s 
 
 ^5A\fUNIVEf?% ^lOSANCElfj^. ^OFCAUfO/?^ ^-OFCAIIFO^ 
 
 <£ 
 
 I $ 
 
 ^<9AavnaiH^ *^OAav«aiii'^ 
 
 .^ 
 
 ^>MUBRARYac. 
 
 ^,^M•UBRARYa^ 
 
 ^AOJIIVDdO'^ ^<tfOdnV3JO^ 
 
 .^\^EUNIVER5-/A 
 
 ^i'ilJONVSOl^ 
 
 ^lOSANCfL 
 
 
 v^ 
 
 ^OFCAITO^ 
 
 
 ^OFCAllFO% 
 
 >&AMvaain^ 
 
 aweunivek. 
 
 <ri]joNvsoi^ 
 
 Q r ^ £ 
 
 ^iUAINai^VV* 
 
 ^ 
 
 :S' 
 
 ^5M£UNIVER% 
 
 C3 
 
 ^lOSANCEl^^ ^^lUBRARYQ^ 
 
 <f3l33NVS01^ 
 
 CO 
 
 no 
 > 
 
 so 
 
 ^/SJBAWIHWV'^ 
 
 -^MIBRARY6k 
 
 ^«»0JI]V3JO'^ 
 
 '^^OJI1V3JO'^ 
 
 
 ,^WEUIJIVER% 
 
 AvlOSANCElfXx 
 
 o 
 
 ^.OFCAllFOff^ ^.OFCAIIFO% 
 
 <ril33MVS01^ %a3AINniftV 
 
 
 '%A«v}ian-^>^ 
 
 3<3 
 
 > 
 
 ^illBRARY<9/^ 
 
 .^tUBRARYO^^ 
 3 i I f^ ^ 
 
 ^^OJITVDJO^ 
 
 ^.aOJITVOJO^ 
 
 .^WEUNIVERSyA 
 
 <: 
 
 CO 
 
 . L' " ' o 
 
 <riU3NVS01^ 
 
 ^•lOSANCElfj^ 
 
 O 
 
 "^AiiJAiNa mv' 
 
 AOFCAlIFORtj. 
 
 so £> 
 
 :^ 
 
 ^OAaV88IHV^ 
 
 ^OF-CALIFOi?^ ^^MElNIVERi/^ ^lOSANCElfj-^ 
 
 "^^^Aavaaii^^ 
 
 
 ^JUAiNniwv*
 
 
 ^^iiJONvsoi^ ' "^/jajAwnaWLv' 
 
 ^OriAllhU«^ ^OfCAllfO% 
 
 
 
 M-LIBRARYOc 
 
 
 ^llIBRARY<?/c. 
 5 1 li— ' ^ 
 
 "^(^AavygiH^ 
 
 aofcaiifo% 
 ^(?Aav88nv^ 
 
 .^WEUNIVERS/A 
 
 \^my\^ <rii33Mv.soi=^ 
 
 ,^WEUNiVER5•//, 
 
 3 
 
 g 3 
 
 vjcVOSANCflOj. 
 
 ^Til^DNVSOl^^" "^/SiBAINn-JWV^ 
 
 ^ 
 
 V<y 
 
 
 o 
 
 vy;lOSANC[l£r> 
 
 f^lUBRARYQ^ 
 § 1 I r-^ ^^ 
 
 ^nM-IIBRARYQ^ 
 u? 1 \r^ ^ 
 
 ^^OdllVDJO'^ 
 
 '^^OJIIVJJO^ 
 
 >■ 
 < 
 
 awei 
 
 \WFUNIVER5y/, 
 
 ^OFCAIIFO% 
 
 ^OFCAllFOff^ 
 
 vvlOSANCElfjVj. 
 
 ^x?i3!)Nvsoi^ "^/wuwnMv >&Aavaaii^^ ^<?Aav}iani^'^ 
 
 >- 
 
 < 
 
 .\WEI 
 
 jM-LIBRARYQ^ 
 
 ^^nM-UBRARYQ^ 
 
 ^<!/0JllV3JO'^ 
 
 
 AWEUNIVERS//. 
 
 
 "^^TilJOWSOl^ 
 
 ■^/ia3AINn3V\V^ 
 
 (.OFCALIFOftij^ 
 
 '^Aavaaiii^ 
 
 ^OFCAIIFOi?,^, 
 
 ^<?A8V8ani^ 
 
 aWEUNIVERS/a 
 
 ^TilJONVSOl^ 
 
 ^•lOSANCEltf^ 
 
 p 
 
 ■v/ja3AlNrt3V\V 
 
 4?=
 
 \
 
 D. RUG( 
 souc 
 
 ^^1. A COMPENDIUM •'^''" 
 
 OF 
 I 
 
 REAL AND PERSONAL PROPERTY 
 
 PRIMARILY CONNECTED WITH CONVEYANCING: 
 
 DESIGNED AS 
 
 A SECOND-BOOK FOE STUDENTS, 
 
 A DIGEST OF THE MOST USEFUL LEAENIXG 
 FOE PEACTITIONEES. 
 
 BY JOSIAH W. SMITH, B.C.L., Q.C., 
 
 JUDGE OF COUNTY COURTS. 
 
 (kditor of fearne's contingent remainders and executory devises, and mjtfoed's 
 
 chancery pleadings j author of a manual of equity, a manual of 
 
 common law, and a manual of bankruptcy j and one of the 
 
 consolidators of the chancery orders.) 
 
 IN TWO VOLUMES. 
 VOL. IL 
 
 LONDON : 
 
 STEVENS AND SONS, 119, CHANCEEY LANE. 
 
 ILato IpooKscIlers anO f ufilisljers. 
 
 1870.
 
 
 London : 
 
 btevens and eichakdson, printers, 5, great queen street, 
 
 lincoln's inn fields, w.o. 

 
 595 
 
 TITLE X. 
 
 OF ALIENATION : AND FIRST OF ALIENATION GENERALLY. 
 
 CHAPTER T. 
 
 GENERAL OBSERVATIONS ON ALIENATION. 
 
 In former times, many conveyances were made by parol t^io^'^J"'! 
 or word of mouth only, without Avritinc; ; but as this occa- ~ 
 
 ^ ° ' How con- 
 
 sioned a variety of frauds, it was enacted by the stat. 29 ^^y ^e*^^ 
 Car. 2, c. o, that no lease, estate, or interest in lands, tene- '^^'^^' 
 ments or hereditaments, made by livery of seisin or by 
 parol only, (excepting leases not exceeding three years from 
 the making, and whereon the reserved rent is at least two 
 thirds of the real value,) shall be of greater force than an 
 estate at will ; nor shall any assignment, grant, or surrender 
 of any interest in any freehold hereditaments be valid ; 
 unless in both cases the same be put in writing, and signed 
 hy the party granting or his agent lawfully authorised in 
 writing (aj. And by ss. 3 and 4 of the stat. 7 & 8 Vict. c. 76, 
 and s. 3 of the stat. 8 & 9 Vict. c. 106 (by which the stat. 
 7 & 8 Vict. c. 76, was repealed as from the 1st of October, 
 1845), feoffments, partitions, exchanges, leases, assign- 
 ments, and surrenders (subject to certain exceptions) are 
 required to be by deed (5). 
 
 At the common law, on the grant of a seigniory, rent, Attornment 
 remainder, or reversion, an attornment or consent to the 
 
 (a) 2 Bl. Com. 297. See infra, p. (b) See the clifFerent sections on 
 
 621. these conveyances, T. 12, c. 2, infra. 
 
 / ^"VOL. 11. B
 
 506 OF ALIENATION. 
 
 Part nr.^ grant was necessary on the part of the tenant of the par- 
 ticular estate, in tail, for life, or for years. But attornment 
 
 is rendered unnecessary hy the statute 4 & 5 Anne, c. 10, 
 
 ss. 9, 10 (<■). 
 A pei-3ou A person cannot deroo-ate from his own grant ; and hence 
 
 caunot 
 
 from bis ^^^ cannot, by parting with his estate, prejudice those in 
 own grant, -^vhosc favour he has created estates, interests, or charges 
 out of that estate (d). The rule, Cessante statu primitivo 
 cessat et derivativus, applies only when the original estate 
 determines by limitation or is defeated by a condition or 
 by forfeiture. It does not apply when the owner of the 
 estate does any act which amounts to an alienation or 
 transfer, even though such an alienation or transfer pro- 
 duces an extinguishment of the original estate (c). Tliere- 
 fore, if one wlio has a lease for life or years of the manor to 
 which an advowson is appendant, grants the next avoid- 
 ance that shall happen during the lease, or grants a rent 
 out of the manor, and then surrenders the manor so that 
 his estate is gone, the grant of the next avoidance or of the 
 rent continues good, and the grantee shall enjoy it accord- 
 ing to the grant as long as the estate that is surrendered 
 would have had continuance if not surrendered (/). So, if 
 a lessee for years of an advowson grants the next avoidance 
 if it shall happen to become void during the term, and 
 afterwards surrenders the estate to the person who has the 
 inheritance, the grantee shall have the next avoidance, if it 
 happen before the term would have expired in regular 
 course (,7). So, if a tenant for life or lessee for years grants 
 
 (c) 1 Steph. Com. 448, 450; .3 Co. Liit. 233 b; 238 b; Watl:. 
 
 Jarm. & Byth. by Sweet, 36 ; 2 Conv. 3rd ed. by Prest. 24 ; Newhi/ 
 
 Pres. Shep, T. 297 ; Biirton, § 41 ; v. Harrison, 1 Johns. & Hem. 393. 
 
 Watk. Conv. 3rd ed. by Prest. 171 ; («■) 2 Pres. Shep. T. 285 ; Watk. 
 
 Co. Litt. 309 a. In Co. Litt. a largo Conv. 3rd ed, by Prest, 24, 25. 
 
 space is given to the subject of (/) 2 Pres. Shep. T. 285. 
 
 attornment, see 309 a— 325 a. (f/) 2 Pres. Shep. T. 2SG. 
 
 (cl) See 2 Pros. Sliep. T. 285— G;
 
 OF ALIENATION. 597 
 
 a rentcliarcj'e to a straiic'er, and afterwards surrenders Ids "Pai^t ni. 
 
 a O > rp. 10, CH. 1. 
 
 estate, still the rent continues as long as the estate would 
 
 have lasted if not surrendered (It). So, if a lessee makes an 
 underlease reserving rent, and afterwards surrenders tlie 
 original lease, the underlease shall continue in force ; but 
 by the old law, prior to the stat. 7 & 8 Vict. c. 76, s. 12, 
 and 8 & 9 Vict. c. 106, s. 9, the reversion was merged, and 
 the remedies incident to it were extinguished (/), unless 
 the surrender were for the purpose of renewal (IS). 
 
 A feme covert may be restrained from alienation with- Hesiniiut on 
 
 "^ alienatiou. 
 
 out any clause of cesser, but a person not under coverture 
 cannot (/). 
 
 It may be stated in this place, that subject to excep- Aiien.ation 
 tions where tenants in tail are restrained by statute from estates. 
 defeating their estates tail, or where the reversion is in the 
 Crown (s. 42), it is enacted by the stat. 19 & 20 Vict. c. 120, 
 ss. 11, 14, &c., that the Court of Chancery may authorise 
 the sale of settled estates, that is, of estates limited by any 
 instrument to or in trust for any persons in succession, or 
 of timber growing on them, or may direct any part of 
 settled estates to be laid out for streets, roads, paths, 
 squares, gardens, or other open spaces, sewers, drains, or 
 watercourses, either to be dedicated to the public or not. 
 And the stat. 19 & 20 Vict. c. 120, is amended and extended 
 by the stat. 21 & 22 Vict. c. 77. By s. 1 of this amending 
 Act, " all estates or interests in remainder or reversion not 
 disposed of by the settlement and reverting to the settlor, 
 or descending to the heir of a testator, shall be deemed to 
 be estates coming to such settlor or heir under or by virtue 
 of the settlement." And by the stat. 27 & 28 Vict. c. 45, 
 
 {h) 2 Pres. Shep. T. 286 ; Co. (Jc) Piatt on Leas. 787—8. 
 
 Litt. 185 a, 338 b. (1) 11 Jarm. & Byth. by Sweet, 
 
 (/) 2 Pres. Shep. T. 285 ; Watk. 473 ; Benaud v. Touranrjeau, L. E. 
 
 Conv. 3rd ed. by Prest. 24 ; see 2 Ap. Ser. (P.O.) 4 ; see supra, pp. 
 
 Part III. Tit. 12, c. 2, s. 5, infra, on 08—101. 
 Leases. 
 
 b2
 
 598 OF ALIE^'ATIOX. 
 
 Part III, s. 3, " tlie saicl Court in determining what are settled 
 ''"^"''" -' estates within the said Act (19 & 20 Vict. c. 120) shall he 
 governed by the state of facts and by the trusts or limi- 
 tations of the settlement at the time of the said settlemen 
 talvins:'- effect."
 
 5 'JO 
 
 CHAPTEK II. 
 
 OF A vendor's title («). 
 
 Sectiox I. 
 Of the Requisite Lcnytli of Title. 
 Befoue tlic stat. 3 & 4 Will. 4 c. 27, a purchaser had a pt.iii.t.io, 
 
 . . ^<^"- 2,3.1. 
 
 rJOfht to require a title commeucino- at least sixty years 
 
 , . . Sixty years' 
 
 previously to the time of his i)urcliase ; because the old ^'t'e. ^ 
 
 i- ^' -L ' required. 
 
 Statute of Limitatious could not in a shorter period confer 
 a title (b). And the new statute does not in effect intro- 
 duce any new rule on the subject : for, although the new 
 Statute of Limitations confers a title in forty years in ordi- 
 nary cases instead of sixty years, yet in many instances a 
 forty years' title would be quite insufiicient ; for adverse 
 possession against a tenant for life during his whole life 
 would not affect a remainderman or reversioner (c). Indeed, 
 a title for a shorter period than sixty years is not market- 
 able (fZ). And in the case of an advowson, a hundred 
 years' title at the least is necessary (e). And in other cases, sixty years- 
 
 . . . . , . ,, . title not 
 
 even sixty years is sometimes insufficient. For instance, always 
 
 ■^ "^ sufficient. 
 
 if it may reasonably be presumed from the contents of the 
 
 («) On this subject, the reader is {b) Sugd. Concise View, '2G5. 
 
 referred generally to Lord St. Leo- (c) See Sugd. Concise View, 265 ; 
 
 nards' " Law of Vendors and Pur- ] Jarm. & Byth. by Sweet, 59^-Gl ; 
 
 chasers " (an invaluable mass of law 9 Id. 28. 
 
 and practice). The present chapter (fJ) 1 Jarui & Bytli. by S\vec(, GO, 
 
 chiefly consists of short extracts ot n. {l). 
 
 a few leading points from that (c) Sugd. Concise View, 267. 
 
 work.
 
 600 OF A vendor's title. 
 
 ■^ch "■ ^'i"' ^^s^^'^"^*^^ ^^^^^ estates tail are subsisting, the purchaser may 
 
 demand the production of the prior title (/). 
 
 Bight to III every case where the statement in the abstract, or its 
 
 productiou "^ 
 
 tiiil.^°^ silence, leads to a fair inference that the prior title may 
 disclose an existing defect, the purchaser may require it to 
 be produced ; although, where it is not in the seller's power, 
 he cannot object to the title upon mere suspicion (r/). If 
 nothing appears on the face of the deeds comprised within 
 the period tlirough which a purchaser is entitled to inves- 
 tigate the title, which throws a reasonable doubt or sus- 
 picion on the anterior title, the want of the prior instru- 
 ments, though referred to or recited in the abstracted deeds, 
 is not material (A). But where an assurance depends for 
 its validity upon something which had been previously 
 done, the whole transaction should be stated upon the 
 abstract, although the abstract may thereby be carried 
 beyond sixty years. Thus, an appointment should not be 
 abstracted without previously showing the creation of the 
 power, and the ceremonies requisite to the valid exercise of 
 it ; nor a post-nuptial settlement executed in pursuance of 
 articles antecedent to the marriage, without first abstract- 
 ing the articles at length, that it may be seen Avhether 
 or not the settlement is in conformity with them (i). 
 
 Section II. 
 Of the Kind of Title which is requisite. 
 
 "^ch"; s.' 2*?' -^^^ contracts for the sale of real estate, an agreement to 
 jmpiig^ make a title is always implied, unless the liability is ex- 
 
 (/ ) Sugd. Concise View, 265 ; 1 62, 
 
 Jarm. & Bytli. by Sweet, 60, n. {i). (i) 1 Jarm. & Bytli. by Sweet, 
 
 iff) Sugd. Concise View, 2G6. 67. 
 (h) 1 Jarm. & Bytli. by Sweet,
 
 OF THE KL\D OF TITLE WHICH LS UEi^UISITE. 601 
 
 l^resslv excluded. And an airreenient n-enorally to sell, not rT.iii.T.io, 
 
 ^ - ® '^ -^ ' Ch. 2, s. 2. 
 
 expressinrr tlie interest in tlie subject, includes all the — 
 
 ° agreement 
 
 vendor's interest (k). to make a 
 
 ^ ' title to all 
 
 Where a contract is entered into for the purchase of " a •nferest"'^^ 
 freehold," the purchaser is entitled to have a clear freehold Freehold. 
 title, and not a title encumbered with any covenant or con- 
 dition (/). 
 
 A purchaser cannot be compelled to take a doubtful Doubtful 
 title (?n) ; but still he will not be permitted to object to a 
 title on account of a bare r)0ssibility or susiiicion 00- A Title with 
 
 ^ ^ i \ ./ ludemnity. 
 
 purchaser is not bound to accept, nor a vendor to give, a 
 
 title with an indemnity (o). Xor will a purchaser be fit'i"^'^^^^ 
 
 obliged to take an ecj[uitable title, unless the Court sees 
 
 that the legal estate can be got in (p). But he will be Destructiou 
 
 o o \^ / of con- 
 compelled to take a title depending upon the destruction remainders. 
 of contingent remainders, or upon the Statute of Limita- statuteof 
 
 o ' ^ Limitations 
 
 tions {q). 
 
 It is no objection, that, at the time of the agreement, Titia 
 
 _ _ incomplete. 
 
 matters remained to be done to complete the title, which 
 in their nature were capaljle of being effected before the 
 completion of the purchase (v). 
 
 Some objections properly constitute subjects of compen- compensa- 
 sation, while others do not. Thus, small rents may be 
 subjects of compensation, although larger ones cannot (.s). 
 But there are some rights (such as a right of sporting) which, 
 although in themselves of small value, are incapable of 
 compensation, and therefore, if undisclosed, vitiate the 
 contract (/). 
 
 {k) Sugd. Concise View, 13. (p) Sugd. Concise View, 280; 
 
 {I) Phillips V. Calddcugh, L. R. Frecland v. Pearson, L. E. 7 Eq. 
 
 4 Q. B. 159. 216, 219. 
 
 {m) Rogers v. Wederhousc, i (q) Sugd. Concise Vie-sv, 283. 
 
 Drewry, 329. (,.) gugd. Concise View, 181, 
 
 (n) Sugd. Concise View, 280, 283 is6. 
 
 — •i- («) Sugd. Concise View, 276. 
 
 (o) Sugd. Concise View, 219, 277. (t) Sugd. Concise View, 218.
 
 602 
 
 OF THE KIND OF TITLE WHICH IS REQUISITE. 
 
 Pt.IIL T.IO, 
 
 Cn. 2, s. 2. 
 
 Lessor's 
 title. 
 
 Title to 
 
 lands 
 
 allotted. 
 
 Title to 
 lands taken 
 in exchange. 
 
 Title to 
 
 enfranchised 
 
 laud. 
 
 Title to 
 property 
 derived 
 under a 
 
 Unless there is a stipulation to the contrary, there is, in 
 every contract for the sale of a lease, an implied under- 
 taking, at law and in equity, to make out the lessor's title 
 to demise, as well as that of the vendor to the lease itself, 
 even though there is a very short residue of the term, and 
 the value of the property is very small, and no premium is 
 taken for the lease («). But a purchaser of a lease held 
 under a bishop cannot call for the lessor's title («). 
 
 Lands allotted under Inclosure Acts become lialile to the 
 uses of the estates in respect of which they were allotted ; 
 and, therefore, upon the sale of such lands, it is necessary 
 to investigate the title to the original estates (y). 
 
 Under Inclosure Acts, the allotments taken in exchange 
 are usually impressed with the title of the property given 
 in lieu of them, and discharged from their original uses (z) 
 But if the property has been derived under a common law 
 exchange or an exchange by mutual conveyances with 
 eviction clauses, the title to the estate given in exchange, 
 as well as of the estate taken in exchange, must be shown 
 from the usual period down to the date of the exchange ; 
 unless, in the case of a common law exchange, it can be 
 proved that the lands given in exchange have been aliened 
 by the other party (a). 
 
 If the estate was copyhold, and has been enfranchised, 
 the lord's title to the freehold will be required, as well as 
 the copyholder's title before its extinguishment (h). 
 
 Eeversions and remainders in the Crown were not 
 destructible by recovery, nor can they now be barred by 
 
 (m) Sugd. Concise View. 268 ; 1 
 Jarm. & Byth. by Sweet, 70, 551 ; 
 Solder v. DraJce, 5 B. & Ad. 992. 
 
 (x) Sugd. Concise View, 268 ; 1 
 Jai-m. & Bytli. by Sweet, 70. 
 
 (y) Sugd. Concise View, 271. 
 
 (z) 4 Jarm. & Byth. by Sweet, 6, 
 7 ; see also Sugd. Concise View, 
 
 271. 
 
 («) 1 Jarm & Byth. by Sweet, 75 ; 
 Sugd. Concise View, 271 ; 4 Jarm. 
 & Byth. by Sweet, 3, 5; Watk. 
 Conv. 3rd ed. by Brest. 181. 
 
 (l) Sugd. Concise View, 270 ; 1 
 Jarm. & Bytli. by Sweet, S3.
 
 OF THE DEFECTS IN THE TITLE. G03 
 
 an enrolled assurance; and it is therefore necessary, in Pr.iir. t.io, 
 
 C/IT. ^} S. u„ 
 
 deducino; a title under a OTant from the Crown, to set forth 
 
 <^ ° giant from 
 
 the original grant, in order that it may be seen whether t^^^ ^rown. 
 any interest remains in the Crown or not, or whether any 
 rent, condition, or service has been reserved (c). 
 
 The foundation of a title to tithes as an existiDg lay pro- Tiiie to 
 perty, must be a grant from the Crown after the dissolution 
 of the monasteries. But it is not necessary to deduce the 
 title from that period. The title following the grant may 
 commence at the same period as the title to the estate out 
 of which they issue would have done {(J). 
 
 tithes. 
 
 Section III. 
 Of Defects in the Title (c). 
 If the purchaser accepts an abstract as showiuf^ a satis- pt.iii.t.io, 
 
 . "• ° Oil. 2, s. 3. 
 
 factory title, yet he is not precluded from showinc; by other 
 
 evidence that the title is a bad one ( /). may show 
 
 ^•^ ^ title to be 
 
 Unless a vendor or his agent suppresses an incumbrance no'^e/ect"'' 
 or a defect in the title, a purchaser cannot obtain relief atlstmc™ 
 against a vendor for any incumbrance or defect in the title ^Jj"i';uef'' 
 which is altogether overlooked, and to which his covenants direct o? 
 do not extend [g). And although tlie vendor has fraudu- "^™'" ^^^'^'^' 
 lently concealed an incumbrance, yet the purchaser has 
 no lien on the purchase money after it is appropriated by 
 the vendor [h). 
 
 A decision of the House of Lords when once pronounced Decision by 
 
 the House 
 
 in a particular case is conclusive in that case, and cannot o^' I'O'^''^- 
 
 (c) 1 Jann. & Byth. by Sweet. eealment or falsifying a pedigree by 
 
 68. a vendor or mortgagor. 
 
 (cZ) Sugd. Concise View, 267. (/) Siigd. Concise View, 315. 
 
 (e) See 22 & 23 Vict. c. 85, s. 24, {y) Sugd. Concise View, 6, 406 
 
 and 23 & 24 Vict. c. 38, s. 8, as to —411. 
 the punisliment for fraudulent con- (A) Sugd. Concise View, 411.
 
 604 
 
 OF THE DEFECTS IN THE TITLE. 
 
 Pt.III. T.IO, 
 Ch. 2, s. 3. 
 
 Waiving 
 objecuou3. 
 
 Pi'oteclioii 
 by means of 
 an assign- 
 ment of a 
 statute, 
 recognisance, 
 or judgment. 
 
 be reversed except by Act of Parliainent. But it would 
 seem that if the House shoidd afterwards ]je of opinion 
 that an erroneous principle had been adopted in the first 
 case, the House would not be bound in any other to adhere 
 to such principle (i). And a decision by the House of 
 Lords, in favour of the validity of a title, if in a suit 
 between a vendor and purchaser only, would be no more 
 than a precedent for a decision in favour of the title, if it 
 should be attacked by a third party (Jc). 
 
 A purchaser, by entering into possession, is generally 
 held hj that act to have waived those objections to the 
 title of which he had distinct information. But if posses- 
 sion is autliorised by the contract to be taken before a 
 title is made, the fact of taking possession cannot by itself 
 amount to a waiver of objections. Nor will acts of owner- 
 ship after an authorised possession, or the preparation of a 
 conveyance (I). And, with the vendor's concurrence, a 
 purchaser, without waiving objections thereby, may safely 
 take possession of the estate at the time the contract is en- 
 tered into ; as he cannot be held to have waived objections 
 of which he was not aware (v//). 
 
 A purchaser witliout notice of any incumbrances may 
 protect himself from them, by means of an assignment of a 
 statute, recognisance, or judgment (n). 
 
 (?) Wilson V. Wilson, 5 II. L. Cas. 
 40, 63, 71. 
 {I) Sugd. Concise View, 2S1. 
 
 (l) Sugd. Concise View, 244 — 6. 
 (hi) Sugd. Concise View, 7. 
 («) 2 Cruise T. 14, § 107.
 
 605 
 
 CHAPTER III. 
 
 OF CONDITIONS OF SALE. 
 
 It is now a very cjeneral iiractice for vendors to take the fARim. 
 
 •^ ^ J- T. 10, ( H. 3. 
 
 precaution of liavino- their title investicjated before they 
 
 ^ ° to J Investiga- 
 
 atteinpt to sell, in order that they may know upon what tiouoftuio 
 
 ■1- ' ^ J X by vendor 
 
 conditions to offer the property for sale («). m/wiiT""'^ 
 
 A prudent vendor invariably resorts to special condi- seii"''°'^ 
 tions, wherever the circumstances of his title render it ^^^^^'j^, 
 probable that ho may be unable to enforce a contract arercqui'site 
 entered into without such protection, or may be put to 
 great expense by unreasonable or unnecessary requisitions 
 on the part of the purchaser (Jj). Hence, special conditions 
 are frequently resorted to in order to guard against the 
 liability to produce titles upon exchanges, inclosures, re- 
 newable leaseholds, or the like, and to provide for appor- 
 tionment of rents, so as to be binding on purchasers, or to 
 make the purchaser take subject to unusual liabilities ; 
 such as a liability to an original rent and the covenants in 
 the original lease, where only part of the property is 
 sold (c). 
 
 But unusual conditions should be avoided, even where where tbey 
 
 should be 
 
 property is sold by one who is absolutely entitled to it, avoided. 
 Unless such conditions are necessary ; because they tend to 
 alarm and disgust purchasers and their solicitors (d). And 
 where property is sold by trustees, mortgagees, or assignees, 
 this caution is particularly needful ; for if they unneces^ 
 
 (a) 9 Jarm. & Byth. by Sweet, (c) Sugd. Concise View, 28. 
 
 48 ; 1 Jarm. & Byth. by Sweet, 505, (rf) Sugdi Concise View, 28; 
 
 (h) 9 Jarm. & Byth. by Sweet, 48i
 
 606 OF CONDITIOiNfS OF SALE. 
 
 r.vRT TIL sarily impose any unusual conditions wliicli may cause the 
 
 property to fetch a less price than it otherwise would, they 
 
 may render themselves liable for a breach of trust (c). Yet 
 at the same time there may be cases where they may 
 render themselves ef{ually liable, if they omit the protec- 
 tion of special conditions, where they are clearly neces- 
 sary (/). 
 
 It is the duty of persons who put up property for sale 
 by auction, to describe it with perfect accuracy, and not 
 merely in such a way that a person, by drawing proper 
 inferences from everything that is stated, may be able to 
 ascertain what is sold {g). 
 How iiiey Special conditions should be very clearly and precisely 
 
 expressed, exprcsscd ; for, if a vendor sells property under stipulations 
 Avhicli are against common right, whether contained in the 
 contract itself or in conditions of sale, but uses ambiguous 
 words, the purchaser may generally construe them in the 
 manner most advantageous to himself (Ji). Hence a life 
 annuity to which an estate is subject, granted for several 
 lives and the life of the survivor, should be so described, 
 and not simply as " a life annuity," which might be for one 
 life only (i). 
 Condition A coudition that the vendor shall be at liberty to rescind 
 
 as to '' 
 
 thfcontract ^^^® contract, " if the purchaser shall show any objection, 
 whether of title, convej-^ance, or otlierwise, and shall insist 
 thei'eon," or " if the purchaser shall insist on any objec- 
 tions or requisitions whicli the vendor may be unable or 
 unwilling to remove or comply with," does not authorise 
 the vendor to rescind the contract, without attempting to 
 
 (e) See Siigd. Concise View, 45 j 9 Symons v. James, 1 Y. & C. N. 11. 
 
 Jarm. & Byth. by S\YCct, 4S. 487—490 ; Seaton v. Mapjh 2 Coll. 
 
 (/) See 9 Jarm. & Byth. by Sweet, 562 ; Modes v. Ihhetson, 4 D. M. & 
 
 48. G. 787, 790—3 ; Greaves v. }Yilson, 
 
 {(j) Swai'shmd v. Dcarsley, 29 25 Beay. 290. 
 
 Eeav. 430, (/) Drysdale \. Mace, 5 D. M. & 
 
 (/(.) Sugd. Concise View, 242 ; G. 103.
 
 OF CONDITIONS OF SALE. GO? 
 
 answer tlie recraisitions, altliouoli some of them are imten- part in 
 
 \ . !'■ 10, On. 3. 
 
 able ; l3ut the vendor is bound to answer them, and give 
 
 the purchaser an opportunity of either waiving or insisting 
 upon them. And the vendor has duties which he cannot 
 get rid of l)y such conditions. So that there are some 
 things which the jnirchaser has not only a right to make 
 the subject of requisition, but even to insist on them, 
 notwithstanding any such condition : as for instance, that 
 a mortgagee shall be paid off and concur in the convey- 
 ance (/.'). 
 A condition that all objections to the title must be conditions 
 
 ,-,. ,.,. . . .-., - -, .- as to time 
 
 delivered within a given time, or shall be deemed waived, for taking 
 
 _ objectious, 
 
 is binding (/). But a condition stipulating that the time 
 appointed, after the delivery of an abstract, for the taking 
 of objections, shall be of the essence of the contract, 
 means after the delivery of a perfect abstract (m). And 
 the purchaser is not precluded from taking objections 
 which arise out of evidence called for before the time 
 limited (/(). 
 
 A inirchaser is frequently precluded by a condition from condition as 
 
 *■ J- .^ X ./ to range oi 
 
 calling for a title antecedent to a certain period, and some- *^"®- 
 times a very recent period ; as the vendor's conveyance or 
 a late inclosure Act, &c. (o). But this does not preclude the 
 purchaser from showing that such anterior title is defec- 
 tive Q?). Where, therefore, such anterior title is defective, 
 the vendor should further stipulate that he shall not be 
 considered as answerable for any defects of title which may 
 be discovered (q). 
 
 A special condition of sale, limiting the extent of title, 
 is no excuse for a purchaser not insisting on the production 
 
 (k) Greaves v. Wilson, 25 Bear. (o) 1 Jarm. & Byth. by Sweet, 
 
 290 ; Tuiyin v. Chamhcrs, 29 Bear. 505. 
 
 101. {p) 9 Jarm. & Byth. by Sweet, 3. 
 
 (?) Sugd. Concise View, 15. See also Sugcl. Concise View, 14. 
 
 (m) Sugcl. Concise View, 194. iq) 9 Jarm & Byth. by Sweet, 3. 
 
 (n) Siigd. Concise View, 15, 16.
 
 608 OF CONDITIONS OF SALE. 
 
 PARTiir. of a deed beyond those limits, of wliicli he had actual or 
 
 T. 10, Cu, . '' 
 
 constructive notice (r). 
 
 "Where a vendor knows of a deed affecting the title, lie 
 does not protect himself from disclosing it by a condition 
 of sale providing that no requisition should be made in 
 respect of a specified deed, "or any other prior to" a cer- 
 tain date : for it would be most mischievous to allow a 
 vendor to suppress facts known to him affecting the title, 
 and yet compel a purchaser to accept it (s). 
 
 Conditions It is a commou practice to restrain a purchaser from 
 
 as to -■■ -^ 
 
 evidence. calling for evidence of extrinsic facts (as heirship, intestacy, 
 death, &c.) which are recited or taken notice of in deeds of 
 a certain antiquity, as, for instance, in deeds thirty years 
 old, unless the circumstances of the title require that a 
 more recent period should be fixed upon (t). 
 
 If a condition of sale, as a ground for excluding the pur- 
 chaser from evidence of title to Avhich he would otherwise 
 be entitled of common right, makes an assertion of a fact, 
 such assertion must be proved. Thus, if a condition states, 
 that, as certain lands were allotted in respect of a manor, 
 and the manoi', with the allotments, was purchased by the 
 vendors' testator, the title of the vendors to the manor 
 shall be conclusive evidence of their title to the lands ; the 
 purchaser is entitled to proof of the two assertions on 
 which this condition is grounded (u). Where it is a con- 
 dition of sale that no further evidence of the identity of the 
 parcels shall be required than what is afforded by the 
 abstract, or by the deeds, instruments, or other documents 
 therein abstracted, and the descriptions in the different 
 documents differ among themselves and from the descrip- 
 tion in the particulars of sale, the purchaser is entitled to 
 
 {r) Peto r. Hammond, 80 Bcav. {t) 1 Jarm. & Byth. by Sweet, 
 
 495. 120, 121,505. 
 
