number of, vi. 767. 
 De bonis non, who is an administrator, iv. 23. 
 
 propriis, when executor liable, iv. 119. 
 heir liable, iv. 626. 
 judgment, iv. 34. 
 donis, statute of, ii. 372. 
 
 why made, iii. 430. 
 what may be entailed under, iii. 431. 
 hceretico comburendo, writ of, iv. 633. 
 increment*), costs, when given, ii. 484. 
 injuria, when not a proper plea to an avowry, viii. 574. 
 a proper replication, vii. 536; ix. 530. 
 proper in assumpsit, vii. 585. 
 not a proper plea, vii. 586. 
 medietafe lingua;, when a jury is to be, v. 361. 
 melioribus damnis, rule of, vi. 346. 
 partifione facienda, writ of, when it lies, ii. 364. 
 plegiis acquietandis, writ of, vii. 257. 
 proprietate ])robanda, writ of, viii. 540, 545. 
 retorno habendo, when to be issued, viii. 546. 
 son tort, who is an executor, iv. 26. 
 Dead man's part, what, iii. 47. 
 
 property, remedy for injuries to, ix. 475. 
 Deaf and dumb cannot make a will, when, x. 483. 
 Dealer, when considered a trader, i. 800. 
 Dean, power of, to make leases, v. 480. 
 Death of parties, may be pleaded in abatement, i. 11. 
 appeal of, i. 291. 
 
 of defendant in execution, effect of, iii. 704. 
 when presumed, iii. 210. 
 of devisee, in the lifetime of devisor, effect of, vi. 157. 
 
 partner dissolves partnership, vi. 589. 
 effect of, on wages of seamen, vi. 607, 611. 
 Debet, when actions may be in the, i. 129, 134. 
 
 and deiinet, when actions may be in the, iii. 94. 
 Debt, contract, what, iii. 82. See Debts. 
 
 devise for the payment of, vi. 75, 84. 
 what passes by a bequest of, vi. 195. 
 
 Vol. X.— 80
 
 634 GENERAL INDEX. 
 
 Dsbt, contract, -when a legacy is a satisfaction of, vi. 210. 
 what is an extinguishment of a, iii. 99. 
 action of, what, iii. 82. 
 
 when an, will lie, iii. 83, 93. 
 
 on distinct sums on same contract, iii. 83. 
 
 when, shall have accrued, iii. 87. 
 
 who may bring an, iii. 88. 
 
 when, is the proper remedy, iii. 93. 
 
 how to be brought, iii. 94. 
 
 in London, iii. 50. 
 in the debet and detinet, iii. 94. 
 pleadings in, iii. 98. 
 declaration in, iii. 98. 
 when money may be tendered in, ix. 354. 
 Debtor may be made bankrupt by absenting himself, i. 045, 802. 
 
 remaining abroad, i. 043. 
 beginning to keep house, i. 040, 803. 
 departing the realm, i. 042. 
 suffering imprisonment, i. 803. 
 consequence of making, executor, iv.15. 
 Debts, what are good petitioning creditors', i. 059, 801. 
 provable, in bankruptcy, i. 084, 801. 
 contingent, i. 707, 807. 
 mutual, what, i. 810. 
 of soldiers, how paid, ix. 191. 
 
 decedent, how to be paid, iv. 105. 
 extinguishment of, what, iv. 149. 
 Deceit, wha', iv. 381. 
 
 wher case lies for, i. 111. 
 Declaration, when it may be amended, i. 247. 
 
 uncertain, not cured by verdict, i. 247. 
 in appeal, form of, i. 297. 
 when consideration must be averred in, i. 444. 
 promise must be averred in, i. 440. 
 for money had and received, i. 447. 
 on promissory note, what must be averred, i. 445. 
 in ejectment, form of, iii. 200. 
 
 replevin, requisites of, viii. 553. 
 of war, viii. 81. 
 when evidence, iii. 030, 032. 
 what, vii. 404. 
 
 difference between a count and a, vii. 404. 
 conclusion of, vii. 404. 
 
 who may be joined as parties in the same, vii. 407. See Parties to Actions, 
 ivhat matters may be joined in, vii. 472. 
 how far required to agree with writ, vii. 474. 
 certainty required in, vii. 477, 513^ 
 must show plaintiff's right, vii. 477. 
 on a penalty, requisites of, vii. 204. 
 for disturbance of incorporeal rights, vii. 481. 
 averments required in, vii. 483, 491. 
 must lie positive, vii. 510. 
 of performance, vii. 485. 
 tender, vii. 488. 
 readiness to perform, vii. 488. 
 allegations in, vii. 492. 
 misrecitals in, vii. 492. 
 nnissions in, vii. 492. 
 rarianccs between evidence and, vii. 497. 
 ivhen good in part and bad in part, vii. 517. 
 in slander, requisites of, ix. 85. 
 trespass, ix. 503. 
 
 general requisites, ix. 501. ^ 
 when a continuando requisite, ix. 510. 
 trover, requisites of, ix. 070.
 
 GENERAL INDEX. 635 
 
 Declaration of trust, what amounts to a, x. 193. 
 
 Declaratory statute, effect of repeal of, ix. 225. 
 
 Decree of a Court of Chancery, effect of, ii. 087 ; iii. 554. 
 
 in rem, effect of, ii. 745. 
 Dedi ct concessi, effect of, iv. 519 ; v. 001. 
 Dedication of land to public use, what is, iv. GG7. 
 Dedimus potestatem, what, iv. 259. 
 
 how to be executed, iv. 259. 
 Deed, several parts of, iv. 212. 
 premises of, iv. 212. 
 habendum of, iv. 214. 
 tenendum of, iv. 218. 
 reddendum of, iv. 218. 
 warranty of, iv. 219. 
 clause of cujus rei testimonium, iv. 219. 
 date of, iv. 219. 
 attestation clause, iv. 220. 
 who mav make a, iv. 220. 
 requisite to a grant, iv. 517. 
 belongs ro the owner of the inheritance, iv. 84. 
 distinction between a will and a, viii. 383. 
 when the deposit of, makes a mortgage, vii. 35. 
 of a corporation, effect of, ii. 452 ; v. 539. 
 assignees of bankrupt, effect of, i. 815. 
 when lost, how proved, iii. 580. 
 evidence of, iii. 591. 
 copy of, when evidence, iii. 592. 
 required to make, ecclesiastical lease, v. 482. 
 declaring the uses of feoffments, fines, and recoveries, x. 1$0. 
 Defamation, degree of, to make a libel, vi. 338. 
 Defeasance, effect of deed of, vii. 48, 49. 
 Defect of form in pleading, how cured, vii. 459, 041. 
 
 when cured, vii. 503, 534. 
 what, cured, vii. 53G, 642. 
 in summoning a jury, when cured, v. 376. 
 
 aided, v. 382. 
 what, cured by verdict, x. 354. 
 Defence, what, vii. 525. 
 
 kinds of, vii. 525. 
 
 half, vii. 525. 
 full, vii. 525. 
 form of, vii. 525. 
 
 not made to scire facias, vii. 526. 
 defectively stated, when cured, vii. 534. 
 in error, what may be made, iii. 380. 
 to a scire facias, what can be a, viii. 025. 
 Defendant, when entitled to costs, ii. 502. 
 
 in execution, effect of death of, iii. 704. 
 Degrees of kindred, what, vi. 457, 458, 459. 
 Del credere commission, what, vi. 569. 
 
 effect of, vi. 569, 571. 
 Delegates, courts of, ii. 721. 
 
 Delegation of authority, when it cannot be, iii. 520. 
 D 'livery of deed, what is, iii. 585. 
 effect of, iv. 212. 
 when requisite, iv. 212. 
 to be made, iv. 212. 
 to take effect, v. 486. 
 deed of corporation does not require a, v. 539. 
 requisite to make a bond, vii. 243. 
 possession is prima facie evidence of, vii. 245. 
 of property, when to be made, ii. 329, 330. 
 Demand, when uncertain, will not authorize the holding the defendant to bail, i. »4:;. 
 of thing bailed must be made before action brought, i. 6d7.
 
 636 GENERAL INDEX. 
 
 Demand of rent, when required, viii. 481. 
 
 place of making a, viii. 487. 
 requisite to entitle a party to make a re-entry, ii. 312. 
 how released, viii. 283. 
 
 of payment of bill, when to be made, vi. 823. 
 Demandant in formedon, must set forth his title, iv. 379. 
 Dementia, what, v. 6. 
 Demise, import of the term, ii. 556, 587. 
 
 effect of this word in a lease, v. C01. 
 what amounts to a present, v. 608. 
 termination of a, v. 612. 
 of lessor of plaintiff in ejectment, iii. 278. 
 Demurrer, what, vii. 662. 
 
 may be to one count and plea to another, \y.i. 662. 
 form of, vii. 663. 
 
 what facts are admitted by, vii. 664. 
 judgment on, vii. 665. 
 
 when quod recuperet, vii. 666. 
 
 quod respondeat ouster, vii. 666. 
 what is good on general, vii. 668. 
 difference between general and special, vii. 667. 
 to evidence, vii. 672. 
 Demurrant, meaning of, viii. 669. 
 Denial of debtor, when an act of bankruptcy, i. 803. 
 Denizen cannot sit in parliament, ii. 661. 
 Denization, what, i. 11)8. 
 Deodand, what, iii. 102. 
 
 who is entitled to, viii. 117. 
 Departing the realm, an act of bankruptcy, i. 642. 
 
 from dwelling, an act of bankruptcy, i. 643. 
 Departure, what, vii. 462, 601, 651. 
 Depasturing, what, x. 12. 
 Dependent covenants, what, ii. 551. 
 Deposit, what, i. 606. 
 
 of title-deeds, when an equitable mortgage, vii. 32. 
 effect of deposit by an 3gent, vii. 34. 
 Depositions when allowed, iii. 513. 
 
 suppressed, iii. 527, 528. 
 may be written by a clerk to the commissioners, iii. 527. 
 in what language they may be, iii. 530. 
 under the acts of Congress, iii. 532. 
 effect of, iii. 560. 
 
 when witness is dead, iii. 561. 
 
 absent,, iii. 561. 
 sick, iii. 561. 
 - confined to the parties, iii. 562. 
 
 when witness becomes interested, iii. 563. 
 Deputation to an office, how grantable, vii. 318. 
 Deputy, who is a, vii. 316. 
 duties of, vii. 316. 
 who may make a, vii, 316, 317. 
 judicial officer cannot make a, vii. 317. 
 judge cannot act by, vii. 317. 
 constable may appoint a, vii. 317. 
 a deputy cannot make a, vii. 318. 
 bond of, when void, vii. 299. 
 
 sheriff may serve a summons in favour of a town, though an inhabitant, i. 599. 
 actions against, i. 602. 
 
 all such deputies considered but one officer, i. 599. 
 when liable for an escape, iii. 407. 
 implied appointment of, viii. 671. See Sheriff. 
 continuance of his appointment, viii. 673. 
 what acts may be done by, viii. 675. 
 manner of appointing, viii. 677, 678. 
 cannot make a deputy, viii. 678.
 
 GENERAL INDEX. 637 
 
 Derelict lands belong to the king, viii. 13. 
 
 property at 6ea, -who is the owner of, viii. 36. 
 
 entitled to salvage of, viii. 37. 
 goods, prerogative of, viii. 41. 
 Descendible, a use is, x. 119. 
 Descent, what, iii. 104. 
 lineal, iii. 105. 
 collateral, iii. 106. 
 of the half-blood, iii. 107. 
 according to custom, iii. 111. 
 operation of, to take away entry, iii. 118. 
 entry of disseisee, notwithstanding a, iii. 121. 
 
 preserved, notwithstanding a, iii. 125. 
 effect of continual claim on, iii. 26. 
 general rules of, in the United States, iii. 130. 
 Descendants, effect of legacy to, vi. 150. _ 
 Description of legatee, when sufficient, vi. 170. 
 
 thing given, when sufficient, vi. 190. 
 Desertion of seamen, effect of, vi. 609, 010. 
 
 how punished, ix. 165, 179. 
 Desire, effect of this word in a will, vi. 166. 
 Detention of ship, effects of, vi. 663. 
 Detinet, when actions may be in the, iv. 127, 134. 
 Detinue, what, iii. 133. 
 
 by and against whom it lies, iii. 134. 
 lies for what, iii. 135. 
 pleadings and evidence in, iii. 136. 
 judgment in, iii. 137. 
 Devastavit, what, iv. 100. 
 
 who liable for, iv. 100. 
 payment of debts when a, iv. 105. 
 effect of return of, iv. 120. 
 Deviation, rights of parties when there has been a special agreement, and a, i. 457. 
 in building, when an injunction will not lie to prevent a, v. 212. 
 insurance, what, vi. 714. 
 
 when justified, vi. 718, 719. 
 not, vi. 714. 
 Devise, what, iii. 137. See Witts. 
 
 of lands, by whom may be made, vi. 7. 
 
 to husband and wife, effect of, vi. 8, 19. 
 what estate, vi. 10. 
 after-acquired land, effect of, vi. 12. 
 land of which testator is disseised, effect of, vi. 12. 
 this word not indispensable in a will, vi. 16. 
 of terms for years, vi. 72. 
 
 for payment of debts or legacies, vi. 75. , 
 
 of rents, effect of, vi. 82. 
 for payment of portions, vi. 83. 
 by implication, vi. 85, 
 executory, of lands of inheritance, vi. 91. 
 
 leases for years, vi. 108. 
 over "without leaving issue," vi. 116. 
 to survivor, effect of, vi. 116. 
 void, when, vi. 119, 144. 
 to issue, vi. 147, 149. 
 family, vi. 148. 
 relations, vi. 148. 
 
 persons of testator's name and blood, vi. 148. 
 children, vi. 149. 
 descendants, vi. 150. 
 Devisee, who may be, vi. 7. 
 
 infant in ventre sa mere, vi. 9, 
 who cannot be, vi. 9. 
 
 monk, vi. 10. 
 alien, vi. 10. 
 
 3H
 
 638 GENERAL INDEX. 
 
 Devisee, who cannot be, bastard, when, vi. 10. 
 effect of describing him as heir, vi. 18. 
 when charged with the payment of a sum of money, vi. 18. 
 effect of dying in the lifetime of devisor, vi. 157. 
 may distrain, when, iii. 165. 
 of equity of redemption, right of, vii. 58. 
 Devisor, who may be, vi. 7. 
 
 cannot be, vi. 7. 
 
 wife, vi. 7. 
 infant, vi. 8. 
 felo de se, vi. 1 0. 
 surviving devisee, effect of, vi. 157. 
 Diligence required to entitle a party to a new trial, ix. 619. 
 Diminution of record, allegation of, iii. 344. 
 Directors of bank, when and how liable for damages, iii. 66. 
 
 a corporation when indictable for a nuisance, v. 84. 
 Disability to save statute of limitations, vi. 368. 
 infancy, vi. 368. 
 coverture, vi. 368. 
 
 one cannot be added to another, vi. 389. 
 of papists, vii. 371. 
 Discharge of insolvent when valid in another state, i. 550. 
 bail, what, i. 567. 
 when it must be pleaded, i. 569. 
 
 of principal under bankrupt or insolvent laws before bail is fixed, i. 570. 
 what may be pleaded in, i. 459. 
 of bankrupt, effect of, i. 771, 807. 
 from commitment, how effected, ii. 259. 
 of tithes, by grant, x. 65. 
 bull, x. 65. 
 order, x. 66. 
 
 unity of possession, x. 70. 
 Disclaimer, plea of, vii. 616. 
 Discontinuance, what, iii. 138 ; vii. 684. 
 
 made by ecclesiastical persons, iii. 139. 
 tenant in tail, iii. 140. 
 husbands as such, iii. 143. 
 women of husband's gifts, iii. 144. 
 of what estate it may be, iii. 147. 
 what acts amount to a, iii. 149. 
 when by leave of court, vii. 684. 
 to be aided, vii. 684. 
 Discount, what, viii. 640. 
 Discretion when a court may or may not grant a mandamus according to its, vi. 443. 
 
 courts may exercise a, as to granting or refusing a habeas corpus, iv. 575. 
 Disjunctive covenants, how to be pleaded, vii. 594. 
 rent may be reserved in the, viii. 460. 
 terms, effect of, x. 540. 
 words, how construed, ix. 80. 
 Disobedience to a supersedeas, how punished, ix. 293. 
 Dispensation of a breach, what shall be, ii. 315. 
 
 the laws, when in England, viii. 66. 
 
 never in the United States, viii. 67. 
 Disseisee, lease by, when good, v. 559. 
 Disseisin, what, iii. 150. 
 
 what acts amount to a, iii. 150. 
 persons capable of committing, iii. 161. 
 when the entry of the lessee is a, v. 642. 
 Disseisors may be joint-tenants, v. 242. 
 
 when lease by, is good, v. 559. 
 Dissenters, how far incapable to hold office, vii. 312. 
 Dissolution of partnership, effect of, vi. 582, 587. 
 
 notice of, vi. 582,587, 591. 
 by death, vi. 589. 
 lunacy, vi. 589. 
 notice of either partner, vi. 589.
 
 GENERAL INDEX. 639 
 
 Dissolution of partnership by parol agreement, vi. 590. 
 
 bankruptcy, vi. 590. 
 war, vi. 590, 591. 
 corporation, how effected, ii. 480. 
 injunction, how made, v. 219. 
 when, v. 220. 
 for what causes, v. 220. 
 parliament, when to take place, ii. 675. 
 Distress, what, iii. 103. 
 
 origin of, viii. 440. 
 remedy by, viii. 492. 
 by whom it may be made, iii. 164. 
 sole owner, iii. 164. 
 joint-tenants, iii. 165. 
 tenants in common, iii. 165. 
 husband, in right of wife, iii. 165. 
 tenant by the curtesy, iii. 165. 
 widow, iii. 165. 
 tenant for life, iii. 165. 
 personal representatives, iii. 165. 
 heir, iii. 165. 
 devisees, iii. 165. 
 trustees, iii. 165. 
 guardians, iii. 165. 
 corporations, iii. 165. 
 for what things, iii. 171. 
 
 rent, iii. 176. 
 time and place of making, iii. 177. 
 distrainer's interest in, iii. 179. 
 manner of making, iii. 180. 
 how to be used, iii. 180. 
 how impounded, iii. 182. 
 when replevied, iii. 184. 
 excessive, what, iii. 185. 
 of cattle, &c, damage-feasant, iii. 187. 
 for amercements, iii. 189. 
 Distribution of the bankrupt's estate, how made, i. 765. 
 
 personal estate, how made, iv. 92. 
 District Courts, ii. 814. 
 
 organization of, ii. 814. 
 jurisdiction of, ii. 815 ; viii. 101. 
 civil, ii. 815. 
 criminal, ii. 819. 
 District of Columbia, jurisdiction of the District Court of the, i. 815. 
 Distringas, when to be issued against a corporation, ii. 450. 
 juratores, object of, v. 315. 
 fi. fa., how to be executed, v. 315. 
 Disturbance of an office, how punishable, vii. 305. 
 Dividable, what things are and are not, ii. 358. 
 Dividends in bankruptcy, i. 813. 
 Divine service, tenure by, ix. 371. 
 Divisable, when a contract is, i. 411, 415; ii. 569. 
 Division of township, effect of, ix. 505. 
 Divorce and marriage, vi. 454. 
 kinds of, vi. 496. 
 how obtained, vi. 496. 
 for what causes obtained, vi. 496. 
 impotence, vi. 497. 
 pre-contract, vi. 497. 
 adultery, vi. 497. 
 abuse, vi. 499. 
 when not granted, vi. 499. 
 who may institute proceedings for, vi. 498, 500. 
 of marriages made in another state, vi. 499. 
 a mensd et thoro, effects of, ii. 65, 66.
 
 640 GENERAL INDEX. 
 
 Divorce, effect of, on property of the wife, ii. 22. 
 Docket entries, effect of, iii. 535, 548. 
 Dog, not the subject of larceny, iv. 178. 
 
 may be lawfully killed, when, iv. 433; ix. 506. ' 
 
 when owner of, is liable for his injuries, ix. 473. 
 Dominium directum, what, v. 433. 
 
 utile, what, v. 433. 
 Domilae naturae, it is larceny feloniously to take, iv. 179. 
 Donatio mortis causa, what, vi. 160 
 
 requisites of, vi. 160, 161. 
 subject of, vi. 163. 
 Door, when it may be broken to make an arrest, i. 600; ix. 488, 489. 
 sheriff may break, iii. 732, 733 ; viii. 696. 
 what is an outer, viii. 697. 
 Double costs, when allowed, ii. 498. 
 what, ii. 500. 
 c'unvages, when allowed, iii. 81. 
 
 declaration for, vii. 495. 
 insurance, what, vi. 713. 
 pleading, when allowed, vii. 648 
 rent, what, viii. 499. 
 value, what, viii. 499, 502. 
 voucher, what, iv. 294. 
 Dove-houses, waste to, x. 428. 
 
 Doves, when they descend to the heirs or go to the executor, iv. 83. 
 are not subjects of larceny, iv. 432. 
 ferae naturae, vii. 226. 
 Dower, what, iii. 190. 
 
 who is or is not entitled to, iii. 192. 
 
 disabilities of husband or wife respecting, iii. 192. 
 
 estate in which woman may have, iii. 194, 195. 
 
 quarantine as to, iii. 194. 
 
 kind of inheritance out of which it issues, iii. 195. 
 
 nature of estate out of which it issues, iii. 199. 
 
 continuance, iii. 203. 
 
 improvements of husband's estate, how valued, iii. 205. 
 
 requisites to consummation of, iii. 20G. 
 
 seisin required in, iii. 207. 
 
 death of husband, required in, iii. 210. 
 
 assignment of, iii. 210. 
 
 by what persons, iii. 210. 
 in what manner, iii. 211. 
 by wnat court, iii. 214. 
 election of wife as to, iii. 215 
 what is a Oar to, iii. 218. 
 
 when held subject to husband's encumbrances, iii. 236. 
 services due by tenant in, iii. 237. 
 proceedings and damages in, iii. 238. 
 damages in, iii. 246. 
 admeasurement of, iii. 246. 
 by custom, iii. 247. 
 id ostium ecclesia, iii. 250. 
 de la plus belle, iii. 251. 
 
 how to be affected by husband's forfeiture, iv. 348. 
 cannot be had in a use, x. 125. 
 Dowress may redeem a mortgage, vii. 78. 
 Drawback, what goods are entitled to, ix. 132. 
 Drawer of a bill, liability of, vi. 785. 
 when liable, vi. 785. 
 Driver, when master answerable for injuries of, vi. 539, 541. 
 Droit, petition de. viii. 107. 
 
 monstrans de, viii. 107. 
 Drunkard, it is a fraud to obtain a note from a, iv. 387. 
 
 when it is slander to charge one with being a, ix. 48, 49. 
 cannot make a will, when, x. 483.
 
 GENERAL INDEX. 641 
 
 Drunkenness, offence of, iv. G41. 
 effect of, v. 5, G. 
 
 on contract, vii. 247. 
 Duel, death by, is murder, vii. 190. 
 
 Duelling, act of N. Y. respecting, is constitutional, vii. 284. 
 Duplication of a legacy, what is, vi. 205. 
 Duplicity, what, vii. 642, 044. 
 
 how to take advantage of, vii. 042. 
 Duration of an office, vii. 307. 
 
 lease fur years, v. 029. 
 Duress, what, iii. 252. 
 
 on whom and by whom committed, iii. 254. 
 contracts avoided by, iii. 255. 
 
 how avoided, iii. 255. 
 effect of, vii. 246. 
 
 will not defeat a fine, when, iv. 250. 
 grants by persons in, void, iv. 500. 
 avoids marriage, when, vi. 462. 
 Durham, county palatinate of, ii. 759. 
 Dutchy court of Lancaster, ii. 760. 
 Duties on wool, wool fells, and leather, ix. 117. 
 of tonnage, ix. 119, 120, 122. 
 
 poundage, ix. 120. 
 on wrecked goods, what, ix. 129. 
 to which aliens are liable, ix. 130 
 how levied by the English king, viii. 129. 
 Dying declarations, when evidence, iii. 030. 
 
 not evidence in civil cases, iii. 032. 
 without issue, meaning of, vi. 113. 
 
 E. 
 
 Earl marshal's court, established, ii. 706.^ 
 Ease and favour, effect of securities for, viii. 712. 
 Ecclesiastical courts, origin of, ii. 717. 
 the several, ii. 717. 
 appeals to, ii. 723. 
 jurisdiction, ii. 724; viii. 56, 57. 
 matters, king's prerogative in, viii. 5G. 
 Ecclesiastics, discontinuance by, iii. 139. 
 
 how to make a grant, iv. 503. 
 Effect, patent cannot be granted for an, viii. 136. 
 of a set-off, viii. 659. 
 tender, ix. 328. 
 profert in curia, ix. 338. 
 bringing money into court, ix. 345. 
 Effects, meaning of this word, vi. 28. 
 E^gs, when tithable, x. 24. 
 Ejectment, what, iii. 256. 
 
 nature of action, iii. 257. 
 parties in, iii. 259. 
 adding parties in, iii. 267. 
 proceedings in, iii. 260. 
 
 declaration, iii. 200. 
 costs, iii. 268. 
 ancient form, iii. 270. 
 declaration in, iii. 272. 
 what things will lie, iii. 272. 
 description of subject of, iii. 274. 
 demise of lessor in, iii. 278. 
 ouster of lessor in, iii. 278. 
 plea and general issue in, iii. 291. 
 verdict and judgment in, iii. 292. 
 execution in, iii. 294. 
 
 when to be sued out, iii. 294. 
 
 Vol. X.— 81 3 ii 2
 
 G42 GENERAL INDEX. 
 
 Ejectment, execution how executed, iii. 297. 
 
 controlled by plaintiff in, iii. 298. 
 mesne profits in, iii. 300. 
 bringing a second, iii. 304. 
 may be maintained by executors, iv. 126. 
 when money may be tendered in an action of, ix. 356. 
 when a new trial will be granted in, ix. 624. 
 Ejusdem generis, what goods will pass as being, vi. 192. 
 Election, what, iii. 307. 
 
 when given, iii. 307. 
 to whom given, iii. 309. 
 how continued, iii. 310. 
 
 determined, iii. 310. 
 what is a sufficient, iii. 314. 
 when party shall be put to his, iii. 314. 
 
 widow shall have her, iii. 215. 
 of members of corporations, ii. 465. 
 Electors of members of parliament, who are, ii. 657. 
 Elegit, what, iii. 688. 
 
 when it may be issued, iii. 664. 
 how executed, viii. 709. 
 Ehngata, effect of return of, viii. 549. 
 Elopement, effect of, vi. 491. 
 Ely, royal franchise of, ii. 761. 
 Embargoes, king may lay, viii. 63. 
 
 Emblements of mortgaged premises, who is entitled to, vii. 60. 
 Embracery, what, v. 391. 
 
 Emission, proof of, when not required in sodomy, ix. 158. 
 Employment, what, vii. 279. 
 Enacting clause, how restrained, ix. 241. 
 Enclosure of copyhold lands is a forfeiture, ii. 417. 
 Encumbrances, covenant against, effect of, ii. 584. 
 
 breach of, ii. 595. 
 notice of, vii. 98. 
 
 to whom given, vii. 124. 
 priority of, vii. 99. 
 
 by one joint-tenant, effect on joint-tenancy, v. 288. 
 Endorsement on bond, effect of, vi. 777. 
 
 one bill, effect of, vi. 788. 
 by Avhat law governed, vi. 785. 
 effect of, vi. 789. 
 
 by minor, when considered as fraudulent, iv. 387. 
 Endorser, liability of, vi. 785. 
 when liable, vi. 785. 
 
 not liable, vi. 786. 
 on a note to wife, husband may be, vi. 793. 
 
 testator, executor may be, vi. 793. 
 a firm, one partner, may be, vi. 792. 
 of a bill may be bail for drawer, i. 562. 
 Enemy, contract with, how far valid, i. 444. 
 
 goods of, liable to capture, ii. 747, 748. 
 cannot sue, vi. 556. 
 
 resident in country of enemy, cannot sue, vi. 557. 
 who is trustee cannot sue, vi. 557. 
 Enfeoff and grant, effect of these words, ii. 558. 
 English government, a monarchy, viii. 6. 
 
 Engravings, when injunction lies to prevent publication of, v. 199. 
 Engrossing, an offence, iv. 335. 
 Enitia pars, what, ii. 360. 
 
 whence derived, ii. 361. 
 Enlargement, how far releases mure by way of, viii. 264. 
 Enlisting soldiers, what is, ix. 161. 
 
 Enlistment of principal does not discharge the bail, i. 570. 
 Enrolment of bargain and sale, ii. 8. 
 Entails, manner of docking, ii, 372.
 
 GENERAL INDEX. 643 
 
 Entire contract cannot be divided, i. 411, 415. 
 Entreat, effect of this word in a will, vi. 166. 
 Entry in burglary, what is sufficient, ii. 134. 
 for condition broken, effect of, ii. 31G. 
 by one coparcener, effect of, ii. 357. 
 of lessor of plaintiff in ejectment, how made, iii. 278. 
 when remainderman's right of, commences, iii. 279. 
 right of, how exercised, iii. 280i 
 operation of, taken away by descent, iii. 118. 
 of disseisee, notwithstanding a descent, iii. 121. 
 preserved notwithstanding a descent, iii. 125. 
 
 by continual claim, iii. 12G. 
 of lessee when required to perfect his lease, v. 631. 
 
 a disseisee, v. 642. 
 effect of, to bar the act of limitations, vi. 370. 
 Equality, when requisite in partition, ii. 363. 
 Equally, effect of this word, vi. 179. 
 Equitable assets, how distributed, iv. 111. 
 mortgage, what, vii. 32, 102. 
 
 effect of, vii. 33. 
 construction, when statutes must have an, ix. 248. 
 Equity, an, a sufficient consideration to support a contract, i. 425. 
 jurisdiction of C. C. in, ii. 813. 
 D. C. in, ii. 819. 
 of redemption, what, vii. 62. 
 
 when dower may be had in, iii. 198. 
 cannot be sold under execution, when, iii. 702. 
 may be sold under execution, when, iii. 702. 
 a party who seeks, must do, vii. 240. 
 will grant relief in cases of waste, when, x. 474. 
 what, ix. 249. 
 Ercgimvs, when required in a commission, vii. 290. 
 Error, writ of, what, iii. 320. 
 
 when a proper remedy, iii. 322. 
 on what judgments it lies, iii. 326. 
 
 a habeas corpus, iii. 325. 
 in criminal cases, iii. 326. 
 on the judgment of what court, iii. 329. 
 who may bring, iii. 330, 336. 
 against whom, iii. 330. 
 time of bringing a, iii. 336. 
 when it is a supersedeas, iii. 336. 
 manner of bringing a, iii. 337. 
 form of, iii. 337. 
 to whom directed, iii. 239. 
 how record removed, iii. 341. 
 diminution of record in, iii. 344. 
 scire, facias, on, iii. 349. 
 abatement of, iii. 352. 
 how far a supersedeas, iii. 354. 
 to what court it lies, iii. 358. 
 into parliament, iii. 358. 
 
 Exchequer Chamber, iii. 360. 
 King's Bench, iii. 364. 
 Common Pleas, iii. 365. 
 the court where the record is, iii. 366. 
 Supreme Court of the IT. S., iii. 367. 
 Circuit Court of the U. S., ii. 799. 
 state courts, ii. 800. 
 manner of assigning, iii. 368. 
 in law and in fact, iii. 370. 
 apparent on the record, iii. 371. 
 
 which is for party's advantage, how assigned, iii. 373. 
 how aided by party's appearance, iii. 377. 
 defence of defendant in, iii. 380.
 
 G44 GENERAL INDEX. 
 
 Error, judgment in, iii. 383. 
 
 for part, iii. 383. 
 on reversal, iii. 386. 
 restitution on reversal, when allowed, iii. 389. 
 bail in, i. 552. 
 costs, in, ii. 528. 
 Escape in civil cases, what, iii. 391. 
 
 from what imprisonment, iii. 392. 
 
 when lawfully dischai-ged, not an, iii. 393. 
 
 imprisonment is regular, iii. 395. 
 what liberty is an, iii. 398. 
 
 shall excuse an, iii. 400. 
 
 be deemed an, though the party is in confinement, 
 iii. 402. 
 difference between voluntary and negligent, iii. 403.^ 
 
 on mesne process and execution, iii. 404. 
 who answerable for, iii. 406. 
 when principal or deputy liable for, iii. 407. 
 plaintiff's remedy against prisoner for, iii. 409. 
 remedy or action for, iii. 413. 
 manner of laying action for, iii. 415. 
 excuse for permitting, iii, 419. 
 liability of sheriff for an. viii. 693. 
 Escheat, who is entitled to, viii. 15. 
 
 requisites of inquisition in, viii. 18. 
 Escheator, duties of, viii. 17. 
 Escrow, what, vii. 244. 
 
 to whom the delivery of an, must be, vii. 244, 245. 
 how pleaded, vii. 545. 
 Escuage. what is tenure by, ix. 374. 
 Espousals, what, vi. 460. 
 Ksquire, addition of, vii. 10. 
 Estate in fee simple, what, iii. 421. 
 
 who may purchase an, iii. 421. 
 import of heir to create an, iii. 424. 
 tail, what, iii. 428. See Tail. 
 
 after possibility of issue extinct, who, iii. 448. 
 
 estate, how created, iii. 448 ; vi. 31. 
 tenant, how considered, iii. 451. 
 belonging to a bankrupt passes to his assignees, i. 720. 
 for life, what, iii. 453. 
 
 effect of, death of tenant of an, iii. 456. 
 special occupant of, iii. 460. 
 may be disposed of, how, iii. 464. 
 forfeited, how, iii. 466. 
 right and duties of tenants of, iii. 471. 
 how far restored by re-entry, ii. 316. 
 which may be devised, vi. 10. 
 
 wife's lands, vi. 11. 
 cannot be devised, when, vi. 12. 
 
 after-acquired lands, vi. 12. 
 effect of this word in a will to pass a fee, vi. 23. 
 Estates of the realm, what are the, viii. 6, 7. 
 Estoppel in pleading, what, vii. 618. 
 
 kinds of, vii. 618. 
 requisites of, vii. 618, 623 
 strangers not affected by, vii. 620 
 privies bound by, vii. 620. 
 leases for years by, v. 636. 
 Eetrcpement, when it lies, x. 467. 
 Estovers, common of, ii. 261. 
 Estreat of a fine, how made, v. 418. 
 Etc., effect of, in ploadings,_ vii. 525. 
 Evasion, when fraudulent, iv. 385, 386. 
 Evidence in detinue, iii. 136. 
 what, iii. 472.
 
 GENERAL INDEX. 645 
 
 Evidence, who may be a witness, iii. 473. 
 
 slave, when, iii. 473. 
 infant, when, iii. 473. 
 heathen, iii. 474. 
 lunatics, iii. 474. 
 party, iii. 475. 
 husband, iii. 475. 
 wife, iii. 475. 
 widow, iii. 478. 
 written, iii. 533. 
 
 parol, when allowed to explain writing, iii. 604. 
 presumptive, what, iii. G17. 
 the best, required, iii. 625. 
 hearsay, effect of, iii. 629. 
 depositions in another cause, when, iii. 641. 
 res gestae, when, iii. 641. 
 
 what may be given in, under the general issue, vii. 541. 
 demurrer to, vii. 672. 
 
 required in actions by assignees of bankrupt, i. 754. 
 cases of bastardy, ii. 106. 
 
 bigamy, ii. 109, 110. 
 to sustain actions against the hundred under the statute of hue and 
 
 cry, iv. 706. 
 in cases of insurance, vi. 739. 
 treason, ix. 428. 
 trespass, ix. 540. 
 trover, ix. 677. 
 usury, x. 304. 
 Ex post facto law, not to be passed, viii. 44. 
 effect of these words, ix. 229. 
 Examination of witness, how made, iii. 512. 
 
 trial upon the, ix. 555. 
 in perpetuam rci memoriam, iii. 528. 
 de bene esse, iii. 529. 
 
 under the 1 & 2 P. & M. c. 13, g 4, iii. 566. 
 Exceptions in the statute of limitations, vi. 388. 
 as to infants, vi. 388. 
 
 merchants' accounts, vi. 389. 
 persons beyond sea, vi. 391. 
 want of parties, vi. 393. 
 
 court, vi. 395. 
 commencement of action, vi. 397. 
 Exchequer, courts of, ii. 698. 
 
 several courts of, ii. 699. 
 form of proceedings in, ii. 705. 
 Excommunicato capiendo, writ of, iii. 654. 
 Excommunication, what, iii. 643. 
 
 when made, iii. 644. 
 of person, when ipso facto, iii. 646. 
 by whom pronounced, iii. 648. 
 effects of, iii. 652. 
 absolution to purge, iii. 661. 
 Excusable homicide, what, vii. 211. 
 
 waste, what, x. 434. 
 Execution, what, iii. 602. 
 
 definition and nature of an, iii. 663. 
 
 cannot be inquired into, iii. 663. 
 
 when void, iii. 663. 
 
 of elegit, iii. 664. 
 
 on what judgment, iii. 665. 
 
 recognisance may issue, iii. 669. 
 may issue, at what time, iii. 670. 
 against whom to be issued, iii. 673. 
 what things bound by, iii. 675. 
 form, return and teste of, iii. 686. 
 capias ad satisfaciendum, iii. 694.
 
 646 GENERAL INDEX. 
 
 Execution, fieri facias, iii. 698. 
 
