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in^ —
THE
CONVEYANCER S GUIDE ;
A POEM,
IN TWO BOOKS.
W. PoPLE, Printer,
67. Chancery Lrhc, London.
THE
A POEM,
IN TWO BOOKS,
DESCRIBING
<t^tatt^ a^ tfjcp relate to Conbepancejsf,
AND
ConbepanceS a^ef tfjep relate to €;9ftate^t
BY A GENTLEMAN OF GRAY'S INN.
Basima facabasa eanaa irrauista, diarha da cafotaha fohor camelanthi.
Iren. 1. i. c. 18.
THE SECOND EDITION, ENLARGED,
WITH MANY ADDITIONAL NOTES AND REFERENCES.
LONDON :
printed for a. maxwell, law bookseller, bell yard,
Lincoln's inn.
1821.
T
u.
ARGUMENT OF BOOK THE FIRST.
0t ejsftatc^ a^ tfjcp relate to Contjepanceie?.
Line.
iTlvocation of the most celebrated Lawyers, ancient
and modern, chiefly Conveyancers 1
Of natural Society 24
Of the Origin of the Laws of England 93
Of the Feudal System 105
Of ancient Tenures 116
Of modern Tenures 123
Of Estates in Fee Simple Absolute^ and Base, or
Qualified 130
Of Estates Tail 150
Of Estates for Life, and per oMire cie 211
Of Estates by the Curtesy 243
Of Estates in Dower .'. 253
Of Chattels Real, or Terms of Years 266
Of Estates at Will 274
Of Estates upon Condition 285
Estates are either in Possession, Reversion, or Re-
mainder 315
Of Vested, Contingent, and Cross Remainders 317
Of Executory Devises 559
Of Estates in Reversion 626
Of Merger 089
yfiHiriF,^
Line.
Estates are either in Severalty, Joint-tenancy, in Com-
mon, or in Parcenary 732
Of Estates in Severalty 739
Of Estates in Joint-tenancy 744
Of Estates in Parcenary 8»5
Of an Estate in Common 903
OfaTitle 1022
OfaRight 1044
Of Contingencies and Possibilities 1094
OfaPower 2007
Of Mortgages 2078
Of an Equity of Redemption 2098
Of Uses and Trusts ^127
ARGUMENT OF BOOK THE SECOND.
#f Contepance^ a^ tljep relate to €fftate£(*
Line.
Of the Ancient Mode of Conveyance I
A Grant by William the Conqueror 11
OfaFeoffment 36
Of the Distinction between Things in Grant and Livery 141
Ofa Gift 130
Of a Grant or Lease 164
Of an Exchange 206
Of Derivative Conveyances 235
OfaRelease 240
Of a Confirmation 280
OfaSurrender 289
Of an Assignment 303
Of Collateral Deeds and Defeazances 320
Of a Covenant to stand seised 322
Of a Bargain and Sale 344
Of a Lease and Release 362
Of a Devise and WiU 40G
Of a Fine 483
Of a Recovery 652
Advice to the Student 740
INTRODUCTION.
Although the Author has much to apprehend
from the criticism which may be passed upon
the following pages, yet he is disposed to take
every thing in good part ; for he is not so vain
as to imagine himself capable of any thing
worthy of commendation. If, however, the
performance shall be censured, more from the
manner than the matter of it, seeing that it has
been attempted (a thing of no small difficulty)
in the shape of a Poem, he may, perhaps, be
excused for offering some precedents and au-
thorities by way of extenuation. We learn from
Goguet, that " the first laws of any people
were composed in verses, which they sang*.
Apollo, according to a very antient tradition,
has been considered as one of the first of legis-
lators -)-. The same tradition says, that the
* Plato in Mill. p. 567. B. Arist. Problem, sect- 19. prob. 28.
t Strabo. 1. 9, p, 646. Suid. voce No^toj KtOap. p. 630.
h
VI INTRODUCTION.
laws were published to the sound of the harp * ;
that is to say, they were put into song. We have
certain proof that the first laws of Greece were
a species of songs -J-. The antient laws of Spain
were equally chanted in verse J, Tuisco is
considered by the Germans as their first legis-
lator. They say that he put his laws in verses
and in song§. This antient custom of putting
the laws in verse, was preserved a long time
among many nations || ." (De I'Origine des Loix,
Bk. 1.)
The learned Potter alleges, that " Solon, and
after his example, the rest of those that enacted
laws in Athens, committed their laws to writing;
differing herein from Lycurgus, and the law-
givers of other cities, who thought it better to
imprint them in the minds of their citizens, than
to engrave them upon tablets, where it was pro-
bable they might lie neglected and unregarded,
as Plutarch hath informed us, in his life of
Numa Pompilius: ' It is reported (saith he) that
Numa's body,by his particular command, was not
burned, but that he ordered two stone coffins to
be made, in one of which he appointed his body to
* Suid. lb.
t Voy. Co. 2e. Part. Liv. I. ^ III. art. 8.
X Strabo. 1. 3. p. 204.
§ Voy. Kuhnius ad ^Elian. var. Hist. 1. 2. c. 39.
11 Arist. Problem, sect. 19. prob. 28. iElian var. Hist. 1. 2. c.
39. Voy. Aussi. la. 2e. Part. L. I. c. HI. art. 8.
INTRODUCTION. Vll
be laid, and the other to be a repository for his
sacred books and writings, and both of them to
be interred under the hill laniculum ; imitating
herein the legislators of Greece, who having
wrote their laws on tablets, which they called
Kup€a' did so long inculcate the contents of them
whilst they lived, into the minds and hearts of
their priests, that their understanding became
as it were living libraries of those sacred vo-
lumes ; it being esteemed a profanation of such
mysteries to commit their secrets to dead letters.'
In some places, especially before the invention of
letters, it was usual to sing their laws, the better
to fix them in their memories ; which custom,
Aristotle tells us, was used in his days amongst
the Agathyrsi, a people near the Scythians ; and
this he fancies was the reason why musical rules
for keeping time were called Nop,o< *." (Grecian
Antiquities, vol. 1. p. 169.)
Mr. Wynne, on the same subject, after men-
tioning the name of Homer, says, " I am put
on recollecting a material advantage, that
Father of Poetry, as well as many of his de-
scendants, will afford to lawyers: those, I mean,
who either trace the great fountains of justice
up to their head, or pursue the rivulets derived
from thence in the innumerable channels of po-
litical institutions. Homer, alone, is a master
* Prob. 38. sect. 1^.
b 2
VllI INTRODUCTION.
in both respects. As to natural notions of
ri^ht and wrong, and some of the most elevated
sentiments of morality, the fabled waters of
Helicon were scarce purer than his writings.
And those who are at all conversant in Grecian
antiquities, know that many of the antient laws
of Greece are preserved in both his poems.
Could it, indeed, be imagined, when something
in almost every art may be learned from Homer,
that the great arts of government and legisla-
tion alone were unnoticed ? I might, on this
occasion, remind you of Terence, who, besides
the utmost chastity of style, and lively portrai-
ture of manners, for which he is so famous, has,
in copying Menander, preserved many frag-
ments of the Athenian law. But instead of
running over passages, or even the names of
Roman Poets, who have materials of this kind,
I will appeal to the many eminent writers of
natural and civil law for tliis century past, for
the contiibutions they have levied on the poets
and orators, even for the materials of their sub-
ject, exclusive of the refreshment they afford ;
and which Tully insists is so necessary to a man
fatigued with the wrangling and jargon of
courts. In short, it would be no difficult mat-
ter to furnish out a poetical code, which need
not, however, exceed the Corpus Juris, or our
own Viner's Abridgement." (Eunomus. Dial.
1 . p. 75.)
INTRODUCTION. IX
Sir James Macintosh notices, that " we have
no Greek or Roman treatise remaining on the
law of nations. From the title of one of the lost
works of Aristotle, it appears that he composed
a treatise on the laws of war, which, if we had
the good fortune to possess it, would doubtless,
have amply satisfied our curiosity, and would
have taught us both the practice of the antient
nations, and the opinions of their moralists, with
that depth and precision which distinguish the
other works of that great philosopher. We can
now only imperfectly collect that practice, and
those opinions, from various passages which are
scattered over the writings "of philosophers, his-
torians, poets, and orators." (Discourse on the
Study of the Law of Nature and Nations, p. 13.)
It appears that the Civil Law originally con-
sisted of thirty tliousand verses or sentences,
distributed into about two thousand books,
which Justinian reduced into fifty, by the name
of Digests or Pandects. (AylifFe's Civ. Law,
Prehm. Dis. 22.)
Mic. Psellus, who lived in the reign of Con-
stantine Ducas, published a Synopsis of Law, in
political verse. {Ibid. 36.)
Gennaro (Joseph Aurelius), an eminent civi-
lian, born at Naples, in 1701, wrote a book
entitled RespuhUca Juris consult or um, which
teaches the dry and intricate system of civil
law, in the form of a novel.
X INTRODUCTION.
Records, and charters, and wills, have been
written in verse. The following grant was made
by Edward the Confessor to Randolf Peper-
hing :
" Iche Edward * konyng
" Have geven of my forest the keping,
" Of the hundred of Chohner and Dancing,
" To Randolf Peperking and to his kindling -f- ;
" With heort and hynd, doe and bock "jj^,
" Hare and fox, cat and brock § ;
" Wild fowell with his flock,
" Partridge, fesant hen and fesant cock,
" With green and wyld stob and stock,
" To kepen and to || yemen by all his might,
" Both by day and eke by night ;
" And hounds for to holde,
" Gode, and swift, and bolde,
" Four greyhounds and six ** braches,
" For hare, and fox, and wild-cats,
" And thereof Iche made him my book,
" Witness the Bishop Wolston,
" And bock ycleped many on,
" And Swept of Essex, our brother,
" And teken him many other,
" And our steward Howelyn,
" That bysoughtff me for him." \
(Blount's Tenures, 103.)
Robert Fitz- Walter, (a powerful Baron in the
time of Henry III.) instituted a custom in the
• King. t Heirs. J Buck. § Badger. t| Hold.
•* Hound bitches. ft Solicited.
INTRODUCTION. X
IPi'ror^f of DunmoWj in Essex, that whoever did
not repent of his marriage, nor quarrelled with
his wife, within a year and a day, should go to
Dunmow, and have a gammon of bacon. But
the party was to swear to the truth of it, kneel-
ing upon two hard-pointed stones, set up in the
priory church-yard for that purpose, before the
prior and convent, and the whole town. The
form of the oath is as follows :
" You shall swear by the custom of your confession,
*' That you never made any nuptial transgression
*' Since you were married to your wife,
*' By household brawls, or contentious strife,
*' Or otherwise, in bed or at board,
*' Offended each other in deed or word —
" Or, since the parish clerk said Amen,
** Wish'd yourselves unmarried agen ;
" Or in a twelvemonth and a day
" Repented not in thought, any way ;
*' But continued true and in desire,
«
*' As when you joined hands in holy quire.
** If to these conditions, without all fear,
" Of your own accord you will freely swear,
** A gammon of bacon you shall receive,
" And bear it hence, with love and good leave ;
*' For this is our custom at Dunmow, well known,
" Though the sport be ours, the bacon's your own."
Camd. Brit. 413.
The Lawless Court, is a court held on Kings-
hill, at Rochford, in Essex, on Wednesday
morning next after Michaelmas-day, yearly, at
Xll INTRODUCTION.
cock crowing; at which court they whisper, and
have no candle, nor any pen and ink but a coal :
and he that owes suit or service there, and ap-
pears not, forfeits double his rent. This court
is mentioned by Camden^ who says that the ser-
vile attendance was imposed on the tenants for
conspiring at the like unseasonable time to raise
a commotion. (Camd. Brit. 441.) It belongs
to the honor of Raleigh, and is called lawless,
because held at an unlawful hour ; or quia dicta
sine lege. The title of it is in rhime, and in the
court roll runs thus :
" Kingshill, in-» jgg
Rochford. -»
" Curia de domino Rege,
" Dicta sine lege,
" Tenta est ibidem
** Per ejusdem consuetudinem,
" Ante ortum solis
" Luceat nisi polus,
" Senescallus solus,
" Nil scribit nisi colis,
" Toties voluerit
" Gallus ut cantaverit,
" Per cujus soli sonitus
" Curia est summonita :
" Clamat clam pro rege
" In curia sine lege,
" Et nisi cit5 venerint
" Citius ptcnituerint, ,
INTRODUCTION. XUl
" Et nisi clam accedant
** Curia non attendat,
" Qui venerit cum lumine
*' Errat in regimine,
" Et dum sunt sine lumine,
" Capti sunt in crimine,
" Curia sine cura
** Jurati de injuria.
*• Tenia ibidem die Mercurii (ante diem), proximi,
post Festum Sancti Michaelis, anno Regni Regis,
&c."
The custom of the manors of East and West
Enborne, in the county of Berks, is, that if a
copyhold tenant die, the widow shall have her
free bench in all his copyhold lands, whilst she
is sole and chaste ; but if she commit inconti-
nency, she forfeits her widow's estate : yet after
this, if she will come into the next court held for
the manor, riding backward on a black ram,
with his tail in her hand, and say the words fol-
lowing, the steward is bound by the custom to
re-admit her to her free bench.
" Here I am, riding upon a black ram,
" Like a whore as I am ;
" And for my crincum craucum
" Have lost my biticum bancum ;
*' And for my tail's game,
*• Am brought to this worldly shame :
** Therefore, good Mr. Steward, let me have my
lands again."
XIV INTRODUCTION.
The like custom is in the manor of Tor,
county of Devon. (Blount. 144.)
Sir Edward Coke's Reports have actually been
done into verse by an anonymous author. The
name, and the principal point of every case, are
contained in two lines. The following will serve
for examples :
" 511tCf|er, if he for life enfeoff in fee,
" It bars remainders in contingency.'* (1 Rep. QQ.)
** ^nd0* — If a person says he kill'd my wife,
" No action lies, if she be yet alive."
(4 Rep. 16.)
*' irO]5tCt, justice of peace, may warrant send,
•' To bring before him such as do offend." (5 Rep. 69.)
The following wills have been proved in the
Prerogative Court of Canterbury :
"The fifth, day of May,
" Being airy and gay,
" And to hyp not incHn'd,
" But of vigorous mind,
*' And my body in health,
" I'll dispose of my wealth,
" And all I 'm to leave
" On this side the grave,
" To some one or other,
" And, I think to my brother ;
" Because I foresaw
That my breth'ren in law.
INTRODUCTION. XV
« If I did not take care,
«* Would come in for their share,
" Which I no wise intended,
" 'Till their manners are mended,
" And of that, God knows, there 's no sign.
" I do therefore enjoin,
" And do strictly command,
*' Of which witness my hand,
" That nought I have got
" Be brought into hotch-pot ;
** But I give and devise,
^' As much as in me lies,
" To the son of my mother,
" My own dear brother,
" To have and to hold,
" All my silver and gold,
*' As th' affectionate pledges
** Of his brother, John Hedges."
" What I am going to bequeath,
" When this frail part submits to death —
** But still I hope the spark divine,
" With its congenial stars shall shine —
'* My good executors, fulfil ; ^
*' And pay ye fairly my last will, >
" With first and second codicil. '
" And first, I give to dear Lord Hinton,
" At Twyford school now, not at Winton,
** One hundred guineas, and a ring,
" Or some such memorandum thing :
" And truly much I should have blunder'd,
" Had I not given another hundred
" To dear Earl Paulett's second son,
" Who dearly loves a little fun :
Xvi INTRODUCTION.
" Unto my nephew, Stephen Langdon,
" Of whom none says he e er has wrong done^
" The civil law he loves to hash,
" I give too hundred pounds in cash :
" One hundred pounds to my niece Tudor
*' (With leering eyes one Clark did view her);
" And to her children, just amongst 'em,
" A hundred more ; and not to wrong 'em,
<* In equal shares I freely give it,
" Not doubting but they will receive it.
" To Betsy Mudford and Mary Lee,
'* If they with Mrs. Mudford be,
" Because they round the year did dwell
" In Davies* Street, and serv'd full well ; —
" The first ten pounds, the other twenty ;
*' And, girls, I hope that will content ye.
*' In seventeen hundred and sixty-nine,
" This with my hand I write and sign,
" The sixteenth day of fair October,
*• In merry mood, but sound and sober.
" Past my three-score and fifteenth year,
*' With spirits gay and conscience clear ;
" Joyous and frolicksome tho' old,
" And like this day, serene, but cold ;
*' To foes well wishing, and to friends most kind;
*' In perfect charity with all mankind.
" For what remains, I must desire,
" To use the words of Matthew Prior :
'' Let this, my will, be well obey'd,
" And farewell all, I'm not afraid ;
" For what avails a struggling sigh,
'* When soon or later, all must die ?"
"M. Darley."
INTRODUCTION. XVll
The author's last refuge will be under the ce-
lebrated Cowper.
" Poetical reports of law cases are not very
common ; yet it appears to me desirable that
they should be so. Many advantages would
accrue from such a measure. They would, in
the first place, be more commonly deposited in
the memory; just as linen, grocery, and other
matters, when neatly packed, are known to oc-
cupy less room, and to lie more conveniently in
any trunk, chest, or box to which they may be
committed. In the next place, being divested
of that infinite circumlocution, and the endless
embarrassment in which they are involved, by it,
they would become surprisingly intelligible, in
comparison with their present obscurity. And
lastly, they would by that means be rendered
susceptible of musical embellishment ; and in-
stead of being quoted in the country with that
dull monotony, which is so wearisome to by-
standers, and frequently lulls even the judges
themselves to sleep, might be rehearsed in reci-
tation, which would have an admirable effect in
keeping the attention fixed and lively, and could
not fail to disperse that heavy atmosphere of
sadness and gravity, which hangs over the juris-
prudence of our country. I remember, many
years ago, being informed of a relation of mine,
who in his youth had applied himself to the
study of the law, that one of his fellow students.
XVIU INTRODUCTION.
a gentleman of sprightly parts, and very re-
spectable talents of the poetical kind, did actually
engage in the prosecution of such a design, [for
reasons, I suppose, somewhat similar to, if not
the same, with those I have now suggested. He
began with Coke's Institutes ; a book so rugged
in its style, that an attempt to polish it seemed
an herculean labour, and not less arduous and
difficult than it would be to give the smoothness
of a rabbit's fur to the prickly back of a hedge-
hog. But he succeeded to admiration, as you
will perceive by the following specimen, which
is all that my said relation could recollect of the
per/ormance : —
" Tenant in fee
" Simple, is he,
*' And need neither quake nor quiver,
" Who hath his lands
" Free from demands
" To him and his heirs for ever."
The ingenious writer afterwards gives us the
following poetical report of a law case, between
Nose, plaintiff, and Eyes, defendants :
'• Between Nose and Eyes a sad contest arose,
" Tlie spectacles set them unliappily wrong ;
" The point in dispute was, as ail the world knows,
" To which the said spectacles ought to belong.
INTRODUCTION. XIX
" So the Tongue was the lawyer, and argu'd the cause
" With a great deal of skill, and a wig full of learn-
ing ;
'' While Chief Baron Ear sat to balance the laws,
'' So fam'd for his talents and nicely discerning.
" ' In behalf of the Nose it will quickly appear,
" ' And your lordship,' he said, ' will undoubtedly
find,
'' * That the Nose has had spectacles always to wear,
" * Which amounts to possession, time out of mind.'
" Then, holding the spectacles up to the court,
** * Your lordship observes, they are made with a
straddle
*^ ' As wide as the ridge of the nose is ; in short,
*' ' Design'd to sit close to it, just like a saddle.
" ' Again — would your lordship a moment suppose,
" ' ('Tis a case that has happen'd, and may be again,)
" ' That the visage or countenance had not a nose,
" * Pray who would, or who could, wear spectacles
then ?
" ' On the whole, it appears, and my argument shews^
" * With a reasoning the court will never condemn,
'* * That the spectacles plainly were made for the nose,
" ' And the nose was as plainly intended for them.*
^* Then shifting his side, as a lawyer knows how,
" He pleaded again in behalf of the eyes ;
" But what were his arguments, few people know,
" For the court did not think they were equally wise.
XX INTRODUCTION.
" So his lordship decreed, with a grave solemn tone,
" Decisive and clear, without one if or but,
*' That whenever the Nose put his spectacles on,
" By daylight or candlelight. Eyes should be shut."
Life by Hayleij, vol. 1, 298.
THE
CONVEYANCERS GUIDE.