 (s) Edwards v. Wklcwar, L. 11. {it) Siimons v. James, 1 Y. & C. 
 
 1 Eq. 68. N. E. 487.
 
 OF CONDITIONS OF SALE. ' 609 
 
 ]iave some proof of the identity aliunde. For, in the case partiii. 
 
 ^ '^ ' T. 10, Cn. 3. 
 
 snpi)osed, the deeds themselves do not afford evidence of ■ 
 
 the identity, but constitute the subject of the doubt as to 
 the identity (x). AVliere it is stipulated that the vendor 
 shall deduce a good title, and that he shall deliver up to 
 the purchaser of the greater part in value of the estate all 
 the title deeds and documents in his custody, but shall not 
 be bound or required to produce any original deed or other 
 documents than those in his possession and set forth in the 
 abstract, the word "produce" means "deliver up." The 
 stipulation does not exempt the A^endor from producing the 
 deeds themselves for the purpose of verifying the abstract. 
 For otherwise the vendor might have furnished an abstract 
 of a good title, and yet he might not have one deed, or only 
 some immaterial deeds, corresponding with the abstract, so 
 that the al)stract might be wholly unverified, and the pur- 
 chaser might have no title at all (//). 
 
 A condition that misdescriptions and errors shall not Condition as 
 
 til flTOl'S 
 
 annul the sale, but that a compensation shall l)e oiven for a"fi "lis- 
 
 ° descriptions. 
 
 tlie difference in value, does not extend to fraudulent errors 
 or substantial misdescriptions (z). 
 
 Where a defect is a latent one, and the purchaser cannot Latmt 
 
 (lelLCt where 
 
 by the greatest attention discover it, if the vendor is aware f^'-'^te is 
 
 •^ ° ' bought with 
 
 of it and does not acquaint the ]nirchaser with the fact, the ^'^ *^^""^" 
 contract is not binding at law or in equity, although he 
 bought the estate wdth all faults (a). 
 
 There must be express conditions where the seller intends conriition as 
 
 to expeiifes. 
 
 to throw upon the purchaser the expense of searches, or the 
 expense of travelling to a distant place to examine the 
 abstract with the deeds, or the like (h). Where the title 
 
 (.r) Floivcr V. Hartopp, 6 Bcav. PliiUqys v. C'aldeIeugJi,'L.'R. 4 Q.'B. 
 
 470. 159. 
 
 {>/) Southhy V. Jlutt, 2 My. & C'r. (a) Sugd. Concise Vie^r, 238. 
 
 207. (h) Sugd. Concise View, 24. 
 
 (:■) Sugd. Concise View, 20—1 ;
 
 610 
 
 OF CONDITIONS OF SALE. 
 
 Tabt III. 
 T. 10, Cii. 3. 
 
 Condition as 
 to possessioD. 
 
 Condition as 
 to interest. 
 
 Condition as 
 to timber. 
 
 Condition as 
 to fixturea. 
 
 Condition as 
 to deeds. 
 
 deeds cannot be delivered up, it should be provided that 
 the expense of attested copies thereof, and of covenants to 
 produce thera, shall be borne by the purchaser, as other- 
 wise the expense will fall on the vendor ; and if the pro- 
 perty is sold in several lots, and the deeds are numerous, a 
 large proportion of the j)urchase money may be thereby 
 absorbed (c). 
 
 As a general rule, where a contract for purchase provides 
 that "possession" shall be given by a certain day, the word 
 "possession" must be understood to mean possession with 
 a good title shown (d). 
 
 A condition for payment of interest, if, by reason of any 
 " unavoidable obstacle," the contract cannot be completed 
 by a day named, does not apply to a delay occasioned by 
 the state of the title (e). 
 
 A condition to pay interest, if, " from any cause what- 
 ever," the purchase is not completed by the time fixed, 
 does not apply to a case of delay occasioned by the mis- 
 conduct of the vendor (/). 
 
 If it is simply stipulated that the purchaser shall pay for 
 timber, he must even pay for trees which are not stiictly 
 timber, but yet are considered such according to the custom 
 of the country (</). 
 
 In- the absence of any stipulation or indication to the 
 contrary, common fixtures which would descend to the heir 
 pass to the purchaser under the common conveyance. And 
 therefore, where it is intended that the purchaser shall pay 
 for fixtures, this should always be expressed (h). 
 
 On a sale, by auction, of lands in lots, the pm'chaser of 
 the lot which is of the larQ-est value is entitled to the 
 
 (c) Sugd. Concise View, 2i; 9 
 Jarm. & Bytli. by Sweet, 8. 
 
 (d) Tilley v. Thomas, L. E. 3 Ch. 
 Ap. 61. 
 
 (e) Sugd. Concise View, 495. 
 
 (/) Williams V. Glcnton, 34 Ecar. 
 528. 
 
 {;/) Sugd. Concise View, 22—33. 
 
 (h) Sugd. Concise View, 23 ; 9 
 Jarm. & Bytli. by Sweet, 35.
 
 OF CONDITIONS OF SALE. 611 
 
 custody of tlie deeds relatino- to all the property, unless ^^art in 
 
 •^ ° L L J ' T. 10, Ch. 3, 
 
 there is a stipulation to the contrary. But if there is a 
 
 condition that the purchaser of " the largest lot " shall have 
 them, that means the largest in superficial acreage {i). 
 
 If the estate is leasehold, and the vendor cannot pi'ocure conditions 
 
 on sale of 
 
 an abstract of the lessor s title, this fact should be stated in icasehokis, 
 the conditions, in order to preclude the purchaser from 
 insisting upon the production of the lessor's title (k). But 
 a condition that the seller shall not be liable to produce 
 the lessor's title, does not exclude the purchaser from 
 showing aliunde that the title is bad (J). Where a lease is 
 sold, although the reference to the lease binds the pur- 
 chaser, yet unusual covenants should be stated in the con- 
 ditions {m). As surrendered leases are given up to the lessor, 
 if the premises are held under a renewed lease expressly 
 granted in consideration of the surrender of a former lease, 
 there should be a condition that the purchaser "■ shall not 
 require the production of, or the deduction of the title to, 
 any surrendered lease which is referred to in the subsisting 
 lease" {n). 
 
 A proviso in a contract for sale, that, if either party Penalty, 
 break the agreement, he shall pay a sum of money to the 
 other, does not give either party an option to break the 
 agreement, but it is of the nature of a penalty ; and conse- 
 quently a specific performance will be decreed, just as if 
 no such proviso had been inserted (o). 
 
 (l) Griffiths V. EatcJiard, 1 K. & 9 Jarm. & Byth. by Sweet, 13. 
 
 J. 17. (?)i) Sugd. Concise View, 19. 
 
 (/.■) Sugd. Concise View, 25, 268. (n) 9 Jarm, & By tli. by Sweet, 13. 
 
 (0 Sugd. Concise View, 14, 258 ; (o) Sugd. Concise View, 158. 
 
 VOL. II,
 
 G12 
 
 Part HI. 
 T. iO, Cn. 4. 
 
 Obligafi..n 
 of puicha^er 
 to see to the 
 aiiplicatiiii 
 of tlie 
 purchase- 
 m.jney. 
 
 General 
 rules. 
 
 Specific 
 poiuts in 
 illustiution 
 of the above 
 rules as to 
 the pur- 
 cha?ei''3 
 oblircation. 
 
 CHAPTEE IV. 
 
 SOME MISCELLANEOUS POINTS IN THE LAW OF VENDORS AND 
 PURCHASERS (a). 
 
 In cases under tlie old law, where real property is devised 
 or conveyed to be sold for, or is charged with, the payment 
 of definite and ascertained snms only, and such payment 
 is to take place at the time when the required amount is to 
 be raised, the purchaser of such property is bound to see 
 that the purchase money is applied in the fulfilment of the 
 trust, unless expressly exempted by a provision by the 
 author of the trust, although the estate be sold under the 
 decree of a court of equity. But where the property sold 
 constitutes the natural and primary iund for tlie payment 
 of debts generally, or is expressly charged with, or conveyed 
 or devised for, the payment of debts generally, and there- 
 fore, in order to ascertain the sums to the payment of which 
 the propert}- is liable, it would be necessary for the pur- 
 chaser to take proceedings in Chancery; or where the pur- 
 chaser, if bound to see to the application of the money, 
 would be involved in a trust of long continuance ; there, 
 the purchaser, unless he has notice that there are no debts 
 or notice of fraud, is not bound to see to the application of 
 tlie purchase money (h). 
 
 In illustration of these rules, it may be observed, that, 
 as the personal estate, whether consisting of chattels per- 
 sonal or of chattels real, is liable at the common law, and 
 constitutes the natural and primary fund for the payment 
 
 (a) See also next title. 
 
 (o) See Story's Eq. Jur. § 112G— 
 1128, 1130—1134; Sugd. Concise 
 View, 517, 518, 520. As to the 
 
 payment by mistake of part of the 
 pin chase money to a tenant for life or 
 other party, see stat. 22 & 23 Vict. 
 c. 35, s. 13.
 
 APPLICATION OF PUECHASE MONEY. 613 
 
 of the debts of tlie testator generally, tlie purchaser of the ^^iTV"'* 
 
 whole or of any part of it, without notice that there are 
 
 no debts, or that the sale was not made for payment of 
 debts, is not bound to see that the purchase money is 
 applied by the executors in the discharge of the debts (c), 
 even if the testator has directed his real estate to be sold 
 for payment of debts, whether specified or not, and has 
 made a specific bequest of a part of his personal estate for 
 a particular purpose or to a particular person, although 
 such specific bequest is known to the purchaser, but he 
 has no reason to suspect any fraudulent or unauthorised 
 purpose ; for, otherwise, before a person could become a 
 purchaser of personal estate specifically bequeathed, it 
 would be indispensable for him to come into a court of 
 equity to have an account taken of the assets of the tes- 
 tator, and of the debts due from him, so as to ascertain 
 whether it was necessary for the executor to sell (d). 
 
 The same rule, for the same reason, applies to real 
 estate devised for or charged with tlie payment of debts 
 generally (c) ; even though the trust is only to sell, or is a 
 charge for, so much as the personal estate is deficient to 
 pay the debts ; and even though a specific part of the real 
 estate is devised for a particular -purpose or trust ; if the 
 whole real estate is charged with the payment of debts 
 generally by the will. If, however, the trustee has only a 
 power to sell, and not an estate devised to him, then, unless 
 the personal estate is deficient, the power to sell does not 
 arise (/). 
 
 (r) Story's Eq. Jur. § 1126, 1128; dor's Leading Cases, 1st ed. 46—7 ; 
 
 2 Spence's Eq. Jur. 372, 377. Sugden, V. & P. 13tli ed. 543— 
 
 {(I) Story's Eq. Jur. § 1129; 2 4; Elliott v. Merryman, Barnard. 
 
 Spence's Eq. Jur. 375 — 377 ; Sugd. 78. 
 
 Concise View, 526. (/) Story's Eq. Jur. § 1131; 2 
 
 (e) Sugd. Concise View, 518; Spence's Eq. Jur. 382; Sugd, Con- 
 Story's Eq. Jur. § 1130 ; 2 Spence's cise View, 521. 
 Eq. Jur. 380, 382 ; 1 Wliite & Ta- 
 
 a2
 
 APPLICATION OF PURCHASE MONEY. 
 
 Where, in cases of real estate, the trust is for the pay- 
 ment of legacies or annuities only, or of specified or sche- 
 duled deljts alone, or of both, but not of debts generally, the 
 rule is different ; for they are ascertained, and the pur- 
 chaser must therefore see that the money is applied in dis- 
 charge of them. But where the devise is for payment 
 of debts generally, and also for tlie payment of legacies or 
 annuities or specified debts, the purchaser is not bound to 
 see to the application of the purcliase money ; because, to 
 hold him liable to see the legacies or annuities or specified 
 debts paid, would in fact involve him in the necessity of 
 taking an account of all the debts and assets (//). 
 
 And tlie purcliaser is not bound to see to the application 
 of the purchase money wliere the specific objects of the 
 trust are not pointed out (h). 
 
 But if there is collusion between the purchaser and the 
 trustees, who are guilty of a misapplication, or if there is 
 notice that the sale or mortgage is made for the purpose 
 of a breach of trust, the estate will be liable (i). 
 
 In determining as to the liability of the purchaser, the 
 Court will look to the deed or will alone, and not to sub- 
 secjuent events : so that where a testator makes a charge 
 for payment of debts generally and legacies, and the debts 
 are paid after the death of the testator, and the legacies 
 only are left as a charge, that circumstance alone does not 
 prevent the application of the rule (IS). 
 
 Where the time appointed by the will for a sale of real 
 estate is arrived, and the persons entitled to the money 
 are infants or unliorn, there the purchaser is not bound to 
 see to the application of the purchase money ; because 
 that might involve him in a trust of long continuance. 
 
 (fj) story's Eq. Jur. § 1132 ; 2 (h) 2 Spcnce's Eq. Jur. 381. 
 
 Spcnce's Eq. Jur. 379, 382, 38G, (/) 2 Spence's Eq. Jur. 384 ; Sugd. 
 
 389; Sugd. Concise View, 518, 520; Concise View, 520. 
 Rohinson v. Loimtcv, 17 Beav. 592. (Z) 2 Spence's Eq. Jur. 383.
 
 APPLICATION OF PURCHASE MONEY. 615 
 
 But, if an estate is cliarged with a sum of money payable rp^j^J^'^J^^-^ 
 
 to an infant at liis majority, the purchaser is bound to see 
 
 the money duly paid at that time ; for the estate will 
 remain chargeable with it in his hands (/). 
 
 Where the money is to be applied by the trustee to 
 certain purposes which require, on their part, time, delay, 
 and discretion, it seems the purchaser is not bound to see 
 to the application of the purchase money {m). 
 
 A general power to give a receipt in all these cases was Power to 
 
 . give receipts 
 
 provided by the stat. 7 & 8 Vict. c. 76. And although it under the 
 
 i- 'J "^ 7 (fe 8 Vict. 
 
 was repealed as from the 1st of October, 1845, so that the tiJ*;'t^"'\2 
 power to trustees to give receipts under that Act extends ^ H'^^^^^' 
 only from the 1st of January to the 1st of October, 
 184)5 (?i) ; yet a general power is given by the stat. 22 & 
 23 Vict. c. 35, s. 23, and by the stat. 23 & 24 Vict. c. 145, 
 s. 29 (o). 
 
 If the names of the trustees are inserted in the usual Receipt 
 
 clause. 
 
 clause, that the receipts of the trustees shall be discharges, 
 every trustee who has accepted the trust must join in the 
 receipt for the purchase money, although he may have sub- 
 sequently released the estate to the other trustees. But 
 a trustee who never acted in or accepted the trust, but 
 has renounced or released, need not join in any re- 
 ceipts (p). 
 
 Where a vendor delivers possession of an estate to a vendor's 
 purchaser, without receiving the purchase money, whether 
 the estate be or be not conveyed, equity gives the vendor 
 a lien on the land for the purchase money, that is, a hold 
 upon it for the satisfaction of the money ; and, to the extent 
 of the lien, the purchaser becomes a trustee for the 
 
 {I) Sugd. Concise View, 519 ; Eq. Jur. 387- 
 Story's Eq. Jur. § 1133; 2 Spence's (n) Sugd. Concise View, 521. 
 
 Eq. Jur. 387. (o) See infra, Pt. IV., T. ], c. 2. 
 
 (»i) Sugd. Concise View, 519 ; {ii) Sugd. Concise View, 524. 
 
 Story's Eq. Jur. § 1134 j 2 Spence's
 
 616 
 
 VENDOKS LIEN. 
 
 Part III. 
 T. 10, C'n. 4. 
 
 Contiuuanco 
 tlieieol'. 
 
 Against 
 wiiora it 
 exists. 
 
 vendor (q). And the burden of proof is on the purchaser, 
 to establisli that in the particular case it has been inten- 
 tionally displaced or waived by the consent of the 
 party (r). If, on the face of the conveyance, the considera- 
 tion is expressed to be paid, and even if a receipt for it is 
 indorsed on the back of it, and yet the money has not 
 actually been paid, the vendor has a lien (s). And if a 
 security has been taken for the money, the burden of proof 
 has been adjudged to lie on the purchaser, to show that 
 the vendor agreed to rest on the security and to discharge 
 the land, or, at most, the taking of a security has been 
 deemed to be no more than a presumption, under some 
 circumstances, of an intentional waiver of the lien, and not 
 as conclusive of the waiver (t). 
 
 When the vendor has a lien against the vendee, it con- 
 tinues notwithstanding any devolution or transfer of the 
 estate, except where it is extinguished by the countervailing 
 equity of a bona fide purchaser for valuable consideration 
 without notice, when clothed with the legal title. 
 
 Hence it exists against the vendee and his heir, and 
 against volunteers claiming under him ; against purchasers 
 under him, with notice that he had not paid the purchase 
 money ; against purchasers having an equitable title only ; 
 against assignees claiming by a general assignment under 
 the bankrupt and insolvent laws ; against assignees claim- 
 ing imder a general assignment made by a failing debtor 
 for the benefit of creditors ; and against a judgment cre- 
 ditor of the vendee, at least before an actual conveyance of 
 the estate lias beeii made to him («). For, in each of these 
 cases (except that of the bona fide purchaser for valuable 
 consideration, without notice, who has only an equitable 
 
 (q) Sec Sugd. Concise View, 52S; 
 Story's Eq. Jur. § 1215, 1217—1220. 
 (r) Story's Eq. Jur. § 1224. 
 (s) Sugd. Concise View, 537 ; 
 
 Story's Eq. Jur. § 1225. 
 
 (0 Story's Eq. Jur. § 1226. 
 
 (u) See Story's Eq. Jur. § 1228 j 
 Sugd. Concise View, 536^8.
 
 VENDORS LIEX. 61? 
 
 title), the party in possession has obviously no more equity paiit in 
 
 against the lien of the vendor, than the vendee himself had, — 
 
 hut clearly stands in the same situation and subject to the 
 same equity. And although the bona fide purchaser, 
 without notice, who has only an equitable title, has an 
 equity quite distinct from that of his vendor, the first 
 vendee, yet the equity of such purchaser to retain what he 
 has paid for, is only equal to that of the first vendor to be 
 paid for that which he has parted with : and when the 
 equities are equal, and neither of the parties has the 
 support of the legal title, the maxim applies. Qui prior est 
 in tempore potior est in jure. 
 
 But the lien will not prevail against a bona fide pur- 
 chaser for valuable consideration from the vendee, where 
 such purchaser has paid his jjurchase money, and taken a 
 conveyance of the legal estate, and had no notice, at the 
 time of paying his money, that such vendee had not paid 
 the purchase money {x) ; because, having given a valuable 
 consideration for the estate, without notice, he has as much 
 equity to retain what lie has so paid for, as the original 
 vendor has to be paid for that which he has parted with ; 
 and having this equal equity, the Court will not take from 
 him the legal title with which he has clothed himself, but 
 will act upon the maxim, that, where the equities are 
 equal, the law shall prevail ; so that, in this case, the 
 vendor's lien is virtually extinguished by the countervailing 
 equity of the purchaser from the vendee. But where a 
 vendee has sold the estate to a bona fide purchaser without 
 notice, if the second purchase money has not been paid, 
 the original vendor may proceed against the estate for his 
 lien, or against the purchase money in the hands of such 
 sub-purchaser, for satisfaction (?/). 
 
 Where the vendee has sold only a part ot it, the part re- 
 
 (x) story's Eq. Jur. § 1228, 1229. {y) Id. § 1232.
 
 618 
 
 OF VEKDOKS AND rUECIIASERS GENEEALLY. 
 
 Part TIF. 
 T. 10, Ch. 4. 
 
 Sale of es- 
 tate for an 
 annuity. 
 
 Sale by 
 trustees or 
 otlier per- 
 sons not 
 being 
 owners. 
 
 Indemnity 
 to vendor. 
 
 Conveyanco 
 to one 
 purchaser. 
 
 Ee-i?ale of 
 estate sold 
 under au- 
 thority of 
 the Court of 
 Chancery. 
 
 Eevocation 
 
 tained by him is primarily cliargeaLlc with tlie lien. AVliere 
 he has sold different parts to different persons, the lien is 
 to be borne rateably between them (z). 
 
 Where an estate is sold for an annnity, it must Ije 
 secm'cd not only upon the estate, but also by the bond of 
 the purchaser (a). 
 
 In the absence of a restriction in any particular case, by 
 deed, will, or otherwise, a sale by trustees or persons not 
 being owners may be made by private contract, or by 
 public auction, (&). But a sale hj private contract by an 
 agent authorised to sell by auction, is not valid, although 
 the price be greater than was required (c). 
 
 A purchaser of an estate subject to incumbrances must 
 indemnify the vendor against them. This applies to the 
 purchase of a leasehold estate, and to the purchase of an 
 equity of redemption. And if a purchaser who has not 
 obtained a conveyance sells to another, the second pur- 
 chaser is bound to indemnify him against any costs in- 
 curred in proceedings for his benefit (d). 
 
 Although an agreement be to sell and convey to two, 
 their heirs, &c., some or one of them, yet the seller will not 
 be w^arranted in conveying the estate to one of the pur- 
 chasers only (c). 
 
 If an estate is sold under the authority of the Court of 
 Chancery, and the purchaser re-sells at a profit behind the 
 back of the Court before his purchase is confirmed, the 
 second purchaser is considered a substituted purchaser, and 
 must pay the additional sum into Court for the benefit of 
 the estate (/). 
 
 A person who has authorised an agent to sell, may 
 
 (z) story's Eq. Jur. § 1233 a. 
 {a) Sugd. Concise View, 137. 
 (6) Sugd. Concise View, 42. 
 (c) Sugd. Concise View, 43. 
 (c/) Sugd. Concise View, 137. 
 
 (e) Sugd. Concise View, 554. 
 
 (f) Sugd. Concise View, 53 — 4. 
 As to opening biddings, see 30 & 31 
 Vict. c. 48, s. 7.
 
 of authority 
 to sell or 
 purchase. 
 
 OF VEXDOES AND PUKCHASEES GENEEALLY. 619 
 
 revoke the aiitliority of tlie agent at any time before an ,^^^^'^^1^-^ 
 agreement is executed according to tlie statute, altliongli 
 tlie agent lias previously agreed verbally to sell the pro- 
 perty. And an intended purchaser may in like manner 
 revoke his authority to his agent to purchase (g). 
 "^•^JChe mere sale of the "oodwill of a business will not pre- saio of " the 
 
 "-' goodwill. 
 
 vent the vendor fi'om setting up next door to the purchaser, 
 or soliciting the custom of his former customers. But if he 
 has engaged to abstain from doing so, he will then be 
 bound. And he is not at liberty to set .up a precisely 
 similar business under the old style or firm, although his 
 name be the only one, with the addition of the words " and 
 Co.," coustituting the old style or firm. !N"or is he at 
 liberty in any other manner to hold out that he is carrying 
 on business in continuation of, or in succession to, the 
 business carried on by the old firm. The mere sale does 
 not oblige him to introduce the purchaser to the customers, 
 or to recommend him to them, or to do any one act for the 
 purpose of giving effect to the sale. But if the vendor has 
 expressly engaged to do any such specific act, he will be 
 compellable to do it, or may be made to give damages for 
 the breach of his agreement (Ji). 
 
 A covenant by a vendor on the sale of a goodwill, not to 
 carry on the business within a certain distance, is broken 
 by his selling goods to persons who, as he knows, reside 
 within that distance, though the goods were sold at a shop 
 beyond that distance, and though the seller did not in any 
 way solicit their custom (i). 
 
 Although a trade mark is not strictly property, yet p^ofa 
 when a business is bona fide assigned for valuable con- 
 sideration, the exclusive right to use a trade mark which 
 
 (g) Sugd. Concise View, 9.5. Smitli v. Hverett, 27 Bear. 453. 
 
 (h) 9 Jarm. & Byth. by Sweet, (/) Brompton v. Beddoes^ 13 C. B. 
 
 653—4; Churton v. Doxirjlas, 1 N. S. 538. 
 Jolms. 174; remarks of M. R. in
 
 620 
 
 OF VENDOKS AND rURClLVSERS GENERALLY. 
 
 Part HI. 
 T. 10, Ch. L 
 
 Eight to 
 dividend* on 
 a sale of a 
 life interest 
 iu stock. 
 
 Purchase in 
 another's 
 name, when 
 purchase 
 money not 
 paid. 
 
 has been appropriated to that business may be assigned 
 with it (k). 
 
 The purchaser of a life interest in stock in the public 
 funds, is entitled to the dividends accruing between the 
 date of the contract and its completion, in the absence of 
 a stipulation to the contrary ; this advantage being given 
 him in consideration of the precarious nature of the pro- 
 perty, which may determine in five minutes after the con- 
 tract is entered into (/). 
 
 AVhere an assignment is made to a person as a pur- 
 chaser, for a consideration which is not paid, he is liable to 
 a suit in ef|uity by the vendor for the recovery of the pur- 
 chase money, though he took the assignment as a trustee 
 for a third person, and on the faith of an acknowledgment 
 in the deed and the assurance of such third person, as the 
 real purchaser, that the purchase money had been paid (m). 
 
 (h) Leather Cloth Co. v. American 
 Leather Cloth Co., 1 Hem. & MiL 
 271. 
 
 (/) 9 Jarm. & Bytli. by Sweet, 67. 
 
 Tlie writer Las deemed it advis- 
 able not to enter upon the subject 
 of evidence, as it embraces a wide 
 field, which, has been fully traversed 
 iu the works on evidence ; and it 
 involves points of practice which are 
 
 foreign to the nature of this work as 
 a book on the law of property. For 
 many of the most useful points, tlie 
 reader is referred to Sugd. Concise 
 Yio\y, Chap. 10 ; aud Sugd. V. & P. 
 ]-3th ed. 11 ; Burton's Compendium, 
 Chap. 1, sect. 7; and 1 Jarm. & Byth. 
 by Sweet, 98—186. 
 
 (m) Wilson v. Keating, 4 D. & J. 
 588.
 
 621 
 
 TITLE XI. 
 
 OF ALIENATION BY IMEKE WEITTEN AGREEMENT. 
 
 CHAPTEE I. 
 
 OF ALIENATION AT LAW BY MEEE WEITTEN AGREEMENT. 
 
 Even at the common Irav, corporations regnlarly could not ■^■^f^'^^l^--^ 
 urant lands, goods, or chattels, exceiDt by deed. But all 
 
 * > o > > L J ^ ^ ^ Alienation 
 
 natural persons might grant or give anything which lay in ^'^"j""' 
 livery without deed («). 
 
 But, in consequence of the Statute of Frauds, 29 Car. 2, statute of 
 
 Frauds. 
 
 c. 3, there must be a writnig, duly signed, if any estate 
 beyond three years, or even an estate for less than three 
 years at a less rent than two third parts of tlie value, be 
 designed to pass (h). By s. 1, it is enacted, " that all leases, 
 estates, interests of freehold, or terms for years, or any un- 
 certain interest of, in, to, or out of any messuages, manors, 
 lands, tenements, or hereditaments, made or created by 
 livery and seisin oidy or by parol, and not put in -WTiting 
 and signed by the parties so making or creating the same, 
 or their agents thereunto lawfully authorised by writing, 
 shall have the force and effect of leases and estates at will 
 only, and shall not, either in law or in equity, be deemed 
 or taken to have any other or greater force or effect." By 
 the 2nd section, leases for three years, whereupon the rent 
 reserved amounts to two thirds of the full improved value, 
 
 (a) 2 Pres. Shep. T. 229 ; Co. (h) 2 Pres. Shep. T. 228. 
 
 Litt. 169 a.
 
 622 ALIENATION AT LAW BY WPJTTEN AGREEMENT. 
 
 Part iif. ai'G exccptecl. And by the 3rd section it is enacted, " tliat 
 T. 11, ch. 1. •■■ / _ ' 
 
 no leases, estates, or interests, either of freeliohl or terms 
 
 for years or any nncertain interest not being copyhokl or 
 customary interest, of, in, to, or out of any messuages, &c., 
 shall be assigned, granted, or surrendered, unless it be by 
 deed or note in writing, signed by the party so assigning', 
 granting, or surrendering the same, or their agents there- ■= 
 unto lawfully authorised by writing, or by act or operation 
 of law." And by the 4th section it is enacted, " That no 
 action shall be brought whereby to charge any person upon 
 any agreement made upon consideration of marriage, or 
 u])on any contract or sale of lands, tenements, or here- 
 ditaments, or any interest in or concerning them, or upon 
 any agreement that is not to be performed within the space 
 of one year from tlie making thereof, unless the agreement 
 upon which such action shall be brought, or some memo- 
 randum or note thereof, shall be in writing and signed by 
 the party to be charged therewith, or some other person 
 thereunto by him lawfully authorised." 
 
 The 1st section appears to relate to cases whei-e an estate 
 or interest is created de novo, and actually passes to the 
 grantee or lessee ; the 3rd section, to cases where an estate 
 or interest previously existing is transferred ; and the 4tli 
 to cases where a right of action only is created by an agree- 
 ment, or where an agreement is made respecting the future 
 creation or transfer of an estate or interest. In cases 
 within the 1st and 3rd sections the statute requires the 
 agent to l)e authorised in writing, but not in cases within 
 the 4th section (c). 
 
 By a recent statute, as we have seen, a deed is now 
 required in certain cases where a deed was not necessary, 
 or where it was doubtful whether a deed was necessary at 
 the common law {d). 
 
 (r) See Sugd. CoucisG View, 72, (cZ) See supra, p. 595. 
 
 73, 94.
 
 C23 
 
 CHAPTEE II. 
 
 OF ALIENATION IN EQUITY BY MERE WRITTEN 
 AGREEMENT. 
 
 At law, contracts and covenants to sell, convey, or transfer part hi. 
 
 . T. 11, Ch. 2. 
 
 land or other property, are considered simply as personal 
 
 At law. con- 
 
 and executory contracts and covenants, and not as attach- tracts aud 
 
 '' covenants 
 
 ing to the property in any manner as a present or future suieicd' 
 charge or otherwise (a). But it is a maxim of equity that "ersonailnd 
 tilings agreed to be done shall be regarded as if actually ^^^^™ °^ ' 
 performed, in respect to the consequences. And therefore, performed 
 in equity, from the time of a contract for the sale of land, to conse- 
 the vendor and his heirs, even though he did not covenant 
 for tliem, and any person or persons claiming under him 
 as a subsequent purchaser or as assignees in bankruptcy 
 or insolvency, become, as to the land, trustees for the 
 purchaser and his heirs, devisees, or vendees ; and the 
 purchaser and his representatives or assignees in bank- 
 ruptcy or insolvency become, as to the money, trustees 
 for the vendor and his personal representatives. In cases 
 not within the stat. 17 & 18 Vict. c. 113, and 30 & 31 Vict. 
 c. 69, the personal representatives so become trustees as 
 to the money. But in cases within those statutes, the 
 persons on whom the purchased land devolves become such 
 trustees (&). And hence the purchaser is entitled to the profits J^So^ 
 of the estate from the time fixed upon for completing the jfurchaser^s'^ 
 contract, whether he does or does not take possession of the profl's? ^^'^ 
 estate ; and the vendor, to interest for the purchase money, 
 if it is not paid at the day ; unless there is a material ob- 
 
 ^ (a) See Story's Eq. Jur. § 714, cise View, 121-123, H3. And see 
 ^^^' supra, pp. 518, 519. 
 
 {b) Id. § 788-790 ; Sugd. Con-
 
 624 ALIENATION IN EQUITY BY WRITTEN AGREEMENT. 
 
 rARTiTi. iection to the title, and it remains to be cleared np ; or 
 
 T. 11 Cn. 2. 
 
 — ^ — — unless the delay is occasioned by the vendor, and he has 
 notice from the purchaser or knows aliunde that the pur- 
 chase money is lying idle ; or unless the interest is greater 
 in amount than the rents and profits ; in which case the 
 vendor will not be entitled to interest, but will have the 
 interim rents and profits. This right to interest exists 
 even in the case of a sale of a reversion ; because the 
 wearing out of the lives is equivalent to taking the profits. 
 If no time is limited for the performance of the agreement, 
 the x^urchaser must pay interest on the purchase money 
 from the time of taking possession (c). Wliere a good 
 title is not shown until a given period, the purchaser will 
 pay interest only from that period, and he will of course 
 take the rents from the same time {d). And interest on 
 the purchase money of timber to be taken at a valuation 
 will only commence from the valuation ; because the in- 
 crease in the value of the timber by growth is an equiva- 
 lent for the interest (e). 
 
 The vendor may stipulate that the purchaser shall pay 
 interest at a given rate up to a given time, and then at a 
 higher rate up to a subsequent time, and then at a still 
 higher rate up to a still later time (/). 
 
 Where the If a vcudor cauuot make a good title, and the pur- 
 
 vendor must _ 
 
 pay interest cliascr's moucy has been lying ready without interest 
 
 being made by it, the vendor must pay interest to the 
 purchaser (a). 
 Risk. The purchaser being considered as the owner of the pro- 
 
 perty from the time of entering into the contract, he from 
 that time bears the risk of accidents (h). 
 
 (c) Sugd. Concise View, 488—491, H. Co., L, E. 2 Eq. 221. 
 
 494. (g) Sugd. Concise View, 499. 
 
 (d) Sugd. Concise View, 494. {/<) 9 Jarm. & Byth. by Sweet, 
 (f) Sugd. Concise View, 491, 492. 13. 
 
 (/) Hcrhert v. Salishunj cC- Yeovil
 
 ALIENATION IN EQUITY BY AVIUTTEN AGREEMENT. 625 
 
 In accordance with the maxim of equity alDOve men- pamiii. 
 
 ^ '' T. 11, Ch. 2. 
 
 tioned, if trustees under a power of sale make a legal con- 
 
 tract for sale of the estate, the contract binds the estate ; contract by 
 and though by the deaths of parties the power should be 
 extinguished, yet the contract must be executed by those 
 who have got an interest by the extinguishment of the 
 power (i). 
 