 ■what property may be sold under an, iii. 701. 
 
 plaintiff' can issue only one, iii. 703. 
 
 when fraudulent, iii. 704. 
 
 vest property in sheriff, iii. 704. 
 
 priority of, iii. 705. 
 
 plaintiff may select, iii. 707. 
 
 when not superseded by certiorari, ii. 179. 
 
 habere facias, iii. 707. 
 
 who may sue out, iii. 716, 7i.8. 
 
 may issue against whom, iii. 7 18. 
 
 heir and exc< iifcor, when, iii. 719. 
 infants, when, iii. 720. 
 feme covi tfc, when, iii. 721. 
 privi' ', il ;i cms, when, iii. 721. 
 clerk in holy orders, when, iii. 722. 
 
 binds the goods, when, i ; '. 70-j. 
 
 relation of, iii. 725. 
 
 king's precedency in, iii. 730. 
 
 by whom to be executed, iii. 731. 
 
 sheriff compelled to execute, iii. 732. 
 
 authority of sheriff to do, iii. 732. 
 
 offence of hindering, iii. 734. 
 
 irregular, how remedied, iii. 736. 
 
 erroneous, effects of, iii. 738. 
 
 in ejectment, iii. 294. 
 
 escape on, effect, iii. 404. 
 
 of writ, how made, viii. 700. 
 
 when to be made, viii. 701. 
 
 duty of sheriff when he has several executions, viii. 702. 
 
 priority of, viii. 707. 
 
 when merely voidable, viii. 601, 602. 
 Executor, definition of, iy. 5. 
 king may be, iv. 7. 
 who may be, iv. 7. 
 corporations may be, iv. 8. 
 outlaw may be, iv. 8. 
 criminals cannot be, when, iv. 8. 
 villein may be, iv. 8. 
 popish recusant, convict cannot be, iv. 8. 
 alien may be, iv. 8. 
 refusal of, iv. 52. 
 
 idiots and lunatics cannot be, iv. 9. 
 infants may be, when, iv. 11. 
 infant in ventre sa mire may be, iv. 11. 
 feme covert may be, iv. 12. 
 feme sole may be, iv. 12. 
 
 creditors may be, iv. 13. 
 
 effect of making debtor an, iv. 15. 
 
 de son tort, who is, iv. 26. 
 
 his acts when valid, iv. 31. 
 how purged, iv. 32. 
 what he may plead, iv. 32. 
 
 how appointed, iv. 34. 
 
 during absence, when appointed, iv. 37. 
 
 with limited power, iv. 37. 
 
 how answerable for each other's acts, iv. 39. 
 
 how to sue and be sued, iv. 41 ; yii. 469, 470. 
 
 what he may do before probate, iv. 63. 
 
 liable for devastavit, iv. 100. 
 
 may refer to arbitration, Avhen, iv. 101. _ 
 
 when bound to plead act of limitations, iv. 102. 
 to be charged with interest, iv. 103. 
 
 liable for his false pleading, iv. 119. 
 
 de bonis propr Us, when, iv. 119.
 
 GENERAL INDEX. 647 
 
 Executor liable on bis promise, when, iv. 123, 124. 
 accord, iv. 124. 
 power of, iv. 124. 
 what actions he may maintain, iv. 125. 
 
 lie against him, iv. 133. 
 distinction between administrator and, iv. 133. 
 liable for costs, when, iv. 141. 
 bail, when not required from, iv. 143. 
 
 when required from, iv. 143. 
 may submit to arbitration, i. 314. 
 sell lands, when, i. 521. 
 
 how, i. 521. 
 take advantage of covenants with testator, ii. 565. 
 claim rent, when, viii. 473. 
 endorse note of testator, vi. 793. 
 make lease, when, v. 567. 
 is liable on promises made by him, when, i. 172. 
 to an audita querela, when, i. 511. 
 be held to bail, when, i. 548. 
 
 sued on testator's covenant, ii. 564. 
 a scire facias, when, viii. 609. 
 an execution, when, iii. 719. 
 costs, when, ii. 516. 
 for waste, x. 447. 
 when there are several, one may plead the act of limitations, vi. 405. 
 is not bound to plead the act of limitations, vi. 406. 
 Executory devise, what, vi. 91. 
 
 limitation cannot operate as an, vi. 92. 
 bequest over, effect of legacy with an, vi. 266. 
 contracts of bankrupt pass to the assignee, when, i. 763. 
 fee, how limited, x. 149. 
 
 with regard to freeholds, x. 152. 
 respect to chattels, x. 154. 
 Exemplification, effect of, iii. 535, 539. 
 
 under acts of Congress, iii. 536. 
 Exempt, who is, from service as constable, ii. 346. 
 Exigent, when to be awarded, vii. 350. 
 
 to whom to be directed, vii. 353. 
 Exigi facias, effect of, vii. 341. 
 Exilium, what, x. 421. 
 Exoneretur, when allowed, i. 568, 569, 570. 
 Expiration of a statute, effect of, ix. 225. 
 Extinguishment, what, iv. 143, 146. 
 
 of rent, what, iv. 144. 
 
 copyhold, what, iv. 147 ; ii. 411. 
 common, what, iv. 148 ; ii. 277. 
 debts, what, iv. 149. 
 
 how made, iii. 99. 
 rent, what, viii. 523. 
 a legacy, what, vi. 198. 
 claim, what, vii. 48. 
 
 valid award is an, of an original demand, i. 348. 
 when a bond is an, of a former debt, vi. 237. 
 release inures by way of, viii. 262. 
 Extortion, what, iv. 151, 167. 
 
 of justices of the peace, how punished, v. 426. 
 Extrinsic evidence, when proper to explain a will, x. 537. 
 
 F. 
 
 Fact, of errors in fact, iii. 370. 
 Factor, who is a, vi. 558. 
 kinds of, vi. 558. 
 
 foreign, vi. 558. 
 
 home, vi. 558.
 
 64S GENERAL INDEX. 
 
 Factor must pursue his orders, vi. 558. 
 liable for neglect, vi. 558. 
 power of, vi. 558. 
 may sell on credit, when, vi. 561. 
 cannot delegate his authority, vi. 561. 
 required to account, 562. 
 cannot buy debt of principal, vi. 563. 
 joint, how answerable, vi. 563. 
 lien of, vi. 564. 
 advances of, vi. 564. 
 pledges by, vi. 566. 
 
 having authority to sell, cannot barter, vi. 567. 
 may sue, when, vi. 568. 
 payment to, when valid, vi. 569. 
 set-off against, when valid, vi. 571. 
 must use due diligence, vi. 573. 
 
 sale to one of the goods of several principals, effect of, vi. 573. 
 cannot pledge the goods of his principal, iii. 493. 
 when a witness, iii. 493. 
 Faculties, court of, ii. 719. 
 Fairs, institution of, iv. 154. See Markets. 
 False pleading makes executor liable, when, iv. 119. 
 tokens, effect of, iv. 381. 
 pretences, effect of, iv. 381. 
 plea by heir, consequences of, iv. 625. 
 consequences of, vii. 550. 
 imprisonment, remedy for, ix. 462. 
 Falsehood, when evidence of fraud, iv. 384. 
 
 required to constitute perjury, vii. 424. 
 Family agreements, when founded on mistake, set aside, iv. 397. 
 effect of a devise to, vi. 148, 187. 
 Bible, when evidence, iii. 576, 579. 
 Famosus libellus, what, ix. 29. 
 Farm-let, effect of these words in a lease, v. 601. 
 
 what passes under the word, vi. 143. 
 Father, defective conveyance to a child by, when good, i. 155. 
 
 liable for child's maintenance, vi. 330. 
 Fealty, oath of, viii. 448. 
 Fee-simple, what, iii. 421. 
 
 what words pass a, vi. 14. 
 Fees, what, iv. 165. 
 
 when due, iv. 165, 171. 
 
 what due, iv. 167. 
 
 for extra services not recoverable, iv. 166. 
 
 when recovered, iv. 172. 
 
 who entitled to, iv. 173. 
 
 of coroner, ii. 433. 
 
 clerk and commissioner of bankrupt, i. 814. 
 when illegal, may be recovered back in assumpsit, i. 433. 
 Feigned issues, costs on, ii. 532. 
 Felo de sc, who is a, iv. 196. 
 
 manner of finding a, iv. 198. 
 punishment of, iv. 198. 
 cannot make will, vi. 10. 
 Felonice, when required in an indictment, v. 68. 
 
 rapuit, when required in an indictment, v. 68. 
 Felony, what, iv. 173. See Larceny. 
 effect of a pardon of, iv. 174. 
 consequences of, iv. 196. 
 
 authority of justices of the peace in relation to, v. 405. 
 Feme, who, ii. 13. See Wife. 
 
 sole trader, who is a, ii. 65. 
 
 rights of, ii. 69. 
 
 liabilities of, ii. 69. 
 executrix, effect of marriage of, iv. 12.
 
 GENERAL INDEX. 649 
 
 Feme covert may act as attorney in fact, i. 520. 
 execute a power, -when, ii. 75. 
 be executrix, iv. 12. 
 execute a grant, when, iv. 505. 
 cannot be made a bankrupt, i. 631. 
 administer, when, iv. 67. 
 be guilty of larceny, when, iv. 189. 
 make a will, when, vi. 6. 
 rights of, by the custom of London, iii. 49. 
 liable to execution, when, iii. 721. 
 outlawry, when, vii. 332. 
 must join her husband to pass her estate, when, iv. 255. 
 when bound by a condition, ii. 285. 
 not able to make a will, x. 481. 
 not dowable in a use, x. 125. 
 Fences, when turnpike company required to make, vi. 440. 
 
 consequences of a defect in, ix. 485. 
 Feoffment, what, iv. 199. See Deed. 
 who may make a, iv. 220. 
 Ferce natures, what animals are, iv. 431, 432. 
 
 trover does not lie for animals, ix. 650. 
 when animals, tithable, x. 24. 
 Ferry, grant of a, when good, viii. 114. 
 who entitled to keep a, viii. 114. 
 is publici juris, viii. 115. 
 Ferrymen, liable as common carriers, ii. 154. 
 Feudum novum, what, iii. 428. 
 
 antiquum, what, iii. 428. 
 masculum et fceminmm, what, iii. 429. 
 Fictitious payee, effect of a bill payable to, vi. 835. 
 Fidejussors, obligation of, ii. 746. 
 Fidci commissa, what, x. 113. 
 
 abolished in Louisiana, x. 113. 
 comnussarius, who, x. 113. 
 Fieri facias, is a judicial writ, iii. 698. 
 
 what may be seized under a, iii. 698. 
 from what time a lien, iii. 726. 
 return to, iii. 732. 
 
 cannot be withdrawn after levy, iii. 735. 
 how to be executed, viii. 702. 
 Fighting, effect of death by, vii. 190, 192. 
 Figures may be used in pleading, when, v. 81. 
 Fiium aqua?., what, viii. 23. 
 Final, award must be, i. 340. 
 Finder of goods, when liable for their loss, i. 619. 
 
 guilty of larceny, iv. 181, 182. 
 Fines and amercements, what, iv. 225, 236. 
 
 who may impose them, iv. 225. 
 in what actions they may be imposed, iv. 228. 
 when to be awarded, iv. 230. 
 against whom, iv. 234, 239. 
 when awarded jointly and severally, iv. 234. 
 to be awarded only once, iv. 235. 
 must be reasonable, iv. 239. 
 when mitigated, iv. 240. 
 how recovered, iv. 244. 
 estreated, v. 418. 
 forfeitures, king's prerogative in, viii. 44. 
 
 who is entitled to, viii. 117. 
 recoveries, what, iv. 245. 
 
 several parts of, iv. 246. 
 
 kinds of, iv. 252. 
 
 by whom to be levied, iv. 254. 
 
 operation of, iv. 261. 
 
 bar a stranger, when, iv. 265. 
 
 Vol. X.— 82 3 I
 
 650 GENERAL INDEX. 
 
 Fines and recoveries, bar an uncertain interest, when, iv. 265. 
 
 equitable interest, when, iv. 265. 
 how avoided by strangers, iv. 276. 
 when erroneous, how reversed, iv. 278. 
 by husband, effect of on wife's estate, ii. 50. 
 payable by copyholders, ii. 406. 
 Avhen due, ii. 406. 
 when and where payable, ii. 407. 
 certainty of, ii. 408. 
 remedy for, ii. 409. 
 Fire, effect of accidental, viii. 523, 524 ; ii. 595. 
 
 insurance against, vi. 746. 
 First fruits, court of, when dissolved, ii. 699. 
 Fish, right to, ix. 484, 485. 
 when tithable, x. 10. 
 ponds, waste to, x. 428. 
 Fisherman, when considered a trader, i. 799. 
 Fishery, what, vii. 452. 
 
 free, what, vii. 452. 
 several, what, vii. 452. 
 common, what, vii. 452, 454. 
 
 in New Jersey the common right of, is not given by the constitution, vii. 454. 
 common right of, exists in Massachusetts, vii. 454. 
 ejectment does not lie for, iii. 272. 
 Fishing, right of, ii. 201 ; viii. 20. 
 
 what passes by a grant of, iv. 535. 
 Fixtures, when not liable to execution, iii. 705. 
 belong to the executor, when, iv. 82. 
 
 put up by mortgagor are bound by the mortgage, vii. 53, 163. 
 when it is waste to remove, x. 431. 
 trade, what, x. 433. 
 Florida, courts in, ii. 820. 
 Flotsam, what, viii. 35. 
 
 admiralty jurisdiction over, ii. 73. 
 Flowers of the crown, what, viii. 117. 
 Fcedus, what, viii. 63. 
 Fccnus nauticum, what, vi. 749. 
 Foot of a fine, what, iv. 249. 
 
 race, when a game, iv. 461. 
 Forbearance to sue, a good consideration, i. 423, 425. 
 Force required in forcible entry and detainer, what, iv. 325. 
 
 trespass, ix. 438. 
 Forcible detainer is a distinct offence, iv. 326. 
 entry and detainer, what, iv. 321. 
 
 statutes relating to, iv. 321. 
 what constitutes a, iv. 325. 
 who may be guilty of, iv. 328. 
 marriage, offence of, vi. 481. 
 Foreclosure, right of, vii. 62. See Redemption. 
 who has a right to, vii. 62, 79. 
 manner of, vii. 151. 
 Foreign judgments, how proved, iii. 539. See Judgment. 
 effect of, iii. 569. 
 limitation of actions on, vi. 378. 
 laws, how proved, iii. 627. 
 
 considered as a fact, i. 411. 
 state, what, ii. 798. 
 
 Cherokee nation is not a, ii. 798. 
 government, when it can sue, i. 68. 
 marriages, when valid, vi. 472. See Marriage. 
 
 must be made according to the lex loci, vi. 473, 474. 
 which took place in Scotland, vi. 475. 
 
 British settlements, vi. 478. 
 France, vi. 480. 
 Rome, vi. 480.
 
 GENERAL INDEX. 651 
 
 Foreign marriages, Tjy what laws to be tried, vi. 472. 
 factor, who is, vi. 558. See Factor. 
 sentence of condemnation, effect of, vi. 733. 
 vessels, duties on goods imported in, ix. 133. 
 coin, eifect of tender of, ix. 318. 
 Foreigners cannot be bail in respect of their property abroad, i. 5G2. 
 Forest, courts of the, ii. 762. 
 
 what is a, ii. 762. 
 Forestalling, -what, iv. 335. 
 Forfeiture, what, iv. 337. 
 
 for what crimes, iv. 338. 
 of what estate, iv. 338. 
 
 goods and chattels, when, iv. 340. 
 for what crimes by statute, iv. 342. 
 to what time, has relation, iv. 346. 
 lien on goods by, iv. 347. 
 affects wife's dower, how, iv. 348. 
 under the laws of the United States, iv. 352. 
 for spiritual offences, how recovered, iv. 648. 
 of an office, what, vii. 320. 
 
 for what causes, vii. 320. 
 a corporation, ii. 482. 
 by non-user, ii. 482. 
 feudal, what, viii. 448. 
 consequence of outlawry, vii. 335. 
 incurred by papists, vii. 371, 374. 
 of simony, how incurred, ix. 7, 22. 
 by whom, ix. 22, 24. 
 who may take advantage of, ix. 25. 
 of copyhold, ii. 413. 
 
 for non-attendance in court, ii. 413. 
 not doing service, ii. 413. 
 non-payment of rent, ii. 414. . 
 by disposition of it, ii. 415. 
 committing waste, ii. 415. 
 enclosure, ii. 417. 
 for treason or felony, ii. 418. 
 who affected by, ii. 419. 
 who shall be excused from, ii. 421 . 
 wdien dispensed with, ii. 421. 
 lease, what, v. 668. 
 
 when waived, viii. 486. 
 wages by mariner, vi. 602. 
 
 waived by master, vi. 602. 
 desertion is a, vi. 609. 
 cannot be of a trust, x. 124. 
 Forged bills, when a payment made in them is invalid, i. 412. 
 
 effect of acceptance of, i. 413. 
 Forgery, what, iv. 353. 
 
 what writing required to make it, iv. 356. 
 uttering forged instruments, when punished as, iv. 373. 
 who may prove the forged writing, iii. 497. 
 charge of, actionable, ix. 37. 
 Form of process in Courts of U. S., ii. 822. 
 
 and requisites of commitments, ii. 253, 254; iii. 395. 
 of writ of error, iii. 337. 
 
 oath administered to a witness, iii. 512. 
 
 proving a will, iv. 50. 
 
 taking out administration, iv. 50. 
 
 record in cases of forcible entry and detainer, iv. 328. 
 
 writs of habeas cor]ms, iv. 580. 
 
 commission of the peace, v. 398. 
 
 notice to justices, before action brought, v. 432. 
 
 a bond, vii. 241. 
 
 the return of a rescous, viii. 589.
 
 052 GENERAL INDEX. 
 
 Formedcn, what, iv. 374. 
 
 in descender, iv. 374. 
 remainder, iv. 376. 
 reverter, iv. 377. 
 of things, will lie, iv. 377. 
 demandant in, must show his title, iv. 377. 
 plea in, iv. 379. 
 limitations in, vi. 364. 
 Former estate, how far restored by re-entry, ii. 316. 
 recovery, plea of, vii. 633. 
 
 in penal actions, vii. 639. 
 Fornication, how punished in ecclesiastical courts, viii. 57. 
 Fortifications, right of the king to make, viii. 63. 
 Forwarding merchant, liability of, i. 623. 
 
 not a common carrier, ii. 151. 
 Fountain of justice, king is the, viii. 55. 
 Franchise, injunction lies to restrain acts injurious to, v. 209. 
 
 scire facias, to repeal a, viii. 609. 
 Frankalmoignc, what, iii. 426. 
 
 is tenure by, ix. 370. 
 Frankmarriage, what, iii. 426. 
 Fraud, what, iv. 381. 
 
 vitiates sale, iv. 383. 
 falsehood evidence of, iv. 384. 
 when acts of servant are, in the master, iv. 383. 
 what relieved in equity, iv. 388. 
 cognisable in what court, iv. 424. 
 justices liable for, v. 429, 430. 
 
 when committed against a carrier, it excuses him, ii. 155. 
 agreements obtained by, void, i. 158, 444. 
 in a voluntary assignment, when presumed, i. 389. 
 effect of, in insurance, vi. 691. 
 will avoid a patent or grant, viii. 149. 
 when an action lies for, i. 111. 
 chancery has jurisdiction in cases of, ii. 688. 
 prevents the running of the act of limitations, vi. 383. 
 when will can be set aside for, x. 585. 
 Fraudulent conveyances void against creditors and purchasers, iv. 401. 
 Freebench, what is a, ii. 375. 
 
 whether a widow shall have her, of a trust, ii. 380. 
 Freeman's estate in London, what shall be, iii. 40. 
 " From the day of the date," meaning of, v. 487. 
 Fruit, when not tithable, x. 7. 
 Fugitives, goods of, when forfeited, iv. 341. 
 Funeral expenses, allowance for, iv. 113. 
 Functus officio, when a bill is, vi. 797. 
 Fund, legatees are entitled to take, when it is divisible, vi. 182. 
 
 when a legacy is charged on a particular, vi. 297. 
 Future cohabitation, bond given for, void, vii. 260. 
 
 G. 
 
 Game, what, iv. 431. 
 
 Gaming, how restrained at common law, iv. 450. 
 
 by statute, iv. 454. 
 houses, when a nuisance, iv. 451 ; vii. 223. 
 Gaol, what, iv. 463. See Jail. 
 Gardens, what, x. 428. 
 
 Garnishee cannot plead the act of limitations, vi. 406. 
 who is, iii. 51. 
 
 what may be pleaded by, iii. 51. 
 Gavelkind, origin of, iv. 490. 
 
 cases relating to the custom of, iv. 499. 
 Geese, who entitled to wild, viii. 24.
 
 GENERAL INDEX. 653 
 
 Geld, what, iv. 493. 
 
 General imparlance, v.'liat, vii. 520. 
 
 special, what, vii. 520. 
 . issue, how formed, vii. 531. 
 
 pleas amounting to, vii. 541. 
 legacies, when entitled to interest, vi. 325. See Interest, Legacy. 
 issue in trespass, ix. 515. 
 
 and special plea in trespass, when proper, ix. 527. 
 verdict, what, x. 308. 
 Gentleman, addition of, vii. 10. 
 Gist of the action, what is, vii. 477. 
 Give, this word not indispensable in a will, vi. 16. 
 Giving time to the acceptor of a bill, effect of, vi. 815. 
 Glebe lands, when tithable, x. 48. 
 Good will, who is entitled to, vi. 580. 
 and lawful men, who are, v. 331. 
 behaviour, surety of, ix. 307. See Surety. 
 Goods, what will pass by a bequest of, vi. 192. 
 when legacy of, is adeemed, vi. 208. 
 
 the importation of which may be prohibited by proclamation, ix. 135. 
 absolutely prohibited to be imported, ix. 130, 
 subject to restrictions on importation, ix. 137. 
 Government, no costs allowed against, ii. 524. 
 
 how a legacy to, is to be disposed of, vi. 189. 
 Grace, days of, vi. 767, 830. See Days of Grace. 
 
 Grammar, will, not always to be construed according to the rules of, X. 540. 
 Grand jurors must beprobi et legates homines, v. 53. 
 
 cannot be withdrawn in a particular case, v. 53. 
 must be regularly summoned, v. 53. 
 jury, what, v. 310. 
 
 defendant may challenge, v. 312. 
 challenge to, when to be made, v. 312. 
 number of, v. 314. 
 inquest, what, v. 310. 
 serjeantry, tenure by, ix. 375. 
 Grandchildren, who shall take a legacy given to, vi. 184. 
 Grange, effect of grant of, iv. 530. 
 Grant, what, iv. 501. 
 
 by whom made, iv. 503. 
 
 corporations, iv. 503. See Corporations. 
 ecclesiastics, iv. 503. 
 infants, iv. 505. See Infancy and Age. 
 femes covert, iv. 505. See Baron and Feme. 
 idiots, iv. 506. See Idiots. 
 persons under duress, iv. 506. See Duress. 
 to whom made, iv. 507. 
 feme covert, iv. 507. 
 monk, iv. 507. 
 
 surveyors of highways, iv. 508. 
 construction of, iv. 508, 526. 
 what things lie in, iv. 517. 
 
 words sufficient to create a, iv. 519. 
 void for uncertainty, when, iv. 521. 
 by the crown, effect of, viii. 114. 
 of what, viii. 114. 
 of a ferry, viii. 114. 
 by the king, arising from his interest, viii. 116. 
 how construed, viii. 149. 
 when void, viii. 149, 150, 152. 
 effect of legislative, viii. 150. 
 
 possession of, viii. 151. 
 when qualified by recital, viii. 151. 
 
 good in part and bad in part, viii. 154. 
 presumptions of a, viii. 156. 
 when presumed, iii. 618, 619, 620; viii. 94. 
 
 3i2
 
 654 GENERAL INDEX. 
 
 Grant, effect of this word in a lease, v. 001. 
 
 and demise, effect of these words, ii. 555. 
 Grants of copyhold lands, who may make them, ii. 383. 
 
 what shall destroy the power of copyholders to make, ii. 386. 
 of what they may consist, ii. 387. 
 operation of copyhold, ii. 388. 
 Grantee, description of, iv. 508. 
 
 mistake in name of, iv. 508, 510. 
 when two of same name, iv. 509. 
 inting of administration, to whom it belongs, iv. 43. 
 ..ntor, description of, iv. 508. 
 
 what interest he may grant, iv. 513. 
 what interest he must have, iv. 514. 
 may assign a bare right, iv. 515. 
 what seisin must be in, iv. 516. 
 Gretna Green marriages, effect of, vi. 469. 
 Gross, common in, ii. 264. 
 Ground rent, nature of, viii. 450. 
 
 what passes by a bequest of, vi. 195. 
 when assignee is liable for, ii. 566. 
 effect of release of part, viii. 250. 
 Guaranty, when not negotiable, vi. 787. 
 Guardian, who is a, iv. 538. 
 
 different kinds of, iv. 538, 539. 
 in chivalry, iv. 539. 
 
 socage, iv. 540. 
 by nature, iv. 540. 
 nurture, iv. 541. 
 custom, iv. 541. 
 statute, iv. 542. 
 ad litem, iv. 546. 
 who may be, iv. 547. 
 for what removed, iv. 548. 
 by whom appointed, iv. 549. 
 manner of appointment of, iv. 551. 
 when authority of, ceases, iv. 553. 
 what he may lawfully do, iv. 555. 
 infant's remedy against, iv. 559. 
 bound to account, iv. 561. 
 charged for what, iv. 562. 
 when to be appointed for an infant, v. 122. 
 infant may appear by, v. 148. 
 lease by, when good, v. 569. 
 may distrain, iii. 165. 
 Guest entitled to enter an inn, v. 230. 
 
 lien of landlord upon goods of his, v. 229. 
 who is considered a, v. 234. 
 landlord's remedy against his, v. 236. 
 Gunpowder mill, when a nuisance, vii. 230. 
 
 H. 
 
 Habeas corpora, object of, v. 315. 
 corpus, nature of, iv. 563. 
 origin of, iv. 563. 
 ad subjiciendum, what, iv. 564, 567. 
 
 faciendum ct recipiendum, what, iv. 564, 601. 
 
 respondendum, what, iv. 564. 
 
 deliberandum el recipiendum, iv. 566. 
 
 satisfaciendum, iv. 565. 
 
 testificandum, iv. 565. 
 what court may issue writ of, iv. 567. 
 by whom it may be sued out, iv. 570, 573. 
 to what places it runs, iv. 570.
 
 GENERAL INDEX. 655 
 
 Habeas corpus, in -what cases granted, iv. 571. 
 
 not granted, iv. 574. 
 courts havo discretionary power to grant or refuse, when, iv. 575. 
 manner of suing out writ of, iv. 580. 
 form of writ of, iv. 580. 
 by whom to be returned, iv. 581. 
 return of, how compelled, iv. 582. 
 what must be returned with writ of, iv. 584. 
 what return to, is sufficient, iv. 585. 
 whether a return to a, can be contradicted, iv. 587. 
 defects to a return to a, when amendable, iv. 588. 
 prisoner, how treated after return to a, iv. 589. 
 jurisdiction of the courts of the U. S. in cases of, ii. 824. 
 when a supersedeas, ix. 283. 
 Habendum, what, iv. 214. 
 
 effect of, iv. 529. 
 
 may enlarge or vary estate granted, iv. 529. 
 cannot contradict premises, iv. 529. 
 Habere •facias possessionem, how to be executed, viii. 710. 
 Half-blood, rights of, iii. 107. 
 Handwriting, how proved, iii. 639 ; x. 499. 
 
 in what, a will may be, x. 489. 
 Havens, what, vii. 44G ; viii. 25. 
 Hay, when tithable, x. 10. 
 
 Hazard, what will take a contract out of the statutes of usury, x. 285. 
 Hceres natus may redeem mortgaged property, vii. 63. 
 foetus may redeem mortgaged property, vii. 63. 
 Hearsay evidence not admissible, when, iii. 629. 
 exceptions, iii. 630. 
 
 when part of res gesta, iii. 630. 
 
 what witness testified to on a former trial, iii. 630. 
 
 dying declarations, iii. 630. 
 
 matters relating to public rights, iii. 630. 
 
 declarations of deceased persons against their interest, 
 
 iii. 630. 
 declarations as to pedigree, iii. 630. 
 
 boundaries, iii. 630. 
 Heir, who is an, iv. 606. See Heeres factus. 
 several kinds of, iv. 606. 
 apparent, iv. 606. 
 
 general, or heir at common law, iv. 608. 
 special, iv. 609. 
 customary, iv. 609. 
 
 covenants of ancestor, when for the benefit of, iv. 010 ; ii. 265. 
 when bound by covenants of ancestor, iv. 613. 
 actions which may be had by, in right of ancestor, iv. 614. 
 bound for ancestor's debts, when, iv. 616. 
 
 to what extent, iv. 616. 
 liable for his false pleading, when, iv. 625. 
 when not liable for costs, iv. 626. 
 
 judgment de bonis propri is against, when proper, iv. 626. 
 liable upon his promises, when, iv. 628. 
 what shall be assets in hands of, iv. 629. 
 
 entitled to rent of descended land, when, iv. 631 ; viii. 473, 476. 
 maj' disti'ain, when, iii. 165. 
 
 bring an appeal, when, i. 294. 
 when a word of limitation in creating an estate in fee, iii. 424. 
 
 purchase, iii. 426. 
 when execution may issue against, iii. 719. 
 scire facias will lie for or against the, viii. 611. 
 Heirs, who are meant by the term, vi. 15, 18. 
 
 what expressions are equivalent to, vi. 15. 
 in the singular number, when equal to, vi. 18. 
 of his body, meaning of, vi. 32, 35. 
 effect of, in a will, x. 488.
 
 656 GENERAL INDEX. 
 
 Hereditaments, moaning of, x. 126. 
 Heresy, what, iv. G32. 
 
 by whom cognisable, iv. 033. 
 how punished, iv. 634 ; viii. 57. 
 
 teaching school without conforming to the church, iv. 644. 
 ia not coming to church, iv. 645. 
 
 what offences against the established church amount to, iv. 650. 
 Heriot, what, iv. 655. 
 
 when due by custom, iv. 657. 
 tenure, iv. 661. 
 remedy to recover, iv. 662. 
 High seas, what, ii. 735 ; vii. 446 ; viii. 19. 
 
 sheriff, power of, viii. 671. Sec Sheriff. 
 
 covenants between under-sheriff and, viii. 673. 
 what acts must be done by, viii. 675. 
 treason, what, ix. 379, 384. See Treason. 
 Highways, what, iv. 664. See Way. 
 several kinds of, iv. 664. 
 street is a, iv. 666. 
 extent of, iv. 666. 
 dedication of, iv. 667. 
 where to be laid out, iv. 668. 
 cul de sac, when a, iv. 668. 
 to whom belongs the soil of, iv. 668. 
 
 legislature may take the entire interest in land for a public, iv. 669. 
 how changed, iv. 669. 
 effect of an alteration in, iv. 673. 
 stopping, is a nuisance, iv. 674. 
 bridge built on, a nuisance, iv. 675. 
 who are bound to repair, iv. 676. 
 
 provisions in acts of parliament relating to repairs of, iv. 679. 
 remedies for not repairing, iv. 681. 
 what is a nuisance on a, vii. 226. 
 Hirer, duties of, i. 620, 624. 
 Hiring, what is a, ix. 203. 
 History, when evidence, iii. 578. 
 Holograph testament, what, x. 518 
 Home factor, who is, vi. 558. See Factor. 
 Homicide, what, vii. 183. 
 
 justifiable, what, vii. 184, 207. 
 excusable, what, vii. 211. 
 Honey, when tithable, x. 26. 
 Honour, what passes by a grant of, iv. 530. 
 Jlors de son,fee, plea of, vii. 617. 
 
 when a proper plea, viii. 567. 
 Horse-race, is a game, when, iv. 461. 
 Hotchpot, what, iv. 97. 
 
 nature of, ii. 364. 
 
 what goods must be brought into, iv. 97. 
 profits not to be brought into, iv. 98. 
 
 advancement to be brought into, only among children, iv. 99. 
 by the custom of London, iii. 43. 
 House, what passes by a grant of, iv. 530. 
 
 bequest of, vi. 195. 
 is a nuisance, when too crowded, vii. 228. 
 
 filled with gunpowder, vii. 229. 
 inoculating, a nuisance, vii. 229. 
 bote may be the subject of a lease, v. 438. 
 of Commons, its origin, ii. 639. 
 Lords, jurisdiction of, ii. 679 
 a court, ii. 680. 
 
 how suits commenced in, ii. 680. 
 writs of error from, ii. 680. 
 may commit and take bail, i. 593. 
 Representatives may punish private persons for contempt, i. 473.
 
 GENERAL INDEX. 657 
 
 House, what is waste to, x. 428. 
 
 Household goods, what passes under a bequest of, vi. 193. 
 stuff, what passes under a, bequest of, vi. 194. 
 furniture, what passes under a bequest of, vi. 194. 
 Hoynien are common carriers, ii. 151. 
 Hue and cry, what, iv. 691. 
 
 at common law, iv. 691. 
 derivation of, iv. 692. 
 by whom to be levied, iv. 692. 
 how to be levied, iv. 693. 
 pursued, iv. 693. 
 justified, iv. 693. 
 neglect of, how punished, iv. 695. 
 under the statutes, iv. 696. 
 for what kind of robbery, iv. 697. See Robbery. 
 Hundred, how charged for a robbery, iv. 690. 
 
 for what kind of robbery liable, iv. 697. 
 when committed to make the, liable, iv. 698. 
 what shall be liable for robbery, iv. 699. 
 who entitled to bring action against, iv. 700. 
 plaintiff against, must give bonds, iv. 703. 
 what evidence requisite in an action against the, iv. 700. 
 how money is to be raised by the, iv. 708. 
 court, jurisdiction of, ii. 777. 
 Hunter, when entitled to animals he has wounded, iv. 432. 
 Hunting, right of, ix. 483. 
 Husband, who is a, ii. 13. 
 
 power of, over wife, ii. 14. 
 
 wife's real estate, ii. 14. 
 
 personal estate, ii. 15. 
 choses in action, ii. 21 ; vi. 491. 
 property accruing during coverture, ii. 2" 
 title by curtesy, iii. 16. 
 rights, viii. 275. 
 may submit to arbitration in right of wife, i. 319. 
 
 be attorney in fact to make livery to his wife, i. 520. 
 endorse a note payable to his wife, vi. 793. 
 sue alone for choses of wife, ii. 54. 
 be a witness, when, ii. 475. 
 marital rights of, ii. 30. 
 
 liable for his wife's debts, when, ii. 33 ; vi. 491. 
 fiduciary conduct, ii. 34. 
 necessaries, ii. 38. 
 notice not to trust wife, effect of, ii. 44. 
 cruelty towards wife, effect of, ii. 44. 
 what acts of, bind wife, ii. 49. 
 fines and recoveries by, effect of, ii. 50. 
 civil death of, effect of, ii. 64. 
 partition by, when to bind the wife, ii. 363. 
 discontinuance by, effect of, iii. 143. 
 not liable for attorney's fees, when, i. 504. 
 death of, requisite to entitle widow to dower, iii. 210. 
 
 jointure, iii. 228. 
 and wife, when to join in actions, ii. 55 ; vii. 409. 
 not to join, vii. 470. 
 
 scire facias will lie for or against, viii. 614. 
 may be joint-tenants, v. 242, 244. 
 tenants in common, v. 242. 
 make leases, v. 443. 
 Hustings, court of, ii. 790 
 Hypotheca, what, vii. 28. 
 Hypothecation, what, vi. 625. 
 
 by whom to be made, vi. 625. 
 owner not liable on, when, vi. 626. 
 when to take place, vi. 627. 
 
 Vol. X.— 83
 
 658 GENERAL INDEX. 
 
 I. 
 
 Idiot, who, v. 5, 6. See Lunatic. 
 
 how he gains a settlement, v. 19. 
 cannot be executor, iv. 9. 
 king has the care of, viii. 65. 
 Illegal voyages, effect of, vi. 703. 
 Illegitimate child, who is an, ii. 100. 
 bequest to, vi. 156. 
 Illicit^, when requisite in an indictment, v. 86. 
 Illiterate man, deceit of, when fraudulent, iv. 382. 
 Imagining the death of certain personages, when treason, ix. 386. 
 Immaterial and informal issues, not cured by verdict, i. 249. 
 issue when cured, vii. 534. 
 
 effect of, on a verdict, x. 323. 
 Immoral agreement, void, i. 167, 444. 
 Imparlance, what, vii. 519. 
 
 nature of, vii. 519. 
 kinds of, vii. 519. 
 
 general, vii. 520. 
 special, vii. 520. 
 general special, vii. 520. 
 what must be done before, vii. 520. 
 plea after general, vii. 522. 
 special, vii. 522. 
 when granted or not, vii. 523. 
 roll, when amendable, i. 242. 
 Impeachment of waste, ecclesiastical lease must not be without, v. 519. 
 Impeachments, how tried, v. 51. 
 
 judgment in, v. 51. 
 Implication, devises by, vi. 85. 
 
 fee cannot be raised by, vi. 85. 
 when fee may be raised by, vi. 88, 89. 
 cross remainders cannot be created by, vi. 106. 
 words " dying without issue," restrained by, vi. 113. 
 Implied covenants, what, ii. 555. 
 
 not to be inconsistent with express covenants, ii. 555. 
 Importations, how regulated, viii. 29. 
 
 list of goods subject to certain restrictions, ix. 137. 
 Impositions, what, ix. 109. 
 Impossible condition, effect of, ii. 294. 
 
 what, ii. 304. 
 Impotence, what, ii. 83. 
 
 divorce for, vi. 497. 
 Impressment, right of, viii. 63. 
 
 Imprisonment of principal, when a discharge of bail, i. 568, 570. 
 Improvements of husband's estate, how estimated in dower, iii. 205. 
 lessee's rights to, v. 660. 
 made by mortgagee not allowed, vii. 180. 
 In capite, what is tenure, ix. 368. 
 
 cmitcmpiu regis, when requisite in an indictment, v. 86. 
 forma pauperis, who may sue, vii. 420. 
 
 defend, vii. 421. 
 in what cases admitted to sue, vii. 422. 
 mitiori sensu, words are not to be construed, ix. 60, 61. 
 
 in doubtful cases when to be so construed, ix. 75. 
 
 not, ix. 76. 
 nullo est erratum, effect of plea of, iii. 345, 352. 
 pari materia, statutes, how construed, ix. 243. 
 perpetuam rei memoriam, examination in, iii. 528. 
 ventre sa mere, rights of child, v. 105. 
 
 infant in, may be a devisee, vi. 9. 
 legacy to a child, when good, vi. 170. 
 Incapacities (civil) of wife, ii. 14.
 
 GENERAL INDEX. 659 
 
 Inception, what, x. 533. 
 
 Incident, what is, iv. 533. 
 
 Incidental, what is, to a statute, ix. 220. 
 
 Inclusive, when in computation the first day is, v. 486. 
 
 Income, effect of devise of, vi. 16, 30. 
 
 Incompatibility, when, vii. 313, 314. 
 