BOOK THE FIRST.
m €^tateief a^ tljcp relate to Contjcpance^.
Oh ! Ocham, Britton, Glanville, Bracton, Brooke,
St. Germyn, West, Hale, Littleton, and Coke;
Lilly, and Horsman, Duane, Booth, and Fearne,
Bridgman, and Blackstone, Butler, Hargrave,
Heme,
Hill, Preston, Siigden, Sanders, Roe, and Cruise,
Names now immortaliz'd, assist my muse ! 6
Shall what is call'd a civil action,
Which drives poor clients to distraction —
(Who, if they chance to get the day,
May still have all the costs to pay * ;) 10
* Although the plaintiff recovers damages by a verdict, yet the
court will sometimes give the defendant leave to enter up judgment
for himself, upon the principle that de minimis non curat lex. (2
Bos. & Pul. 86.) This is really verifying the old proverb in Ploicdeu
(p. 25), " that on« shall beat the bush, and another have the bird."
B
Shall Counting, at the common law,
Compai-'d by Br acton to a war — *
* Lord Hohart, after telling us that Bructon observed a threat re-
semblance between mUltaris et civilis, proceeds to inform us that —
" all the policy and order [of pleading] instructeth a man first to
scirmish and practice some slight feats before he joins battle ; so we
begin first with the pleas to the jurisdiction of the court, then to the
l)erson, then to the writ, then to the action of the writ, and then to
the action itself. And iipou all demurrers the arguments begin ever
with the point of form, before they speak to the matter of law. And
that, as in a battle, you will not put every kind of weapon into 6Tery
man's hand, nor appoint all men confusedly to all services, but sort
men according to their several faculties, and appoint to every m_an
his own station, in which he must stand, and not leap into another
man's place (though with hope of, and he doth it with success,
yet he deserves death by the martial discipline, whereof the Romans
were the greatest masters and teachers) ; much more exactly does
the law assign to every person in this civil war, his proper action
an4 service, according to the property of liis case and faculty." (Rep.
230.)
Ralpho, the esquire of Hudibras, has also complimented forensic
strife with a military comparison ; but he makes tlie combatants as
discreet as valiant : in other words, his character of the lawyers,
like a celebrated epigram, likens their contests to shears, wliich never
cut themselves, but only what comes between them.
" though the bus'ness at the bar.
Be but a kind of civil war.
In which th' engage with fiercer dudgeons.
Than e'er the Grecians did and Trojans ;
They never manage the contest
T' impair their public interest.
Or by their controversies lessen
The dignity of their profession.
»»♦#*■
While lawyers have more sober sense.
Than t' argue at their own expense,
But make their best advantages
Of others' quarrel?, like the Swiss ;
3
Shall special -pleading sound the lyre,
(Touch'd by poetic Ansteys * fire,)
Unjustly prais'd by Littleton -j~, 15
And recommended to his son ;
And we not rise on fancy's wing, ^
A nobler subject try to sing, J
The Science of Conveyancing ? ^
A theme which merits well the bays, 20
Because it is of acts in pais ;
A subject Coke himself supposes,
To be at least as old as Moses.
There was a time, Bochartus tells us.
When all mankind were honest fellows ; 25
Did as they pleas'd, without control.
In tents and caves liv'd cheek by jowl ;
And out of foreign controversies.
By aiding both sides, fill their purses ;
But have no int'rest in the cause.
For which th' engage and wage the laws.
Nor further prospect than their pay.
Whether tliey lose or win the day.
*****
But lawyers are too wise a nation,
T' expose their trade to disputation ;
Or make tlie busy rabble judges
Of all their secret piques and grudges.
In which, whoever wins the day.
The \yholc profession's sure to pay.
Hudibras, Canto iii. v. 441,
* The presumed author of the Pleader's Guide,
t " And know, my son, that it is one of the most honorable, laud-
able, and profitable things in our law, to have the science of well plead-
ing in actions real and personal • and therefore I counsaile thee especi-
ally to employ thy courage and care to learne this." (Litt. sect, 534.)
2b
Or under hedges, like our gypsies.
Thought meat and drink sufficient riches ;
And led a quiet happy life, 30
Without contention, noise, or strife ;
FoUow'd dame nature's wholesome rules —
Were neither rogues, nor thieves, nor fools.
Had all things common, goods and chattels.
Strangers to wars and bloody battles, 35
Convers'd together in one tongue.
And knew what's right from what is wrong.
Made marriages, by inclination.
And us'd a brookstick on th' occasion ;
Jump'd over it, and plighted troth, 40
Which serv'd for bans and parson both.
Nor thought, when walking out of doors.
Of any other paramours —
Strangers to cuckoldom, and all
The ills which gallantry befall. 45
Brought up their boys, with lusty drubs,
And worked their girls at washing tubs ;
Lord Coke calls special pleading " the sure oracle of law." (2 Co.
68. a. lb. 64. a. 3 Co. 9. a. lb. 27- «.) And in another place,
he calls good pleading the lapis li/rlins, or touchstone of the true
sense and knowledge of the common law. (10 Co. 29. I).) And yet
he confesses that more jangling and questions grow upon the manner
of pleading and exceptions to form, than upon the matter itself. —
Wood, in his Institute, condemns it as useless trumpery : and on the
other hand. Sir William Jones, in his Law of Bailments, terms it
Cxcjuisite logic. There has been an address in Parliament against
special pleading. See the Journals of the House of Commons, 11 th
February, 1730, and I3th February afterwards, in the same session.
Or made them waltz in purling- streams,
As Arethusa did, it seems.
Instead of learning Frencli and singing, 50
Their pretty hands the cloathes were wringing,
Or otherwise employ'd in drudging.
To which they never felt a grudging.
Unlike our modern misses, who
Can neither roast, nor boil, nor brew ; 55
Who think it ungenteel, and shocking.
To milk a cow or darn a stocking :
Though still they all will married be,
(Their everlasting destiny,)
They are too proud, and will not truckle, 60
Their progeny at all to suckle ;
But make their husbands draw their purses.
And like the cuckows, hire nurses.
But when ambition, pride, and pow'r
Set up the famous Babel tow'r, G^
(For the profession, happy hour !)
In Phalegs time ; then noise and strife
Destroy'd that simple mode of life ;
The language which before all us*d.
Became a gibberish quite confus'd ; 70
And as they jabber'd, swore, and storm'd.
Each on his back the other turn'd.
What Japhefs grandson took for tillage.
Old Nimrod claim'd by right of pillage ;
And war was wag'd, till fear and dread, 75
Brought in a government instead.
States, property, and laws succeeded.
(Had men been honest little needed,)
From whence we date all worldly titles,
•To manors, houses, lands, and pightles ; 80
Derive all sciences, and arts,
Divided into various parts ;
By which we measure earth and sky,
And even into nature pry * ;
* If we come to consider man as endowed with reason, w6 sliall
plainly see that with it, as with a bright and radiant scepter, he can
rule and guide, and govern and give laws to the whole world, the
sun, the moon, the stars ; though he cannot stop their motions,
because their motions are set at work and ordered, even as man
himself is, by the law eternal : yet by his reason he can give such
laws unto their motions, as to make thepn subservient to his use.
He knows how to travel by the stars either by land or water ; and
since he found out by his reason the use of sails and the compass, he
may justly be said Leges novas scrihcre ventis, as Seneca's expres-
sion is, to give laws to the loinds themselves. The light and heat of
the sun, he can give laws unto them ; he can either admit the light,
or exclude it from his presence ; he can encrease the heat, or di-
minish it; he can augment, or abate its vigour; in a word, he can
give such laws to it, as to make it serve him as he pleases. The
fowls of the air, though they are above him in respect of place, yet
he knows how to bring them all under him ; the sharpness of their
bills and talons cannot defend them ; the height of their nests in
the craggy rocks, and the highest trees, cannot save them ; neither
can they with their wings fly from him, but must submit to him, and
lie prostrate at his feet, when he spreads abroad those laws or nets,
which reason can tell how to make. If we come to consider the
earth, who sees not that all things both in and upon it are subject to
the laws of reason ? The elements of fire, air, earth, and water,
may all be moulded and modelled as man pleaseth. The plants and
herbs and trees, are made to grow as he directs. The metals can-
not exempt themselves from the power of his empire, though they
hide themselves in the bowels of the earth. The beasts of the field,
though stronger than he by far, yet by the help of his reason, he
Yet still for all, we have a will, B5
That's ever prone, to do what's ill * ;
And ne'er shall find the summiwi bonum f ,
Until we get to dtdce domum.
As rivers flow from little fountains,
And mole-hills are a sort of mountains ; 00
So laws proceeded by degrees,
As acorns grow to timber trees.
From whom our laws did first arise,
Has been a question with the wise ;
makes thein alibis servants. He can tame, rule, and guide thcin as he
pleases ; by the rod, by the whip, by the spur ; nay, by his voice only
and whistle, he makes them all swift and nimble in his business.
He makes some of them to carry him, in his pursuit of others ; and
some, by understanding their natures and tempers, has he trained up
to hunt after, and seize on and kill their fellow creatures for his
pleasure. If we set ourselves to consider the sea, there is that
Leviathan who takes his pleasure therein, of a prodigious bulk and
{greatness ; yet man by the help of his reason can give laws unto
him, and put hooks into his nostrils. The formidable element of
water, the depth of the sea and rivers, the fins and scales of fishes,
do not, cannot prevent tlie reason of man, but with hooks and nets,
as so many laws, are they drawn from the i>rofound deep before his
tribunal; nay, the oyster and tlte cockle, the most small and mhmte,
cannot hide themselves in the very mud of the bottom, from his
jurisdiction. — Dawson's Orig: Leg: 25.
* There is a vis abdita (says Algernon Sidney) which sways all
human things, turns them which way it pleascth, blasts the best
weighed counsels, and makes the most absurd follies often servke-
able to the greatest good.
t In Varro's time there were nO less than two hundred eighty and
eight different opinions as to this. Fide Aug. De Civ. Dei. 1. 19.
ch. 1.
8
If from Molmutius *, or ap Hoel -j-, 95
Spelman and Bodin best can tell ;
Some think a tinker brought them in,
Who came from Greece to purchase tin J;
Others declare it was not so,
And give the lie direct to Straho ; 100
Some say 'tis clearly understood
They first were found out in a wood ;
That " Quirk" and " Quercus" mean tlie same.
And do their origin proclaim :
In this, however, all agree, 105
That when the Huns of Scythia,
A swarm of swarthy, filthy wretches.
True sans culottes, bereft of breeches.
O'er ran all lands with fire and sword.
They were repell'dwith one accord; 110
Soldiers got lands instead of pay.
To hold by suit and fealty ;
And either policy or fear,
Made Norman William bring feuds liere ;
And they became the origin, 115
Of Wardship, Livery, Primer seisin,
Together with the Royal aids,
For making wives of tenants maids ;
* King of the Britons about 400 years before the Christian aera. —
(Spel. Glos. 362.)
t Hoel Dha,or Hoel the Good, lived A.D. 914. (Ibid. 1. 1, cap 50.)
X Pref. 3 Rep. where Lord Coke refers to Strubo, lib. 4. Geogra-
ph'ice.
9
Knight-service, Homage *, Escuage,
And forfeitures of Marriage : ^^0
Oppressive tenures, now in lieu
Of which, we have but only two.
The Common Socage, and the Free ;
Save Copyholds, and Serjeantry, -.
And customs, such as 7Jf((7rcAeto -f-, ^ 125
A right commuted for, they say : '
Thus much for tenures ; now let's see
What number of estates there be :
The first, and best estate of all, ^
Is that' which we fee simple call — V ^^^
'Tis absolute and general, J
When limited unto, and to
The Use, for instance, Richard Roe,
His Heirs and Assigns for ever.
Without incumbrance whatsoever:};, 135
* TAtt. Sect. 85, says that Homage was performed by the Lord's
kissing the tenant ; and Cohe says, 67, «, If a man hold of the king,
nnd hath issue divers daughters, and dieth, the king shall have homage
of every one of the daughters.
t The custom of Marcheta gave the Lord of the fee a right
to break the seventh Commandment with his tenant's wife on the
•wedding night. Robinson on Gavelkind (Appendix) says, that the
right is commuted for by a fine paid in many manors, particularly in
the northern counties, who drew this barbarous usage from the
Scots, among whom, by a law of King Evenus the 3d, " Rex ante
nuptias, sponsurum nobUium, nobiles plebeiarum preelibahant pudi-
cieiam." This appears to have been the reason of the custom of
Borough-EngUsh, that the youngest son, and not the eldest, shall
succeed to the Burgage tenement on the death of the father, as be-
ing more certainly his offspring.
X When all estates were fee simple, then purchaeers were sure of
10
There is another fee, caU'd base,
Which very seldom shews its face :
'Tis when the limitation's to
The use of the said Richaixl Roe,
His heirs and assigns, until 140
A river's dry, which turns a mill ;
Perhaps a drought in summer, may
The miller's avocations stay-—
Drink up the stream ; in such a case
Poor Roe's estate is made to cease. 145
But if the limitation's niade
So long as cheating 's us'd in trade*,
Or vice prevails : 'tis like the other.
And may endure then for ever.
Fee fail estates will follow now, 150
Of which there are but only two ;
their purchases, farmers of their leases, creditors of their debts, tlie
king and lords had their escheats, forfeitures, wardships, and other
profits of their seignories ; and for these, and other like cases, by
the wisdom of the common law, all estates of inheritance wei'c
fee simple ; and what contentions and mischiefs have crept into the
<juiet of the law by fettered inheritances, daily experience tcacheth
us. (Co. Litt. 19.B.)
* Cheatuig will always prevail, in defiance of all human laws, for
it cannot be avoided, but so long as i-ontracts be sufl'ercd, many
offences shall follow thereby. {Doctor and Student, ohap. 3.) In
buying and selling, the law of nations connives at some cunning and
overreaching in respect of the price. Dy the civil law, a just price is
said to be that, whereby neither the buyer nor seller is injured above
one moiety of the true and common value ; and in this case the per-
son injured rihall not be relieved by rescinding the sale, for he must
impute it to bis ovvu imprudence a^ul indiscretion.
11
Tlie special, and the general,
Resti'ain'd to heirs lineal,
Excluding the collateral.
The last is when the gift is to 155
A man, for instance, Richard Roe,
And the heirs of his bodi/— here
It very plainly does appear,
That if he marries Lucy Stiles,
Then Jenny Guy, next Fanny Miles, 160
And he hath issue by them all.
Each in successive order shall
Take the estate per formam doni,
Without denial made by any.
And each will have it by descent, 165
Until the tail is fully spent ;
Unless, by means you'll after see.
The tail is barr d, and made a fee.
In special tail the gift is to,
For instance, the said Richard Roe, 170
And the heirs of his hody by
His present wife, late Jenny Guy ;
Here, other issue won't avail —
None else at all can have the tail.
But if, alas! they can't get any, 175
Tho' Dick himself should have a many,
By various other venters ; all
The generation ever shall
Excluded be, and then the tail.
For lack of issue, needs must fail. 180
12
But if the limitation 's to
The use of the said Richard Roe
For life, remainder to his son,
(He, Roe, already Iiaving- one)
And the heirs of his body : — he 1 85
A purchaser will clearly be,
And may, when he is twenty-one,
(If not before his race is run) ;
By means of a recovery,
Cut off the tail, and get the fee ; 190
No acts of Roe can well prevail.
To bar the son of such his tail.
Tho' if the limitation 's to
The use of the said Riohard Roe
For life, tail in remainder to 195
An unborn son of the said Roe ;
He (Roe) has fully then the pow'r,
And may destroy it the next hour :
Contrary to the settlement.
And what the parties clearly meant. 200
For remedy of such abuse.
The fam'd invention came in use * ;
* The inserting trustees to support contingent remainders took its
rise from the two great cases {Chudleigh^s, 1 Co. 120, a. ^ivi\Archer^s,
1 Co. 66, a.), though not brought into use until after the usurpation.
The defect that called for a remedy, was the want of a vested estate
in feoffees to uses : in Chudleigh's case the judges ran into refined
and speculative reasoning; one thing the majority of them went upon
was, that such right in the feoffees to support the contingent uses
would introduce a perpetuity, if it was not capable of being barrotl :
}
13
A limitation made unto
Trustees in fee, for life of Roe ;
Who clearly may an entry make, 205
And of the land possession take,
If any act by Roe is done,
To bar remainder to his son ;
Which must be in contingency,
Until such son shall be in esse. 210
The next are freeholds, and which may,
To-morrow cease, tho' made to-day,
The lowest call'd per autre vie.
On life or lives they all depend,
Sooner or later sure to end ; 215
Like lighted candles, soon consume.
Give place to others in their room*.
the law was then not settled ; but afterwards, in Archer's case (wliicU
is placed first in Coke's Reports, though subsequent) this point was
adjusted ; and also in the argument of Pollexfeii it was fully stated,
and allowed in the case of Hales and Risley. Secondly, it was for-
merly a question whether trustees took any estate at all, except only
a right of entry in case of forfeiture ; but this was soon settled in
Cholmley^s case. (2 Co. 50, a.) A lease to A. for life, remainder to
B. during the life of A. is a good remainder. (41 Edw. 3. Fitz. tit.
Waste, 53. Buncombe v. Duncombe, 3 Lev. 457.) If it is so after an
estate for life, it is much stronger after an estate for years. (Garth
V. Cotton, 3. Atk. 751.)
* Our life is so short and vain, as if we came into the world only
to see it and leave it ; by that time we begin to understand ourselves
a little, and to know where we are, and how to act our part, we must
leave the stage, and give place to others, as mere novices as we were our-
selves at our first entrance. And this short life is employed in a great
measure to preserve ourselves from necessity, or diseases, or injuries
of the air, or other inconveniences ; to make one man easy, ten must
work and do drudgery ; the body takes up so much time, we have
14
Some arc by deed expressly made —
The law to others gives its aid :
They can't commence in futuro, 220
For this plain reason you mnst know,
Because they're made by Uverf/ *,
(Which takes effect immediately)
Or other means which give the seisin,
Of which you'll after see the reason. 225
If an estate is given to
The use of the said Richard Roe
For life, it shall so long endure.
Unless he makes a forfeiture,
Or dies a curious sort of death, 230
By other means than loss of breath ;
A death, which lawyers civil call -f,
Dislik'd Ijy undertakers all
Because it wants no funeral.
little leisure for contemplation, or to eultivale the mind. (Burnett's
Theory, i. 185.)
'* Livery of seisin was first invented as an act of notoriety, wliere-
l)y people might have knowledge of estates, and he more ahle to try
them, if they should be impannelled on a jury. (Plowd. 202.)
f When a man entereth into religion and is professed, he is become
dead in law, and his son or next cousin shall inherit him, as well as
though he were dead indeed. And when he entereth into religion he
may make his testament and his executors, and they may have an ac-
tion of debt due to him before his entry into religion, or any other
action that executors may have, as if he were dead indeed ; and if he
make no executors the ordinary may commit the administration of
his goods to another, as if he were dead indeed. (Lilt. Sec. 200.)
Hence the reason of a grant to a man for the term of his natural
life. Previously to the l)eing professed there was a solemn renunci-
ation of all sublunary enjoyments, and a farewell given to the world.
15
And some estates for life, depend 2{V)
On certain acts, which may them end :
" I renounce in the first place (said Tliomas h Kcmpis), all my
friends, parents, relations and kinsfolk ; all that are near and dear,,
known and familiar to me ; also all cities, castles, and coimtry seats ;
item all mountains and vailies, rivers and fountains, fields, meadows,
and woods, should they at any time be mine or offered to me ; all
ornaments, rich household stuff, pleasant and magnificent houses ;
all psalteries, harps, org^ans, musicians, songs, garlands, perfumes ;
all merriments, clui)s, banquets, conversations, visits, salutations,
favours, honours, and delights of men ; all buffooneries, noises,
rumours, plays, jests, wanderings, excursions, tumults, useless oc-
cupations ; all riches, goods, emoluments, properties, chaises,
offices, dignities, solacements, recreations from without^ and all
whatsoever either the flesh can be tempted, allured, and delighted
with, or the spirit hindered, molested, and defiled by."
" Farewell, ye gilded follies, pleasing troubles ;
Farewell, ye honor'd rags, and chrystal bubbles j
Fame's but an hollow ecko ; gold, poor clay ;
Honour, the darling but of one short day ;
Beauty, (chief idol) but a damask skin ;
State, but a golden prison to live in.
And torture freeboru minds ; embroider'd trains.