 It follows from the same maxim, that a purchaser, or, if Devise, sale, 
 
 01' charge 
 
 he dies before the conveyance is executed, his heir, may before con- 
 
 ■' ' ' ^ veyance. 
 
 devise, sell, or charge the estate before the conveyance is 
 executed (A"). 
 
 As a further consequence of the same maxim of equity, night of heir 
 
 to have 
 
 where the purchaser died intestate before the conveyance, estate pui- 
 
 ■"- "^ chased out 
 
 or where an estate contracted for after the will did not toi.'g'';^"^'^*' 
 pass by it, the heir at law was entitled to have the estate ^°"^^ ®*'''^'®' 
 purchased for his own benefit out of the personal estate 
 of his ancestor (/). But by the stat. 17 & 18 Vict. c. 113, 
 and the stat. 30 & 31 Vict. c. C9, this seems to be now 
 altered (/»). 
 
 On the same principle, if a person contracts with a 
 builder to erect a house on a piece of ground belonging to 
 him, and dies intestate before the house is finished, the 
 heir at law is entitled to have the house finished at the 
 expense of the personal estate of the intestate ((a). 
 
 Upon the same principle, if the consideration is an saieforau 
 
 ■•• ^ ^ annuity 
 
 annuity for the life of the vendor, though the vendor dies ^\!f|y,Vt^g''*^^ 
 before the conveyance is executed, by which event the conveyauce. 
 annuity ceases, yet the purchaser will be entitled to a 
 specific performance of his contract (o). 
 
 On the same ground, the consideration must be paid, cesser of tho 
 
 (/) Sugd. Concise View, 148, 149. O") See supra, pp. 518, 519. 
 
 (/.•) Sugd. Concise View, 125,] 33. («) Cooler v. Jarman, L. E. 
 
 (/) Sugd. Concise View, 133; Eq. 98. 
 
 Grcemi'ood v. Penny, 12 Beav. (o) Sugd. Concise View, 209. 
 406.
 
 626 
 
 ALIENATION IN EQUITY BY AVEITTEN AGREEMENT. 
 
 Part III. 
 T. 11, Ch. 2. 
 
 estate or 
 thing before 
 conveyance. 
 
 Verbal 
 agreements 
 or variations 
 of agree- 
 ments. 
 
 altlioiigli the estate or thing itself be destroyed or cease 
 (as in the case of the purchase of an annuity when the 
 annuitant dies) between the agreement and the convey- 
 ance. And, on the other hand, the purchaser will be en- 
 titled to any benefit which may accrue to the estate in the 
 interim {p). 
 
 In some cases effect is given by the Court of Chancery 
 to verbal agreements or variations of agreements ; but this 
 belongs more properly to the subject of equity jurispru- 
 dence, and is fully discussed by the writers on that sub- 
 ject {(f). 
 
 209, 
 
 {■p) Sugd. Concise Vieiv, 205— G, ct seq. ; and see Sugd. Concise View, 
 
 {q) See Story's Eq. Jur. § 754 
 
 Chap. 3.
 
 G27 
 
 TITLE XII. 
 
 OF ALIENATION BY DEED. 
 
 CHAPTER I. 
 
 OF DEEDS CtENEEALLY AND THEIR PARTS.. 
 
 Section I. 
 Of Deeds generally. 
 
 A DEED is a written or printed document on parchment, i'T.in.T.12, 
 vellum, or paper, sealed and delivered, to prove and testify 
 
 ■■- ■'^ ' ' ^ -^ Definition of 
 
 the agreement of the parties whose deed it is, to the things ^ '^'''^• 
 tlierein contained (ft). A deed must be written or printed 
 on parchment, vellum, or paper, because there is nothing 
 else which is at once so durable and so little liable to 
 alteration (&). 
 
 Deeds, when considered with reference to the parties to Dee,is are 
 
 eitlier iu- 
 
 them, are of two kinds : Indentures or deeds inter partes. <|enuires 01 
 
 •c^ ' deeus poll. 
 
 and Deeds Poll. 
 
 An indenture or deed inter partes is a deed containing Definition of 
 
 "an iudeu- 
 
 mutual stipulations by two or more persons (c). Formerly, *"^®- 
 
 . Origin of tlio 
 
 when deeds were more concise than thev are at present, if term inden- 
 ture. Au- 
 they were made between two or more parties, it was usual cieut mode 
 
 '' ^ ' of indenting 
 
 to write both parts of which they were composed on the 
 same skin of parchment, with some words or letters of the 
 
 (a) 4 Cruise T. 32, c. 1, § 16 ; 2 T. 54 ; Co. Litt. 35 b, 229 a. 
 Bl. Com. 295 ; 1 Pres. Shep. T. 50, (c) 4 Cruise T. 32, c. 1, § 20 ; 2 
 
 51, 54; Co. Litt. 35 b, 171 b. Bl. Com. 296 ; Burton, § 140: C-^. 
 
 ('j) 2 El. Com. 297 J 1 Pres. Shep. Litt. 229 a. 
 
 VOL. II. 1,
 
 628 
 
 or DEEDS flENEKALLY. 
 
 Pt.III.T. 12, 
 Ch. 1, s. 1. 
 
 Srodern way 
 of iudeuting. 
 
 Reason for 
 iodeuting. 
 
 Indenting 
 not now 
 
 necessary. 
 
 Originals and 
 
 couuter 
 
 parts. 
 
 Definition of 
 a di'ed poll. 
 
 alphabet written between them, tbroiigli wliicli tlie parcli- 
 ment was cut in acute angles, instar tlentium (from which 
 they acquired the name of indentures or deeds indented), 
 in such a manner as to leave half the words or letters on 
 one part and half on the other (<:/). Afterwards, indenting 
 in an undulating line came into use, without cutting 
 through any words or letters at all (<?). And the practice 
 has long been to cut in this manner the first skin of parch- 
 ment on which a deed containing mutual stipulations is 
 written (/). 
 
 In its origin, indenting was in all probability a mode of 
 identification, by a comparison of the parts at the point of 
 indenting, and thus a guard against forgery or fraudulent 
 substitution [g). 
 
 As practised in modern times, however, it can be of no 
 utility. And hence it was enacted by the stat. 7 & 8 Vict. 
 c. 76, s. 11, that it should "not be necessary in any case to 
 have a deed indented." And though that Act is repealed 
 liy the stat. 8 & 9 Vict. c. 106, yet by s. 5 of the latter Act, 
 " a deed executed after the 1st of October, 1845, purport- 
 ing to be an indenture, shall have the effect of an inden- 
 ture, although not actually indented." 
 
 In the case of an indenture, there ought regularly to be 
 as many copies of it as there are parties ; and when the 
 several parts are interchangeably executed by the several 
 parties, that part or copy which is executed by the grantor 
 is usually called the original, and the rest are counter- 
 parts ; but all of them, in law, make but one entire deed. 
 It is usual, however, for all parties to execute every part, 
 which renders them all originals (Ji). 
 
 A deed poll (which is so called because not indented. 
 
 {d) 4 Cruise T. 32, c. 1, § 20. 
 (c) 2 BI. Com. 296. See also Co. 
 Litt. 229 a, n. (1.) 
 
 (/) 4 Cruise T. 32, c. 1, § 22 ; 
 
 Co. Litt. 229 a, b, 1. 
 
 {g) 1 Pres. Sliep. T. 50. 
 
 (/i) 2 Bl. Com. 296 ; 4 Cruise T 
 32, c. 1, § 23 ; 1 Pres. Sliep. T. 51.
 
 OF DEEDS GENERALLY. 629 
 
 but cut in a straight line) is not strictly speaking an agree- ^^-^^Y-g-j^' 
 
 nient between two persons, but a declaration of some — 
 
 person or persons respecting an agreement made by liim or 
 tliem witli some otlier person or persons (^). 
 
 A deed takes effect from its execution, and not from the From what 
 
 time a deed 
 
 date of it (Jc). And in the absence of special circumstances takes effect. 
 creatinti' an equity to the contrary, where there are several operate 
 
 >=> i- J -J' _ ^ accoidingto 
 
 deeds, they operate according to the priority of times of Ij^^.^^'^^lgg^^^j. 
 delivery, it being a maxim of common law, Qui prior est "ieiivery. 
 tempore, potior est in jure (/). 
 
 Bad English will not vitiate a deed, when it does not Bad Lnciisii. 
 render the deed unintelligible {m). 
 
 Section II. 
 The several Parts of Deeds enumereded. 
 It is not necessary to the validity of a deed that it l)e pt.iii.t.i2, 
 
 Cii 1 3 2 
 
 framed in any particular mode whatever. The only thing — -- ' ' ■ 
 absolutely essential is, that words be used which are suffi- 
 cient to specify the agreement and bind the parties. But 
 there are certain formal and technical parts in all deeds 
 'prepared by professional draftsmen, because these have 
 been v.^ell considered and settled by the wisdom of suc- 
 cessive ages, as the forms best calculated to express the 
 meaning and accomplish the objects of the parties («). 
 
 These are : 1. The Date. 2. The Parties. 3. The Ee- 
 citals. 4. The Operative Part. 5. The Parcels. 6. The 
 Habendum. 7. The Declaration of Uses. 8. The Decla- 
 ration of Trusts. 9. The Pteddendum. 10. The Conditions. 
 11. The Provisoes, Declarations, or Special Stipulations 
 
 (0 4 Cruise T. 32, c. 1, § 19 ; Co. {m) The Queen v. The Inhabitants 
 
 Litt. 229 a. of Wooldale, 6 Ad. & E. 549. 
 
 (1-) 2 Sugd. Pow. 363. («) 2 BL Com. 398 ; Co. Litt. 7 a. 
 il) 4 Cruise T. 32, c. 20, § 5.
 
 630 THE SEVEEAL PAETS OE DEEDS ENUMERATED. 
 
 tt. HIT. 12, appropriate to tlie particular transaction. 12. The Cove- 
 
 nants. 13. The Testimonium or Conclusion (o). 14. The 
 
 Seals and Signatures. 15. The Attestation. IG. The Ee- 
 ceipt for the Consideration indorsed, if there is any pecu- 
 niary consideration. The last two are only parts of the 
 deed in a qualified sense, as regularly occurring in the case 
 of formal agreements under seal, but a deed is complete in 
 itself without them. And even when they occur, they are 
 not regarded as themselves under seal [p). 
 
 Some of the parts above mentioned always occur in all 
 formal deeds. Such are, 1. The Date. 2. The Parties. 3. 
 The Operative Part. 4. The Testimonium. 5. The Seals 
 and Signatures, ■ 6. The Attestation. 
 
 Eecitals are also usually required and inserted in inden- 
 tures. 
 
 The other parts are peculiar to certain deeds. 
 
 The date, the parties, the recitals, the operative part, and 
 the parcels are all included in the term " the premises," 
 as used in speaking of a deed {q). But this word, when 
 used in a deed, sometimes refers to the parcels or property 
 comprised in the deed, and at other times it is used in 
 reference to facts and transactions which occur in a former 
 part of the deed, as things praemissa or preceding (r). 
 
 Section III. 
 Of the Date. 
 
 In expressing the date of a deed, that is, the time of 
 the making thereof, it Avas the usual practice to mention 
 
 (o) 2 Bl. Com. 298—304. See (q) 2 Bl. Com. 298 ; Co. Litt. 6 
 
 Burton, § 513. a ; Burton. § 516 ; 1 Pres. Shep. T. 
 
 (p) See Sugd. Concise View, 537; 52, 74. 
 
 1 Jarra. & Byth. by Sweet, 90 ; 1 (r) 1 Pres. Shep. T. 74. 
 Pres. Shep. T. 55.
 
 OF THE DATE. G31 
 
 the year of the reim of the Sovereim as well as the year ^t "/t-is, 
 
 of our Lord, but the modern practice is only to mention 
 
 the year of om* Lord. 
 
 The date may be placed either at the beginning or at the 
 end. In deeds indented, it is now usually placed at the 
 beginning, and in deeds poll at the end (s). 
 
 A deed is good, though it mention no date, or thouo'h it '^^ '^'■'*^' f^" 
 
 o ^ o ' o wrong date. 
 
 have a false date, i.e., a date which is not the date of its 
 delivery, or an impossible date, as the 30th of February ; 
 provided the real day of its being dated or delivered can 
 be proved {{). In such a case, it will take effect from the 
 time of its delivery i^i). 
 
 The date mentioned in the deed is not conclusive, even Date not 
 
 conclusive. 
 
 against the parties, unless perhaps it be made so by inrol- 
 ment (x). But a deed is presumed to have been exe- 
 cuted at the date expressed in it, unless the contrary be 
 shown (y). 
 
 Section IV. 
 Of the Parties. 
 
 or passive. 
 
 With respect to the parties to a deed, they are either pt.iii.t.is 
 active or passive. Those who do the act which is to ac- 
 
 Parties are 
 
 complish the obiect of the deed are the active parties: either active 
 
 i- o i nr iiasaivfi. 
 
 those in whose favour the act is done are the passive 
 parties. The former are distinguished by the termination 
 or in their designations, the latter by the termination ec. 
 Thus, parties who grant, lease, or release, are the active 
 parties, and are called the grantors, lessors, and releasors ; 
 
 is) 4 Cruise T. 32, c. 20, § 2. Co. Litt. 46 b. 
 {t) 2 Bl. Com. 304. {x) Burton, § 525. 
 
 (») 2 Bl. Com. 304; 4 Cruise T. (y) Burton. § 449. 
 
 32, c. 20, § 4 ; 1 Pres. Shop. T. 55 ;
 
 the premises. 
 
 632 OF THE PARTIES. 
 
 pr.iii.T.i2 and tliose to whom lands are granted, leased, or released, 
 
 Cn. 1,8.4. & > > 
 
 arc tlie passive parties, and are called the grantees, lessees, 
 
 or releasees («). 
 Who must iw ^11 those M'ho have any estate, ridit, title, or interest 
 
 parties. -^ ' o ' ' 
 
 whatever, either at law or in equity, in that which is the 
 subject matter of a deed, must necessarily be parties to it, 
 if they are to be bound by it («). 
 plrscu need Evcu uudcr tlic old law, a person may take an estate in 
 as a pnrtyYn remainder by a deed to Avliich he is not a party, and Avhen 
 the person to whom the remainder is limited enters on the 
 land, he then becomes bound to perform the conditions 
 contained in the deed (h). A power of attorney may also 
 be given by indenture to a person who is not named as a 
 party (c). And, even under the old law, if no person is 
 named in the premises, one who is named for the first time 
 in the habendum may take an immediate estate ; but if 
 any other person was named in the premises as go^antee, no 
 new grantee could be added in the habendum in an inden- 
 ture, unless in correction of an evident clerical mistake, or 
 except by way of remainder or by way of use {d). 
 
 But by the stat. 7 & 8 Vict. c. 76, s. 11, it w^as enacted, 
 " that any person, not being a party to any deed, may take 
 an immediate benefit under it in the same manner as he 
 might under a deed poll." And although that statute was 
 repealed by the stat. 8 & 9 Vict. c. 106, yet by s. 5 of the 
 latter Act, it is enacted that " under an indenture, exe- 
 cuted after the first day of October, 1845, an immediate 
 estate or interest, in any tenements or hereditaments, and 
 the benefit of a condition or covenant respecting any tene- 
 ments or liereditaments, may be taken, although the taker 
 thereof be not named a party to the same indenture." 
 
 (z) See 4 Cruise T, 32, c. 20, § 7. {d) 9 Jarm. & Bytli. by Sweet, 87; 
 
 (rt) 4 Cruise T. 32, c. 2, § 3. 4 Cruise T. 32, c. 2, § 3 j and c. 20, 
 
 (6) 4 Cruise T. 32, c. 2, § 3 ; Co, § 67, 69, 71 ; Burton, § 442 ; 1 Pros. 
 
 Litt. 231 a'; Burton, § 442. Shep. T, 76. 
 (c) Burton, § 442, n.
 
 OF THE PARTIES. Goo 
 
 With respect to tlie arraiigenient of the parties, the pt. 111.T.12, 
 active parties should be named before the passive parties ; 
 
 J. J. / Arraiigcnicut 
 
 the legal owner before the equitable owner ; the freeholder °^^^l^^^ 
 before the termor ; those who have estates before those 
 who have mere rights ; the vendor after all the other active 
 parties ; the purchaser before the parties on his behalf. 
 For the sake of perspicuity, if the same persons are made 
 parties in different characters (e.fj. both as beneficial owners 
 and as trustees), they should be named as parties of as 
 many different parts as they sustain different characters ; 
 and the same rule is to be observed if any of the parties 
 are to take estates or to receive benefits under different 
 characters or in different modes (e). But the rule of law 
 does not require this or any other arrangement of the 
 parties (/). 
 
 The parties to a deed ought to be described by their Desoiptiou 
 
 ■■ _ of tlje 
 
 proper Christian and surnames, their rank, profession, and parties, 
 place of residence. But if the description, however imper- 
 fect, is sufficient to distinguish the person described from 
 all others, it will be good. Nihil facit error nominis cum 
 de corpore constat (g). And Avhere a party to a deed is 
 named by different Christian names in different parts of 
 the deed, parol evidence is admissible to show by whom 
 the deed w'as executed (Ii). 
 
 If several join in a deed, and some are able to make where some 
 
 " are cajiable 
 
 such a deed, and some are not able, the deed is deemed ^"1'/'"'°''^ 
 to be the deed of the former alone (?'). It there are two 
 grantees, and one of them only is capable, the person who 
 is capable will take the wliole exclusively, if they were to 
 be joint tenants, because joint tenants take per mie et per 
 tout ; but only an aliquot part, if they were to be tenants 
 
 (f) Martia's Conveyancer's Ee- Burton, § 529. 
 
 cital Book, 25; 9 Jarni. & Byth. by (h) The Queen v. The Inhabitants 
 
 Sweet, 204. 0/ Wooldak, 6 Ad. & E. 549. 
 
 (/) 2 Pres. ConTeyanciug, 419. (?) 1 Pres. Shep. T. 81—2; 4 
 
 (y) 4 Cruise T. 32, c. 20, § 10 ; Cruise T. 32, c. 20, § S.
 
 634 OF THE PARTIES. 
 
 pt. iii.t. 12, ill common, because tenants in common take per mie only. 
 
 C'li. 1, s. 4. ' . 
 
 But in a gift to persons, as a class, as tenants in common, 
 
 those wlio are capable will take the entirety {h). 
 ■\viiomaybe ^j} persons that may be grantors may be grantees. And 
 
 grantors or -•- Jo J n 
 
 grantees, gome wlio cannot grant or give, may yet take or receive (/). 
 A person born deaf and dumb is not thereby incapaci- 
 tated to execute a deed or will, if he has sufficient under- 
 standing to give evidence of his assent, either by his own 
 signs, or by signs with the assistance of an interpreter. 
 And he might have acknowledged a fine or suffered a 
 recovery {m). But persons who are born blind as well as 
 deaf and dumlj, as they liave always wanted the common 
 inlets of understanding, are incapable of contracting or 
 making a gift, lease, grant, or will {n). 
 
 If a gift or grant of goods is made to the churchwardens 
 or to the parishioners of Dale, by those words, it seems 
 this gift is good, and the churchwardens will take to the 
 use of the parish (o). But in general if a grant of land is 
 made to the churchwardens or to the parishioners or to the 
 inhabitants of Dale, or if a grant is made to tlie commoners 
 of such a waste, or to the lord and his tenants, these are 
 not good grants : for, although these persons are capable, 
 yet they are not capable by these names {p). 
 
 Actins by When a person has autliority as attorney to do any act, 
 
 attorney. . , . . , 
 
 as to enter into an agreement, he must do it in the name of 
 the person who gives the authority, and not in his own 
 name, or as his own act (cj). And if an attorney covenants 
 in his own name, for himself, his heirs, &c., it will be his 
 personal covenant, although he be desciibed in the instru- 
 ment as covenanting for and on the part of his principal (r). 
 
 (Z:) 1 Pres. Shep. T. 71, 81— 2, 237. {p) 1 Pres. Shop. T. 237; see 
 
 (0 2 Prca. Shep. T. 235. infra, Part IV. T. 1, c. 8. 
 
 {m) 3 Jarm. & Eytli. by Sweet, 22. {q) 1 Jariu. & Byth. by Sweet, 
 
 (h) 3 Jarm. & Byth. by Sweet, 428. 
 
 23 ; Co. Litt. 8 a. (r) 1 Jarm. & Byth. by Sweet, 
 
 (o) 2 Pres. Shep. T. 237. 428 ; 4 Id. 256—7.
 
 OF THE RECITALS. bdb 
 
 Section V. 
 Of the Recitals. 
 Eecitals are statements made in a deed, with the view of Pr.i[i.T.i2, 
 
 Ch. 1, s. 5. 
 
 sliowinff what are the interests of the parties, the characters 
 
 . Nature and 
 
 in whicli they are made ijarties, and the objects to be "sesof 
 
 •' ^ '' recitals. 
 
 effected. In the case of title deeds, recitals are also in- 
 serted for the purpose of rendering the deed a constituent 
 part of the evidences of ownership, by stating the facts on 
 which its own validity depends, and referring to preceding 
 deeds which afibrd information respecting the title, and 
 narrating all such circumstances as have taken place since 
 the execution of the last instrument, so as to furnish, on 
 the documents themselves, a continuous history and ex- 
 planation of the title (s). 
 
 The recitals of a deed are a key to its true construction, Effect of a 
 
 recital on the 
 
 where it is expressed in language that admits of doubt (t). construction. 
 And hence, where there is a particular recital in a deed, 
 and general words of release or conveyance are afterwards 
 inserted, the generality of the words will be qualified by 
 the recital («). 
 
 Eecitals are never evidence as against persons who are Not evidence 
 
 against 
 
 not parties to the deed (x). strangers. 
 
 Where a circumstance is recited as a fact which proves False recital, 
 to be false, though the intention of the parties may be 
 founded on the mistake, the conveyance stands good at 
 law {ij). But in some cases the mistake may be rectified 
 
 (s) See llartin's Conveyancer's 209. 
 Recital Book, Introduction, and (u) 4 Cruise T. 32, c. 19, § 15 ; 
 Appendix ; 9 Jarm. & Byth. by Burton, § 530 ; 9 Jarm. & Bytli. by- 
 Sweet, 215 ; i Cruise T. 32, c. 20, § Sweet, 817 ; Boijes v. JBluck, 13 Com, 
 22. Bench, R. 652 ; Rooke v. Lord Ken- 
 it) Bailey v. Lloyd, 5 Buss. 330 ; sington, 2 K. & J. 753, 768—771 ; 
 Mather t. Fraser, 2 K. & J. 536 ; Jenner v Jenner, L. B. 1 Eq. 361. 
 CIdlders v. Eardley, 28 Beav. 648 ; {x) 1 Jarm. fcBytli. by Sweet, 121. 
 Gicyn V. Neath Canal Co., L. E.. 3 Ex. (y) Burton, § 538.
 
 036 OF THE RECITALS AXD THE OPERATIVE PART. 
 
 PT.iir.T.ia, iu equity (s). A mis-recital of a former grant will not in- 
 — ' ' ' validate a deed ; neither will a mis-recital of the estate of 
 the grantor in the land, or of the date of the deed by which 
 he acquired the land, render the deed invalid («). An ex- 
 ception or qualification occurs, however, in the case of an 
 assignment of the parcels comprised in a recited lease, 
 where the lease is recited as bearing date " on " a certain 
 day (and not " on or about " a certain day), and the date is 
 mis-recited; for in such a case, although in equity the 
 mistake might be corrected, in certain cases at least, yet at 
 law there would be no valid assignment, because, there 
 being no such lease in existence, it would be an assign- 
 ment of that which did not exist (b). 
 
 A person cannot be required to execute a deed con- 
 taining incorrect recitals (c). 
 omissiou of A mortgagee cannot refuse to execute a deed of recon- 
 
 recitals. . . , . 
 
 veyance, on the ground that it contains no recitals, if all 
 persons interested in the property concur in it (r?). 
 
 Section VI. 
 Of the Operative Part. 
 
 ^CH^V/f'e^' After the recitals, if any, or after the commencement, if 
 there are no recitals, comes the witnessing or operative 
 part. It is called the witnessing part, because it begins, 
 in case there are no recitals, with the word " witnesseth," 
 or, if there are recitals, with the words, " Now this inden- 
 ture witnesseth," or, in the case of a deed poll, witli the 
 words, " Now know ye, and these presents witness," or 
 
 (z) Brooke y. Ilaymcs, L. R. GEq. (c) Hartley v. Burton, L. 1?. 3 CIi. 
 
 25. Ap. 365. 
 
 (ff) 4 Cruise T. 32, c. 20, § 23. {d) Hartley V. Burton, L. R. 3 Ch. 
 
 {b) See 2 Jarm. & Bytli. by Ap. 3G5. 
 Sweet, 288—9.
 
 OF THE PARCELS OR SUBJECT. 637 
 
 "ISTow tliese presents witness." It is also called tlie Priii.T.12, 
 
 ■■- _ Cn. 1, 3. 6. 
 
 Operative part, because it states what is clone or intended 
 
 to be done by the deed, and for what consideration, by 
 whom, and to or in favour of whom ; and, if the conside- 
 ration is a pecuniary one, the payment of it is mentioned 
 in this part. 
 
 Until of late years it was the practice to use operative 
 words of the past tense, as well as of the present : as " Hath 
 granted, and Doth grant." But the past tense is now 
 usually omitted. The practice of using it originated with 
 charters of feoffment, which, before the Statute of Frauds, 
 were a mere record of the livery by which the estate had 
 passed. Its adoption in other cases w^as generally inaccu- 
 rate as well as useless (e). 
 
 Section VII. 
 
 Of the Parcels or Suhj'ect. 
 
 I. The Parcels or Suhject gemrally. 
 
 The civil division of the kingdom was originally into ri.iii.T.ia, 
 counties, liundreds, and vills, tithings, or townships ; for -^^ 
 
 .. . ,..-, Territorial 
 
 parishes were divisions only in reference to ecclesiastical divisions, 
 affairs, of which the common law took no notice. But in 
 process of time parishes became divisions in reference to 
 civil matters (/), and it is now the constant practice to 
 describe property as situate in a certain parish and county. 
 
 Old general or vague descriptions, particularly those of 01a general 
 copyholds, will, in most cases, pass the lands which have dwcripuons. 
 regularly been held under them {g). 
 
 (c) Sec •iJarra.& Byth. by Sweet, {g) Sugd. Concise View, 231; 
 
 38 ; 9 Jarm. & Byth. by Sweet, 638; Waterpark v. Fennell, 7 H. L. Cas. 
 
 Watk. Conv. 3rd ed. by Prest. 169. 650, 680, 684. 
 
 (/) 4 CruiBe T. 32, c. 20, § 32.
 
 638 
 
 OF THE PAECELS OR SUBJECT. 
 
 Pt.IIT.T.12, 
 Cn. 1, s. 7. 
 
 Statiiic; the 
 quautity. 
 
 Property not 
 included 
 where it 
 would work 
 a forfeiture. 
 
 General 
 ivorils and 
 other clauses 
 applicable to 
 the subject 
 matter of 
 the deed. 
 
 Means to 
 attain or use 
 the thing 
 granted, and 
 fruits, inci- 
 dents, and 
 accessories. 
 
 Where land has been described in preceding deeds as of 
 a certain estimated qnantity, that estimated fjuantity should 
 be stated for the purpose of identifying the land -with tlie 
 land which is the subject of those deeds : but wiien the 
 estimated quantity and the actual quantity differ, the latter 
 should also be stated (Ji). 
 
 Where a deed would work a forfeiture of property, if it 
 were held to include that property under its general terms, 
 there the Court will not impute to the parties an intention 
 to pass such property (i). 
 
 In conveyances, after describing the thing conveyed, it is 
 usual to add the general words, as they are termed, that is, 
 an enumeration of the incidents, accessories, and appurte- 
 nances thereto. Formerly, at least, it was also the general 
 practice to add, " all the reversion and reversions, remain- 
 der and remainders," &c. But this clause is unnecessary, 
 and where there is no particular estate it is obviously in- 
 applicable ; and therefore by many practitioners it is always 
 omitted (Jc). After this clause, where inserted, or after the 
 general words, where the reversion clause is omitted, follow 
 the words " all the estate, right, title," &c., and sometimes 
 " all deeds, papers, and writings" (/). 
 
 When anything is granted, all the means to attain it, and 
 all its fruits and effects, incidents, and accessories are also 
 granted, and will pass inclusively, by force of the grant of 
 the thing itself, without the word appurtenances or any 
 similar words. Cuicunque aliquid conceditur, conceditur 
 etiam et id sine quo res ipsa non esse potuit (w;). Thus, by 
 a demise of land, a right of way appurtenant to it will pass 
 to the lessee, without being mentioned (it); and by the 
 
 (A) 6 Jarm. &; Bytli. by Sn'cet. {1} As to Avhich, see 9 Jarm. & 
 
 19. Byth. by Sweet, 88. 
 
 (i) Re Waky's Trusts, 3 Drewry, (m) 1 Pres. Shep. T. 89 ; 4 Cruise 
 
 165. T. 32, c. 20, § 30. 
 
 (k) 9 Jarm. & Byth. by Sweet, 73, (") Skull v. Glenista; 16 C. B. N. S 
 
 435. 81, 91.
 
 OF THE PARCELS OR SUBJECT. 639 
 
 grant of a piece of ground, is granted a way to it, i.e., all ^^:/yj-i'' 
 
 usual ways ; and if there is no usual way, then a way of 
 
 necessity will pass. By the grant of trees, is granted the 
 power to cut them down, and take them away, unless the 
 right of cutting is restrained, so as to preserve them for 
 ornament or for other purposes. By the grant of mines, is 
 granted the power to dig them ; and by the grant of fish in 
 a pond, is granted power to come upon the banks and fish 
 for them (o). By the grant of arablg land, the common 
 appendant thereunto will pass. And so by the grant of a 
 house, the estovers appendant thereto will pass (^9). And 
 it has been held, that a garden usually occupied with a 
 house will pass by a conveyance of the house " with the 
 appurtenances thereunto belonging," though in the condi- 
 tions of sale it was expressly excepted {q). That which is 
 parcel or of the essence of a thing, and is still belonging to 
 tlie same, passes by the grant of the thing itself, although 
 at the time of the grant it be actually severed from it (r). 
 Those things that are inseparably incident to others are not 
 grantable without the things to which they are so incident. 
 And therefore common appendant to land is not grantable 
 ^vit]lout the land itself ; and common of estovers appendant 
 to a house is not grantable without the house itself; nor is 
 common appurtenant which is measured by levancy and 
 couchancy or any other terms applicable to the farm. But 
 common appurtenant for a certain number of sheep, &c., is 
 severable (s). 
 
 A grant is void for uncertainty, if the subject matter of certainty in 
 it is neither certain in the first instance, nor can be ren- J^attcr. 
 
 (0) 1 Pres. Shep. T. 89. purtenances" only include incor- 
 
 {p) 1 Pres. Shep. T. 89. poreal hereditaments, such as rights 
 
 {q) Doe d. Norton v. Webster, 12 of way, &c., and not additional 
 
 Ad. & E, 442. But see Lister v. land. 
 
 Plcl-ford, 34 Beav. 5/6, where it (r) 1 Pres. Shep. T. 90. 
 
 was held that land cannot be ap- (s) 2 Pres. Shep. T. 240. 
 
 purtenant to land; and that "ap-
 
 C40 OF TIIP] TAECELS OE SUBJECT. 
 
 rT.iii.T. 1?, cTcred certain. Certainty in the first instance is not ncces- 
 
 Ch. 1, s. 7. '' 
 
 sary ; for the maxim is " Id ceiinm est, quod certum reddi 
 
 potest." Hence a grant of so many trees as may be rea- 
 sonably spared is void. But a grant of so many trees as A. 
 shall think fit is good ; for it may be rendered certain by 
 his determination {t). So if a grant is made of several 
 different things in the disjunctive, this grant may ho, made 
 certain and complete by the election of the grantee, or by 
 the act of the grantor in performing the grant {u). So if a 
 person having the reversion of four acres of land grant the 
 reversion of two acres, this is a good grant, to be rendered 
 certain and complete by election. But election must be 
 made in the lifetime of the grantor and of the grantee (a;). 
 
 Erroneous Where the words of original designation, or the first and 
 
 description. . . 
 
 principal words of description, are erroneous, the thing 
 wrongly designated will not pass {y). But where land is 
 generally but erroneously reputed to be in a particular 
 parish, and forms a part of a farm which is in that parish, 
 it will pass under a devise of all the testator's lands in that 
 parish {z). With respect to v.^ords of description super- 
 added to Avords of original designation, they may either be 
 words of qualification or words of demonstration (a). And 
 where the superadded words are completely incorporated 
 with the preceding words of original designation, so as 
 naturally and almost necessarily to form a restriction, they 
 are words of qualification, and, if erroneous, vitiate the 
 description and the grant itself But if there are any 
 parcels to satisfy the terms of restriction, they wiiriiave 
 effect in restraining the operation of the grant within the 
 extent of the terms of restriction. If the superadded words 
 
 (t) 2 Pres. Sliep. T. 250. {z) Aiistec v. Nelms, 1 Ilurlst. & 
 
 {u) 2 Pres. Sliep. T. 251. Norm. 235. 
 
 (a;) 2 Pres. Shep. T. 250. (a) Marti/r Laurence, 2 D. J. 
 
 (y) Burton, § 562 ; 4 Cruise T. & S. 2G1. 
 32, c. 20, § 59.
 