 Indebitatus assumpsit, when it lies, i. 395, 399, 452. 
 
 does not lie on foreign or domestic judgment, i. 399. 
 for money lent to a third person, i. 400. 
 Indemnity to sheriff, when good, viii. 712, 720. 
 
 void, viii. 712, 720. 
 when the sheriff may demand, iii. 733. 
 Independent covenants, what, ii. 551. 
 Indictment, when good at common law, v. 91. 
 caption to, v. 92. 
 may be quashed, when, v. 94. 
 of treason, ix. 420. 
 
 when a new trial will be granted in an, ix. 626. 
 lies for passing false accounts with the pay office, v. 60. 
 when offence must be committed to support, v. 62. 
 must set forth substance of charge, v. 68. 
 technical expressions, when necessary to an, v. 68. 
 how persons must be set forth who are mentioned in an, v. 73. 
 
 things which are subject of the offence must be set out in, v. 77. 
 time and place, to be set out in an, v. 79. 
 when the words vi et armis requisite in, v. 85. 
 
 contra pacem requisite in, v. 86. 
 contra coronam requisite in, v. 86. 
 in contemptu regis requisite in, v. 86. 
 illicite requisite in, v. 86. 
 contra formam statuti requisite in, v. 90, 91. 
 when amendable, v. 87. 
 must recite statute, when, v. 87. 
 misrecital of statute in, when fatal, v. 88. 
 offence charged in, when to be within words of a statute, v. 90. 
 what, v. 48, 49. 
 is traversable, v. 48. 
 
 no one can be prosecuted except on presentment, or, v. 50. 
 nature of, v. 49. 
 when required, v. 50. 
 
 not required, v. 51. 
 by whom to be found, v. 52. 
 found a true bill, v. 53. 
 ignored, v. 53. 
 
 what matters are subject of an, v. 55. 
 lies for attempt to commit crime, when, v. 55. 
 using false weights, v. 55. 
 
 marks, when, v. 56. 
 being drunk while acting as a grand juror, v. 57. 
 opposition to the laws, v. 57. 
 exhibiting obscene picture, v. 57. 
 rapidly driving a carriage, when, v. 57. 
 cutting down a tree on public ground, when, v. 57. 
 maliciously killing a horse, v. 57. 
 conspiracy to cheat, v. 58. 
 
 commit an injury, v. 60. 
 blasphemy, v. 58, 
 
 abuse of lawful authority, when, v. 58. 
 challenge to fight, v. 58. 
 disturbing religious meeting, v. 58. 
 suffering a gaming-house, when, v. 58. 
 renting house for a bawdj'-house, v. 58. 
 giving two votes, when, v. 58. 
 malicious mischief, v. 58. 
 oppression by a magistrate, v. 59.
 
 660 GENERAL INDEX. 
 
 Indictment lies for selling unwholesome provisions, v. 59. 
 frequenting houses of ill-fame, v. 59. 
 exposing a person in public, when, v. 59. 
 cheating in exchange of money, v. GO. 
 sending a threatening letter, v. GO. 
 form of, in cases of bastardy, ii. 106. 
 
 forcible entry, iv. 329, 330. 
 perjury, vii. 429. 
 under certain acts of Congress, vii. 434. 
 Indictors, who may be, v. 52. 
 
 may find a part of bill true, and one part not true, v. 53. 
 Inducement, what is matter of, vii. 477. 
 
 not traversable, vii. 579. 
 Indulgence to debtor will discharge surety, vii. 251. 
 
 one of several debtors, eifect of, viii. 277. 
 Infamy renders a person incompetent as a witness, iii. 486. 
 
 juror, v. 347. 
 Infancy and age, what, v. 97. 
 
 when a good plea in abatement, i. 4. 
 
 bar, ii. 615. 
 continuance of, v. 98. 
 privileges of, v. 104. 
 how tried, v. 106. 
 
 cannot be assigned for error, when, iii. 373. 
 Infant, who is, v. 98. 
 
 what he may do, v. 98. 
 may bring an appeal, i. 294. 
 
 writ of error, v. 107. 
 sue an audita querela, i. 510. 
 be an attorney in fact, i. 520; v. 101, 105. 
 a witness, when, iii. 473. 
 executor, when, iv. 11. 
 
 guilty of forcible entry and detainer, iv. 328, v. 115. 
 make a grant, iv. 505. 
 
 contracts, when, v. 108, 117. 
 
 for necessaries, v. 117. 
 file a bill to redeem, when, v. 169. 
 transfer promissory note by endorsement, v. 169. 
 be outlawed, when, vii. 331. 
 contract marriage, when, v. 99. 
 inherit, v. 109. 
 take a lease, v. 109. 
 be lord of a copyhold, v. 110. 
 bind himself apprentice, v. 110. 
 present to a church, v. 110. 
 assign error coram vobis, v. 148. 
 make lease, when, v. 441. 
 confirm a lease, v. 442, 443. 
 cannot be made a bankrupt, i. 631. 
 an attorney, when, v. 108. 
 naturalized on his petition, v. 169. 
 is liable for his battery, i. 372. 
 
 on his contracts, when, i. 154, 415, 424, 427. 
 to an execution, when, iii. 720. 
 to punishment for his crimes, v. 114, 116. 
 for his torts, v. 116. 
 costs, when, v. 153. 
 not liable for necessaries, when, v. 121. 
 
 as an innkeeper, when, v. 233. 
 when doll capar, v. 103. 
 domicil of, v. 104. 
 privileges of, v. 104, 114. 
 capacity of, towards the public, v. 108. 
 appearance to an action, effect of, i. 231, 485. 
 his submission to arbitration, when voidable, i. 314.
 
 GENERAL INDEX. 661 
 
 Infant, when bound by a condition, ii. 2S5 ; 
 
 in ventre set mere may be executor, iv. 11. 
 not bound by his guardian's acts, when, iv. 557. 
 remedy of, against guardian, iv. 557. 
 laches of, not prejudicial, v. 110. 
 not bound by the act of limitations, v. 111. 
 entry of, not taken away by descent, v. 111. 
 conditional gift to an, binding, v. 113. 
 guardian, when to be appointed for, v. 122. 
 bound by judicial acts, when, v. 123, 147, 109. 
 not bound by acts in pea's, v. 125. 
 entitled to his own earnings, when, v. 120, 109. 
 partition by, when voidable, v. 129. 
 jointure on, when a bar to dower, v. 130. 
 executor may sue by attorney, v. 151. 
 when the parol shall demur in relation to, v. 154. 
 father entitled to the custody of, v. 109. 
 effect of payment of legacy to an, vi. 307. 
 king has the care of, viii. 05. 
 when able to make a will, x. 481. 
 Inferior courts have limited jimsdiction, ii. 030. 
 
 their jurisdiction must appear, ii. 030. 
 Infidel cannot be a witness, iii. 474. 
 Informal issue, effect of verdict on, x. 323. 
 Information, nature of, v. 109. 
 
 difference between indictment and an, v. 170. 
 when allowed to be filed, v. 171. 
 allowed on penal statutes, v. 173. 
 in nature of a quo icarranto v. 173. 
 when it will lie, v. 174, 178. 
 how to be laid, v. 178. 
 proceedings on, v. 180. 
 for usurpation of an office, v. 183. 
 under the laws of the United States, v. 192. 
 in what court, lies, v. 192. 
 lies for what offence, v. 192. 
 form of, v. 192. 
 
 evidence and proceedings under an, v. 193. 
 when proper, viii. 100. 
 in what court to be made, viii. 101. 
 what proof required to sustain, viii. 101. 
 form of, viii. 103. 
 amendment of, viii. 105. 
 for extortion, form of, vii. 324. 
 Informer, rights of, v. 193. 
 
 costs against, ii. 522. 
 Infra prcesidia, effect of bringing captured property, ii. 745. 
 Initial letter, whether a name, vii. 8. 
 Injunction, what, v. 194. 
 
 several kinds of, v. 194. 
 
 to prevent waste, v. 197, 201, 211 ; x. 464, 407. 
 trespass, when, v. 198. 
 printing of copyright books, v. 198, 215. 
 the publication of letters, v. 199. 
 
 the assumption of the name of another's newspaper, v. 200. 
 the dissolution of a partnership, v. 200. 
 partner from receiving partnership funds, v. 200, 214. 
 a levy on partnership goods, v. 200. 
 breaches of covenants, v. 201, 212. 
 the negotiation of a bill, v. 201. 
 a party after laches, from insisting on a right, v. 202. 
 trial at law, v. 202. 
 threatened mischief, v. 203. 
 
 proceedings against the bail, when granted, v. 206. 
 counsel from divulging secrets of his client, v. 208. 
 
 3K
 
 662 GENERAL INDEX. 
 
 Injunction to prevent obstructions of ancient lights, v. 209. 
 
 the infringement of a privilege granted by statute, v. 209. 
 injury to a ferry, v. 209. 
 the sale of slaves, v. 209. 
 
 proceedings on a usurious contract, when, v. 209. 
 cutting down ornamental trees, v. 211. 
 the transfer of stock, v. 213. 
 
 executors from wasting property of testator, v. 213. 
 the use of a recipe, v. 214. 
 perpetual, when to be granted, v. 203. 
 by what court granted, v. 210. 
 lies for nuisance, when, v. 212. 
 to stay proceedings in admiralty, v. 216. 
 
 the Great Sessions of "Wales, v. 216. 
 what is a breach of, v. 217. 
 
 must be obeyed, though improperly granted, v. 218. 
 when attorney guilty of breach of, v. 218. 
 how dissolved, v. 219. 
 when dissolved, v. 220. 
 for what causes dissolved, v. 220. 
 against two defendants, how dissolved, v. 222, 224. 
 effects of acquiescence as to, v. 223. 
 
 on lien, v. 224. 
 when granted for a nuisance, vii. 234. 
 Injuries done by persons employed by the public, how compensated, ii. 786. 
 
 to personal property, remedy for, ix. 472. 
 Inland bills of exchange, vi. 767. See Bills of Exchange. 
 
 what is an, vi. 768. 
 Inn, what, v. 226, 228, 229 ; ix. 662. 
 by what authority erected, v. 226. 
 may be suppressed, v. 226. 
 must be licensed, v. 227. 
 Innkeeper, who is an, v. 228. 
 
 cannot as such be a bankrupt, v. 229. 
 may request disorderly person to depart, v. 229. 
 has a lien on guest's goods, v. 229. 
 duties enjoined on innkeepers, v. 230. 
 bound to receive guests, v. 230, 232. 
 answerable for guest's goods, when, v. 230, 233. 
 may be punished for selling corrupt commodities, v. 231. 
 how he is to be charged in an action, v. 235. 
 remedies of, against his guests, v. 230. 
 lien of, ix. 662. 
 Innuendo, use of, in an action of slander, ix. 95. 
 Inquest of office, when proper, viii. 98. 
 Inquisition, how to be taken by coroner, ii. 427. 
 
 when to be traversed or quashed, ii. 431. 
 in cases of lunacy, effect of, v. 6. 
 
 how executed, v. 8. 
 traversed, v. 8. 
 by whom traversed, v. 9. 
 for what issued, v. 9. 
 how superseded, v. 10. 
 when set aside, v. 10. 
 in escheats, requisites of, viii. 18. 
 Insanity, may be pleaded in abatement, i. 5. 
 
 difference between total and partial, v. 6. 
 Insensible issue, effect of a verdict on, x. 326. 
 Jnsimul compulassd, effect of plea of, vii. 589. 
 
 Insolvent discharged in another state, may be discharged on common bail, when, i. 550. 
 Inspection, trial upon, ix. 552. 
 
 Inspector of election, how punished for neglect, vii. 325. 
 Instalment, when an action will lie on, iii. 83, 88. 
 
 effect of foreclosure for, v. 157. 
 Instance court, what, ii. 734.
 
 GENERAL INDEX. 663 
 
 Insufficiency in defendant's bar not cured by verdict, i. 249. 
 Insufficient issue, effect of a verdict on, x. 32G. 
 Insurance, what, vi. G37. 
 
 marine, vi. G37. 
 
 on ship lost or not lost, vi. G38. 
 
 when partnership cannot make, vi. G38. 
 
 subject-matter of, vi. 640. 
 
 profits, vi. G40. 
 wages, vi. 641. 
 commissions, vi. 641. 
 privileges, vi. G41. 
 goods laden on deck, vi. 643. 
 ship, vi. G43. 
 goods, vi. G43. 
 
 tackle and furniture, vi. 644. 
 ship and furniture, vi. 644. 
 return cargo, vi. 644. 
 interest of the insured, vi. 644. 
 
 broker, vi. 644. 
 consignee, vi. 645. 
 equitable owner, vi. 645. 
 part owner, vi. 645. 
 stamps on, vi. 645. 
 commencement of risk, vi. 647. 
 duration of risk, vi. 647. 
 loss by capture, vi. 663. 
 detention, vi. 663. 
 barratry, vi. 668. 
 abandonment, vi. 680. See Abandonment. 
 when required, vi. 680. 
 
 not required, vi. 680. 
 to be made, vi. G82. 
 effect of fraud or misrepresentation on, vi. 691. 
 concealment, vi. 691. 
 destroying ship on, vi. 701. 
 seaworthiness, vi. 701. 
 illegal voyage on, vi. 703. 
 deviation, vi. 714. 
 convoying prizes on, vi. 716. 
 warranty on, vi. 725. 
 
 to sail with convoy, vi. 725. 
 return of premium, vi. 736. 
 upon lives, vi. 743. 
 against fire, vi. 746. 
 mortgagee cannot charge for, vii. 180. 
 Insurrection, when treason, ix. 396. See Levying War ; Treason. 
 Intent, words which import only an, when actionable, ix. 79. 
 Intention of publication of words required in slander, ix. 64. 
 
 when evidence of malice, ix. 72. 
 Interdict de homine libero exhibendo, similar to the writ of habeas corpus, iv. 563. 
 Interest, rights, an authority coupled with an, when not revocable, i. 529. 
 in the matter in issue disqualifies a witness, iii. 488. 
 
 question does not, iii. 490, 495. 
 a devise of, passes a fee, vi. 27. 
 which may be insured, vi. 644. 
 consignee with power has an insurable, vi. 645. 
 of money, who is bound to pay, 
 
 bankrupt estate, when, i. 696. 
 executor, when, iv. 103. 
 who is entitled to, 
 
 legatee, when, vi. 315. 
 infant, by way of maintenance, vi. 316. 
 on what claims, 
 
 specific bequest, when. vi. 296. 
 mortgage, vi. 45, 179.
 
 6C4 GENERAL INDEX. 
 
 Interest, of money, commencement of, 
 
 on legacy, vi. 320, 328. 
 specific legacy, vi. 32G. 
 general legacy, vi. 32G, 327. 
 upon a legacy when to be refunded, vi. 302. 
 can be apportioned, when, vi. 312. 
 rate of, on legacies, vi. 321. 
 when interest shall bear, vii. 172. 
 
 may be recovered beyond the penalty of a bond, vii. 239, 240. 
 Interlineation in writing, effect of, iii. 601. 
 Interlocutory proceedings, costs on, ii. 534. 
 Interpreter cannot be a witness, when, iii. 482. 
 Interrogatories, examination upon, iii. 518. 
 Interruption, what, iii. 138. 
 Intestate, who is, x. 480. 
 
 Intoxication, justice punished for acting while in a state of, v. 429. 
 Invention, who is entitled to, viii. 131. 
 Inventory, when to be furnished, iv. 55. 
 what must bo put in, iv. 57. 
 Iowa, courts in, ii. 821. 
 Irregularity in proceedings no defence for an escape, iii. 392. 
 
 giving bail, may be amended, when, i. 5G5. 
 Issue, pleading, what, vii. 531. 
 
 elements of, vii. 532. 
 
 how to be formed, vii. 532. 
 
 immaterial, when aided, vii. 357 ; i. 249. 
 
 not, vii. 357; i. 249. 
 pleas amounting to general, vii. 541. 
 in law and in fact, how tried, vii. 6G2. 
 when there are several, how tried, ix. 580. 
 in ejectment, form of, iii. 291. 
 descents, meaning of, in wills, vi. 147, 149, 179. 
 male, vi. 148. 
 in tail, how barred, iv. 2G1. 
 required to create an estate by curtesy, iii. 1G. 
 Itch, it is slander to charge one with having the, ix. 29. 
 Iter, what, iv. GG5. 
 
 J. 
 
 Jail, what, iv. 463, 4G9. See Prison. 
 
 for the use of the United States, iv. 4G4. 
 by whom to be repaired, iv. 464. 
 where to be kept, iv. 469. 
 duty of keeper of, iv. 470. 
 breaking, what, iv. 487. 
 jurisdiction of sheriff over, viii. 680. 
 liability of sheriff, though there is no, viii. 681. 
 what place may be a, viii. 681. 
 insufficiency no excuse to sheriff, viii. 682. 
 Jailor, duty of, iv. 470. 
 
 liability of, iv. 470. 
 
 responsible for acts of his deputy, iv. 470. 
 sheriff is ex officio, iv. 470. 
 de facto, when liable, iv. 471. 
 liable to attachment, when, iv. 471. 
 salary of, iv. 471. 
 office of, when forfeited, iv. 474. 
 may be attached, when, i. 463. 
 Jeofails, statutes of, i. 223. 
 Jettison, when justified, ii. 154. 
 Jetsam, what, viii. 35. 
 
 whim justified, ii. 154. 
 
 admiralty jurisdiction over, ii. 73G.
 
 GENERAL INDEX. GG5 
 
 Jewels, what passes by a bequest of, vi. 196. 
 Jews, validity of marriages of, vi. 469.^ 
 
 Joinder of parties, when proper, vii. 407. See Parlies to Actions. 
 counts, when proper, vii. 472. See Declaration. 
 actions, when right and when not, iv. 127, 133. 
 several things in same action, when proper, i. G9. 
 Joint and several obligations, what, vii. 249. 
 
 effect of, vii. 250 to 25G ; vi. 835. 
 declaration on, vii. 253. 
 judgment on, vii. 254. 
 effect of tearing off a seal of a, vii. 256. 
 defendants may sever in their defence, when, i. 461. 
 offence may be laid in same indictment, when, v. 83. 
 defendants in an indictment, how tried, v. 84. 
 traders, who are, vi. 573. See Partners. 
 obligees, who are, vii. 248. 
 obligors, who are, and how liable, vii. 249. 
 effect of appointing one as executor by the other, vii. 254. 
 owners, must join in replevin, viii. 552. 
 promissors, effect of a release to one of several, vi. 815. 
 Joint-tenancy, limited in the U. S., v. 240. 
 
 what things may be held in, v. 245. 
 how created, v. 246, 251. 
 
 difference between tenancy in common and, v. 250. 
 duration of, v. 266. 
 severance of, v. 279. 
 effect of survivorship in, v. 279. 
 severed by partition, v. 283. 
 
 devise of one joint-tenant's share does not sever the, v. 285. 
 when one joint-tenant's share must be disposed of to destroy the, v. 285. 
 mortgage by two of three joint-tenants, destroys the, v. 288. 
 dower in, iii. 202. 
 Joint-tenants, who are, v. 239. 
 
 may be, v. 241. 
 bodies politic cannot be, v. 241. 
 disseisors may be, v. 242. 
 husband and wife cannot be, v. 242. 
 
 may be, v. 242, 244. 
 in what acts must join, v. 267. 
 joint and distinct interests of, v. 267. 
 effect of deed of one, v. 268. 
 may join or sever in making leases, v. 274. 
 one cannot alone erect buildings, v. 275. 
 must unite to enforce specific performance, v. 275. 
 acts of one of several, when advantageous to both, v. 275. 
 
 binding on both, v. 277. 
 how far charges by one shall affect the other, v. 288. 
 must be joined as plaintiffs or defendants, v. 299. 
 remedies of, against each other, v. 304. 
 may distrain, when, iii. 165. 
 
 one may be guilty of forcible entry and detainer, iv. 328 
 cannot devise his interest, vi. 9.. 
 Jointure, what, iii. 190 ; v. 131. 
 origin of, iii. 227. 
 
 when estate must take effect, iii. 228. 
 term of, iii. 229. 
 must be to wife herself, iii. 229. 
 
 in satisfaction of dower, iii. 230. 
 made during coverture, iii. 232. 
 how defeated, iii. 234. 
 on an infant, when a bar to dower, v. 130. 
 Journals of Congress, how proved, iii. 554. 
 Journeys accompt, i. 40. 
 
 Judges, whence they derive jurisdiction, ii. 619. 
 their duty, 'ii. 620. 
 
 Vol. X.— 84 3 k 2
 
 666 GENERAL INDEX. 
 
 Judges, how protected, ii. G20. 
 censured, ii. G21. 
 not to sit in their own cause, ii. 621. 
 when they may be challenged, ii. 621. 
 
 may sit where they have been counsel for one of the parties, ii. C21. 
 dejure, how far their acts are valid, ii. 621. 
 cannot be required to give an opinion, when, ii. 621. 
 tenure of their office, ii. 622. 
 
 of inferior, when they may decide in superior jurisdictions, ii. 623. 
 not elegible to parliament, ii. 661, 662. 
 equality among, ii. 715. 
 
 certificate of, when requisite to entitle a party to costs, ii. 487. 
 when suit cannot be sustained against, iii. 60. 
 can be a witness, when, iii. 479. 
 no one can be, in his own case, v. 416 ; ix. 218. 
 to decide according to his own judgment, vi. 437. 
 cannot act as a deputy, vii. 317. 
 
 be challenged for corruption, vii. 323. 
 liability of, vii. 325. 
 what is slander against a, ix. 46. 
 Judgment, kinds of. 
 
 quod computet, i. 53. 
 quod partitio fiat, v. 292. 
 
 facta firma, &c, v. 292. 
 on demurrer, what, vii. 665. See Demurrer. 
 when quod recuperet, vii. 666. 
 
 quod respondeat ouster, vii. 666. 
 severance, when to be, ix. 267. 
 
 in what actions, ix. 270. 
 effect of, ix. 272. 
 consequences of, ix. 273. 
 on qui tarn actions, i. 97. 
 
 a plea in abatement, i. 38. 
 in bastardy cases, ii. 106. 
 detinue, iii. 137. 
 ejectment, iii. 292. 
 error, iii. 383. 
 
 affirmed in part, and reversed in part, iii. 383. 
 when not divisible, iii. 383. 
 on reversal of the first, iii. 386. 
 replevin, viii. 575. 
 
 when to be j)ro retomo kabendo, viii. 579. 
 treason, ix. 433. 
 trover, ix. 681. 
 waste, form of, x. 461. 
 quando acciderunt cannot be given against heirs, iv. 627. 
 on scire facias, viii. 625, 627. 
 effect of, 
 
 final, in actions of accompt, i. 54. 
 
 when confessed by the husband against himsolf and wife, ii. 51. 
 
 against several joint contractors, iv. 151. 
 in outlawry, iv. 335. 
 when against one of several debtors, viii. 276, 278. 
 
 it may be amended, i. 251. 
 on which error lies, iii. 325. 
 
 execution may issue, iii. 669. 
 when to be paid by executor, iv. 106. 
 presumption of payment of, vi. 370. 
 '■roditor may redeem against a mortgagee, vii. 82, 83. 
 when it may be set off, viii. 648. 
 costs in actions upon, ii. 533. 
 Judicial acts, when binding; on infants, v. 123. 
 how to be performed, v. 410. 
 proceeding, to constitute perjury, oath must at common law be under some, 
 
 vii. 425. 
 writs, what, ii. 684.
 
 GENERAL INDEX. 66" 
 
 Judiciary of the United States, power of, viii. 5C. 
 Junior, no part of a man's name, vii. 8. 
 
 effect of leaving out of a name, iii. 330. 
 Jurisdiction of courts, how derived, ii. 017, 018. 
 
 not from consent of parties, ii. 018. 
 how determined, ii. 022. 
 when not taken away, ii. 025. 
 never waived, ii. 030, 
 chancery, limited, ii. 083. 
 modern, ii. 087. 
 King's Bench, ii. 089. 
 Common Pleas, ii. 097. 
 Exchequer, ii. 099. 
 constable's court, ii. 707. 
 justices of assize, ii. 711. 
 ecclesiastical courts, ii. 724, 727, 732 ; ix. 20. 
 admiralty, ii. 735. 
 
 over what place, ii. 735. 
 tilings, ii. 730. 
 sheriff's torn, ii. 770. 
 coroner, over what places, ii. 420. 
 
 judicial and ministerial, ii. 428. 
 over what offences, ii. 429. 
 costs in case when dismissed for want of, ii. 525, 529. 
 pleas to the, vii. 520. 
 
 manner and time of pleading to the, vii. 529. 
 liability for excess of, ix. 404, 400. 
 of justice of the peace, v. 404. 
 Jurors, qualifications of, v. 311, 320, 340, 342. 
 lined for non-attendance, v. 310. 
 how summoned, v. 323. 
 number to be returned, v. 330. 
 panel of, to be returned, v. 334. 
 who are to be returned as, v. 342, 351. 
 may be challenged, when, v. 312, 343. See Challenge. 
 how to be empannelled and sworn, v. 307. 
 how to be kept and discharged, v. 309. 
 when and how to be paid, v. 382. 
 
 punishable by attaint, v. 383. 
 not allowed to impeach their verdict, v. 393. 
 cannot be witnesses, when, iii. 479. 
 who privileged from serving as, viii. 159, 100. 
 
 when a defect in the, will authorize the granting a new trial, ix. 597. 
 effect of misbehaviour of, x. 317. 
 Jury, what, v. 308. 
 
 origin of trial by, v. 309. 
 
 several kinds of, v. 310. 
 
 grand, v. 310. 
 
 petit, v. 310. 
 
 list, how to be made, v. 320, 321. 
 
 process, v. 314, 315. 
 
 several kinds of, v. 310. 
 by whom to be executed, v. 318. 
 when returnable, v. 327. 
 amendable, i. 243. 
 must appear, when, v. 328. 
 special, how appointed, v. 337. 
 how to be polled, v. 371. 
 trial by, ix. 504. 
 
 effect of drawing lot to make a verdict, ix. 588, 013. 
 mistake of, a ground for a new trial, ix. 590. 
 effect of separation of, ix. 014 ; x. 317. 
 misbehaviour of, x. 317, 318. 
 power of, over verdict, x. 315. 
 Juts accrescendi, what, v. 279.
 
 M8 GENERAL INDEX. 
 
 Jus accrescendi, does not take place, when, vi, 579. 
 privatum, what, viii. 27. 
 regium, what, viii. 27. 
 publicum, what, viii. 27. 
 Justice seat, what, ii. 763. 
 Justices of the peace, who are, v. 393. 
 
 how appointed, v. 393, 398. 
 their duties, v, 393. 
 are conservators of the peace, v. 394. 
 first institution of, v. 395. 
 powers of, v. 395, 396. 
 commission of, v. 398. 
 qualification of, v. 401, 406. 
 authority of, v. 404 ; ii. 715. 
 
 in relation to treason, v. 404. 
 felonies, v. 405. 
 inferior offences, v. 406. 
 jurisdiction of, how exercised, v. 409. 
 cannot be agent for a party, v. 410. 
 
 execute his office in his own case, v. 416. 
 may supersede his own orders, v. 417. 
 jurisdiction of, in pauper cases, v. 417. 
 protection of, from suits, v. 425. 
 liability of, v. 426. 
 notice of suit to be given to, v. 427. 
 bound to assist in suppressing a riot, v. 430. 
 punished for fraud, when, v. 429, 430. 
 neglect, when, v. 430. 
 being intoxicated, when, v. 429. 
 information against, refused, v. 431. 
 form of notice of action against, v. 432. 
 effect of tendering amends by a, ix. 357. 
 liable to damages, when he exceeds his jurisdiction, ix. 464. 
 effect of a parol warrant of, ix. 470. 
 may bail in criminal cases, i. 584. 
 cannot bail in capital cases, i, 585. 
 Justices of jail-delivery may bail, i. 587. 
 
 assize and nisi prim established, ii. 713. 
 Justiciar, who was, ii. 617. 
 •Justifiable homicide, what, vii. 184, 207. 
 
 execution, vii. 207. 
 in making a lawful arrest, vii. 209. 
 
 by judgment of a court of competent jurisdiction, vii. 209. 
 occasioned in trial by battle, vii. 208. 
 by self-defence, vii. 210. 
 waste, what, x. 435. 
 Justiiicntion, plea of, vii. 040; vi. 352. 
 
 requisites of, ix. 99. 
 
 of a battery, what, i 
 
 6io. 
 
 bail, how made, i. 559. 
 
 before whom, i. 563. 
 a libel, requisites of, vi. 350. 
 trespass, plea of, ix. 527. 
 words, plea of, ix. 97. 
 
 K. 
 
 Key, effect of acceptance of the, by the landlord, v. 659. 
 Kindred may lrfaintain each other, how far, vi. 413. 
 King, prerogative and rights of, viii. 6. 
 
 not on-' of tin; three estates of the realm, viii. 7. 
 
 commencement of the reign of the, viii. 10. 
 
 never dies, viii. 10. 
 
 who is heir to the, viii. 10. 
 
 de facto, who, viii. 11.
 
 GENERAL INDEX. 669 
 
 King, dejurc, who, viii. 11. 
 oath of, viii. 11. 
 
 is the universal occupant, viii. 13. 
 derelict lands belong to the, viii. 13. 
 right to escheats, viii. 15. 
 
 prerogative of, in seas and navigable rivers, viii. 18. 
 swans and royal fish, viii. 24. 
 ports and havens, viii. 25. 
 beacons and lighthouses, viii. 33. 
 wrecks, viii. 34. 
 coins, viii. 37. 
 mines, viii. 37. 
 lunatics, v. 11. 
 derelict goods, viii. 41. 
 fines and forfeitures, viii. 44. 
 over the persons of his subjects, viii. 45. 
 as the fountain of justice, viii. 55. 
 in ecclesiastical matters, viii. 56. 
 creating offices, viii. 56. 
 making war and peace, viii. 56. 
 as parens patriae, viii. 65. 
 in granting dispensations, viii. 66. 
 pardons, viii. 66. 
 issuing proclamations, viii. 79. 
 of what incapable, viii. 81. 
 can do no wrong, viii. 81. ^ 
 cannot arrest in person, viii. 82. 
 be seised to a use, viii. 82. 
 tenant, viii. 82, 
 may be executor, viii. 83. 
 has two capacities, viii. 83. 
 is a sole corporation, viii. 83. 
 may reserve rent, viii. 84. 
 
 pass a chose in action under the signal manual, viii. 85. 
 re-entry by, how made, viii. 89. ^ 
 rights preferred to a subject's, viii. 91. 
 acts of parliament which extend to the, viii. 92. 
 not bound by act of limitations, viii. 94. 
 laches cannot be imparted to the, viii. 95. 
 suits by, prerogative in, viii. 98._ 
 authorized to grant pensions, viii. 121. 
 
 sell or devise, viii. 127. 
 duties levied by, viii. 129. 
 what property may be granted by the, viii. 130. 
 may be executor, iv. 7. 
 's silver, what, iv. 248. 
 
 jurisdiction in granting letters of administration, iv. 45. 
 precedency to executors, iii. 730. 
 cannot be a joint-tenant, v. 241. 
 challenges b'v, when allowed, v. 364. 
 
 may take advantage of forfeitures in cases of simony, when, ix. 25. 
 's demise may be pleaded in abatement, i. 11. 
 Bench, jurisdiction of, vi. 438. 
 
 may take bail, when, i. 588. 
 Knight's service, tenures by, abolished, viii. 450. 
 
 Labourer is a good addition, vii. 11. 
 
 Lace, duties on, ix. 134. 
 
 Laches of infants not prejudicial to them, v. 110. 
 
 cannot be imputed to the kinsr, viii. 95. 
 Lancaster, county palatinate of, ii. 760. 
 Land, when to be considered as money, i. 168 ; iv. 610. 
 remedies for injuries to, ix. 480.
 
 670 GENERAL INDEX. 
 
 Land cheap, what, iii. 30. 
 
 what is waste to, x. 423. 
 Landing of goods, what is a sufficient, vi. 647. 
 
 when a grant will be presumed from the use of a, vii. 454. 
 Lands and tenements, what passes by grant of, iv. 530. 
 Landlord, when entitled to claim rent from sheriff, viii. 510, 511. 
 Language, formerly pleadings were in the Latin, vii. 458. 
 now in English, vii. 458. 
 slander may be in a foreign, is. 62 
 in what, a will may be written, x. 489. 
 Languidus, return of, viii. 714. 
 
 Lapse of time, effect of twenty years' possession, vii. 148. 
 
 ten years' possession, vii. 148. 
 on debt, vii. 275. 
 when no, will affect a mortgage, vii. 148. 
 Lapsed legacy, what, vi. 236. See Legacy. 
 
 when legatee dies in lifetime of testator, vi. 236. 
 when payable at a future time to which legatee did not arrive, vi. 244. 
 Larceny, nature of things taken, iv. 174. 
 
 taking away charters not, iv. 175. 
 
 animals ferce naturce, when, iv. 176. 
 ore, when, iv. 176. 
 trees, &c, when, iv. 176. 
 wool from sheep, iv. 177. 
 dog, not, iv. 178. 
 bees, when, iv. 178. 
 slave, when, iv. 178. 
 young of animals, when, iv. 178, 179. 
 property in foreign country, iv. 179. 
 another country, iv. 179. 
 bailee, when guilty of, iv. 180, 181, 182. 
 of goods of unknown owner, iv. 181. 
 what carrying away constitutes, iv. 187. 
 by whom it may be committed, iv. 188. 
 difference between grand and petit, iv. 190. 
 punishment of, iv. 193. 
 appeal of, what, i. 291. 
 Law of nations, how it may be varied, ii. 749. 
 errors in, what, iii. 370. 
 books, license for printing, viii. 141. 
 
 may be the subject of a copyright, viii. 149. 
 of this country, when binding upon aliens, i. 208. 
 foreign, when considered as facts, i. 411. 
 of sister state, how proved, iii. 533. 
 foreign countries, how proved, iii. 534. 
 Oleron, what, ii. 744. 
 Rhodes, what, ii. 744. 
 League, what, viii. 63. 
 
 kinds of, viii. 62. 
 
 difference between a truce and a, viii. 63. 
 Lease, what, v. 433. 
 
 what is an assignment of a, v. 433. 
 under, what, v. 433. 
 
 for years, of what it may be made, v. 437. 
 of corody, v. 437- 
 house-bote, v. 437. 
 offices, v. 439. 
 who may make a, v. 441. 
 infant may make a, when, v. 441, 442. 
 confirmation of, by infant, v. 442, 443. 
 of king within age, when good, v. 443. 
 by husband and wife, v. 443. 
 
 at common law, v. 443. '••'.* 
 
 pursuant to statute, v. 448. 
 by tenant in tail v. 448.
 
 GENERAL INDEX. 671 
 
 Lease, by tenant in tail, at common law, v. 448. 
 
 since statute of 32 H. 8, v. 459. 
 when binding on issue in tail, v. 402. 
 stranger, v. 402. 
 ecclesiastical persons, v. 409. 
 
 how restrained, v. 4G0. 
 rules respecting, v. 481. 
 must be by deed, when, v. 481. 
 
 begin, when, v. 485. 
 date of, v. 485, 013. 
 effect of delivery of, v. 480, 488. 
 when to be surrendered, v. 492. 
 concurrent, what, v. 492. 
 not to exceed three lives, v. 500. 
 when it binds survivors, v. 501. 
 construction of, under the stat. 32 II. 8, v. 505. 
 what rent to be reserved in, v. 509. 
 how avoided, v. 514. 
 
 ecclesiastical, to be made, v. 519. 
 by parsons, &c, v. 520. 
 confirmation of, v. 530. 
 
 who may confirm, v. 532. See Confirmation. 
 void or voidable, v. 549. See Void. 
 
 how made good, v. 555. 
 avoided, v. 555. 
 those who have but a particular estate, v. 550. 
 tenant by curtesy, v. 550. 
 
 for life, v. 557. 
 lessee fur years, v. 558. 
 derivative, what. v. 558. 
 by disseisor or disseisee, v. 559. 
 joint-tenants, v. 501. 
 tenants in common, v. 501. 
 copyholder, v. 503. 
 executors and administrators, v. 567. 
 bailiff of a manor, v. 568. 
 guardians, v. 569. 
 attorney, v. 571. 
 
 authority of a board of trustees, v. 574. 
 governor of a state, v. 575. 
 made pursuant to powers, v. 575. 
 by what words made, v. 601. 
 
 difference between agreement for a lease and a, v. 601, 608. 
 how construed, v. 601. 
 from year to year, what, v. 612, 613. 
 beginning of, v. 613, 614, 619 ; iii. 23. 
 continuance of, v. 621. 
 at will, v. 622, 623. 
 by estoppel, v. 636. 
 for years, of future interests, v. 642. 
 
 to attend inheritance, how barred, v. 644. 
 when merged by union of freehold, v. 648. 
 surrender of, v. 657. See Surrender. 
 determined by cancelling the deed, v. 666. 
 when forfeited, v. 668. 
 renewal of, v. 676, 706, 707. 
 effect of covenant for renewal of, v. 684, 707. 
 by ecclesiastical society, when determined, v. 707. 
 effect of parol, v. 708. 
 contract for renewal of, ii. 580, 581. 
 covenant to assign, when broken, ii. 596. 
 when to commence and end, iii. 23. 
 concerning tithes, x. 72. 
 Leasehold estate, when it passes to assignees of bankrupt, i. 728. 
 Leather, duties on, ix. 117.
 
 672 GENERAL INDEX. 
 
 Lodger-book, when evidence, iii. 571. 
 Leet, court, ii. 774. 
 
 Legacy, subject relating to, how divided, vi. ICO. 
 defined, vi. 161. 
 by what words given, vi. 164 
 what is a sufficient description of the person to take, vi. 170. 
 
 thing given, vi. 190. 
 to children begotten or to be begotten, vi. 182. 
 
 child in ventre sa mere, vi. 182. 
 
 children living when fund is distributable, vi. 182. 
 
 younger children, vi. 183. 
 
 heirs, vi. 184. 
 
 servants, vi. 186. 
 
 relations, vi. 187. 
 
 poor relations, vi. 187. 
 
 next of kin, vi. 188. 
 
 cousins, vi. 188. 
 
 government, vi. 189. 
 
 a slave, vi. 189. 
 
 Roman Catholic priest, vi. 190. 
 
 wife, vi. 190. 
 for life, with remainder over, what, vi. 198. 
 adeemed, what, vi. 198. 
 duplicate, what, vi. 205. 
 substituted, what, vi. 200. 
 additional, what, vi. 206. 
 when a satisfaction, vi. 210. 
 of policy of insurance, when adeemed, vi. 207. 
 when lapsed, vi. 236. 
 when limited over, vi. 236. 
 is a debt in prcescnti payable in futuro, vi. 244. 
 when a gift though time of payment is postponed, vi. 263. 
 good when gift and time of payment are united, vi. 264. 
 bow construed, when limited over, vi. 266. 
 when subject to a power of appointment, vi. 268. 
 when given to survivors, vi. 268. 
 when payable out of land, vi. 269. 
 effect of conditional legacies, vi. 270. 
 specific, what, vi. 290. 
 pecuniary, what, vi. 290. 
 
 difference between specific and pecuniary, vi. 292. 
 money, when not specific, vi. 294. 
 of all money in a drawer, is specific, vi. 297. 
 charged on a particular fund, effect of, vi. 297. 
 accumulative, what, vi. 298. 
 substitutional, what, vi. 298. 
 of abating of, vi. 298. 
 refunding of, vi. 298. 
 of piety not to abate, vi. 299. 
 for pains and trouble abates, vi. 299. 
 to wife, in lieu of dower, does not abate, vi. 300. 
 must be refunded, when, vi. 300. 
 payment of, vi. 305. 
 presumptive payment of, vi. 306. 
 retainer of, vi. 306. 
 interest on, when payable, vi. 315. 
 executor's assent required, vi. 331. See Assent. 
 in what court recoverable, vi. 334. 
 when assumpsit lies for a, vi. 335. 
 act of limitations run against, when, vi. 380. 
 when assumpsit lies on a pecuniary, i. 425. 
 to -wife, to whom to be paid, ii. 70. 
 
 the poor, how distributed, ii. 198. 
 when to be paid, iv. 112. 
 Legal personal representatives, a bequest to, vi. 188.
 