But goodly pageants ; proudly swelling veins.
And blood ally'd to greatness, is but loan
Inherited, not purchased, not our own.
Fame, riches, honour, beauty, state, trains, birth.
Are but the fa^ding blessings of the earth.
I would be rlclL ; but see man, too unkind.
Digs in the bowels of the richest mine.
I would be great ; but yet the sun doth still
Level his beams agaijisfe the rising hill.
I would h&faii'i but see the champion proud.
The world's fair eye, oft setting in a cloud.
I would i)e fmt' ; but, that the fox, I see.
Suspected guilty, when the fox is free.
16
If an estate is giv*n to.
The use of the said Richard Roe,
Until he shall or may obtain,
A Benefice or other Gain ; 240
So soon as Roe is at his ease
His hfe estate is made to cease.
A Freehold hy the curtesy,
Is where a woman seis'd in fee,
Or tail, and hath a Husband — he 245
If issue born alive, shall be
I would be poor ; but see the humble grass
Trampled upon by each unworthy ass.
Rich, hated ; wise, suspected ; scorn'd if poor ;
Great, /(?rtr'f/; fair, tempted; high, still ewi'^V/ more.
Would the world then adopt me for her heir.
Would Beauty's Queen intitle me the fair ;
Fame speak me honmtr's minion ; and could I,
With Indian monarchs, and a speaking eye.
Command bare heads ; bow'd knees ; strike Justice dumb.
As well as blind and lame ; and give a tongue
To stones, by epitaphs ; could I be all
That makes a figure on this earthly ball ;
Could I be more than any man that lives.
Great, wise, rich, fair, all in superlatives :
Yet I these favours would more free resign
Than ever fortune would have had them mine :
I count one minute of my holy leisure
Beyond the worth of all this earthly pleasure."
Hickes de Imitatione Christi, pref. to, and 2d. vol, 4 7- Honest Isaac
Walton in his Angler, or Contemplative Man's Recreation, attributes
the above verses to Sir Henry Wotton ; and Francis Quarles laid
claim to them : but Dr. Hickes refers to Vit. Bon. Monacli. & Epi"
taph. Brev. Mon.
m
17
Tenant for life, (the wife first dying,)
If the child is born a-crying- *,
But if 'tis still born, why then he
Is not allow'd his curtesy/ ; 250
For 'tis a loss to all the nation.
To be depriv'd of generation.
If husband die, who 's seis'd in fee,
Or tail, the wife shall Dowr^ess be ;
And have deliver'd to her hands, 255
A third of all his Houses — lands —
To hold for life ; provided she
Is nine years old, as well as free
From any charge of advowtry.
For if she 's v/anton been, shame on her, 260
And sacrific'd her husband*s honor,
As did the wife of John Comoys -}-, —
Her right of Dower it destroys ;
• If the issue be born alive it sufficeth, and the crying of the
child is but a proof that it is born alive. (8 Co. 35.)
t This gentleman, instead of the brutal practice of selling his wife
at Smithfield, made a grant of her : * Noveritis me tradidisse et
demisisse spontanea mea voluntale domino Willielmo Paynell militi
Margaretam uxorem meam, et concedo, quod IVIargareta cum pre-
dicto Willielmo remaneat pro voluntate ipsius Willielmi." After-
wards William and Margaret lived together, and John died. Ruled
first, that this was a void grant: — 2d, That it did not amount to a li-
cence, or at least it was a void licence : — 3d. That after elopement
there shall not be any averment quod non fuit adultcrium, though
William and Margaret after the death of John intermarried. So
she was barred of dower. iVo^a— they produced a sentence of pur-
gation of adultery in the Ecclesiastical Court ; yet not allowed
against such presumption. Hal. MISS. See Coraoya' Grant of his
C
18
Although lier husband, when ahve,
Had girls in keeping, four or five. 265
The next estates, are chattels real —
Mere contracts under hand and seal ;
For if lessor grants to lessee,
A lease commencing presently,
Or from a day perhaps to come, 270
To last, may be, till day of doom.
Or for ten thousand years, it will
Remain a chattel real, still.
The last estates, and least of all.
Mere Tenancies at will we call ; 275
They cannot be at all convey'd
By matter of record, or deed.
Now having sorted Fees from Tails,
As coblers do their brads and nails ;
Classd the estates pur autre vie, 280
For life, in dower, l)y curtesy/ ;
Distinguished Freeholds from the Terms,
As saplings are from younger germs.
And shewn estates at will, we shall
Proceed to those conditional. 285
Wife at length in 2 Inst. 435, and in margin of Dyer's Edit. Ifi88,
fol. 106 b. Co. Litt. 32 a. Note 10. In Dower, Defendant pleaded
elopement in the wife ; the wife replied that her husband had bar-
gained and sold her to the adulterer ; and held bad : and licence by
husband to wife to lie with another man, cannot be pleaded in bar to
an action of trespass by the husband ; nor that she was a notorious
lewd woman ; but these matters may be given in mitigation of da-
mages. (Coot v. Berty. 12 Mod. 232.)
19
A Term, a Freehold, and a Fee,
May to conditions subject be ;
And being so, may all depend
Upon events which may them end :
Thus, if a man who 's seis*d in fee, 290
For life, or years, turn Felon, he
By such a breach shall forfeit all ;
The estates are held conditional.
If ever he prov'd thief, that he
A tenant should no longer be. 295
If tenant for life, or yw^rs, there be
On Feoffment made, by him in fee.
It is a Forfeiture of all ;
He held by Grant conditional.
Conditions in a Grant or Deed, 300
Are subsequent, or do precede * :
If an estate is given to
The Use of the said Richard Roe,
Upon his marriage with Miss Doe -^
* The nature of a condition precedent is, that it must be performed
before ever the estate can vest ; and if the performance of the condi-
tion becomes impossible by the act of God, yet tlie estate shall never
accrue to the party; so if it becomes impossible by any other incrit-
able accident. The relief in equity has always been in the case of
subsequent conditions which dr^termine an estate, and are not fa\^our-
ed in law, as to which, if the condition becomes impossible the estate
shall not be defeated. (12 Mod. 183). Relief will now be given in
some cases against conditions precedent, if compensation can be
made. The distinction taken between conditions precedent and
subsequent, as to relief, seems to be only when compensation can or
cannot be made. (Francis's Maxims, 49.)
c2
20
The Parson must it solemnize, 305
Before the Use can ever rise.
But if a Gr-anf is made in fee.
Which to Conditions subject be.
On breach whereof, 'tis reasonable,
Th' estate should be defeasible ; 310
On Grantor's entry, as 'twas meant,
Conditions then are subsequent ;
And to this class you may refer all.
Base fees, and fees conditional.
Estates are either in possession, 315
Or in remainder, or reversion ;
Those in remainder, owe their being
To the estate that's intervening ;
For things supported needs must fall.
When no support they have at all ; ^ 320
And such estate, particular we call ;
On it remainders are all rested,
As well contini^ent as those vested *.
]
* Lease for life to a Monk, remainder in fee, remainder void, be-
cause tlie monk had not capacity to take the estate for life ; so
that the estate which precedes the remainder is void, and ea? con-
scquenti, the remainder is void. (Plowden, 35.) Though such
estate in remainder would have been good in a will. Husband and
wife, seised in fee in right of the wife, levy a fine mth proclama-
tions, and by deed declared the fine should enure to the use of
the heirs of the body of the husband begotten on the body of the
wife ; remainder to the right heirs of the husband. They had issue,
but such issue died, living the husband and wife. The wife died,
and afterwards the husband died without issue. Adjudged, the estate
belonged to the heir of the wife, and not to the heir of the
husband, because the uses declared by the fine were void for want
21
If a man who 's seis'd in fee,
Doth make a Grant for years lo B., 3^5
Fee in remainder over ; — here
It very clearly does appear,
If Term and Remainder added be,
They make up one estate in fee.
So if a man who 's seis'd in fee, 330
Doth make a Grant of lands to B.
For twenty years, and then to C.
And D. for life, successively.
With ultimate remainder over.
To A. and to his heirs for ever ; 335
If Term and Remainders added be,
They make up one Estate in fee.
Estates of Freehold can't, you know,
Commence at all in futuro,
Because they *re made by Livery, 340
(Which takes effect immediately) ;
Or by those Deeds which operate.
To give the grantee the estate.
Thus much premis'd, you '11 now attend, x
And learn the rules to comprehend, v 345
On what Remainders do depend. ^
The first estate must clearly be,
A small estate, and not a fee ;
For if you give the whole to Doe,
What can remain to give to Roe ^ 350
of a particular estate to support them. (Davis versus Speed.
Garth. 262.
22
355
360
As all the parts will certainly
Make up the whole estate in fee,
And one's dependent on the other,
They must be limited togetlier ;
The self same Deed give all creation,
By reason of t heir near relation ;
And as the>-*^ Estate 's a prop,
To hold those in remainder up.
They must (as you will plainly see)
Be either vested in the grantee,
During its continuation.
Or th' instant of its termination.
Thus, if a man who 's seis'd in fee,
Doth make a grant of lands to B.,
For twenty years; remainder over.
To A. and to fiis heirs for ever:
The estate for years does instantly
Vest in possession in said B.,
To whom is made the livery ;
And A.'s estate does presently
Commence, altho' we clearly see
It cannot be enjoy'd, until
B.'s term is ended, when it will.
The estate particular, and all
Remainders, must and ever shall
Be taken from the same estate.
To which they one and all relate ;
For if the frst estate created.
Is void, or after is defeated,
365
370
23
All remaindet's needs must fall, 380
When no support they have at all.
If an estate for life 's made to
An unhorn son of Richard Roe ;
Or an estate for Vfe 's convey'd
Upon condition in a deed, 385
And breach is made, the grantor may
Make a re-entry the next day,
And void the estate : — in either case,
All remainders over cease.
If a man who 's seis'd in fee, 390
Grants the estate for life to B.,
Tail in remainder to said Roe,
To him shall such remainder go :
'Tis vested in him, as you see,
During such life estate of B. 395
Joint grant to two, for both their lives,
With fee to either which survives ;
Tho' remainder is in neither.
Yet, upon the death of either,
It instantly shall vest, and he 400
Who is survivor, have the fee *.
* Bigot V. Smith, 1 Cro. 102. is a remarkable case ; Baron and
Feme joint tenants for life, remainder to the heirs of the survivor
of them ; the husband alone made a feoffment in fee, and died, and
the wife survived : and the question was, whether this contingent
remainder could arise out of the wife's estate ? And held that it
should not, because that durhig the coverture, she liud no right of
ENTRY or ACTION ; but the husband had the power over the whole
estate ; and though her estate and the contingency happened and
started up together, eo mstante, yet this was not sufficient, because
24
415
But if a man who 's seis'd in fee,
Doth make a grant of land to B.,
For life, tail in remainder to
The first-born son of Richard Roe, 405
And it does happen so, that B.
Dies, ere such son shall be in esse;
Then clearly, the remainder 's void.
For want of vesting, and destroy'd.
So strict the rule was formerly, , ,^, 410
That if a grant was made to B.
For life, remainder to his son
In tail—B:s death not leaving one,
Destroy'd remainder to the son :
Because the frst estate, you see,
Ceas'd before he came in esse.
But long since, by the parliament,
Such cruel hardship to prevent,
'Twas made a law for time to come,
A child shall take, tho' in the womb. 420
If a man, who 's seis'd in fee,
Make an estate /or life to B.,
Limiting remainder over.
To the heirs of A. for ever;
If A. survive the 'foresaid B., 425
Remainder 's void ; for clearly he
Can have no heir until he dies.
Nemo est hceres viventis *.
the particular estate that should support the contingency ought to
be precedent. (12 Mod. 174.) i*i'A'^ • v t. • «f
• Devise to the youngest son for life, renaainder to the heu-s of
25
But if A. happens first to die,
Remainder instantaneously 430
Will in his heir vest, and he
Will have the land on death of B. ;
For the remainder in such case,
Altho' contingent, shall take place :
That A. may die before said B,, 455
Is not improbable, you see ;
It is potentia propinqua.
As all the learned jurists say.
But limiting remainder over,
To the heirs of A. for ever, 440
A. then being not in esse
Is void ; for here we clearly see, '
Two things are in contingency ; )
And being both improbable.
They *re not allow'd in law at all. 445
So limiting remainder, to
An unborn son of Doe or Roe *,
Is good, as we before have seen ;
But if it be to Dick, or Ben,
the body of the eldest ; the youngest died in the life time of the eldest:
held, the son of the eldest could not take, because he answered
neither part of the description, for he was neither heir, nor heir of
the body of his father, while he was living. (Chaloner v. Bowyer,
2. Leon. 70.)
* An infant in ventre sa mere, is now considered, generally speak-
ing, as born, for all purposes for his own benefit. (Lancashire
V. Lancashire, 5 Term Rep. 49. — Doe, on demise of Clarke v.
Clarke and others, H. Black. 399, and the cases there cited, con-
trary to antient authorities.)
26
(He having no son of such name) 450
The limitation is in vain,
And bad ; — for the contingency.
That such a son should come in esse,
And have a name particular.
Whilst he is in ventre sa mere, 455
Is too remote : — nor will the law
Allow of a remainder for
A bastard ere that it is born — ' t
A race, alas ! it views with scorn.
And thus may a remainder be 460
Contingent, for uncertainty ;
As it regards the person to
Whom it is design'd to go.
Remainder, too, may also be
Contingent, for uncertainty ; 465
As it regards the event upon
Which depends the limitation :
If land is given /or lije, to Doe
(And if in case it happens so
He is surviv'd by Richard Roe), 470
Remainder to said Roe in fee ;
Remainder 's in contingency ;
And gone for ever, if said Roe
Should chance to die before said Doe ;
But otherwise, it vests in Roe.
And you must ever keep in mind, 476
8uch chance estates of either kind,
If to a freehold they extend,
xhey on ^freehold must depend.
27
They can 't, as clearly it appears, 480
Depend upon a term of years.
If land is giv'n for years, to Doe,
With fee in the r^emainder to
The heirs general of said Roe,
Remainder 's void : but if to Doe, 485
For life, with such remainder to
The heirs general of said Roe ;
'Tis good, because that he said Roe,
May chance to die before said Doe.
For 'tis a rule, that 's general, 490
Laid down by Coke, Fearne, Blachstone, all.
Remainder in contingency,
(One of a freehold or a fee)
Must have a ^vested freehold, on
Which it shall hang or rest upon : 495
And such freehold, in will, or deed
Remainder ever must precede.
It being of necessity.
The grantor at the time that he
Gives the remainder a creation, 500
Must pass a freehold on th' occasion.
But a remainder, thus created.
Is liable to be defeated :
For if the first estate shall end.
On which remainder does depend ; 505
Leaving no right to entry make *,
And of the land possession take,
* A right of entry mil, though a right of action will not, support
28
Before that the contingency
Takes place*, or person is in esse,
Then the remainder^ is destroy'd ; 500
Its want of vesting, makes it void.
If Tenancy for life, there be,
Remainders in contingency ;
Such tenant may by various means,
As well as by his death, it seems, 505
Destroy his life estate, whereon
Such remainders rest upon ;
And losing their support, they fall.
Never again to rise at all.
Thus if a limitation's to 510
The use of the said Richard Roe
For life, with a remainder to
An unborn son of the said Roe ;
And Roe surrenders, ere his son \
Shall be in esse, or be born ; C 515
Remainder is for ever gone.
a contingent remainder : as if there be tenant for life, with a con-
tingent remainder over, and tenant for life be disseised, the whole
estate is devested ; but the right of entry in the tenant for life wil'
support the contingent remainder : but if tenant for life be disseised,
and a contingent remainder expectant upon his estate does not vest
before a descent is cast, then it is gone ; because it is turned hrto a
right of action ; though now it may be preserved longer by the sta-
tute 32 Hen. 8. ch. 33, whereby, except a disseisor be five years in
possession, a descent will not take away an entry. (12 Mod. 174).
• " I give and devise all my real estate to my brother G. L. and
his assigns for life, and immediately after his death I give and de-
vise the same to C. B. her heirs and assigns for ever, in case she
shall survive my said brother ; and if she die in his life time, then I
}
29
For remedy of such abuse,
The fam'd invention came in use,
A limitation made unto 520
Trustees in fee for life of Roe,
Who clearly may an entry make.
And of the land possession take,
If any act by Roe is done.
To bar remainder to his son. 525
However, in devises by
Last will, and when (most likely)
The party 's inops consilii,
Remainders may, and often are
Made otherwise, as will appear ; 630
For though the rules above are good,
They 're very rarely understood.
If an estate, by will, or deed,
To two or more, is limited,
In undivided shares, in tail, 535
And if the issue chance to fail
In one or more, the others shall
Take all such shares original,
As^well as those, which may or do.
On subsequent events, accrue. 540
give and devise my said real estate unto my said brother G. L. his
heirs and assigns for ever. In 1793 G. L., who was the testator's heir
at law, levied a fine sur conuzance de droit come ceo, and declared
the use to himself in fee, and dying in 1/99, devised the premises
to E. S. in fee. In 1798 C. B. made an actual entry within five
years, in order to avoid the fine, and in 1800 brought her ejectment;
Judgment for E. S. A limitation to a trustee would have preserved
the contingent remainder limited to C. B. (2 Bos. and Pul. 289.)
30
Here, cross remainders do appear ;
And each shall be the other s heir ;
And the reversioner, or he
Who is remainder man, in fee,
Is not let in to take, until 545
They 're all determin'd— when he will.
All such remainders, as we read.
Must be express'd, if in a deed ;
But in a will, 'tis understood,
By implication, they are good. 550
The usual language which is us'd
To make them, is so much confus'd.
It seems to be the better way,
And quite sufficient, if you say
(Avoiding all prolixity) 555
That such remainders there shall be * :
For terms which are call'd technical
Are seldom understood at all.
Devises call'd executory f.
Operate not in prccsenti, 560
* Simply saying " with Cross remainders," is better than making
use of technical words : for no precise term is necessary to create
cross remainders. (Ld. Kenyon, 6 T. R. 43 1 .)
f In inheritances there may be two sorts of executory devises :
first, where a devisor parts with the whole fee out of him, and after-
wards qualifies the estate of the devisee, and limits contingent re-
mainders over ; and this is repugnant to the rules of common law,
to have one fee depend upon another. (Co. Litt. 18.) By the act of
the party one fee cannot depend upon another, though it may by act
in law, as it is often seen since thestat. of 2G Hen. VIII. ch. 13. for
forfeitures of estates tail j and since fines are become so usual ,; and
31
But in futuro therefore no
Estate at all can vest, or go
Immediately to devisee,
But at some future time, you see. 565
They want not an estate or prop.
To go before to hold them up.
By them a fee, or less estate.
After a fee, you may create ;
though Vaughan in the case of Gardner w. SheUhucr (1 Vaugh. 259,)
contradicts this opinion of Lord Coke, and is angry because he cites
no authority for it, yet he himself sliews no authority to the contra-
ry ; and it is no wonder Coke shews no authority, for it were to
prove a thing could not be that never was done. In 19 Hen. VIII.
8, b. Dyer, 33. it is held that it cannot be even in a will. And the
first of these devises that we find is in the case of Wellock v. Hara-
raond, cited in Boraston's case, 3 Co. 19; and was first coun-
tenanced in favour of provision for younger children, and of land
devisable by custom. Vide Cro. Eliz. 532, 525, 360, 497, 2 And. 22.
Moor, 422, 464. In the case of Pell v. Brown, Doddridge opposed
the opinion of the other three judges, as to the point of its not be-
ing barred by a recovery ; and the opinion in I Roll. Rep. 835,
836, and Style 274, went down with the judges like chopped hay j
but since it has been so often passed over it must not be questioned
now, because the estates of many depend upon it. The second sort
is, when the devisee does not part witii the whole fee out of himself,
but gives future estates to arise upon contingencies, and leaves the
inheritance to descend in the mean time ; and this is not disagreeable
to the common law, as in the case of a devise, that the executor shall
sell laud where the land descends in the mean time ; and when the
e.vecutor doth sell it, the vendee is in from the first testator, and in
pleading must claim under him ; and by the selling, the freehold
and inheritance is by act of law devested out of the heir, or lord by
escheat, even out of the king if he were lord by escheat, without pe-
tition, or monstraus do droit. 29Edw. 3. 16. (12 Mod. 281.)
32
And a chattel interest limit,
After a life estate is in it. 570
The first case happens, when we see
A man devises not the fee.