 OF THE PARCELS OR SUBJECT. 641 
 
 are nut so incorporated with the preceding words, but pt.iii.t.i2, 
 
 ^ ■"■ " , Cii. 1, s. T. 
 
 appear to constitute an additional, independent, particnhir 
 
 description of that which is witli sufficient certainty de- 
 scribed by the preceding words, they are words of demon- 
 stration, and, if erroneous, will be rejected (&). Thus, if a 
 person grants " all his lands which he had by the grant of 
 J. S. in D.," the grant will not pass any other lands in D. 
 than those which he had of the grant of J. S. But if a 
 person grants all his lands in D., which lands he had by 
 the grant of J. S., all his lands in D, will pass, though he 
 had them not by the grant of J. S. And so if he grants all 
 his lands in D. called N"., Avliich was the estate of J. S., 
 there the lands called K pass, though they never were the 
 estate of J. S. So if the grant is of " all that my 
 house in the occupation of J. S., in St. Andrew's parish," 
 whereas in truth it is in the parish of K., but in the 
 occupation of J. S., it seems this grant is good to pass the 
 house. But if it is of " all that my house in St. Andrew's 
 parish in Holborn, in the occupation of J. S.," and in truth 
 it is in another parish, but in his occupation, this grant is 
 not good to pass the house ; because the first term of the 
 description is false (c). The words which come after a 
 " videlicet " or " that is to say," can neither enlarge nor 
 restrain the preceding description, though they will explain 
 it, if ambiguous (d). 
 
 AVhere general Vv^ords are preceded by a specification or Effect of 
 
 ^ -L ./ i adding words 
 
 enumeration of particulars, the general words will not, of a general 
 
 i ' o > character. 
 
 without the help of other words, be construed to signify 
 anything of a higher order or more importance than what 
 is before expressed (e), but will be held to denote only 
 things ejusdem generis, upon the principal of the maxim, 
 
 (6) See 4 Cruise T. 32, c. 20, § Dodds, L. E. 2 Eq. 819. 
 56, CO— G2 ; Burton, § 560, 563, (c) 2 Pros. Sliep. T. 247—8. 
 
 564 ; 2 Pres. Sliep. T. 247 ; Evans v. {d) Eurton, § 565. 
 
 Angdl, 26 Bear. 202 ; Pedley v. (e) Burton, § 557—8.
 
 642 OF THE PARCELS OR SUBJECT. 
 
 pt.iii.t.12, noscitur a sociis. But where somethinoj is excepted which 
 cu. 1, B. r. o i 
 
 is not ejusclcm generis, it shows that the general words are 
 not to be understood in this restricted sense (/). 
 
 II. Particular Sicbjects of Pro])eriy, and the Viords by vjMcJi 
 they pass in a Deed. 
 
 Land. Land, in the legal signification of the term, compre- 
 
 hends the surface and substance of the earth under all cir- 
 cumstances, and everything permanently fixed or incident 
 to it, so as to include every kind of ground, soil, or earth 
 whatever; as meadows, pastures, woods, moors, waters, 
 marshes, furzes, heaths, and all castles, houses, and other 
 buildings thereon, and mines and fossils under it, and 
 articles fixed to the soil by the owner thereof (g). And it 
 comprises land in reversion or remainder, as well as land 
 
 Ail lands or in posscssiou (Ji). A grant of all a person's lands or goods 
 passes not only what he is sole seised or possessed of, but 
 also what he is jointly seised or possessed of, as far as 
 respects his share : for verba generaliter dicta generahter 
 interpretanda : qui omne dicit, nihil excipit. And so e 
 converso, if two persons join in a grant of all their lands or 
 all their goods, this wdll pass their several as well as their 
 joint property (i). 
 
 Farm. jjy the conveyance of a farm, a messuage or principal 
 
 dwelling house will pass, and all arable land, meadow, 
 pasture, wood, &c., thereto belonging or therewith occu- 
 pied (/>;). 
 
 Messuage or Tlic word mcssuagc is synonymous with dwellinf]: house ; 
 
 house, with a J J ^ & j 
 
 nauces™"^' ^^^^ ^ gTaut of a mcssuagc or house with the appurtenances 
 
 (/) Ivison V. Gassiot, 3 D. M. & K. & J. 536 ; and see supra, p. 2, 
 
 G. 958; Roohe v. Lord Kensington, n. (a). 
 
 2 K. & J. 753, 771—3 ; see infra, {h) Burton, § 551. 
 
 Pt. III. T. 15, c. 3, s. 2. (i) 1 Pres. Sliep. T. 90. 
 
 {(/) 4 Cruise T. 32, c. 20, § 42 ; {k) 4 Cruise T. 32, c. 20, § 41 ; 
 
 Burton, § 42; Mather v. Frascr, 2 Burton, § 545 ; 1 Pros. Slicp. T. 93.
 
 OF THE PARCELS OR SUBJECT. G-iS 
 
 will not only pass a house, l3ut all Luildiiiffs attaclied or Pr.iii.T.12 
 
 ... ch. 1, s r. 
 
 adjoining to it ; as also its curtilage, garden, and orchard, 
 
 together with the close in wdiicli the house is built, or 
 
 pleasure grounds adjoining and belonging to it. But if a 
 
 greater q^uantity of land has been usually occupied with 
 
 the house, it will not pass (/). 
 
 By the grant of a cottage, a small house with its cur- Cottage. 
 tilage passes. And the term may also comprise a gar- 
 den (m). 
 
 If a person grants his manor, and does not say in what Manor, 
 parishes it lies, this is a good grant of all the manor. But 
 if it lies in different parishes, and some are mentioned, 
 but others are omitted, no part of the manor lying in the 
 ])arislies not mentioned M'ill pass (??). — The word manor 
 has a very extensive signification ; for even without the 
 word appurtenances, it will pass, 1. All the demesnes, 
 that is, all the lands wdiereof the lord is seised wdthin the 
 manor ; and also the freehold of all the lands held by copy- 
 holders or other customary tenants, together with all the 
 wastes. But demesnes previously granted in fee do not 
 become a part of the manor again, on a repurchase of them 
 by the lord (as they would if they escheated to him) ; and 
 therefore they do pass by a devise of the manor prior to 
 such repurchase (0). 2. All the services ; such as fealty, 
 suit of court, rents, &c. 3. All courts baron, courts leet, 
 with the fines and perquisites annexed thereto ; and all 
 other franchises that are parcel of, or appendant to, the 
 manor at the time of the conveyance. 4. Advowsons 
 appendant Qj). — Lands held in fee simple of a manor are 
 not considered as parcel of the manor, although the rents 
 
 (l) 4 Cruise, T. 32, c. 20, § 40 ; Sliep. T. 99. 
 Burton, § 546 ; 1 Pres. Shep. T. 94; (o) Delacherols v. Delacherois, 11 
 
 Co. Litt. 56, b. ; lie Midland R>j. H. L. Cas. 62. 
 Co., 34 Beav. 525. {p) 4 Cruise T. 32, c. 20, § 34, 37 ; 
 
 (m) 1 Pres. Shep. T. 94. 1 Pres. Shep. T. 92. 
 
 (n) 2 Pres. Shep. T. 248 ; 1 Pres. 
 
 VOL. IT., E
 
 644 OF THE PARCELS OR SUBJECT. 
 
 pt.iii.t.12, and services issuing? out of such lands are parcel of the 
 
 Cn. 1, s. 7. 
 
 manor (q). — Although many manors have been destroyed 
 
 yet they still continue to be called manors, though in fact 
 they are only reputed manors ; and a reputed manor will 
 pass in a deed hj the word manor (r), 
 
 Kectory. By tlic grant of a rectory, will pass the house, the glebe, 
 
 the tithes and offerings belonging to it. And by the grant 
 
 Vicarage. of a vicarago, will pass as much as l)elongs to it ; as the 
 vicarage house, &c (s). 
 
 Toft. A toft is the site of a house which has been pulled 
 
 down (t). 
 
 Profits. A grant of the profits of land carries the land itself (j^). 
 
 Trees, grass, Trccs, grass, and corn, growing upon the ground, fruit 
 
 corn, fruit, 
 
 wool. upon the trees, and wool upon the sheep's back, may be 
 
 granted as distinct interests from the things on which they 
 grow (.!'). But a lessor for life oi' years cannot, as against 
 his lessee for life or years, give or grant the trees growing 
 on the ground comprised in the lease, without the licence 
 of his lessee, unless they are first cut down by the lessee 
 or some other person, or unless they are excepted out of 
 the lease (jf). 
 
 Mines. Miucs, if actually opened, are corporeal hereditaments, 
 
 and may be made the subjects of conveyance by livery. 
 And an interest in mines unopened may exist indepen- 
 dently of any estate in tlie surfoce of the land (z). But 
 the land itself will pass by the name of a " mine," in a 
 conveyance adequate for that purpose (a). 
 
 By a grant of water, the land Avhich is covered by the 
 water will not pass, but only the right of fishing in that 
 water. A piece of water should be granted by tlie name 
 
 Cq) 4 Cruise T. 32, c. 20, § 35. Shep. T. 241 ; Burton, § 11G2. 
 
 (r) 4 Cruise T. 32, c. 20, § 38. (y) 2 Pres. Shop. T. 244. 
 
 (s) 1 Pres. Sliep. T. 94. (z) Burton, § 11G4 ; 1 Pres. Shep. 
 
 (t) Burton, § 54G. T, 90, 9(5. 
 
 («) Burton, § 547 ; Co. Litt. 4 b. («) Burton, § 548. 
 
 (*•) 1 Pros. Shep. T. 95j 2 Pres. 
 
 Water.
 
 OF THE PARCELS OK SUBJECT. C45 
 
 of SO many acres of land covered with water. But tlie word pt.iii.t.is, 
 
 •^ Cn. 1, s. 7. 
 
 staguum or pool will pass both the water and the land (h). 
 
 A reversion may be granted by the name of a remainder ; Remainders 
 
 . andrever- 
 
 or a remamder by the name of a reversion (c). By the sions. 
 grant of an acre of land, or of any other thing by the name 
 whereby it is called, the reversion thereof will pass, if the 
 grantor have no more than a reversion (d). 
 
 The word share, even in a deed, may embrace accruing share. 
 as v/ell as original shares (c). 
 
 A grant of common for all beasts is not a grant of Commons. 
 common for goats, pigs, and such other beasts and cattle as 
 are not commonable. But it is otherwise if the grant is of 
 common for all manner of beasts (/). 
 
 The word " warren," does not pass an estate to the soil, warren, 
 unless the context of the instrument shows that to be the 
 intention (r/). 
 
 A conveyance of the estate itself in respect of which an Allotments, 
 allotment is subsequently awarded includes the right to the 
 allotment (h). 
 
 Under a mortgage or sale of a factory or mill, with " the JMachmery. 
 steam engines, &c., and all other the machinery, fixtures, 
 and effects, fixed up in, or attached, or belonging " thereto, 
 it has been held that the mortgagee or purchaser only 
 took such machinery as essentially belonged to it, and 
 necessarily formed a part of it, Mdiatever might be the 
 purpose to which the mill might be applied, and not 
 machinery merely fitted up in it, such as looms, the legs 
 
 (h) 4 Cruise T. 32, c. 20, § 49 ; 2 4 Ch. Ap. 5S2. 
 
 VA. Com. 18, 19 ; Burton, § 550 ; (h) 1 Jarra. & Bytli. by Sweet, 
 
 Co. Litt. 4. b. 79, SO. 
 
 (c) 2 Pres. Sliep. T. 249. As to the force and meaning of 
 
 (d) 2 Pres. Sliep. T. 245. many other terms besides those 
 
 (e) JDoe d. Clift v. JBirUiead, 4 noticed in this work, which are 
 Exch. 110. used to describe parcels, especially 
 
 {/) 1 Pres. Shep. T. 96. in old deeds, sec Co. Litt. 4 b— G a ; 
 
 (f/) Earl JBeauchamp v. Winn, L. E. 1 Pres. Shop. T. 93—97. 
 
 £2L
 
 646 OF THE ?ARCP]LS OR SUBJECT. 
 
 pt.iii,t.i2, of wliicli were let into loom foots sunk into tlie pavement 
 
 Cii. 1, s. 7. 
 
 ^yitllout fastening (i). 
 
 III. Exceptions. 
 
 Of course an exception cannot be of the whole thing 
 granted, nor of a part of a thing ^^']lich is not granted. 
 And if it is of part of a thing granted, or of a thing 
 connected with a thing granted, it must be of such a part 
 or thing as is severable from the thing granted, and not 
 an inseparable interest or incident. It must also be of a 
 thing of that nature that it may be held by itself, and 
 that he who excepts may retain it {j). Hence, if a manor 
 is granted excepting the court baron, or if land is granted 
 excepting the common appendant thereto, these exceptions 
 are void : for no lord except the lord of the manor can 
 hold the court ; and no one except the owner of the land 
 can have right to this sjiecies of common (Z:). 
 
 An exception must not be such as is repugnant to the 
 grant. Hence, it must not be such as would utterly subvert 
 the grant, by taking away all the benefits of it : as if a 
 manor or land were granted, excepting the profits thereof. 
 Nor, upon the same principle, may it be such as would be 
 an exception of that which is in terms specifically granted. 
 But, subject to these qualifications, it may be of one thing 
 out of anotlier thing granted, or of a particular thing out 
 of a class of things or aggregate granted (/). Thus, if a 
 person grants all his horses except his white horse, this is 
 good exception of tlie white horse, if he has three horses 
 and one of them is white ; but if he has only two horses, this 
 exception is repugnant to the terms of the grant, and void. 
 So, if a person grants his house, chambers, and shops, 
 
 (/) IlutcJdnsoii V. K(i>/, 23 Beav. (I) 1 Pres. Shep. T. 70 ; 4 Cruitie 
 
 413. T. 32, c. 20, § 36. 
 
 (i) 4 Cruise T. 32, c. 20, § 06 ; 1 (?) See 1 Pres. Shep. T. 78, 79. 
 
 Pros. Shep. T. 78, 79.
 
 OF THE rARCELS OK RUBJECT. 
 
 647 
 
 excepting liis shops, tliis is a void exception. So if twenty ^^^"/- ^-l^' 
 houses or twenty manors are gTanted, excepting one of 
 them, this exception is repugnant to the grant, since the 
 exception negatives the right to one of those things wliich 
 are specifically comprehended in the grant (;/;). 
 
 An exception may he made out of an exception, or a 
 saving out of a saving {n). 
 
 Section VIIL 
 0/ the Habendum. 
 
 The office of the habendum is to point out what estate Pt- 111.T.12, 
 
 ^ Ch. 1, s. 8. 
 
 or interest is granted. But this is frequently and now ■ 
 
 ^ 1 J Use of the 
 
 usually done in the premises as well as in the liaben- iiabeadum. 
 dum ((?). And where the estate or interest is pointed out 
 in the premises, the habendum is not essential, and in the 
 majority of deeds is useless (j>) ; and in a surrender or a 
 release of right, it is inappropriate {q). 
 
 As it is a rule that where two parts of a deed are where the 
 
 habendum is 
 
 al3Solutelv repugnant and irreconcilable, the latter shall be i'epug"ant 
 
 ■■- " ' aud void. 
 
 rejected ; so where the habendum is repugnant to and 
 irreconcilable with the premises, and the estate limited in 
 the premises is capable of taking effect, the habendum 
 is void, and the grantee will take the estate given in the 
 premises ; unless the estate limited by the habendum is 
 larger than the estate given in tlie premises, in which 
 case the habendum wdll prevail ; because, according to 
 
 (m) 1 Pres. Shep. T. 78, 79. {p) 9 Jarm. & Bytli. by Sweet 
 
 {n) 1 Pres. Shep. T. 78, n. (68). 460 ; Burton, § 515. 
 (o) 2 Bl. Com, 298 ; 1 Pres. Shep. (q) 2 Janii. & Byth. by Sweet, 
 
 T. 74. 170.
 
 64§ OF THE HABENDUxAL 
 
 PT.iir.T.i2, another rule of law, a deed is to l)e construed most 
 
 Ch. 1, 3. 8. _ ' 
 
 strongly against tlio grantor (?■). 
 
 iHbendum Where the habendum is not irreconcilable with the 
 
 explains the • ii- iij?i- ii i^ 
 
 premises. prcmiscs, Dut IS Capable oi benig regarded as explanatory 
 of the premises, it will be so construed (s). 
 
 Illustrations. Xo illustrate these rules, if land is given in the premises 
 to A. and his heirs, habendum to A. for life or years, 
 the habendum is utterly repugnant and void. But if land 
 is given in the premises to A. for life, habendum to him 
 and his heirs, he will take the greater estate given by the 
 habendum, i.e., an estate in fee (t). Again, if lands are 
 given in the premises to A. and his heirs, habendum to him 
 and the heirs of his body, he will only take an estate tail ; 
 because the habendum is considered to explain the kind of 
 heirs meant in the premises (it). And so where a tenant 
 in fee conveyed lands to H. her heirs and assigns, to hold 
 to H, and her assigns for the life of G-., the habendum, so 
 far as regarded the words " for the life of G.," explained the 
 premises, so as to make the persons designated by the 
 word '' heirs " take as special occupants, and not as heirs 
 by descent ; but so far as regarded the words " to 11. and 
 her assigns," the habendum was rejected : because those 
 words were contrary to the premises, as they would make 
 the estate on the death of H. in G.'s lifetime personal 
 assets by virtue of the statutes 29 Car. 2, c. 3, s. 12, and 
 1-i Geo. 2, c. 20, s. 9 (,>■). 
 
 The habendum will bo regarded as explanatory of the 
 premises, instead of inconsistent therewith, where the pre- 
 
 (r) See 4 Cruise T. 32, c. 20, § 9 Jarm. & Bytli. by Sweet, 84. 
 
 75—77, 84} 9 Jarm. & Bytli. by {>,) 4 Cruise T. 32, c. 20, § 81 ; 4 
 
 Sweet, 86 ; 1 Pres. Shep. T. 113 ; Cruise T. 32, c, 21, § 16 ; 9 Jarm. & 
 
 Co. Litt. 299 a. Bylh. by Sweet, 84 ; 1 Trcs. Shep. 
 
 (.s) See 4 Cruise T. 32, c. 20, § T. 113; Co. Litt. 21 a., n. (2). 
 
 79— 84 ; 9 Jarm. & By tb. by Sweet, (x) See 1 Pres. Shep. T. 113; 
 
 86. Doe d. Timmis v. Steele, 4 Ad. & E. 
 
 {t) 4 Cruise T. 32, c. 20, § 76, 84; (N. S.) 663 j and supra, 536-7.
 
 0T7 THE nAr>ENDu.\r. C40 
 
 mises do not at all express tliu qiiaiitity or kind of interest, Pt.iii.t.iz, 
 
 Itut tlie liabenduni expresses tlie quantity or kind of in- 
 
 terest, and denotes a different quantity or kind of interest 
 from tliat which by construction of hiw, in the absence of 
 any controlling clause, the grant in the premises would 
 give. Thus, where a grant is made to a person in the pre- 
 mises, Avithout any words indicative of tlie quantity of 
 interest he is to take, but an express estate for years is 
 limited in tlie habendum, the habendum will be held to 
 explain the premises, so that he will take an estate for 
 years, instead of an estate for life, which would have 
 parssed by construction of law, l)ut for the habendum (y). 
 And where a lease is made to t^'o, habendum to the one 
 for life, remainder to the other for life, they take accord- 
 ing to the habendum (z). And so where a lease is made to 
 two persons, habendum the one moiety to the one, and the 
 other moiety to tlie other, the habendum makes them 
 tenants in common ; whereas by construction of law they 
 would otherwise have taken as joint tenants by the pre- 
 mises (rt). 
 
 Where the premises and the habendum limit estates of wiieie 
 
 premises .and 
 
 different kinds, and they are capable of distinct and several habendum 
 
 " ^ liave a 
 
 operation, and appear to have been intended so to operate, opgi-auou as 
 they will be construed accordingly. Thus, if lands are ilmita'tion'of 
 given in the premises to a person and the heirs of his ^^^^^' 
 body, habendum to him and his heirs, if there are circum- 
 stances showing such an intention, he will take an estate 
 tail, with a remainder in fee (b). 
 
 Although the habendum will fail to qualify the pre- where the 
 
 . . . use declared 
 
 mises, where it cannot be regarded as explaininof them, yet isuotcom- 
 
 *-' J. o ' J mcnsurato 
 
 the estate limited in the premises may be cut down by the estM^c'ln the 
 
 premises. 
 
 (y) Co. Litt. 183 a. ; 4 Cruise T. 32, c. 20, § 83. 
 
 82, c. 20, § 80. {h) Co. Litt. 21 a ; 4 Cruise T. 32j 
 
 (2) Co. Litt. 183 b. c. 20, § 85—87. 
 (a) Co. Litt. 183 b, ; 4 Cruise Ti
 
 6B0 
 
 OF THE HABENDURl. 
 
 Pt.III.T.1?. 
 Ch. 1, 8.8. 
 
 New subject 
 or exception 
 in the 
 habendum. 
 
 Two or more 
 grants and 
 one haben- 
 dum, or one 
 grant and 
 two or more 
 habenduins. 
 
 fact that tlie use declared is not co-extensive with the 
 estate given in the premises, but is only commensurate 
 with the estate limited in the habendum. Thus, if land 
 were given to A. and his heirs, habendum to A, for life, to 
 the use of A. for life, A. would take no larger estate than 
 an estate for life, and the ulterior use would result to the 
 grantor (r). 
 
 A new subject matter cannot be added in the habendum. 
 But an exception may be contained in the habendum (d). 
 
 Sometimes there are two or more grants and only one 
 habendum. This form, though sufticient in point of law, is 
 an incorrect mode of preparing a deed. In other instances 
 there is one clause of grant with several habendums. This 
 form is perfectly correct and even requisite, when it is 
 necessary or convenient to introduce real and personal 
 property, or property held for different estates, in one and 
 the same clause of grant ; as in the case of property in 
 the West India Islands, or of freehold and leasehold lands 
 intermixed (c). 
 
 Pt. III.T.12, 
 Ch. 1, s. 9. 
 
 Sectfon IX. 
 Of the Reservation (/). 
 
 A reservation is a clause in a deed, whereby the grantor 
 or lessor, in respect of the grant or lease, reserves to hini- 
 
 Definition of -"- ^ ' 
 
 a reservation, self, or in souie cascs to the lord of the fee, and not to a 
 stranger, some money, chattel, or service, and not any part 
 of the thing granted or leased or of the estate created, nor 
 a privilege annexed to the property (^). 
 
 (r) 9 Jam. & Byth. by Sweet, 85. 
 (d) 9 Jarm. & Byth. by Sweet, 87; 
 4 Cruise T. 32, c. 20, § 73. 
 (c) 1 Prcs. Shcp. T. 74. See 9 
 
 Jarm. & Byth. by Sweet, 130. 
 
 (/) See Part I. Tit. 2, c. 2, s. 2, 
 on lients. 
 
 ((/) See Co. liitti 47 a ; 1 Pres.
 
 OF THE RESEllVATIOl?. 651 
 
 If a person conveys to another, on condition that he shall ^qJ^^-'^'I^' 
 render to a strano-er a yearly rent ; and if he fail of pay- t~; 
 
 o J ^ ' -■■ -^ Aa to reserv- 
 
 ment thereof, that then it shall be lawful for the grantor to s'traugw.*" * 
 enter, this is a good condition for payment of an anmial 
 sum in gross, hut it is void as a reservation of a rent (Ji). 
 
 That wliich is reserved as rent must be certain, or at Subjectof 
 
 ' reservation. 
 
 least reducible to a certainty by either party (?'). 
 
 If a person grants land, yielding for rent, money, corn, 
 a horse, spurs, or a rose, this is a good reservation ; but if 
 the reservation were of the grass or of the vesture of the 
 land, or of a common, or of other profit or benefit to be 
 taken or enjoyed from or upon the land, such a reseiTation, 
 considered as a rent, would be void (k). Eent, lieriot, suit 
 of court, and suit of mill, if purported to be reserved, are 
 strictly reservations ; but the liberty of hawking, hunting, 
 fishing, and fowding, is not legally a reservation or excep- 
 tion, but a privilege granted to the lessor, though words of 
 reservation and exception are used. Trees, mines, and 
 quarries, purported to be excepted and reseiTed, are excep- 
 tions, not reservations ; for an exception is of a part of the 
 thing granted (/). A man cannot grant an estate, and 
 reserve a part of the estate ; or make a feoffment in fee, 
 and reserve a lease for life {/n). A reservation is commonly 
 said to be a reserving of a new thing issuing out of the 
 property (it) ; but tlie aliove examples show that it need 
 not strictly be either a new thing or a thing issuing out of 
 the property. These expressions only mean that it must 
 not be a part of the property, like an exception, nor a 
 privilege annexed to the property, like a right of sporting. 
 
 Shop. T. 80 ; 4 Cruise T. 32, c. 24, (k) 1 Pres. Shep. T. 80 ; 3 Cruise 
 
 § 1; 2 Bl. Com. 299 ; Gilbertson v. T. 28, c. 1, § 3 ; Co. Litt. 142 a. 
 
 Richards, 4 Hurl. & Norm. 277 ; 5 (t) Doe d. Dour/las v. Loci; 2 Ad. 
 
 Hurl. & Norm. 453. &E. 705. 
 
 (70 Litt. s. 345-6 ; Co. Litt. (m) 1 Pres. Shep. T. 79. 
 
 313 a. (j() 1 Pros. Shep. T. 80 ; 4 Cruise 
 
 (/) 3 Cruise T. 2S, c. 1, § 3. T. 32, c. 24, § 1 ; 2 Bl. Com. 299.
 
 652 OF TIIK llESEliVATlON. 
 
 tt. iii.t.12, a person may reserve one rent for one year, and another 
 rent for anotlier year : as lOs. for one year, and 2O5. for 
 
 Modes (if "^ . 
 
 rcn7^'"° another year ; or a rent to be paid at the end of every 
 second or third year, and no rent for the other years ; or 
 one kind of rent for one year, and another kind of rent for 
 anotlier year (0). And there may be several reservations 
 of several rents in the same conveyance. But where there 
 is one reservation of rent in gross at first, though it be 
 afterwards divided and severed into different parts, yet it 
 will be one entire rent (2?). Thus, if a person grants the 
 manors of A., B., and C, rendering £3, viz. for A. 20.9., for 
 B. 20.5., and for C. 20s., this is a good reservation ; but in 
 this case the rent is entire, for the word " videlicet " cannot 
 divide one rent into several {q). 
 
 If a conveyance or lease is made rendering rent to the 
 heirs of the grantor or lessor, tliis reservation is A^oid, be- 
 cause the rent is not reserved to himself first; for this 
 mode of reservation would make the heirs purchasers, and 
 the right to the rent would be distinct from the rever- 
 sion {)'). 
 
 Except in the case of leases imder statutes, it is generally 
 most advisable, especially when leases are made by virtue 
 of powers, not to specify to whom the reservation is made; 
 for then the rent will be annexed to the reversion, and 
 belong to the person for the time being entitled to the 
 reversion (s), even where there is no mention of the term 
 for which the rent is to be paid {t). A reservation is 
 always taken most in favour of the grantee or lessee, 
 and against the grantor or lessor. And therefore, if the 
 reservation is only to the grantor or lessor, or to him 
 
 (0) 1 Pres. Shep. T. 81 ; 8 Cruise 213 b. 
 T. 28, c. 1, § 3. (s) 1 Pres. Bliep. T. 80, 115 ; 
 
 ip) 3 Cruise T, 27, c. 1, § 28, 30. Watk. Conv. 3rd. ed. by Preston, 
 
 ((7) 1 Pres. Shep. T. 81. 156-7, 177 ; Co. Litt. 47 a. 
 (>•) 1 Pres. Shep. T. 80 ; Co. Litt. (<) 1 Pres. Shep. T. 115.
 
 OF THE EESEllVATION. 653 
 
 and his assigns, without naming his heirs, executors, or rT.Tii.T.12, 
 
 " ^ Ch. 1, s. 9. 
 
 administrators, this reservation will continue only for his 
 
 lifetime (;/). It is said that if a lease is made of a term of 
 years, reserving rent to the lessor and liis heirs, it will 
 determine by the death of the lessor ; for the heir cannot 
 have it, as he cannot succeed to the estate, it being only a 
 chattel ; and the executor cannot have it, there being no 
 words to carry it to him (.r). On the other hand, it is 
 said that if a grantor or lessor seised in fee reserves rent 
 to himself, his executors or assigns, the rent shall continue 
 only for his life ; because it cannot be taken by the execu- 
 tors, though named, as they are not privies in estate ; and 
 it cannot be claimed by the heir, inasmuch as he is not 
 named, while the grantor or lessor himself and his executors 
 are named (ij). But where a rent was reserved to the 
 lessor, his executors, administrators, and assigns, yearly, 
 during the term, it was resolved that it should go to the 
 heir of the lessor {z). Where, however, no reversion is left 
 in the lessor, and the rent is reserved to his executors, 
 administrators, and assigns, it will go to them and not to 
 the heir {a). 
 
 Section X. 
 Of the Covenants, (h). 
 
 A covenant is a clause in a deed whereby a person pt.iii.t.i2, 
 
 Ch. 1, 8. 10. 
 engages, in terms or in effect, that a certain thing is 
 
 Definition. 
 
 (it) Co. Litt. 47 a ; 1 Trcs. Sliep. (5) See infra, Part III. T. ]-2, 
 
 T. 144 ; 3 Cruise T. 28, c. 1, § 38. c. 5, s. 1, as to covenants in pur- 
 
 (x) 3 Cruise T. 28, c. 1, § 38. cliase deeds. And as to relief for 
 
 ((/) Co. Litt. 47 a ; 1 Pros. Sliep. breacli of covenants or conditions 
 
 T. 81, 115 ; 3 Cruise T. 28, c. 1, to insure, and as to benefit of in- 
 
 § 38. formal insurances, sec stat. 22 & 23 
 
 (2) 3 Cruise T. 28, c. 1, § 39. Vict. c. 35, s. 4-9. 
 
 («) 3 Cruise T. 28, c. 1, § 40.
 
 C54 OF THE COVENANTS. 
 
 pt. III.T.12, true, or lias or lias not Ijeeii done, or shall or shall not 
 
 C'H. 1, s. 10. ' ' 
 
 be done («). 
 
 I. Covenants generally. 
 A covenant X coveiiaiit caii oiilv Ije created Ijy deed, Lut it may be 
 
 can only he j j ' j 
 
 de^r**''^ either l)y deed poll or by indenture (r/). 
 
 Covenants by Ijy the old law, a pei'soii not named as a party could not 
 
 strangers. ]jq ,^ covenaiitec uiidei' ail indenture. But he might 
 covenant with a party to the indenture. And he might 
 be a covenantee in a deed poll (c). And now by the stat. 
 8 & 9 Vict. c. 106, s. 5, " under an indenture executed 
 after the 1st Oct. 1845, the l)eiiefitof a covenant respecting 
 any tenements or hereditaments, may be taken, although 
 the taker thereof be not named as a party to the same 
 indenture." 
 
 wvenants. Generally, where a condition, as regards the matter of 
 
 it, is good or bad, a covenant comprehending the same 
 matter is good or bad also (/). A covenant not to carry 
 on a particular trade within the cities of London and 
 Westminster, or within 600 miles from the same, is good, 
 so far as it relates to London and Westminster, Init xoif\ as 
 to the rest, as unreasonably restrictive (g). 
 
 Performance. Wlieii 110 time is limited for the performance of u cove- 
 nant, it must 1)0 done within a reasonable time {h). 
 
 Where a Where lands are conveyed by indenture to two persons, 
 
 becomes j^j-^j ouc of tlieiii docs iiot scal tlic deed, yet if he enters 
 
 liable to ' -^ 
 
 withoutbeing ^-^pou the hiud aiul accepts the deed in other respects, he 
 wuhouV will be liouiid by the covenants contained in it. And 
 where an estate is limited to a person for life, with a 
 remainder to anotlier who is not a party to the deed, if the 
 
 (c) See 2 Bl. Com. 304 ; 1 Pres. eel. 596; Chesterfield d:c. Colliery Co. 
 Shep. T. 160, 162, and remcarks \. Ilau-kins, 3 Hurl. & Colt, 677. 
 infra. (/) 1 Pres. Shep. T. 163, 164. 
 
 (d) i Cruise T. 32, c. 25, § 3 ; (g) Green v. Price, 13 M. & W. 
 Burton, § 1089. 695. Sec supra, p. 97. 
 
 (c) Shelford's Ileal Prop. Acts, 6tli (h) 4 Cruise T. 32, c. 25, § 12. 
 
 executiug.
 
 OF THE COVENANTS. 655 
 
 remainderman enters, he Avill bo bound by the covenants ^^J^^-^-^^^^ 
 contained in the deed (i). 
 
 II. Express and Implied Covenants. 
 
 Covenants are either express or implied. 
 
 No particular words are necessary to constitute an what words 
 
 create an ex- 
 
 express covenant. A recital may amount to a covenant, press cove- 
 And cases have arisen where the words " upon condition," 
 " shall," " it is agreed," &c., have been held to import a 
 covenant (/.■). Where words occurring at the beginning of 
 a sentence are conditional, and have the effect of a con- 
 dition, they will not be construed to make a covenant. 
 And yet if words of condition and words of covenant are 
 coupled together in the same sentence (as " provided 
 always, and it is covenanted," or the like), in such cases 
 the words may be construed to make both a covenant and 
 a condition (/). 
 
 With respect to implied covenants, there are some words what words 
 
 •^ ^ create an im- 
 
 which, when used in V)articular contracts, will create a piiedcove- 
 covenant. Thus, by the old law, the word grant or demise, 
 in a lease for years, creates a covenant in law for quiet 
 enjoyment of the lands demised during the term (m). 
 But by the stat. 7 & 8 Vict. c. 7G, s. G, it was enacted, 
 that the word " grant " should not create any warranty or 
 right of re-entry or covenant by implication, except by 
 Act of Parhament. And though this Act was repealed 
 by the stat. 8 & 9 A^ict. c. lOG, yet by section 4 of that 
 statute, the word " give " or the word " grant " in a deed 
 
 (i) 4 Cruise T. 32, c. 25, § 4 ; Co. J. 572 ; Lay v. Mottram, 19 0. B. 
 
 Litt. 231 a. (N. S.) 479. 
 
 (A:) 4 Cruise T. 32, c. 25, § 5-9 ; (?) 1 Pres. Sliep. T. 163 ; 4 Cruise 
 
 Wood V. Copi-)er Miners' Co., 7 Com. T. 32, c. 24, § 6. 
 B. 906 ; 14 Com. B. 428 ; Farrall (m) 4 Cruise T. 32, c. 25, 13 ; 
 
 T. Hilditch, 5 C. B. (N. S.), 840 ; Burton, § 846, 891. 
 Money^penny v. Moneypenny, 3 D. &
 
 G5G 
 
 OF THE COVENANT!^. 
 