 GENERAL INDEX. 673 
 
 Le^al effect, instruments and records must be statod in a declaration according to their, 
 
 vii. 496. 
 Legatee, -when sufficiently described, vi. 170. 
 effect of death of, vi. 236. 
 cannot charge his legacy, when, vi. 289. 
 of personal property for life, when to give security, viii. 302. 
 Legatory, what, iii. 47. 
 Legislative grant, effect of. viii. 131. 
 Legitimacy, what, ii. 78. 
 
 presumption of, ii. 82. 
 Legitimate, gift to children are presumed to be to those who are, vi. 156. 
 Lender, rights of, i. 624. 
 Lessee, rights of, v. 437, 708. 
 
 when not bound to pay rent, v. 708. 
 bound to allow repair, v. 708. 
 Letter-carrier, when liable, ii. 152. 
 
 how appointed and his duties, ii. 161. 
 of attorney, how executed, iv. 221. 
 
 joint and several, how executed, iv. 223. 
 effect of sending libellous, to the person libelled, vi. 358. 
 Letters of administration, how proved, iii. 571. 
 
 testamentary or of administration, effect of, iv. 71. 
 effect of, generally, iv. 71. 
 out of the jurisdiction, when granted, iv. 71. 
 injunction lies to restrain the publication of private, v. 199. 
 of marque, king may grant, viii. 63. 
 patent, scire facias to repeal, viii. 608. 
 Letting to farm, what, v. 505. 
 Levant et couchant, when to be proved, viii. 563. 
 Levari facias is a judicial writ, iii. 698. 
 
 how to be executed, viii. 702. 
 Levitical degrees, what, vi. 457, 458, 459. 
 Levy, what is a, iii. 734. 
 
 when to be made, iii. 734. 
 
 on chattels held in common on a judgment against one of the tenants in com- 
 mon, how made, v. 304. 
 Levying war, when treason, ix. 380, 394. 
 what, ix. 394. 
 
 when excusable, ix. 395, 400. 
 Lex loci, of what force against aliens, i. 208. 
 
 rules in the construction of contracts by the, i. 547. 
 when to govern, vi. 406 ; x. 534. 
 Liability of husband for wife's debts, ii. 33. 
 
 civiliUr for wife, ii. 37, 38. 
 for necessaries furnished to wife, ii. 38. 
 members of corporations, ii. 458. 
 administrator de bonis non, iv. 24. 
 drawer, vi. 785. 
 acceptor, vi. 785. 
 endorser, vi. 785. 
 joint-drawers, vi. 785. 
 officer, vii. 325. 
 trustees, what, x. 247, 253. 
 
 for neglect in calling in debt, when, x. 250. 
 interest, when, x. 250. 
 using trust-money, x. 251. 
 misapplying funds, x. 251. 
 each other, x. 255. 
 Libel, what, vi. 337. 
 
 what shall be said a, vi. 338. 
 
 must be in writing, vi. 338. 
 
 degree of defamation to make a, vi. 338. 
 
 must be malicious, vi. 341, 342, 357. _ 
 
 to charge one with smuggling is a, vi. 343. 
 
 when against a class, vi. 343. 
 
 Vol. X.— 85 3L
 
 674 GENERAL INDEX. 
 
 Libel, affecting a person's trade, vi. 343, 347. 
 
 a privileged communication is not a, vi. 343, 344. 
 publication of privileged speech is a, vi. 344, 345. 
 petition to general assembly, when not a, vi. 345. 
 allegory, when a, vi. 345. 
 irony, when a, vi. 345. 
 mere obscene ribaldry a, vi. 346. 
 reflections on Christianity a, vi. 346. 
 whether proceedings in courts of justice are a, vi. 348. 
 pleading the truth of a, when allowed, vi. 349. 
 when words of are presumed to be malicious, vi. 350. 
 may be justified, when, vi. 351. 
 requisites of a plea of justification of a, vi. 352. 
 punishment of maker of a, vi. 359. 
 pleading and evidence in cases of, vi. 359. 
 Libeller, who is a, vi. 353. 
 
 author is a, vi. 353. 
 composer is a, vi. 353, 
 publisher is a, vi. 354. 
 proprietor of printing office is a, vi. 355. 
 how punished, vi. 359. 
 Liber homo, juror must be, v. 347. 
 
 meaning of, v. 348. 
 Liberum tenemcntum, effect of plea of, ix. 509, 540. 
 
 replication to a plea of, ix. 535. 
 Liberties, bailiffs of, i. 602. 
 Library, what, vii. 592. 
 License to marry, when granted, vi. 465. 
 
 void, vi. 466. 
 trade, effect of, viii. 33. 
 Lien of attorney on his client's papers, i. 503. 
 lunatic's estate, i. 504. 
 a decree, i. 504. 
 creditor on bankrupt's property, i. 730, 803. 
 innkeeper, what, ix. 662. 
 Life-estate, what, iii. 452. See Estate for Life. 
 how created, vi. 30, 33. 
 tenant, when to give security, vi. 198. 
 Ligam, what, viii. 35. 
 Lighthouses, king's prerogatives in, viii. 33. 
 
 where to be erected, viii. 34. % 
 
 Lightermen are common carriers, ii. 151. 
 Limitation, how it differs from a condition, ii. 287. 
 what are words of, ii. 288. 
 over, when too remote, vi. 198. 
 
 effect of, viii. 381. 
 of chattel interest, effect of, vi. 267. ' 
 
 difference between a condition and a, viii. 381. 
 of actions, what, vi. 362. 
 
 • government not affected by, vi. 362. 
 at common law before stat. 32 II. 8, c. 2, vi. 363. 
 pursuant to stat. 32 H. 8, c. 2, and 21 Jac. 1. c. 16, vi. 364. 
 in possessory actions, vi. 364. 
 real actions, vi. 364. 
 furmedons, vi. 364. 
 running of, vi. 368. 
 possession, effect of, vi. 368. 
 
 penal statutes vi. 371. 
 in actions of assault and battery, vi. 374. 
 slander, vi. 374. 
 contract, vi. 374. 
 trespass, vi. 374. 
 detinue, vi. 374. 
 trover, vi. 374. 
 account, vi. 374.
 
 GENERAL INDEX. 675 
 
 Limitation of action, in case, vi. 374. 
 
 specialty out of the statute, vi. 376. 
 judgments out of the statute, vi. 376. 
 trusts out of the statute, vi. 378. 
 runs against a legacy, when, vi. 380. 
 begins to run, when, vi. 381. 
 in what court it runs, vi. 385. 
 when a bar in equity, vi. 387. 
 
 the admiralty, vi. 387. 
 exceptions in the statute, vi. 388. 
 as to infants, vi. 388. 
 
 persons beyond sea, vi. 391. 
 want of parties, vi. 393. 
 
 court, vi. 395. 
 commencement of action, vi. 397. 
 when debt is revived, vi. 399. 
 pleading the statute of, vi. 404. 
 
 plea of the act of, in equity need not be accompanied by an answer, vi. 405. 
 one of several executors may plead the act of, vi. 405. 
 the act of, does not run when one of the parties is an infant, vi. 406. 
 who may plead the act of, vi. 406. 
 
 the act of, of the country where suit is brought governs, vi. 406. 
 plaintiff may avail himself of the act of, against a set-off, without plead- 
 ing it, vi. 405, 406. 
 in cases of usury, x. 306. 
 express trusts are not within the act of, x. 192. 
 debt barred by the act of, cannot be proved in bankruptcy, i. 716. 
 state not bound by the act of, viii. 90, 94. 
 when executor must plead the act of, iv. 102. 
 Lineal descent, what, iii. 105. 
 
 warranty, what is a bar to, x. 402. 
 Linen considered furniture, when, vi. 193, 1*95. 
 Lis pendens, effect of, vii. 113. 
 what is, vii. 115. 
 Live property, remedy for injuries to, ix. 472. 
 Livery of seisin, what, iv. 200. 
 in deed, iv. 200. 
 law, iv. 201. 
 effect of, iv. 203 ; iii. 588. 
 what will pass by, iv. 210. 
 how to be made by attorney, iv. 221. 
 stable, not an inn, v. 228. 
 Lives, insurance upon, vi. 743. 
 Local actions, what are, i. 78. 
 Lodger, rights of, v. 708. 
 
 when guilty of larceny, iv. 184. 
 Log book, when evidence, iii. 576. 
 Long terms, what, v. 435. 
 Lord of the soil, interest in common, ii. 266. 
 remedies against, ii. 268. 
 a copyhold, powers of, ii. 404. 
 spiritual, who is, ii. 640. 
 temporal, who is, ii. 640. 
 
 of manor, jurisdiction of, in probate of wills, iv. 49. 
 'sday, what, i. 601 ; iv. 637. See Sunday. 
 Loss of instrument, how proved, iii. 595. 
 vessel, what, vi. 660. 
 
 when presumed, vi. 663. 
 Lost deed, how proved, iii. 586. 
 
 note, who entitled to, vi. 792. 
 Lot, effect of jury drawing, to make a verdict, ix. 588. 
 Lunacy of principal, a revocation of authority, v. 30. 
 partner, dissolves the partnership, vi. 589. 
 Lunatic, who is a, v. 6. 
 
 how found such, v. 7. 

 
 676 GENERAL INDEX, 
 
 Lunatic, when, is out of jurisdiction of the court, v. 8. 
 excused for crime, v. 10. 
 provision for, v. 12, 16. 
 wife of, may be endowed, v. 20. 
 may make a will, when, v. 21. 
 
 not, v. 29, 30. 
 stultify himself, v. 26. 
 acts in pais of, when not good, v. 25. 
 
 in a court of record, valid, v. 25. 
 contract of, when void, v. 29. 
 
 enforced in equity, v. 31. 
 estate of, how to be sold, v. 31. 
 stocks of, how managed, v. 32. 
 when a trustee, committee shall convey, v. 33, 34. 
 when absent abroad, effects of, v. 33. 
 admittance to copyhold landa, effect of, v. 37. 
 agreement of, when to be completed, v. 42. 
 can be a witness, when, iii. 474. 
 cannot be an executor, iv. 9. 
 acts of record of, when binding, iv. 255. 
 legacy to, to whom payable, vi. 331. 
 marriage of, when void, vi. 498. 
 when able to make a will, x. 482, 483. 
 Lying in grant, what things are, iii. 588. 
 
 M. 
 
 Mainprise, what, how it differs from bail, i. 530. 
 Machinery, when new, how bound by previous mortgage, vii. 163. 
 Madman, how punished for treason, ix. 382. 
 Mainsworn, meaning of, ix. 62. 
 
 Maintenance, support, interest on a legacy allowed by way of, vi. 316, 328. 
 
 when allowance for, may be increased, vi. 329. 
 wife not entitled to maintenance by way of allowance of in- 
 terest, vi. 329. 
 is made only for infants and not adults, vi. 329. 
 natural children are not entitled to allowance of interest by 
 
 way of, vi. 329. 
 father liable for children's, when, vi. 330 
 criminal, what, vi. 410. 
 
 kinds of, vi. 410. 
 
 nivalis, vi. 410. 
 cuvialis, vi. 410. 
 what acts are vi. 412. 
 
 1. when justifiable in respect of interest, vi. 412. 
 
 2. how far in respect of kindred, vi. 413. 
 
 3. by landlord, &c, vi. 413. 
 
 4. as respects charity, vi. 413. 
 
 5. by counsellor, vi. 413. 
 how punished, vi. 414. 
 
 restrained by statute, vi. 414. 
 by buying titles, vi. 415. 
 
 when a grant cannot be made, on account of, iv. 513. 
 Majority of commoners, rights of, ii. 275. 
 
 a corporation, powers of, ii. 447, 459, 460, 461, 465. 
 part owners of ships, rights of, vi. 591. 
 Mala pvaxis, punishment for, vii. 187, 204. 
 Malice, what, vi. 357. 
 
 required to make a libel, vi. 341, 343. 
 
 constitute slander, ix. 64, 72. 
 pvepense, what, vii. 183, 213. 
 Malicious prosecutions, action on the caselies for, i. 138. 
 Managers of a lottery, when liable on their contract, i. 158. 
 corporation, when liable, i. 158.
 
 GENERAL INDEX. 677 
 
 Mandamus, what, vi. 418, 419. 
 origin of, vi. 418. 
 nature of, vi. 419. 
 form of, vi. 420. 
 when granted, vi. 422. 
 
 to restore an officer, vi. 422. 
 
 commissioners of highways, vi. 428. 
 parish clerk to amend his record, vi. 428. 
 
 deliver records, vi. 428. 
 clerk of a county, vi. 428. 
 
 a court of Common Pleas to enter judgment, vi. 428. 
 
 seal a bill of exceptions, 
 vi. 429. 
 a bishop to admit a chaplain, vi. 431. 
 does not lie to restore a private officer who has nothing to do with the 
 public, vi. 427. 
 when the party has another remedy, vi. 429. 
 to compel a court to enter a verdict in a particular way, vi. 432. 
 correct an erroneous judgment, vi. 433. 
 Common Pleas to vacate a rule, vi. 433. 
 amend, vi. 433. 
 control chamber business of a judge, vi. 433. 
 a court acting under a special commission which has ex- 
 pired, vi. 433. 
 what removal will entitle an officer to a, vi. 433. 
 
 lies to inferior courts and magistrates to compel them to do justice, vi. 43- /( . 
 by what authority issued, vL 443. 
 to whom to be directed, vi. 444. 
 by whom to be returned, vi. 446. 
 obedience to, how enforced, vi. 446. 
 what is a good return to, vi. 447. 
 traversing the return to, vi. 450. 
 party's remedy for a false return to, vi. 451. 
 peremptory, when awarded, vi. 452. 
 
 jurisdiction of the Supreme Court in cases of, ii. 799, 802. 
 Circuit Courts, ii. 812. 
 Mankind, what, ix. 159. 
 Mansion-house, what, ii. 135, 136. 
 Manslaughter, what, vii. 183, 205. 
 
 no accessaries in, vii. 205. 
 benefit of clergy in cases of, when, vii. 205. 
 Manufactories, when nuisances, vii. 229. 
 Map, (old,) when evidence, iii. 578. 
 Marine interest, what, vi. 749. 
 Mariners, who aro, vi. COL See Wages. 
 
 mate considered as one of the, ii. 740 ; vi. 614, 616. 
 
 cook may sue as a mariner, ii. 740 ; vi. 614. 
 
 steward so considered, ii. 740. 
 
 purser is a, ii. 740. 
 
 duties of, vi. 606. 
 
 cannot abandon the vessel, when, vi. 606. 
 
 when they may sue in the admiralty, ii. 740. 
 
 liabilities of, vi. G01. 
 
 to correction, vi. 601. 
 
 forfeiture of wages, vi. 602. 
 not entitled to extra pay for extraordinary exertions, vi. 606. 
 discharge of, in foreign ports, vi. 606. 
 rights of, vi. 601. 
 
 to wages, vi. 601. 
 lien for their wages, vi. 602. 
 Marital rights of husband, ii. 30. m 
 
 when a secret conveyance is a fraud on, iv. 394. 
 Maritime/, incrementa, rights of king to, viii. 18, 22. 
 Mark, when a sufficient signature, x. 490. 
 Markets, how right to, must commence, iv. 154. 
 
 3l2
 
 678 GENERAL INDEX. 
 
 Markets, remedy for disturbance of, iv. 155. 
 when to be holden, iv. 156. 
 how long to continue, iv. 15G. 
 tolls due to owners of, iv. 158. 
 duty and power of owners of, iv. 157. 
 who exempt from tolls in, iv. 160. 
 property transferred when sold in, iv. 160. 
 how far it extends, iii. 23. 
 house, no dower in, iii. 196. 
 when a nuisance, vii. 227. 
 not, vii. 227. 
 Marriage, what, vi. 454. 
 
 who may contract, vi. 455. 
 of royal family, vi. 456. 
 bars to, vi. 457. 
 
 kindred, vi. 457. 
 espousals, vi. 460. 
 
 reputation, when evidence of, vi. 460, 462. 
 contract of in presenti, vi. 460. 
 
 in futuro, vi. 461. 
 promise of, effect of, vi. 461. 
 solemnization and ceremonies of, vi. 462. 
 of Jews, vi. 469. 
 Quakers, vi. 469. 
 Sabbatarians, vi. 462. 
 effect of Gretna Green, vi. 469. 
 Scotch, effect of, vi. 469,_ 470, 475. 
 of persons under age, vi. 471. 
 cohabitation, when evidence of, vi. 472. 
 foreign, vi. 472. See Foreign Marriages. 
 by forcible abduction, vi. 482. 
 clandestine, what, vi. 482. 
 improvident, what, vi. 482. 
 offences against, vi. 482. 
 contracts in fraud of, void, vi. 488. 
 continuance of, vi. 491. 
 elopement, effect of on, vi. 491. 
 abduction of wife, effect of on, vi. 493. 
 proof of, when requisite, vi. 494. 
 divorces, effect of, vi. 496. See Divorce. 
 when void for fraud, vi. 498. 
 with lunatic void, vi. 498. 
 effect of conditions in restraint of, vi. 271. 
 condition of, with consent, vi. 287. 
 lines, what, vi. 474. 
 brokage, what, vi. 482. 
 
 how far a revocation of the acts of the wife, ii. 30. 
 debts of the wife contracted before, how to be paid, ii. 33. 
 dejure, when required to make husband responsible for wife's debts, ii. 45. 
 nullity of, effect on children, ii. 83. 
 agreements upon, consideration of, i. 176. 
 settlement, when fraudulent, iv. 422. 
 what is evidence of, iv. 189. 
 of lunatics, when void, v. 30. 
 
 infant, when valid, v. 99. 
 requisite to entitle to dower, iii. 206. 
 how far a revocation of a will, x. 568. 
 Married woman, when she cannot be convicted of murder, vii. 184. 
 Marshals, attachment for contempt against, i. 468. 
 Marshalling assets, what, iv. 114. 
 Marshfllsea, court of the, ii. 753. 
 Mass forbidden, vii. 388. 
 Master, who, vi. 500. See Apprentices. 
 
 power of, over apprentice, vi. 510. 
 
 justices of the peace may compel to provide for apprentice, v. 510.
 
 GENERAL INDEX. 679 
 
 Master, disputes between apprentice and, vi. 510. 
 
 dissolution of contracts between, and apprentice, vi. 530. 
 when acts of servant are deemed acts of, vi. 533. 
 when entitled to servant's wages, vi. 534. 
 answerable for servant's acts, vi. 535. 
 liable for goods bought on credit, by servant, vi. 539, 540. 
 authority to punish servant, vi. 549. 
 remedy for injuries to his servant, vi. 550. 
 may justify defending his, vi. 551. 
 of a ship, rights of, vi. 592. 
 
 responsibilities of, vi. 593. 
 may hypothecate ship, vi. 625, 626. 
 when affected by the fraudulent act of his servant, iv. 383. 
 rights of, by the custom of London, iii. 49. 
 Mate is a mariner, ii. 740. 
 
 Material, to convict of perjury, the matter deposed must have been, vii. 426. 
 Matter of estoppel, of a verdict which is contrary to a, x. 352. 
 
 record, of a verdict which is contrary to a, x. 351. 
 Matters in dispute, meaning of, ii. 801, 807. 
 Mayhem, defined, vi. 407. 
 
 how punished, vi. 407, 
 remedy for, by action, vi. 408. 
 
 indictment, vi. 408. 
 appeal, vi. 408. 
 when damages in, shall be increased, vi. 408. 
 appeal of, i. 293. 
 Meadows, waste to, x. 423, 428. 
 
 Measure, when not required to be stated in declaration, vii. 513. 
 Medals, what passes by a bequest of, vi. 195. 
 Meetings of corporations, their powers, ii. 447. 
 Members of corporations, when personally liable, ii. 455. 
 
 qualifications of, ii. 455. 
 what constitutes, ii. 457. 
 amotion of, ii. 458, 465. 
 rights and liabilities of, ii. 458. 
 concurrence required, ii. 459. 
 quorum of, ii. 459. 
 proceedings of, ii. 461. 
 election of, ii. 465. 
 
 when restored by mandamus, vi. 434. 
 Congress, privilege of, viii. 183.^ See Privilege. 
 extent of privilege, viii. 191. 
 Memorandum in writing requisite under the statute of frauds, i. 187. 
 
 of notary, when evidence, iii. 576. 
 Memorial, when requisite, i. 279. 
 
 form of, i. 282. 
 Merchants' accounts, what are, vi. 389 
 
 what are not, vi. 390. 
 kinds of, vi. 553. 
 
 alien, who are, vi. 554. See Alien. 
 Merger, what, iv. 144. 
 
 of lease for years with the union of the freehold, v. 648. 
 Mesne lord, who is a, ix. 366. 
 
 process, consequences of an escape on, iii. 404. 
 profits, how recovered, iii. 300. 
 
 limitation to action for, iii. 302. 
 defence to an action for, iii. 303. 
 evidence in action for, iii. 304. 
 Method, patent cannot be granted for a, viii. 136. 
 Midwife, slander against a, ix. 52. 
 
 Military, punishment to which soldiers are liable, ix. 181. 
 Militia, who privileged from serving in the, viii. 163. 
 Mill, dower in a, how admeasured, iii. 197. 
 ejectment will lie for a, iii. 277. 
 effect of a grant of a, iv. 521.
 
 680 GENERAL INDEX. 
 
 Mill, fixtures in a, when bound by a mortgage, vii. 163. 
 Minister, (ecclesiastical,) who is a, vi. 463. 
 Ministerial, what is, v. 401, 410. 
 Miner, when considered a trader, i. 799. 
 Mines, when dower may be had in, iii. 198. 
 
 king's prerogatives in relation to, viii. 40. 
 what belong to the king, viii. 40. 
 
 subject, viii. 40. 
 what is waste to, x. 428. 
 Minor cannot sit as peer in parliament, ii. 651. 
 endorsement of, when fraudulent, iv. 387 
 when entitled to his earnings, v. 126, 169. See Infant, 
 Minority, what, v. 97. See Infant, Infancy. 
 
 father may relinquish son's minority, v. 105. 
 Misbehaviour of jurors, verdict set aside for, x. 316. 
 parties, verdict set aside for, x. 321. 
 Misdescription of property sold, effect of, v. 633. 
 Misericordia, when to be entered, iv. 229. 
 Misnomer what, vii. 4. See Names. 
 cases of, vii. 5, 6. 
 of corporation, effect of, vii. 16. 
 when to be taken advantage of, vii. 18. 
 manner of pleading a, vii. 19. 
 who may take advantage of, vii. 21. 
 when fatal on an indictment, v. 74. 
 in pleading, effect of, i. 9. 
 Misrecital, effect of, iv. 521. 
 
 in a declaration, vii. 492. 
 pleading, ix. 263. 
 of a statute in an affidavit to hold to bail, effect of, i. 541. 
 indictment, effect of, v. 88. 
 Misrepresentation as to credit, when fraudulent, iv. 386. 
 
 of the value of property by purchaser, when fraudulent, iv. 387. 
 as to soundness of a horse, when fraudulent, iv. 388. 
 when binding on party making it, iv. 400. 
 in cases of insurance, effect of, vi. 691. 
 Mistake of law by arbitrator will not vitiate his award, i. 363, 364. 
 in name, when to be taken advantage of, vii. 18. 
 of the judge, when a reason for granting a new trial, ix. 591. 
 Mitter le estate, releases that inure by way of, viii. 257. 
 droit, releases that inure by way of, viii. 260. 
 Mittimus, form and requisite of, ii. 253, 254. See Commitment. 
 Mixed statutes, what, ix. 212. 
 
 tithes, how to be set out, x. 44. See Tithes. 
 Modo et forma, effect of, x. 343. 
 Modus, what, x. 50. 
 
 certainty required in a, x. 53. 
 of a, which has not been constantly paid, x. 57. 
 of a leaping, x. 58. 
 of a rank, x. 58. 
 
 of a, which amounts to prescription, x. 56. 
 liable to fraud, x. 61. 
 
 for such persons as live out of the parish, x. 61. 
 extent of a, x. 62. 
 suit in equity to establish a, x. 90. 
 Mollithr manus impomit, plea of, its effect, i. 377. 
 Money, what, viii. 37. 
 
 origin of, viii. 38. 
 
 when considered as land, iv. 610 ; i. 168. 
 what will pass by a bequest of, vi. 193. 
 legacies, when chargeable on a fund, vi. 294. 
 
 specific, vi. 294. 
 when counterfeiting, is treason, ix. 402. 
 it is treason to bring into tin' realm counterfeit, ix. 407. 
 had and received, what action lies for, i. 402, 407.
 
 GENERAL INDEX. 681 
 
 Money had and received, declaration for, i. 447. 
 
 paid on an illegal contract, may be recovered back, i. 408. 
 
 when not, i. 408. 
 
 with a full knowledge of the facts, cannot be reco- 
 vered back, i. 411. 
 Monks may act as attorneys in fact, i. 520. 
 
 cannot be devisees of land, vi. 10. 
 Monopoly, what, vii. 22. 
 
 how restrained, vii. 24. 
 Monstrans defait, what, vii. 023. 
 
 de droit, what, viii. 107. 
 Month, what, viii. 215. 
 
 Moral obligation, what, sufficient to support assumpsit, i. 427. 
 Mortgage, origin of, vii. 27. 
 
 several kinds of, vii. 28. 
 
 pignus, vii. 28. 
 hi/potheca, vii. 28. 
 vivum vadium, vii. 29. 
 
 mortuum, vii. 29. 
 Welch mortgages, vii. 31. 
 freehold, vii. 29. 
 term of years, vii. 29. 
 powers of sale under a, vii. 31. 
 what shall be deemed a, vii. 36, 39, 50. 
 interest on, vii. 45. 
 what constitutes a, vii. 47, 50. 
 when void, vii. 47. 
 
 good, though given for future loans, vii. 48, 49. 
 legal performance of the condition of, vii. 60. 
 who may redeem, vii. 62. 
 out of what fund, is to be paid, vii. 64. 
 who entitled to receive money due on, vii. 84. 
 what is a payment of, vii. 84. 
 is personal property, vii. 86. 
 
 effect of renewing note for which a, has been given, vii. 88. 
 debt, when extinguished, vii. 88. 
 effect of cancelling a, vii. 92. 
 
 of personal property, proceedings after forfeiture of, i. 661. 
 when presumed to be paid, vi. 380. 
 
 act of limitations begins to run in case of a guaranty to pay a, vi. 383. 
 provision in a, that on payment of the money it shall be void, does not 
 raise an implied covenant, ii. 558. 
 Mortgaged premises, effect of release of a part, viii. 251. 
 Mortgagee, rights of, vii. 31. 
 
 has a mere lien, vii. 48. 
 
 interests of, vii. 50, 
 
 entitled to possession, vii. 51. 
 
 when he may present to benefices, vii. 54. 
 
 may pay off senior encumbrances, vii. 55. 
 
 may vote for members of parliament, when, vii. 57. 
 
 when liable on covenants, yii. 57. 
 
 cannot rent mortgaged premises from mortgagor, vii. 59, 60. 
 
 effect of death of a joint, vii. 87. 
 
 buying equity of redemption as to part of premises, by, vii. 88. 
 payment to, vii. 88. 
 precedency as to right to redeem among, vii. 89. 
 disputes among, vii. 93, 133, 182. 
 equities and priorities among, vii. 133. 
 may bring ejectment at law, vii. 158. 
 may file a bill to redeem, though he may have pledged the mortgage, 
 
 vii. 160. 
 when to be made a party, vii. 160. 
 how to account, vii. 163. 
 allowed expenses for repairs, vii. 163. 
 in possession not allowed for improvements, vii. 166. 
 
 Vol. X.— 86
 
 682 GENERAL INDEX. 
 
 Mortgagee, how to work mines, vii. 166. 
 sale by, when valid, vii. 167. 
 Mortgagor, rights of, vii. 30. 
 
 interests of, vii. 50. 
 considered as owner, vii. 51. 
 
 levying a fine by, does not destroy rights of mortgagee, vii. 52. 
 may present to benefice, vii. 53. 
 
 when he may vote for members of parliament, vii. 57. 
 effect of waste by, vii. 58. 
 not to account to mortgagee, vii. 59. 
 must do equity before he can redeem, vii. 134. 
 Mortmain, statutes prohibiting purchases in, ii. 189. 
 
 what things are exempt from the statutes of, ii. 191. 
 effect of the statutes of, vi. 7. 
 Mortuus, return of, viii. 714. 
 
 Mother, when she can bind her children by her contracts, i. 156. 
 entitled to the custody of her bastard child, ii. 89. 
 has no action for falsely calling her daughter a bastard, ix. 104. 
 Mourning, what is allowed for, iv. 114. 
 Movable goods, what pass by a bequest of, vi. 193. 
 Mr. when equal to Mister, vii. 438. 
 
 Mulatto, when it is actionable to charge one with being a, ix. 32, 55. 
 Mulier, rights of, ii. 91. 
 who is a, ii. 92. 
 when barred, v. 111. 
 Murage, king may grant, viii. 114. 
 Murder, what, vii. 183. 
 
 when duress is, vii. 185. 
 neglect is, vii. 185. 
 inciting another to kill himself is, vii. 186. 
 when owner of mischievous animal is guilty of, vii. 186. 
 physician is guilty of, vii. 187. 
 
 woman dies in an attempt to cause her abortion, it is, vii. 186. 
 to make the act the party must die within a year and day, vii. 188, 190. 
 what persons are subjects of, vii. 189. 
 
 alien enemy, vii. 189. 
 a pregnant woman, vii. 189. 
 a slave, vii. 189. 
 malice required to constitute, vii. 190. 
 
 when implied, vii. 196. 
 when an officer is guilty of, vii. 198. 
 charge of, actionable, ix. 33. 
 Murdravit, when required in an indictment, v. 68. 
 Mutiny, effect of insurance of negroes who perished by, vi. 660. 
 
 how punished, ix. 165. 
 Mutual promises will support assumpsit, i. 427. 
 declaration on, i. 449. 
 debt, what, i. 810. 
 credit, what, i. 810. 
 
 dealings, effect of act of limitations on, vi. 390. 
 debts may be set off, viii. 640. 
 Mutuality is requisite in an award, i. 336. 
 Mystery, meaning of, vii. 12. 
 
 •N. 
 
 Naked authority, revocable, when, i. 529. 
 Name, what, vii. 4. See Misnomer. 
 
 difference between Christian and surname, vii. 7. 
 
 when truly put, and, afterwards varied from, vii. 14. 
 
 mistake of, in granta and judicial proceedings, vii. 15. 
 
 variance between declaration and evidence as to, vii. 497, 501. 
 
 effect of omitting middle, vii. 501. 
 
 in what agent is to make contracts, i. 525. 
 
 when mistake in relation to a, may be amended, i. 241.
 
 GENERAL INDEX. 683 
 
 Name, of corporation, effect of, when varied, ii. 440, 441. 
 mistake in, when immaterial, iii. 736. 
 
 of party injured, when to be set out in an indictment, v. 75 
 who takes under a devise to persons of testator's, vi. 14s. 
 effect of mistake in legatee's, vi. 189. 
 leaving a blank for, vi. 189. 
 omission of a, how supplied, vi. 189. 
 effect of assumption of a, vi. 281. 
 and blood, effect of a devise to persons of my, vi. 148. 
 Narrow seas, what, viii. 18. 
 
 Natural children, when not entitled to maintenance, vi. 329. 
 Naturalization and denization, their difference, i. 198. 
 
 effects of, i. 200. 
 Nature, who is guardian by, iv. 540. 
 Navigable river, what is a nuisance in a, vii. 227. 
 Navigation, how encouraged, vi. 849. 
 ■Ne dona pas per lefait, effect of this plea, vii. 531. 
 exeat regno, when to issue, viii. 49. 
 unques accouple can be pleaded only in dower, ii. 91. 
 when not a good plea, vii. 582. 
 Nearest relations, who take under a bequest to, vi. 188. 
 Necessaries furnished to wife make the husband responsible, ii. 38. 
 when an infant is liable for, v. Ill, 117. 
 
 not liable, v. 121. 
 what are, v. 119. 
 Necessity, when goods are thrown over by, who loses them, ii. 154. 
 Negative covenants, what, ii. 551. 
 pleas, what, vii. 591. 
 
 force of, vii. 532. 
 statutes, what, ix. 234. 
 Neglect of officer, how punished, vii. 325. 
 Negligence of bailee, what, i. 617. 
 
 makes him responsible, i. 619. 
 carrier responsible for, ii. 155, 156. 
 sheriff liable for, viii. 722. 
 Negligent escape, what, iii. 403, See Escape. 
 
 waste, what, x. 422. See Waste. 
 Negotiable paper, a party to such paper cannot be a witness, when, iii. 503. 
 
 notes, what, vi. 769. 
 Negro, when he can recover for compulsory services, i. 432. 
 a legacy of, is specific, vi. 292. 
 effect of a bequest of female, who is pregnant, vi. 293. 
 emancipated by getting on board of a British ship at sea, ix. 473. 
 in England, trover does not lie for a, ix. 649. 
 Neutral, who is a, vi. 730. 
 Neutrality, warranty of, vi. 727. 
 New, what is, viii. 141. 
 
 assignment in trespass, when proper, ix. 535. 
 promise, when binding on bankrupt, i. 808. 
 
 of infant, when binding, v. 142. 
 statutes, what, ix. 213. 
 trial, in general, ix. 582. 
 
 by whom to be granted, ix. 583. 
 
 in what cases, ix. 585. 
 
 must be granted for the whole case, ix. 587. 
 
 as to all defendants, ix. 587. 
 after a trial at bar, ix. 591. 
 
 on account of defect or mistake of the judge, ix. 591. 
 on account of defect, mistake or fault of the jury, ix. 596. 
 because the party has discovered new evidence, ix. 620. 
 when granted in ejectment, ix. 624. 
 
 on an indictment, ix. 626. 
 information, ix. 626. 
 in a penal action, ix. 625. 
 Newly discovered evidence, when a new trial shall be granted on account of, ix. 617, 
 620.
 
 684 GENERAL INDEX. 
 
 Newspaper, when custom to continue advertisement, bad, iii. 26. 
 Next of kin entitled to administration, when, iv. 67. 
 
 when abroad may nominate administrator, iv. 67. 
 in equal degrees, who are, vi. 187. 
 who take under a bequest to, vi. 188. 
 Night, what is, ii. 135. 
 Ni/iils, effect of two returns of, viii. 621. 
 Nil debet, when a proper plea, vii. 273, 533, 537. 
 
 proper to debt for a ground rent, vii. 580. 
 
 an escape, vii. 580. 
 bad to an action of covenant, when, vii. 581. 
 assumpsit, vii. 581. 
 on a judgment, vii. 581. 
 
 foreign judgment, vii. 581. 
 is safe on action for a penalty, vii. 581. 
 habuit in tenementis, when a good plea, ii. 609. 
 
 improper, viii. 573. 
 Nisi prius, established, ii. 713. 
 
 trial at, what is, ix. 569. 
 No award, when a good plea, i. 351. 
 Noble, value of, vii. 242, 243. 
 Nolle prosequi, effect of, viii. 102. 
 
 when to be entered, viii. 103. 
 in replevin, effect of, viii. 579. 
 effect of, as to one of several joint obligors, vii. 255. 
 Nomine pcence, what, viii. 498. 
 
 Non-access of husband to his wife, effect of, on her offspring, ii. 79, 80. 
 cannot be proved by the wife, iii. 478. 
 attendance at court, is a forfeiture of copyhold, ii. 413. 
 cepit, plea of, viii. 557. 
 
 effect of, viii. 574. 
 compos, not capable to contract, i. 154. 
 
 how to appear to an action, i. 485. 
 damnificatus, when a proper plea, vii. 600. 
 
 not a proper plea, vii. 277. 
 decimando, prescription in a, x. 63. 
 dedit, plea of, when proper, iv. 380. 
 est factum, when a proper plea, vii. 531. 
 
 proper in covenant, ii. 611. 
 est inventus, when sheriff may return, i. 566. 
 infringit conventionem, when a proper plea, ii. 611, 612. 
 obstantes, when granted, viii. 66. 
 payment of rent, effect of, ii. 312, 414. 
 performance of condition, when excused, ii. 335. 
 submisit, plea of, i. 351. 
 
 tenent insimul, evidence under the plea of, v. 297. 
 tenure, plea of, vii. 616. 
 user of a statute, effect of, ix. 228. 
 usurpavit, is not a good plea, vii. 582. 
 Nonage, when the parol shall demur for, v. 162. See Parol. 
 of vouchee, parol shall demur for, v. 164. 
 _ prayee in aid, parol shall demur for, v. 165. 
 Nonsense in pleading, when rejected, vii. 601 
 Nonsuit, what, vii. 214. 
 
 who may be, vii. 217. 
 
 may be in a writ of error, vii. 218. 
 
 Circuit Court of United States cannot order a, vii. 219. 
 
 at what time a, may be taken, vii. 219. 
 
 an avowant cannot be, vii. 218. 
 
 after plea of tender, plaintiff cannot be, vii. 219. 
 
 when one is nonsuit, how far another shall bo, vii. 220. 
 
 when a, for a part, shall bo nonsuit for the whole, vii. 221. 
 
 effect of, vii. 221. 
 
 when a, shall be no bar, vii. 222. 
 
 of setting aside a, vii. 222.
 
 GENERAL INDEX. 685 
 
 Nonsuit, not granted in replevin, viii. 579. 
 
 against government, viii. 102. 
 Not found, effect of return of, viii. 621. 
 Notarial certificate, of what evidence, vi. 819. 
 Note of a fine, what, iv. 249. 
 