Immediately to the devisee ;
But at some future time, and he,
Then gives it on contingency : 575
Meanwhile it clearly does appear,
It must descend unto his heir :
As a devise of land unto,
A daughter of the aforesaid Roe,
Her heirs and assigns, when she 580
To some man shall married be ;
Here 's a remainder, as it were.
Without estate particular ;
A freehold which commences so.
It needs must be in futuro. 585
The next case happens, when we see
A man devises all the fee,
But limits remainder on such fee.
Commencing in contingency :
As a devise of lands, unto 590
A son of either Roe, or Doe,
His heirs and assigns : but if he
Shall die in his minority.
Then the same lands to go to B. ;
And also he to take in fee. 595
A freehold by devise, we see,
Can pass without a Livery,
33
And may commence infuturo ;
And since that it commences so,
(Which in a deed it cannot do,)
It wants not an estate or prop, 600
To go before to hold it up.
Such devises executory,
Depending in contingency,
Are clogs or fetters, which the makers *
Put on the land or on its takers, 605
And can 't be barr'd ; not even by
A fine, or a recovery.
But as you cannot, even by
A common law conveyance, tie
Up land from alienation, 610
By any kind of limitation.
Beyond a life or lives in esse.
And whilst a son then born shall be -}-
Impeded by his infancy ;
So in a will, the rule applies, 615
Restraining perpetuities :
For a devise of land unto.
An iinborn son of Roe or Doe,
At twenty-one, is good, we see ; j
But if it be at twenty-three^, > (;20
It is a perpetuity, ^
And too remote ; and therefore void :
The gift is utterly destroy'd.
* 2 P. W. 55. f Or Nvithiii forty weeks after.
X Proctor V. the Bishop of Bath and Wells and others, 2 Hen.
Black. 358.
D
34
The parties may create, we see,
Estates thus in expectancy ; 625
But there 's another species,
The law itself creates, which is
By its own mode of operation,
An estate in the reversion *;
Suppose a gift by Thomas Stiles, 630
In tail, is made to Richard Miles :
Here, we very plainly see.
That the reversion of the fee,
(Without special reservation,
Or any kind of limitation,) 635
Is vested in th' aforesaid Stiles,
Whilst the tail, is in said Miles.
On grant for life, or years, at will.
Reversion 's in the lessor still ;
* He who has the particular estate is he that is possessed of the
lan<l ; and he who made the estate, or his heirs or assigns, is he that
has the reversion. So that there is never a reversion, but where
there is a particular estate in possession ; and if the possession comes
to the reversion, then there is no reversion at all ; and if the rever-
sion comes to the possession, then also there is no reversion ; for
there cannot be a reversion of a thing, but where the possession of
it is divided from it ; for the uniting of them destroys the reversion,
and the separation of part of the estate of him that has the land re-
serving the residue, makes it a reversion ; so that a reversion can-
not be but where there is a particular estate in possession, and
where there is a division, and separation of the reversion from the
possession ; wherefore the possession and the reversion are in degree
merely contradictory, but the substance of them both is the thing of
which they consist, (Plowd. 151.)
35
For the fee of all the lands, 640
Must abide in some one's hands ;
In nuhibus it cannot be,
Nor in terra, nor in mare,
Nor in custodia legis —
But in the grantor's hands it is ; 645
For what he did not pass away.
Remains to grant another day.
Remainder can 't be limited.
Except by a devise or deed ;
Reversion can 't created be, 650
By deed or writing, as you see ;
But both of them are equally,
Estates whioh are in prcesenti,
And may, when vested, be convey'd.
By matter of record or deed : 655
They take effect in futuro.
In those to whom they 're granted to.
In cases of descent in fee.
Remainders very frequently
Differ from reversions ; so, 660
They shall to diff 'rent heirs go :
For if Doe, (seised ex parte
Paterna, of estate in fee,)
Do make a lease for life to Roe,
Remainder to himself said Doe, 665
And to his heirs , — properly,
'Tis the reversion of the fee ;
To which both rent and fealty.
Clearly, as incidents, shall be ;
02
36
And Doe*s heirs ex patertia shall, 670
(And not his heirs general)
Take by descent ; — but had a stranger
Limited the same remainder ;
Why then his heirs general, shall
Exclude paternal heirs all ; 675
But Doe's the old estate we see.
He had in him orig'nally ;
And as it there continued, so
To heirs paternal, it shall go.
So likewise {seis'd in fee) if Doe 680
Doth grant a lease for life, to Roe, (
Reserving rent — reversion to 3
B. and his heirs ; remainder shall
Descend to his heirs general,
And not as a re-ver-si-on GS5
The rent is incident upon :
Bat Doe himself shall have the rent,
Until Roe's life estate is spent.
But some estates that are created
May also be annihilated : 690
For if a great and less estate,
(Without one intermediate)
In the same person coincide,
It is a kind of fratricide ;
The greater sinks or drowns the other *, 695
Never more to rise for ever.
♦ If a man letteth lands to another for life, the remainder to him
for twenty-one years ; he hath both estates in him so distinctly as he
37
Suppose a lease for years, to Doe,
To whom the fee descends from Roe ;
Or of him pui'chas'd is, we see
The term is merged in the fee. 700
But if one hath of right, the fee,
(Which happens very frequently)
And the term en auter droit :
Such act, will not the term destroy ;
The term will not be merged at all ; 705
The right is not identical.
Suppose a lease for years, to Doe,
Reversion of the fee in Roe,
And Roe 's executor to Doe ;
Roe has the term ; but still we see 710
It is not merged in the fee :
For that would be a devastavit ;
Doe 's creditors shall therefore have it.
So, if reversioner in fee.
Marries the tenant, a lessee ; 715
No merger shall take place at all —
The right is not identical :
In his own right, he hath the fee.
The lease, in right of the lessee.
The rule, however, needs must fail, 720
To all estates which are in tail ;
uiay grant away either of them ; for a greater estate raay uphold a
lesser, but not ^ converso ; and therefore if a man make a lease to
one for twenty-one years, the remainder to lilm for the term of his
natural Kfe, the lease for years is drowned. (Co. Litt. 51 b.)
38
For such estates can never be
Merged, or extinguish'd in the fee ;
Altho' by chance they meet together,
The one shan't swallow up the other. 725
But tail estates may docked be
By fine, or a recovery :
Cut off entirely, it appears.
Like horses' tails, or asses' ears ;
Altho' such conduct to prevent 730
There is an act of parliament *.
Now, of estates in sevralty, ^
As well as m joint-tenancy, v
Common and coparcenary ; '
For estates of any quantity, 735
And whether in expectancy,
Or in possession, all may be
Held four different ways, we see.
He that holds in sevralty.
Holds free and independently, 740
In his own right exclusively :
But always the remaining three
Are holden in plurality.
If grant of lands is made to B.
And C, to hold to them in fee, 745
Tail, life, or years, or less estate ;
Joint-tenancy you here create ;
Always and ever it arises,
By grant or purchase of the parties :
* Stat, de Douis, 1.3 Edw. I.
}
39
For by the mere act of the law 750
Joint-tenancy you never saw.
Joint-tenants have an unity
Of interest, title, time, we see ;
The same possession all have got,
No one has what the other 's not. 755
There cannot be diversity :
One can't have tail, the other fee : (
The same estate they both must be. )
If land is limited to Doe,
And also limited to Roe, 760
For both their lives ; if one doth die,
The other may rejoice — not cry —
Upsprings the jus accrescendi.
If land be limited to Doe,
And also limited to Roe, 765
And both their heirs, they both shall be
Joint-tenants of, and have the fee\;
And yet, upon the death of either.
The whole shall vest in the survivor :
For " both their heirs''' means that one 770
Shall have the fee to him alone *.
* How the word " heirs," in a gift or grant to two, as joint-
tenants, came to signify the heirs of one of them, so as to exclude
the heirs of him who died first, is not easy to be determined, and
can he accounted for no otherwise than that both joint-tenants being
intitled to the whole during their respective lives, the survivor hav-
ing continued longest in possession, was therefore presumed to have
done most service to the feud, and upon that account was allowed to
transmit it to his heirs ; also, says L. C. J. Holt, the common law
does not love to multiply tenures. (3 Bac. Abri. 204. 1 Salk. 392.)
It may here be observed, that Littleton's description of joint-tc-
}
40
If land be limited unto
As well to Doe, as also Roe,,
For both their lives, with fee to Doe
Joint-tenants, then, are Doe and Roe, 775
And for their lives ; as here you see,
With the remainder of the fee,
To Doe himself in sevralty.
If land be limited to Doe,
And Roe, with the remainder to 780
The heirs in tail of the said Doe ;
A joint estate hath Doe and Roe
For life, and Doe a several
Remainder to himself, in tail.
If present estate be given to 785
Said Doe, as well as to said Roe ;
Or fee in the remainder to
As well to Doe, as to said Roe,
After estate particular ;
Both Doe and Roe joint-tenants are. 790
nancy excludes an estate in fee. The addition of an estate in fee to
Littleton's description of joint-tenancy, was first introduced by Ras-
tcU, in his edition of 1534. (Co. Litt. 180, a ; note 2.) And it is said
that a fine, sur cognisance de droit come ceo, &c. cannot be levied to
two and their heirs, for.the end of fines being not only to settle the
possession for the present, but for ever, the admittance of such fine
would not answer the end -. for besides the uncertainty which of the
cognizees would survive and enjoy the land, the fine itself cannot
operate according to the limitation ; for the survivor, by the privilege
of joint-tenancy, shall enjoy the whole, and for ever exclude the
lieirs of the other cognizee ; besides, the fine being equivalent to a
judgment, ought to decide and settle the right of the fee. (2 Roll.
Abr. 19. Co. Reading on Fines, 6. 9.)
}
41
But if remainder 's giv'n to 795
The heirs of Doe, as well as Roe,
After a lease for life, in esse,
And Doe dies, living the lessee ;
Then, as to one moiety, —
'Tis vested in the heirs of Doe : 800
And, if by chance, it happens so.
That death shall also call said Roe,
The other moiety shall go
Unto the heirs of said Roe ;
For being no joint-tenancy, HOj
Tenants in common they will be ;
And that, for want of unity
In time of vesting, as you see.
However, on a feoffment made
To a man's use, and such a maid, 8jl0
As should become his lawful wife.
For his and her own natural life ;
Both had, it seems, a joint estate.
The marriage being consummate ;
Because the use of wife's estate 815
Unto the marriage did relate,
Till then laid dormant, in abeyance.
And fast asleep as in a trance ;
And, waking then, had a relation
Back to the time of its creation : 820
But still there was no unity
In time of vesting, as you see.
As ever in joint-tenancy
Possession is in unity ;
42
The seisin not exclusive is, 825
But " per mie et per touf it is :
And, being so, 'tis clear each may
Release, (by way of mitfr le droit)
Unto the other, yet they can't
Make to each other any grant, 830
Bargain and sale, or feoffment,
Although they may have such intent ;
Nor can they a surrender make,
(For neither can surrender take) :
Nor yet devise, tho' both may sever 835
The tenancy, at their own pleasure ;
And then they clearly may convey
The land, as other persons may.
Sometimes the jus accrescendi
'Tis very right to take away, 840
That each may then transmit his share
Of the estate, unto his heir.
Sometimes the jointure should remain —
As by a case we will explain :
If Doe and Roe joint-tenants be 845
For life, and they do both agree
To make partition, each will be
Then seis'd of one moiety :
And upon the death of either.
May enter, the reversioner ; 850
But had the jointure still remain'd,
Survivor would the whole have gain'd.
And till his death, reversioner
Would have been a trespasser.
43
So much for joint estates ; now we 855
Proceed to those in parcenary:
If an estate in tail, or fee,
Descends, and the next heirs be
Two, or more persons, all shall take ;
For parceners but one heir make. 860
Parceners have an unity
Of int'rest and title, all agree :
The same possession is in all,
But time is not material ;
For that is quite unnecessary 865
To an estate in parcenary :
Now note well the diversity
Between estates in parcenary ^
And those held in joint-tenancy : *
The first claim always by descent, 870
For want of will or testament ;
But by the mere act of the law
Joint-tenancy you never saw.
Joint-tenants are all purchasers ;
Just the reverse are parceners : 875
And therefore, if the Misses Doe
(Two sisters) purchase lands of Roe,
To hold to them, and to their heirs.
They clearly are not parceners,
But joint-tenants ; and hence we see, 880
No lands but for estate in Jee
Can be held in parcenary ;
Whereas, estates in tail, or fee,
44
As well ns life, or years, may be
All holdeii in joint-tenancy. 885
But, as to time, no unity
To an estate in pare nary
At all is wanted ; for if you
Have Jane and Mary, daughters two,
And land descends to them, as heirs, 890
They take it as coparceners.
On death of one, 'tis very clear.
Surviving daughter and her heir.
Or if both dead, then both their heirs.
Shall take the land as parceners. 895
And tho' they have an unity.
They have not an entirety
Of interest : there cannot be
Between them jus accrescendi.
On severance, it does appear, ^ 900
Or if one aliens her share.
No longer parceners they are.
Tenants in common occupy
All the lands promiscuously ;
Their titles are distinct and sev'ral, 905
Tho' one possession is in all.
If tenants two, in common be.
One, may hold his part, in fee,
The other in tail, for life, or years;
Yet no joint interest appears. 910
One, by descent, may hold as heir.
The other as a purchaser * ;
• If a person is in by desccHt, he shall l)c liable to the acts and
45
One, as a purchaser from Doe,
T 'other as purchaser from Roe ;
And tlierefore there 's no unity 915
Of title, as you clearly see ;
Nor yet in time of vesting : one, may
Have had his lands but yesterday.
The other (for it may be so).
Have had his fifty years ago. 920
A tenancy in common, may
Created be three ways, they say ;
By limitation in a deed.
And by the means you '11 after read.
If one, where two joint-tenants be, 925
(Both having an estate in fee)
Aliens for life of alienee.
Tenants in common then will be
The other, and the alienee ;
Their titles being several, 930
The one by grant original.
The other by the limitation :
In the new alienation.
And several their interests be —
charges of his ancestor, under whom he claims ; but where a per-
son takes by purchase, he stands upon his own legs, claiming no in-
heritance from his ancestor; neitTier shall his ancestor's acts touch
him. (Lloyd v. Carew, Prec. in Cane. 72 ; Show. Cases in Pari,
137.) A person may have land by purchase three ways, by bargain
or gift for money, by gift without any recompence, and by way of
remainder. (Plowd. 11.)
40
The former, still will hold in fee ; 935
But for his life, the alienee.
If t^vo, joint-tenants be, in fee ;
One gives to A., and one to B.,
And both in tail ; then both donees
Hold by distinct conveyances. 940
If one, where parceners two there be.
Aliens to alienee ;
Remaining parcener, and he,
Tenants in common then will be :
One, by descent, still holds as heir, 945
The other, as a purchaser.
So, if a grant is made to two men.
Or the grantees are two women.
And the heirs of their bodies ; — here
Joint-tenants^ both the grantees are, 950
As to the life estate ; — but they
Shall both inherit sev'rally ;
Because they cannot possibly.
One heir engender ; as you see.
In this, and cases similar, 955
Tenants in common, their heirs are ;
One claims as heir, perchance of Stiles,
The other, as heir, perhaps of Miles ;
Yet neither shall be purchasers ;
But by descent they take as heirs. 960
But had the limitation ran,
Unto a woman and a man,
And the heirs of their bodies ; — here.
They might have had one common heir.
47
Dissolving a joint-tenancy, ^ 905
Or of estate in parc'nai'y,
Will make a several tenancy ;
Which tenancy, if so agreed,
May well be made in will or deed ;
But if you limit lands unto 970
Two men, for instance. Doe and Roe ;
Joint tena7icy it then must be.
Or else a several tenancy.
Yet still, the first a favourite is,
Because the rent and services 975
Remain entire ; not split you see,
As in a several tenancy.
If land is giv'n to two, in fee.
And each to have a moiety.
They both shall hold in sev' realty. ^ 980
If a grant is made by Doe,
Of half his land, to Richard Roe ;
As well the gi-antor, as grantee,
Tenants in common then will be ;
Because, as clearly it appears, 985
Joint tenants do not take by halves.
But a devise, to two in fee.
To hold both joint and severally,
Is clearly a joint tenancy:
Altho' the words, like no, and yes, 990
Imply directly the reverse.
If land is given to A. and B.
To he divided equally ;
48
In deeds, it has been held to be
A joint estate, in A. and B.; ^ ggg
But yet in tv'ills the contrary.
By statute law, a tenancy,
In common, may partition d be,
As well as a. joint tenancy.
And now we sing of rights and titles, 1000
To manors, houses, lands, and pightles ;
Shew, how a title is created,
As well as how it is defeated ;
Make possibilities and powers,
Adorn Arcadia's sacred bowers ; 1005
And mor^tgages, and trusts, and uses,
A subject fitting for the muses ; —
Who, when they are to mirth inclin'd.
For once, perhaps, may have a mind.
To leave their native fav'rite mountain, 1010
And sport awhile in Temple fountain ;
Or view the gardens of Gray's Inn,
Immortal Bacon studied in ;
Or call on me, for want of cliambers,
In famous Fetter Lane's meanders ; 1015
And see me roasting on a string,
A dish that 's fitted for a king —
A breast of mutton ! whilst I 'm writing,
And lend a hand to the inditing ;
Then afterwards fly home anon, 1020
And be again at Helicon.
A title is the means whereby
The owner hath just property
49
In lands, and tenements ; — its stages
We '11 now set out in deathless pages : 1025
The lowest title, is by reason -^
Of bare possession, or of seisin, V
Without a right, pretence, or reason. J
'Tis what they call a disseisin.
By means of v/hich a man gets in, 1030
And by surprise, or force doth rout.
And keep the real owner out ;
And being in, does the aggressor
Gain legal title, as possessor :
For primd facie, 'tis allow'd, 1035
That such a legal title 's good ;
And length of time ('tis reasonable)
Shall make it indefeasible.
Unless the rightful owner, by
An action, seeks his remedy ; 1040
And that within the period
Such right of action is allowed.
If actual possession is in Doe,
And right to the estate in Roe,
Roe may make entry on disseisor, 1045
In twenty years, if he thinks proper :
And an apparent right to land,
Oppos'd to actual, cannot stand ;
Altho', as all the lawyers hold.
The entr^ is clearly toWd. 1050
Thus, if it chance to happen so, -.
That the disseisor, the said Doe, J.
Dies, seis'd of what belongs to Roe :
^
50
Doe's heir is in bv lawful means —
Roe cannot entry make it seems ; 1055
But by a sort of circuit route,
He still may get the rascal out ;
Which, if omitted, he in spite
Of Roe, may chance to oust him quite :
In consequence of his own laches, 1060
Reduc'd to '"'jus py'oprietatis.''
And if Roe sleeps for thirty years.
Such act dispels the heir's fears :
Roe's right 's transformed to jus merum.
And so may last till day of doom. 1065
For if a writ of right is brought
In three score years (the time it ought),
Perhaps it is not worth a groat.
As Rtfggle said of special pleading *,
It is a t'ckhsh proceeding ; 1070
The least mistake or slip being found.
The cause i dls headlong to the ground ^.
* In nontra lege unu n comma evertit totum placitum"
Ignoramus.
t No person is so little f;.Toured as the demandant in a writ of
right. That form of action is held to be strictissimi juris at the
present day. (1 Bos & Pul. 192.) There are hut very few instances
for more than a century past, of prosecuting any real action for land
by writ of entry, assise, formcdon writ of right, or otherwise. —
The forms are indeed preserved in the practice of common reco-
veries, but they are forms, and nothing else ; for which the very
clerks which pass them are seldom capable to assign a reason. But
the title of lands is now usually tried upon actions of ejectment or
trespass. (3 Black. Com. 197.)
51
Yet, 'tis a maxim in the law, ^
A title that 's without a flaw }
(Which is a thing- you never saw), 1075
Should have the flight possessor!/,
Conjoin'd with rig/it of property/ :
" For true it is, that fraud, nor might,
" Can't make a title without right *."
All persons in possession, may 1080
Their lands and tenements convey ;
Excepting those who are, or be.
Under a disability.
But as to naked rights, they can't
Be pass'd, by will, nor any grant ; 1085
They cannot be surrendered.
But only be extinguished
By a release, or Jine, to him in
The possession of the seisin.
But if Ih^Jine is levied to 1090
Another person, why then no
Right has the conusee at all :
Yet conusor is barr'd of all.