 Pt. 
 Ch 
 
 .III.T.12, executed after tlie 1st October, 1845, shall not imply any 
 
 a. 1, s. 10. i J J 
 
 covenant in law, in respect of any tenements or here- 
 ditaments, except so far as the word " give " or " grant " 
 may, by force of any Act of Parliament, imply a covenant. 
 By the stat. 6 Anne, c. 35, ss. 30 and 34, and the stat. 
 8 Geo. 2, c. 6, s. 35, the words "grant, bargain, and sell," 
 in bargains and sales of hereditaments in the East and 
 North Pddings of Yorkshire, inroUed according to those 
 Acts, have the effect of the usual covenants for title 
 in favour of a purchaser («). And if a lease for years 
 is made, reserving or yielding and paying a certain rent, 
 these words will create a covenant for payment of the 
 rent (o). 
 
 A person who agrees to let agrees to grant a valid lease ; 
 and therefore imj^liedly promises that he has a good title 
 to let (jj). 
 
 An express covenant will qualify the generality of an 
 implied covenant, so that it shall not extend further than 
 the express covenant (q). 
 
 Implied 
 covenants 
 qualified by 
 express 
 cuveuiiiits. 
 
 III. General and Specific Covenants. 
 
 Covenants are again divided into general and specific. 
 A covenant to settle lands of a certain value is a general 
 covenant, which does not bind any particular lands of the 
 covenantor, and the covenantee will be deemed a specialty 
 creditor only. But a covenant to settle particular lands is 
 a specific covenant and a lien on those lands (?•). 
 
 in) Burton, § 593 ; 4 Cruise T. 32, 
 c. 25, § 63. 
 
 (o) 4 Cruise T. 32, c. 25, § 13. 
 
 (p) Stranls t. St. Juhn, L. E., 
 2 C. P. 37G. 
 
 (q) 4 Cruise T. 32, c, 25, § 15. 
 
 (r) 4 Cruise T. 32, c. 25, § 42 ; 
 Story's Eq. Jur. § 1249 ; Sugd. Con- 
 cise View, 5G3. See supra, 371.
 
 OF THE COVENANTS. 657 
 
 IV. Inherent and Collateral Covenants. 
 Ao'ain, covenants are divided into inherent, ^vllicll fire pt.iii.t.i2, 
 
 '^ ' Ch. 1, s. 10. 
 
 those that immediately relate to the property: and col- 
 
 lateral, which are those that immediately relate to some 
 collateral thing (s). 
 
 V. Joint and Severed Covenants. 
 
 Again, covenants may be joint or several, or both joint 
 and several. For, where several persons enter into a cove- 
 nant, they may bind themselves jointly, or they may bind 
 each of themselves severally, or they may bind themselves 
 jointly and severally (t). 
 
 If two lessees covenant jointly and severally at the 
 beginning of the covenants, these words will extend to all 
 their subsequent covenants, notwithstanding the interven- 
 tion of covenants on the part of the lessor (u). 
 
 By express words clearly indicative of the intention, a 
 covenant may be joint, or joint and several, hj or with the 
 covenantors or covenantees, notwithstanding that the inte- 
 rests are several. So they may be several, although the 
 interests are joint. But the implication of law, when the 
 words are ambiguous or are left to the interpretation of 
 law, is, that the words have an import corresponding to 
 the interest of the parties, so as to be joint when the 
 interest is joint, and several when the interest is several, 
 notwithstanding language which under different circum- 
 stances would give to the covenant a different effect (a). 
 Thus, where a j)erson covenants with two or more and with 
 each of them, if each of the covenantees takes a several 
 
 (s) 1 Pres. Shep. T. 161. (x) 1 Pres. Shep. T. 166 ; Sorslie 
 
 (t) 4 Cruise T. 32, c. 25, § 17. v. Park, 12 M. & W. 146 ; Piu/h v. 
 
 (t() 4 Cruise T. 32, c. 25, § 19. Strinr/fidd, 3 Com. B. 2.
 
 G58 
 
 OF THE COVENANTS. 
 
 Pr.Tii. T.12, interest, the covenant is several ; Init if tlie covenantees 
 
 Ch. 1, s. 10. 
 
 take a joint interest in the snbject matter of the covenant, 
 
 it is a joint covenant {y). And it has been held, that 
 where A. covenants with one person, " and also, as a dis- 
 tinct covenant," with another, this is a joint covenant on 
 which both must sue jointly, if it appears on the face of 
 the deed that they have a joint interest in the subject 
 matter of the covenant {£) ; and that a covenant with 
 tenants in common, and each and every of them, their and 
 each and every of their heirs, executors, administrators, 
 and assigns, to repair, is a joint and not a several cove- 
 nant ; so that an action must be brought by all the 
 tenants in common, or the survivors or survivor of 
 tliem (a). 
 
 VI. Real and Personal Covenants. 
 
 Definition of 
 
 covenants 
 
 real. 
 
 Easential 
 
 difference 
 
 between 
 
 covenants 
 
 real and 
 
 pei'dunal. 
 
 Covenant 
 running 
 with tlie 
 laud. 
 
 Liability of 
 the cove- 
 nantor, his 
 heirs, execu- 
 
 Covenants are further divided into real and personal. 
 Covenants real are those which have for their object some- 
 thing annexed to, or inherent in, or directly and per- 
 manently connected with, real property (&). Thus the 
 usual covenants for title are real covenants (r). 
 
 The essential difference betAveen a real and a personal 
 covenant is, that a real covenant runs with the land {d). 
 And a covenant which runs with the land is one of which 
 the obligation on the one hand, and the benefit, to be 
 enforced by action, on the other hand, will attach upon the 
 successive owners of the property (c). 
 
 Whether the covenants are real or personal, the cove- 
 nantor is liable to an action for damages for breach of 
 
 ((/) 4 Cruise T. 32, c. 25, § 18. 
 
 (2) Hophinson v. Lee, 6 Ad. & E. 
 N. S. 964. 
 
 {ft) Bradhurne v. Boffidd, 14 M. 
 & W. 559. 
 
 (/;) 4 Cruise T. 32, c. 25, § 21. Seo 
 Thomas v. Ilayuxird, L. R. 4 Kx. 
 311, infra, p. 663. 
 
 (c) 4 Cruise T. 32, c. 25, § G4 ; 
 Sugcl. Concise View, 435. 
 
 {d) 4 Cruise T. 32, c. 25, § 25, 28. 
 See Wilson v. Hart, 2 Hem. & M. 
 551 ; Hooper v. Clarice, L. Iv., 2 
 Q. B., 200. 
 
 (e) Burloii, § 475.
 
 OF THE COVENANTS. 659 
 
 covenant or, if lie is dead, liis executors or administrators ^f- i"-ti2, 
 
 ' ' ' Ch. 1, s. 10. 
 
 are liable to tlie extent of liis personal propertv in their ;■ - --~ 
 
 ^ ^ i- -J fora, and ad- 
 
 liands ; and if the covenant is (as it constantly is) for liini ""'-istrator. 
 and his " heirs," then his heir is also liable, so far as the 
 value of any real property which has descended to him in 
 fee simple may extend (/). The heirs are not bound 
 unless named ; and the heirs cannot be Ijound unless the 
 obligation commences in or with the ancestor ; and there- 
 fore a covenant by a man, for himself, his executors and 
 administrators, or for his heirs, without naming himself, 
 even though the act is to be done after his death, will not 
 bind the heirs. The executors and administrators are 
 bound without being named, unless the act is one which is 
 to be performed personally by the covenantor, and there 
 lias been no breach before his death (rj). 
 
 By the stat. 22 & 23 Vict. c. 35, s. 27, "Where an exe- Astoiiau- 
 cutor or administrator, liable as such to the rents, cove- ^uTstrafot* 
 
 , I j_ • T • ^ i in respect of 
 
 nants, or agreements contanied m any lease or agreement rents, cove- 
 for a lease granted or assigned to the testator or intestate agTeements. 
 whose estate is being administered, shall ha\'e satisfied 
 all such liabilities under the said lease or agreement for a 
 lease as may have accrued due and been claimed up to 
 the time of the assignment hereafter mentioned, and shall 
 have set apart a sufficient fund to answer an}^ future 
 claim that may be made in respect of any fixed and 
 ascertained sum covenanted or agreed by the lessee to be 
 laid out on the property demised or agreed to ])e demised, 
 although the period for laying out the same may not have 
 arrived, and shall have assigned the lease or agreement 
 for a lease to a purchaser thereof, he shall be at liberty to 
 distribute the residuary personal estate of the deceased 
 to and amongst the parties entitled thereto respectively, 
 
 (/) Burton, § 579; Sugd. Concise 1 Jarm. & Byth. by Sweet, 434 ; 3 
 View, 452. If]. 484—5. 
 
 (g) 1 Pres. Shep. T. 80, 177—8 ; 
 
 yoL. ir, r
 
 660 OF THK COYEXANTS. 
 
 PT.iir.T.i2, without appropriating any part, or any further part, (as 
 
 the case may be,) of the personal estate of the deceased to 
 
 meet any future liability under the said lease or agree- 
 ment for a lease ; and the executor or administrator so 
 distributing the residuary estate shall not, after having 
 assigned the said lease or agreement for a lease, and 
 having, ^\diere necessary, set apart such sutficient fund as 
 aforesaid, be personally liable in respect of any subse- 
 quent claim under the said lease or agreement for a lease ; 
 but nothing herein contained shall prejudice the right of 
 the lessor or those claiming under him to follow the assets 
 of the deceased into the hands of the person or persons 
 to or amongst ^\'hom the said assets may have been 
 distributed." 
 Astoiiabi- And by s. 28, "In like manner, where an executor or 
 cutor, &c., administrator, liable as such to the rent, covenants, or 
 
 lu respect oi ' ' ' 
 
 ircm'ivty- agreements contained in any conveyance on chief rent or 
 chief rent or rent charge (whether any such rent be hj limitation of use, 
 
 reut-cUarge. ,• \ j. r i 
 
 grant, or reservation), or agreement tor such conveyance, 
 granted or assigned to or made and entered into with the 
 testator or intestate whose estate is being administered, 
 shall have satisfied all such liabilities under the said con- 
 veyance, or agreement for a conveyance, as may have 
 accrued due and been claimed up to the time of the con- 
 veyance hereafter mentioned, and shall have set apart a 
 sufficient fund to answer any future claim that may be 
 made in respect of any fixed and ascertained sum cove- 
 nanted or agreed by the grantee to be laid out on the 
 property conveyed, or agreed to be conveyed, although 
 the period for laying out the same may not have arrived, 
 and shall have conveyed such property, or assigned the 
 said agreement for such conveyance as aforesaid, to a 
 purchaser thereof, he shall be at liberty to distribute the 
 residuary personal estate of the deceased to and amongst 
 the parties entitled thereto respectively, without appro-
 
 OF THE COYENAXTS. 661 
 
 piiating any part or any further part (as tlie case may be) ^^^V''^-^"' 
 
 of the personal estate of the deceased to meet any future — 
 
 liability under the said conveyance or agreement for a 
 conveyance ; and the executor or administrator so distri - 
 buting the residuary estate shall not, after having made 
 or executed such conveyance or assignment, and having, 
 where necessary, set apart such sufficient fund as aforesaid, 
 be personally liable in respect of any subsequent claim 
 under the said conveyance, or agreement for conveyance ; 
 but nothing herein contained shall prejudice the right of 
 the grantor, or those claiming under him, to follow the 
 assets of the deceased into the hands of the person or 
 persons to or among whom the said assets may have been 
 distributed," 
 
 Those persons only will l)e bound l)v a real covenant. Appointee of 
 
 -^ "^ • covenantor 
 
 who take the estate of the covenantor. And therefore an ""' •^°""''' 
 a,ppointee of the covenantor will not be bound ; because 
 the appointee is in under the deed creating the power : his 
 estate is derived out of the seisin, not of the appointor, Ijut 
 of the person out of whose seisin the appointor's estate 
 was derived (Ji). 
 
 In the case of inherent, l)ut not of collateral covenants, Liability of 
 
 assignee. 
 
 even though assigns he not mentioned, and whether the 
 assignment is from the lessee himself, or from his repre- 
 sentatives, or from any other assignee, an assignee is bound 
 by an express real covenant from the date of his assign- 
 ment, whether he enter or not, Init only ^^'■hile he continues 
 assiii'nee ; and he mav at anv time discharge himself from 
 his obligation to the reversioner, but not from his covenants 
 for indemnity, by an assignment, even to a beggar (i). 
 But the lessee himself, the original covcjiantor, is n()t 
 
 (/i)9Javni. & Bytli. by Sweet, (/) 1 Pres. Shep. T. 177, ISO ; 
 
 345, 346; Sugd. Concise View 437, Burton, §1086 ; 9 Jam. & Byth. by 
 439, 441 ; 4 Cruise T. 32, c. 25, Sweet, 333—9. 
 § 67. 
 
 ?2
 
 662 OF TTIE COVENANTS. 
 
 Ptiii. T.12, discharged from lialiility on an express covenant by assign- 
 ing over the term ; nor are his heirs, when named, nor his 
 
 Liability of o ' ' > 
 
 lesseu after exccutors Or administrators ; for the lessor or i^rantoe of the 
 reversion may either charge the lessee, his heirs, executors, 
 or administrators, or the assignee {h). But the original 
 lessee is discharged from all im-plied covenants by his 
 assignment, if assented to by the reversioner (/). 
 '^rtw'^^^^^ A person who is not assignee of the whole term or un- 
 uu;i'e'r'lfim cxpircd rcsiduB of a term, but is a mere underlessee, or an 
 
 not buuud. . p I . . , , , . , 
 
 assignee ot, or person clanning under, an underlessee, is not 
 liable to an action for the breach of any of the covenants 
 contained in the original lease {m). But he may under 
 certain circumstances be liable to an injunction (n). 
 To wiiom the The benefit of real covenants passes to the heirs of the 
 
 beiieti: nf •"■ 
 
 ruHi cove- covenantee, althouoh entered into with him and his execu- 
 
 uants passes. ' o 
 
 tors and administrators only, if they relate to land of which 
 the covenantee is seised, either previously to or by the deed 
 containing such covenants, or by a deed forming, with such 
 deed, a part of one transaction. And the benefit of real 
 covenants, entered into with the covenantee, his heirs and 
 assigns, or even with the covenantee and his heirs only, also 
 passes to all persons who take the estate of the covenantee, 
 or any estate derived out of that estate, but not to persons 
 whose estate is derived out of the seisin of some other per- 
 son. Hence, where covenants are entered into with the 
 releasee to uses and his heirs and assigns, or with him and 
 his heirs only, they run with the land for the benefit of all 
 the cestuis que use whose estates are derived out of the 
 momentary seisin of such releasee, whether such cestuis que 
 use are or are not parties to the conveyance, and whether 
 
 (Z-) 1 Pres. Shep. T. 180 ; 4 Burton, § 855, n. 
 
 Cruise T. 32, c. 25, § 37 ; Eurton, § (n) Parlcer v. Whyte, 1 Hem. & 
 
 lOSG. Mil. 167; ClemenlKy. ]VcUcs,U\{., 
 
 (I) Burton, § 1087. 1 Eq, 200, 
 
 (//!) 4 Cruise T. 32, c. 25, § 33;
 
 OF THE COVENANTS. 663 
 
 they claim immediately under it, or by virtue of an appoint- pt.iii. T.12, 
 
 ment made under a power contained in that conveyance. 
 
 And so, -where the covenants are made, not with tlic re- 
 leasee to vises, but with the cestui que use and his heirs 
 and assigns, or with him and his heirs only, they run with 
 the land for the lienefit of any person who claims as suc- 
 cessor or alienee of his estate. But Avhen made with the 
 cestui que use and his heirs and assigns, they do not run 
 with the land for the benefit of an appointee of the cestui 
 que use ; because such appointee, though the alienee of the 
 cestui que use, is not the alienee of his estate ; for the cestui 
 que use, liy the appointment, defeats and annihilates his 
 own estate, and substitutes a new estate in favour of his 
 appointee, which takes effect, not out of the seisin of the 
 cestui que use, but out of the original seisin of the releasor 
 to uses. In consequence of this, where the releasee to uses 
 and the purchaser are different persons, covenants which 
 are intended to run with the land should be made with the 
 releasee to uses, and not with the cestui que use (0). 
 
 As the covenants will only run with the estate of the 
 covenantee, if he takes but a particular estate, and an estate 
 in remainder is limited to another person, the covenants 
 will not run with the latter estate, unless the remainder- 
 man is expressly named in the covenant, and, in cases 
 under the old law, is also a party to the deed (p). 
 
 If a covenant does not concern the land itself, but only 
 a particular mode of occupying or using the same, it does 
 not run with the land. Thus, if a lessee covenants to use 
 the premises as a public-house, and the lessor covenants 
 not to Iniild or keep any house for the sale of beer or 
 spirits within a certain chstance of the demised premises, 
 
 (0)4 Cruise T. 32, c. 25, § 28, She]}. T. 17Q ; Western v. Macdcrmoti 
 
 64 ; Sugd. Concise View, 435—441 ; L. R., 1 Eq. 499. 
 9 Jarm, & By th. by Sweet, 355, 362, Cp) 9 Jarm. & Byth. by Sweet 
 
 364 ; Burton, § 581, 585 j 1 Pres. 363. See supra, p. 654.
 
 664 
 
 OF THE COVENANTS. 
 
 pr.iir. T.12, the lessor's covenant does not run M'itli the land, so as to 
 
 Ch. 1, s. 10. 1 • / X 
 
 enable tlie assignee of the lease to sue lum [q). 
 
 Where the whole of a term is assigned, and no reversion 
 is left in the assignor, though the rent be reserved to the 
 original lessee and not to the lessor, the assignee will be 
 entitled to the benefit of the covenants contained in the 
 original lease (r). 
 
 Coveuaijtor'3 
 widow claims 
 under liim. 
 
 Covenant to 
 ktep policy 
 ou lout. 
 
 Meaning of 
 expression 
 " clear of 
 taxes." 
 
 Covenant as 
 to purpose 
 for which a 
 house is to be 
 used. 
 
 YII. Constrndion of certain Covenants. 
 
 The widow of the covenantor claiming dower is a person 
 claiming under him, within the meaning of the covenants 
 for title (.s). 
 
 Although covenants are to be construed according to the 
 intent of the parties, yet where a person covenants to do 
 and perform all such acts, matters, and things as may be 
 requisite for continuing and keeping on foot a policy of 
 insurance on his life, it was held that this covenant could 
 not be read negatively, as if he had covenanted to do no 
 act whereby it would become void ; and that therefore the 
 covenant is not broken by his suicide, whereby the policy 
 becomes forfeited (t). 
 
 It has been held that a charge for repair of a bridge is 
 not a parliamentary tax, Avithin the meaning of a covenant 
 to pay rent clear of " all taxes and deductions whatsoever, 
 parliamentary or parochial," where it arises from a liability 
 by reason of tenure, and does not originate in an Act of 
 Parliament, though an Act of Parliament supplies a more 
 convenient mode of raising the necessary funds to meet 
 it (u). 
 
 Where a house is sold subject to a covenant not to cany 
 on any trade, business, or calling whatever, in or upon it, 
 
 (q) Thomns v. Iliujicard, L. R. 4 {t) Dormay v. Borrodaile, 10 
 
 Ex. 311. Beav. 335 ; 5 Com. B. 380. 
 (r) 4 Cruise T. 32, c. 25, § 5. (u) Baher v. GreenhiU, 3 Ad. & E. 
 
 (s) See 4 Cruise T. 32, c. 25, § 78. N. S. 148.
 
 OF THE COTEXANTS. 665 
 
 or otherwise use, or suffer the same to be used, to the rr.nr.Ti?, 
 
 ' Cn. 1, s. 10. 
 
 annoA'auce, nuisance, or injuiy of any of the houses on the — — — 
 estate, the carryinsz on a school for voung ladies is a breach 
 of the covenant (r). 
 
 The sale of beer by retail under a license '•' not to be 
 drunk on the premises," is no breach of a covenant not to 
 use the premises as " a public house " (,>;). 
 
 VIII. Cesser, Discharge, or Satisfaction of Covenants, 
 and Relief against them. 
 
 Where a person has expressly and absolutely contracted xoreriefin 
 or covenanted to do a particular thing, it is no ground for f^^gj'jf^fj^" 
 the interference of a court of equity that he has been pre- "S'-eenieiit 
 vented by accident or unforeseen circumstances from fulfil- 
 ling his engagement, or from deriving the full benefit of the 
 contract on his side. For he might have prevented any 
 injury to himself from accident, by making proper excep- 
 tions ; but since he omitted doing so, the law will presume 
 an intentional general liability {]/). So that if a lessee to repair, 
 covenants to keep the demised premises in repair, he will 
 be bound to do so, notwithstanding any unavoidable acci- 
 dent by Avhich tliey are destroyed or injured (z). And °g^°.P*y 
 where there is a covenant to pay rent during tlie term, 
 without any proper exceptions, it must be paid, notwith- 
 standing the premises are accidentally burnt down during ■ 
 the term CfO- And where a person covenants to raise and toraieeand 
 
 N ' i- pay tor a 
 
 v/ork a certain number of tons of coal in the year, and pay quantity of 
 for the same a certain rate per ton, or pay a fixed rent, 
 whether the coals should he wrought or not ; the whole 
 amount of rent may be claimed, although the mine is so 
 
 (!') Keiii}^ V. Sober, 1 Sim. N. S. (//) Sec Story's E({. Jiir. § 101 — ■ 
 
 517. 104. 
 
 (x) PcKSc V. Coats, L. R. 2 Eq. (t) .Story's Eq. Jur. § 101. 
 
 688. [a) Story's Eq. Jur. § 102.
 
 666 
 
 OF THE COVENANT^. 
 
 Pt.III.T.12, 
 Ch. 1, s. 10. 
 
 Oppres^iive 
 coviiiaut not 
 eiiliirced iu 
 equity. 
 
 Covenants 
 detcrniineJ 
 with the deed 
 or estate 
 itself. 
 
 Where the 
 leavj:jg a 
 flistrihutive 
 share by au 
 intestate is a 
 performance 
 or satisfac- 
 tion of v.n 
 obligation 
 by covenant. 
 
 exliaustud thai the lessee eould not raise the number of 
 tons in the year. In such a case it is considered that the 
 Court cannot import into the covenant a condition that 
 there should be coals to that extent : if such was the inten- 
 tion of the parties, they should have so expressed it (h). 
 But where performance of a covenant is become impossible, 
 by the act of God (as where a person who covenants to 
 serve another for seven years, dies before the seven years 
 are expired), the covenant is discharged (c). 
 
 If a covenant is very injurious and oppressive, a court of 
 equity will not enforce it, nor grant an injunction to pre- 
 A'ent a breach of it (d). 
 
 Where the deed itself, wherein the covenants are con- 
 tained, or the estate on which the covenants depend, is at 
 an end, there, regularly, the covenants are also determined, 
 except in cases provided against by the stat. 7 & 8 Vict, 
 c. 76, s. 12, and 8 & 9 Vict. c. 106, s. 9 (e). And, there- 
 fore, under the old laAv, if a lease for life or years was sur- 
 rendered, except for the purpose of renewal, or if a deed 
 was void by erasure or the like, and there were covenants 
 contained in the deed, the covenants were also extingnished 
 thereby. But a surrender did not discharge a breach of 
 covenant antecedent to such surrender (/). 
 
 AVhere, on a purchase by the lessee, a conveyance of the 
 inheritance is made by the lessor to the lessee, that puts an 
 end to the covenants in the lease {(/). 
 
 In the case of a covenant that a wife or relative shall 
 receive a gross sum on the death of the covenantor, his or 
 her distributive share, in the case of an intestacy, if equal 
 to or greater than the sum covenanted to be paid, is to be 
 
 {h) Marquis of Bute v. Thonipson, 
 13 M. & W. 487. 
 
 (c) 1 Pres. Shep. T. 180. 
 
 (d) Talbot V. Ford, 13 Sim. 173. 
 (c) See Part Til. T. 12, c. 2, end 
 
 of s. 5, on Leases. 
 
 (/) 1 Pros. Shep. T. ISO ; 1 Piatt 
 on Leases, 787 — 8. 
 
 [(j) Sugd. Concise View, 124.
 
 OF THE COVEXANlS. 667 
 
 considered as a performance ; if less, as a part perform- PT.iir.T.12, 
 
 ance. But where the covenant is that an annuity shall be 
 
 paid or secured on the death of the covenantor, the distri- 
 buti^^e share is not a performance or part performance (/'). 
 And, where the covenant debt arises in the lifetime of the , 
 covenantor (as Avhere he covenants within two years after 
 marriage to pa}' a certain simr, and he outlives the two 
 )'ears), a distributive share Avill not be a performance or a 
 satisfaction of the covenant. iN'or is an orphanage part ; 
 for it is not in the father's power {i). 
 
 AVhere a father, on the marriage of his daughter, cove- ^^•ller^aa 
 
 '-' ^ obligation by 
 
 nants that he will, bv deed or will, give, leave, and be- coveuam u 
 queath unto her an equal share with his other children, of {'he'llerson^in 
 all the real and personal estate of which he may die uwas 
 seised or possessed, and the daughter dies in her father's 
 lifetime, and he devises and becpieaths his property to his 
 surviving children, it has been held that this is no breach 
 of the covenant (k). 
 
 Section XI. 
 Of the Indorsed Reccijjf. 
 
 It is the usual practice to acknowledge payment of the pt.iii.t.i2, 
 
 consideration money in the operative part. And sometimes 
 
 there is a distinct recital of the payment of the same. In 
 addition to either or both of these, it is usual, in the case 
 of a purchase or mortgage, where the consideration money 
 is paid or advanced at the time of the execution, to indorse 
 upon the deed a receipt for it, signed by the party who 
 receives the money. But when the payment of the money 
 is recited as an antecedent transaction, it is not usual to 
 
 {h) 2 Spence's Eq. Jur. 609. {k) Jones v. IIoiv, 7 Have, 267. 
 
 («■) 2 Spence's Eq. Jur. 609.
 
 668 OF THE KECEIPT. 
 
 tt. TILT. 12, place a receipt on the back of the deed. At la^v, either tlie 
 
 Ch. 1, 8. 11. ^ 
 
 recital or the acknowledgment, if sufficiently precise, Mill 
 
 hind the parties hy estoppel. But the indorsed receipt is 
 not conclusive, because not under seal. And in equity, 
 none of these are of any avail if non-payment is proved, as 
 it may be (/). In equity, payment -will be presumed, after 
 a great length of time (;»). The indorsed receipt, or, it 
 seems, a distinct circumstantial recital of jjayment in the 
 body of the deed, is, under ordinary circumstances, suffi- 
 cient to excuse persons subsequently dealing with the 
 purchaser, from inquiring whether the money has been 
 actually paid (??). And, on the other hand, the absence of 
 any receipt for the consideration is notice to a purchaser 
 that it has not been paid (o). 
 
 {1} Sugd. Concise View, 537 ; (in) Sugd. Concise View, f^S?. 
 
 Burton, § ,o35 ; 1 Jarm. & Bytli. by (n) 9 Jarm. & Byth. by Sweet, 78. 
 
 Sweet, 90 ; 5 Id. 552 ; 9 Id. 78 ; i (o) 1 Jarm. & BUb. by Sweet, 93. 
 Cruise T. 32, c. 20, § 27.
 
 669 
 
 CHAPTER IT. 
 
 OF THE DIFFERENT KINDS OF DEEDS : AND FIRST, OF THE 
 DIFFERENT KINDS OF COMM<;»N LAAV CONVEYANCES. 
 
 Those deeds wliicli are termed conveyances, in the wide ,/^^'^^l\ 
 sense of the word, and which serve to create, divide, trans- ^^^j~^ 
 fer, discharge, strengthen, defeat, or renounce estates or conveyances. 
 interests, may be arranged into two great classes : — 
 
 I. Conveyances at tlie Common LaAV. 
 
 II. Statutory Conveyances, that is, deeds which derive 
 their efficacy from the operation of an Act of Parliament. 
 
 I. Of Common Law Conveyances there are about thirteen Common law 
 
 '' conveyances. 
 
 kinds : — 1. Feoffments. 2. Gifts. 3. Grants. 4. Bargains 
 and Sales. 5. Leases. 6. Exchanges. 7. Partitions. 
 8. Eeleases. 9. Confirmations. 10. Surrenders. 11. As- 
 signments. 12. Defeasances. 13. Disclaimers. 
 
 Defeasances and disclaimers operate in effect as convey- 
 ances, by causing property to return. Feoffments, leases, 
 and partitions exclusively relate to real estate. Gifts, 
 grants, bargains and sales, exchanges, releases, confirma- 
 tions, surrenders, assignments, defeasances, and disclaimers 
 may relate either to real or to personal estate. 
 
 II. Not reckoninjT those deeds which existed at common statutory 
 
 ^ conveyances. 
 
 law, and when made to uses operate under the Statute of 
 Uses, such as feoffments and bargains and sales to uses, 
 there are about ten kinds of statutory deeds i — 1. Covenants 
 to stand seised. 2. Deeds of Lease and Release. 3. Sta- 
 tutory Releases. 4. Statutory Grants, that is. Grants to 
 uses imder the Statute of Uses and the stat. 8 & 9 Vict. 
 c. 106, s. 2. 5. Deeds to lead and declare the uses of other 
 assurances. G. Deeds of revocation of uses. 7. Deeds of
 
 670 
 
 DIFFERENT KINDS OF CONVEYANCES. 
 
 Tart HI. 
 T. 12, Ch. 2. 
 
 Deeds 
 
 op'-ratins by 
 I raasmuta- 
 ti.Jii of 
 possession, or 
 wUliuut 
 transmuta- 
 tion of 
 possession. 
 
 Deeds otlier 
 than convey- 
 ances. 
 
 Deeds wlien 
 considered 
 with relcr- 
 euce to the 
 piu'iiose to 
 be effei^ted 
 by tliem. 
 
 appointment under powers. 8. Leases under powers. 
 0. Bargains and sales under the Act for the abolition of 
 Fines and Eecoveries. 10. Concise conveyances and leases 
 under the statutes 8 & 9 Yict. c. 1 19 and c. 124, and 25 & 20 
 Vict. c. 53. 
 
 Deeds under tlie Statute of Uses are said to operate 
 eitlier without transmutation of possession, as in the case 
 of a bargain and sale, or a covenant to stand seised ; or by 
 transmutation of possession, as in the case of deeds to lead 
 or declare the uses of feoffments, fines, or recoveries : for, 
 in the former case, the alteration of the legal seisin is 
 effected by the mere operation of the statute, the use alone 
 being transferred by the conveyance itself; while in the 
 latter case, the legal seisin is first transferred by a common 
 law assurance before the statute operates (a). 
 
 III. There are some other deeds wdiich affect or concern 
 real or personal estate, Ijut are not properly termed con- 
 veyances. Such are, 1. Deeds of covenant or agreement 
 respecting real estate. 2. Bonds. 3. Declarations of trust 
 of real estate. 4. Deeds of appointment of trustees, re- 
 ceivers, stewards, guardians, attornies, and others standing 
 in a confidential relation. 
 
 IV. Some of these various deeds ser^■e as purchase deeds, 
 others as mortgage deeds, others as marriage settlements, 
 others as deeds of arrangement, others as deeds of indemnity, 
 others as composition or creditors' deeds, others as appor- 
 tionments of rents, others as partnership deeds, and others 
 are used for certain other purposes which will appear from 
 the definitions given of them in the foUoAving pages. 
 
 («) 1 Cruise T. 11, c. 4, § 1-2—11 ; 2 Pres, Shep, T. 510.
 
 OF A FEOFFMENT, 671 
 
 Section I. 
 Of a Feoffment. 
 
 A feoftinent properly sio'iiifies a conveyance of corporeal pt. 111.T.12. 
 
 T r. 1 ch. 2, S.l. 
 hereditaments for an estate m fee simple, or lor a deter- 
 
 ., , ,. „ . . Definition, 
 
 minable fee other than an estate tail, by livery ot seism 
 evidenced by a deed in writing. Sometimes, however, a 
 feoffment signifies a conveyance of corporeal hereditaments 
 by livery, evidenced by deed, though only in tail or for life. 
 But a feoffment in tail is more ]n'operly termed a gift, and 
 a feoffment for life, a lease (//). 
 
 A feoffment consists of two distinct acts : first, livery of Jfe^Cent^f 
 seisin, or delivery of possession, which was all that the Livery of 
 
 ' 1/ i. seisin, 
 
 common la^^' required. And, secondly, a written explana- and a 
 
 written 
 
 tioii signed by the feoffor, Avliich is required by the Statute e.\pianation, 
 of Frauds {c). By the stat 8 & 9 Vict. c. 106, this must be ,^^^;^|;g"j;j,'* 
 by deed : for it is enacted, by s. 3 of that Act, " that a '^''^'• 
 feoffment made after the 1st of October, 18-45, other than a 
 feoffment made under a custom by an infant, shall l)e void 
 at law unless evidenced by deed." 
 
 Livery of seisin is of two kinds : livery in deed, and Livery is 
 
 either in 
 
 liverv in law. The first is an actual delivery of some ci.^odorin 
 
 •' law. 
 
 symbol of possession on the land, \\W.\\ apt words. The 
 second is a verbal delivery within sight of it {d). 
 
 Livery in law does not transfer the freehold till an Howiivery 
 actual entry is made by the feoffee. Therefore, if either reqnirestobe 
 
 ^ perlected, 
 
 the feoffor or feoffee dies before an entry is made under the 
 livery thus given, it becomes void (f). If the feoffee dared 
 not enter through fear of his life or bodily harm, then 
 liis continual claim made yearly in due form of law as 
 
 [h) 1 Tres. Shep. T. 203, 204 ; Co. (<?) See 4 Cruise T. 32, c. 4, § 8, 
 
 Litt. 9 a, 271 b, n. (1). 11 ; Co. Litt. 48 a, b, 49 b ; 1 Prea. 
 