 Notes, when injunction lies to prevent negotiation of, v. 201, 213. 
 of hand, when a bequest of, is specific, vi. 290. 
 lost, effect of, vi. 792. 
 Notice of husband not to trust wife, effect of, ii. 44 . 
 by carriers, effect of, ii. 157, 159. 
 to tenant in ejectment, iii. 260. 
 of action to be given to justices, when, v. 427. 
 
 form of, v. 432. 
 dissolution of partnership, vi. 587. 
 
 effect of, vi. 591. 
 non-acceptance, vi. 819. 
 
 when required, vi. 822. 
 
 not required, vi. 825, 828. 
 waived, vi. 823, 824. 
 impossible, vi. 824. 
 to be given, vi. 826. 
 requisites of, vi. 825. 
 by whom to be given, vi. 825. 
 of encumbrances, when required, vii. 124. 
 
 to whom to be given, vii. 124. 
 set-off, effect of, viii. 058. 
 trial, when required, ix. 572. 
 Nova custuma, what, ix. Ill, 118. 
 Novation, what, iii. 99, 100 ; iv. 149. 
 Now, meaning of, vi. 191. 
 
 Nudum pactum, no recovery can be had on a, i. 419, 420, 422. 
 Nuisance, what, vii. 223. 
 
 obstruction of a river is a, vii. 228. 
 railway when not a, vii. 228. 
 brewhouse, when a, vii. 229. 
 sty, when a, vii. 229. 
 gunpowder, when a, vii. 229, 230. 
 manufactories, when, vii. 229. 
 slaughter-house, when, vii. 229. 
 what is a public, vii. 232. 
 how to be removed, vii. 233. 
 
 prevented, vii. 233. 
 may be abated, vii. 233. 
 indictment for continuing, vii. 234. 
 injunction for, vii. 234. 
 how punished, vii. 234. 
 action for a, vii. 235. 
 by-laws to prevent, when good, ii. 146. 
 Nul agard, when it may be pleaded, i. 352. 
 
 tiel record cannot be pleaded with another plea, vii. 647. ' 
 wast, evidence under the plea of, vii. 549. 
 Nullam facerunt arbitrium, plea of, i. 350. _ 
 Nullum tern-pus occurrit regi, maxim of, viii. 95, 157. 
 Number of legatees, effect of mistake as to the^vi. 189. 
 when not required in a declaration, vii. 513. 
 pleading, ix. 505. 
 Nuncupative will, what, x. 487, 529. 
 requisites of, x. 530. 
 
 Oath, form of, iii. 512. 
 origin of, iii. 512. 
 kinds of, iii. 512. 
 
 0. 
 
 3M
 
 686 GENERAL INDEX. 
 
 Oath may be varied, when, iii. 512. 
 
 of allegiance, when required, viii. 47. 
 churchwardens, what, ii. 244. 
 fealty, form of, viii. 448. 
 
 supremacy, consequence of not taking the, ix. 410. 
 Obligation, what, viL 236. 
 
 of contracts, effect of laws impairing the, ix. 229. 
 Obligee, who can be, vii. 247. 
 
 wife cannot be, vii. 247. 
 alien may be, vii. 247. 
 sole corporations cannot be, vii. 248. 
 party cannot at same time be obligor and, vii. 248. 
 of several, vii. 248. 
 
 bond given to an, for the use of another, vii. 249. 
 Obscene books are libellous, vi. 346. 
 Occupancy, effect of, iii. 456. 
 
 what title gained by, iii. 456. 
 Occupant, who is an, iii. 459. 
 general, iii. 460. 
 special, iii. 460. 
 Of his body, effect of these words, vi. 30. 
 Offence, how to be described in an indictment, v. 77. 
 
 joint, when to be charged in an indictment, v.^83. 
 of not making a declaration against popery, vii. 376. 
 Offenders, how committed, ii. 248. 
 Office, defined, vii. 279. 
 
 right of granting an, vii. 281, 283, 284. 
 
 assigning an, vii. 284. 
 grant of, by ecclesiastical persons, vii. 285. _ 
 ceremony to complete the creation of an, vii. 290, 
 offence of buying and selling an, vii. 296. 
 remedies to recover an, vii. 305. 
 duration of, vii. 307, 311. 
 cannot be granted in reversion, vii. 310. 
 may be granted to commence infuturo, vii. 310. 
 when held during good behaviour, effect of, vii. 311. 
 by whom to be executed, vii. 311. 
 when void on account of officer's incapacity, vii. 312. 
 manner of executing, vii. 313. 
 when incompatible, vii. 313, 314. 
 may be executed by two or more persons, vii. 315. 
 of deputy, what, vii. 316. 
 the forfeiture of, vii. 320. 
 • cannot be sold, i. 434. 
 belonging to bankrupt, when it passes to his assignees, i. 722. 
 lost by the commission of felony, iv. 196. 
 when the subject of a lease, v. 438, 440. 
 papists cannot hold, vii. 379. 
 found, effect of, viii. 108. 
 Officer, defined, vii. 279. 
 public, vii. 280. 
 private, vii. 280. 
 civil, vii. 280. 
 political, vii. 280. 
 judicial, vii. 280. 
 ministerial, vii. 280. 
 military, vii. 280. 
 de jure, vii. 283. 
 de facto, vii. 283. 
 
 by whom to be appointed, vii. 281, 283. 
 who may be appointed, vii. 284. 
 how appointed in England, viii. 60. 
 
 the United States, viii. 60. 
 qualifications of, vii. 284. 
 may be removed, when, vii. 311.
 
 GENERAL INDEX. 6S7 
 
 Officer, may lose his office by incapacity, vii. 312. 
 judicial, cannot make a deputy, vii. 317. 
 superior, responsible for inferior, vii. 319. 
 corruption of, how punished, vii. 323. 
 oppression of, how punished, vii. 323. 
 civil liability of, vii. 325 ; i. 130. 
 bribery of, how punished, vii. 324, 325. 
 may be restored to his office by mandamus, vi. 422. 
 costs in favour of, ii. 520. 
 powers of, viii. 61. 
 of corporations, how elected, ii. 467. 
 what is slander against an, ix. 45. 
 liability to and authority over soldiers, ix. 189. 
 when it is treason to slay an, ix. 408. 
 Officina brevium, chancery is an, ii. 681. 
 Officium, what, vii. 279. 
 Old terrier, when evidence, iii. 577. 
 Oleron, laws of, ii. 740. 
 Omissions in a declaration, effect of, vii. 492. 
 Omnia bona sua, effect of grant of, iv. 531. 
 
 Or order, when these words are required on an endorsement, vi. 795, 796. 
 Orchard, ejectment lies for an, iii. 274. 
 
 what is waste to an, x. 428. 
 Order of bastardy, when to be made, ii. 95, 96, 101, 103. 
 Ordinance, what, ix. 217. 
 Ore, when subject of larceny, iv. 176. 
 Organization of Senate as a court, ii. 794. 
 Supreme Court, ii. 796. 
 Circuit Courts, ii. 802. 
 District Courts, ii. 814. 
 Original entries, how to be made, iii. 583. 
 in what book, iii. 583. 
 by whom, iii. 583. 
 when to be made, iii. 583. 
 effect of, iii. 583. 
 process, when amendable, i. 239. 
 writs, what, ii. 684. 
 Ornamental trees, waste of, restrained by injunction, v. 211. 
 Orphans, who shall be, in London, iii. 40. 
 Ostiarii, who are, v. 480. 
 Ouster in ejectment, what, iii. 278. 
 
 when presumed, vi. 369. 
 Outlaw is not liber et legales homo, vii 349. 
 cannot be a juror, vii. 349. 
 
 an auditor, vii. 349. 
 sue, vii. 345. 
 may be heir, when, vii. 349. 
 
 tenant by the curtesy, vii. 349. 
 act as attorney in fact, i. 520. 
 cannot be bail, i. 562. 
 goods of, when forfeited, iv. 341. 
 Outlawry, what, vii. 326. 
 
 effect of, vii. 327. 
 
 in what cases it lies, vii. 328. 
 
 in civil cases, vii. 328. 
 criminal cases, vii. 328. 
 by what jurisdiction process of, issued, vii. 330. 
 against whom, vii. 331. 
 a peer, vii. 331. 
 an infant, vi. 331. 
 ' a feme covert or sole, vii. 332. 
 several defendants, vii. 332. 
 principal and accessory, vii. 334. 
 forfeitures consequent on, vii. 335. 
 
 in criminal cases, vii. 336.
 
 688 GENERAL INDEX. 
 
 Outlawry, forfeitures consequent on, in civil cases, vii. 336. 
 to what forfeitures in, shall relate, vii. 339. 
 disables a party from suing, vii. 345, 349. 
 when proceedings in, may be reversed, vii. 350. 
 manner of reversing, vii. 360. 
 appearance in, vii. 363. 
 scire facias in, vii. 367. 
 effect of reversal of, vii. 368. 
 
 generally, ix. 437. 
 a good plea in abatement, i. 2. 
 bar, i. 31. 
 Outstanding term, benefit of, vii. 118. 
 Owner of ship, who is, vi. 668. 
 
 responsibility of, vi. 594, 597. 
 a chattel may recover it from a purchaser who bought it from a bailee, i. 619. 
 Oyer and terminer, established, ii. 709. 
 
 commissioners of, ii. 710. 
 jurisdiction of, ii. 711. 
 proceedings in, ii. 712. 
 when demanded, vii. 623, 629. 
 
 not grantable, vii. 20. 
 who is entitled to, vii. 629. 
 when dispensed with, vii. 631. 
 Oyster beds, rights to, vii. 455. 
 
 P. 
 
 Packing jury, what, v. 392. 
 
 Palace court, what, ii. 753. 
 
 Palatinate courts, ii. 755. 
 
 Panel of jurors to be returned, v. 334. 
 
 Papers, consequences to a ship of having two sets of, vi. 732. 
 
 when evidence in cases of treason, ix. 429. 
 Papists, who are, vii. 370. 
 
 not allowed to sit in parliament, vii. 376. 
 cannot hold a place at court, vii. 379. 
 
 office, civil or military, vii. 379. 
 not allowed to live within ten miles of London, vii. 387. 
 keep arms, vii. 387. 
 promote or teach religion, vii. 388. 
 give popish education, vii. 388. 
 sell popish books, vii. 391. 
 keep school, vii. 391. 
 present to a church, vii. 391. 
 coerce a Protestant child, vii. 391. 
 purchase, vii. 394. 
 Paraphernalia belonging to widow, iv. 85. 
 Parceners, who are, ii. 355. See Coparceners. 
 Pardon, what, vii. 405. 
 
 kinds of, vii. 405. ■ 
 
 by whom granted, vii. 406 ; viii. 66. 
 for what offences granted, vii. 406. 
 when grantable of common right, vii. 409. 
 validity of a, vii. 410. 
 when conditional, vii. 412. 
 must be accepted, vii. 413. 
 how taken advantage of, vii. 413. 
 effects of, vii. 415 ; viii. 66, 79 ; iv. 174. 
 as regards a witness, iii. 488. 
 conditional, what, viii. 66. 
 how granted, ix. 251. 
 of an approver, when granted, ix. 302. 
 how construed, ix. 251. 
 Parens patriae, king is, viii. 65
 
 GENERAL INDEX. 689 
 
 Parents' consent to marriage, when requisite, vi. 455. 
 
 Pares, who are, v. 352. 
 
 Part delicto, parties in, cannot recover back money paid on an illegal contract, i. 408. 
 
 Park, what is a, iv. 434. 
 
 waste to a, x. 428. 
 Parliament, how constituted, ii. 024, 040. 
 court of, ii. 034. 
 antiquity of, ii. 034. 
 origin of, ii. 034. 
 how summoned, ii. 052. 
 who are electors of members of, ii. 057. 
 manner of passing bills by, ii. 070. 
 
 continuance, adjournment, prorogation, and dissolution of, ii. 075. 
 jurisdiction of House of Lords, ii. 079. 
 writ of error into, iii. 358. 
 papists cannot sit in, vii. 370. 
 Parol when the, shall demur, v. 154. 
 
 when without plea, shall demur, v. 100. 
 
 upon what plea shall demur, v. 101. 
 
 shall demur for the nonage of party, v. 102. 
 
 vouchee, v. 104. 
 prayee in aid, v. 105. 
 shall demur in respect of what estate, v. 103. 
 
 for two defendants, v. 100. 
 lease, when invalid, v. 481. 
 evidence, when admitted, iii. 004. 
 
 may explain written evidence, when, iii._G05. 
 not allowed to contradict writing, iii. 005. 
 may prove vice in contract, iii. 008. 
 
 mistake and surprise, iii. 007, 008. 
 explain an ambiguity, iii. 005, 009. 
 a will, when, iii. 013. 
 Parson, power of, to make lease, v. 480, 520. 
 Part owners of ship, dispute between them, how settled, ii. 741. 
 rights of majority of, vi. 591. 
 performance of contracts, when sufficient to enforce specific performance, i. 191. 
 Partial loss, what, vi. 074. 
 Partiality in the sheriff, a good cause of challenge of the array, v. 343. 
 
 of jurors, good cause for challenge, v. 353. 
 Particular customs, how construed, ii. 378. 
 
 estate, required to support a remainder, viii. 400. 
 Parties to actions who may join, vii. 407. 
 
 in actions ex contractu, vii. 407. 
 plaintiffs, vii. 407. 
 
 original parties, vii. 407. 
 executors and administrators, vii. 409. 
 husband and wife, vii. 409. 
 defendants, vii. 409. 
 
 original parties, vii. 409. 
 executors and administrators, vii. 470. 
 husband and wife, vii. 470. 
 in actions ex delicto, vii. 470. 
 
 plaintiffs, vii. 470. m% 
 
 injury to several persons, vii. 4(0. 
 wife, vii. 471. 
 
 defendants, vii. 471. .. 
 
 injury by several persons, vu. 4i 1. 
 
 husband and wife, vii. 472. 
 wife, vii. 472. 
 character of in U. S. courts, ii. 807. 
 United States, ii. 808. 
 citizens of different states, ii. 808. 
 aliens, ii. 809. 
 assignees, ii. 809. 
 inhabitants, ii. 810. 
 
 Vol. X.— 87 3m 2
 
 690 GENERAL INDEX. 
 
 Parties to actions of trespass, plaintiffs, ix. 452. 
 
 defendants, ix. 494. 
 who may be joined, ix. 499. 
 in trover, plaintiffs, ix. 640. 
 defendants, ix. 657. 
 replevin, executor, viii. 551. 
 
 feme covert, viii. 551. 
 servant, viii. 552. 
 tenant in common, viii. 552. 
 equitable owner, viii. 552. 
 bailee, viii. 553. 
 father, viii. 553. 
 number of, viii. 552. 
 an avowry, who are to be, viii. 563. 
 to a scire facias, who must be, viii. 618. 
 on the case, who may be, i. 66, 103, 105. 
 when husband and wife, must join, ii. 37, 61. 
 
 be joined, ii. 55. 
 may sue alone, ii. 54. 
 privileges of, viii. 170. 
 
 consent of, does not give jurisdiction, ii. 618. 
 may be attached for contempt, when, i. 469 ; _ 
 who must be made to redeem a mortgage, vii. 95. 
 idiots cannot be, v. 47. 
 may be witnesses, when, iii. 475, 477, 482. 
 contracts, who may be, i. 154 ; -vii. 246._ 
 
 churchwardens, i. 156. 
 father, i. 155. 
 infants, i. 154. 
 
 persons non compos, cannot be, i. 154. 
 slave, i. 154. 
 tenant in tail, i. 155. 
 wife, i. 154. 
 agents, i. 157. 
 solicitor, i. 157. 
 
 managers of a corporation, i. 158. 
 corporations, i. 158. 
 a state, i. 158. 
 
 wife cannot be, when, ii. 54, 55. 
 covenants, ii. 560. 
 
 when covenantees, ii. 560. 
 joint and several, ii. 561. 
 when one dies, effect of, ii. 563. 
 made by one to a class, ii. 563. 
 a submission, who may be, i. 313. 
 an obligation, vii. 246. 
 when the act of one will excuse the non-performance of conditions by the 
 
 other, ii. 338. 
 a set-off, v. 649. 
 
 agents, v. 649. 
 factors, v. 649. 
 insurance brokers, v. 649. 
 husband and wife, .v. 649. 
 one of several partners, v. 650. 
 assignee, v. 650. 
 trustee, v. 651. 
 plaintiff on record, v. 655. 
 bank, v. 656. 
 executors, v. 656. 
 surviving partner, v. 657. 
 Partition among coparceners, ii. 358. 
 
 of what it may be made, ii. 358. 
 
 writ of, ii. 36 \. 
 
 by hotchpot, ii. 364. 
 
 parol and unexecuted, when void, ii. 361.
 
 GENERAL INDEX. 
 
 Partition, nature of coparcenary estate after, ii. 366. 
 
 implies a warranty, ii. 367. • 
 
 by infants, when avoidable, v. 129. 
 destroys joint-tenancy, v. 283. 
 must be by deed, -when, v. 283. 
 parol, when, v. 283. 
 may be made, when, v. 290. 
 
 by joint-tenants, v. 290. 
 
 tenants in common, v. 290. 
 
 by the curtesy, v. 291. 
 owner of the equity of redemption, v. 291. 
 equitable owner, v. 296. 
 Partners, who are, vi. 573. 
 
 interest of, vi. 574. 
 action by one, vi. 575. 
 authority of one, vi. 574, 575, 580, 583. 
 participation in profits makes, vi. 578. 
 permitting name to be used makes, vi. 579. 
 dormant, how far liable, vi. 579. 
 cannot bind co-partner by seal, vi. 581, 584. 
 one can draw and endorse bills, vi. 581. 
 liable when credit is given to the firm, vi. 582. 
 effect of private contracts between, vi. 582. 
 fraud of one affects all, vi. 582. 
 
 requisites of bill against executors of deceased, vi. 583. 
 when note of firm, not binding on, vi. 583. 
 rights of, to partnership property, vi. 585. 
 effect of execution against one, vi. 585. 
 rights of surviving, vi. 580. 
 payment to one of several, good, vi. 585. 
 when to account, vi. 586. 
 admission of, when evidence, iii. 558. 
 bankrupt, i. 786,814. 
 
 paying private debts out of partnership funds, when fraudulent, iv. 387. 
 when restrained by injunction from disposing of joint-stock, v. 200. 
 Partnership, what, vi. 573. 
 
 how constituted, vi. 573. 
 effect of dissolution of, vi. 582. 
 general reputation no evidence of, vi. 579. 
 funds, who is entitled to, vi. 581. 
 purchase of effects of, vi. 586. 
 debts to be paid out of effects of, vi. 587. 
 slarfder against, vi. 346, 347. 
 when not allowed to insure, vi. 638. 
 injunction lies to prevent dissolution of,v. 200. 
 Party wall, when a covenantor is bound to pay for, ii. 579. 
 
 law relating to, in London, iii. 39. 
 Passport, efficacy of, vi. 731. 
 Pasture, common of, ii. 260. 
 
 Patent, who entitled to, viii. 131, 132, 133 ; vii. 419. 
 for what granted, viii. 132, 136. 
 effect' of, viii. 132, 133. 
 surrender of, viii. 133. 
 action for violation of right to, viii. 133. 
 what is a violation of right to, viii. 134. 
 construction of, viii. 149. 
 damages for violation of right of, iii. 82. 
 Pauper, when entitled to sue in forma pauperis, vii. 420. 
 
 whether defendant can defend in f or mO, pauperis, vii. 421. 
 when admitted to defend in formd pauperis, vii. 422. 
 in what cases dispaupered, vii. 422. 
 costs against, ii. 524. 
 Pawn, what, i. 608. 
 
 may be sold, when, i. 611, 613. 
 delivery of, when requisite, i. 612.
 
 692 GENERAL INDEX. 
 
 Pawn, difference between mortgage and, i. 612. 
 when it may be redeemed, i. 613. 
 when assignees of bankrupt may redeem, i. 613. 
 Pawnbroker may be indicted for not delivering pledge, i. 614. 
 Pawnee, rights of, i. 618. 
 
 has a special property in the goods pledged, i. 625. 
 may use the pawn, when, i. 625. 
 Pawnor, when entitled to property pawned, i. 610, 613. 
 
 must demand the pledge before action brought for its recovery, i. 607. 
 Payment made in counterfeit bank-notes not valid, i. 412. 
 of money on a pledge, when to be made, i. 611. 
 v when presumed, iii. 618 ; vii. 275 ; vi. 376 ; viii. 512, 
 
 what debts are first entitled to, vii. 262. 
 when appropriation of, to be made, vii. 262. 
 of money into court, effect of, ix. 346. 
 plea of, vii. 265. 
 
 to assignor of a bond, when valid, viii. 272. 
 what is tantamount to, vi. 833. 
 • of a legacy, effect of postponement of, vi. 263. 
 
 effect of union of gift and time of, vi. 264. 
 how to be made, vi. 305. 
 when presumed, vi. 306. 
 to infant, effect of, vi. 307. 
 a father for child, vi. 308. 
 a feme covert, vi. 309. 
 husband, vi. 309, 311. 
 committee of lunatics, vi. 311. 
 assignee of bankrupt, vi. 312. 
 when to be made, vi. 312. 
 of rent, effect of, viii. 512. 
 
 time of, viii. 460, 466, 512. 
 place of, viii. 512. 
 presumption of, viii. 512. 
 effect of payment of, to a stranger, viii. 512. 
 who entitled to, viii. 512, 513. 
 how apportioned, viii. 513. 
 to joint-tenant, effect of, viii. 513. 
 tenant in common, effect of, viii. 513. 
 Peace, what, viii. 67. 
 
 kinds of, viii. 67. 
 Peculiars, court of, ii. 720. 
 Pecuniary legacies, what, vi. 290. See Legacy. 
 test of, vi. 292. 
 abate, vi. 292. 
 penalties for smuggling, ix. 140. See Penalties. 
 Peers entitled to privilege from arrest, viii. 183. 
 
 serving on jury, viii. 189. 
 letter missive, viii. 189. 
 other privileges, viii. 189. 
 may be outlawed, vii. 331. 
 Penal statute, how construed, ix. 252. 
 
 limitation of action on, vi. 371. 
 action, when a new trial will be granted in a, ix. 626. 
 Penalties and forfeitures incurred by smuggling, ix. 140. 
 for ships hovering on the coast, ix. 141. 
 
 not proceeding on voyage, with contraband goods, ix. 141. 
 
 having spirits, tobacco, or snuff, in illegal packages in ship, ix. 141. 
 
 throwing goods overboard in a chase, ix. 143. 
 
 having contraband goods on board near Guernsey, ix. 144. 
 
 sailing without a clearance from Guernsey, ix. 145. 
 
 hoisting falsi; Bags, ix. 140. 
 
 unshipping prohibited goods, ix. 147. 
 
 making signals to smugglers, ix. 148. 
 
 resisting revenue officer, ix. 149. 
 
 concealing goods on double sides or false bottoms, ix. 150.
 
 GENERAL INDEX. 693 
 
 Penalties pecuniary, for smuggling, ix. 140. 
 corporal, for smuggling, ix. 152. 
 for shooting at boats belonging to navy, 153. 
 
 persons armed or disguised, passing with goods liable to forfeiture, ix. 
 153. 
 declaration on, vii. 264. 
 
 whether damages may be recovered beyond the, vii. 239. 
 Pencil, a will may be written with a, x. 490. 
 Pendency of suit in another state, plea of, vii. 635. 
 Penetration, what, ix. 158. 
 Pensions, king authorized to grant, viii. 121. 
 Per capita, who takes, vi. 178. 
 stirpes, who takes, vi. 178. 
 
 infortunium, homicide, when justified, vii. 184, 211. 
 Peremptory challenge, when allowed, v. 362. 
 
 mandamus, when awarded, vi. 452. See Mandamus. 
 Performance of condition, by whom it may be made, ii. 319. 
 
 to whom, ii. 321. 
 when, ii. 323. 
 where, ii. 328. 
 when sufficient, ii. 330. 
 by a stranger, when good, ii. 341. 
 what is a good, of covenant, ii. 592. 
 of agreement, how enforced, i. 169, 191. 
 when to be averred in a declaration, vii. 485. 
 what is a good plea of, iL 605 ; vii. 266. 
 Performavit omnia, effect of plea of, vii. 265. 
 Peril of the sea, what, vi. 662. 
 Perishable articles, what, vi. 676. 
 
 when to be sold, viii. 299. 
 Perjury, what, vii. 424. 
 
 subornation of, vii. 424. 
 at common law, vii. 424. 
 requisites of, vii. 424. 
 
 oath must bo wilful, vii. 424. 
 
 in a judicial proceeding, vii. 425. 
 before some lawful authority, vii. 425. 
 by a person sworn to depose the truth, vii. 425. 
 material, vii. 425, 426. 
 absolute, vii. 425. 
 false, vii. 425. 
 
 not required that it should be credited, vii. 426. 
 voluntary oath, is not, vii. 427. 
 how punished by statute, vii. 428, 
 
 indictment on, vii. 429. 
 by act of Congress, vii. 433. 
 how charged and assigned, vii. 433. 
 false charge of, when actionable, ix. 34. 
 Permissive waste, what, x. 422. 
 Person, meaning of, x. 126. 
 
 when an action lies for an injury to the, ix. 452. 
 Persona mixta, who is a, x. 26. 
 Personal actions die with the person, when, iv. 133. 
 
 when not, iv. 140. 
 covenants, how to be performed, ii. 564. 
 estate, what, iv. 72. 
 liable to pay debts, when, iv. 115. 
 
 a term for 985 years will pass under a bequest of, vi. 192. 
 estate of wife, vests in the husband, ii. 16, 21. 
 primarily liable for owner's debts, vii. 72. 
 mortgages of, vii. 180. 
 
 property, trespass lies for an injury to, ix. 453 472. 
 representatives may distrain, when, iii. 165. 
 statutes, what, ix. 212. 
 tithes, who is liable to pay, x. 9. See Tithes.
 
 694 GENERAL INDEX. 
 
 Personal tithes, what, x. 9. 
 
 how paid, x. 39. 
 Persuasion of a testator, effect of, x. 487. 
 Petit serjeantry, tenure by, ix. 376. 
 treason, what, ix. 380. 
 
 of, in general, ix. 416. 
 
 slaying a husband by his wife is, ix. 418. 
 
 prelate by an ecclesiastic, is, ix. 419. 
 Petition to general assembly not libellous, vi. 345. 
 
 the delivery of, to members of parliament is not a publication, vi. 358. 
 de droit, what, viii. 107. 
 when slanderous, ix. 65. 
 not, ix. 65. 
 Petitioning creditor of bankrupt, who is a, i. 659, 801. 
 Petty bag, what, ii. 683. 
 Physician, when guilty of murder, vii. 187, 204. 
 
 what is a slander of, ix. 48. 
 Pictures considered as furniture, when, vi. 193. 
 Pigeons ureferce naturae, vii. 226. 
 Pignus, what, vii. 28. 
 
 Pilot, how far a servant of owner of a ship, vi. 539. 
 Pipowders, court of, ii. 789. 
 Piracy, what, vii. 439, 441. 
 
 how punished, vii. 443. 
 corruption of blood consequent on, vii. 444. 
 Pirate, meaning of, vii. 441. 
 Piratical, meaning of, vii, 440. 
 Piscaria, effect of grant of, iv. 530. 
 Pischary, what, vii. 452. See Fishery. 
 common .of, vii. 452 ; ii. 261. 
 Place where condition may be performed, ii. 328. 
 distress may be made, iii. 176. 
 how to be set out in an indictment, v. 79. 
 where offence is committed, vi. 358, 359. 
 of publication of a libel, vi. 358, 359. 
 where rent must be demanded, viii. 487. 
 Plantation, what passes under a devise of a, vi. 194. 
 Plate considered furniture, when, vi. 193. 
 Play, money lost at, cannot be recovered, iv. 460. 
 
 when paid, cannot be recovered back, iv. 460. 
 Players, unlicensed, how punished, vii. 224. 
 Pleas, meaning of, vii. 458. 
 kinds of, vii. 526. 
 
 in abatement, i. 31 ; ix. 514. See Abatement. 
 how pleaded, i. 35. 
 
 difference between a plea in bar and a, i. 36. 
 dilatory, how restrained, i. 33. 
 in bar, vii. 531. See Bar. 
 
 must be proper, vii. 579. 
 
 good in substance, vii. 586. 
 direct, vii. 606. 
 
 according to operation of law, vii. 610. 
 to the jurisdiction, vii. 526. See Jurisdiction. 
 sham, vii. 530. 
 foreign, what, i. 40. 
 construction of, vii. 460. 
 colour of, vii. 613. 
 hors de son fait, what, vii. 617. 
 profert, when required in, vii. 623. 
 of former recovery, vii. 633. 
 tender, vii. 640. 
 justification, vii. 640. 
 amendment of, vii. 641. 
 when to be entered, vii. 676. 
 of accord and satisfaction, when good, ii. 614 ; i. 60, 61.
 
 GENERAL INDEX. 695 
 
 Pleas of set-off, when proper, ii. 614. 
 to awards, what, i. 348. 
 in assumpsit, what, i. 459. 
 covenant, ii. 609. 
 
 nil Jiabuit in tenementis, when proper, ii. 609. 
 non est factum, when proper, ii. 611. 
 non infringit conventionem, when proper, ii. 611. 
 set-off, when proper, ii. 614. 
 formedon, what, iv. 379. 
 puis darrein continuance, what, vii. 685. 
 
 when to be put in, vii. 685, 688. 
 effect of, vii. 685, 688. 
 cannot be rejected, when, vii. 687. 
 in replevin, requisites of, viii. 556. 
 trespass, ix. 514. 
 
 in abatement, ix. 514. 
 chief, ix. 515. 
 
 general issue, ix. 515. 
 a special, ix. 516. 
 
 both the general issue and a special, ix. 527. 
 trover, ix. 672. 
 of the act of limitations, what, vi. 404. 
 roll, how amendable, i. 243. 
 Pleaders, fines imposed on, vii. 458. 
 Pleading, meaning of, vii. 457. Vide Pleas. 
 formerly ore terms, vii. 458. 
 
 in the Latin tongue, vii. 458. 
 rules respecting, vii. 458, 459. 
 defects in, how cured, vii. 459. 
 effect of surplusage in, vii, 460, 601. 
 several parts of, vii. 462. 
 order of, vii. 462, 463. 
 rules to avoid prolixity in, vii. 591. 
 of negative pregnant in, vii. 608. 
 estoppels in, vii. 618. 
 profert, when required in, vii. 623. 
 duplicity in, vii. 642. See Duplicity. 
 departure in, vii. 651. 
 repleader, what, vii. 657. See Repleader. 
 demurrer, what, vii. 662. See Demurrer. 
 in actions for words, ix. 84. 
 a statute, how, ix. 260, 263. 
 
 tender how, ix. 332. See Tender, 
 uncore prist, when proper, ix. 334. 
 
 with tout temps prist, when proper, ix. 335. 
 with a profert in curia, effect of, ix. 337. 
 in actions of ti'espass, ix. 501. 
 giving colour, ix. 529. See Colour. 
 replication, ix. 530. See Replication. 
 new assignment, ix. 535. 
 
 in detinue, what, iii. 136. < ... 
 
 when false, renders executors liable de bonis proprus, iv. 11». 
 to a scire facias, viii. 624. 
 Pledge, what, i. 608 ; vii. 28. 
 
 when it may be redeemed, i. 613. . 
 
 by assignees of bankrupt, i. old. 
 
 by factor, effect of, vi. 566. 
 * in replevin, when to be taken, viii. 532. 
 kinds of, viii. 532. 
 Plene administravit, plea of, iv. 120. 
 
 finding of jury on, iv. 122. 
 cannot be withdrawn,_ when, iv. 122. 
 , judgment on plea of, iv. 122. 
 
 good plea to a scire facias, iv. 123. 
 computavit, plea of, i. 51. 
 Poisoning, who is guilty of murder by, vii. 188.
 
 696 GENERAL INDEX. 
 
 Policies of insurance, vi. 637. See Insurance. 
 valued, vi. 637. 
 open, vi. 637. 
 wager, vi. 707, 711. 
 Political rights of married women, ii. 16. 
 Ponderous articles, how to be tendered, ix. 320. 
 Pontage, king may grant, viii. 114. 
 Poor, legacy to the, how distributed, ii. 198. 
 
 relations, who take, under bequest to, vi. 187. 
 Pope, former power of the, viii. 56. 
 
 license of, when evidence, iii. 576. 
 bull of, when evidence, iii. 577. 
 Popery, oifence of not making declaration against, vii. 376. ( 
 
 Popish recusancy, a good plea in^ abatement, i. 4. 
 recusants, who are, vii. 370. 
 
 how punished, vii. 370. 
 disabilities of, vii. 371. 
 
 cannot sue, vii. 372. 
 
 hold office, vii. 372. 
 
 claim any part of husband's estate, vii. 372. 
 an estate by curtesy, vii. 373. 
 restraints on, vii. 373. 
 
 cannot go five miles from home, vii. 373. 
 keep firearms, vii. 374. 
 come within ten miles of London, vii. 374. 
 forfeitures, vii. 374. 
 
 jointure or dower, vii. 374. 
 for unlawful marriage, vii. 375. 
 
 not receiving sacrament, vii. 375. 
 omitting baptism, vii. 375. 
 unlawful burial, vii. 375. 
 inconveniences, they are subject to, vii. 375. 
 
 houses may be searched, vii. 375. 
 to married women, vii. 376. 
 Port, what, vi. 649, 650; viii. 25. 
 of delivery, what, vi. 603. 
 destination, what, vi. 603. 
 Porters are common carriers, ii. 151. 
 Portions, devise for payment of, vi. 83 _ 
 
 when satisfied by a legacy, vi. 235. ' 
 
 Posse comitatiis, authority of sheriff to raise the, viii. 695. 
 Possessio fratris, what, iii. 107. 
 
 rule of does not apply to the English king, vm. 85. 
 Possession, when it is required to make ^assignee liable for rent, ii. 570, oil. 
 when evidence of property, iii. 619, 620. 
 required to constitute forcible entry and detainer, iv. 327. 
 peaceable, what, iv. 328. 
 scrambling, what, iv. 328. 
 
 want of, when a badge of fraud, iv. 406, 407, 409, 416. 
 injunction lies for quieting, v. 204. 
 remains in the lessor, when, y. 632. 
 what sufficient to give title, vi. 370. 
 of tenants in common, effect of, vi. 370. 
 
 joint tenants, effect of, vi. 370, 371. 
 deed by person out of, void, vi. 417. 
 mortgagee of goods must have, vii. 181. 
 grant presumed from length of, viii. 94. 
 not required to rapport replevin, viii. 552. > 
 when plaintiff in trespass must have had, ix. 454. 
 Possessory actions, limitation of, vi. 364. _ t 
 
 Possibilities of bankrupt, when they pass to his assignees, l. i ZZ. 
 Possible, award must be of a thing, i. 339. 
 Post fine, what, iv. 248. 
 
 mark, effect of, vi. 644. 
 obit, not usurious, x. 286. 
 Posterity, meaning of, vi. 144.
 
 GENERAL INDEX. C97 
 
 Posthumous children, to what entitled, x. 507. 
 
 Postponement, when payment is postponed, effect of such, vi. 263. 
 
 Poundage, when allowed, iv. 168. 
 
 duty of, ix. 120, 125. 
 Power of attorney, what, i. 489. 
 
 appointment, effect of a bequest with, vi. 268. 
 churchwardens over church property, ii. 2-41. 
 sale under a mortgage, vii. 31. 
 is a vested interest, vii. 32. 
 a statute, ix. 228. 
 revocation of uses, x. 160. 
 relating to lands, what, x. 160 
 
 is appendant, x. 160. 
 in gross, x. 160. 
 of cestui que trust, x. 258. 
 
 bankrupt when they pass to his assignees, i. 722. 
 executors, when limited, iv. 37. 
 
 greater than testator's, v. 124. 
 leases made pursuant to, when good, v. 575. 
 Prayee in aid, when parol shall demur for, v. 165 
 Praecipe and concord, what, iv. 247. 
 Prcemunire, what, vii. 690. 
 
 statutes of, vii. 690. 
 
 when made, ii. 645. 
 offences of, vii. 690. 
 punishment of, vii. 693. 
 a good plea in abatement, i. 4. 
 Preamble of a statute, effect of, ix. 219, 241. 
 Prebendaries, who are, v. 479. 
 
 power to make leases, v. 480. 
 Precedency among mortgagors as to the right to redeem, vii. 89. 
 Precedent condition, what, ii. 291. 
 
 distinction between subsequent and, ii. 292. 
 remainders that arise on, viii. 380. 
 Predial tithes, what, x. 11. See Tithes. 
 
 how set out, x. 39. 
 Preferences in a voluntary assignment, when lawful, i. 388. 
 made by bankrupt, how far valid, i. 733, 803. 
 United States entitled to, i. 809. 
 sureties when entitled to, i. 809. 
 when fraudulent, iv. 395. 
 Pregnancy, duration of, ii. 84. 
 signs of, ii. 86, 87. 
 Premises, meaning of, vi. 140. 
 
 in a deed, what, iv. 212, 213. 
 
 effect of, iv. 529. 
 effect of habendum on, iv. 213. 
 Premium, return of, vi. 736. 
 
 pudicitke, bond given for, void, vii. 260. 
 Premunientes clause, when first introduced, ii. 639. 
 
 what it is, ii. 642. 
 Prorogation of parliament, how made, ii. 675. 
 
 consequences of, ii. 676. 
 Prerogative, meaning of, viii. 5. 
 etymology of, viii. 5. 
 effect of, viii. 5. 
 when to be allowed, viii. 8. 
 division of the subject of, viii. 9. 
 of king as universal applicant, viii. 13. 
 in cases of escheats, viii. 15. 
 
 seas and navigable rivers, viii. 18. 
 swans and royal fish, viii. 24. 
 ports and havens, viii. 25. 
 beacons and lighthouses, viii. 33. 
 wrecks, viii. 34. 
 