But as to mere contingencies.
As well as possihiUties, 1095
They are, it seems, devisable.
And also are assianahle ;
Especially (for then they 're best)
If coupled with an interest -}-.
They also may released be, 2000
Or barred by a^we, we see;
* 8 Rep. 153. t Sec I Hen. Black. 30,
E 2
52
But why so barr'd, no one can telf.
Unless it is by es -top-pel .
And here, note a diversity :
You can't devise a right, you see, j> 200.5'
But may n jjoss'ih'iUfy.
A power, it seems by all the books.
Moon-like, may have quite diflTient looks ;
Sometimes appendant, you'd suppose.
Whereas, 'tis clearly then in gross. 2010
Thus an estate /or life, to Doe,
Tail in remainder to said Roe,
Fee in remainder to said Doe ;
And Doe, has power for his wife,
To make a jointure during life; 2015
The power 's appendant to the fee.
But to his life estate shall be
Collateral, or /« gross, we see.
But an estate for life to Doe,
With powej' to lease for years, to Roe ; 2020
The lease, which Doe shall so create,
Operates on his life estate,
And is appendant : but if Doe
Give an estate for life, to Roe,
With power to appoint the fee 2025
Amongst his cijildren, do you see;
Or make a jointure on his wife.
After his own estate for life ;
Or raise a term of years, beginning
From his own death, and ceasing sinning, 2030
53
In favour of younger children ; all
Such powers are collateral,
Or are in gross ; for here, we see.
The life estate of the donee
Stands unaffected ; and he dies 2035
Before the estates appointed rise.
The power, which is the best of all.
Simply collateral, we call ;
The rest, if donee so intend,
He may destroy, merge, or suspend ; 2040
But this, whatever art 's employ'd,
Can never be by him. destroyed :
Suppose a will is made by Doe,
Giving authority to Roe,
A sale of all his lands to make ; 5045
Koe does not any interest take —
His fine to heir, as cognizee.
Or feoffment made with liverij.
Does not at all affect the power.
For Roe may sell the land next hour. 2050
The power given to each donee
Proceeds from his authority-.
A power, to husband and his wife.
If either die, it won't survive.
y/ power to appoint by deed — 2055
Instead of it a ivill is made :
A power to appoint by will.
And deed is made, — here both are ill ;
But, if to both, such powers relate,
The appointee will take th' estate. 2060
54
Of fraud or influence afraid,
Some ceremonies then you add ;
Requiring persons, two or three,
Attesting witnesses to be ;
And if such witnesses are two, 2065
'Tis clear that only one won't do ;
If a seal shall be required, ^
Signing 's not the thing desir'd ;
If signing only, then, they say,
The donee has no other way. * 2070
If signing, as well as sealing, too,
A sealing only, will not do.
jin use upon an use, you know,
The statute won't at all allow :
If, therefore, you appoint to Doe, ^ 2075
To him the use will clearly go,
Altho* you limit it to Roe *.
If Doe convey his land in fee,
Unto a man, as mortgagee,
Doe may redeem his property, 2080
Altho' condition broken be ; —
And it is call'd his equity :
Which he may pass to mortgagee.
And such conveyance generally.
From mortgagor to mortgagee 2085
• For further information, the student is referred to the different
books on poicers, where it will be found that near two thousand suits
at law and in equity have been occasioned, either by gross ig-norance,
or inattention, in not attending to the trifling circumstances requi-
site for their due execution
55
Is made (for so the parties please)
By the deeds of lease and release :
Whereas, the lease^ on such occasion,
Has neither use nor operation.
Unless the mortgage has a flaw, 2090
And is not even worth a straw —
A thing- in practice often seen,
Since empirics in law have been ;
Who, now, by a certificate.
Are duly qualifi \i to cheat : 2095
Who never read more law than 's on
The backside of old Littleton *.
* Calling to mind that the Common Assurances and Convey-
ances of the kingdom (whereupon the whole estates, and conse-
quently the livelihoods, of very many depend) are matters of great
importance, and that concern most men ; and that therefore the
legal learning thereof must needs he of great and :|aily use. And
considering withal the mischief arising every where hy the rash ad-
ventures of sundry ignorant men that meddle so much in these
weighty matters, there being now almost in every parish an unlearn-
ed, and yet confident, pragmatical attorney, (not that I think them
all to be such,) or a lawless scrivener, that may perhaps have some
law hooks in their houses, but never read more law than is on the
backside of Littleton, or an ignorant vicar, or it may be a black*-
smith, carpenter, or weaver, that have no more books of law in their
houses, than they have law in their heads, and yet as apt and able
(if you will believe themselves) either to judge of a conveyance, and
by the rules of law (of all which they are utterly ignorant) to de-
termine of the strength and goodness of a title or estate already
made, or to make a conveyance to transfer the property of things
from man to man, as the most learned and best counsellor of them
all ; and therefore undertake with great confidence, and dispatch,
without any scruple, any business whatsoever offered to theu* hands:
wherein they deal with men in their estates, as many that are
called physicians (but in truth empirics) deal with men in their
56
And, as a court, of equity ^
Considers a mortgage, tho* in fee,
To be a mere security ; -^ 2100
bodies, (an evil fit for the consideration of parllaracnt). How they
<L*ome to this their supposed dexterity and skill is a wonder, except
sbat saying be false. Nemo nmsciiur artifex. Either it swust be horn
with them, or they must have it by educatioWj or they must not
have it at ail. But if they will tell site they have good precedents, I
will tell them that a good conveyancer must be as well able to judge
of the validity of the title, and primitive estate of him that is to
convey, (which a man can never do vvithout knowledge of the rules
of law, no more shaa a bUnd man can judge of colours,) as to make
a derivative estate and conveyaiice by a good precedent ; for scire
est per causas scire, as the philosopher speaks. And as well, for
aught I know, may a man be an aide physician, by certain inedi-
cines only, that never read ao much as the grounds of physic, as suck
men be able conveyancers by their precedents only, that never read
ao much as the maxims of law : Nullum medlcamenluTH idem est
i» omnibus. For eny part I raust ingenuously profess that 1 can
scarce look into a title or meddle ivith a conveyance of weight,
wherein I canjiot aaaikc and move more douhts and questions, than
/ am ■able i& resolve «ad amwer ; and therefore these men have
gotten the start <oi hoc much. And yet much marvel it is to sec
how these empirics of the law (if I may so call them) are sought
jiuLo and made Jise of, and that not only in lesser, hut oft4xme8 in
greater and aaorc weighty businesses, and that without the assist-
ance of any others more able and sufficient ; the which is not for
Jack of opportunity of finding more learned men in the law, for
there is a aiifficient store of tliein in all places ; nor do those that
•employ these empirics of the law, always save (if they think it
saved) money hereby ; for, besides the great mischief which is oft-
times done themselves by the unskilfulness of these workmen, some
of them by reason of their much custom arc grown more charge-
able than an ordinary counsellor, whose fee is certain and known.
But of these empirics of the law and those that make use of them,
I might say as sometime our blessed Saviour said, Le( (hem alone,
the bl'iad leaders <)/ the blind. Howbeit being now called (as I con-
57
The mortgagor does frequently
Dispose of such, his equity ;
Which may be done, if lie so want,
By any deed, by way of grant,
But not by way of livery : 2105
For seisin is in mortgagee.
Nor by those deeds which operate
To pass the use of the estate ;
But still, as we before have said.
The latter mode is us'd instead. 2110
But now a mortgage, made in fee,
Is what you very seldom see;
It makes a contrariety :
When mortgagee no longer lives,
His personal representatives 2115
ceive) hereunto, I chusc rather to admonish them and to tell the
first sort, that I conceive them to be usurpers upon, and intruders
into, other men's callings, and that they thrust their sickles into
other men's harvest, and that they have not yet learned that rule of
divinity, To abide tu the calling wherein thei/ are called, but exer-
cise themselves in things too high for them ; nor yet have they
learned this, Ne sutor ultra crepidam, let not the cobler go beyond
Lis last ; nor have they learned that. In quo quisque norit in hoc se
exerceat; and let me tell the latter sort, that they heed not enough
tliis saying. Caveat emptor ; nor believe that saying, Cuique in arte
.sua credendum, that every man is to be believed in his own art. But
if you will say to me, that these men do their work well, and their
work doth succeed well; I will say to you, that the blind n)ay happily
hit the mark ; and it may fall out that sometimes they do their
work well, and it doth succeed well, but oft-times woeful experi-
ence shewcth the contrary, and that many men have been much
niischieved every where by the ignorance of these men. (.Shep.
Touchst. Preface.)
58
Are then alone entitled to
'The money, which to them shall go ;
But heir at law of mortgagee, -j
(Unless the estate devised be) r
Takes it, altho' a mere trustee. 2120
Such was the reason, it appears, '
Of mortgages, for term of years ;
When mortgagee no longer lives,
His personal representatives
Have both the term and money too : 2125
With neither hath the heir to do.
An use, or trust, of land would go,
By will, to whom 't was giv'n to ;
But a devise of land was bad.
When any a testator had ; 2130
For though he might by deed convey,
He could not ivill the land away ; —
The power to devise we draw
From statute, not the common law *.
From such restraint came trusts and uses, 2135
The source of various abuses ;
The means which were not try'd in vain
T' evade the statute of mortmain —
Suggested by the monks of old.
Who always thirsted for the gold : 2140
For rents and profits, in those times.
Extirpated all sorts of crimes ; ^
Extinguisird every glimpse of evi.',
And did completely cheat the devil ;
• The statute of wills was not made till the 32 Hen. 8.
5^
Afforded friars merry dinners, 2145
For saving souls of wicked sinners,
Who were induc'd to pass their lands
To a trustees or feoffee's hands ;
And then, t' escape all purgatory,
Bequeath the use unto the abbey. 2150
For conscience' sake, the bare trustee
Was forc'd, by suit in chancery,
To pay the rents and profits to
Those they were design'd to go ; —
Men in priories and cloisters, 2155
Pent up alive, like barrel'd oysters,
And in full health, — though dead in law
As any corpse you ever saw *.
Now having shewn the origin
From which our trusts and uses spring, 2160
(Both being just the self same thing.
Before the statute made it law.
The use should the possession draw.
Like as a magnet does the steel.
By what 's incomprehensible !) 2165
We 11 now proceed to shew the reason
Of clothing uses with the seisin :
A man, with right to any land.
Knew not of whom to make demand : —
Possession was, perhaps, in Roe; 2170
The right of ownership^ in Doe ;
* If A. be bound to the abbot of D., and A. is professed a monk
of the same abbey, and after is made abbot thereof, he shall have
an action of debt iigainst his own executors. (Co. Litt. 133. b.)
t)0
fVic-es were defrauded of their dotvr —
A common practice to this hour ;
Husbands lost their curtesy ;
Lords, aids pur fair Jitz ckivalier. 2175
To remedy such vile abuses *,
The act was made respecting uses.
The use, which was a sort of bride,
Was fast to the possession tied ;
They were conjoin'd and married -f- : 2180
You can't have one witliout the other ;
Like man and wife, they go together.
As Sin got Death, so up trusts sprung,
From this incestuous connection;
Became what uses were before, 2185
As Hardwiche says, and nothing more J.
* The intention of parliament, in 2/ Hen. 8, when they made the
act that the possession shonld be ulicre the use was, was to remove
ignorance ; and that the country might know in whom the estate of
the land was. (Plowd. 302.) But since conveyances have been ,
to uses, the most perplexing cases have arisen in regard to the legal
estate ; it has been lost, as it were, in a wood, and only regained
by the omnipotence of parliament.
t Shop. Touch. 504.
X Lord Hardwickc, hi Hopkins v. Hopkins, 1 Atk. 591, speaks
thus of the statute of uses : " And by this means a statute made
upon great consideration, introduced in a solemn, pompous manner,
hath had no other cft'ect than to add at most three words to a con-
veyance."
Much has been said with regard to the convenience and inconve-
nience arising from uses and trusts. York, one of the judges at the
time this act was made, says, " It is absurd that I should enfcoft'
another with my land, and yet claim it against my own gift." (Yc;ir
Book, Easter Term. 27 Hen. 8.) And in the same case, which is a
long one, the great point is agitated, whether an u»e and a trust is
61
Some things, it seems, will only suit
A statute use to execute :
the same (Roper, in his life of Sir Thomas More,| mentions the rea^
son why the judges vvouhl not consider a trust to be the same with
an use, p, 25. ct seq.) ; and whcihcr tliere were either uses or trusts
by the common law.
The first case in which the court of chancery determined upon a
feoffment to an use, seems to have been in 18 Edw. 4. A married
woman made her will, and enfeoffed feoffees to the use of her hus-
band and herself in fee ; the husband sued a subpoena against the
feoffees, in order to take the opinion of the court, wliether tliis will
was good or not ; and it was considered as a case of some import-
ance, as common law judges assisted the chancellor. One of these
assistants seemed to tliiuk it good in chancer}', being a court of
conscience ; the other judges, ia concurrence with the chancellor,
agreed, that as the will was void at common law, it was void likewise
in that court.
The ne.xt case Is in Easter Term, 21 Ed. 4. when it was attempted
to make the feoffment of an Infant under the age of fifteen good,
after the execution of which he made a secret trust to the feoffees
by parol. This was likeuisc determined to be void: and in the 15
Hen. 7. it was agreed by the judges, that the cestui que use, had no
right whatsoever to the land but by the permission of the feoffees.
These cases are, perhaps, not such as will lie looked after by a
modern practicer in a court of equity ; they sliew, however, that
these fidei commissa, and ingenious inventions, were at first much
discountenanced. The preamble to the statute likewise inveighs
much against the ill consequences arising from them ; and therefore,
as lawyers somewhat technically express it, executes the use to the
possession ; or to speak more intelligibly to a common apprehension,
unites them. It would have been still more commendable, perhaps,
to have in many instances abolished them ; for why is any one,
either in the possession or transferring of his property, most un-
necessarily to make use of the intervention and name of another ;
ait least in the greater part of worldly transactions, this is by no
means requisite. (Barr. on the Statutes, 387.)
We all know the nature of an use, that it was a mere equitable
interest; the estate in law was in one, aud the benefit and advan-
62
A person seised there must be,
And he is call'd the releasee. 2190
Chattels real of personal,
Are not within the act at all ;
None but a body natural,
Who reason has, is capable ;
So not a body corporate, 2195
Because you can't its body take ;
Nor shall the body natural,
Answer ybr body coiyoral * ;
For that, as well as other reasons,
Scot-free go all the corporations. 2200
If body corporate convey.
It must by feoffment be, they say,
tage of the estate in another. Uses are indeed strange things
in thtir nature, and of new invention in tlie law. The original of
them was to avoid the statutes of mortmain. (Brent's Case, 2 Leon.
14.) For when those statutes proliibited the conveying estates to
the clergy, they fomid out this way to have the estate conveyed to
lay persons, under secret trusts, to their use, which in those days
affected the conscience of the people ; and until the time of Henry
the 8th, clergymen sat in the chancery ; who having power over
men's consciences, enforced them to perform those uses. Indeed,
for a time uses were kept secret, and did not much appear until the
differences between the houses of York and Lancaster ; wherein the
whole nation being engaged, both parties finding those uses conve-
nient, and fit to preserve their estates, agreed to support them ; so
that in Edward the 4th's time, we find more mention of them than
before ; and they being thus lirought in by a general consent, they
were afterwards licked into form ; so that at length, if a man for
money, aliened and granted his land to one and his heirs, by this a
use was raised by construction, and it amounted to a bargain an4
sale : and so is Fox's Case. (8 Co. 94 a. 12 Mod. 162.)
* Plowd. 538.
}
63
Or lease, with actual entry on
The land, to give possession.
And then a release thereupon : -^ 2205
For as it cannot seised stand
Of any use that's in the land :
A bargain and sale, altho' inroird,
Wont do, as all the lawyers hold.
An use you cannot raise or make, 2210
Except to those who can it take ;
And all the books in this agree,
There needs must be a privity.
As well in person as estate.
When any uses you create. 2215
An use upon an use, or double.
Certainly creates a trouble,
If not a tedious chanc'ry suit ;
The statute wont it execute.
Suppose a lease and release to 2220
A man, for instance, Richard Roe,
His heirs and assigns, in fee.
Whom now we call the releasee,
To uses, which are thus declar'd.
And by a deed that's just prepar'd, 2225
" To the use of Thomas Stiles in fee ,•"
The statute instantaneously.
Like flash of hghting, do you see.
Transfers the land to Stiles in fee :
Nothing remains in releasee. 2230
But if the limitation be
•>/^
64
To the use of the said Stiles in fee.
To the use of Richard Miles, we see
A double use 'twill clearly be.
And only good in equity.
And hence, if bargain and sale there be,
The use must be to baigainee ;
For till inrollment of the deed.
E'en he himself cannot be seis'd :
The use remains in bargainor, 2240
Until the statute does it draw.
And vests it in the bargainee.
And him alone, exclusively.
So any ulterior use needs must
Have operation as a trust. 2245
So in a covenant to stand
Seis'd to uses of the land.
The use must evidently be
Limited to covenantee.
If some third person you shall chuse 2250
To take it, as cestui que use,
The only way for such intent,
Is by afine^ or feoffment :
Or, if the parties shall so please,
It may be done by lease and release. 2255
Estates o( freehold (as you know) ^
Cannot commence infaturo ; >
But as to uses, lis not so, ^
The freehold is in releasee,
Or cognizee, or tlm feoffee, > / 2260
To answer make to prwcipe :
65
But uses from such seisin flow,
And may commence in futuro.
And rest upon contingency.
Within a life or lives in esse ; 2265
And whilst a son, then born, shall be
Disabled by his infancy.
The uses which we now are singing,
Are call'd contingent^ or else, springing :
Which, by destroying the estate 2270
On which they hang, you may defeat.
Jn use may also shift, or go
From Thomas Stiles to Richard Roe ;
But if the limitation be
Upon estate which is i?i foe, 2275
It clearly then must needs prevail,
Tho' not if it 's upon a tail.
To prove that this is not a joke,
Refer to Pells and Brown, in Croke *.
The real difference between 2280
An use and trust, must now be seen.
When both these interests you compare.
As like as judges* wigs they are ;
A foie of each may levied be — •
Both pass by a recovery ; 2285
And yet a lawyer clearly sees.
Unlike they are, as chalk and cheese :
For, if a suit is brought at law,
A trust there is nol worth a straw ;
* Cro. Jac. 590. • -
F
66
Tl»e judge will say he cannot see 2290
That such a thing can ever be.
But, if an use, by chance appear,
It ever is acknowledge! there ;
And he who has it, tho' indeed
A bare trustee, will still succeed. 2295
But in a court of equity
A mighty difference you see ;
For there the trustee ever must
Convey the use he had in trust ;
And, if he do not, why then he 2300
Shall to the Fleet committed be :
For he who has the trust, does there
The real owner well appear *.
* In opposition to equity, we have what the lawyers call strictum
Jus : which phrase, according to liudccns, is peculiar to lawyers ;
denoting such pure and exact law as is full of rigour, and almost
amounts unto iniciuity itself ; and this is sometimes called strict
law, sometimes a subtilttf of words, and sometimes the quirks or
finesses of the law ; in Latin termed apices juris. Again, rigour
of law is sometimes called strict reason, and a subtilty of law, and
also nimia subtilitas : but the Comedian says, that this sumnmm jus
is summa injuria; and Columella, in his work, de Re Rustled, calls
it summa crux: wherefore, by several texts of law, we ought to
prefer equity unto strict law. (Ayl. Civil Law, 38.)
The judges in our courts of law, are bound l)y their oaths to ob-
serve the strict rules of law ; and therefore, as upright judges, they
must determine according to the known customs and statutes of the
realm, although they are sensible, that even in so judging, they do
an act of manifest injustice. On the other hand, the judge in a
court of equity, is bound not to suffer an act of injustice to prevail,
though it be wiirranted by the forms and proceedings of law ; and
therefore he njodcrates the rigour of several penalties ; relaxes the
strict ties of unreasonable conditions ; aids against unavoidable
67
losses, clandestine frauds, and the like ; and thence it is, that judg-
ment shall he given in the same case against a man on one side of
Westminster-hall, and quite contrary, for him on the other ; and yet
both these agreeable to justice. The narrow-minded person, who la-
bours under his great affection for form and order, cannot see the
beauty of this contrivance, whereby justice is produced from such
jarring jurisdictions ; and what neither strict form and order, or ab-
solute latitude in judging, can separately produce, is effected by the
excellent temperature of both together. This hath been judiciously
compared to the mingling of two herbs, which of themselves are
poison, but together make a wholesome medicine. (Francis's
Maxims, preface.)
f 2
THE
CONVEYANCERS GUIDE,
BOOK THE SECOND-.