 (c) Burton, § 20 ; 4 Cruif?e T. 32, Shep. T. 215. 21G. 
 
 c. 1, § IS ; 4 Cruise T. 32, c. 4, S 4 ; {e) 4 Cruise T. 32, c. 4, § 12 ; Co. 
 
 1 Pres. Shep. T. 203, Litt. 266 b,
 
 672 OF A FEOFFMENT. 
 
 pt. III.T.12, near as possible to tlic lands, formci'ly sufficed witliout an 
 ^:!1:1i±1l ei^tiy (/). But, Ly tlic stat. 3 & 4 AVill. 4, c. 27, s. 11, 
 
 " no continual or other claim upon or near any land shall 
 
 preserve any right of making an entry or distress or of 
 
 bringing an action." 
 
 Livery in law must be made to the freeholder himself : 
 
 if made to a lessee for years, it would not enure to a 
 
 remainderman, but was void (g). 
 Where livery In cascs uot witliiu tliB stat. 7 & 8 Vict. c. 76, s. 2, or 
 
 is necessary. 
 
 8 & 9 Vict. c. 106, s. 2, which will be presently noticed, 
 livery of seisin is necessary in all cases on the creation or 
 transfer of any estate of freehold in possession in corporeal 
 hereditaments, except by matter of record, as by the 
 King's letters patent, or by fine or recovery, or l)y deed 
 indented and enrolled, or liy way of covenant and raising 
 of use, or by way of surrender, devise, release or con- 
 firmation, or by way of increase. But it is not requisite, 
 nor indeed could it be made, on the creation or transfer of 
 incorporeal hereditaments alone. ISTeitlier is it requisite 
 irpon the creation or transfer of a lease for years or other 
 chattel interests (h). 
 wiio may As liveiy of seisin is the delivery of the actual posses- 
 
 ffivc livGry, 
 
 sion, it follows that no person who has not the actual 
 possession at the moment can give livery in deed (i) ; and 
 therefore it is reciuisite that all persons that have any law- 
 ful estate and possession in the thing whereof livery is to 
 be made, such as lessees for life or years, join in the making 
 thereof, or be removed thence (j). 
 Of wiiat A feoffment can only be made of corporeal hereditaments 
 
 livery can be . 
 
 made. gf wliicli the actual possession may be delivered to the 
 
 (/) 2 Bl. Com. 31G; Co. Litt. (/) 4 Cruise T. 32, c. 4. § 10; 
 
 48 b. Watk. Con v. Svd ed. by Trest. 160 ; 
 
 C^) Co. Litt. 49 b. Co. Litt. 50 a, 48 b. 
 
 (h) 1 Pres. Shep. T. 210, 211 ; 2 (j) 1 Pres. Shep. T. 205, 213 ; 
 
 Bl. Com. 314 ; Watlc. Conv. Srd ed. Watk. Conv. 3rd cd. by Prest. ICO 
 
 by Prest. 32, 161. —2 ; Co. Litt. 48 b, and n. (8).
 
 OF A raOFFMENT. 673 
 
 feoffee, except that incorporeal liereditaments, appendant, pt.iii.t.:2, 
 
 ' •»■ ■•- Ch. 2, s.l. 
 
 incident, or accessory to corporeal liereditaments, may pass 
 
 with the corporeal hereditaments, as the principal, by 
 means of a feoffment (/.:). 
 
 Livery of seisin must be made m the lifetime of the wueu livcry 
 
 •^ must be 
 
 parties. A distinction, however, occurs between the case "'^'^^• 
 of joint tenants and that of tenants in common. Where 
 the feoffors are joint tenants, if one of them dies before 
 livery, as his share survives to the others, the entirety of 
 the parcels may pass from the survivors. But where they 
 are tenants in common, the part of the person dying- 
 devolves to his heirs, and the feoffment of the survivors 
 will not pass his share, as it is not in them ; but it will be 
 good as to their own shares. So, where the feoffees are to 
 be joint tenants, notwithstanding the death of one of them 
 before livery, the entirety of the parcels will pass to the 
 sur\"ivors. But where they are to be tenants in common, 
 the livery will be void as to persons dying before livery is 
 made, and as to the shares intended for them ; but it will 
 l_)e good as to the survivors and the shares intended for 
 them (/). 
 
 Liverv in deed may be given and received by attorne}^ Livery by 
 
 _ _ attorney. 
 
 But, 1. He nuist be authorised by deed, i.e., either by the 
 feoffment itself or by some other deed ; whence it follows, 
 that an infant or a married woman cannot give livery by 
 attorney. 2. The attorney must pursue his authority, in 
 substance and effect at least, o. He must do it in terms 
 or in substance in the name of the person who gives the 
 authority. 4. Livery must be given in the lifetime of the 
 parties ; so that the seisin may pass out of the feoffor in 
 his lifetime, into the feoffee in his lifetime. But livery in 
 law may not Ije made by attorney (m). 
 
 (k) i Cruise T. 32, c. 4, § 26 ; 1 (I) 1 Pres. Sliep. T. 212. 
 
 Pres. Shep. T. 20G, 214 ; Burton, § {m) 1 Pres. Sliep. T. 217, 218 ; 4 
 
 40, 42. Cruise T, 32, c. 4, § 14, 15 ; 2 Bl,
 
 674 OF A FKOFFMEKT. 
 
 pt. [ti,t.i2, Wlien a particular estate for years or of freehold and 
 Ch. 2, s. 1. ^ . •' 
 a freehold remainder are created together de novo out of a 
 
 How livery 
 
 is given when corporcal liereditamcnt in possession, livery is uiven to the 
 
 created^ tenant of the particular estate in possession, and it tlien 
 
 another"' °" euures to tlic remainderman. When an estate is created 
 
 afterwards, expectant on a lease then in being, the li^'ery 
 
 must not he made to tlie lessee for years ; for, if it "svere, 
 
 it Avould operate notliing, nam quod semel meum est, 
 
 amplius meum esse non potest ; but it must be made to 
 
 the remainderman himself, by consent of the lessee for 
 
 years (//). 
 
 How livery If au estato is made of divers pieces of land in divers 
 
 must be 
 
 made in the viHao'es in the same countv, liverv of seisin of and in any 
 
 case i)f o . ' ^ J 
 
 onaiui.''"'^^^ part thereof in the name of all the rest, or according to the 
 deed, suiSces for all, provided all the pieces are in the 
 grantor's possession and out of lease. But if the pieces of 
 land lie in divers counties, or if they are in the same 
 county and they are in lease under different leases, or out 
 of the possession of the feoffor, it is requisite that livery 
 of seisin be made upon some of the lands in both or all the 
 counties, and upon every parcel of land that is out of pos- 
 session or in the occupation of a distinct occupier, or at 
 least in some parcel of the land in the occupation of every 
 several tenant (o). 
 
 Memoraii- J^ memorandum that li\'ery of seisin was liiven is usually 
 
 dum of J CI .' 
 
 ll^J?"^ indorsed on all ancient feoffments. But courts of law and 
 ecpiity \\ill presume liver}' of seisin to have been given, 
 though not indorsed on the deed, where the possession 
 has gone according to the feoffment for a lengtli of 
 time (p). 
 
 Com. 315, 316; Watk. Conv. 3rcl (o) 1 Pres. Sliep. T. 212 ; 4 Cruise 
 
 ed. byPrest. 165; Co. Litt. 48 b, T. 32, c. 4, §7; 2 Bl. Com. 315; 
 
 52 a, b. Lilt. s. Gl. 
 
 (h) 2 Bl. Com. 166, 167, 314 ; Co. ( p) 4 Cruise T. 32, e. 4, § 16. 
 Litt. 49 b. 
 
 seisin 
 indorsed
 
 OF A FEOFFMENT. 675 
 
 A couit of equity will supply tlie want of livery of seisin, ^qJ^^^'IV' 
 where a feoft\nent appears to have been made for valuahlo ~ 
 
 ^ -L Lu'ery 
 
 consideration (q). supplied. 
 
 Except so far as the stat. 8 & 9 Vict. c. 106, s. 3, may i'h«ian,i 
 
 ■t ' ' J passes by 
 
 alter the case, the land passes l^y the livery, and not by "^"^ ''^®'"^- 
 the deed, which, without livery, conferred only an estate 
 at will (?•). 
 
 ISTo particular words are essential. But in modern times operative 
 
 ■^ words. 
 
 the word " enfeoff" has been usually employed as an opera- 
 tive verb, in conjunction with some other or othei's, such as 
 " give," " grant," " alien," and " confirm " (s). 
 
 The effect of a feoffment was always to confer some estate operation of 
 
 •^ a teutfment. 
 
 of freehold in prai^senti, that is, either in actual possession 
 or subject only to a chattel interest. It naturally imported 
 the gift of an immediate estate, and its operation could not 
 be suspended or deferred, so as to give only an estate in 
 futuro. And hence a remainder, after it is created, cannot 
 be conveyed by feoffment (f). 
 
 In cases not within the stat. 7 & 8 Vict. c. 76, s. 7, or 
 8 Sc. 9 Vict. c. 106, s. 4, the operation of a feoffment is in 
 some respects stronger than that of any other conveyance. 
 Thus, by reason of the entry and livery of seisin, it clears 
 all disseisins, abatements, intrusions, and other wrongful 
 or defeasible estates, where the entry of the feoffor is lawful 
 • — an effect which is not produced even by a fine, recovery, 
 or bargain and sale by deed indented and enrolled. And 
 it not only passes the present estate of the feoffor, but bars 
 him of all present and future right and possibility of right 
 to the thing which is so conveyed ; insomuch, that, if he 
 has divers estates, all of them pass by his feoffment ; and 
 if he has any interest, rent, common, condition, power, 
 
 (q) 4 Cruise T. 32, c. 4, § 17. Jarm. & Bytli. by Sweet, 59, 62. 
 
 (r) 4 Jarm. & Byth. by Sweet, (() Burt. § 22 ; 1 Pres. Shep. T- 
 
 38 ; 1 Pres. Shep. T. 203 ; Co. Litt. 212 ; 2 Bl. Com. 314 ; Watk. Conv. 
 
 r.6 b. 3rd ed. by Prest. 95 ; Co. Litt. 217 a. 
 
 (s) 4 Cruise T. 32, c. 4, § 4 ; 4
 
 676 OF A FEOFFMENT. 
 
 pt.iii.t.12, continQ-ent use or benefit in, to, or out of the land, it is 
 
 Ch. 2, S. 1. " ' ^ ' 
 
 extinguished by the feoffment. And it also destroys all 
 
 contingent remainders in strangers, if supported only by 
 an estate of freehold or of inheritance in the feoffor (tC). 
 And, by the old law, a feoffment operated upon the posses- 
 sion, Avithout any regard to the estate or interest of the 
 feoffor ; so that even if the feoffor had only a particular 
 estate of freehold, or a chattel interest, or no interest at all, 
 but had the actual possession, either by right or by wrong, 
 and therefore was not a mere trespasser {i.e., a person who 
 entered while the rightful owner retained the possession), 
 the feoffment would pass an estate in fee simple, though 
 such estate might be defeated by the remainderman or re- 
 versioner, whose estate was thereby converted into a mere 
 right, or by the rightful proprietor (x). And a feoffment, 
 "whether in fee or in tail, or for the life of the feoffee or 
 another person, made by a tenant in tail, who was actually 
 seised by force of the entail, created a discontinuance of 
 the estate tail, by transferring to the feoffee, not only the 
 possession, but also the apparent right of possession, so as 
 to take away the entry of the issue in tail, as also of the 
 persons in remainder, and of the reversioner, and to drive 
 them to their real action {y). And in the case of a feoff- 
 ment for life by the tenant in tail, he thereliy created a 
 tortious estate in himself in fee simple in reversion expec- 
 tant on the decease of the feoffee {z). 
 
 By the stat. 7 & 8 Vict. c. 76, s. 7, it was enacted, " that 
 no conveyance shall be voidable only when made by feoff- 
 ment or other assurance, where the same would be abso- 
 lutely void, if made by release or grant ; and that no 
 
 (w) 4 Cruise T. 32, c. 4, § 28 ; 1 — 2 ; Watk. Conv. Srd ed. by Prest. 
 
 Pres. Shop. T. 204 ; Co. Litt. 9 a ; 30, 161, 163. 
 
 AVatk.Conv. 3rd ed. by Prest. 104. {y) 4 Cruise T. 32, c. 4, § 30 ; 
 
 {x) 4 Cruise T. 32, c. 4, § 29 ; Co. .supra, .'549—551. 
 
 Litt. 271 b, n. (1), 330 b, and n. (1) ; (z) Co. Litt. 334 b, n. (1), 339 a. 
 1 Pres Shep. T. 205 ; Burton, § 71
 
 OF A FEOFFMENT. 677 
 
 fissurance shall create any estate by wroiiii,', or have any tt. 111.T.12 
 
 J J '^' -^ Ch. 2, s. 1. 
 
 other effect than the same would have if it were to take 
 
 effect as a release, surrender, grant, lease, bai'gain and sale, 
 or covenant to stand seised (as the case may be)." This 
 \vas repealed by the stat. 8 & 9 Yict. c. 106 ; but by s. 4 
 of that Act, it is enacted, " that a feoffment made after 
 the 1st day of October, 1845, shall not have any tortious 
 operation." 
 
 By the stat. 7 & 8 Yict. c. 76, s. 2, it was also enacted, stat. r & s 
 
 •^ ' ' ' V. c. 76, s. 2. 
 
 " That every person may convey by any deed, without 
 livery of seisin, or enrolment, or a prior lease, all such 
 freehold land as he might before the passing of this Act 
 have conveyed by lease and release ; and every such con- 
 veyance shall take effect as if it had been made by lease 
 and release." This was repealed by the stat. 8 & 9 Vict. ^,f^^- ^^'^ ^ 
 c. 106 ; but by s. 2 of that Act, "after the said 1st day ^■'^'■ 
 of October, 1845, all corporeal tenements and heredita- 
 ments shall, as regards the conveyance of the immediate 
 freehold thereof, be deemed to lie in grant as well as iu 
 liverv." 
 
 Section II. 
 Of a Gift. 
 A gift of real estate is properly applied to the creation i"!'- ni.T.12, 
 
 v^H. Zf S. At 
 
 of an estate tail, as a feoffment is to that of an estate in fee 
 
 Gift of real 
 
 simple : and hence the person creating the estate tail is ®^*'^'^- 
 termed the donor, and the person taking it, the donee. 
 It differs in nothing from a feoffment, except in the nature 
 of the estate that passes by it ; so that livery of seisin 
 must be given to the donee to render it effectual. The 
 operati^'e word is "give;" but any other word or words 
 
 g2
 
 678 
 
 OF A GIFT AND A GRANT. 
 
 Gift of 
 personal 
 
 estate. 
 
 Pt. in.T.i2, that show the intention of the ixarties will have the same 
 
 Cn. 2, s. 2. 
 
 - — ■ effect («). 
 
 A gift of personal estate is a gratuitous transfer of such 
 property from one person to another (h). 
 
 A gift of personal chattels, to be valid and binding, 
 must either be accompanied by a deed or by actual or 
 constructive delivery of the possession. And hence a 
 mere verbal gift of a chattel to a person in whose pos- 
 session it is, does not pass any property to the donee, 
 unless the donee does some act testifying his acceptance of 
 the gift (c). 
 
 Tt. III.T.12, 
 Ch. 2, s. 3. 
 
 Defiiiition of 
 a grant, 
 specifically 
 so called. 
 
 AVhat may 
 be conveyed 
 or created by 
 grant. 
 
 Creation or 
 transfer of 
 remainders 
 and rever- 
 sions, or of 
 any estate 
 out of tliem. 
 
 Section III. 
 Of a Grant. 
 
 A grant at common law, specifically so called, is a con- 
 veyance of an incorporeal hereditament {d). 
 
 As li\'ery of seisin was the regular mode of conveying 
 corporeal hereditaments at the common law, so a deed of 
 grant was the pro]:)er mode of transferring incorporeal here- 
 ditaments, or creating any estate out of them ; and hence 
 corporeal hereditaments were said to lie in livery, and in- 
 corporeal hereditaments to lie in grant. But the former 
 now lie in grant as well as in livery (c). 
 
 But here it must be observed, that, although livery of 
 seisin was the regular way of conveying corporeal heredita- 
 ments, yet an actually existing remainder or reversion in 
 
 («) 4 Cruise T. 32, c. 4, § 32 ; 2 
 Bl. Com. 316 ; Watk. Conv. 3rd ed. 
 by Prest. 173—4. 
 
 (6) 1 Pres. Shep. T. 227 ; 2 Bl. 
 Com. 440. 
 
 (c) 2 Steph. Com. 44 ; Shoicer v. 
 
 broolc, 18 C. B., N. S. 51.5; Add. 
 Cont. 45. 
 
 (d) 2 Pres. Shep. T. 228. 
 
 (e) 4 Cmise T. 32, c. 4, § 26, 33 ; 
 Co. Lilt. 272 b, n. (1) ; 2 Bl. Cora. 
 317 ; 3 Jarm. & Byth. by Sweet, 
 
 Pilck, 4 Exch. 478 ; Bourne v. Fos- 259, See supra, pp. 5. 677.
 
 OF A GRANT. 6 "79 
 
 corporeal liereditaments, being itself an incorporeal here- tt. in.T.32, 
 
 ditament, could not be conveyed by livery, nor could any 
 
 estate or interest be created out of it by livery, but it 
 might lie by grant. And, on the other hand, although a 
 grant M-as the regular way of transferring incorporeal here- 
 ditaments, including remainders and reversions, or creating 
 any estate or interest out of them ; yet a freehold re- 
 mainder could not be created de novo out of corporeal 
 hereditaments in possession, without livery, and by mere 
 grant, because that was in fact a conveyance of a corporeal 
 hereditament, though in remainder, and not the convey- 
 ance of a previously subsisting remainder or of an estate 
 created out of a remainder, that is, of an incorporeal here- 
 ditament (/). 
 
 The proper words of a grant are " give and grant ;" but Operative 
 ^ ^ . . . ■"'ords. 
 
 any other words that show the intention of the parties to 
 
 pass the j)roperty will have the same effect {g). 
 
 A grant only operates on the estate or interest of the Operation of 
 
 a grant. 
 
 grantor, and will pass no more than what he is by law 
 enabled to convey (/?.). At law, a person cannot grant or 
 charge that which he has not at the time of the grant, 
 though he acquire it afterwards (?'). 
 
 Section IV. 
 
 Of a Bargain and Sale. 
 
 A bargain and sale is a contract whereby the bargainor, pt. 111.T.12, 
 for mone}' or money's worth given or expressed to be — '..''' 
 given, bargains and sells property to the liargainee. a bargain 
 
 and sale. 
 
 (/) See 2 Bl. Com. 166, 167, 31i ; Bl. Com. 317 ; Watk. Couv. 3rd ed. 
 Watk. Conv. 3rd ed. by Brest. 95, by Brest. 172. 
 109, 161. (/;) i Cruise T. 32, c. 4, § 40. 
 
 (g) 4 Cruise T. 32, c. 4, § 36 ; 2 (/) 4 Cruise T. 32, c. 4, § 37.
 
 ar.d p 
 of thr 
 kinds 
 
 tioi) 
 
 680 OF A BARGAIN AND SALE. 
 
 TliG operative words arc " bargain and sell " (J). 
 Bargains and sales are of three kinds : first, common law 
 bargains and sales under a common law authority, as in 
 
 of three '^ "'° the case of haigains and sales from executors who have an 
 authority to sell ; secondly, bargains and sales under an 
 authority given by an Act of Parliament ; thirdly, bargains 
 and sales wdiich derive their effect from the Statute of 
 Uses (/;). 
 
 Considera- A barQ;ain and sale cannot be crood except in considera- 
 tion of money or money's worth, given or expressed to be 
 given ; but the amount or value is not material (/). The 
 consideration of long accjuaintance, or of friendship, or 
 of natural love and affection, or of marriage, or that the 
 bargainee is bound in a recognizance for the bargainor, 
 cannot create a use upon a bargain and sale (m). ISTor 
 will the payment by the bargainee of the Ijargainor's 
 debts out of the bargainor's lands support a deed as a 
 bargain and sale ; for, in fact, there is no consideration 
 except the trouble (?;). But a rent reserved on a bargain 
 and sale, even though it be only of a peppercorn, is a suf- 
 ficient consideration (o). If there is a valuable considera- 
 tion given, although it be not expressed, the bargainee 
 may aver it, and, if proved, the bargain and sale is good. 
 On the other hand, if a valuable consideration is expressed, 
 though not paid, yet the deed is good as a bargain and 
 sale (p). And if it purports to be made " for a certain sum 
 of money," or " for a certain competent sum of money," 
 
 0') Watk. Couv. 3rd cd. by Prest. by Prest. 202. 
 203. (m) 3 Javni. & Bylh, by Sweet, 
 
 (k) 1 Pros. Shep. T. 227 ; 3 Jann. 2i8. 
 & Byth. by Sweet, 238 ; 9 Jarm. &, (n) Sec 4. Cruise T. 32, c. 9, § 25, 
 
 Bytli. by SAreet, 425—6 ; Watk. 26. 
 Conv. 3rd ed. by Prest. 204. (o) 4 Cruise T. 32, c. 9, § 27. 
 
 (l) 4 Cruise T. 32, c. 9, § 19, 20, (2)) 1 Pres. Shep. T. 223 ; Burton, 
 
 22 ; Burton, § 144 ; 3 Jarm. & Bytli. § 144 ; Watk. Conr. 3rd ed. by Prest. 
 
 by Sweet, 248 ; Watk. Conv. 3rd ed. 202.
 
 OF A BARGAIN AND 8ALE. 681 
 
 tliat Mill l)e sufticieiit (a). And a l»avoaiii and sale may tt iji.t.i-:. 
 
 ~-'^ ^ '^ Ch. •', s. i. 
 
 he made to a person ^vllo does not pay any consideration, 
 
 so lonQ' as it is made for a valuable consideration "iven 
 by another person (;•). 
 
 All i)]ivate iiersons liavinii' an estate of freehold in iios- WLomay 
 
 ■L -1- ~ -■- convey by 
 
 session, vested remainder, or reversion, may convey hy gaiefaud"'^ 
 bargain and sale, in fee, for life, or for years (,s). And not locouveyaK 
 only corporeal hereditaments, bnt also incorporeal heredita- 
 ments in actual existence, may lie conveyed l^y bargain 
 and sale (/). But things not in esse, such as a right of 
 common or Avay not before created, or estovers, cannot lie 
 so conveyed {u) ; for as they are not existing, no one can 
 be seised of them. And a person having only a chattel 
 interest in lands cannot convey it by bargain and sale, 
 because he has no seisin out of whicli a use can arise (,>;). 
 A common law bargain and sale may, however, be made of 
 chattels personal (?/). 
 
 A bargain and sale, if enrolled within the i^roper time, Dispositions 
 
 ° ' ^ -"^ ' by, or r!eed3 
 
 binds the land in point of title from the execution thereof ; »' bai-gaiuor 
 
 J- 01' liargaiiiee 
 
 so that, if the bargainor attempted to dispose of or charge em°l®ent. 
 the estate between the delivery of the deed and the enrol- 
 ment thereof, such an intervening disposition or charge 
 would be void {z). And the death of the bargainor or of 
 the bargainee before enrolment, is not material. Where 
 the bargainee dies before enrolment of the deed, if it is 
 afterwards duly enrolled, his heir will be in by descent (ci). 
 And an assurance made by the bargainee before enrol- 
 
 {q) 1 Pres. Shep. T. 223 : 4 Cruise Pres. Shep. T. 222. 
 
 T. 32, c. 9, § 20, 22. (.r) 4 Cruise T. 32, c. 9, g 18. 
 
 (r) 3 Jarm. & Byth. by Sweet, (;/) 1 Pres. Shep. T. 224. 
 
 239. (z) 1 Pres. Shep. T. 226— 7 j 2 
 
 (») 4 Cruise T. 32, c. 9, § 4, 11, Pres. Shep. T. 511 ; 4 Cruise T. 32, 
 
 15, 18 ; Watk. Conv. 3rd ed. by c. 9, § 34 ; 3 Jarm. & Byth. by 
 
 Prest. 203. Sweet, 238 ; Burton, § 142. 
 
 («) 4 Cruise T. 32, c. 9, § 16. («) 4 Cruise T. 32, c. 9, § 35, 
 
 (w) 4 Cruise T. 32, c. 9, s. 17 ; 1
 
 682 OF A TiAllGAIK AN'D SALE. 
 
 pt.iii.t.12, inent is valid, if tlic Ijavii-ain and sale is afterwards duly 
 
 Cu. 2, 8. 4. '^ "^ 
 
 enrolled (h). 
 
 Disuse of Bargains and sales of real estate under the Statute of 
 
 baig.-uiis nnd ^ 
 
 estatt°s^ '''''' Uses are now little used as assurances from vendor to 
 vendee, because they do not admit of the limitations usual 
 in purchase deeds, namely, the limitations to prevent 
 dower, including the power of appointment (r). And 
 these assurances do not admit of general powers (d). 
 
 Bargain and By the statutc 25 Gco. 3, c. 35, the lands of debtors 
 
 Bale of iamls '^ 
 
 tbe crowii*° ^^ ^^^^ Crown which have been extended, may, by order of 
 the Court of Exchequer, be sold and conveyed by bargain 
 and sale enrolled (c). 
 
 Enrolment of A bargain and sale under a common law authority does 
 
 bargains and ° 
 
 ^ro^'^ert "^ for ^^'^^ rcqulrc enrolment (/'). But to the validity of a bar- 
 freehoii °* g^iii ^^i^tl^ sale of real property for an estate of freehold, 
 uuder the Statute of Uses, enrolment was rendered ne- 
 cessary by the Statute of Enrolments. By the common 
 law, the transfer of property in land was made a matter of 
 publicity by a formal giving and taking possession ; and 
 the secret nature of uses is mentioned in the preamble to 
 the Statute of Uses as one of the principal inducements to 
 their abolition. Yet, as the effect of the construction put 
 upon that statute Avas, that such property might be trans- 
 ferred by a secret transaction ; in order to remedy this, the 
 stat. 27 Hen. 8, c. 16, was passed (g), whereby it was 
 enacted, that no " manors, lands, tenements, or other here- 
 ditaments shall pass, alter, or change from one to another, 
 Avhereby any estate of inheritance or freehold shall be made 
 
 (b) 3 Jarm. & Byth. by S^veet, (e) 2 Cruise T. 14, § 106. 
 
 238. (/) 3 Jarm. & Byth. by Sweet, 
 
 (c) 9 Jarni. & Byth. by Sweet, 238; 9 Jarm, & Byth. by Sweet, 
 281, 425-6. See supra, pp. 256, 425—6. 
 
 262. {fj) Burton, § 139 ; 2 Bl. Com. 
 
 (d) Walk. Conv. 3rd ccl by Brest. 338 ; Co. Litt. 48 a, n. (3) ; Watk. 
 204. Conv. 3r(l ed. by Brest. 202.
 
 OF A BAROAIN AND SALE. 65^) 
 
 or take effect in any person or persons, or any use thereof p^. 111.T.12 
 
 to be made, by reason only of any bargain and sale thereof, 
 
 except the same bargain and sale be made by writing in- 
 dented, sealed and enrolled in one of the King's Courts of 
 Eecord at Westminster, or else within the same county or 
 counties where the same manors, lands, or tenements, so 
 bargained and sold, lie or be, before the custos rotulorum 
 and two justices of the peace, and the clerk of the peace 
 of the same county or counties, or two of them at the 
 least, whereof the clerk of the peace to be one ; and the 
 same enrolment to be had and made within six months 
 next after the date of the same writings indented." But 
 liy s. 2, it is i)rovided, that this enactment shall not raiticuiar 
 
 exemptions 
 
 "extend to any manor, lands, tenements, or heredita- from emoi- 
 ments, lyuig or being within any city, borough, or town 
 corporate within this realm, wherein tlie mayors, recor- 
 ders, chamberlains, bailiffs, or other ofticer or ofiicers have 
 authority or have lawfully used to enrol any evidences, 
 deeds, or other writings within their precinct or limits ; 
 anything in this Act contained to the contrary notwith- 
 standing." 
 
 In consequence of this exemption, lands antl tenements 
 in cities and boroughs having the privilege of enrolment 
 are not within the Act; and though the intention of 
 the statute was only to exempt them from enrolment in 
 the Courts at Westminster, yet it is worded in such a 
 manner that they are discharged from any enrolment 
 whatever (//). 
 
 The deed must be an indenture, and the enrolment Kind of deed 
 
 and mode of 
 
 must be on parchment {i). enrolment. 
 
 The computation of the time for enrolment is by lunar computation 
 
 ^ •'of the six 
 
 months, except in the case of a disentailing assurance, and ™<'°*ii»- 
 from and exclusive of the day of the date of the deed, or, 
 
 [h) i Cruise T. 32, c. 9, § 32. {i) 1 Pres. Shep. T. 221, 223.
 
 ricaciiiig or 
 giviug in 
 evidence. 
 
 684 OF A r.Ai;(_;AL\ and salk. 
 
 r?;.iH.T.i2, ji" it hears no date or an impossible one, from and cxclu- 
 
 Ch. 2, s. 4. ■•- ' 
 
 sive of the day of delivery {j). 
 
 atter'dlath. '^'l'^' enrolment may he made after the death of either 
 part)- Cy). 
 
 Tlie hargaid and sale, as such, cannot, after the end of 
 six months, or even during the six months, he given in 
 evidence or pleaded, unless it has Ijeen enrolled within the 
 six months (IS). 
 
 Enrolment in p,y t|:ie statutc 5 Eliz. c. 26, bargains and sales of lands 
 
 DudlaiT'and b'^^S ^^^ ^^^^ couuties pa,latine of Lancaster and Chester, 
 and the bishopric of Durham, are required to be enrolled 
 in the respective Courts of those counties. And l:)y the 
 statute 5 Ann. c. 18, 6 Ann. c. 35, and 8 Geo. 2, c. 6, bar- 
 gains and sales of lands lying within the west, east, and 
 north ridings of the county of York, may be enrolled 
 before the registrars of those ridings (/). 
 
 Ejempticn By the statute 7 & 8 Vict. c. 76, s. 2, it was enacted, 
 
 from enrol- •^ 
 
 stlt'r'&T " ^^^'^^ every person may convey by any deed, without 
 
 vict. c. re, liy^^iy of seisin, or enrolment, or a prior lease, all such 
 
 freehold land as he might before the passing of the Act 
 
 have conveyed by lease and release." But this enactment 
 
 was repealed by the stat. 8 & 9 Vict. c. 106, s. 1, as from 
 
 the 1st day of October, 1845. 
 
 fatefor''^"'^ T(j a bargain and sale of personal chattels at the coin- 
 
 chX\f \'L\o\\ law, or of real property for a term of years, under the 
 
 iTOiierty'for Statute of Uses, by a person having an estate of freehold, 
 
 a term of . ••iio p-r<ij. 
 
 years. no enrolment is rerpiisite by the Statute ot Enrolments, 
 
 27 Hen. 8, c. 16 (in). But by stat. 17 & 18 Vict. c. 36, 
 bills of sale of personal chattels are now required to be 
 registered (h). 
 
 (i) 3 Jarm. k Bytli. by Sweet, [l] 4 Cruise T. 32, c. 9, § 30. 
 
 238 ; Burton, § HI ; 1 Trcs. Shep. {m) 1 Preii. Shep. T. 224. 
 
 T. 223. (*0 See cli. 7, s. 3, infra. 
 
 {I) 1 Prep. Sliep. 1\ 222.
 
 OF LEASES AXt) U^■r)EKLEASES. 685 
 
 Section V. 
 Of Leases and Underleases (u). 
 A lease is ])i'operly a cou\e_yaiice of any lands or tene- i't.iii.t.is, 
 
 C-II . /) S, D. 
 
 Lease 
 
 lai 
 Led 
 
 ments (usually in consideration of rent or other annual 
 recompense) made for life, for years, or at will, but always ^?g^"y^^\,^"jj'p 
 for a less time tlian the lessor has in tlie premises. If ^^™,f^,jjt 
 it is for the whole interest, it is more properly an assign- unde'l-icase. 
 ment than a lease {p). While, on the other hand, if any , 
 portion of his estate at the end thereof is reser^^ed by a 
 tenant for years, the instrument will operate as an under- 
 lease {q). 
 
 With reference to cases where it may appear difficult to where a 
 
 '' ^ ^ deed is a 
 
 determine whether a deed is a lease or only an agreement !^nT-ieement 
 for one, if there are words and an apparent intent of ^°^^^^^^^- 
 present demise, and yet allusion is made to a lease to be 
 executed at some future time, such instrument is con- 
 strued to be an actual lease, with an agreement for 
 further assurance. But where there appears no intent, 
 though there are words of present demise, and the instru- 
 ment seems only preparatory or relative to one to be 
 afterwards made, it is only considered as an agreement for 
 a lease (/•). 
 
 The leaning of the Courts appears to be to construe an 
 agreement as to letting as a present demise, and not a 
 mere agreement for a future lease (-s). And hence the 
 
 (o) As to leases by the Crown, Prest. 174; 1 Piatt on Leases, 1 — 
 
 ecclesiastical persons, colleges, and 19. 
 
 corporations, see Co. Litt. 44 b, 45 (g) 2 Pres. Shep. T. 266. 
 
 a ; 2 Bl. Com. 318—322 ; Stamp's (r) See 4 Cruise T. 34, c. 5, g 2— 
 
 Index to the Statute LaAV ; and the 11 ; Burton, § 845; 1 Piatt on 
 
 treatises on the subject of leases. Leases, 598. 
 
 {p) 2B1. Com. 317 ; 2 Pres. Shep. (s) 2 Pres. Shep. T. 27L 
 
 T. 266 ; Watk. Conv. 3rd ed. by
 
 68r. 
 
 OF LEASES AND UNDERLEASES. 
 
 pt. ni.T.ic 
 
 Cii. 2, s. 5. 
 
 Who mny 
 lease. 
 
 Leases by 
 tenant )or 
 life, at the 
 commjn law. 
 
 Lease by 
 tenant for 
 life and 
 remainder- 
 man or 
 reversioner. 
 