 Vol. X.— 88 3 N
 
 698 GENERAL INDEX. 
 
 Prerogative of king in coins, viii. 37. 
 
 mines, viii. 37. 
 derelict goods, viii. 41. 
 fines and forfeitures, viii. 44. 
 over persons of his subjects, viii. 45. 
 as the fountain of justice, viii. 55. 
 in ecclesiastical matters, viii. 5G. 
 creating offices, viii. 60. 
 making war or peace, viii. 62. 
 as parens patrice, viii. 65. 
 in granting dispensations, viii. 66. 
 pardons, viii. 66. 
 court, what, ii. 719. 
 Prescription, limit of, vi. 364. 
 
 non decimando, what, x. 63. 
 Present demise, what amounts to a, v. 608. 
 Presentation to the livings of papists, when to he made, x. 107. 
 
 to whom to he made, x. 109. 
 how the right of, may be prevented, x. 108. 
 proceedings in equity, relating to, x. 109. 
 how right of, may be divested, x. 110. 
 Presentment of a grand jury, what, v. 48. 
 
 is traversable, v. 48. 
 not libellous, vi. 348. 
 by churchwardens, what, ii. 244. 
 of a bill, what, vi. 821. 
 
 when to be made, vi. 821. 
 to surviving partner, effect of, vi. 819. 
 Press soldiers, king may, viii. 63. 
 Presumption of payment, when, vii. 275. 
 
 destroyed by an admission within twenty years, vii. 275. 
 payment of interest, vii. 275. 
 endorsement of credit by obligee, vii. 275. 
 showing inability of debtor, vii. 275. 
 insolvency of debtor, vii. 275. 
 the fact that parties are near relations, vii. 276, 
 the absence of the debtor, vii. 276. 
 continued absence of creditor, vii. 276. 
 Presumption, what, iii. 617. 
 
 division of, iii. 617, 618. 
 from lapse of time, iii. 621. 
 of life, what, iii. 622. 
 death, what, iii. 622. 
 innocence, what, iii. 625. 
 Presumptive payment of a legacy, what, vi. 306. See Payment. 
 Pretences, effect of false, iv. 381. 
 Pretender, offence of corresponding with the, ix. 416. 
 Priest, who takes under a becpiest to a, vi. 190. 
 
 marriage before a, when good, vi. 463. 
 Prima tonsurd, ejectment lies for, iii. 272. 
 Prvmwm decretum, effect of, ii. 747. 
 
 Principal, money, may be spent in education of a legatee, when, vi. 323. 
 chief, agents and factors, vi. 557. 
 
 when bound by their agents, vi. 560, 561. 
 responsible for agent's acts, vi. 564. 
 not, vi. 565. 
 may sue on note to agent, vi. 835. 
 and surety, liability of, vii. 257. 
 in trespass, who are, ix. 499. 
 process of outlawry against, vii. 334. 
 Printers, when they may be attached for contempt, i. 471. 
 Printing, grants of liberty of, viii. 141. 
 Priority, what mortgage has a, vii. 129, 133. 
 
 when two mortgages an- given simultaneously, neither has a, vii. 133. 
 redemption will be decreed according to the, of mortgagees, vii. 156. 
 Priority of execution, effect of, iii. 705 ; viii. 707. 
 Prisagi\ what ix. 118.
 
 GENERAL INDEX. 699 
 
 Prisage, wines liable to duty, ix. 123. 
 Prison, what, iv. 463. See Gaol and Jail. 
 breaking, what, iv. 487. 
 
 when felony, iv. 179, 187. 
 to what, offenders may be committed, ii. 250. 
 books, when evidence, iii. 580. 
 Prisoner, when regularly committed, iii. 392. 
 how to be kept, iii. 398 ; iv. 483. 
 at whose charge to be carried to prison, iv. 483. 
 when to pay the charge of being taken to prison, ii. 258. 
 how discharged, ii. 259. 
 
 disposed of on a habeas corpus, iv. 589. 
 slave considered a, vi. 389. 
 
 act of limitations does not run against a, vi. 389. 
 Private property can be taken only for public use, ix. 230. 
 statutes, what, ix. 230. 
 
 effect of, ix. 231. 
 how pleaded, ix. 261. 
 bills, what, ix. 231. 
 Privies in blood, may avoid acts of non-compos, v. 27. 
 
 to a fine, when barred, iv. 262. 
 Privilege, what, viii. 158. 
 
 who entitled to, viii. 158, 173. 
 what officers entitled to, viii. 164. 
 allowed to persons attending court, viii. 168. 
 sheriff not bound to take notice of, viii. 169. 
 in what cases allowed, viii. 172, 187. 
 how claimed, viii. 174. 
 allowed, viii. 174. 
 pleaded, viii. 174. 
 persons entitled to, how to sue and be sued, viii. 180. 
 whether there can be a privilege against, viii. 181. 
 of peers, viii. 183. 
 
 members of parliament, viii. 183, 187. 
 Congress, viii. 183. 
 Assembly, viii. 183. 
 state convention, viii. 183. 
 servants of members of parliament, viii. 185. 
 foreign ministers, viii. 187. 
 ambassador and his servants, viii. 187. 
 attorneys, i. 505. 
 commencement of, viii. 190. 
 how to be taken advantage of, viii. 193. 
 what is a breach of, viii. 196. 
 
 proceedings in court by and against persons entitled to, viii. 197. 
 ought to be pleaded in abatement, i. 5. 
 
 effect of defendant's, to save the bar of the act of limitations, vi. 395. 
 Privileged persons, when execution may issue against, iii. 721. 
 communications, what, vi. 344. 
 
 not libellous, vi. 343, 344, 
 Privity of contract, what required in actions of assumpsit, i. 402. 
 Privy seal, how awarded, viii. 53. 
 
 verdict, what, x. 308. 
 Prize court, what, ii. 734. 
 
 when property is changed by, ii. 745. 
 suits are of admiralty jurisdiction, ii. 815. 
 Probable cause to justify a seizure, what, viii. 30. 
 what is, viii. 105. 
 
 consequence of seizing goods without, viii. 105. 
 no warrant ought to be issued without, ii. 253. 
 Probate of wills, to whom it belongs, iv. 43. 
 
 when granted in peculiar jurisdiction, iv. 49. 
 by king, iv. 45. 
 
 archbishop, iv. 45. 
 lords of manors, iv. 49. 
 what executor may do before, iv. 63.
 
 700 GENERAL INDEX. 
 
 Probate of wills, of soldiers, how made, ix. 191. 
 Probi et legales Jiomines, who are, vi. 311. 
 Proceedings at law, when restrained by injunction, v. 203. 
 form of, in the Court of Exchequer, ii. 705. 
 constable's court, ii. 709. 
 justices of oyer and terminer, ii. 712. 
 sheriff's tourn, ii. 773. 
 in cases of insurance, vi. 739. 
 Process, what, i. 227. 
 
 jury, what, v. 314. 
 
 when amendable, i. 243. 
 several kinds of, v. 316. 
 by whom to be executed, v. 318. 
 when returnable, v. 327. 
 by proviso, what, v. 332. 
 in United States courts, form of, ii. 822. 
 actions of waste, form of, x. 451. 
 Prochein ami, when liable for costs, v. 145. 
 
 may call guardian to account, v. 145. 
 infant may appear by, v. 148. 
 must be appointed before suing process, v. 149. 
 courts will inquire into motives of, v. 152. 
 may appear for infant who is married, ii. 61. 
 make partition, ii. 362. 
 Proclamation, effect of, ix. 217. 
 
 English king's, viii. 79. 
 by whom to be made, viii. 80. 
 when unlawful, viii. 80. 
 Proctor is not an officer, vi. 426. 
 Proditorie, when required in an indictment, v. 68. 
 Profert in curia, when proper, ix. 337. 
 
 dispensed with, vii. 624. 
 not required, vii. 624, 625. 
 
 of lost bond, vii. 627. 
 of deed, when required, iii. 585. 
 
 not required, iii. 586, 592. 
 consequences of, ix. 338. 
 how to be assigned, vii. 625, 261. 
 of letters of administration, when required, iv. 131. 
 Profits are not considered an advancement, iv. 98. 
 
 receipt of partnership, makes one liable as a partner, vi. 576. 
 difference between gross earnings and, vi. 579. 
 may be insured, vi. 640. 
 a prendre, what, viii. 23. 
 Progression, what, x. 533. 
 Prohibited goods, offence of smuggling, ix. 134. 
 
 what are, ix. 135. 
 Prohibition, what, viii. 206. 
 
 object of, viii. 207. 
 
 what courts may grant writs of, viii. 207. 
 
 King's Bench, viii. 207. 
 Chancery, viii. 207. 
 Supreme Court, viii. 209. 
 Circuit Court, viii. 209. 
 when granting a writ of, is discretionary, viii. 209. 
 who may demand a writ of, viii. 210. 
 who may be joined in a writ of, viii. 211. 
 costs in cases of, viii. 217, 219. 
 when granted absolutely, viii. 221. 
 
 quousqvc, viii. 221. 
 form of declaration in, viii. 222. 
 number of, viii. 223. 
 time when to be granted, viii. 224. 
 to what courts awarded, viii. 22('». 
 
 inferior temporal courts, when granted, viii. 230. 
 spiritual court, when granted, viii. 233 ; x. 79.
 
 GENERAL INDEX. 701 
 
 Prohibition to spiritual court, when they meddle with a temporal matter, viii. 233. 
 
 determine on matter of freehold, viii. 236. 
 criminal offence, viii. 237. 
 on acts of parliament, viii. 238. 
 have concurrent jurisdiction, viii. 239. 
 offence of disobeying a, viii. 244. 
 against churchwardens, when granted, ii. 247. 
 lies to a suit in spiritual court, when, ix. 103. 
 
 for subtraction of tithes, x. 79. 
 Prolixity, effect of, vii. 591. 
 
 rules as to, vii. 591. 
 Promise by executor to pay testator's debt, effect of, i. 172 ; iv. 123. 
 when binding, i. 172. 
 
 to perform covenant of testator, effect of, i. 417. 
 heir to pay ancestor's debt, effect of, iv. 628. 
 to pay the debt of another, when valid, i. 173. 
 of infant, a good consideration, i. 424. See Infancy, Infant. 
 made upon consideration of marriage, good, i. 176. 
 conditional, hpw fulfilled, i. 415. 
 must be certain, i. 415, 416. 
 
 mutual and simultaneous, i. 420. 
 of bankrupt, effect of, i. 808. 
 effect of, on act of limitations, vi. 384. 
 to accept a bill, effect of, vi. 800, 806. 
 Promissory notes, what, vi. 769. 
 
 effect of loss of, vi. 792. 
 Promulgation of a statute, how made, ix. 218. 
 Properties of an estate in use, x. 113. 
 
 it is alienable at common law, x. 113. 
 by statute, when, x. 115. 
 Property, when properly assigned, i. 386. 
 
 of wife held in trust, how managed, ii. 71. 
 
 effect of this word in a will to pass a fee, vi. 23. 
 
 what passes by a bequest of, vi. 193. 
 
 in goods changed, when owner has recovered value in an action, viii. 292. 
 
 bond, when to be given, viii. 539. 
 
 liability of sureties on, viii. 539. 
 when changed by a trespass, ix. 548. 
 Prostitution, no action lies for a house let for the purpose of, viii. 507. 
 Protest, necessity of, vi. 817. 
 
 when to be made, vi. 819. 
 legislative, what, ix. 216. 
 Protestation, effect of, vii. 532. 
 Provision for wife, when secured to her, ii. 69. 
 Proviso, what, ii. 281, 554. 
 process by, v. 332. 
 Provocation, when evidence of, may be given, i. 378. 
 Proxies, when they cannot be given, ii. 674. 
 Prynne's parliamentary writs, character of, ii. 635. 
 Puberty, what, ii. 80 ; v. 103. 
 Public bills, what, ix. 231. 
 
 meeting, when resolutions of, are libellous, vi. 352, 357. 
 money, how to be drawn from the treasury, viii. 116. 
 officer, when a clergyman is a, vi. 463. 
 policy, what contracts are void as, i. 423. 
 statutes, what, ix. 230. 
 
 effect of, ix. 231. 
 how pleaded, ix. 260. 
 Publication of a libel, evidence of, vi. 354. 
 
 sending letter to person libelled, vi. 357. 
 possession of merely, not evidence of, vi. 357. 
 place of, vi. 358, 359. 
 
 delivering petition to members of parliament is not a, vi. 358 
 slander, what required, ix. 60. 
 place of, ix. 61. 
 
 3n2
 
 702 GENERAL INDEX. 
 
 Publication of a slander, occasion of, ix. 63. 
 
 intention of, ix. 64. 
 statute, how made, ix. 218. 
 deposition, effect of, iii. 526. 
 will, what, x. 490. 
 
 what, is evidence of, x. 502. 
 Publisher of a libel, how far guilty, vi. 354. 
 responsibility of, vi. 355. 
 member of parliament liable as, vi. 358. 
 when he may be attached for contempt, i. 471. 
 Puffing at auction, when fraudulent, iv. 387. 
 Pulpit cannot be sold under execution, when, iii. 702. 
 Punishment for a nuisance, what, vii. 234. 
 of praemunire, what, vii. 693. 
 libeller, what, vi. 359. 
 simony, what, ix. 7, 22. 
 
 of incumbent, ix. 22. 
 patron, ix. 24. 
 
 ordinary, ix. 24. » 
 
 sodomy, ix. 159. 
 treason, what, ix. 434. 
 Purchasers, what conveyances are void as to, iv. 401. 
 
 when entitled to rent, viii. 521. 
 Purport, meaning of, iv. 372. 
 
 Purview, what, ix. 243. ## 
 
 Putative father, when entitled to custody of bastard child, n. 89, 101. 
 Putting off a trial, what are sufficient reasons for, ix. 575. 
 
 Q. 
 
 Quakers, validity of marriages of, vi. 469.- 
 Qualifications of coroner, ii. 425. 
 
 members of corporations, ii. 455. 
 electors, of members of parliament, ii. 657. 
 members of parliament, ii. 661. _ _ 
 
 Quality of thing injured must appear in the declaration in an action of trespass, ix. 50/ . 
 Quantity, bequest of a, is a general legacy, vi. 291. 
 
 of things injured must appear in the declaration in an action of trespass, 
 ix. 668. 
 Quantum of damages, jury may give, iii. 60. 
 Quarantine, what, iii. 194. 
 
 Quare, effect of this word in a declaration, vii. 511. 
 Quarry, right of tenant to work a, v. 612. 
 Quartering soldiers, how to be made, ix. 169. 
 Quashing indictment, for what cause, v. 94. 
 
 effect of, v. 96. 
 Quasi copyholder, who is, ii. 378, 379. 
 Qua est eadem effect of this averment, vii. 570. 
 Quean, meaning of, ix. 106. 
 
 Question, interest in, does not disqualify witness, iii. 490, 495. 
 Qui lam, actions, when they lie, i. 88. 
 form of, i. 89. 
 
 in what courts to be brought, i. 91. 
 pleas in, i. 93. 
 judgment on, i. 97. 
 costs in, i. 98 ; ii. 522,524. 
 Quiet enjoyment, covenant for, effect of, ii. 585, 587. 
 
 breach of, ii. 595. 
 Quinto exactus, effect of, vii. 340. 
 
 when to be issued, vii. 354. 
 return of, vii, 358. 
 Quo warranto, when information in nature of, will lie, v. 173. 
 Quod partitio fiat, judgment of, v. 292. 
 
 cum, effect of, ia declaration, vii. 510, 511. 
 Quorum, wha ii. 469
 
 GENERAL INDEX. 703 
 
 R. 
 
 Race, is a game, when, iv. 461. 
 
 Railway, when not a nuisance, vii. 228. 
 
 Rape, appeal of, i. 293. 
 
 Rascal, not slander to call a man a, ix. 29. 
 
 Rasure in writing, effect of, iii. 601. 
 
 Rates relating to the church, power of churchwardens in making, ii. 243. 
 
 Rats, loss by, a peril of the sea, vi. 662. 
 
 Real actions, limitation of, vi. 364. 
 
 covenant, by whom to be performed, ii. 564. 
 estate of wife, how far vested in the husband, ii. 16. 
 trespass to, ix. 458, 480. 
 action of trespass for injuries to, ix. 496. 
 statutes, what, ix. 212. 
 Reasonable, what is, ii. 408. 
 
 surety, what, viii. 712. 
 time, what, vi. 682. 
 Re-assurance, when to be made, vi. 711. 
 Rebel, when treason to correspond with, ix. 416. 
 Rebellion does not prevent the running of the act of limitation, vi. 3! 
 Receiver will be appointed, when, v. 213. 
 Reciprocity is observed in some states as the effect of discharges under the insolvent 
 
 laws, i. 550. 
 Receipt, effect of, iii. 604 ; viii. 249. 
 Recital, effect of, ii. 311. 
 
 in an assignment of a mortgage, vii. 170. 
 when established by a verdict, x. 361. 
 of a statute in an indictment, effect of, v. 87. 
 Recognisance, nature of, viii. 605. 
 form of, i. 596. 
 how forfeited, i. 597 ; ix. 309. 
 for keeping the peace, how forfeited, ix. 303. 
 
 discharged, ix. 305. 
 of good behaviour, how forfeited, ix. 309. 
 when execution may issue on, iii. 669. 
 who shall have execution on, iii. 671. 
 when to be paid by executor, iv. 108. 
 Recommend, effect of this word in a will, vi. 166. _ 
 Recommendation, effect of words of, in a devise, vi. 166. 
 Record, how removed from an inferior court, i. 255. 
 when defaced, how amended, i. 259. 
 
 proceedings under the bankrupt act of 1841, to be deemed matters of, i. 814. 
 in the inferior court must be sent with certiorari, ii. 170. 
 when considered as removed, ii. 181. 
 how proved, iii. 535. 
 conclusiveness of, iv. 279. 
 
 form of, in cases of forcible entry and detainer, iv. 328. 
 trial by, what, ix. 556. 
 Recording deed, effect of, iv. 212. 
 
 which has not been delivered, effect of, iv. 212. 
 Recovery, what is, iv. 288. 
 
 who may suffer a, iv. 290. 
 of what may be, iv. 292. 
 what estates are barred by, iv. 293. 
 when void, iv. 314. 
 how avoided, iv. 314. 
 Rectory, ejectment lies for a, iii. 273. 
 Reddendo, effect of, ii. 556. 
 Redemption, right of, vii. 62. 
 
 who has the right of, vii. 62, 79. 
 
 what fund liable to, vii. 67. 
 
 who entitled to money paid on, vii. 84. 
 
 precedency in right of, vii. 89. 
 whether purchaser of rights of another is entitled to, vii. 104. 
 person claiming must do equity, vii. 134.
 
 704 GENERAL INDEX. 
 
 Redemption, manner of, vii. 151. 
 
 of pledge, "when it may be made, i. 610, 613, 614. 
 by assignees of bankrupt, i. 813. 
 Re-entry, how to be made, viii. 157. 
 
 pre-requisites to a, viii. 481, 482. 
 clause of, viii. 496. 
 right of, how exercised, iii. 287, 288. 
 for breach of condition, when good, v. 670. 
 what is a forfeiture to entitle to a, ii. 307. 
 when it may be made, ii. 312. 
 effect of, ii. 316. 
 Referees, attachment for contempt against, i. 471. 
 Reform, meaning of, v. 313. 
 
 Refreshments, when a verdict will be rendered void because the jury took, x. 363. 
 Refunding of legacy, when to be made, vi. 298. 
 Register of births, &c, when evidence, iii. 573, 574. 
 Registry of a mortgage, effect of, vii. 129, 132, 133. 
 
 equivalent to notice, vii. 132. 
 takes effect according to priority, vii. 133. 
 assignment of a mortgage, effect of, vii. 132. 
 a ship, effect of, vi. 599. 
 Regrator, charge of being a, actionable, ix. 42. 
 Regularity of proceedings of corporation, ii. 461. 
 Rejoinder, what, vi. 462. 
 Relation, to what time bail shall have, i. 563. 
 of act of bankruptcy, i. 746. 
 execution, what, iii. 725. 
 Relations, effect of devise to, vi. 148, 186, 187. 
 Release, what, viii. 245. 
 
 kinds of, viii. 245. 
 construction of, viii. 245, 289. 
 express, viii. 246. 
 
 form of, viii. 246. 
 
 covenant may operate as a, viii. 248. 
 to one of several debtors, effect of, viii. 249. 
 of part of a ground-rent, effect of, viii. 250, 292, 293. 
 how far a disposition by will may operate as a, viii. 251. 
 by operation of law, how created, viii. 253. 
 the appointment of a debtor to be executor, how far a, viii. 255. 
 marriage of obligor, when a, viii. 256. 
 of lands, how they inure, viii. 257. 
 
 by way Emitter le estate, viii. 257. 
 
 mi tier le droit, viii. 260. • 
 
 extinguishment, viii. 262. 
 enlargement, viii. 264. 
 what interest passes by the, viii. 267. 
 who are capable to make a, viii. 269. 
 one of two partners may, viii. 270, 288. 
 one of two trustees cannot, viii. 270. 
 cannot extinguish future rights, viii. 271. 
 assignor of a bond cannot make a, viii. 271, 272. 
 by executors and administrators, viii. 273. 
 
 husband of wife's interest, when valid, viii. 274. 
 to whose benefit it inures, viii. 276. 
 
 one of several debtors, effect of, viii. 276. 
 of dower, when valid, viii. 281. 
 when restrained to a special purpose, viii. 288. 
 recital in a deed, how far a, viii. 291. 
 what interest is given up by a, viii. 292. 
 may be conditional, viii. 292. 
 
 without consideration and not under seal, is void, viii. 293. 
 its effect to cure error, iii. 377, 380. 
 in a cognovit, iii. 380. 
 Relief, origin of, iv. 656. 
 
 from awards, when granted, i. 662. 
 Religion, offences against, how punished, iv. 636.
 
 
 GENERAL INDEX. 705 
 
 Religion, offences against, by statute, iv. 637. 
 
 profaning Lord's day, iv. 637. 
 swearing, iv. 641. k 
 
 drunkenness, iv. 641. 
 reviling the sacrament, iv. 641. 
 common prayer, iv. 641. 
 Reliques, papists' houses may be searched for, vii. 375. 
 Remainder after a bequest to an unborn child, void, vi. 119. 
 over, when valid, vi. 198. 
 
 too remote, vi. 198. 
 Remainders and reversions, origin of, viii. 294. 
 
 of what things there may be, viii. 297. 
 
 cannot be limited in chattels, viii. 300. 
 
 of personal property may be limited after a iife-estate, viii. 301. 
 
 by what words created, viii. 302. 
 
 difference between executory devises and contingent, viii. 304. 
 
 designation of the person to take in, viii. 304. 
 
 kinds of, viii. 315. 
 
 vested, viii. 315. 
 contingent, viii. 315. 
 which arise on conditions, viii. 380. 
 vested must be supported by particular estate, viii. 406. 
 when subject to the acts of particular tenant, viii. 442. 
 accounted but one with the particular estate, viii. 445. 
 how to be executed, x. 157. 
 defeated, x. 158. 
 
 where there is no power of revocation, x. 158. 
 where there is an express power, x. 160. 
 suspended, revived, or extinguished, x. 167. 
 Remedial statute, how construed, ix. 251. 
 Remedies, in equity, i. 158. See Specific Performance. 
 for the recovery of an annuity, i. 273. 
 by the lord of the soil against commoners, ii. 266. 
 against lord of the soil by commoners, ii. 268. 
 other commoners, ii. 269. 
 strangers, ii. 270. 
 for fine of copyholder, ii. 409. 
 by joint-tenants, v. 299 ; vii. 257. 
 
 tenants in common, v. 299. 
 against joint-tenants, v. 299. 
 
 tenants in common, v. 299. 
 by joint-tenants against each other, v. 304. 
 
 joint obligors against each other, vii. 257. 
 on bills, vi. 834. 
 
 upon a false return to a mandamus, vi. 451. 
 Remedy to recover rent by distress, viii. 492. 
 
 writ of annuity, viii. 495. 
 assize, viii. 496. 
 re-entry, viii. 496. 
 nomine pwnse, viii. 498. 
 action, viii. 499. 
 
 for use and occupation, viii. 503. 
 payment to the sheriff, viii. 509. 
 Remission of penalty, effect of, viii. 67. 
 Remote, when devise is too, vi. 118, 198. 
 Removal of suits into Exchequer, viii. 103. 
 
 Circuit Courts of the United States, viii. 105; u. 810. 
 from office, when it may be, vii. 311. 
 Renewal of lease, effect of covenant for a, v. 676. 
 Rent, history of, viii. 447. 
 kinds of, viii. 450. 
 service, viii. 450. 
 charge, viii. 452. 
 seek, viii. 453. 
 out of what things, viii. 454. 
 ground, what, viii. 450. 
 Vol. X.— 89
 
 706 GENERAL INDEX. 
 
 Rent, release of part of ground, effect of, viii. 250, 292, 293. 
 service, how reserved, viii. 457. 
 how reserved, viii. 459. 
 
 by operation of law, viii. 459. 
 agreement, viii. 459. 
 
 express, viii. 459. 
 implied, viii. 459, 462. 
 rules respecting the creation of, viii. 460. 
 
 1. must not be inconsistent with the grant, viii. 460. 
 
 2. must be productive to the tenant, viii. 460. 
 
 3. may be in the disjunctive, viii. 460. 
 
 4. must have a time of payment, viii. 460. 
 
 5. cannot be reserved to a stranger, viii. 460, 470. 
 
 6. may be reserved generally, viii. 460, 470. 
 
 7. ought to be to grantor and his heirs, viii. 461. 
 
 8. how construed, viii. 461. 
 
 9. the reservation follows the nature of the interest granted, viii. 461. 
 
 10. it will follow the nature of the estate granted, viii. 462. 
 
 11. rent need not be absolutely reserved, viii. 462. 
 
 12. though the demise be entire, the reserved, may be split into parcels, viii. 
 
 462. 
 
 13. when lands and personal chattels are let together, the whole rent is 
 
 payable out of the land, viii. 462. 
 
 14. after tenure has been created, it cannot be changed, viii. 462. 
 when payable, viii. 460, 466. 
 
 tender of, viii. 469. See Tender. 
 
 may be payable in advance, viii. 470. 
 
 to whom, may be reserved, viii. 470. 
 
 cannot be apportioned between personal representative and heir, viii. 472, 476. 
 
 when to commence, viii. 472. 
 
 continuance of, viii. 473. 
 
 rights of heir to, viii. 473, 476. 
 
 executorto, viii. 473, 476. 
 
 vendor to, viii. 473. 
 
 vendee to, viii. 473. 
 
 tenant in tail, to, viii. 479. 
 
 remainder man, to, viii. 479. 
 apportionment of, viii. 480. 
 recovery of, viii. 481. 
 lemand of, viii. 481. 
 
 time of, viii. 486. 
 place of, viii. 486. 
 power of re-entry for, viii. 483. 
 remedies to recover, viii. 492. See Remedy. 
 recovery of, by distress, viii. 492. 
 payment of, to sheriff, viii. 509, 510. 
 how discharged, viii. 512. 
 suspended, viii. 514. 
 charge, what, viii. 517. 
 purchaser entitled to what, viii. 521. 
 suspension of, viii. 523. 
 extinguishment of, viii. 523 ; iv. 141. 
 what can be claimed from bankrupt's estate, i. 695. 
 non-payment of, forfeiture of a copyhold, ii. 414. 
 when assignee liable for, ii. 566, 571. 
 
 assignee not liable for, till he takes possession, ii. 570, 571. 
 for what a distress may be made, iii. 176. 
 when it belongs to the heirs or executors, iv. 81, 84, 631. 
 
 heir is not responsible to creditors for, iv. 623. 
 to be reserved in ecclesiastical leases, v. 509. 
 must be payable to successors, v. 509. 
 amount, of, v. 509. 
 
 reservation of, how made, v. 511, 515. 
 effect of a devise of, vi. 82. 
 when mortgagee accountable for, vii. 180. 
 ftm.70y, not now used, vii. 443.
 
 GENERAL INDEX. 70' 
 
 Repairs, covenant to make, effect of, ii. 586. 
 
 of tenancy, in common or joint tenancy, how made, v. 306. 
 when tenant hound to allow, v. 708. 
 of trust estate, how to be borne, x. 253. 
 when mortgagee allowed expenses for, vii. 1G3. 
 mortgagee bound to make, vii. 163, 180. 
 Repeal of act of parliament, effect on covenants, ii. 590. 
 a statute, effect of, ix. 225. 
 letters of administration, effect of, iv. 61. 
 Repeating slanderous words, when actionable, ix. 81. 
 Replevin, division of the subject, viii. 524. 
 nature of, viii. 525, 527. 
 defined, viii. 525. 
 
 for what, may be brought, viii. 525. 
 both parties are actors in, viii. 526. 
 is a local action, viii. 527. 
 kinds of, viii. 527. 
 pledges in, viii. 532. 
 bond, form of, viii. 539. 
 
 1. original writ of, viii. 540. 
 
 2. withernam, viii. 541. 
 
 3. second deliverance, viii. 513. 
 
 4. de proprietate probanda, viii. 545. 
 
 5. de retorno habendo, viii. 546. 
 
 6. return irreplevisable, viii. 547. 
 
 7. how sheriff must execute process of, viii. 547. 
 for what a, lies, viii. 549. 
 
 lies against whom, viii. 550. 
 declaration in, viii. 553. 
 pleas in, viii. 556. 
 avowries in, viii. 558. 
 judgment in, viii. 575. 
 there can be no set-off in, viii. 641. 
 costs in, ii. 525. 
 Repleader, what, vii. 657. 
 
 how awarded, vii. 657. 
 in what cases awarded, vii. 658. 
 at what time awarded, vii. 661. 
 not allowed after a discontinuance, vii. 662. 
 Replication, what, vii. 462. 
 
 in trespass, ix. 530. 
 Report of proceedings in court not libellous, vi. 349. 
 
 when coloured, are libellous, vi. 349. 
 trial by a judge, when required, ix. 586. 
 Representation in insurance, what, vi. 725. 
 Reprisals, when allowed, ii. 749. 
 Republication of a will, what, x. 504. 
 
 how made, x. 504. 
 parol, when sufficient, x. 505. 
 not, x. 505. 
 Repugnancy, when and when not cured by verdict, i. 249. 
 effect of, vii. 601. 
 
 words may be slanderous notwithstanding their, ix. 80. 
 in different statutes, effect of, ix. 227. 
 Repugnant condition, what, ii. 301. 
 Reputation when evidence, iii. 633, 634. 
 
 of marriage, vi. 460, 462. 
 Request, effect of this word in a will, vi. 166. 
 Res gestae, when evidence, iii. 641. 
 
 judicata, effect of, vii. 639. See Former recovery. 
 Rescue, what, viii. 580. 
 
 offence of, viii. 582. 
 when justified, viii. 581. 
 return of a, viii. 589. See Return. 
 Reservation, effect of, iv. 522. 
 
 of highways, effect of, iv. 537.
 
 708 GENERAL INDEX. 
 
 Reservation of rent, by operation of law, viii. 459. 
 
 express agreement, viii. 459, 460. 
 implied agreement, viii. 449, 462. 
 must be to the grantor, viii. 460. 
 
 follow the nature of the estate, viii. 462, 475. 
 
 interest, viii. 461. 
 may be general, viii. 460. 
 
 split, viii. 462. 
 no technical expressions requisite to, viii. 462. 
 out of what a, may be, viii. 470. 
 Residuary bequest, what is a, vi. 192, 302, 303. 
 
 carries after-acquired personal property, vi. 304, 
 what passes under a, vi. 304. 
 Residue, bequest of, vi. 302. 
 
 what passes by a bequest of, vi. 303, 304. 
 never considered a specific legacy, vi. 305. 
 Resignation cannot be made by parson on condition, ii. 284. 
 Resisting revenue officer, penalty for, ix. 149. 
 Resolution of house of parliament, effect of, iii. 554. 
 Respondentia, what, vi. 749. 
 
 lender takes the risk of loss in cases of, vi. 753. 
 Restitution, when allowed, iii. 390. 
 
 in forcihle entry and detainer, iv. 331, 334. 
 what is a bar to such, iv. 332. 
 Restraint of trade, a by-law in, is void, ii. 143. 
 
 princes, what, vi. 666. 
 Restraints to which papists are subject, vii. 373. 
 Restriction of alienation, when void, viii. 393. 
 Rests, when the master may make annual, vii. 170. 
 Resulting trust not liable to execution, iii. 702. 
 uses, what, x. 176. 
 trust, what, x. 199. 
 
 when one* buys land, and the money is paid by another, x. 208. 
 must arise at the time of making deed, x. 208. 
 cannot be against intention of the parties, x. 208. 
 Retainer of a legacy, when to be made, vi. 306. 
 Retorno habendo, writ of, viii. 546. 
 Retraxit, what, vii. 214. 
 
 difference between nolli prosequi and, vii. 215. 
 when to be entered, vii. 215. 
 when a nonsuit amounts to a, vii. 215. 
 effect of, as to one of several joint-obligors, vii. 255. 
 Retrospective laws, effect of, ix. 221. 
 Return to certiorari, how made, ii. 179. 
 
 of execution, when to be made, iii. 686, 688. 
 
 effect of, iii. 688. 
 effect of debtor's, vi. 392. 
 to a mandamus, how made, vi. 447. 
 
 traversing of, vi. 450. 
 remedy for a false, vi. 451. 
 of premium, when required, vi. 736. 
 habeas corpus, by -whom to be made, iv. 581. 
 what matters, iv. 584. 
 when sufficient, iv. 585. 
 cannot be contradicted, when, iv. 587. 
 when defect of, may be amended, iv. 588. 
 king may command his subjects to, viii. 53. 
 form of a, in rescous, viii. 589. 
 
 when traversable, viii. 592. 
 to a scire facias, form of, viii. 621, 622. 
 irreplevisable, what, viii. 547. 
 Returning officers, their duty, ii. 667. 
 Revenue, what, viii. 118. 
 Reversal of judgment for part and affirmed for part, iii. 383. 
 
 in a criminal case is for the whole, iii. 386. 
 Reverter, what, viii. 449.
 
 GENERAL INDEX. 709 
 
 Revival of a debt, what, vi. 399. 
 
 statute, what, ix. 224. 
 
 is a constructive, ix. 225. 
 Revocation of submission, when it may be made, i. 306. 
 authority, when it takes place, i. 529. 
 a will, what, x. 541. 
 is express or implied, x. 542. 
 effect on a former will, x. 542. 
 by cancelling, what, x. 541, 546. 
 codicil, effect of, x. 552. 
 subsequent devise, x. 555. 
 change of estate, x. 557. 
 marriage, x. 568. 
 Reward for executing an office, when lawful, vii. 324. 
 Rhodian laws, what, ii. 744. 
 
 force of, vi. 623. 
 Riens jjassa par fa fait, effect of plea of, iii. 590. 
 
 inarrere, when a good plea, vii. 531 ; viii. 558, 574. 
 Rights of bankrupt, when they pass to his assignees, i. 722, 805. 
 administrators de bonis non, iv. 24. 
 freehold, costs when the, come in question, ii. 486. 
 husband over real estate of wife, ii. 14. 
 
 personal estate of wife, ii. 15. 
 wife's choses in action, ii. 21. 
 
 property accruing to her during coverture, 27. 
 cestui que trust, x. 258. 
 Riot act, punishments under the, iv. 713. 
 
 liability of the hundred under the, iv. 713. 
 justices bound to assist in suppressing, v. 425. 
 Ripa, what, viii. 28. 
 
 Riparian owners, rights of, vii. 453, 455 ; viii. 20, 24. 
 Risk, commencement of, vi. 647, 648. 
 
 duration of, vi. 647. 
 River, what passes by a grant of, iv. 530. 
 is a navigable, vii. 453. 
 
 public nuisance in a, vii. 228. 
 channels of, belong to the king, viii. 14. 
 rights of the king over, viii. 18. 
 Robbery, what, to make hundred liable, iv. 697. 
 
 when to be committed to make hundred liable, iv. 698. 
 what shall be liable for, iv. 699. 
 who to bring action against the hundred, iv. 700. 
 when notice of, is to be given to the hundred, iv. 702. 
 oath of, when to be made to bind the hundred, iv. 704. 
 no excuse to a common carrier, ii. 154. 
 Rogue, it is not slander to call a man a, ix. 29, 43, 46, 48. 
 Rofl, when attorney may be struck off the, i. 509. 
 Rolls, what is a statute, ii. 673. 
 lords', ii. 673. 
 of parliament, ii. 673. 
 
 court baron, when evidence, iii. 573. 
 Rome, it is treason to extol the power of the see of, ix. 409. 
 
 reconcile any person to the see of, ix. 412. 
 Royal franchise of Ely, ii. 761. 
 
 assent to statutes, how given, ii. 671. 
 Rule in Shelly's case, vi. 43. 
 Rules of court, when they may be made, ii. 826. 
 
 construction of statutes, ix. 238. 
 Running with the land, covenants when, ii. 567. 
 
 of statute of limitations, effect of, vi. 368. 
 Ruralis, meaning of, vi. 410. 
 Sabbatarians, marriage of, vi. 462. 
 
 s. 
 
 Sacrament, offence of reviling the, iv. 611. 
 fine for not taking the, vii. 375. 
 
 30
 
 710 GENERAL INDEX. 
 
 Saevitia, when a ground for divorce, vi. 500. 
 Sale, when complete, i. 414. 
 
 on credit, when assumpsit will lie on, i. 414. 
 under execution, how to be conducted, iii. 704. 
 in market overt, effect of, iv. 160. 
 difference between a mortgage and a, vii. 39. 
 Salvage, what, vi. 679. 
 
 when it may be claimed, ii. 752. 
 to whom it belongs, ii. 751. 
 jurisdiction of D. C. in cases of, ii. 816. 
 Sanguino suo, effect of these words, vi. 15. 
 Sans number, what, ii. 265. 
 Satisfaction, what is, i. 54. 
 
 when a legacy shall be a, vi. 210, 213. 
 
 legacy given for a different interest, not a, vi. 211. 
 
 when a legacy is a free gift, it is not a, vi. 212. 
 
 debt is due on negotiable bill of exchange, a legacy is not a, vi. 222. 
 of portions, what is, vi. 235. 
 Scandalum magnatum, what, viii. 592 ; ix. 30. 
 
 who entitled to an action of, viii., 593. 
 for what it lies, viii. 593. 
 proceedings in, viii. 596. 
 School, offence of teaching, without conforming to the church, iv. 644. 
 Schoolmaster, when considered a trader, i. 800. 
 
 slander against a, ix. 52. 
 Scienter, effect of, ix. 506. 
 Scire facias, nature of, viii. 598. 
 form of, viii. 598. 
 requisites of, viii. 598. 
 
 when to be issued quo ad residuum, viii. 598. 
 when a proper remedy, viii. 599. 
 to revive judgments, viii. 600. 
 on recognisances and statutes, viii. 605. 
 letters patent, viii. 608. 
 franchises, viii. 609. 
 by and against executors, viii. 609. 
 
 administrators, viii. 609. 
 heirs, viii. 611. 
 terre-tenants, viii. 611. 
 husband and wife, viii. 614. 
 against bail, viii. 616. 
 
 several defendants, viii. 618. 
 form of writ of, viii. 619. 
 requisites of writ of, viii. 619. 
 no declaration requisite on, viii. 620. 
 
 when returnable, viii. 620. ^ 
 
 service of, viii. 621. 
 return to, viii. 622. 
 from what court to issue, viii. 622. 
 pleading to a, viii. 624. 
 will be quashed, when, viii. 628. 
 ad audiendum errores, iii. 349 
 when required, iii. 723. 
 in outlawry, when proper, vii. 367. 
 Scottish peers, number of, ii. 648. 
 Se defendendo, homicide, when justified, vii. 184. 
 
 what is, vii. 213. 
 Sea, prerogative of the king over the, viii. 18. 
 right of fishing- in, viii. 18. 
 shore, what, viii. 21. 
 
 jurisdiction over, vii. 446. 
 right to the, ix. 483. 
 risk, what, vi. 662. 
 wall, how to be repaired, ii. 785. 
 worthiness, what, vi. 701. 
 Seal, what, iv. 219.
 