<0f Contjcpancc^ ajsf tfjcp rdate ta €j8ftate^.
At first, a orow^ aw^ feoffment too
Were made as well by an old shoe *
As by a deed, wrote in a hand
Which very few can understand.
But when men learnt to read and write, 5
Lawyers soon found the way t' indite :
Sheepskins no longer serv'd for breeches.
But evidences were of riches.
Thus deeds began — and this their size.
Which now must need excite surprise : — 10
" To the heirs male of the Hopton, lawfully be-
gotten.
To me and to myne, to thee and to thine.
While the water runs, and the sun doth shine ;
For lack of heyrs, to the king again.
" I, William, King, the third year of my reign,
* Ruth. 4, 7, 8. Dent. 25, 9, 10.
a
70
" Give to the Norman Hunter, 16
To me that art both leef and dear.
The Hoppe and Hoptoune,
And all the bounds up and downe—
" Under the earth to hell, 20
" Above the earth to heaven :
" From me and from myne,
*' To thee and to thine,
" As good and as fair
" As ever they myne were. 25
To witness that this is sooth,
" I bite the white wax with my tooth,
'' Before Jugg, Marode *, and Margery,
" And my third son Henery ;
" For one bow and one broad arrow, 30
" When I come to hunt upon Yarrow -}-."
* i. e. Jude and Maude-
t Blount's Ten. 102, 103. " It may seenn odd," says Mr. Wil-
kins (Asiatic Miscellany), " that a charter of legal conveyance of
property should be ranked among the literary coniposition.s of any
people : but so widely do the manners of the Hindoos diflfer from
those of Europe, that as our lawyers multiply words ai>d clauses, iu
order to render a grant complete, and to guard against every thing
which may invalidate it, the Pundits seem to dispatch the legal part
of the deed with Ijrevity ; but in a long preamble and conclusion,
make an extraordinary display of their own learning, eloquence, and
powers of con)position, both in prose and in verse. In the preamble
to one of their original grants of land of very ancient date, is an en-
comium of the monarch who grants it, in a bold strain of eastern
exaggeration : — " When his iimumerable army marched, the heavens
were so fdled with the dust of their feet, that the birds of the air
conld rest upon it. His elephants moved like walking mountains,,
and the earth, oppressed by their weight, mouldered into dust."
71
And such a deed was just as good
As uncle Tobys brothers could ;
Filling as many skins as acres,
To shew the learning of the makers. 35
Feoffment came next, with livery ; \
Which all sound lawyers do agree, >
The king of deeds, will always be *.
It far excels them every one.
As much as does the sun the moon ; 40
As did the power of Papal Rome,
O'er all the kings in Christendom t-
* In 10 H. 8. 10, it is mentioned as a thing notorious, " that
those who have no freehold may convey a freehold." The convey-
ance, which will pass a freehold from a person who has none, must
necessarily be a feoffment, since there is no other conveyance in the
law which will produce that effect. A man may devise " that his
lands should be sold by his executors ;" in which case the lands de-
scend upon the death of the testator to his heir at law, and the exe-
cutors take no interest by the will. Dabington, a learned judge, in
putting such a case, and taking notice of the feoffment of the exe-
cutors, makes this remark : " And so," says he, " a man may have
a lawful freehold from a person who has nothing in the land ; as a
man may have fire from a flint, which has no fire in it." (9 H. 6.
24. 1 Burr. 94, 95.)
If tenant for years make a feoffment in fee, it devests the whole
estate of him in the reversion ; but if he levy a fine, nil operatur,
no freehold passes ; and it may be alleged qithd partes finis nil hahu-
erunt. A fine is improperly called a feoffment on record, it has
only the effects of a feoffment to some purposes, if he who levies the
fine was seised of the freehold at the time of the fine levied. (Smith
dem. Dormer v. Parkhurst, 7 Mod. 368.) ^ , ^
t Pope Innocent the Third exalted the papal power as much
above the regal, as spiritual things are better than temporal, or the
soul superior to the body , and having compared these two powers
72
At it let modern scriv ners wonder—^
'Twas something like what's written under : —
" Know all men, that I, 45
" John Doe of Dale,
" For a certain sum paid by
*' Richard Roe, of Sale,
" Have granted and enfeoff' d,
" And do confirm to Richard Roe, 50
*' All my lands and tenements,
'^ Which are in Wavenhoe :
" To hold said lands and tenements
" So that the same may go.
" Unto and to the use of 55
" No other than said Roe,
" His heirs and assigns for ever,
" Or otherwise in fee,
" Without any claiming or to claim.
By, from, or under me ; 60
With warranty from me and mine,
" Until there is an end of time."
Doe, Xho, feoffor, made some excuse.
Sent all the people from the house ;
Then by the thumb-latch of the door 65
(Being present witnesses, three or four),
to the two great lights in the firmament, inferred from thence that
the pontifical authority is as much superior to the regal, as the sun
is greater than the moon. Upon which, there arising some difference
concerning the proportion of magnitude betwixt these two lumi-
naries, and consequently betwixt these two other great powers, the
Gloss to the Decretals does learnedly refer us to Ptolemy's Alma-
gest, to adjust the proportion !
73
Bade Roe go in ; and in he went,
Upon the errand he was sent ;
He shut the door, and being in.
His seisin from thence did begin. 70
Thus every thing you see was done,
As clear and open as the sun.
If possession had not Doe,
None he could have given Roe.
As salts do purify the blood, 75
So feoffments work — by doing good :
Both have the quality of urging
The thing they op' rate on, to purging.
Thus feoffments all disseisins purge *,
Destroy conditions, powers merge -f- ; 80
Pass th' estate to feoffee clear.
Free from all titles whatsoe'er.
AW feoffments operate by reason
Of transmutation of the seisin ;
In cases where such seisin may 85
The feoffor really convey.
In passing chattel interests,
The seisin in freeholder rests ;
And hence a, feoffment cannot be
Made of a term of years, we see ; 90
Nor can it ever operate
To pass reversioners estate.
If on ^freehold, for this reason —
The tenant has himself the seisin ;
* Touclist. t Except a power collateral.
74
And hence to pass it, if you want, 95
It must be done by way of grant :
The seisin, which is corporal.
The feoffor of it must have all.
Therefore if twoyom^ tenants be.
They can't he feoffor and feoffee ; 100
Their seisin, per mie et per tout,
Proves such conveyance will not do ;
For how can one enfeoff the other,
The seisin having both together ?
No lawyer yet, with all his skill, 105
Hath yet found out, nor ever will,
The way to give another, what
Sueh other hath already got *.
But tenants in common, of their shares,
As well as also parceners, 110
Have several freeholds ; and they may.
Each to the other so convey.
li feoffor must a journey take.
Livery of the land to make,
Power of attorney let him give 115
To one, who near the land does live.
As corporations are ideal.
They power give by common seal,
* But it seems, a man may be called upon to convey mere moon-
shine. If A. covenant with B. to convey all his right and title to the
manor of I)., to which A. hath no right, it is not a good plea in an
action of covenant that he had no right, &c. but he must make such
a conveyance as would in truth pass all his title, in case he had any ;
and he is estopped by his covenant to say he had no title. (Anon.
12 Mod. 399. per Holt, C.J.)
75
To pass the seisin, as they say,
Because they have no other way. 120
The self same person cannot be.
As well feojf he as bargainee ;
Feoffment the seisin all conveys ;
But in the bargainor it stays,
Until the statute draws it out, 125
By means which we have sung about.
When l\\e feoffment operates.
All the land the feoffee takes :
'Tis out of feoffor, as we see,
By very act of livery ; 130
And being out, he cannot be
Seis'd to the use of bargainee ;
Unless to prove you set about,
That out means in, and in means out.
h feoffment which is good, ne'er wants 135
Both warranty and covenants *.
The warranty will bind the heir.
Provided assets shall appear ;
And sometimes even shall prevail.
To bar remainder-men in tail ; 140
Rents and advowsons, tithes and pensions,
And other things, which Blackstone mentions —
Things you don't see, nor ever will,
Existing in the mind's eye still.
" The office of an express covenant is to assist, further, and sup-
port the grant ; and is, as Lord Hobart calls it, a wall, or a muni-
ment about it. Earl of Clanrickard's case.
76
Must by a grant conveyed be ; ^ 145
Hence, the division which we see,
Of things in grant and livery ;
Tho' livery, it does appear,
Was once made by a lock of hair *.
A gift 's a transfer voluntary — l^O
Consideration, not for money,
Nor yet of blood ; and at this day.
He who his land shall so convey
Can pass it well, provided he
Is not indebted ; if he be, 155
Why then it is a nullity,
Altho' convey'd by Vwery.
Feoffments were gifts originally ;
But now a gift is generally
Apply'd to tail estates ; hence we 1()0
Use the terms donor and donee.
* The learned Seldcn jj^ives us a grant of tithes in the reign of
King Stephen, from William Earl of Warren and Surry, to the priory
of Lewes, in Sussex, wherein livery and seisin was, as it were, made
upon the altar by the hair of the head, both of the grantor and his
brother (cut off by Henry, Bishop of Winchester) ; and he observes,
it was not without other example in those ancient times, wherein
both tithes and other possessions were solemnly consecrated, either
by hair, a horn, a cup, a knife, or a candlestick, or what might really
l)c delivered on the altar. And that the form of conveyance in per-
petual right, both to the church and laity, was to give into the hands
of the grantee or feoffee some sucli thing, as at this day a twig or turf
is in feoffments ; or as in institutions (according to the formulary of
the court of Rome), a ring is to be given ; and the altar was usually
made the place of such a livery. (Hist, of Tithes, 341.
77
The latter grounds his claim upon
A special writ, call'd formedon.
A grant for life or years, at ivill,
Grantor remains the owner still : 105
Tis the most common grant of all —
And such a grant, a lease we call.
'Tis seldom made the way it ought,
And often is not worth a groat ;
Nay, worse ; for in the case of fire, 1 70
Before some leases shall expire,
The poor lessee must pay the rent.
Although he has no tenement *,
A lease for life, goes to the seisin.
And being so, it stands with reason ; 175
* A lessee of a house, who covenants generally to repair, is bound
to repair if it be burned by accidental fire. ((! T. R. 650.) When
the law creates a duty, and the party is disabled to perform it, with-
out any default in him, the law will excuse him ; but when the party
by his own contract creates a duty or cliarge upon himself, he is
bound to make it good, notwithstanding any accident by inevitable
necessity. A lessee, who covenants to pay rent and to repair, with
an exception of casualties by fire, is liable upon the covenant for
rent, though the premises are burnt down and not rebuilt by the
lessor, after notice. (1 T. R. 310.) The mischief would have been
prevented, if the exception of fire had extended to the covenant to
pay the rent. A lease for years ought to have certainty in three li-
mitations, viz. in the commencement of the terra, in the continuance
of it, and in the end of it. So all these ought to be known at the
commencement of the lease : and words in a lease, which do not make
this appear, are but babble. (Plowd. 272.)
If a man maketh a lease for twenty-one years, if he shall so long
live, this is a good lease for years ; and yet it is certain in uncer-
tainty, for the life of J. S. is uncertain. (Co. Litt. 45, B.)
78
As on di feoffment it must be
Created by a livery ;
Unless the grantor shall so chuse,
To do it by devise or use ;
But if the grant is made for years, 180
The seisin, clearly it appears,
Remains in the lessor ; for he
Grants but a right to the lessee ;
And perfected such right must be,
By entry made by the lessee : 185
Altho' before, if he 's inclined,
His interest may be assign'd :
But if a trespasser gets in,
Lessee cannot an action bring *.
A lease, by parol, for three years,- 1!)0
Is good, as by the act appears -}- ;
All others must created be
By deed or writing, as we see.
A lease is made to the intent.
The lessor shall have such a rent : 195
The reddendum that's general.
Clearly is the best of all ;
For then the rent will surely go
To him who hath a right thereto.
A lease may clearly be assign'd, 200
Whenever lessee has a mind ;
* Lease to another, to commence at Michaelmas next, the lessee
may grant the lease over, and yet he shall not have an action of tres-
pass before entry. (Plowd. 142.)
t 29 Car. 2 c. 3
79
Or he may grant, if he so please.
What is call'd an underlease ;
Unless the lease does stipulate,
Such interest he sha*nt create. 205
When property at first came in,
Exchange of lands did first begin :
It is a mutual grant, of what
The parties have already got.
The lands exchanged, in quantity 210
Of interest, must equal be :
Fee for a fee, or lease /or years,
Of like duration, it appears :
But value 's not material —
That wont affect th' exchange at all. 215
It may be made of things, which lie
As well in grant as livery ;
And yet no livery need be
Upon exchanges made in fee.
But still, a good exchange to make, 220
Both parties must possession take ;
For if both die before, 'tis void :
By such event it is destroy 'd.
And if one die, his heir then may
Make it a nullity next day. 225
But if 'tis done by way of use.
Then neither party can refuse :
The use does the possession draw,
And each hath it by act of law ;
But as to corporations, they 230
Cannot by way of use convey.
80
So much for deeds, which lawyers call
The primary, or original :
Those which remain we now shall give,
And those are term'd derivative. 235
They presuppose a grant before ;
The interest there t' enlarge, restore,
Alter, restrain, confirm, transfer.
And to such previous grant refer. ^
Thus, if release of right you make 240
To him who has the first estate,
'Tis a discharge in sense and reason,
To him already in the seisin.
All such releases operate
At least five ways upon th' estate : 245
If tenant for Ufe, or years, there be.
Remainder over of the fee ;
He in remainder, may enlarge
The first estate, his own discharge,
By a release ; but the lessee 250
Must clearly in possession be ;
If not, then is the substance gone,
On which the release works upon.
Two sisters, having dift'rent shares.
Or, as we call them, parceners : 255
If one release her share unto
The other, to her it shall go ;
By way of passing an estate.
And, of the whole, a fee create.
But releasor, and releasee, 2(30
Must always have a privity :
81
Theii- interests must so relate,
They both can make but one estate.
If Richard Roe evicted be,
And disseisor 's his releasee 265
Of all his right, the wrong before
Becomes a right in disseisor.
I, tenant have for life, and he
Doth grant like lease, for life, to B.,
Remainder over, of the fee, 270
And I release to his lessee :
'Tis clearly an extinguishment
Of all my right, as it was meant :
My lessee's tortious acts I cure ;
To make both good, it doth enure. 275
If entry by two disseisors be.
To one, releases disseisee ;
Such one will then be in of right.
And oust his old companion quite.
A confirmation doth enure, 280
Some previous defect to cure :
Estate or right, by it you may
Unto another well convey.
Disseisees, feoffors, and lessors.
May all be made, the confirmors : 285
Disseisors, feoffees, and lessees.
As also all their assignees.
May well be made the confirmees.
If tenancy for life there be.
Another, owner of the fee, 290
G
}
82
The tenant may surrender make ;
Such other can surrender take,
And that without a livery,
Because there is a privity :
The life estate will clearly be 295
Merg'd, or extinguish'd in the fee.
But you cannot surrender make
Unto a man who can't it take ;
Unless you prove that you are able
To thread a needle with a cable, 300
Drink up the sea, the stars all tell.
And do what is impossible.
Chattels real, or terms for years.
And goods and chattels, it appears,
If absolute interest you take, 305
You may of them assignment make ;
And all the property shall be
Well vested in the assignee.
Yet if a grant of lease there be
For term of years to a lessee, 310
Such grant can only operate
Upon a part of the estate.
But an assignment, as we see.
Will pass the wliole to assignee.
Estates for life, or years, or fee, 315
May to conditions subject be ;
And in the deed they should appear,
That it may tell us what they are :
Therefore, of deeds collateral, ^
Which lawyers a defeazance call, V 320
We have no need to sing at all.
83
A covenant to seised stand,
To another's nse of any land,
Cannot be done, except by deed ;
And he who covenants, mnst be seis'd. 325
It can't embrace an eqnity,
A right, or a contingency :
But any one, it stands to reason,
Can make it, being in the seisin,
Be it reversioner, or he 330
Who is remainder-man m fee.
But corporations cannot stand,
Seis'd to uses of the land ;
Nor shall such covenant prevail.
When made by him who 's seis'd m tail 335
Marriage, or blood, or both, must be
The consideration, all agree —
For nothing else will do instead ;
It cannot be for money made.
The use may be in futuro, 340
To those to whom 'tis meant to go ;
And when well rais'd, the covenantee
Hath instant seisin of the fee.
The bargain and sale now claims the lay.
Of which we have not much to say : 345
'Tis wholly built upon the reason,
The bargainor has got the seisin ;
And having received of bargainee
The purchase-money, do you see,
The bargainor is instantly 350
Seis'd to the use of bargainee.
g2
84
The use, which is in bargainor,
The statute from him then will draw ;
Transfer it to the bargainee —
Give him possession of the fee : 355
Nor will the law at all endure
That it shall otherwise enure.
For, if Doe is the bargainee,
The use must be to him in fee,
Although 'tis limited to go 3G0
Unto the use of Richard Roe.
The lease and release next we mention.
As well deserving of attention ;
They both together make but one,
Yet as distinct as sun and moon ; 365
Just like our cockney sheriffs, who
Make sometimes one, and sometimes two.
Lord Norris, having large demesnes,
Apply'd to Serjeant Moore, it seems *,
To settle them, that none might know "^ 370
To whom they were designed to go —
(An excellent expedient, too).
And Moore, the noble lord to please,
Contriv'd the deeds of lease and. release.
By them is given the possession, 375
Without a journey on th' occasion.
As well as if the lands were laid on.
And brought by horses in a waggon ;
• See the Treatise on Capiases uiid Outlawry, by Fabian Phillips,
115. And Barr. on the Ancient Statutes, p. 101, in note.
}
85
Willi ;i direction on an oak,
'' To be delivcr'd to John of Noke." ^380
The lease does only operate
To give a right to the estate,
On entry made by the lessee ;
In by the common law is he, ( '
And then may be the releasee. S 385
This Noi/ * admitted long ago;
And common sense does tell ns so :
For without entry the lessee
Can not be made a releasee.
But, if a bargain and sale you make, 390
The releasee will clearly take ;
'Tis wholly built upon the reason.
The bargainor has got the seisin ;
And having receiv'd of bargainee
A sum he never paid, you see, 395
Five or six shillings ; that is all —
A consideration nominal :
The bargainor is instantly
Seis'd to the use of bargainee.
The use, which w;as in bargainor, 400
The statute from him then will draw.
Transfer it to the bargainee,
Who then will in possession be ;
And being so, as releasee.
Can take conveyance of the fee. 405
Although the day of death will come.
The rich and poor man's gen'ral doom,
« 2 Mod. 252.
86
When all the estate, which each can crave.
Is room sufficient for a grave
To lay their bones in, after death — 410
Six feet in length, and two in breadth :
Yet may the worldling * so contrive.
In some respects, to keep alive ;
(Who, having land enough in store.
Will to his acres add some more ; 415
Take from the honest cottager
The right which custom did confer,
* " This world is for worldlings to possess and enjoy.; it was
(say the Rabbins) wade for the presumptuous ; and although God
did not altogether design it for them, yet men have almost made it
so. They are best qualified to thrive iuit, who can lustily bustle and
scramble ; who can fiercely swagger and huflf ; who can fawn ; who
can wind and wriggle like a serpent ; who can finely cog and gloze ;
Avho can neatly shuffle and juggle ; who can shrewdly overreach and
undermine others ; those slippery, wily artists, who can veer any
whither, with any wind ; those men of impregnable confidence, who
can insist upon any pretences ; who can be indefatigably and irre-
sistibly urgent, nor will be repulsed or baffled by any means ; those
who have a temper so lax and supple, that they can bend it to any
compliance advantageous to them ; who have a spirit so limber, that
they can stretch it any whither ; who have face enough and con-
science little enough to do any thing ; who have no certain principles,
but such as will sort with their interests ; no rules, but such Lesbian
and leaden ones, that easily may be accommodated to their pur-
poses ; whose designs alltend to their own private advantage, with-
out any regard to the public, or to the good of others ; who can
use any means conducible to such designs ; boggle at nothing which
serveth their purpose j notcaring \vhat they say, be it true or false ;
what they do, be it right or wrong, so it seem profitable. This is
called \visdom, prurience, dexterity, ability, knowledge of men,
and of the world, and I know not what besides.^' (Isaac Barrow,
4 Strm. on Contentment, 118.)
87
To feed a cow, as well as glean.