 Leases by 
 tenants in 
 tai), or 
 Lnsbands 
 
 ^^'oi'ds " agree to let " constitute a present demise, com- 
 mencing at the date of the agreement, although no time is 
 named for the commencement of the tenancy, and although 
 " a lease is to be drawn upon the usual terms," and 
 the tenant " agrees " to take it upon the said terms {t). 
 AVhere, therefore, it is not intended that an agreement 
 should have the effect of a present demise, care must be 
 taken to restrict its operation to that cf a mere agreement 
 for a future lease. 
 
 All natural persons who are capable of alienating their 
 property or of entering into contracts respecting it, may 
 make leases, which will endure as long as their interest in 
 the thing leased (it). 
 
 By the common law, a tenant for life (except under a 
 power), cannot make a lease to continue longer than the 
 period for which his own estate is limited; but, on the 
 expiration of that period, a lease granted by him becomes 
 absolutely void against the remainderman or reversioner, 
 so as to be incapable of confirmation. And if A., lessee 
 for the life of B., makes a lease for years by an indenture, 
 and afterwards purchases the reversion in fee, and B. dies, 
 A. may avoid his own lease (ii). 
 
 When the person in remainder or reversion joins with 
 the tenant for life in making a lease, it is considered, 
 during the life of the tenant for life, as his lease, and as 
 the confirmation of the remainderman or reversioner. After 
 the death of the tenant for life, it is considered as the lease 
 of the remainderman or reversioner, and as the confirma- 
 tion of the tenant for life (//). 
 
 By the common law, without a fine or recovery, tenants 
 in tail could make no leases binding the issue in tail, or 
 
 {t) Doe d. Phillip) V. Benjamin, 9 
 Ad. &E. 6U; 1 P. &D. 440. 
 («) 4 Cruise T. 32, c. 5, § 25. 
 [x) 4 Cruise T. 32, c. .'), § 65, oG 
 
 11. 57, 73 ; 2 Pres. Sliep. T. 268, 
 284 ; 1 Piatt on Leases, 94—5. 
 
 {)/) Co. Lilt. 45 a ; 4 Cruise T. 
 32, c. 5, § 50.
 
 OF LEASES AXD UNDERLEASES. 
 
 687 
 
 the remaiiiderniaii or reversioner. Nor could a husband ^cn^V'Js^' 
 
 seised in 
 right ol' their 
 wives, at the 
 common law. 
 
 seised jure uxoris make an absolutely binding lease for 
 any longer term tlian the joint lives of himself and his 
 ■wife, even though she joined in the lease. For if a lease 
 of the wife's lands were made by husband and wife, it 
 would not bind the wife, if she survived her husband, nor 
 her heirs, if she died in his lifetime (~). Where hus- 
 band and wife make a lease of the wife's land, not 
 according to the stat. 19 & 20 Vict. c. 120, s. 32—34, and 
 not acknowledged under the stat. 3 & 4 W. 4, c. 74, s. 79, 
 and there is nothing to show that the parties contemplated 
 an acknowledgment of the wife under the latter statute, so 
 as conclusively to bind the wife and her heirs, the lease 
 will be good for the term specified, during the husband's 
 lifetime, and even if she survive him during the term, it 
 will not be void, but only voidable at her option, on her 
 doing some act to disaffirm it, and until she does such 
 an act it will be "ood durino; tlie term, and the rent 
 accrued during her lifetime may be recovered by her or 
 her executors (a). 
 
 By the stat. 32 Hen. 8, c. 28, a tenant in tail mioht Leases under 
 
 "^ ... . the stat. 
 
 make leases to bind his issue, but not those in remainder ^- ^en. s, 
 
 c. 28. 
 
 or reversion. And a husband seised in right of his wife in 
 fee simple or fee tail, provided the wife joined in such 
 lease, might bind her and her heirs thereby. But 1, The 
 lease must have been by indenture. 2. It must have 
 begun from the making, or day of the making, and not at 
 any greater distance of time. 3. If there was any old 
 lease in being, it must first have been absolutely surren- 
 dered, or have been within a year of expiring. 4, It must 
 have been either for twenty-one years or three lives, and 
 not for botli. 5. It must not have exceeded the term of 
 three lives, or twenty-one years. G. It must have been 
 
 (z) 4 Cruise T. 32, c. 5, s. 31 ; (a) Toler v. .'Plater, L. E. 3 Q. 
 
 Pres. Shep. T. 281. B. 42.
 
 088 OF LEASES AND UNDERLEASES. 
 
 PT.nLT.i2, of corporeal liereditamcnts ; for no rent can be reserved 
 
 Cii. 2, s. 5. -^ ' 
 
 out of incorporeal hereditaments by the common law, as 
 
 the lessor cannot resort to them to distrain. 7. It must 
 have been of lands and tenements let for the greater 
 part of twenty years past. 8. Xot less than the most 
 usual and customary rent, for twenty years past, must 
 have been reserved yearly on such lease. 9. Such leases 
 must not have been made without impeachment of 
 waste (/>). 
 
 Copyholds Tlio statute 32 Plen. 8, c. 28, does not extend to copy- 
 
 the Stat. hold estates (c). 
 
 32 Hen. 8, ^ ^ 
 
 c- 28- All leases by tenants in tail, not warranted by the sta- 
 
 tenant in tute 32 Hcu. 8, wcrc o'ood against the tenant in tail himself, 
 
 tail not ' O o 
 
 warranted by \)iit ^;yQYQ yoidablc by tlic issuc iu tail, unless l)arred. But 
 
 that statute. "^ ' 
 
 if the issue in tail accepted of rent or fealty after the death 
 of his ancestor, or brought an action for the rent, these 
 acts would operate as a confirmation of the lease (d). And 
 each issue in succession might, while the lease continued, 
 affirm the lease for his time. But a lease avoided by the 
 issue in any line of the succession, was avoided for ever (e). 
 Leases made by tenants in tail were absolutely void as 
 against the persons in remainder and reversion, and ipso 
 facto determined on the death of the tenant in tail and 
 failure of the issue in tail, according to the maxim, Ces- 
 sante statu primitivo, cessat et derivativus : so that no 
 acceptance of rent by them woidd operate as a confirma- 
 tion (/). Leases by tenant in tail might, however, become 
 indefeasible, as against the issue, by means of a fine with 
 proclamations or a recovery duly suffered, and might 
 become absolute and binding on the entire fee simple, 
 
 (l) 2 EL Com. 319, 320 ; Co. Pres. Sliep. T. 268, 275, 284, 289 ; 
 
 Litt. 44 a, b; Pres. Shep. T. 278 Burton, g 714. 
 —9. (e) 2 Pres. Shep. T. 289. 
 
 (c) 1 Jarm. & Byth. by Sweet, (/) 4 Cruise T. 32, c. r>, § 71 ; ' 2 
 
 433, n. (a). Pros. Shep. T. 2GS. 
 
 ((?) 4 Cruise T. 32, c. 5, s. 70 ; 2
 
 OF LEASES AND UNDERLEASES. 0S9 
 
 wlien tlie estate tail was hy a common recovery enlar^'ed pt. nr.T.12, 
 
 '' ./ o c,,^ 2, s. 5. 
 
 into a fee simple {g). 
 
 Leases made by Imsband and M'ife of tlie wife's land, pases by 
 
 'J Lusbaud and. 
 
 though not conformable to the statnte 32 Hen. 8, were ^Im-anLiby 
 only voidable, and not void ; and therefore acceptance sfnea/s. 
 of rent by the wife after her husband's death, would ope- 
 rate as a confirmation (A). An agreement for a lease by 
 a husband and wife seised in right of the wife, would not 
 be binding on the wife or her heirs, or her issue in tail, 
 because the statute 32 Hen. 8, c. 28, only authorises 
 " leases " (i). 
 
 This Act is repealed by the stat. 19 & 20 Vict. c. 120, Repeal 
 
 tliereol'. 
 
 s. 35, except so far as relates to leases by persons having 
 an estate in right of their churches. 
 
 By the stat. 19 & 20 Vict. c. 120, power is given to the Leases ani 
 
 "^ X o agreementa 
 
 Court of Chancery (even in the case of infants, lunatics, ^^^^^^4^^^, 
 bankrupts, insolvents, and married women, ss. 36 — 8), to yfct. ^ i'2o!' 
 authorize leases, and preliminary contracts to grant leases, 
 of settled estates, that is, of estates limited by any instru- 
 ment or instruments (whether before or after the passing 
 of the Act, s. 44), to or in trust for any persons by Avay of 
 succession, or of any rights and privileges over or affecting 
 any settled estates, subject to certain conditions (ss. 1, 2, 3, 
 6), unless an application for that purpose lias been rejected 
 by Parliament (s. 21) ; or unless it would be contrary to 
 the intention of the settlor (s. 26) ; or beyond his power 
 (s. 27) ; or unless in the case of leases of copyholds with- 
 out the consent of the lord (s. 43). But no lease shall be 
 granted for more than 21 years, of any settled estate 
 whereof the tenants in tail are debarred from defeating 
 their estates tail, or where the reversion is in the Crown 
 (s. 42). 
 
 (g) 2 Pres. Shep. T. 284. 252. 
 
 {h) 4 Cruise T. 32, c. 5, § 72 ; (/) 1 Jp.rm. & Bjtb. by Sweet, 
 
 Watk. Cony. 3rd. ed. by Prcst. 427.
 
 GOO OF LEASES AND UNDERLEASES. 
 
 pt. iii.t.12, By ss. 32, 33, 3G — 8, of tlie same statute (even in the 
 
 Oh 2 s. 6 
 
 -"—--" case of infants, lunatics, bankrupts, insolvents, and married 
 women), tenants for life, or for years determinable on lives, 
 or for any greater estate, of property settled since the 
 passing of the Act, and tenants by the curtesy, or in dower, 
 or in right of their wives, of unsettled property, may, 
 without application to the Court, make binding leases 
 (except of the principal mansion and the land usually oc- 
 cupied therewith) for 21 years, in possession, subject to 
 certain conditions, except in the case of copyholds without 
 the consent of the lord. 
 
 By ss. 7, 10, of the same statute, the Court of Chancery 
 may vest powers of leasing settled estates in the trustees of 
 the settlement or in any other persons. 
 
 The Act is amended and extended by the stat. 21 & 22 
 Vict. c. 77 (k), and by the stat. 27 & 28 Vict. c. 45, so far 
 as regards the 1st and 10th sections, 
 lease by If tenant in fee simple takes a wife, and then makes a 
 
 tenant in '■ 
 
 foe wLose Iqq^sb for vcars, and dies, and the wdfe is endowed, the lease 
 
 wife IS J > ' ' 
 
 endowed. ^^ ^.^-j ^^ agaiust her, but will be good as against tlie 
 
 heirs, &c., of the husband (/). 
 leases by Joint tcuauts, teuauts in common, and coparceners may 
 
 joint teuauts, 
 
 tenants in makc Icascs for life or years of their own shares, and these 
 
 common, ai.d '' 
 
 coi.arceners. jg^ggg -^viU bind their companions ; and one joint tenant, 
 coparcener, or tenant in common may make a lease of his 
 or her part to the other {iri). If joint tenants join in a 
 lease, there will be but one lease ; for they have but 
 one freehold. But if tenants in common join in a lease, 
 there will be se^^eral leases of their several interests (?i). 
 
 Operative The words " grant," " demise," and "to farm let," are the 
 
 words. . 1 • 1 p 
 
 most proper operative words m a lease for years ; but any 
 words which show the intent of the parties that the one 
 
 (Z-) See supra, pp. 597—8. p. 235. 
 
 (/) 2 Pres. Shop. T. 275. (n) 2 Pros. Shep. T. 208, n. (8). 
 
 (w) 2 Pres. Shep. T. 2C8 ; supra,
 
 OF LEASES AND UNDERLEASES. 691 
 
 sliould divest liimself of tlie possession, and tlie other come rr- Tri.T.12, 
 
 . ^ . Cii. 2, s. 5. 
 
 into it for a determinate time, are in general snfficient for — — — 
 
 the pnrpose (0). 
 
 There are some kinds of incorporeal hereditaments which Leases of 
 
 incorporeal 
 
 may be leased. Thus, an advowson appendant may be i^ere'Uta- 
 leased with the manor to which it is annexed, or separate 
 from it ; and an advowson in gross may also be leased Q;). 
 And tithes, whether in the hands of ecclesiastics or lay im- 
 ] )ropriators, might be leased (q). 
 
 If a man is possessed of a term of years, althongh it be Grant of 
 
 residue of 
 
 one hundred years or upwards, and OTants to another, as a term alter 
 
 ■ ^ ' o ' death ot 
 
 legal interest, all the residue of the term of years that shall *"'mor. 
 be to come at the time of his death, this grant is void ; 
 because terms for years being anciently A'ery short, the 
 common laAV will not presume that any part of the term 
 wiU exist at the death of the grantor (?-). 
 
 A lease for life of anything whatsoever, whether it lie in Lease for 
 livery or grant, it it is 111 esse beiore, cannot begin at a day future, 
 to come, unless it lies in livery, and livery is not made till 
 that day (s) ; or unless it is by w^ay of remainder, or by 
 way of grant of the reversion, or of a part of the reversion 
 immediately expectant upon some other estate of freehold ; 
 or unless it is a lease under the Statute of Uses, and not at 
 the common law. 
 
 In the case of leases for lives, the timber is included. Timber, 
 unless excepted, so that the lessor must not fell them, 
 because the lessee has by his lease a particular interest in 
 the trees, such as the mast and fruit of them, and shade 
 and shelter for his cattle, and may lop them, if they be not 
 thereby injured (/"). ^Yllere the trees are excepted in the 
 
 (0) Burton, § 838 ; 2 Bl. Com. (r) 2 Pres. Shep. T. 251 ; see 
 
 317 ; 4 Cruise T. 32, c. 5, § 2 ; Co. also supra, p. 321. 
 Litt. 45 b ; Watk. Conv. 3rd ed. by (s) 2 Pres. Shep. T. 272; Watk. 
 
 Prest. 18, 19, 178. Conv. 3rd ed. by Prest. 170, 175. 
 
 (p) 4 Cruise T. 32, c. 5, § 22. (t) I Oruiso T, 3, c. 2, § 3. 
 
 (7) 4 Cruise T. 32, c. 5, § 23, 
 
 YOL. u, ^1
 
 692 OF LEASES AND UNDERLEASES. 
 
 pr. III.T.12, lease, as tlioy usually are, the lessee has no interest what- 
 
 Ch. 2j 3. 5. 
 
 ever in them. The lessor also has power, as incident to the 
 
 exception, to enter upon the land, in order to fell and take 
 away the trees ; though this power, for greater caution, is 
 often expressly reserved (u). 
 
 Lessee not A Icsscc is uot estoppcd ]w the descriijtion of the lands 
 
 estopped by i- 1. j 
 
 ticscriptioii. contained in his lease ; for this is not the essence of the 
 deed. And he may therefore show that what is there 
 called meadow has been sometimes ploughed (a;). 
 
 Rent (j/). Whether any rent is reserved upon a lease for life or 
 
 years or at will, or not, is not material, except in the case 
 of leases made by virtue of any statute whereby rent is 
 required to be reserved ; or by ecclesiastical persons ; or 
 by persons leasing under powers requiring a reservation of 
 rent (z). 
 
 If a lease is made reserving rent, payable quarterly, this 
 shall be intended quarterly from the date of the lease, and 
 not at the usual feasts (a). 
 
 Tithe and In tlic abseucc of any stipulation on the subject, the 
 
 land tax. . J r ^ > 
 
 tithe rent charge is payable l)y the landlord (b). 
 
 Where a lease was made at a yearly rent, " payal^le 
 
 quarterly, free of all outgoings," the Vice-Chancellor Stuart 
 
 held that these words were not sufiicient to relieve the 
 
 lessor from the payment of the land tax and tithe rent 
 
 charge ; but Lord Campbell, C, held that the tenant must 
 
 pay them (c). 
 
 Disagreeing Any pcrsou may disagree to a term for years (rZ). 
 
 Where entry ^^ Icascs for ycars at the common law, an actual entry 
 
 IS necessary. ^^ necessaiy to vest the estate in the lessee ; for the bare 
 
 lease does not give him an estate, l3ut only a right to enter, 
 
 {u) 1 Cruise T. 3, c. 2, § 4. (6) Parler v. Tcmoell, 2 D. & J. 
 
 [x) 4 Cruise T. 32, c. 19, § 61. 559. 
 
 {ij) See supra, pp. 17 et seq. ; 650 (c) Parish v. Sleeman, Gif. 238 ; 
 
 —3. 1 D. F. & J. 326. 
 
 (z) 2 Pres. Sliep. T. 268. {d) 4 Cruise T. 32, c. 26, § 9. 
 (a) 3 Cruise T. 28, c. I,go0.
 
 OF LEASES AND UNDEllLEASES. 093 
 
 which is called his interest in the term, or interesse ter- ^Tj^^'^-J-^^' 
 
 mini (c). And as the lessee has no estate till entry, so 
 
 until entry the lessor's estate is not converted into a rever- 
 sion (/). But where a term for years is created by way 
 of use, tlie interest is made an estate l>y the statute without 
 entry (g). 
 
 A termor for years may assign or underlet, unless there Assignment 
 
 or uiider- 
 
 be an express condition or provision in the lease to restrict letting, 
 the power of alienation which the law gives ; and even in 
 that case, the lessee may assign or underlet, but the assign- 
 ment will give to the reversioner the right of re-entry, if 
 he think proper to avail himself of the condition. But he 
 may dispense with the forfeiture, as by accepting rent, 
 confirming, &c., and in that case the title of the assignee 
 will be indefeasible (/^). 
 
 A tenant wlio has not stipulated that he will deliver up 
 possession at the end of the term, is nevertheless bound to 
 deliver up complete possession And therefore, if, against 
 his wiU, his under-tenant holds over, the landlord can 
 recover against the tenant damages equal to the rent which 
 he has lost, and the costs of bringing an ejectment, (i). 
 
 Where the owner of a term agrees to let for three years, 
 and also, when called upon, to grant a lease for three years 
 or seven years or the whole term, and the tenant continues 
 in occupation beyond the first three years, and becomes 
 bankrupt, and the assignee sells the bankrupt's estate and 
 interest, the option of the tenant to take a lease is not to 
 be regarded as having ceased at the end of the first three 
 years, but it passes to the assignee, and from him to tlie 
 purchaser (j). 
 
 (e) 2 Bl. Com. 314 ; Burton, § 61 ; (h) Watkias's Conveyanciug, 3rd 
 
 Co. Litt. 46 b ; Watk. Couv. 3rd ed. by Preston, 21, 177. 
 
 ed. by Prest. 175. {!} Henderson v. Squire, L. R. 4 
 
 (/) Burton, § 61 ; Co. Litt. Q. B. 170. 
 
 46 b. {j) Bucldand v. Popillon, L. R. 2 
 
 {g) Barton, § 131. Ch. Ap. 67. 
 
 52
 
 694 OF LEASES AND UNDERLEASES. 
 
 pt. tii.t.12, If a lease for years is made on condition that tlie lessee 
 
 Ch. 2, s. 5. -^ 
 
 • — shall not assign or alien the term or the land dnrinf? his 
 
 Oondilioiis _ ° ^^ 
 
 against as- lifg -^vitliout the licence of the lessor, and the lessee gives 
 it by his will without licence, this is a breach of the con- 
 dition, and a forfeiture of the estate. But if a lease is 
 made on condition that the lessee shall not alien without 
 the licence of the lessor, so as to be personal to him, and 
 afterwards the lessor dies, and the lessee assigns ; or the 
 lessee dies, and his executors or administrators assign; 
 there is no breach of the condition in either of these 
 cases (/j. And Avhere there is a condition that the lessee 
 shall not assign it over without permission, an underlease 
 is not within the condition (vi). 
 
 Covenant not Where a lessee covenanted not to alien or transfer his 
 
 to aheu. 
 
 lease, and afterwards acknowledged a judgment, on which 
 the lease was taken in execution and sold, it was held that 
 this sale was not a forfeiture of tlie lease (n). But where 
 a warrant of attorney to confess a judgment is given 
 by collusion for the purpose of enabling a creditor to 
 take a lease in execution, it will be a breach of such a 
 covenant (o). 
 
 A covenant by lessees, for themselves, tlieir heirs, execu- 
 tors, administrators, and assigns, that they, their executors, 
 administrators, and assigns, would not assign without the 
 lessor's consent, is a covenant which touches and conceras 
 the land, and, therefore, runs with the land, and the lessor 
 can sue an assignee of the lessee for the breach of it (^9). 
 Similar covenants relating to things fixed to the land also 
 run with the land (q). 
 Covenant to A covcuant in a sublease to perform all the covenants 
 
 perform ^ 
 
 (h) As to the apportionment of (n) 2 Cruise T. 13, c. 1, § 4G. 
 
 such conditions, see supra, pp. 72, (o) 2 Cruise T. 13, c. 1, § 48. 
 
 73. (p) Williams v. Earle, L. R. 3 Q. 
 
 (Z) 1 Pres. Shep. T. lU, 145. B. 739. 
 
 (m) 2 Cruise T. 13, c. 1, § 42 ; (q) WiUiams v. Earle, L. R. 3 Q. 
 
 "VN'atk. Conv. 3rcl ed.by Pi-est. 21. B, 739.
 
 OF leasp:.s and underleases. 6f)5 
 
 in the original lease, is a covenant to perform those cove- Pt.ii[.t.i2, 
 
 *^ ' ■- Ch. 2, s. 5. 
 
 nants whilst the oririnal term is unexpired and unsiir- - — 
 
 o *- covenants m 
 
 rendered : it is not a covenant to do or abstain from doing f^^^^^^ 
 the acts mentioned in those covenants, so as to apply, even 
 after a new lease is taken, in which those covenants are 
 omitted (?-). 
 
 If an agreement for a lease contains no stiindation as to Usuai 
 
 covenants. 
 
 covenants, the party agreeing to take the lease has a riglit 
 to a lease containing only usual covenants. A covenant in 
 restraint of trade in a trade locality is not a usual cove- 
 nant (s). Nor is a covenant not to assign or underlet (i). 
 
 Under a contract for a lease to contain all usual cove- 
 nants, particularly a covenant to keep the premises in good 
 repair, the lessee is not entitled to have introduced the 
 ^vords " damages by fire or tempest only excepted " (u). 
 
 The assignee of a lease cannot, by assignine' over, mt rid Obligation of 
 
 '^ ' -J o a > b lessee's 
 
 of his liabilities for breaches of covenant committed during covcuants. 
 
 the period of his own occupation. And hence, if the assignee 
 
 of a lease devises the leaseliold, although the devisee may 
 
 take it subject to the liability to do repairs wliich Avere 
 
 wanted at the death of such assignee, yet the executors of 
 
 the assignee are still liable, as between themselves and the 
 
 lessor ; and they are entitled to have an indemnity in indemnity (o 
 
 executors of 
 
 respect of such liability before the devisee is let into pos- assignee, 
 session (./;). And, except so far as the stat. 22 & 23 Vict. c. 35, 
 s. 27, may protect them, executors of an assignee are entitled 
 to have a fund set apart out of the assets for their indemnity, 
 on their assigning to a purchaser, though he covenant to 
 perform the covenants and to indemnify (//). But, as we 
 have seen, the obligation of the lessee's covenants, thougli 
 
 (r) Piggott v. Btratton, 1 Johns. («) Bhurp v. .Uilllgai), 23 Beav. 
 
 341. 419. 
 
 (s) Propert v. Parker, 1 My. & K. (,r) HicUing v. Boyer, 3 Mac. & 
 
 280 ; Wilhraham v. Lkesey, 18 G. 635. 
 
 Beav. 206. {,j) Brewer v. Pocock, 23 Bear. 
 
 {t) Watk. Oouv. 3rcl ed. 177. 310 ; see supra, 659.
 
 696 OF LEASES AND UNDERLEASES. 
 
 pt. III.T.12, it will pass to an assignee of the whole term, is not com- 
 Cu. 2, s. 6. J- ° ' 
 
 mnnicatcd to an nndeiiessee (z). 
 
 Renewal (a). By the stat. 4 Cleo. 2, c. 2'8, s. G, reciting that leases for 
 lives or years could not be renewed without a surrender of 
 all the underleases derived out of the same, it is enacted 
 that all future renewals of leases for lives or years shall be 
 valid without the surrender of any derivative leases (h). 
 
 By the stat. 1 Will. 4, c. 65, s. 18, if persons bound to 
 renew are out of the jurisdiction of the Court, renewals are 
 directed to be made by a person appointed by the Court 
 of Chancery in the name of the person who ought to have 
 renewed. 
 
 When a renewable leasehold estate is devised to trustees 
 in trust for one person for life, remainder in trust for 
 another for life, remainder in trust for a third person, with 
 a direction to renew, and pay the fine out of the rents and 
 profits, it seems to be the duty of the trustees to provide 
 an accumulating fund out of the rents and profits during 
 the enjoyment of the first tenant for life, to answer the 
 renewals to be made in his time, and to pursue the same 
 conduct during the life of the second tenant for life (c). 
 
 Where a testator gives his leaseholds to trustees for 
 legatees in succession, and upon trust that, " if the trus- 
 tees shall think it proper or advantageous, as to those 
 vdiicli are customarily or may be renewed, they shall or 
 lawfully may endeavour to effect renewals upon such 
 terms as they shall think proper ; " this does not make it 
 compulsory on the trustees to renew, if they can by possi- 
 bility obtain a renewal ; for then they would be compelled 
 to pay any sum, however unreasonable, which might be 
 demanded by the lessor. Yet, on the other hand, it does 
 not give them a discretion to refrain from exercising the 
 
 (z) See supra, p. 661—2. (h) 4 Cruise T. 32, c. 5, § 59. 
 
 (a) See stat. 23 & 24 Vict. c. ] 45, (r) 1 Rop. Leg. by White, 819. 
 
 BS. 8, 9 ; iufra, Part IV. Tit. 1, c. 2.
 
 OF LEASES AND UNDERLEASES. 697 
 
 power of renewal at their arbitrary will and pleasure. ^q^^I^-Y- 
 
 But it imposes on tlieni the duty of endeavouring to effect 
 
 a renewal, if they can do so on reasonable terms {(^). 
 
 The right of renewal may be forfeited by the laclics of 
 the tenant in not applying for a renewal within the time 
 mentioned in the lease (<?). 
 
 In the absence of any expressions to the contrary, 
 where a renewal becomes impracticable, the fund reserved 
 by the trustees out of rents for the purpose of renewal, 
 belongs absolutely to the tenant for life (/). 
 
 Covenants for renewal are frequently inserted in leases, Coveuant for 
 
 renewal. 
 
 and are of two kinds : covenants for granting another 
 lease of the thing demised; and covenants for renewal, 
 not only on the expiration or surrender of the original 
 lease, but also on the expiration or surrender of all future 
 leases made under such a covenant, which is usually 
 called a coveuant for perpetual renewal (</). A covenant 
 for renewing a lease under the same covenants means only 
 a second lease under the same covenants as the former, 
 with the exception of the covenant for rencAval (Ii). And 
 where a person grants a lease, with a covenant for per- 
 petual renewal, and an agreement that the new lease and 
 leases should contain the same rents, covenants, &c., as 
 were contained in the lease so granted by him, and his 
 trustees grant a new lease, they are not required to intro- 
 duce a covenant by themselves for renewal, but the proper 
 form is for them to recite the original covenant for per- 
 petual renewal, and to declare the new lease to Ije granted 
 in pursuance of it (i). 
 
 {d) Mortimer v. Watts, 14 Beav. (h) 4 Cruise T. 32, c. 25, § 103 ; 
 
 616. Watk. Conv. 3rd ed. by Prest. 178. 
 
 (c) 4 Cruise T. 32, c. 25, § 111. (0 TAc Copper Mininrj Company 
 
 (/) Morres v. Hodges, 27 Beav. v. Beach, 13 Beav. 478 ; decided by 
 
 625. Sir J. Leach ; Hodges v, Blagrave, 
 
 (g) 4 Cruise T. 32, c. 25, § 98. 18 Beav. 537.
 
 698 
 
 or LEASES A^-D UNDERLEASES. 
 
 rT.iJi.T.12, If a lessee for life or years takes a new lease of the 
 
 Cn. 2, s. 5. 
 
 -77-- — same land, and one term is incompatible witli tlie other, 
 
 Effect of •' ^ 
 
 ieaief ^ °^^ ^^ embracing part of the same period, this is a surrender 
 in law of the first lease. And" this rule applies although 
 the second lease he for years, A\-here the first was for 
 life ; or although the second lease be for a less number of 
 years than the first ; and although the second lease be 
 voidable as being made upon condition ; and although the 
 second lease be to the lessee and a stranger, or to the 
 lessee and his wife ; and although the second lease be by 
 •word only, and the first lease be by deed, so far as such 
 second lease by word may be valid ; and although the 
 second lease be in another right (as if the husband have a 
 lease for years in right of his wife, and then take a new 
 lease to himself in his own name) ; and although the first 
 lease was to begin presently and the second lease is to 
 begin at a day to come, or e converso (j). But if the 
 second lease is not to begin until the first lease end, the 
 taking of the second lease is no surrender of the first 
 lease (k). And in the case of a surrender implied by law 
 from the acceptance of a new lease, a condition ought also 
 to be understood as implied by law, making void the sur- 
 render in case the new lease should be nuide void (/). And 
 in the case of an express surrender, so worded as to show 
 the intention of the parties to make the surrender only in 
 consideration of the grant, such surrender is also condi- 
 tional to be void in case the grant should lie made void (7/1). 
 Lease of A Icasc of charity property for ninety-nine years, at a 
 
 property. fixed rent, not being a building lease, and containing no 
 contract to repair or lay out money thereon, is invalid (>(). 
 
 U) 2 Pres. Shop. T. SOL 
 (/.■) 2 Pres. Shep. T. 302. 
 (/) Doe d. Earl of Egremont y. 
 Courtencuj, 11 Ad. & E. (N. S.) 702. 
 (m) Doe d. Earl of Egremont v. 
 
 Courtenay, 11 Ad. & E. (N. S.) 702. 
 
 (n) Att.-Gen, v. Foord, 6 Beav, 
 
 288 ; Att.-Gen. v. Iloiham, 3 Euss. 
 
 415.
 
 OP LEASES AND UNDEl{LEASES. Gt)9 
 
 And a building lease of cliarity property for more than pt.iii.t.i2, 
 
 ninety-nine years cannot stand, unless there is some 
 
 special ground on wliicli it can be protected (o). 
 
 A lessee is bound to incpire into, and is bound by all ^°°j'e'"f*'^® 
 covenants into whicli Ins lessor lias entered {p) And a per- ^"^''"'''^"'^• 
 son contracting for an underlease lias notice of all the cove- 
 nants contained in the original lease, or at least of those 
 which are usual in leases of property of that description, 
 and he will be bound to take an underlease subject to 
 those covenants {q). 
 
 A ri'2,lit of entry in a lease cannot be reserved to a Right of 
 
 . . entry. 
 
 stranger ; and tlierefore if it ajipears upon the face of the 
 lease that the legal estate is in a mortgagee or a trustee for 
 him, and the right of entry is reserved to the mortgagor, it 
 will be void (r). 
 
 By the general custom of all manors, every copyholder leases of 
 
 copyholds. 
 
 may make a lease for any term ol years, if he can obtain a 
 licence from the lord ; and even without such licence, he 
 may demise his tenement for one year ; and the interest 
 thus created is not of a customary nature, but a com- 
 mon law term (s). The lord of a manor cannot authorise 
 an e(piitable tenant of a copyhold to demise ; because there 
 is no privity of estate between them (/). The lord can 
 only grant a licence to lease during the continuation of his 
 own estate in the manor. Therefore a lease for years 
 made by licence of a lord who is only tenant for life, will 
 cease at his death (u). In the case of a lease by licence of 
 the lord, the lessee may assign it, or make an underlease 
 for years without any new licence ; for the lord's interest 
 
 (o) Lord Langdalc in Att.-Gen, (r) Coote Mortg. 3rd ed. 338. 
 
 V. Foord, 6 Beav. 290. (s) Burton, § 1313 ; 1 Cruise T. 
 
 (p) Fielder V. Slater, L. E. 7 Eq. 10, c. 3, § 18. 
 
 Cas. 523. {t) 1 Jarm & Bytli. by Sweet, 
 
 (q) See Cosscr v. Collinge, 3 My. 433, n. (a). 
 
 & K. 283 ; Wilhraham t. Livesejj, (m) 1 Cruise T. 10, c> 3, § 20, 
 18 Beav. 206.
 
 700 
 
 OF LEASES AXD UNDERLEASES. 
 
 Leases must 
 be by deed. 
 
 pt.iii.t.12, is discliargcd for so many years. And if the copyholder 
 
 shoukl die witliont heirs, still the lease would stand 
 
 against the lord, by reason of his licence, which amounts 
 to a confirmation («), A lease made contrary to the 
 custom of a manor is good against all but the lord ; and 
 even as against him it is not void, but only a ground of 
 forfeiture, which he may waive (y). 
 
 By the stat. 7 & 8 Vict. c. 76, s. 4, it is enacted, " that 
 no lease in writing of any freehold, copyhold, or leasehold 
 land shall be valid as a lease unless the same shall be 
 made by deed ; but any agreement in writing to let any 
 such land shall be valid and take effect as an agreement 
 to execute a lease ; and the person who shall be in the 
 possession of the land in pursuance of any agreement to 
 let may, from payment of rent or other circumstances, be 
 construed to be a tenant from year to year." This was 
 repealed as from the 1st of October, 1845, by the stat. 
 8 & 9 A^ict. c. 106. But by s. 3 of that Act, it is enacted, 
 that " a lease required by law to be in writing {z), of any 
 tenements or hereditaments, made after the 1st of October, 
 1845, shall be void at law, unless made by deed," Although 
 an instrument may be void as a lease at law in conse- 
 quence of this enactment, yet it may be used as an agree- 
 ment in equity {a), or to prove the terms on which the 
 tenant holds as constructive tenant from year to year ; so 
 that his tenancy, which may be determined during the 
 term by a half year's notice at the proper time, will, at the 
 end of the term, expire without notice {h). 
 