 GENERAL INDEX. 711 
 
 Seal, requisite in a deed, iv. 219. 
 form of, iii. 585. 
 of courts, how proved, iii. 535. 
 torn off, effect of, iii. 603 ; vii. 256. 
 partner cannot bind his copartner by, vi. 581. 
 a writ is void, if it have no, viii. 690. 
 
 good with, though without a signature, viii. 690, 691. 
 Sealing required to make a bond, vii. 243. 
 to a will, when required, x. 490. 
 
 not, x. 490. 
 Seamen, who are, vi. 601. See Mariners. 
 Second deliverance, writ of, viii. 543. 
 
 when it may be had, viii. 543. 
 form of, viii. 543. 
 
 does not lie after judgment, viii. 544. 
 taken away, in what cases, viii. 544. 
 when a supersedeas, ix. 283. 
 bankruptcy, effect of, i. 814. 
 uses, what, x. 184. 
 Secret conveyance, when a fraud on marital rights, iv. 394. 
 Secretary of state may commit, i. 583, n. 
 Securities for money, what passes by a bequest of, vi. 195. 
 
 when avoided on the ground of usury, x. 285. 
 Security for cost, when required, ii. 537. 
 
 of non-residents, ii. 548. 
 
 insolvents, ii. 549. 
 in miscellaneous cases, ii. 549. 
 when required of tenant for life, vi. 198. 
 Seduction, whe maintain an action for, ix. 452, 453. 
 Seised, meaning of, x. 126. 
 
 Seisin, what, is sufficient to maintain an assize, i. 393. 
 covenant of, effect of, ii. 582, 583. 
 
 breach of, ii. 595. 
 of wife required to create a curtesy, iii. 11. 
 when not required, iii. 11. 
 
 in law, sufficient, iii. 11. 
 to begin and end, iii. 13. 
 husband, when required to create dower, iii. 207. 
 Seizure, what property is liable to, viii. 703. 
 Select men of a town may submit a matter to arbitration as agent* for the town. 
 
 i. 314. 
 Selling an office, offence of, vii. 296. 
 Seminisuo, effect of these words, vi. 15, 30. 
 Semper par atus cannot be pleaded after imparlance, vii. 521. 
 Senate, when a court, ii. 795. 
 
 organization of, ii. 776. 
 jurisdiction of, ii. 796. 
 Sentence of court martial, not libellous, vi. 344. 
 effect of foreign, vi. 733. 
 in admiralty, effect of, ii. 745. 
 Separate property of wife, how managed, ii. 71. 
 Separation of husband and wife, effect of, ii. 14, 48, 83. 
 Sequestration, nature of, viii. 628. 
 
 when introduced, viii. 629. 
 
 not granted upon petition, viii. 630. 
 
 when granted, viii. 630, 631. 
 
 against whom awarded, viii. 631. 
 
 to what places, viii. 632. 
 
 what estate is liable to, viii. 630. 
 
 copyhold lands, viii. 632. 
 real estate, viii. 632. 
 personal estate, viii. 632. 
 choses in action, viii. 632, 633. 
 effect of, viii. 633, 634. 
 when determined, viii. 638. 
 Sequestrators, powers and duties of, viii. 634.
 
 712 GENERAL INDEX. 
 
 Servant, who, vi. 500. See Apprentice, Master. 
 
 difference between apprentice and, vi. 501. 
 manner of hiring, vi. 501. 
 wages when recoverable, vi. 531. 
 
 not recoverable, vi. 531. 
 acts of, when deemed acts of master, vi. 533. 
 when master answerable for acts of, vi. 535. 
 answerable for his own acts, vi. 542. 
 to his master, vi. 544. 
 civilly, vi. 544. 
 criminally, vi. 545. 
 punishable by his master, when, vi. 549. 
 may justify defending his master, vi. 551. 
 who shall take under a legacy to, vi. 186. 
 
 giving character of, when a libel, vi. 344. # 
 
 when fraudulent acts of, affect master, iv. 383. 
 Service, by what, an estate may be holden, ix. 363. 
 how extinguished, ix. 364. 
 tenure by divine, what, ix. 371. 
 knight's, what, ix. 372. 
 Set-off, what, viii. 639. 
 
 difference between compensation and, viii. 639. 
 
 nature of, viii. 640. 
 
 the debt must be mutual to entitle party to a, viii. 640. ' 
 
 limitation maybe pleaded to a, viii. 641. 
 
 in what actions there may be a, viii. 641. 
 
 what debts may be, viii. 642. 
 
 nature of the demand to be, viii. 642. 
 
 claims before judgment may be, viii. 642. 
 
 judgments may be, viii. 648. 
 
 costs may be, viii. 644. 
 
 in replevin there is no, viii. 641. 
 
 against what claims there may be a, viii. 649. 
 
 what parties may, viii. 649. See Parties. 
 
 when there must be a plea of, viii. 657. 
 
 notice of, viii. 657. 
 effect of, viii. 659. 
 
 when it can be pleaded in covenant, ii. 614. 
 allowed in bankrupt cases, i. 758, 810. 
 Settlement on wife, effect of, ii. 22. 
 
 of bastard children, ii. 98. 
 
 soldiers, how ascertained, ix. 191. 
 Several contractors, when each liable for his portion of the consideration, i. 419. 
 Severalty, when covenants will be construed to be in, ii. 577. 
 Severance, what, ix. 2G7. 
 
 judgment of, ix. 2G7. 
 in what actions there shall be, ix. 270. 
 effect of judgment of, ix. 273. 
 of joint-tenancy, how effected, v. 279. 
 what disposition will work a, v. 281. 
 to a stranger, v. 281. 
 
 another joint-tenant, v. 282. 
 by operation of law, v. 289. 
 
 compulsion, v. 290. 
 summons and, v. 299. 
 Sewers, court of commissioners of, ii. 784. 
 Sham pleas, consequences of, vii. 550. 
 Shelby's case, rule in, vi. 43. 
 
 Sheriff's return, its effect as an instrument of evidence, iii. 553. 
 duty in executing an execution, iii. 731. 
 bow compelled to execute an execution, iii. 732. 
 authority of, iii. 732. 
 penalty for hindering, iii. 734. 
 when he can demand indemnity, iii. 733. 
 nature of his office, viii. (360. 
 qualification of, viii. 062.
 
 GENERAL INDEX. 
 
 Sheriff, who is exempt from serving as, viii. 662. 
 
 election of unqualified person as, not void, viii. 666. 
 manner of appointing, viii. 666. 
 oath of, viii. 666. 
 continuance of office of, viii. 668. 
 determination of office of, viii. 668. 
 must attend to no other office, viii. 668. 
 cannot act as solicitor, viii. 668. 
 must he a resident of his county, viii. 669. 
 cannot dispose of his hailiwick, viii. 670. 
 power and duty of high, viii. 671. 
 appointment of under, viii. 671. 
 , covenants between under sheriff and high, viii. 673. 
 
 acts of deputy or under sheriff, or, viii. 675. 
 jurisdiction of, over jails, viii. 680. See Jails. 
 responsible ciciliter for acts of deputy, viii. 679. 
 liable for escape, viii. 681, 682, 683. 
 acts of preceding, viii. 683. 
 succeeding, viii. 683. 
 acts of, when there is more than one, viii. 685. 
 duty of, as a judicial officer, viii. 688. 
 
 ministerial officer, viii. 689. 
 bound to execute writs, viii. 689. 
 cannot dispute authority of a court having jurisdiction, yiii. 690. 
 
 inquire into the regularity of the proceedings, viii. 690. 
 justified by a writ of court having jurisdiction, viii. 691. 
 must execute writs, viii. 693. 
 how to execute Ji. fa., viii. 693, 702. 
 diligence to be used by, in executing process, viii. 694. 
 power to raise the posse comitatus, viii. 695. 
 
 break doors, when, viii, 696. 
 when and where to execute writs, viii. 700. 
 how to execute writs, viii. 702. 
 
 of replevin, viii. 547. 
 his duty on arrests, viii. 712. 
 
 in returning writs of arrest, viii. 718. 
 bringing in the body, viii. 718. 
 actions by and against, viii. 720. See Actions. 
 liability in cases of replevin, viii. 547. 
 
 sale, when landlord is entitled to money made on, viii. 510, 512. 
 attachment for contempt against, i. 468. 
 must take bail in civil cases, i. 534. 
 may bail in criminal cases, i. 582. 
 may make an under-sheriff, vii. 318. 
 Sheriffs' courts, ii. 791. 
 
 ' torn, what, ii. 708. 
 
 manner of holding, ii. 769. 
 jurisdiction of, ii. 770. 
 Shifting uses, what, x. 184. 
 Ship-damage, what, vi. 635. 
 
 punishment for fraudulently destroying, vi. 701. 
 sea-worthiness of, when required, vi. 701. 
 when to be hypothecated, ii. 745. 
 penalty for hovering on the coast with, ix. 141. 
 Ships, part owners of, vi. 592. See Part-owners. 
 repairs of, vi. 592. 
 rights of masters of, vi. 592. 
 liability of owners of, vi. 594, 597._ 
 mortgagee of, when liable for repairs, vi. 599. 
 effect of registry of, vi. 599. 
 Shipping articles, requisites of, vi. 609. 
 
 how encouraged, vi. 849. 
 Shooting, when mayhem, vi. 409. 
 Shop books, when evidence, iii. 582. 
 
 Should have the power, construction of these words, vi. 440. 
 Si, effect of, ii. 281. 
 
 Vol. X.— 90 3o2
 
 711 GENERAL INDEX. 
 
 Sight, meaning of, vi. 819. 
 
 when a demand must be made of a bill payable at, vi. 823. 
 Signals to smugglers, penalty for making, ix. 148. 
 Signature, effect of, iii. 508. 
 
 of officer not indispensable to writ, viii. 691. 
 to a will, what is a sufficient, x. 490. 
 ling, when requisite under the statute of frauds, i. 187. 
 
 in a bond, vii. 243. 
 . . when a libel may be committed by, vi. 338. 
 / ccedua, what, x. 21. 
 Similiter, when required, vi. 558. 
 Simony, what, ix. 5. 
 
 offence of, ix. 6. 
 punishment of, ix. 7, 22. 
 
 oath against, ix. 8. , 
 
 corrupt presentation, when, ix. 8. 
 bonds for resigning benefices, when, ix. 13. 
 Single voucher, what, iv. 294. 
 
 woman is a good addition, vii. 11. 
 Skill, sheriff is liable for want of, viii. 722. 
 Similitude of hands, when evidence, iii. 639. 
 Slander, what, ix. 28. 
 
 punishment of, ix. 29. 
 
 division of the subject of, ix. 30. 
 
 when an action lies for, ix. 31, 
 
 words are actionable in themselves, ix. 33. 
 words charging crimes, ix. 33. See Actionable words. 
 what is a publication of, ix. 60, 64. 
 limitation in actions of, vi. 374. 
 costs in actions of, ii. 495. 
 Slaughter-house, when a nuisance, vii. 229. 
 Slave may contract for his manumission, i. 154. 
 
 a free person who renders service as a, may recover in assumpsit, i. 432. 
 may be witness, wdien, iii. 473. 
 
 subject of larceny, iv. 178. 
 cannot take by devise, vi. 189. 
 
 what is considered increase of female, vi. 194, 197, 293. 
 what passes by a bequest of, vi. 198. 
 
 when female is bequeathed, who is entitled to her children, vi. 293. 
 considered a prisoner, vi. 389. 
 who entitled to profits of mortgaged, vii. 180. 
 
 issue of mortgaged, vii. 182. 
 murder of, vii. 189. 
 how emancipated, ix. 473. 
 Slaying an officer, when treason, ix. 408. 
 Small tithes, what, x. 33. 
 Smuggler, when considered a trader, i. 800. 
 Smuggling, "what, ix. 106. x 
 
 prohibited goods, punished, ix. 134. 
 Socage, guardian in, iv. 540. 
 of tenure in, ix. 378. 
 Sodomy, what, ix. 158. 
 Soil, owner of, his right or interest in the common, ii. 266. 
 
 of highway, to whom it belongs, iv. 668. 
 Soil droit fait al partie, entry of, viii. 108. 
 Sole corporations cannot be obligees, vii. 248. 
 Solemnization of marriage, what, vi. 462. 
 Solicitor, contracts by, i. 157. 
 Soldiers, who are, ix. 160. 
 
 of enlisting, ix. 161. 
 when free from arrest, ix. 166. 
 of quartering, ix. 109. 
 to remove during elections, ix. 173. 
 how far may exercise trades, ix. 187. 
 officer's authority over, ix. 189. 
 liability to, ix. 189.
 
 GENERAL INDEX. 715 
 
 Soldiers, probate of wills of, ix. 191. 
 debts of, ix. 191. 
 settlement of, ix. 191. 
 Son assault, plea of, its effect, i. 375, 376. 
 Sound mind, presumption in favour of, v. 30. 
 Soundness of animals, what is, i. 110, 117. 
 
 Special damages, what words will support an action of slander without, ix. ■ 
 plea in trespass, what, ix. 510. 
 juries, how appointed, v. 337. 
 imparlance, what. vii. 520. 
 pleas, what, vii. 541. 
 verdict, what, x. 309. 
 
 requisites of, x. 313. 
 when defective, x. 313. 
 Specialty, what, vii. 230. 
 
 ** assumpsit will lie on a promise to pay a, i. 397. 
 debts, how to be paid by executor, iv. 108. 
 presumption of payment of a, vi. 376. 
 Specific performance, when decreed in 'equity, i. 158. 
 legacy, what, vi. 290. See Legacy. 
 
 power of executor over, vi. 292. 
 money bequeathed, when a, vi. 294. 
 
 not, vi. 294. 
 stock bequeathed, when a, vi. 294. 
 
 not, vi. : 
 interest of money, when a, vi. 290. 
 notes, when, vi. 296. 
 when entitled to interest, vi. 325. 
 Speech, when publication of, is libellous, vi. 358. 
 Spiritual person, who is, v. 478. 
 
 court, jurisdiction of, in simony, ix. 26. 
 
 slander, ix. 101. 
 when prohibition lies to, ix. 103. 
 defamation, when action lies for, ix. 103. 
 
 not conusable in spiritual court, ix. 105. 
 Spinster is a good addition, vii. 11. 
 Sports, customs relating to, iii. 32, 33. 
 Stab, meaning of, vi. 409. 
 Stabbing, meaning of, vii. 206. 
 Stable, ejectment lies for a, iii. 274. 
 Stagnum, effect of grant of, iv. 530. 
 Stakeholder, responsibility of, iv. 451. 
 Stale demand, what, vi. 387. 
 Stamps, what, ix. 192. 
 
 when several are required, ix. 193. 
 time of making, ix. 196. ^ 
 when a fresh, required, ix. 198. 
 when not required, ix. 200. 
 amount and denomination of, ix. 206. 
 consequence of wanting, ix. 209. 
 on policies of insurance, when required, vi. 645. 
 bills and notes, when required, ix. 771. 
 Standing by without objection, when evidence of fraud, iv. 391. 
 Stanneries, court of, ii. 783. 
 State may contract, i. 158. 
 
 suits by or against a, viii. 107. 
 
 jurisdiction of courts against a, ii. 798. 
 
 court may enjoin marshal of the United States, when, v. 210. 
 
 courts, writs of error to, ii. 800. _ 
 
 removal of actions from, ii. 810. 
 
 jurisdiction of, under the laws of United States, li.H-b. 
 laws, when rules of decision in courts of United States, a. 826. 
 Statute, what, ix. 212 : viii. 605. 
 personal, ix. 212. 
 real, ix. 212. 
 mixed, ix. 212.
 
 716 GENERAL INDEX. 
 
 Statute, ancient, what, ix. 213. 
 modern, what, ix. 213. 
 how made, ix. 213. 
 requisites of, ix. 215. 
 publication of, ix. 218. 
 things incident to, ix. 219. 
 when it begins to take effect, ix. 220. 
 how long to continue in force, ix. 223. 
 power of a, ix. 228. 
 public, what, ix. 230, 231. 
 private, what, ix. 230, 231. 
 affirmative, what, ix. 234. 
 negative, what, ix. 234. 
 who is to construe, ix. 237. 
 rules of construction of, ix. 238, 255. 
 contacting, how construed, ix. 257. 
 violation of, how punished, ix. 258. 
 private, ix. 261. 
 pleading a, how, ix. 259, 202. 
 effect of misrecital of, in pleading, ix. 263. 
 surplusage in pleading a, ix. 266. 
 of frauds, what agreements are within, i. 170. 
 promises by executors, &c, i. 172. 
 
 to pay the debt of another, i. 173. 
 made in consideration of marriage, i. 176. 
 limitations, what, vi. 316. 
 
 do not bind the state, viii. 90, 94. 
 mortmain, effect of, vi. 7. 
 roll, what, ii. 673. 
 staple, when execution may issue on, iii. 667, 669, 670. 
 
 difference between statute merchant and, iii. 670. 
 merchant, what, iii. 670. 
 
 against whom an execution may be granted on a, iii. 673. 
 what things are liable on a, iii. 675. 
 how vacated, iii. 680. 
 when the description of an offence in an indictment must follow the, v. 90. 
 Steamboat conductors liable as common carriers, ii. 152. 
 Stellionatus, what, vii. 103. 
 Steward, when considered a mariner, ii. 740. 
 Stock of cattle, what passes by a bequest of, vi. 194. 
 upon a farm, what, vi. 194. 
 in iron works, what, vi. 194. 
 
 the funds, what passes by a bequest of, vi. 194. 
 when legacy of, is adeemed, vi. 207. 
 
 not adeemed, vi. 207. 
 specific, vi. 294. 
 not specific, vi. 294. 
 companies, liability of members of, vi. 578. 
 Stock, what, x. 536. 
 
 Stocks, mortgagee of, must have possession, vii. 181. 
 Stockholder, when he can vote, ii. 459. 
 Stoppage in transitu, when goods sent to bankrupt may be stopped while, i. 734. 
 
 effect of, vi. 761. 
 Stranding, what, vi. 676. 
 Stranger, act of, when good, ii. 341. 
 
 legatees, when not entitled to a maintenance, vi. 330. 
 when rent cannot be reserved to a, viii. 460. 
 tys, property in, viii. 41, 42. 
 Street, effect of granting land bounded by a, ii. 557, 589. 
 Striking off the roll, when attorneys may be struck off, i. 509. 
 Strumpet, no action lies for calling a woman a, ix. 42. 
 Stud-horse, when a nuisance, vii. 223. 
 Subject, what, ix. 3'.)'.). 
 Subjects, who are, viii. 45. 
 
 owe allegiance, viii. 47. 
 Submission, matter in controversy, i. 303.
 
 
 GENERAL INDEX. 717 
 
 Submission, different kinds of, i. 306. 
 
 parties to the, i. 313. 
 Subornation of perjury, what, vii. 424. 
 Subpoena in Chancery, by whom invented, ii. 685. 
 
 is a compulsory process, iii. 511. 
 Subscribing witness, when to be produced, iii. 596. 
 Subsequent condition, what, ii. 291. 
 
 remainders, that arise on, viii. 380. 
 distinction between conditions precedent and, ii. 291. 
 Subsidies of tonnage, what. ix. 122. 
 Substitution, when creditor entitled to, iv. 115. 
 Substitutional legacies, what, vi. 298. 
 Subtraction of tithes, suit for, x. 76. 
 
 in spiritual court, x. 76. 
 Chancery, x. 82. 
 action upon the statute against, x. 91. 
 Succession, what things corporations may take by, ii. 454. 
 
 of the crown, treason to deny the power of parliament respecting the, ix. 
 415. 
 Successively, meaning of, vi. 156. 
 Successor, meaning of, in a deed, vi. 16. 
 
 required in grants, when, iv. 507. 
 bound by ecclesiastical lease, v. 501. 
 Suing out a writ prevents the running of the act of limitations, when, vi. 397 
 Suit in spiritual court for subtraction of tithes, x. 70. 
 
 a court of equity for subtraction of tithes, x. 82. 
 Summons and severance, what, ix. 267. 
 
 judgment in, ix. 267. 
 
 when given, ix. 268. 
 when summons must issue before judgment in, ix. 2 
 when judgment to be prayed fur in, ix. 268. 
 in what actions, ix. 270. 
 when it will prevent an abatement, i. 12. 
 to be, iv. 41. 
 of parliament, how made, ii. 652. 
 Sunday, what is, i. 601. 
 
 arrest in civil case, void when made on, i. 601. 
 
 penalty for travelling on, ii. 162. 
 
 what is profanation of, iv. 637. 
 
 process may be executed on, when, iv. 639. 
 
 contract made on, when good, iv. 638. 
 
 when void, iv. 638, 640. 
 apprentice cannot be compelled to work on, vi. 513. 
 when to be computed, viii. 622. 
 whether sheriff can execute a writ on, viii. 701. 
 Superior officer liable for acts of inferior, vii. 319. 
 Supersedeas, what, ix. 274. 
 
 several kinds of, ix. 274. 
 
 who may award writ of, ix. 275. 
 
 in what cases awarded, ix. 277. 
 
 what writ is a, by implication, ix. 283. 
 
 to what time writ of error relates as a, ix. 290. 
 
 effect of, ix. 291. 
 
 disobedience to, how punished, ix. 293. 
 
 when a certiorari is a, ii. 178. 
 
 not, ii. 179. 
 effect of, ii. 623. 
 
 when a writ of error is not a, iii. 354. 
 Superstitious use, what is, ii. 195. 
 Supplicavit, effect of writ of, ix. 297. 
 Supra protest, acceptance, vi. 807. 
 Supreme Court, established, ii. 793. 
 organization, ii. 796. 
 
 judges, how appointed, ii. 796. 
 quorum, ii. 796. 
 when holden, ii. 796.
 
 718 GENERAL INDEX. 
 
 ipreme Court, jurisdiction of, ii. 797. 
 
 civil, ii. 797. 
 
 original, ii. 797. 
 appellate, ii. 799. 
 by error to C. C, ii. 799. 
 appeal, ii. 800. 
 error to state court, ii. 800. 
 certificate, ii. 801. 
 mandamus, &c, ii. 802. 
 criminal, ii. 802. 
 of U. S. may bail in criminal cases, -when, i. 538. 
 error to, iii. 307. 
 Surcharge and falsify, when mortgagor allowed to, vii. 169. 
 Surety of the peace, what, ix. 294. 
 
 when required, ix. 294. - 
 
 who may ask, ix. 295 ; v. 397. 
 
 in what cases granted, ix. 296. 
 
 against whom it may be required, ix. 296. 
 
 may be required by chancery, ix. 297. 
 
 King's Bench, ix. 298. 
 justice of the peace, ix. 301. 
 . what is a forfeiture of recognisance for, ix. 303. 
 how recognisance for keeping, discharged, ix. 305. 
 good behaviour, what, ix. 307. 
 
 when granted, ix. 307. 
 
 how recognisance for keeping, discharged, ix. 309. 
 remedy against principal, vii. 257. 
 
 each other, vii. 257. 
 when not liable, vii. 257. 
 
 when he can prove against a bankrupt's estate, i. 712, 809, 810. 
 Surplus aiusing from mortgaged property, to whom it belongs, iv. 84. 
 of estate of testator, to whom it belongs, iv. 86. 
 of bar.krupt estate, how disposed of, i. 771. 
 Surplusage in declaration, cured by verdict, i. 248. 
 pleading, effect of, vii. 460, 601. 
 
 a statute, effect of, ix. 226. 
 Surprise, when a new trial will be granted on the ground of, ix. 623. 
 Surrender of copyhold lands, ii. 389. 
 
 when requisite, ii. 389. 
 when supplied in equity, ii. 392. 
 dormant, what, ii. 394. 
 who may, ii. 396. 
 who may accept a, ii. 397. 
 what will amount to a, ii. 398. 
 
 construction when presentment and admittance differ from, ii. 400. 
 operation of, ii. 401. 
 who may take by operation of, ii. 401. 
 what shall pass by, ii. 402. 
 what estate passes by, ii. 403. 
 of a charter, effect of, ii. 484. 
 by infant, when void, v. 128. 
 of leases, effect of, v. 657. 
 in fact, v. 657. 
 law, v. 661. 
 when to be made, v. 492. 
 upon what estate it operates, v. 659, 665. 
 with regard to leases infuturo, v. 665. 
 Surviving obligor, liability of, vii. 250, 252. 
 Survivor, effect of devise to, vi. 116, 268. 
 Survivorship, effects of in joint-tenancies, v. 279. 
 
 takes place, when, v. 280. 
 Survey, when evidence, iii. 584. 
 Surveyor-general, duties of, viii. 126. 
 Survivorship, right of, by the customs of London, iii. 43. 
 Suspension, what, iv. 144. 
 
 of rent, when there is a, viii. 523.
 
 GENERAL INDEX. 719 
 
 Suspension of a statute, effect of, ix. 225. 
 
 Swainmote, court of ii. 765. 
 
 Swans, kind's prerogative over, viii. 24. 
 
 Swearing, offence of, iv. 641. 
 
 Swindler, when it is a libel to charge one with being a, vi. 339. 
 
 Stv, when a nuisance, vii. 229. 
 
 T. 
 
 Table of prohibitions and restrictions of goods outwards, ix. 134. 
 Tacking, doctrine of, vii. 104, 136. 
 
 notice of, vii. 110. 
 Tail, estate in, what, ill- 428. 
 of what things, iii. 431. 
 requisites to create an estate, iii. 433. 
 of the several sorts of estates, iii. 437. 
 male, iii. 437. 
 female, iii. 437. 
 general, iii. 437. 
 special, iii. 438. 
 
 when tenant in, may charge his estate, iii. 441. 
 how estates created, vi. 31. 
 Taking, what, to constitute larceny, iv. 179. 181. See Larceny. 
 Tales, when grantable, v. 335. 
 Talesmen, who are, v. 335. 
 
 qualifications of, v. 336. 
 
 persons not by-standers may be summoned as, v. 337. 
 Tallage, what, ix. 113. 
 Taxation of costs, how made, ii. 539. 
 Taxes, covenants to pay, effect of, ii. 579. 
 when to be paid by lessee, v. 707. 
 what are, v. 707. 
 
 who is bound to pay, viii. 510, 511, 513. 
 Teamsters are common carriers, ii. 151. 
 Technical terms, effect of, viii. 151. 
 
 when not required, viii. 327. 
 when required in an indictment, v. 68. 
 Tenancy in common, nature of, v. 239. 
 
 how created, v. 248, 251. 
 difference between joint-tenancy and, v. 250. 
 dower in, iii. 202. 
 Tenant, who is a, v. 669. 
 
 in tail, leases by, v. 448. 
 
 conveyances by, v. 556. 
 discontinuances by, iii. 140. 
 after possibility of issue extinct, who is, m ; _448. 
 
 power of, iii. 451. 
 
 by the curtesy, who is, iii. 5. See Curtesy- 
 may distrain, when, iii. 165. 
 leases by, v. 556. 
 for life, leases by, v. 557. 
 
 may distrain, when, iii. 165. 
 rights and duties of, iiL 471. m ># 
 
 must pay interest on mortgaged premises, vn. 7o, /4. 
 by statute-merchant, how protected, iii. 678. 
 right, what, v. 077. 
 
 to the praicipe, who is, iv. 294 ; viii. 435. 
 in capite, who is, ix. 368. 
 in "oramon, who, v. 239, 240. 
 
 may be, v. 241. 
 leases by, when goodly. 561. 
 may distrain, when, iii. 165. 
 
 be guilty of forcible entry and detainer, r. . 328. 
 property of, may be sold under execution, when, iii. 702. 
 how far he can 'lease, viii. 258, 268. 
 when he may enter, iii. 23. 
 Tender, what, ix. 310.
 
 720 GENERAL INDEX. 
 
 Tender, by whom to be made, ix. 311. 
 to whom, ix. 311, 326 ; vii. 176. 
 what is a good, ix. 313; vii. 176, 177. 
 manner of making, ix. 313. 
 of bank-notes, when good, ix. 314, 319 ; vii. 176. 
 conditional, not good, ix. 315. 
 thing offered in, ix. 316. 
 of greater sum than is due, effect of, ix. 317. 
 of foreign coin, effect of, ix. 318. 
 offer to pay, when not a, ix. 318. 
 treasury notes, when a good, ix. 319. 
 at what place must be made, ix. 319. 
 in what state must be made, ix. 320. 
 of ponderous articles, how made, ix. 320. 
 
 a check, when sufficient, ix. 315. 
 when to be pleaded, ix. 321. 
 effect of a plea of, vii. 640. 
 consequences of a, ix. 328, 331 
 plea of, ix. 332 ; vii. 640. 
 
 in what cases a, may in general be made, ix. 350 
 of amends, ix. 361. 
 of mortgage debt, effect of, vii. 175. 
 of rent, when to be, viii. 469. 
 where to be, viii. 469. 
 personal, when good, viii. 469, 470. 
 effect of, viii. 484. , 
 
 Tenement, ejectment will lie for a, iii. 276. 
 Tenendum, what, iv. 218. 
 Tenet, when waste lies in the, x. 454. 
 Tenuit, when waste lies in the, x. 456. 
 Tense, when words in past or future, are slanderous. j x , p 
 Tenure, what, ix. 361. 
 
 meaning in the United States, ix. 361. 
 by service in the general, ix. 362. 
 
 what service, ix. 363. See Service. 
 of whom, ix. 365. 
 in capite, what, ix. 368. 
 
 frank-almoign, ix. 370. 
 by divine service, ix. 371. 
 knight's service, ix. 372. 
 escuage, ix, 374. 
 grand serjeantry, ix. 375. 
 petit serjeantry, ix. 376. 
 by castle guard, ix. 377. 
 cornage, ix. 377. 
 burgage, ix. 378. 
 in socage, ix. 378. 
 Terms fur years, devises of, vi. 72. 
 meaning of, vi. 72. 
 to attend inheritance, what, v. 435 ; x. 168. 
 in gross, how limited, x. 173. 
 Terre-tenant, when scire facias will lie for or against, viii. 611. 
 Terrier, (old,) when evidence, iii. 577 
 Territorial courts, ii. 820. 
 
 Florida, ii. 820. 
 Wisconsin, ii. 820. 
 Iowa, ii. 821. 
 Territories of the United States, jurisdiction of courts in, i. 815, 816. 
 Testament, what, vi. 5 ; x. 479. See Will. 
 Testator, who is, x. 480. 
 
 must be capable to make a will, x. 485. 
 intend to make a will, x. 485. 
 have a free mind, x. 486. 
 Fheft, charge of, actionable, ix. 38. 
 Thief, moaning of, ix. 39. 
 Threats do not amount to an assault, i. 371.
 
 GENERAL INDEX. 721 
 
 Three lives, leases not to exceed, v. 500. 
 
 Timber, injunction lies to restrain the cutting down of, v. 211. 
 
 Time how computed, i. 804 ; viii. 215. 
 
 on foreclosure of a mortgage, vii. 161. 
 in cases of rent, viii. 460, 466. 
 when a tender ought to be made, ix. 321. 
 
 rent ought to be demanded, viii. 486. 
 during which a distress may be made, iii. 177. 
 for payment, when enlarged, vii. 162. 
 effect of lapse of, on rights of property, iii. 618. 
 within which a condition may be performed, ii. 323. 
 in pleading, not material in a declaration, when, vii. 477. 
 how to be stated in a plea, vii. 571. 
 when not traversable, vii. 579. 
 how to be set out in an indictment, v. 79. 
 
 in an indictment for perjury it must be correctly stated, vii. 438. 
 Tithes, what, x. 5. 
 
 origin of, x. 5. 
 nature of, x. 5. 
 what things pay, x. 7. 
 who liable to personal, x. 9. 
 what predial things pay, x. 11. 
 agistment, how paid, x. 12. 
 of corn, x. 16. 
 hay, x. 16. 
 wood, x. 17. 
 
 young of animals, X. 24. 
 eggs, x. 24. 
 wool, x. 25. 
 fish, x. 26. 
 honey, x. 26. 
 bees, x. 26. 
 milk, x. 26. 
 to whom in general, to be paid, x. 26. 
 
 parochial, to be paid, x. 27. 
 right to a portion of, in a parish, x. 32. 
 by whom to be paid, x. 33. 
 what shall be considered small, x. 33. 
 
 how far custom of a parish is to be regarded in setting out, x. 36. 
 time and manner of paying personal, x. 39. 
 
 setting out predial, x. 39. 
 paying mixed, x. 44. 
 
 tithes due by custom, x. 45. 
 composition real, x. 49. 
 when payment of, suspended, x. 46. 
 
 when a modus is a real composition of, x. 50. See Modus. 
 of a prescription in non decimando, x. 63. 
 discharge of, by grant, x. 65. 
 bull, x. 65. 
 order, x. 66. 
 
 unity of possession, x. 70. 
 agreements and leases concerning, x. 72. 
 suit in spiritual court for subtraction of, x. 76. 
 
 Chancery for subtraction of, x. 82. 
 when prohibition lies to a suit in spiritual court or subtraction of, x. 79. 
 suit in ecpiity to establish a modus, x. 90. 
 action upon the statute against subtraction of, x. 91. 
 Title, when fraud vitiates, iv. 383. > 
 
 deeds, effect of deposit of, vii. 35. 
 
 mortgagee not bound to disclose his, vii. 131. _ 
 
 to a bill of exchange, may be transferred by a person having none, vi. i 92. 
 no part of a statute, ix. 219. 
 To farm let, effect of these words in a lease, v. 601. 
 Tolls for use of market, when due, iv. 158. 
 
 who exempt from, iv. 100. 
 Tomb-stones, who shall have an action for defacing them, iv. OIL. 
 
 Vol. X.— 91 3 P
 
 722 GENERAL INDEX. 
 
 Tonnage, when granted, viii. 37. 
 
 duty on, ix. 118, 122. 
 Tonsura -prima, when it may be granted as copyhold, ii. 387. 
 Tort, in an action for a, defendant cannot in general be held to bail, i. 543. 
 when corporation liable for a, ii. 450. 
 jurisdiction of District Court, in cases of, ii. 816. 
 Total loss, effect of, vi. 680. 
 
 what makes a, vi. 683. 
 Tout temps prist, effect of plea of, ix. 335. 
 Towing, right of, ix. 483. 
 Town record, when evidence, iii. 577. 
 Township, effect of division of, ix. 505. 
 Trade not to be followed without an apprenticeship, vi. 521. 
 
 manner of exercising, by apprentice within the statute 5 Eliz. c. 4, vi. 523. 
 
 what kind of service apprentice must render to entitle him to follow a, vi. 524. 
 
 offence of following a, without qualifications, vi. 525. 
 
 conviction for following a, without qualifications, vi. 526. 
 
 protection of, favoured, vi. 552. 
 
 regulated by Congress, vi. 552. 
 
 agreements in restraint of, when void, i. 433, 434 ; ii. 300. 
 
 not void, ii. 300. 
 how far soldiers can exercise, ix. 187. 
 fixtures, what are, x. 433. 
 Tradesman, slander against, ix. 48, 52. 
 
 when liable to an action for injuries committed by him as such, i. 134. 
 Trading of bankrupt, what, i. 630, 799. 
 
 effect of illegal, on insurance, vi. 705. 
 Traitor cannot make a will, x. 484. 
 Transitory actions, what are, i. 78. 
 Transitus, when at an end, vi. 761. 
 Translation of legacy, what, vi. 198. 
 Transportation, punishment of, iv. 193. 
 Traverse, what, vii. 552. 
 
 nature of, vii. 552. 
 when permitted, vii. 556. 
 required, vii. 558. 
 
 there may be a traverse upon a, vii. 562. 
 to what point there may be a, vii. 566. 
 of office, what, viii. 107. 
 Treason, derivation of, ix. 379. 
 what, ix. 380. 
 who may be guilty of, ix. 381. 
 
 husband of queen regnant, ix. 382, 386. 
 madman, ix. 382. 
 alien, ix. 382. 
 what will excuse, ix. 383. 
 against whom, may be committed, ix. 383. 
 of high, in general, ix. 384. 
 when writing will be considered, ix. 389. 
 words are not an overt act of, ix. 390. 
 constructive, what, ix. 391. 
 ■violation of certain personages, when, ix. 393. 
 levying war, when, ix. 394. 
 adhering to king's enemies, is, ix. 398. 
 counterfeiting money is, ix. 402. 
 bringing counterfeit money in the realm, is, ix. 407. 
 slaying certain officers, is, ix. 408. 
 extolling or maintaining the see of Home, is, ix. 409. 
 refusing to take oath of supremacy, when, ix. 410. 
 putting a popish bull in ure is, ix. 412. 
 denying the power of parliament to limit the succession of the crown is, ix. 
 
 415. 
 affirming that a person not in the succession, as by law established, has 
 
 right to the crown, is, ix. 415. 
 endeavouring to hinder the person next in succession, as by law established, 
 from succeeding to the crown, is, ix. 415.
 
 GENERAL INDEX. 723 
 
 Treason, corresponding with the pretender is, ix. 416. 
 
 a rebel, is, is. 41G. 
 of petit, in general, ix. 416. 
 indictment for, ix. 420. 
 trial of, ix. 425. 
 evidence of, ix. 428. 
 judgment in cases of, ix. 433, 
 it is actionable to charge one with, ix. 33. 
 authority of justices of the peace in cases of, v. 404. 
 commission of, forfeiture of copyhold, ii. 418. 
 Treasure trove, property in, viii. 41. 
 >' Treasury notes when a good tender, ix. 319. 
 