When workhouses were never seen ;
When men, tho' poor, were not afraid 420
Of ever seeking parish aid ;)
And by devise, his lands so carve,
His son and heir is left to starve ;
Give them to different uses, so
They shall for generations go ; 425
For years, for life, in tail, or fee.
Insist that every devisee
Shall bear his arms, when he is rotten.
And use a name that 's best forgotten :
With shifting trust, and springing use, 430
To frighten those who dare refuse ;
But still he can't create, we see.
What is a perpetuity ;
And all his care will not prevail
Against remainder-men in tail ; 435
Who, having gambling debts to pay.
The land must all such debts defray —
A sale takes place * — and he who buys
Is some rich cit, not over wise ;
One just as thrifty, and as vain, 440
Who then may settle them again !
* " Shades that to Bacon could retreat afford.
Become the portion of a booby lord ;
And Hemslcy, once proud Buckingham's delight,
Slides to a scrivener or a city knight."
Poi'E.
\
A Pf^ill of personal estate *
A man had always power to make ;
Not so of lands ; for that s not by
A common law authority ; 445
And being- so, he must pursue
The statute's -j- rules, or 'twill not do.
The maker of such ivUl must be
Solely seis'd, and that in fee,
In common, or in parc^nari/ ; ^ 450
Not in joint tenancy, or tail \,
For then, the will will not prevail ;
And he must have a perfect mind ;
It must in writing be, and sign'd :
Subscribing witnesses there must be,
And in his presence, at least three §.
* Devises of lands differ extremely from wills. They are no
appointment of an heir ; they create no representation ; the devisee
does not stand in the place of the devisor, as to simple contract
debts; and till the statute 3 & 4. W. & M. c. 14. the devisee was not
liable to specialty debts (because he was considered as an alienee,
and not as heir). They are conveyances or dispositions mortis causd:
and that is the reason why a man cannot devise land which he shall
afterwards ac(iuire. One devise may be void, another good. There
is no probate of the whole instrument -, every several devisee must
make out his title in a distinct cause, and de novo, against every new
party. (I Burr. 429.)
f 32 Hen. 8. c. 1. explained by 34 and 35 Hen. 8. c. 5. s. 4.; and
29 Car. 2. c. 3.
X Tenant in tail, with remainder in fee in contingency, may de-
vise; and if he leaves no issue at his death, his devise shall be good.
(3 Burr. 1494.)
§ The following rules or cautions may be of great use in making
wills: — 1. Make it by good advice, in your perfect memory, and
inform your counsel truly of the estates and tenures of your lands.
89
Devise, or will, can't operate,
To pass an after-bought estate ;
2. It is good, if your will concern inheritance, to make it in-
dented, and to leave one part with a friend, lest after your death it
be suppressed.
3. At the time of the publication of the will, call credible wit-
nesses to subscribe their names to it.
4. If it may be, let all the will be written with one and the same
hand, and in one and the same parchment or paper, for fear of
alteration, addition, or diminution.
5. Let the hand and seal of the devisor be set to it.
6. If it be in several parts, let his hand and seal be put, and the
names of tlie witnesses subscribed to each part.
7. If there be any intcrlinint^ or razure in the will, let a memo-
randum be made of it, and sii^ned by the testator.
8. If you make any revocation of your will, or of any part of it,
make it by writing, by good advice j for on a revocation by word,
follow controversies, some of the witnesses affirming it to be in one
manner, some in another manner. (3 Co. 36.)
The 29 Car. II. e. 3. enacts (among other things) that the will
shall be signed by the testator, or some other person in his presence,
and by his express direction (for illness may render him unable to
sign it himself), and be subscribed in his presence, by three or four
credible witnesses. On this subject the observations of Lord Mans-
field are most important : " The third rule or caution in making
wills, given by Lord Coke, is — at the time of the publication of the
will, call in credible witnesses to subscribe their names to it. Lord
Coke certainly meant ' persons of credit and character.'
" From hence, and from the usage in penal acts, directing con-
victions, I am persuaded that the epithet was inserted as a word of
course, and misapplied. Had the operation or effect of the word
in tliis particular case been attended to, it never would have been
inserted ; because in the natural and obvious sense the meaning
must be rejected, from the consequences it would have ; and in any
other it has no meaning at all ; for, suppose it to signify competent,
competency is implied in the term ' witnesses.'
" The whole clause which introduces a positive solemnity to be
observed, not by the learned only, but by t^c unlearned ; at a time
90
Unless it is republished,
And in the way in which 'tis made : 460
when they are supposed to be without legal advice ; in a matter
which greatly concerns every proprietor of land ; where the direction
should be plain to the meanest capacity ; is so loose, that there is
not a single branch of the solemnity defined or described with suffi-
cient certainty to convey the same idea to the greatest capacity.
" There have been litigations and contradictory opinions upon al-
most every part of the form ; as — What is signing by the testator ?
Whether the witnesses are to attest uno contewtu, imo eodemq, tem-
pore F Whether they are to see the testator sign ? Whether they
ought to know that he signs it as his will ? Whether he ought to
publish it as his will ? A very little precision, and a very few words,
might have prevented all these questions.
" In a clause, not the most accurate, I can easily believe that the
usual epithet, " credible," slipped in, as of course, without attention
to the impropriety of using it on this occasion. After the compe-
tence of a witness is allowed, the consideration of his ability arises,
and not before. Persons undoubtedly credil)le, cannot be witnesses
under particular circumstances ; persons manifestly incredible may
be, and often are, witnesses.
" It has been said, that the act of 29 Car. II. c. 3, was drawn by
Lord C. J. Hale ; but this is scarce probable. It was not passed
till after his death ; and it was brought in, in the common way, and
not upon any reference to the judges.
" But what sense soever is put upon the word * credible,' the
statute leaves the (juestion just as it was ; for it does not declare
who are or are not credible, or (if it is supposed to mean competent)
who are competent or incompetent. Supposing the subscribing
witnesses honest, how little need they know ? They do not know
the contents ; they need not be together ; they need not see the tes-
tator sign (if he acknowledges his hand it is sufficient) ; they need
not know it to be a will (if he delivers it as a deed, it is sufficient).
(1 Burr. 420.)
" Let a will be ever so fair, a slip in form is fatal, which is a certain
mischief. But if a will be fraudulent, though it is allowed to be
formal, it may be set aside upon evidence and circumstances." (Ibid.
423.)
91
'Tis ambulatory, till the maker
Wants indeed the undertaker ;
But if it stands until he dies.
His will it is— not otherwise :
Yet if a slip in form takes place 465
(Which very often is the case).
Although his meaning is as clear
As sun at noon- day does appear,
?Iis ivill is void ; his devisees > '
May thank his lawyer, if they please, > 470
And leave the heir to pay the fees— ^
For he gets all, and by descent.
For want of ivill and testament ;
Or if the will is right and good,
And the intention 's understood, 475
'Tis possible, some lawyers say.
To construe it another way * :
The hardest case perhaps to be found in the books, is the follow-
ing : A mother devised her real and personal estate to her daughter
and only child ; and if she died before she was of age to dispose
thereof, then the testatrix devised it over. The daughter lived to
be married, and died between twenty and twenty-one, leaving a
daughter. Lord Hardwicke decreed the real estate to the devisee
over.
♦ As every one, for the last two centuries, has had the power of
devising his land, it may perhaps be thought extraordinary that this
power should not have been derived from the common law («), but
from an act of parliament. The reason of this, I take to arise from
(«) There are instances in Ryraer, of the kings of England empow-
ering particular persons to make their wills. Edward III. gives such
a power to liis son, the Black Prince.
l)-2
A personal disability
Arises from an infancy ;
The like of an insanity : ^ 480
so few being capable formerly of writing- a will, or of having an op-
portunity of procuring a person who could write what they dictated.
If it is said, that by the common law every one had a right thus to
dispose of his personal pi'operty, the answer is, that personal estate
was anciently one of those niinvnu de qu'ibus non curat lex. Besides*
this land could not be transferred without the consent of the king, or
the superior lord ; and a fine was paid for the obtaining his consent
to such alienation. The will, moreover, could not be opened or
known, till after the testator's death ; and possibly the devisee was
the mortal enemy of the feudal lord, who would not permit such a
tenant to be imposed upon him. These, or other reasons, must have
occasioned this power not being given to the owner of the land by
the common law ; as by most other laws («) the subject hath this
indulgence, which seems to be a great spur to industry, as well as a
security of the dutiful behaviour of the family and relations to him
who is invested with such a power.
As wills are often construed contrary to a fundamental rule, viz.
that they are to be expounded agreeable to the intention, the testa"
tor might as well have continued to have had no such power. The
reason generally given for such decisions is, that precedents of other
adjudged cases must be followed ; as otherwise the law will be un-
certain, and advocates will not know how to advise their clients.
The answer to this seems to be, that there cannot be a case in point,
without the two wills are conceived in verbis ipsissimis, and made by
(a) By the laws of the twelve tables, uti quisqite legussit ilajtts
esto. There arc many regulations with regard to wills in the Koran;
and Herrera mentions that the native Mexicans had this power ; so
that it may be said to prevail as law in three parts of the globe. It
is difficult to know, in the ancient laws collected by Lindanbrogue
and Balusius, whether the Germans had this power or not, as Ma-
billon observes, that in the early ages, tcstamentum signified any kind
of contract. (U Dip!, p. '6.)
93
Nor does the law at all endure
A ivill made under coverture.
testators, in the same situation and circumstances ; for surely it is
strange to contend, that the will of a duke and that of a mechanic,
can be made with the same views. The first will probably be a will
of mere pride, and the other possibly of affection and equity ; and if
the intention of the testator is to be followed (which all agree, if it
does not contradict a rule of law (a), the same words may reason-
ably receive a different construction.
As for the objection, that advocates would not know how to ad-
vise their clients if precedents were not followed, I should think it
may still be more easily answered. The advocate should read the
will, and find out the testator's intention, without considering what
determinations have been made upon other wills. And I remember
to have heard a learned judge, within these few years, thank the bar
for not having, in an argument upon a will, cited any cases, as every
will was to stand upon its own bottom. If it would not be thought
too presumptuous, I would venture still to go farther, and contend
that the same rule should prevail with respect to the construction of
a deed ; nor is it proper to sxippose that they are all drawn with the
strictest accuracy and best advice, when it is well known that the
greater part are never revised, but by those, whose imperfect know-
ledge of the law is perhaps rather productive of more errors, than if
the deed was penned by one who had not, what is called, a profes-
sional education. It is, in short, to suppose what is contrary to the
fact, and every one's experience ; and an argument built upon such
a supposal can never carry with it or deserve any great weight.
(Barr. on the Statutes, 389.) In many of the cases which have been
litigated, and in which it has been decided that the first devisee was
only intitled to a life estate, one cannot but suspect, privately speak-
ing, that it was the intention of the devisor to give the absolute pro-
perty to the first taker. Per Lord Kenyon. (Denn dem. Moor v.
Meller, 5 Term. Rep. 562.)
(rt) As if a testator devises a perpetuity, which he cannot do by
any words, though most clearly expressive of his intention.
94
A fine 's a sort of compromise
Of suit, the plaintiff never tries ;
And it does always operate 485
To pass an int'rest in th' estate.
The cognizor must be possess'd
Of some estate or interest ;
Or if not liim, the cognizee,
For life, in tail, or else in fee, 490
Remainder, or expectancy —
Either in law or equity.
Because ^Jine, without estate.
May any claimant well vacate,
By pleading to it or upon't, 495
Partes nihil hahuerunt :
Unless indeed, it shall be found.
Such claimants by estoppel bound.
But Vfh^XhQV freehold is, or be
In cognizor or cognizee, 500
By right or wrong, 'tis understood
That such a^we will still be good ;
And hence a^we may levied be
To splice a title, all agree.
The cognizor and cognizee 515
Should first he. feoffor diwd feoffee ;
And then it stands with sense and reason,
That one of them must have the seisin ;
And having it, by fine come ceo,
The title ever may endure. 510
That parties to ^Jine, shall be
Concluded ever, all agree ;
95
As well as privies in estate,
In blood or law — they so relate. 515
A privity, yon clearly see.
Between the donor and donee ;
Of blood or of affinity,
With heir and ancestor, agree :
And if there lord and tenant be, 520
The law creates the privity :
If no snch privity appear,
All other persons strangers are.
Privies in blood, will not prevail,
If by a fine you bar a tail : 525
The privity must so relate.
They must be privies in estate.
The issue, when the Jine 's a bar.
Must claim the land from ancestor ;
Or from the very person, who 530
Levy'd such Jine, or 'twill not do.
If you a son and daughter have.
And land to you a person gave,
And to your heirs female in tail, ^
Finet by your son, will not avail } ^^^
To bar your daughter of the tail.
Altho' iie die, and she's his heir, '
And privity in blood appear,
Yet she's not privy in estate,
Nor shall his act to her relate. 540
But now, see the diversity :
If gift in general tail there be.
96
Your eldest son may so contrive
To pass difme, whilst you're alive ;
And on your death it will prevail, 545
And be a bar unto the tail.
Altho' your son, before you die,
There still will be a pr'wity.
As well in hlood as in estate —
To all your issue 'twill relate. 550
Suppose a limitation be
Remainder in conting-ency
To Doe in tail ; and he, said Doe,
Levies ajine to Richard Roe
Before it happens ; altho' he 555
Was never seis*d at all, we see
He bars his issue of the tail —
Hisj^we against them must prevail :
He from the donor did it gain —
They under him may claim in vain. 560
Hisj^ne against them nmst be good,
As privies in estate and hlood.
If land is limited to Doe,
And also limited to Roe,
With tail upon contingency, 565
To him who shall survivor be,
Ajine by both will bar the tail,
And 'gainst their issue shall prevail ;
For they must claim in privity
To one or other, as you see. 570
So all the books in this agree.
That if a limitation be
97
To husband and his wife in tail,
The Jine of husband shall prevail,
And bar the issue ; for you see, 575
Such issue are in privity.
As well in Mood as in estate —
To both their parents 'twill relate.
A widow, after husband dead.
By statute is prohibited 580
To bar by fine, a tail estate,
Which he on marriage did create.
Remainder-man — reversioner.
Claim paramount the cognizor :
They can't be barred by his^w^', 585
Unless it is by length of time.
But if the tail, as well as fee.
Meet in one person, all agree
The^ne will operate to pass
As good a fee as ever was : 590
For he in tail, in such a case.
Would pass two fees—the first call'd base.
Derived from the tail estate,
Which he in tail can well create ;
The other, absolute and clear, 595
He had as the reversioner ;
Which, like a cormorant, will swallow,
Or sink, or drown, his younger brother.
But, tho' the tail and fee may be
In the same person, as you see ; 600
And tho' a fine such tail will bar.
Yet charges made by ancestor,
H
98
Seis'd in reversion of the fee.
Are all let in on cognizee ; 605
Whereas by a recovery,
You get a new and per feet fee ;
Or else the tail to it 's enlarged,
Of all incumbrances discharg'd.
Excepting those, if any be, 610
As were made by recoveree ;
And that (as common sense doth tell)
Is built upon the principle.
No man's permitted to destroy,
Whatever art he may employ, 615
The charges which himself he makes,
And which another person takes.
Although by a recovery.
You bar the tail immediately,
And all remainders over too 6*20
(Which by ajine you cannot do) ;
Yet a recovery cannot be,
Unless the freeholder agree ;
For tenant to the prcecipe
Must ever in possession be. 625
But if remainder-man in tail
Levy ajine, it will avail.
And bar his issue very well —
Because it is by estoppel ;
Though tenantybr life do not agree 630
That such a fine shall levied be.
But every tail estate to bar,
AW fines with proclamations are ;
99
For otherwise^ they operate
To discontinue the estate, 635
By Jine, a married woman may
Her lands and tenements convey ;
By it she also has the power
To bar her right, or claim, of dower ;
But still the law will not endure 640
(She being under coverture)
That any Jine shall pass, until
She secretly declares her will :
For if compulsive force is us'd,
The Jine will clearly be refus'd : 645
By^y?«e, come ceo cognizee
Gains a clear seisin of the fee.
An use arises, which by deed.
May either be declar'd or led ;
For any purpose well it suits, 650
And which the statute executes.
And now, all hail ! — ye students come.
And venerate old Taltarum * ;
* The validity of a common recovery was first established by
Taltarum's case, in the reign of Edward IV.
" The perpetuities established by the statute de donls in process
of time had so much contributed to the increase of power in the
great barons, that about two centuries afterwards it was in a great
measure evaded by the invention of what is called a common re-
covery : it was impossible for the crown to procure a repeal of the
law in the house of lords, and therefore the judges had probably an
intimation that they must by astuliu, as it is called, render a statute
of no effect, which the king could not extort an alteration of from
one part of the legislature. The great benefit arising from this
method of cutting off an entail seems to have made us shut our eyes
h2
100
Who by rccoveiy did set free,
And first loos'd in tails, all agree. 655
on two very glaring improprieties in this fiction of a common reco-
very. The first is, that it is in direct opposition to the express and
clear words of a subsisting law ; and let the inconveniences of a sta-
tute be what they may, no judge, or bench of judges,, can constitu-
tionally dispense with them : their office is jus dicere, not jus dare.
As then the mischiefs arising from this chapter of Westminster the
2d, are universally seen and acknowledged, why should it not be
repealed by (that power which can only repeal it) the legislature ?
I never heard but of one objection to this, which is, that certain
officers and patentees would lose the fees which they are entitled to
upon common recoveries. If there are such claimants, who wouhl
be injured by the alteration, it is but just that they should have a
reasonable compensation ; and the repealing act need not consist of
many words : it is only necessary to say, that every tenant in tail
shall to all intents and purposes be considered as tenant in fee sim-
ple ; which he is indeed at present, with this only difference, that a
tenant in tail can dispose of his land by one method of conveyance
(that of a common recovery), and a tenant in fee simple may choose
out of many ditfereut modes of conveyance.
" The other impropriety in the common recovery is the very ridi-
culous and absurd fiction by which the statute is evaded. There
have formerly been many questions arising upon mistakes in suf.
fering recoveries, which as often as they have been argued, it hath
been attempted with great ingenuity to decide upon principles : but
how can such a fiction be supported, or any thing relative to it, upon
solid ground or argument. Most men of fortune and rank in this
country never enter a court of justice, but to go through this most
ridiculous ceremony. Can the Serjeants who mutter certain jargon,
or the judges who preside, explain to such a person what is going
forward ? What an impression this must leave with regard to other
legal proceedings ! In this enlightened age, when other questions
are deci«lcd with such strength and force of argument (without that
refined subtilty which formerly prevailed, to the disgrace of the
law), it is high time that there should be an end of such unintelli-
gible trumpery." (Barr. on the statutes, p. 100.)
On what foundation of reason (says Lord Kenyon, 7 T. II. 415.)
101
Unlike a finc^ the parties here
Actores fahuhc appear,
And in good earnest do contend,
Until the cause is near its end.
In all recoveries, 'tis agreed, 6G0
The tenant must himself be seisd :
For how 's iha freehold to be got
By suit from him who has it not ?
Yet, if a trust estate you take.
You then may well such tenant make, GG5
Altho' another has the seisin —
For which you'll never find a reason ;
Until 'tis prov'd as true and just
A trust 's an use, an use a trust.
If tenancy for Ufe there be, C7()
And such tenant will not agree.
Remainder-man can't bar the tail;
Recovery will not avail;
Unless the freeholder agree.
No tenant to the pnccipe ; ()75
'Tis against him relief is sought.
And prcecipe quod reddat brought.
The claimant, by the writ, demands
To have possession of the lands,
In his ovvu right, and as of fee, 080
Stating himself a disseisee ;
does tlie whole doctrine of a common recovery stand, which takes
away an estate whicli the statute (fe flonis meant to be unalienable,
from the issue in tail, on the "round of their receiving a recompense
in value from the commou vouchee ?
102
Occasion d by the tenant, or
Some one else, as a disseisor :
Or in the per, or in the post.
By means of which the land he lost. 685
The tenant then his right defends,
And for remainder-man he sends ;
Who thereupon appears, and he
Then vouches over, as vouchee
The common ciyer * (as he 's taught, 690
A man who is not worth a groat,)
Who makes default, — nay, runs away,
Altho' his business is to stay ;
Leaves in the lurch recoveree,
By which recoveror gets the fee.