 Treble costs, when allowed, ii. 498. 
 what, ii. 500. 
 damages, when allowed, iii. 81. 
 Tree, what, ix. 40. 
 
 who entitled to felled, ix. 481, 498. 
 branches of, ix. 481. 
 on boundaries, ix. 498. 
 when a subject of larceny, iv. 176. 
 
 injunction will lie to restrain the cutting down of, v. 211. 
 waste to, x. 424, 428. 
 
 when to be cut down without committing waste, x. 436. 
 Trespass, what, ix. 438. 
 
 derivation of, ix. 438. 
 
 on the case, what, ix. 438. 
 
 difference between case and, ix. 440 
 
 when an action of, lies, ix. 440, 463. 
 
 ab initio, what, ix. 448. 
 
 to the person, ix. 452, 462. 
 
 personal property, ix. 453, 472. 
 real property, ix. 458, 480. 
 buildings, ix. 487. 
 action of, ix. 492. 
 
 by whom brought, ix. 492. 
 
 in general, ix. 492. 
 for injuries done to real property, ix. 496. 
 in what court an action of, may be brought, ix. 499. 
 pleadings in, ix. 501. 
 form of writ of, ix. 501. 
 declaration in, ix. 503. 
 plea in, ix. 514. 
 
 abatement, ix. 514. 
 chief, ix. 515. 
 replication in, ix. 530. 
 evidence in, ix. 540. 
 damages in, ix. 547. 
 
 when money may be tendered in an action of, ix. 358. 
 executors cannol maintain, iv. 125. 
 injunction will lie for, v. 198. 
 
 not, v. 198. 
 Trespasser ab initio, who is a, ix. 448. 
 Trials, kinds of, ix. 550. 
 
 by the court, ix. 551. 
 
 general rules relating to, ix. 551. 
 
 upon inspection, ix. 552. 
 
 examination of witnesses, ix. 555. 
 by record, ix. 556. 
 certificate, ix. 559. 
 jury, ix. 564. 
 at bar, ix. 566. 
 
 nisi prius, ix. 569. 
 notice of, ix. 572. 
 of putting off, ix. 575. 
 manner of conducting, ix. 580. 
 of new, ix. 582. See New trial.
 
 724 GENERAL INDEX. 
 
 Trials, when put off pro defectu juratorem, v. 334. 
 when to be per medietatem linguae., v. 359. 
 in cases of usury, x. 304. 
 Trover, what, ix. 629. 
 
 when an action of, will lie, ix. 630. 
 what is a conversion and, ix. 631. 
 parties to an action of, ix. 640. 
 for what injuries, lies, ix. 649. 
 lies for a dog, when, ix. 649. 
 
 geese which were once wild, ix. 650. 
 animals force naturce which have been reclaimed, ix. 650. 
 does not lie for a negro, in England, ix. 649. 
 an apprentice, ix. 649. 
 a servant, ix. 649. 
 
 dog, when, ix. 650. 
 animals force naturce, ix. 650. 
 oysters planted in a public river, ix. 650. 
 lies against executors, when, ix. 667. 
 
 joint defendants, when, ix. 666. 
 infant, when, ix. 666. 
 constable, when, 659. 
 common carrier, when, ix. 636, 660. 
 •pleadings in, ix. 667. 
 declaration in, ix. 668. 
 plea in, ix. 672. 
 evidence in, ix. 677. 
 verdict in, ix. 681. 
 damages in, ix. 681. 
 judgment in, ix. 681. 
 
 will lie by one joint-tenant against another, when, v. 306. 
 when executors may maintain, iv. 125. 
 must be brought against husband and wife, for the conversion of the wife, 
 
 ii. 62. 
 when money can be tendered in an action of, ix. 359. 
 act of limitation runs in, vi. 374. 
 when act of limitation begins to run in, vi. 384. 
 Truce, what, viii. 63. 
 
 difference between a league and a, viii. 63. 
 Truckmen are common carriers, ii. 151. 
 " True bill," when required, v. 53. 
 Trusts, what, x. 188. 
 
 nature of, x. 190. 
 general rules relating to, x. 190. 
 what amounts to a declaration of, x. 193. 
 is a resulting, x. 199. 
 
 trust by implication, x. 199. 
 difference between executed and executory, x. 190. 
 act of limitations does not operate on express, x. 192. 
 not liable to escheat, x. 191. 
 Becret, not recognised, x. 193. • 
 
 when to be executed, x. 225. 
 curtesy not allowed in, iii. 7, 12. 
 dower not allowed in, iii. 195. 
 property of wife, how managed, ii. 71. 
 act of limitation does not in general run against a, vi. 378. 
 Avhen act of limitation runs against a, vi. 379, 385. 
 jurisdiction of Chancery, in cases of, ii. 688. 
 Trustees may distrain, when, iii. 165. 
 
 cannot resign their trust, when, iv. 517. 
 lease made by, when good, v. 574. 
 what act of, shall defeat a trust, x. 217. 
 when guilty of a breach of trust, x. 213. 
 how far favoured, x. 247. 
 liability of, x. 247. 253. See Liability. 
 for neglect, x. 250. 
 interest, x. 250.
 
 GENERAL INDEX. 725 
 
 Trustees, liability of for using trust money, x. 251. 
 
 misapplying funds, x. 251. 
 buying trust estate at an undervalue, x. 253. 
 letting insolvent co-trustee have trust funds, x. 253. 
 mixing up trust funds with his own, x. 253. 
 how far answerable fur each other, x. 255. 
 
 removed, x. 258. 
 compensation of, x. 260. 
 suits by and against, x. 261. 
 corporations may be, x. 262. 
 when executors will be considered, x. 262. 
 who shall be considered, x. 262. 
 Truth, when no justification of a libel, vi. 350. 
 
 to convict defendant of perjury, he must have been sworn to depose the, vii. 425. 
 Turbary, common of, ii. 260. 
 
 Turning wife out of doors, liability of husband for, ii. 44. 
 Turnkey, liability of jailer for acts of, iv. 470. 
 Tutor, who is, iv. 539. 
 Twenty-one years, when leases are not to exceed, v. 500. 
 
 years, effect of lapse of, on debts secured by specialty, vii. 275. 
 Tythes, what, x. 5, See Tithes. 
 
 u. 
 
 Umpire, how chosen, and his power, i. 317. 
 
 to make an award, i. 322. 
 Uncertainty in declaration not cured by verdict, i. 247. 
 an award renders it void, i. 333. 
 a deed, effect of, iv. 521. 
 devise, effect of, vi. 133, 144. 
 Uncore prist, plea of, ix. 334. 
 
 with tout temps prist, effect of, ix. 335. 
 Under-sheriff, appointment of, viii. 671. See Sheriff. 
 implied authority of, viii. 671. 
 covenants between high sheriff and, viii. 673. 
 what acts may be done by, viii. 675. 
 how appointed, viii. 678. 
 Underlease, what, v. 433. 
 Undertenant, rights of, v. 708. 
 Underwood, what, x. 21. 
 
 United States when entitled to a preference out of bankrupt's estate, i. 809, 810. 
 
 priority of payment, viii. 91. 
 are not bound by their agents, when, vi. 560. 
 no costs against, ii. 524. 
 Unity of possession, how destroyed, v. 305. 
 Universities, what, x. 101. 
 
 of their courts and privileges, x. 102. 
 
 conusance of jurisdiction, how to be demanded, x. 106. 
 
 by whom to be demanded, x. 106. 
 of their privileges with regard of presentation to the livings of papists, 
 x. 107. 
 Unlawful contract, when void, i. 443, 444. 
 
 debts founded on an, cannot be proved in bankruptcy, i. 715. 
 consequences of homicide committed in the performance of an, act, vii. 2<>i 
 Unlicensed players, how punished, vii. 224. 
 Usage of a corporation, when lawful, ii. 469, 475. 
 trade, effect of, iii. 20, 28, 29, 608, 009. 
 how proved, iii. 21. 
 may serve to explain a statute, ix. 246. 
 Usance, what, vi. 766. 
 Use, no dower in a, iii. 195. 
 
 and occupation, action of, viii. 503. 
 
 does not lie against purchaser, viii. 505. 
 no action lies for the, of a house let for the uses of prostitution, 
 viii. 507. 
 
 3p2
 
 7^6 GENERAL INDEX. 
 
 Use and occupation, an action lies for, against an assignee of a lease under beal, viii. 507. 
 
 when an action lies for, viii. 508. 
 Useful, patent must be granted for something, viii. 140. 
 Uses, what, x. 111. 
 
 incidents of, x. 111. 
 origin of, x. 113. 
 alienable, x. 113. 
 
 property of an estate in, at common law, x. 113, 114. 
 
 by statute x. 115. 
 
 is descendible, x. 119. 
 devisable, x. 122. 
 not extendible, x. 124. 
 forfeitable, x. 124. 
 liable to dower, x. 124. 
 inconveniences of, x. 125. 
 
 alteration in conveyances to, by stat. 27 H. 8, c. 10, x. 126. 
 of the several sorts of conveyances to, x. 129. 
 deeds declaring the, of feoffments, x. 130. 
 
 fines, x. 130. 
 recoveries, x. 130. 
 who may declare, x. 130. 
 to whom, may be declared, x. 132. 
 how declared, x. 133. 
 when to be declared, x. 134. 
 in what cases averments may be made of, x. 135. 
 what consideration necessary to a covenant to stand seised to, x, 140. 
 by what words a man may covenant to stand seised to, x. 144. 
 several kinds of, x. 149. 
 in possibility, x. 149. 
 cases out of the statute of, x. 167. 
 terms in gross may be limited to, x. 173. 
 resulting, what, x. 176. 
 by implication, x. 176. 
 of shifting, x. 184. 
 manner of pleading, x. 187. 
 and trusts, x. 111. See Trusts. 
 Usual covenants in a lease, what, v. 670. 
 Usura maritime/,, what, vi. 749. 
 Usurious contract, how proved, vii. 179. 
 
 debt cannot be proved in bankruptcy, i. 714. 
 Usury, what, vii. 239 ; x. 264. 
 
 at common law, what, x. 264. 
 by statute, x. 265. 
 
 an agreement required to constitute, x. 272. 
 what contract is affected with, x. 273, 274. 
 charge of commissions when not, x. 281. 
 
 it is, x. 281. 
 fair purchase of a bond or note is not, x. 281. 
 when complete, x. 372. 
 to constitute, there must be a loan, x. 284. 
 
 an unlawful interest reserved, x. 284. 
 
 agreement that the money shall be returned, 
 
 x. 284. 
 intention to violate the law, x. 284. 
 the contract must be usurious in its inception, x. 283. 
 what hazard wil 1 take the contract out of the statute of, x. 285. 
 in what cases securities shall be avoided in consequence of, x. 287. 
 relief given on contracts tinctured with, x. 293. 
 how far securities affected by, x. 295. 
 pleadings in cases of, x. 299. 
 trial and evidence in cases of, x. 304. 
 Utensils, what passes by a bequest of, vi. 194. 
 Uttering forged instrument, how punished, iv. 373.
 
 GENERAL INDEX. 727 
 
 V. 
 
 Vagrant, words charging one to be a, are actionablo, ix. 44. 
 Value of vessel in cases of average, how ascertained, vi. 021. 
 freight in similar cases, vi. 021. 
 received, effect of these words in a bill, vi. 781, 831. 
 Variance, what is a, vii. 438. 
 
 when pleadable, vii. 475. 
 
 outlawry may be reversed for, vii. 352. 
 
 between declaration and evidence, when fatal, vii. 497 
 
 writ and declaration, vii. 490. 
 rules as to, in actions ex delicto, vii. 505. 
 when fatal in an indictment, v. 79, 88. 
 Venire facias, object of, v. 315. 
 
 when to be directed to the coroner, v. 319. 
 Ventre inspiciendo de, writ, ii. 85. 
 Venue, what, x. 304. 
 
 when necessary, x. 304. 
 not required, x. 305. 
 sufficiently laid, x. 305. 
 what is a proper laying of the, x. 306. 
 may be changed, when, x. 370 ; i. 82. 
 
 in what cases, x. 370. 
 when there can be no change of, x- 372. 
 in indictments, v. 61. 
 libel cases, vi. 538, 539. 
 Verdict, what, x. 300. 
 
 de bene esse, what, x. 307. 
 privy, what, x. 308. 
 general, what, x. 308. 
 
 effect of, x. 303. 
 special, what, x. 309. 
 
 province of the court on, x. 313. 
 when bad, for misbehaviour of a juror, x. 316. 
 power of the jury over, x. 315. 
 
 when bad, for misbehaviour of one of the parties, x. 321. 
 on informal issue, effect of, x. 323. 
 immaterial issue, effect of, x. 323. 
 insensible issue, effect of, x. 326. 
 insufficient issue, effect of, x. 326. 
 of a, which does not find all that is in issue, x. 327. 
 which finds a thing not in issue, x. 330. 
 which varies from the issue, x. 332. 
 
 in assumpsit, x. 332. 
 case, x. 334. 
 covenant, x. 335. 
 debt, x. 335. 
 
 ejectment, x. 337 ; iii. 292. 
 replevin, x. 339. 
 trover, ix. 681. 
 trespass, x. 340. 
 other actions, x. 341. 
 criminal prosecutions, x. 342. 
 where the words modo et forma are contained in the traverse upon 
 
 which issue is joined, x. 343. _ 
 
 which does not find the matter in issue with certainty, x. 34b. 
 
 expressly, x. 348. 
 finds a matter in a foreign country, x. 349. 
 contrary to a matter of estoppel, x. 352. 
 contrary to a matter of record, x. 351. 
 contrary to something confessed or not denied in the pleadings, x. 35c 
 what omission in the pleadings is cured by, x. 354. 
 
 copy of the issue is cured by, x. 359. 
 bow far a, establishes recitals in a deed, x. 361. 
 may be taken after death of a sole plaintiff, when, x. 363.
 
 728 GENERAL INDEX. 
 
 Verdict, in what currency to be given, x. 363, 364. 
 in trover, how to be entered, x. 364. 
 when amendable, i. 246. 
 
 cures artificial defects in the declaration, i. 247, 445. 
 repugnancy and surplusage do not vitiate, i. 248. 
 insufficiency of defendant's bar, not cured by, i. 249. 
 immaterial issue, not cured by, i. 249. 
 effect of, as an instrument of evidence, iii. 549. 
 when contrary to evidence will be set aside, ix. 599, 600, 604. 
 Vergers, who are, v. 480. 
 Vert, what, ii. 762. 
 
 Vessels, remedy for injuries to, when sailing, ix. 441. 
 Vested legacy, what, vi. 236. See Legacy. 
 cases of, vi. 245. 
 remainders, what, viii. 313. See Remainders. 
 
 may be taken in execution, viii. 315. 
 Vestura terrce, what passes by grant of, iv. 530. 
 Vi el armis, when required in a writ of trespass, ix. 501. 
 matter of form, ix. 504. 
 requisite in an indictment, v. 85. 
 Via, what, iv. 665. 
 
 Vicecomes non misit breve, effect of, viii. 603. 
 Vicars may make a lease, when, v. 520. 
 Vicinage, common pur cause de, ii. 265. 
 Vicinetum, what, x. 304. 
 Vicontiel power, when determined, viii. 540. 
 
 writ of trespass not now used, ix. 439. 
 Victuals, what, iv. 336. 
 View, when granted, v. 372. 
 Viewers fined for non-attendance, v. 317, 318. 
 Villain, effect of calling a man a, vi. 339. 
 Violation, what, ix. 393. 
 Visitors of corporations, who are, ii. 477. 
 Vivum mortuum, what, vii. 29. 
 
 vadium, what, vii. 29. 
 Void, what, x. 374. 
 
 difference between voidable and, x. 374. 
 what acts are absolutely, x. 374. 
 
 is, to all purposes, x. 374 ; v. 125, 128. 
 acts of infant, when, x. 374. 
 
 feme covert, when, x. 374. 
 probate of a will of feme covert is, x. 375. 
 bond for a purpose malum in se, x. 375. 
 
 malum prohibitum, x. 375. 
 ministerial acts, when, x. 375. 
 agreement in restraint of trade, x. 376. 
 
 for sale of an office is, x. 376. 
 what acts are, as to some purposes only, x. 377. 
 what acts are, as to some persons only, x. 378. 
 acts, by operation of law, when made valid, x. 378. 
 devises, what are, vi. 119. 
 
 by uncertainty in description of thing devised, vi. 130. 
 
 uncertainty in the description of the person to take, vi. 144. 
 devisee dying in lifetime of devisor, vi. 157. 
 the birth of a child, vi. 159. 
 devise of after-purchased lands, vi. 159. 
 conditions in a devise, vi. 159. 
 policies, what, vi. 703. 
 conditions, what, ii. 298. 
 when fraudulent act is, iv. 425. 
 
 acts of infant are, v. 125, 128 ; x. 374. 
 ecclesiastical leases are, v. 549. 
 Voidable, feoffment of lunatic, when, v. 27, 28. 
 acts of infants, when, v. 125. 
 by whom avoided, v. 13" 7 
 how avoided, v. 138.
 
 GENERAL INDEX. 729 
 
 Voidable acts, as to infants, when binding on others, v. 134. 
 leases, how made good, v. 555. 
 
 avoided, v. 555. 
 acts, how made valid, x. 380. 
 avoided, x. 381. 
 by whom avoided, x. 382. 
 Voluntary agreements, when binding, i. 1G5. 
 
 conveyances, when fraudulent, iv. 396. See Fraud. 
 
 void as to creditors, iv. 405, 400, 410. 
 escape, what, iv. 403. See Escape. 
 waste, what, x. 4:2:2. 
 Votes for corporate officers, when good, ii. 467. 
 Voting, charge of illegal, actionable, ix. 44. 
 Vouchee, when parol shall demur for, v. 164. 
 Toucher, what, iv. 294. 
 Voyage, breaking up, vi. 666. 
 when illegal, vi. 703. 
 
 W. 
 
 Wager, when void, i. 435. 
 
 recoverable, iv. 450. 
 not, iv. 450 ; i. 436. 
 payment of, when good, iv. 450. 
 when actions on, cannot be supported, iv. 453. 
 policy, when valid vi. 707, 711. 
 of law, what, x. 383. 
 
 in what actons allowed, x. 383. 
 reasons for allowing, x. 383. 
 manner of, x. 384. 
 when, x. 385. 
 in what allowed, x. 386. 
 to whom allowed, x. 390. 
 against whom allowed, x. 391. 
 when defendant is not entitled to, x. 392. 
 Wages, mariner entitled to, vi. 601. 
 may be forfeited, vi. 602. 
 suspended by capture of ship, vi. 604. 
 lost by capture of ship, vi. 604. 
 
 fund arising from insurance not liable for mariner's, vi. 605. 
 effect of death of sailor abroad on, vi. 607, 611. 
 when not a lien on the ship, vi. 608. 
 rate of, when no shipping articles, vi. 609. 
 when allowed pro rata, vi. 609. 
 what mariner must prove to be entitled to, vi. 614. 
 can be claimed from bankrupt's estate, i. 694. 
 Waifs, property in, viii. 41. 
 Waivaria mulieris, what, vii. 332. 
 Waived goods, when forfeited, iv. 341. 
 Waiver of ferfeiture, what, iii. 290. 
 effect of, v. 672. 
 of lease, what, viii. 486. 
 the right of re-entry, what, iii. 289. 
 War, king's prerogative in making, viii. 62. 
 kinds of, viii. 62. 
 Congress may declare, viii. 64. 
 when it exists, viii. 81. 
 effect of, on partnership, vi. 590, 591. 
 Warden, power of, to make lease, v. 480. 
 Warrant, when void, ii. 351. 
 
 general, what, ii. 351. 
 
 direction of, ii. 351. 
 
 may be executed by private persons, u. 351. 
 
 how long valid, ix. 463, 489. 
 
 effect of parol, ix. 470. 
 
 when insufficient, ix. 471. 
 
 of attorney, when required, i. 487. 
 
 Vol. X.— 02
 
 730 GENERAL INDEX. 
 
 Warrant, of attorney, given by several, must be strictly pursued, i. 490. 
 Warranty, what, x. 394. 
 
 kinds of, x. 394. 
 
 to what things a, may be annexed, x. 395. 
 what clauses in a deed will make a, x. 396. 
 deemed a good, in a deed, x. 397. 
 
 law, x. 400. 
 alterations by statute respecting, x. 403. 
 effects of, in a deed, x. 406 ; iv. 219. 
 what use may be made of a, in deed, x. 407. 
 who may take advantage of a, x. 409. 
 
 liable on a, x. 409. 
 when avoided, x. 413. 
 how expounded, x. 416. 
 in the sale of personal chattels, x. 418. 
 express, of personal chattels, x. 418. 
 implied, of personal chattels, x. 418, 419. 
 in a deed, what, iv. 219. 
 
 sale of goods, when implied, iv. 386. 
 implied, what, i. 111. 
 express, what, i. 114. 
 when partition implies a, ii. 367. 
 effect of covenant of, ii. 587. 
 breach of covenant of, ii. 595. 
 in insurance, what, vi. 725. 
 difference between representation and, vi. 725. 
 to sail when not complied with, vi. 726. 
 complied with, vi. 726. 
 with convoy, vi. 727. 
 neutrality, what, vi. 729. 
 Waste, what, x. 420. 
 
 on what subjects committed, x. 421. 
 several kinds of, x. 422. 
 what acts shall be deemed, x. 422. 
 in lands, what, x. 423. 
 
 trees, woods, &c, what, x. 424. 
 digging gravel, mines, &c, what, x. 427. 
 gardens, what, x. 428. 
 orchards, what, x. 428. 
 fish-ponds, what, x. 428. 
 dovediouses, what, x. 428. 
 parks, what, x. 428. 
 meadows, what, x. 428. 
 houses, what, x. 429. 
 removal of fixtures, when, x. 431. 
 by ecclesiastical persons, what, x. 434. 
 what is excusable, x. 434. 
 justifiable, x. 435. 
 who may bring an action of, x. 438. 
 against whom an action of, may be brought, x. 438, 440. 
 when executors liable for, x. 447. 
 
 an action of, may be brought, x. 448. 
 process and proceedings in, x. 451. 
 when the action of, shall be in the tenet, x. 454. 
 
 tenuit, x. 456. 
 judgment in actions of, x. 461. 
 when restrained by injunction, x. 464, 467. 
 what relief equity will give in cases of, x. 474. 
 commission of, is a forfeiture of a copyhold, ii. 416. 
 injunction granted to prevent, v. 197. 
 
 leases by ecclesiastics not to be without impeachment of, v 519. 
 Watches, duties on, ix. 134. 
 
 AVater, right of owners of land, over which it flows, i. 120. 
 course, ejectment will not lie for a, iii. 272. 
 pipe, right of owner of, ix. 483. 
 Way, who has a right of, iv. 086. See Hig7uvays.
 
 GENERAL INDEX. 731 
 
 Way, right of, how to bo used, iv. 688. 
 
 extinguished, iv. 688. 
 forfeited, iv. 690. 
 of necessity, what, iv. 688. 
 
 when to be made, iv. 689. 
 by prescription, iv. 690, 691. 
 
 whom to be repaired, iv. 691. 
 when it raises a presumption of a grant, iii. 618. 
 effect of granting lands bounded by a, ii. 557. 
 of necessity, effect of disturbance of, ii. 586. 
 breach of warranty of, ii. 589. 
 Wearing apparel may be distrained, when, iii. 173. 
 Weight, when not required to be stated in a declaration, vii. 513. 
 
 of evidence, effect of, on verdict, ix. 587. 
 Weights, use of false, when indictable, v. 55. 
 Welch mortgage, what, vii. 31. 
 
 when payable, vi. 380. 
 Whale-fishery, rules respecting, vii. 455. 
 Wharfinger, when liable, ii. 153. 
 Widow's chamber in London, what, iii. 41. 
 may be a witness, when, iii. 478. 
 
 distrain, when, iii. 165. 
 to what entitled, iv. 84. 
 is not next of kin to husband, vi. 188. 
 is a good addition, vii. 11. 
 Wife, who is, ii. 13. 
 
 subjection of, to her husband, ii. 14. 
 when not under his power, ii. 14. 
 incapacities of, as to civil rights, ii. 15. 
 no political incapacities of, ii. 16. 
 may bring an appeal, i. 294. 
 
 contract, when, i. 154 ; ii. 49 ; viii. 420. 
 act as an attorney in fact, i. 520, 
 be a purchaser, when, ii. 54. 
 execute a mere authority, ii. 55, 75. 
 trade alone, when, ii. 65. 
 be a witness, when, iii. 475. 
 
 not, iii. 475 ; ii. 35. 
 tenant in common with her husband, v. 242. 
 
 others, v. 242. 
 one of several joint-tenants, v. 242. 
 endowed of tenancy in common, v. 240. 
 a devisee of her husband, vi. 8. 
 make a will, when authorized, vi. 7. 
 cannot make an agreement with her husband, ii. 5 1. 
 appoint an attorney, ii. 56. 
 be endowed of joint-tenancy, v. 240. 
 make a will, when, vi. 7. 
 estate of, real, how far vested in husband, ii. 16. 
 personal, vests in husband, ii. 16, 21. 
 separate, how managed, ii. 71. 
 profits, when belonging to husband, ii. 73. 
 who is entitled to legacy to, during coverture, vi. 309. 
 
 when divorced, vi. 310. 
 who takes under a bequest to my beloved, vi. 190. 
 provision for, when secured, ii. 69. 
 equity of, what, ii. 69. 
 
 when defeated, ii. 70. 
 who entitled to redeem a mortgage on, vii. 80. 
 when it passes to assignees of her bankrupt husband, i. 725. 
 considered as a feme sole, when, ii. 04. 
 responsible for her contracts, after divorce, when, ii. 65. 
 acts of, how far revoked by marriage, ii. 30. 
 debts of, how to be paid, ii. 33. 
 acquiescence of husband, does not bind her, ii. 53. 
 when a disseisoress, ii. 52.
 
 732 GENERAL INDEX. 
 
 Wife, when responsible for her criminal acts, ii. 35. 
 not responsible, ii. 34. 
 turning her out of doors by husband, eifect of, ii. 44. 
 ciuelty to, effect of, ii. 44. 
 eifect of deed by, viii. 420. 
 
 lease by husband and, v. 443. 
 •when advertising of, is not a libel, vi. 341. 
 'a part by custom of London, what, iii. 47. 
 must be joined in an action, when, ii. 56, 01. 
 
 plead in abatement, when sued alone, ii. 61. 
 Wild animals, who is entitled to, viii. 25. 
 
 Wilful, when this word requisite in an indictment for perjury, vii. 438. 
 Will, what, x. 478, 479 ; vi. 5. 
 origin of, vi. 5. 
 
 difference between testament and, x. 479. 
 what paper will amount to a, x. 480. 
 who may make a, x. 481, 484. 
 
 infant, when, x. 481 ; vi. 8. 
 feme covert, when, x. 481 ; vi. 7. 
 lunatic, when, x. 482. 
 non compos, when, x. 483. 
 drunkard, when, x. 483. 
 alien enemy, when, x. 484. 
 traitor, when, x. 484. 
 suicide, when, x. 484. 
 heretics, when, x. 484. 
 requisites of, x. 485. 
 
 1. a legal testator, x. 485. 
 
 2. a devisee, x. 485. 
 
 3. an intention to make a, x. 485. 
 
 4. testator must be free, x. 486. 
 
 5. must be in form, x. 487. 
 kinds of, x. 487. 
 
 in writing, x. 487. 
 
 1. to pass lands, x. 488. 
 
 2. to pass goods, x. 514 
 
 3. what is proof of, x. 517. 
 nuncupative, x. 529. 
 
 nature and effect of, x. 532. 
 how construed, x. 533. 
 avoided, x. 540. 
 
 revoked, x. 541. See Revocation. 
 form of proving, iv. 50. 
 what words in a, pass a fee, vi. 14. 
 what are leases at, v. 622, 623. 
 does not operate as a release, viii. 251. 
 distinction between a deed and a, viii. 383. 
 Wine, it is a fraud to sell corrupted, iv. 383. 
 Wisconsin, courts in, ii. 820. 
 Witchcraft, what, iv. 635. 
 
 how punished, iv. 635, 636. 
 Witen-agemot, how constituted, ii. 617. 
 Withernam, when to be issued, viii. 541. 
 derivation of, viii. 541. 
 form of writ of, viii. 541. 
 how cattle taken in, may be used, viii. 542. 
 is a mesne process, viii. 542. 
 both plaintiff and defendant entitled to, viii. 542. 
 " Without leaving issue," meaning of, vi. 117. 
 children, meaning of, vi. 117. 
 defalcation, effect of, vi. 795. 
 Witness, wh ; xas.y be, iii. 473. 
 
 slave, when, iii. 473. 
 infant, iii. 473. 
 heathen, iii. 474. 
 lunatic, when, iii. 474.
 
 GENERAL INDEX. 733 
 
 Witness, who may be, party, when, iii. 474, 4S2. 
 
 husband, iii. 475. 
 wife, iii. 475. 
 widow, iii. 478. 
 judge, iii. 479. 
 juror, iii. 479. 
 accomplice, iii. 485. 
 inhabitant, when, iii. 500. 
 to a will, x. 491, 493, 497, 517 to 529. 
 who cannot be, party, iii. 474, 482. 
 
 interested person, iii. 488 502. 
 counsel, iii. 480. 
 convict, iii. 486. 
 
 party to negotiable paper, iii. 503. 
 juror to impeach his verdict, v. 393. 
 number of, required, iii. 507. 
 
 in treason, ix. 431. 
 to a will, x. 500. 
 how compelled to attend, iii. 508. 
 examination of, iii. 512. 
 depositions of, iii. 513. 
 not bound to criminate himself, iii. 514. 
 not liable in slander, iii. 515. 
 
 may look at writing, and refresh his memory, iii. 516. 
 how examined in chancery, iii. 517. 
 
 criminal cases, iii. 561. 
 attachment against, for contempt, i. 470. 
 when protected while attending court, ii. 633. 
 
 from answering, iv. 458. 
 privilege of, viii. 170. 
 
 when entitled to privilege, how discharged, viii. 175. 
 when attesting, must be produced, viii. 596, 597. 
 "Woman, when waived, vii. 332. See Wife. 
 Wood, when tithable, x. 17. 
 Woods, what will pass by a grant of, iv. 530. 
 Woodland, when it is no waste to clear, x. 438- 
 Wool, duties upon, ix. 117. 
 
 fells, duties on, ix. 117. 
 torn from sheep, when larceny, iv, 177. 
 when tithable, x. 250. 
 Words, when they will pass a fee, vi. 14. 
 
 of inheritance not required to pass a fee, vi. 15. 
 introductory, effect of, vi. 28. 
 meaning of give, vi. 16. 
 devise, vi. 16. 
 transfer, vi. 17. 
 paying, vi. 21. 
 estate, vi. 23, 25, 47. 
 property, vi. 23, 27. 
 interest, vi. 24, 27. 
 improvement, vi. 24. 
 all I possess, vi. 25, 28. 
 temporal goods, vi. 25. 
 any other thing, vi. 26. 
 testamentary estate, vi. 26. 
 personal estate, vi. 27, 137, 192. 
 effects, vi. 28, 192, 194. 
 perpetual, vi. 28. 
 heirs, vi. 184. 
 
 heir of the body, vi. 44, 46. 
 heir male, vi. 44. 
 issue, vi. 46, 156. 
 dying without issue, vi. 113. 
 without children, vi. 117. 
 without leaving issue, vi. 117. 
 appurtenances, vi. 136. 
 
 6 y
 
 734 GENERAL INDEX. 
 
 Words, meaning of, all my B F estate, vi. 135 
 legacy, vi. 137. 
 premises, vi. 140. 
 her part aforesaid, vi. 140. 
 
 perpetual, vi. 143. 
 
 posterity, vi. 144. 
 
 farm, vi. 143. 
 
 successively, vi. 156. 
 
 child, vi. 150. 
 
 son, vi. 156. 
 
 not doubting, vi. 166. 
 
 requested, vi. 166. 
 
 recommend, vi. 166. 
 
 will and desire, vi. 166. 
 
 entreat, vi. 166. 
 
 equally, vi. 179. 
 
 poor relations, vi. 181. 
 
 children, vi. 184, 185. 
 
 grandchildren, vi. 184. 
 
 next heir, vi. 185. 
 
 servants, vi. 186. 
 
 of her own family, vi. 186. 
 
 family, vi. 187. 
 
 next of kin, vi. 188. 
 
 my beloved wife, vi. 190. 
 
 now, vi. 191. 
 
 other things, vi. 192. 
 
 all my goods and chattels in Suffolk, vi. 192. 
 
 goods, vi. 192. 
 
 property, vi. 192, 193. 
 
 chattels, vi. 192. 
 
 things, vi. 192. 
 
 movable goods, vi. 193. 
 
 money, vi. 193, 297. 
 
 household goods, vi. 193. 
 stuff, vi. 194. 
 furniture, vi. 194. 
 
 plantation, vi. 194. 
 
 stock of cattle, vi. 194. 
 
 upon a farm, vi. 194. 
 in iron works, vi. 194. 
 utensils, vi. 194. 
 bonus, vi. 194. 
 securities for money, vi. 195. 
 medals, vi. 195. 
 debts, vi. 195. 
 balance, vi. 195. 
 linen, vi. 195. 
 ground-rents, vi. 195. 
 cabinet of curiosities, vi. 196. 
 bona, vi. 196. 
 jewels, vi. 196. 
 
 support and maintain, vi. 197. 
 female slave and her increase, vi. 197, 198. 
 silver tea-kettle and lamp, vi. 197. 
 at, vi. 264, 206. 
 if, vi. 264. 
 provided, vi. 264. 
 in case of, vi. 264. 
 when, vi. 264. 
 as soon as, vi. 264. 
 from and after, vi. 264, 266. 
 unmarried, vi. 267. 
 and, vi. 267 : x. 539. 
 or. \i. 267 : x. 539. 
 survivors, vi. i .
 
 GENERAL INDEX. 735 
 
 Words, meaning of, they paying, vi. 271. 
 
 if they behave themselves dutifully to their mother, vi. 277. 
 
 at and from, vi. 650, 652, 65 I. 
 
 from her arrival, vi. 653. 
 
 warranted to depart with convoy, vi. 653. 
 
 from New York to Barbadoes and a market, vi. 655. 
 
 forwards and backwards, vi. 657. 
 
 in this voyage, vi. 658. 
 
 without defalcation, vi. 795. 
 
 assigns, vii. 61. 
 
 eregimus, vii. 290. 
 
 concessimus, vii. 290. 
 
 constituimvs, vii. 290. 
 
 Mr., vii. 438. 
 
 Mrs., vii. 438. 
 
 piratical, vii. 440. 
 
 divers goods and chattels, vii. 515. 
 
 &c, vii. 525. 
 
 one hundred articles, vii. 515. 
 
 ne dona pas par le fait, vii. 531. 
 
 modo et forma, vii. 531. 
 
 person, x. 126. 
 
 seised, x. 126. 
 
 hereditaments, x. 126. 
 
 lawful seisin, state and possession, x. 127. 
 
 impeachment of waste, x. 467. 
 
 when, viii. 389. 
 
 then, viii. 389. 
 
 if, viii. 389. 
 
 acqtiitto, x. 396. 
 
 defendo, x. 396. 
 
 concessi, x. 396, 400. 
 
 demisi, x. 396. 
 
 grant, bargain, and sell, x. 396. 
 
 seised of an indefeasible estate in fee simple, x. 397. 
 
 dedi, x. 400. 
 
 assigns, x. 410. 
 cannot be construed into an assault, i. 371. 
 effect of general, viii. 155. 
 bona et catalla felonum, viii. 155. 
 a tempore plenaz cetatis, viii. 155. 
 totum statum suum, viii. 155. 
 technical, when not required, viii. 327. 
 which make a condition, what, viii. 395. 
 descriptive of time and manner, what, viii. 395. 
 in default of issue, viii. 41 >4. 
 when actionable, ix. 32, 33. 
 are actionable when charging a crime, ix. 33. 
 
 contagious distemper, ix. 45. 
 disgraceful to an officer, ix. 45. 
 
 a tradesman, ix. 4.^, "2. 
 spoken falsely as to his character, ix. 55. 
 plaintiff has sustained special damage, ix. 55. 
 construction of slanderous, ix. 60. 
 when construed in mitiori sensu, ix. 61. 
 time of publication of, ix. 60. 
 place of publication of, ix. 62. 
 language in which, are published, ix. 62. 
 occasion of the publication of, ix. 63. 
 intention of the publication of, ix. 64. 
 when published in course of justice, ix. 66. 
 in past or future tense, when slanderous, ix. 68. 
 how far, must be affirmative to be slanderous, ix. 69. 
 certain to be slanderous, ix. 71. 72. 
 when not to be construed in mitiori sensu, ix. 76. 
 adjective, how construed, ix. 78.
 
 736 GENERAL INDEX. 
 
 Words, importing only an intent, how construed, ix. 79. 
 repugnancy of, effect, ix. 80. 
 disjunctive, effect of, ix. 80. 
 copulative, effect of, ix. 80. 
 
 when an action lies for repeating slanderous, ix. 81. 
 effect of subsequent, ix. 83. 
 declaration for, ix. 84. 
 
 what may be pleaded in justification of, ix. 97. 
 when spiritual courts have jurisdiction of slanderous, ix. 101. 
 sufficient to create a grant, iv. 519. 
 Worms, loss of ship by, is not a peril of the sea, vi. 662. 
 Wreck, what, viii. 35 ; ii. 737. 
 prerogative of, viii. 34. 
 who is entitled to, viii. 117, 157. 
 Wrecked goods, no duties on, ix. 129. 
 Writ of annuity, remedy by, viii. 495. 
 
 error, what, iii. 320. See Error. 
 
 when an audita querela lies, and not a, iii. 322. 
 may be abated, when, i. 15. 
 nonsuited, vii. 218. 
 when a supersedeas, ix. 284, 288. 
 to be a supersedeas must be allowed, ix. 288. 
 there must be bail, xi. 289. 
 must be proceeded in without delay, ix. 289. 
 identate nominis, vii. 360. 
 
 partitione facienda, when it lies, ii. 364 ; v. 290. 
 proprietate probanda, viii. 548. 
 
 right, when a new trial will be granted on a, ix. 624. 
 second deliverance, when a supersedeas, ix. 283. 
 scire facias, form of, viii. 619. 
 
 requisites of, viii. 619. 
 trespass, form of, ix. 501. 
 ventre inspiciendo, when awarded, ii. 85. 
 when defect may be pleaded in abatement, i. 20. 
 form of, how settled in chancery, ii. 682. 
 Writer of a libel how far guilty, vi. 354. 
 Writing, in what, a will may be, x. 490. 
 Written scandal, what, vi. 338. 
 Wrong, king can do no, viii. 81. 
 
 Y. 
 
 Year and day, rules respecting, vi. 363. 
 Years, leases for, what, v. 612, 613. 
 
 from year to, what, v. 625. 
 Yeas and noes, how given, ii. 674. 
 Yeoman is a good addition, vii. 11. 
 
 Yielding and paying, effect of these words, ii. 557 ; v. 434. 
 Young of animals, when the subject of larceny, iv. 178, 179. 
 
 tithable, x. 24. 
 Younger children, who shall take a legacy given to, vi. 183. 
 
 THE END.

 
 va 
 
 m!tt 
 
 
 V/CU3