A double voucher is the best — 69i5
By far superior to the rest.
The freeholder may, if he please,
Convey to Doe by lease and release ;
Or any one, and he will be 700
The tenant to the prcecipe ;
And Doe will certainly not fail
To vouch the tenant of the tail ;
Who then will vouch again, you see,
The common cryer, as vouchee. 705
By it all interest and right
In him in tail, is barred quite:
Not so, if you the prajcipe
Against him bring immediately.
* Of the ( 'ourt of Common Picas, a man not worth any thin<»,
* and one that hatli no laud to render in value. fShcp. Touch. 38.)
103
By this assurance, it appears, 710
Remainder-men, reversioners.
And all estates, in tail or fee,
May absolutely barred be :
Unless at first the gift did spring.
And was derived, from the king. 715
Recoveror gains a perfect ^ee.
Which never shall subjected be
To any incumbrances, but those
Which the recoveree did impose.
And tho' ajiney a tail will bar, 720
Yet charges made by ancestor ,
Seis'd in reversion of tJie fee,
Are all let in, on cognizee ;
But still a fine will bear the bell,
If left to work by es-top-pel. 725
Now, having tir'd out my muse.
And with a subject most abstruse ;
Some future time I '11 sound the lyre.
And the apt student's fancy fire.
With Chudleiglis and with Shelly s cases *, 730
Made plain 's the nose upon your face is ;
* We are indebted to the former of these cases for all the ela-
borate disquisitions respecting the scintilla juris, and to the latter
for the famous rule which forms the principal feature of Mr.
Fearne's celebrated book on contingent remainders.
The Shellys were a family of distinction in Sussex. Richard and
Thomas Shelly were a long time engaged in litigation ; and Queen
Elizabeth hearing of it, ordered her Lord Chancellor to summon the
judges to put an end to it, to prevent the ruin of so ancient a
family, (Engl. Baronets, cd. 17^7)
104
Explain away the hocus pocus,
Caird the hie labor, and hoc opus*.
Meanwhile, however, before we part,
Give him advice vnXh all my heart ; 735
Instruct him how to make his way
With head so green, and wig so gray ;
For tho' the number is encreast.
There yet is room for one at least -{-.
" Suppose you are just come from college, 740
Brimful of academic knov/ledge ;
Or having already play'd the fool,
" By losing what you learnt at school ;
" Take chambers — be a man of spirit —
" A sure sign of rising merit ; — 745
" Frequent debates — talk long and loud —
" Garrulity quite charms a crowd :
" And though you have no business,
" Your bounden duty clearly is
" To be in court on all occasions, 750
" For which I could give various reasons ;
* Fearne's Cont. Rem. last edit. 186. " Make this egg stand
erect," said Columbus to those who disbelieved his conjecture with
respect to the afterwards new found world ; and some tried twice,
and others thrice, and all declared it was impossible. Columbus
then holding up the egg in a perpendicular direction, and gently
tapping the shell, placed it erect on the tabic, saying " there the im-
possible thing is done." The mystery respecting the rule in Shelly's
case may be explained by moans just as simple.
f When one observed, as long ago as the reign of Henry VIII.
that the number of lawyers would mar the occupation, the facetious
John Heywood answered — " No ; for always the more sparucls the
more game."
105
" Bui one 's enough (if you have sense) :
" There often is a reference,
" Not before the cause is on,
" But when that it is just begun ; 755
"When all expences are incurr'd,
" The parties will have it referr'd ;
*' And you may be the referree,
" If in court you chance to be,
" And earn a twenty guinea fee. J 760
" As to awards, the very best
" You '11 find in venerable IVest *.
}
* ^ fool's arbitrament. An hungry beggar espying dainty
cheer in a cook's shop, hasted thither, and being set down, did eat a
small piece of his own bread, and incontinently received such won-
derful comfort by the sweet smell of the cook's cates and sauces,
whereof he tasted not a bit, that he confessed his eager stomach was
as well satisfied therewith, and had as good a repast, as if he had in-
deed stuffed his paunch with the best cheer there ; which the cook
hearing, straight ways with a stern countenance bid the poor caitiff
pay for his breakfast; whereat the simple guest was mightily
amazed, and the crafty cook so much the more earnest, insomuch
that this poor man and the cook were content therein to abide the
award of him that should next pass by. No sooner was the sub-
mission made, but thither cometh a most notorious natural fool,
to whom, as their judge, they rehearsed the matter ; which being
heard, the idiot caused the poor man to put so much money between
two basons as the covetous cook exacted, and to shake them in the
cook's hearing ; which done, this arbitrator awarded that, as the
cook had fed the poor man with the only smell of his cates, so the
poor man should pay him, therefore, with the only sound of his
coin : which sentence was highly approved of by the hearers. (2
West Symb. Tit. Arbitrament.)
A simple magistrate's arbitrament. Not much unlike to the
above is that which is reported of a covetous churl, who sorrowed
extremely for that he had lost a purse with oae and twenty angels
106
" I know some men, and men of sense,
And yet, for want of impudence *,
They are as fitted for the law 765
As any sap you ever saw ;
Altho' they came from Brazen Nose,
" (A proper place, as you'd suppose,)
" Yet, in the courts of Westminster,
" They have a sort of sheepish fear ; 770
'* And tremble, like an aspen leaf,
" Whilst standing up to hold the brief:
" Whereas, you ought to be as bold
" As Serjeant Hewit was of old ^ ;
in it. But an honest man having found the same, of mere consci-
ence, delivered it to the same churl, who not once thanking him
that was the bringer, fell to account his coin, and finding only
twenty angels in the purse, with great rigour exacted the odd angel ;
and because the honest man denied the finding thereof, he con-
vented him before a magistrate of a corporation, whose wealth and
authority far exceeded his wit (as in some places commonly hap-
peneth, for that affection and simplicity be their ordinary electors).
The plaintiff sweareth that there were one and twenty angels in the
purse which he lost, — the defendant, that there were only twenty in
that which he found. Whereupon the magistrate pronounced, that
the purse found was not the plaintiff's ; and therefore adjudged him
to restore unto the defendant the purse with twenty angels, leaving
the plaintiff to good fortune for the finding again of his purse with
one and twenty angels. 1 think a man may try a thousand fools in
the like cases, before he receive the like sentence. (Ibid.)
* Nothing more is meant than what the Greeks called vapprtaia.
■f The famous Charles Townshend, going out of the House of
Commons one day (when the celebrated Serjeant Hewit, then Lord
Chancellor of Ireland, was thundering away upon some dull law
question), was met by a friend in the U)bl)y, wlio hastily asked him
ii
ii
ii
107
" Or like the Counsel with one hand, 775
" Pleading before the Baron Aland * ;
'' And talk away, nor silence keep,
" Till Judge and Jury are asleep,
'^ Or are so hungry, and so pliant,
" You get a verdict for your chent ; 780
" And if a wrong one, 'twill abide,
" Until it shall be set aside ;
For nothing done at nisi prius
' Ever can at all surprise us ;
Since long admitted 'twas by Murray, 785
The court is always in a hurry.
" For then the battle 's just begun,
" The cause is neither lost nor won ;
" For if a second trial be,
" The former loser, do ye see,
" May chance to get the victory :
" If victory, you can it call,
" When each are safely lodg'd in gaol,
" Until an act of bankruptcy
" Shall both, poor devils, set them free. 795
As Swift has prov'd, as clear 's the sun,
" There is a very near coimection,
whether the house was up ? " No," said Townsheud, very gravely,
" but the Serjeant is."
* The Baron had one of the strangest noses ever seen; its shape
resembled much the trunk of an elephant. " Brother, brother,"
said the Baron to the Counsel, " you arc handling the cause in a
very lame manner." " O ! no, my Lord," was the reply ; " have
patience with me, and I'll make it as plain as the nose.on your Lord-
ship's face."
it
790
108
" A sort of sympathy, between
" The mechilla spinaUs and brain —
" To kee}) a girl yon can't refrain. J 800
" And if (unfortunately) you get
" Quite over head and ears in debt,
" Defer the payment till you shall
" Become Attorney General :
" Meanwhile your creditors will pray 805
" You may succeed, both night and day.
" Neither Theodosius, nor Justinian,
" Ulpian, Paitlus, nor Papinian,
" Nor Finnius, nor ^ oe^, now are,
'' Of any use unto a lawyer. 810
" Reports of cases now, instead
" Of principles, are only read ;
" Originally but fifteen,
" As in three Coke, it may be seen *.
* Right profitable are the ancient books of the common law yet
extant, as Glanville, Bractun, Britton, Fleta, Ingham, and Novcb
Narrationes ; and those also of later times, as the Old Tenures, old
Natura Brevium, Littleton, Doctor and Student, Perkins, Fitz-
herberCs Natura Brevium, and Stamford, of which the Register,
Littleton, Fitzherbert, and Stamford, are most necessary, and of
greatest authority and excellency ; and yet the others also arc not
without their fruit. In reading of the cases in the books at large,
which sometimes are obscure and misprinted, if the reader, after the
diligent reading of the case, shall observe how the case is a!)ridged
in those two great abridgments of Justice Fitzherbert, and Sir
Robert Brooke, it will both illustrate the case and delight the reader j
and yet neither that of Stntham, nor that of the Book of Assises, is
to be rejected ; and for pleading, the great Book of Entries is of sin-
gular use and utility. To the former reports, you may add the
exquisite and elaborate commentaries at large of Master Ploivdcn, a
109
a
But now, some hiiiidrods ; and I guess 815
" Still many more are in the press :
" Tlie labour of a life, you see,
" Unequal to the task would be,
" Of reading *, — then how much the more
" Of pondering over all such lore ! 820
grave man, and sin^larly well learned; and the sumnaary and
fruitful observations of that famous and most reverend Judge and
sage of the law, Sir James Dyer, Knight, late Chief Justice of the
Court of Common Pleas ; and mine own simple labours. Then
you have y?/Vef» books or treatises, and as many volumes of the re-
ports, besides the abridgments of the common laws ; for I speak
not of the statutes and acts of parliament, whereof there be divers
great volumes. And for that it is hard for a man to report any part
or branch of any art or science justly and truly, which he professeth
not, and impossible to make a just and true relation of any thing
that he understands not ; I pray thee beware of chronicle law, re-
ported in our annals, for that will undoubtedly lead thee to error.
(Pref. 3 Rep.) To the abridgments mentioned by Lord Coke, we
may now add those of Hughes, Roll, Shepherd, D'Anvers, Nelson,
and Bacon, and Finer's and Comyns' Digest, making about fifty
folio volumes ; to the reports, may be added several hundreds of
volumes ; to the treatises, some thousands ; and our statute law is
distrii)uted into near thirty volumes quarto. What is the Talmud of
the Jews, in twelve folio volumes, swallowing up the written law of
Moses, compared to this, or the civil law, distributed mto two
thousand volumes, by way of gloss and commentary upon the law
of the twelve tables ? We may consider the confusion and ambiguity
of our law as one of the evils we ought to deprecate, and pray with
the Italian — *' Da gli et ccctera de notai, da furia de villani, and
Da giiazuabugUo di tnedici." (V. Herm. Hug. de orig. Scr. c. 21.)
* It was observed near forty years ago, that the knowledge ne-
cessary for every person to possess, who is to practise the law with
credit to himself and advantage to his clients, is of so very abstruse
a nature, and comprehends such a variety of ditfercnt mutters, that
a
a
(I
<c
110
" To cut the matter short, I shall
" Advise you not to read at all ;
" It certainly affects the eyes, 825
" And does not make a lawyer wise :
An artificial memory.
Supplied by indexes, they say *,
" Is much by far the better way.
If you do read, why let it be ^ 8.'50
Something about geography ;
For lawyers heretofore have been.
Who thought a ship at quarantine
" Was lying at an island, where
•' She went for water or repair f : 835
" Who, when the laws of Oleron
" In court were once dilated on,
" Mistook that island for a man,
" Who better wrote than Hotfoman.
the utmost time which the compass of a life allows for the study,
is not more than sufficient for the acquisition of that branch of know-
ledge only. (Pref. Co. Litt. cd. 17B8.)
* If law be a science, and really deserves so sublime a name, it
must be founded on principle, and claim an exalted rank in the em-
pire of reason ; but if it be merely an unconnected series of decrees
and ordinances, its use may remain, though its dignity be lessened ;
and he vvill become the gi'eatest lawyer who has the strongest habi-
tual or artificial memory. (Sir W. Jones, Bailm. 123.)
t A sea officer happening to speak of his ship's being at quaran-
tine, " Where dolh Quarantine lie," said a lawyer; " I know it is
an island, but cannot exactly recollect in what latitude ?" (Simp
Study of the Law, IG.)
(<
111
The law's uncertainly is such -f-,
That he who reads, may learn too much.
* Thomas Ravenscroft, seised in fee of lands, &c. did by his will
devise the same to his wife for life ; and further, he devised to his
wife 500/. to be raised by her, or by her executors, &c. by sale of
tiii»ber, or by sale of any part of the lands, or by digging, sinking,
getting, and sale of coals on the premises, &c. at her choice, or at
the election of her executors ; and that if his said wife should die
before the said sum of 500/. was raised, then he gave her power,
either by deed or will in her lifetime, to appoint any person to raise
the same after her death in manner as aforesaid ; but if either of his
sisters, yfnne Lunsford or Dorothy Ei'ail, or the trustees named
in his will, should pay unto his said wife, or to her executors, &c.
the said sum of 500/. then the power of selling timber, &c. should
cease : and after the decease of his said wife, he devised the said lands
to Francis Bntmston, serjeant at law, Charles Nott, and Edward
Parry, and "to the survivors and survivor of them (without saying
to their heirs), subject to the raising the 500/. upon trust for his said
sisters, e(|ually between them, during their lives, without committing
any waste ; and that if they happened to die, leaving issue or issues
of their bodies, then in trust that the mother's share should be for such
issue or issues, or else in trust for the survivor or survivors of thera,
and their respective issue or issues ; and that if both his said sisters
should die without issue, or havingissue such issue should die without
issue, then the said trustees should stand and be intrusted for John
Swift, and the heirs male of his body ; and for want of such issue,
then in trust for Ravenscroft Gififord, and the heirs male of his body,
with several remainders over. Held, that the trustees took a fee,
because the devise could not otherwise serve all the trust estates
carved out of it ; that the trusts were executed by the statute of uses ;
and that the sisters took an estate for life only, and not in tail,
with contingent remainders to their children. Lord Raymond, C. J.
observed, that the word issue had not one determinate sense, in
which it is to be taken in all cases, — not even in a common law
conveyance, and much less in a will. Feoffment to A. and his issue
male? is not an estate tail in the feoffee, for want of the word heirs.
Wiiere issue is a word of limitation, it is nomen coUectivum ; but
where it is a designatio personcs, or a word of purchase, it is not.
112
" Get hold of Barnardiston's book *, 840
" Where wrong for right is mostly took :
Afterwards the cause went up to the House of Lords, and was argued
by Sir Philip York, Attorney General, and Mr. Bootle, to make it
an estate tail ; and by Mr. Fazakcrly and Mr. Strange, to make
it but an estate for life. Nine judges were of opinion it was but an
estate for life, and three held it an estate tail.
Before the Lords gave judgment, the learned Bishop of Cliiches-
ter stood up, and said, " he did not pretend to understand the nice-
ties of the law ; but the question seemed to him very much to de-
pend upon a grammatical construction of the words of the will ; and
perceived that the three judges, who differed from the rest, seemed
to argue from the grammar of it ; and he was of opinion that, ac-
cording to grammatical construction, he should rather think ' sur-
vivor or survivors,' should be most properly referred to the sisters,
rather than to the issue ; and thereupon the House of Lords, ne-
mine contradicente, gave judgment according to the three judges,
and reversed the judgment given by the King's Bench. (Shaw v.
Weigh, 2 Stra. 798. 8 Mod. 253. 382.)
In Walsh v. Paterson, 3 Atk. 194, it is said, " there was a case
before the Council Board, in which the two chiefs assisted, and have
not agreed on the construction of the word ' or.' "
In Rex V. Sparling, 1 Stra. 498, the Court said it was a matter of
great dispute amongst the learned, what are oaths and what curses.
Lord Hale has been much praised for applying the word quasi to
certain estates of (if we may be allowed the expression) an amphi-
bious nature. Lord C.J. Eyre thus explains that word as so applied :
** senseless jargon — a terra used to denote something which is sup-
posed to be neither the old nor a new estate, but something between
both; something perfectly anomalous and unintelligible." (1 Bos.
and Pul. 595.)
In Robinson v. Robinson, 1 Burr. 38, a man took an estate of
inheritance for ever, although it was given to him for life only, and
no longer.
In Rose, ex dem. Vere and others, v. Hill, 3 Burr. 1881, it was
held, that the word executors is equivalent to the word heirs in a
will.
• Lord Mansfield absolutely forbid the citing of Barnardiston'x
113
" Read Comberbacfis, not quite so good *,
" Which no one ever understood ;
" Or place implicit faith upon
" Reports of casesy made by Fernon f ;
" And build an argument as sound
" As any lawyer most profound,
" As ever did the Baron Snigy
" Or any other with a wig —
" Confess'd by all, and with applause,
" Yet still he cannot win the cause :
" Or if a Uiter case appears —
" A case laid down as law for years,
Reports, as it would only be misleading students to put them
upon reading such a book. He said it was marvellous, however, to
those who knew the serjeant, and his manner of taking notes, that
he should so often stumble upon what was right ; but that there was
not one case in his book which was so throughout. (2 Burr. 1 142,
in the margin.
* Dom. Proc. 26th May, 1783. Bp. of London v. Fytche. Bul-
ler. Justice, in delivering his opinion, in answer to the questions
proposed to the judges, taking notice of a case which had been
cited from this book, and of one cited from Not/ by the counsel at
the bar, observed, that they were books of no authority ; and if his
memory did not greatly fail him, had been forbidden by some of their
predecessors to be cited at the bar. In the debate of the same case,
30th May, 1783, LordThurlow said, Cartheto and this book were
equally bad authority.
f Lord Hardwicke, speaking of the case. Cave v. Cave, 2 Vem.
608, says, " this case, as it is reported in the books, is an authority
in point ; but I have ordered the register to be searched, and as it is
there stated, it is impossible that it could be made a question in the
cause. I am very sorry to find, that the reports of so able a man
should be so imperfect, and come out in tlus manner ! 1 Atk. 566.
I
114
" For all his pains he may be told,
" What once was law, will not now hold :
" Last Easter term, another case
"■ Was substituted in its place.
" Thus I have pointed out the way,
" The simple means, by which you may
" Become as eloquent as Brown *,
" Or any one with wig and gown.
" As to Conveyancing, you've got it,
" And sav'd some hundreds in your pocket.
" If you cannot, without reading,
" Comprehend the special pleading,
" Make enquiry, and you'll find
" A Pleader, suited to your mind.
" And as to cases not quite plain.
• A famous lawyer, in the time of Queen Elizabeth (vide Plowd.
356, 376), upon whose death the following verses were justly
made : —
Elizabeth nonum regni dum transigit annum,
Gentis et Anglorum regia sceptra tenet,
Anthonium rapiunt Mali mala sidera Brownum,
Legum qui vivus gloria magna fuit,
Abdita qui norat reserare oracula juris
Subtili ductu, et Nestoris eloquio.
Ingenio pollens, animoque disertus et ore,
Vix ulli poterant uberiora dari.
Is foclix nimium, si tain longoeva fuissent
Quam fuerant animi dona stupenda sui.
Abreptum fato hune Essfwia planxit alumnum,
Lcgis et creptum sedulu turbagemit :
Planxerunt illi, plangat simirl Aiiglia tota,
Nempc animos tristes perdita gemma facit.
115
" Adopt this rule— you 11 credit gaiu :—
" Write your opinion in a hand
" Wliich nobody can understand ;
" It was Sir Fletcher Norton's * way,
" The first of lawyers in his day.
" Be wise, and follow my advice,
«' And I'll anticipate your rise
" To honour, independence, ease ; —
" What mighty things are done by fees !"
• Many Solicitors now living can testify, that of all autographs Sir
Fletcher's was the worst ever seen. When applications were made
to hira in the way of explanation, the answer was, " go to my
clerk, and if he is unable to make it out, the devil himself cannot.''
THE END.
W. Poplc, Printer, 67, Chancery Lane.
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