 By the stat. 7 & 8 Vict. c. 76, s. 12, it is enacted, " that 
 
 Where 
 remedies for 
 
 {x) 1 Cruise T. 10, c. 3, § li>. 
 
 {y) Doe d. Rohinson v. Bousfidd, 
 6 Ad. &E. (N. S.) 492. 
 
 (z) See supra, p. 621. 
 
 (a) Parlcr v. Taswell, 2 D. & J. 
 559. 
 
 {h) Tress v. Sarm/e, i El. & Bl. 
 
 36 ; see also Doe d. Bavenish v. 
 Moffatt, 15 Q. B. 257, in which 
 there was a similar decision, under 
 the stat. 7 & S Vict. c. 76, s. 4, And 
 see Tidcij v. Mollett, 16 C. B. (N.S.) 
 298 ; Hayne v. Cummiiujs, Id. 421.
 
 OP LEASES AND UNDERLEASES. 701 
 
 3rsion of any land, expectant on a lease, shall 
 be memed in any remainder or other reversion or estate. 
 
 where the reversion of any land, expectant on a lease, shall rT.iiLT.i2, 
 
 rent, cove- 
 
 the person entitled to the estate into which such reversion u^ts aud 
 
 shall have merged, his heirs, executors, administrators, n"t\o'bff 
 
 successors, and assigns, shall have and enjoy the like ad- by'^thr'*'"''^ 
 
 vantage, remedy, and benefit against the lessee, his heirs, immediate 
 
 . . 1 • p reversion, 
 
 successors, executors, administrators, and assigns, for non- 
 payment of the rent, or for doing of waste or other for- 
 feiture, or for not performing conditions, covenants, or 
 agreements contained and expressed in his lease, demise, or 
 grant, against the lessee, farmer, or grantee, his heirs, 
 successors, executors, administrators, and assigns, as the 
 person who would for the time being have been entitled to 
 the mesne reversion which shall have merged would or 
 might have had and enjoyed if such reversion had not been 
 merged." This was repealed as from the 1st of October, 
 1845, by the stat. 8 & 9 Vict, c, 106. But by s. 9 of that when the 
 
 reversion on 
 
 Act, it is enacted, " that when the reversion expectant on =* ''^^^e is 
 
 ' ' ^ gone, Ibe 
 
 a lease made either before or after the passing of this Act, be'deciMd'" 
 of any tenements or hereditaments, of any tenure, shall, sioV.'^^^^" 
 after the said first day of October, 1845, be surrendered or 
 merge, the estate which shall for the time being confer as 
 against the tenant under the same lease the next vested 
 right to the same tenements or hereditaments, shall, to the 
 extent and for the purpose of preserving such incidents to, 
 and obligations on, the same reversion, as, but for the 
 surrender or merger thereof, would have subsisted, be 
 deemed the reversion expectant on the same lease."
 
 Definition. 
 
 702 , OF AX EXCHAKGi;. 
 
 Section VI. 
 Of an Exchaiujc (c). 
 Pr. III.T.12, An exchanu'e is an arrano-enient between two persons, or 
 
 Ch. 2, s. G ^ ^ ^ 
 
 between two classes of persons by eacli of wliicli property 
 is held in commimity, that each person or class shall divest 
 himself, herself, or themselves of his, her, or their o^vn 
 property in favour of the other, and in lieu thereof shall 
 take the property of the other, 
 ucqnisitesto To tlic Validity of exchano'es at common law, five thinas 
 
 an exchange ./ o o 
 
 faJ^"'""""" are requisite : 1. That the the two subjects l)e of the same 
 general nature. Thus, real estate cannot be exchanged for 
 personal estate : but real estate of one kind may be ex- 
 changed for real estate of another kind ; so that corporeal 
 hereditaments may be exchanged for incorporeal heredita- 
 ments {d). 2. That the parties take estates of the same 
 general denomination, as regards the quantity of interest. 
 Thus, an estate in fee simple cannot be exchanged for an 
 estate tail, or either of them for an estate for life. But an 
 estate in fee simple maybe exchanged for a base fee. And 
 if a tenant in tail grants lands in fee, so as to give a base 
 fee in exchange with a tenant in fee, this is a good ex- 
 change until avoided by the issue. And an estate tail 
 after possibility of issue extinct may be exchanged for an 
 ordinary estate for life, as both are of the same duration (c). 
 
 (c) Powers of exchange are con- Tit. 1, c. 2. 
 
 ferred by various statutes, as to {d) 4 Jann. & Bytb. by Sweet, 1 
 
 whicli see Stamp's Index to the CoLitt. .50b; 4 (Jruise T. S"2, c. 6, 
 
 Statute Law, tit. "Exchange ; " § 4 ; 2 Pres. Shep. T. 293—4. 
 
 Burton, § 240; and see Minct v. {c) 4 Jarm. & Byth. by Sweet, 1, 
 
 Leman, 20 Beav. 269; 7 D. M. & 2; 2 Pres. Shep. T. 295; 4 Cruise 
 
 G. 340. As to exchanges, reserving T. 32, c. 6, § 3, 4 ; 1 Cruise T. 4, 
 
 or excepting minerals, see stat. 25 § 9 ; Burton, § 63 ; 2 Bl. Com. 126, 
 
 & 26 Vict. c. 108, infra, Part IV. 323 ; Co. Litt. 28 a, 51 a.
 
 OF AX EXCHANGE. 703 
 
 3. The word "excliange" must be used (/). 4. Entry PT.ni.T.i2. 
 
 (but not livery of seisin) is also requisite to give effect to 
 
 an exchange ; and therefore if either party die before entry, 
 his heir may avoid the exchange {(1). 5. An exchange, 
 since the Statute of Frauds (29 Car. 2, c. 3), must be in 
 writing, and even before the statute 7 & 8 Vict. c. 76, if 
 the hereditaments whereof the exchange was made con- 
 sisted of reversions, rents, or other incorporeal heredita- 
 ments, or if they lay in several counties, it must have been 
 by deed Qi). And by the stat. 7 & 8 Vict. c. 76, s. 3, it 
 was enacted, " that no exchange of any freehold or lease- 
 hold land shall be valid at law, unless the same shall be 
 made by deed." And although this enactment was re- 
 pealed l)y the stat. 8 & 9 Vict. c. 106, yet by s. 3 of that 
 statute, it is enacted, " that an exchange of any tenements 
 or hereditaments, not being copyhold, made after the first 
 day of October, 1845, shall be void at law, unless made by 
 deed." 
 
 It is not necessary that both estates be in possession ; 
 for an estate in possession may be exchanged for an estate 
 in reversion. Neither is it necessary that there be an 
 equality in the value or quantity of the lands. For if the 
 land ot one party be worth 100/., and the land of the other 
 but 10/., or if the land of one of the parties be 100 acres 
 and the land of the other but ten acres, the exchange is 
 good; Neither is equality in the quality or manner of the 
 estate requisite. For an estate in joint tenancy may be 
 exchanged for an estate in severalty or in connnon. And 
 if A., tenant for life, and B., the owner of the remainder or 
 reversion in fee, exchange with tenant in fee, and grant to 
 
 (/) Co. Litt. 51 b ; 4 Jarm. & § 6 ; Burton, § 63 ; 2 Bl. Com. 323; 
 
 Bytli. by Sweet, 2 ; Burton, § 63 ; Watk. Conv. 3rd eel. by Prest. 179, 
 
 Watk. Conv. 3rd ed. by Prest. 181. 180. 
 
 {g) Co. Litt. 50 b, 51 b ; 2 (h) i Jarm. & Byth. by Sweet, 1, 
 
 Pres. Shep. T. 297 ; 4 Jarm. & Byth. 2 ; Co. Litt. 50 a, 51 b ; Watk. 
 
 by Sweet, 2 ; 4 Cruise T. 32, c. 6, Conv. 3rd ed. by Prest. 180.
 
 704 OF AN EXCHANGE. 
 
 Pr. II1.T.12, hiiii ill fee, while lie <j;raiits to tliein, to hold to A., the 
 
 Cu. 2, s. G. . . 
 
 — — tenant for life, with remainder to B. in fee, the exchange is 
 
 good. And if the laud of one of the parties is of a defeas- 
 ible title, and tlie land of the other of an indefeasible title, 
 this exchange is good till it be avoided (^). 
 
 Nor is it necessary that the things exchanged should l)e 
 in esse at the time of exchange. For a man may grant a 
 rent de novo out of his land in exchange for a manor. But 
 a mere hope or chance of succession cannot be exchanged 
 for an estate {j). 
 
 An exchange in the strict legal sense of the word cannot 
 be between three persons in respect of three distinct pro- 
 perties ; the principles of it not being applicable to more 
 than two distinct contractmg parties, for want of the 
 mutuality and reciprocity on which its operation so en- 
 tirely depends. But if a tenant for life, and a remainder- 
 man in fee, exchange with a tenant in fee, or if two joint 
 tenants exchange, with a sole tenant, such exchanges are 
 good (/j). 
 
 Implied ]3y the old law, in every deed of exchange in which the 
 
 warranty. j ^ j o 
 
 word " exchange " was used, there was an imjjlied warranty 
 arising from that word (I). So that if an exchange was 
 made, and before or after the parties entered, all or part of 
 the land given to either party was recovered from him 
 either absolutely or for a particular estate only, upon an 
 elder title, that party might enter again upon his own land 
 which he gave in exchange, and either avoid the whole 
 exchange, or recover an equivalent portion thereof (771). 
 But the benefit of this implied warranty under the old law 
 was confined to the parties themselves and their heirs, and 
 
 (i) 2 Pres. Shep. T. 296 ; 4 Cruise 181. 
 
 T. 32, c. 6, § 3, 4 ; Co. Litt. 51 a. {1} 4 Cruise T. 32, c. 6, § 8. 
 
 (j ) 2 Pres. Sliep. T. 293. (m) 2 Pres. Shep. T. 290, 298 ; 4 
 
 {1-) Co. Litt. 50 b, n, 1, 51 a, Jarm. & Bytli. by Sweet, 3. 
 
 n. 1 ; Watk. Conv. 3rd ed. by Prest.
 
 OF AN EXCHANGE. 705 
 
 did not extend to alienees, except for tlieii' defence as ^^- ^"•'•'•l^' 
 
 ' '- Ch. 2, s. 6. 
 
 against tlie heir of tlie person against whom the warranty 
 was implied. If therefore either party aliens, eitlier by 
 deed or will, the remedy is gone from that party, but only 
 as to him ; for the other party who has not aliened, or his 
 heirs may still, in case of eviction from his lands, enter 
 upon the alienee, notwithstanding the want of a reciprocal 
 remedy («.) A mere defect of title, however, without an 
 eviction, will not defeat an exchange (o). 
 
 By the stat. 7 & 8 Vict. c. 76, s. 6, it was enacted, that 
 the word exchange should not have the effect of creating 
 any warranty or right of re-entry, nor any covenant by 
 implication. And although this was repealed by the stat. 
 8 e% 9 Vict. c. 106, as from the 1st of October, 1845, yet ' 
 by s. 4 of that statute it is enacted, that an exchange of 
 any tenements or hereditaments, made by deed executed 
 after the 1st of October, 1845, shall not imply any con- 
 dition in law. 
 
 The modern practice has been to effect an exchange of Exchanges 
 
 ° by lease and 
 
 real estate by lease and release, statutory release, or sta- gj^^^^j®;. 
 tutory grant, containing mutual conveyances to the parties ; gtltutory"^ 
 in which case the estates are vested in tlie parties by the ^'^"^ ' 
 operation of a statute, without any entry ; and yet if the 
 word " exchange " was used, the incidents annexed to an 
 exchange at common law were preserved {j)). 
 
 Where an exchange is made under a i^ower of sale and Exchange 
 
 ... under a 
 
 exchange, although the power is silent as to paying money power, 
 for owelty of exchange, yet the donees of the power may 
 make such payment. And the death of one of the parties 
 to such an exchange before the transaction is completed, 
 will not invalidate a legal execution of the power {cj). 
 
 (n) 2 Pres. Sliep. T. 291 ; 4 Jarm. Conv. 3rd ed. by Prest. 180. See 
 
 & Bj'th. by Sweet, 3. enactment stated infra, p. 708, as to 
 
 (o) 2 Pres. Shep. T. 298. decrees for exchanges. 
 
 {p) 4 Cruise T. 32, c. 6, § 7; 4 (2) 2 Sugd. Pow. 482. 
 Jarm. & Byth. by Sweet, 6 ; Watk.
 
 VOG OF AN EXCHANGE. 
 
 pt. in.T.12, When an cxcliano;e is made by a tenant in tail, the issue 
 
 Ch. 2, s. 6. ^ _ ^ 
 
 in tail, after the death of his ancestor, may avoid it. And 
 
 Exchange by 
 
 tenaut in the pcrsons in reversion or remainder may treat the exchange 
 as void, and avail themselves of their title (v). But if the 
 issue occupies the lands taken in exchange by his ancestor, 
 the exchange is thereby made good for the lifetime or 
 ownership of the issue in tail. And each successive gene- 
 ration of issue may afhrm the exchange for liis, her, or their 
 time (s). 
 
 Section VII. 
 Of a Partition (/). 
 
 Definition. 
 
 pt.iii.t.12. a partition is a deed by which two or more joint tenants, 
 "' ' ^' ■ coparceners, tenants in common, or heirs in gavelkind, 
 
 divide the property, so as to give to each a distinct part, 
 
 to be held in severalty, 
 voiuniary Wlicrc all the joint owners of an estate are desirous to 
 
 persons ' make a partition, and are personally competent to bind 
 
 competent to 
 
 bind tiieir tlicir iutcrests, they have only to agree on the allotments 
 
 interests. > j jo 
 
 to be made to the respective parties, and to execute the 
 requisite conveyance or conveyances (?;). 
 Compulsory If any of the joint owners, whether joint tenants, tenants 
 in common, coparceners, or heirs in gavelkind, are unwil- 
 ling to concur with the rest in making partition, or by 
 reason of minority or mental imbecility are incapable of 
 concurring, or for any other cause cannot come to any 
 amicable arrangement for dividing the estate, any one or 
 
 (?•) 2 Pres. Sliep. T. 299. cepting minerals, see stat. 25 & 
 
 (s) 2 Pres. Shep. T. 299. 26 Vict. c. lOS, infra, Part IV. Tit. 
 
 (t) Powers of partition are con- 1, c. 2. 
 
 ferred by various statutes. See ()() 6 Jarm. & Byth. by Sweet, 
 
 Stoimp's Index to the Statute Law. 586. 
 
 As to partitions, reserving or ex- 
 
 partition.
 
 OF A PAI^TITIOX. 707 
 
 more of tliem may, by proceedings in Chancery, procure a rj^"f t.i^?, 
 
 partition to be made (cc), And this power of the Court is 
 
 expressly extended to lands of copyhold or customary 
 tenure by the statute 4 & 5 Vict. c. 35, s. 85. 
 
 The mode in Avhich relief is administered in equity is, 
 by first ascertaining the rights of the several parties in- 
 terested ; and then issuing a commission to make the par- 
 tition ; and, on the return of the commission and confirma- 
 tion of the return by the Court the partition is finally com- 
 pleted by mutual conveyances of the lots made to the 
 several parties (?/). And the same conveyances are neces- 
 sary as if the parties had agreed to a private partition (z). 
 Formerly, if the conveyances could not be executed on 
 account of infancy, or on account of an executory interest, 
 the decree could only put the parties in possession, and 
 secure them in the enjoyment of the parts allotted to them 
 until effectual conveyances could be made («). The Court 
 would decree a partition even in a suit by or against per- 
 sons who were only tenants for life or years ; and the 
 decree would be binding on all whom they virtually repre- 
 sented, but not on otlier persons. Thus, a decree in a suit 
 by or against a tenant for life would be binding on the re- 
 mainderman who was not in esse at the time, on the ground 
 of virtual representation, if the Court was of opinion that it 
 would be for the benefit of such remainderman that the 
 agreement should be carried into effect, either as it stood, 
 or with such variations as tlie Court might think proper (h). 
 But a tenant for years or for life could not insist, as against 
 the owners of the other shares, upon a partition to endure 
 beyond his own estate (c). 
 
 {x) G Jarm. & Byth. by Sweet, (a) Story's Eq. Jur. § 652 ; G 
 
 587, 600, 603. Jarm. & Byth. by Sweet, 609. 
 
 (y) Story's Eq. Jur. § 650 ; G (b) Story's Eq. Jur. § 656, 656, a. 
 
 Jarm. & Byth. by Sweet, 600. (c) 6 Jarm. & Byth. by Sweet, 
 
 (s) 6 Jarm. & Byth. by Sweet, 603. 
 609.
 
 708 
 
 OF A PAETITION. 
 
 PT.Iir.T.12, 
 C'H. 2, s. 7. 
 
 Court to 
 declare what 
 jiartiis are 
 trustees of 
 lands com- 
 prised ill <any 
 suit, aud as 
 to tlie 
 interests of 
 ])ersons 
 unborn, 
 
 Sale. 
 
 Jurisdiction 
 of county 
 courts. 
 
 Modes of 
 
 effecting 
 partition by 
 conveyance 
 of freeholds. 
 
 By tli6 Stat. 13 & 14 Vict. c. GO, s. 30, ''where any decree 
 sliall be made by any court of equity for tlie specific per- 
 fornianco of a contract concerning any lands, or for the 
 partition or exchange of any lands, or generally when any 
 decree shall be made for the conveyance or assignment of 
 any lands, either in cases arising out of the doctrine of 
 election or otherwise, it shall be lawful for the said court 
 to declare that any of the parties to the said suit wherein 
 such decree is made are trustees of such lands or any part 
 thereof, ^vithin the meaning of this Act, or to declare con- 
 cerning the interests of unborn persons who might claim 
 under any party to the said suit, or under the will or 
 voluntary settlement of any person deceased who vras 
 during his lifetime a party to the contract or transactions 
 concerning which such decree is made, that such interests 
 of unborn persons are the interests of persons who upon 
 coming into existence would be trustees within the mean- 
 ing of this Act ; and thereupon it shall be lawful for the 
 Lord Chancellor, intrusted as aforesaid, or the Court of 
 Chancery, as the case may be, to make such order or orders 
 as to the estates, rights, and interests of such persons, born 
 or unborn, as the said Court or the said Lord Chancellor 
 might under the provisions of this Act make concerning 
 the estates, rights, and interests of trustees born or unborn." 
 
 By the stat. 31 & 32 Vict. c. 40, the Court of Chancery 
 may order a sale, instead of a division. And jurisdiction, 
 in cases of partition of property not exceeding 500/., is 
 given to the county courts. 
 
 A partition of estates of freehold or inheritance is effected 
 either by all the joint tenants, tenants in common, copar- 
 ceners, or heirs in gavelkind, conveying the particular allot- 
 ments by separate deeds to releasees or grantees to the use 
 of the particular persons to whom they are respectively 
 allotted (f7) ; or by all of them conveying the entirety by 
 (rf) 6 Jarm. & Bytli. Ijy Sweet, 595.
 
 or A ]'AiriiTioN. 709 
 
 one conveyance to a releasee or si^'T^ntee to uses^ and then i^r-in. T.12, 
 
 •^ " Cii. 2, s. 7. 
 
 limiting, by the same deed, the particular allotments to the — 
 
 use of the particiUar persons to whom they are respectively 
 allotted (e). 
 
 A partition of leaseholds has been -usually effected by Mode of 
 
 J- JO effect uig 
 
 an assignment of the entirety by all the part owners to a |i';^Jnment' 
 third person, upon trust to assign to them respectively ^^^^^'^'^''^s- 
 the parts to be taken by them in severalty, or by an 
 assignment by each joint owner to the others of his un- 
 divided share in the parts to be so taken by them in seve- 
 ralty (/). 
 
 Every distinct part of the property need not be divided ; ^°f4°^ 
 nor need the property be equally divided. One part or 
 subject of ownership (as a house) may be allotted to one, 
 and another part or subject of ownership may be allotted 
 to another ; and any inequality in value may be com- 
 pensated l)y a sum of money or rent for owelty or equality 
 of partition {(/). 
 
 Coparceners were compellable to make partition l^y the p^iitition by 
 common law. And hence, if an equal partition is made by tairami" 
 an infant, or Ijy a tenant in tail, or by husband and wife aud^vi'vel 
 seised in right of the wife, even by an ordinary assurance, 
 it is binding on tire infant, the issue in tail, and the wife 
 and her heirs ; though, if unequal it is voidable. But still, 
 in order to prevent the question of the equality of the par- 
 tition from arising, it is better, in the case of a parti- 
 tion by a tenant in tail or by husband and wife, to have 
 recourse to the statutory mode of barring the issue in tail 
 and the wife (Ji). Joint tenants and tenan.ts in connnon 
 were not compellable to make partition by the common 
 law. And, hence, if even an equal partition is made by an 
 
 (e) G Jarm. & Bytli. by Sweet, (^) Sec 6 Jarm. & Byth. by Sweet, 
 
 596. G02 ; Co. Litt. 169 a, b. 
 
 (/)6 Jam. & Hyth. by Sweet, (/i) See 6 Jarm. & Byth. by Sweet, 
 
 618, 590, 591, 
 
 ^3
 
 710 OF A TARTITIOX. 
 
 PT.iir. T.12, infant, or tenant in tail, or Inisband and wife seised in her 
 
 Oil. 2, s 7. ' ' 
 
 ~^~ nglit, holding in joint tenancy, the deed of partition is 
 governed hy the same rnles as conveyances or other acts 
 done by tliem. So, tliat in order to hind the issne in tail 
 and the wife and her heirs an enrolled or acknowledged 
 assurance under the Fines and Eecoveries Abolition Act 
 is necessary ('/). For the same reasons, a coparcener and 
 her husband may grant a rent in fee for equality of parti- 
 tion out of her part, if the partition will then be equal; but 
 a joint tenant and her husband cannot grant such a rent {j). 
 
 MuditiL There was a condition annexed to every partition 
 
 between coparceners, that, if either the whole, or any 
 share, or an estate for life or in tail thereout, were evicted, 
 the coparcener so evicted, if he or she had not aliened 
 his or her whole estate, might enter on the part or parts 
 allotted to the other or others, and avoid the partition 
 against the other or others, or his, her, or their alienee 
 or alienees. But if a coparcener had aliened his or her 
 whole estate, neither he or she nor his or her alienee 
 had any such right of entry, because the privity between 
 tlie coparceners was wholly destroj^ed (h). And no such 
 condition existed in the case of joint tenants or tenants 
 in common (/). The reason of the condition in the case 
 of coparceners would seem to bo, that, as they were com- 
 pellable to make partition l)y the common law, that law 
 took care that they should not be prejudiced thereby. 
 However, it is enacted by the stat. 8 & 9 Vict. c. lOG, s. 4, 
 that " a partition of any tenements or hereditaments made 
 by deed executed after the 1st October, 1845, shall not 
 imply any condition in law." 
 
 c^«4 , It was enacted by the statute 7 & 8 Vict. c. 76, s. 3, 
 
 lequirca. -^ ' ' 
 
 (/) Sec G Jarm. & Bytli. by Sweet, (i) 2 Cruise T. 19, § 30 ; Burton, 
 
 501. § 319; Co. Litt. 173 b, 174 a, b. 
 
 {j) G .Jarui. & Byth. by Sweet, (?) 4 Cruise T. 32, c. 6, § IG. 
 591.
 
 OF A rxVRTITIOX. 711 
 
 " that no partition of any freuliold or leaseliold land shall rT.ni.T.12, 
 
 ^ -^ Cii. 2, s. 7. 
 
 be valid at law, unless the same shall be made hy deed." 
 
 And although this Act was repealed by the statute 8 & 9 
 Vict. c. 10(j ; yet, by s. 3 of that statute, it is enacted, that 
 " a partition of any tenements or hereditaments, not being- 
 copyhold, made after the 1st October, 1845, shall be void at 
 law, unless made by deed." 
 
 Section VIII. 
 0/ a Release and of an AcjuUfance. 
 A relea,se is a deed by which a ri-ilit is extino-uished, or ri.Tii. T.12, 
 
 ■^ ^ ^ Cu. 2, s. 8. 
 
 1)V ^\•llich an estate or interest in things real or personal is 
 
 ^ ^ Definition of 
 
 conveyed to a person who has already some estate or in- '"^ i-«icase. 
 terest in possession in the same {m). 
 
 An acquittance is a discharge in writing of a sum of Definition of 
 
 , ail acquit- 
 
 money or other duty which ought to be paid or done : as, *'^"'^^- 
 if one is bound to pay money on an obligation or rent 
 reserved upon a lease, and the person to whom the money 
 or the rent ought to be paid or rendered, upon the receipt 
 thereof or upon some other agreement between them, 
 makes a writing under his hand, witnessing that he is paid 
 or otherwise satisfied, and therefore acquits and discharges 
 the former of the same {11). 
 
 I. The Differeut Kinds of Releases and their Operation. 
 
 Eeleases may enure in four ways : 1. By way of mitter ways in 
 Testate. 2. By way of mitter le droit. 3. By way of ^^^^'^f""'''^" 
 extinguishment. 4. By way of creation or enlargement of 
 an estate (0). 
 
 {m) See Pres. Sliep. T. .020, and (//) 2 Pres. Sliep. T. 347. 
 
 different kinds of releases, infra, p. [ii) Co. Litt. 193 b, and 267 a, 
 
 711—713. n. (1) 5 2 Bl. Com. 324—5.
 
 712 
 
 r.ELEASES AND THEIE OrERATIOX. 
 
 Tt. iri.T.12, 
 
 Cn. 2, s. 8. 
 
 Kclcasu Ijy 
 ■way of 
 iiiitter 
 I'cstato 
 
 Fielcases Ly 
 way of 
 witter le 
 di'oit. 
 
 Pwelea^o by 
 way of 
 extiiiguish- 
 
 UltiUti 
 
 AVlieii two or more persons become seised of the same 
 estate by a joint title, either by contract or descent, as joint 
 tenants or coparceners, and one of them releases his right 
 to the other, such release is said to enure by way of niitter 
 Testate, i. e., passing an estate ( j;). In releases that enure 
 by way of mitter Testate, a fee will pass by such a release 
 without any words of limitation, where the parties were 
 seised in fee by a joint title ; because the release, by dis- 
 charging the claims of one of them, causes the releasee to 
 have the whole in fee (q). 
 
 Releases are said to enure by way of mitter le droit, i. c, 
 transferring the right, Avhere a person wdio has been dis- 
 seised releases to the disseisor or to his heir or feoffee (?■). 
 If a release of right is made for one day or one hour, and 
 the right has once gone by such release, without any con- 
 dition, &c., it is gone for ever (s). Hence, this kind of 
 release is good without any words of limitation, whether 
 the releasee has a particular estate or the fee simple, and 
 whether he has a freehold in possession or only in remain- 
 der or reversion ; but he must have an estate of freehold in 
 possession, remainder, or reversion (t). 
 
 A release enures by way of extinguishment, where it 
 operates to take a right from the releasor, but the right is 
 such that it cannot be vested in the releasee, and can only 
 be extinguished in his favour. Thus, if a lord releases his 
 seigniory to the tenant, or if a person having a rent or 
 common releases it to the terre-tenant, these releases are 
 said to operate by way of extinguishment ; because the 
 
 (j3) -i Cruise T. 32, c. 6, s. 22 ; 
 Burton, § 50 ; 2 Pres. Shep. T. 327 ; 
 Co. Litt. 267 a, n. (1) ; Watk. Cony. 
 3rd ed. by Prest. 183. 
 
 (q) 4 Cruise, T. 32, c. 6, § 24 ; 2 
 Pros. Shep. T. 327, 346 ; Co. Litt. 
 273 b. 
 
 (r) 4 Cruise T. 32, c. 6, § 2G ; Co. 
 
 Litt. 267 a, n. 1 ; 274 a, n. 1 ; Watk. 
 Conv. 3rd cd. by Prest. 183. 
 
 (s) 9 Jarm. & Byth. by Sweet, 
 810 ; Co. Litt. 274 a. 
 
 (0 2 Pres. Shep. T. 331 ; 4 Cruise 
 T. 32, c. 6, § 24, 27 ; Co. Litt. 
 274 a.
 
 RELEASES AND THEIR OPERATION. 
 
 Iii^ 
 
 tenant cannot have services or rent to receive of himself, ^^■^^^•'''■l^' 
 
 ' Cii. 2, s. 8. 
 
 nor can he take common in his OA^n land (u). A release 
 
 to one of two joint tenants or coparceners by way of ex- 
 tinguishment enures to the benefit of Ijoth ; but it is other- 
 wise M"hen it operates by way of conveyance (a-). 
 
 Eeleases enure by way of enlarorement of estate, when Releases by 
 he who has a remainder or reversion in fee releases all euiargement. 
 his right and interest in the lands to the person who has 
 a prior particular estate, whether in possession or re- 
 mainder (.y). 
 
 To render this kind of release good, it is necessary that 
 there should be a privity of estate between the releasor 
 and the releasee, and also that the releasee should have a 
 vested interest in the lands intended to be released (z). 
 
 "With respect to privity, if a lessee for years in posses- 
 sion makes an underlease, and the reversioner releases fo 
 the lessee for years, this is a good release to enlarge the 
 estate ; because the immediate privity still continues 
 between them. But as there is no privity between the 
 underlessee and the reversioner in fee, the underlessee's 
 estate cannot be enlarged by a grant to him l)y the rever- 
 sioner in fee (a). If a lessee for years, instead of making 
 an underlease, assigns over all the term, the privity is 
 gone, and a release made to him afterwards is void ; but 
 a release made to the assignee of the term is good, to 
 enlarge the estate (Jj). 
 
 In order to take a release, operating by enlargement, from 
 a lessor, a lessee for years, under a common law demise, 
 
 (it) 4 Cruise T. 32, c. 6, s. 35 ; Conv. 3rd ed. by Prest. 182— 4. 
 
 Co. Litt. 267 a, n. 1 • 280 a ; Litt. (z) Co. Litt. 270 a. n. (3) ; 272 b, 
 
 S-. 479, 480 ; Watk. Conv. 3rd ed. n. (1) ; 4 Cruise T. 32, c. 6, § 28 ; 
 
 by Prest. 183. Burton, § 53 ; Watk. Conv. 3rd. ed. 
 
 (x) 2 Pres. Shep. T; 308 j Watk. by Prest. 182, 184. 
 
 Conv. 3rd ed. by Prest. 162, 1G3. (a) 2 Pres. Sliep. T. 324, 326 ; 
 
 {>/) 4 Cruise T. 32, c. 6, § 28 ; Co. Co. Litt. 273 a. 
 
 Litt-. 270 a, u. (3) j 273 aj Watk. {!>) 2 Pres. Shep. T. 326.
 
 714 RELEASES AND THEIR OrEllATION. 
 
 pt. III.T.12, must have entered on the lands before the execution of 
 
 On. 2,8.8. 
 
 the release ; for, till entry, he has only an mteresse ter- 
 mini, which is not capable of being enlarged (c). 
 
 A release to a person having an estate by statute mer- 
 chant, statute staple, or elegit, or to a tenant at will, or to 
 a tenant in dower or by the curtesy, operates to enlarge his 
 or her estate {d). 
 
 It seems to be a general rule, that, whenever an estate 
 may merge in the remainder or reversion, that estate may 
 be enlarged by the release of the remainderman or rever- 
 sioner (c), 
 
 A release to operate by way of enlargement may be 
 made to a vested remainderman for life even before entry 
 because he has an estate of freehold in law (/). But if a 
 man is disseised and has only a right, or if he has a posses- 
 sion only and no estate, of if he has neither estate nor 
 possession, a release made to such a one will not avail to 
 enlarge his estate {g). 
 
 If a tenant for life leases for years, and the reversioner 
 and the tenant for life join in a release to the lessee for 
 years, this is a good release to enlarge the estate ; operating 
 first as the release of the estate for life, and secondly as an 
 enlargement of the estate for life into a fee simple (li). 
 
 The particular tenant cannot release to the reversioner, 
 . but his estate must be extinguished by surrender or merger. 
 On the other hand, the estate of the reversioner cannot be 
 merged in the particular estate or be surrendered to the 
 tenant of that estate ; but it may be released to him by 
 way of enlargement, so as to produce a merger of the par- 
 ticular estate (^). 
 
 (c) 4 Cruise T. 32, c. 6, § 29 ; Co. (e) 2 Pros. Shcp. T. 324- 
 
 Litt. 270 a, n. (2) ; Watk. Conv. (/) 2 Pres. Shep. T. 325. 
 
 3rd ed. by Prest. 20. (,v) 2 Pres. Shcp. T. 325. 
 
 (cZ) 4 Cruise T. 32, c. 6, § 31 ; {h) 2 Pres. Sliep. T. 326. 
 
 Co. Litt. 270 b, 1 ; 272 b. 1 ; AYatk. (/) 2 Pres. Shep. T. 324. 
 Coav. 3rd cd. by Prest. 5.
 
 RELEASES AND THEIR OPERATION. 715 
 
 The operative words in a release enuring by way of ^j^;/yj-g^' 
 transferiino- a rio'lit or of extiuouislimeut, are " remise, : ■ 
 
 f^ o o ' Operative 
 
 release, and for ever quit claim and discharge." The ^°''^'^- 
 operative words of a release in enlargement, by trustees, 
 are " bargain, sell, and release :" those in a similar release 
 by owners, are, '' grant, bargain, sell, release, and confirm." 
 But any expression of an intention to release will suf- 
 fice (.;•). 
 
 Besides exiiress releases, which are sometimes called re- ReUase lu 
 
 *- law. 
 
 leases in deed, there are also releases in law (k). 
 
 A covenant never to sue amounts in construction of law 
 to an absolute release of the covenantee. But a covenant 
 not to sue for a definite period or during a given state of 
 circumstances, is no release (/). 
 
 The general words of a release may be restrained by the General 
 
 ^ ./ .; words 
 
 recitals (»?). And therefore, in preparing releases which redt'd "'^'^ ''^ 
 are intended to be general, care should be taken to avoid 
 any recitals which by possibility might have the effect of 
 narrowing the operation of the instrument (n). 
 
 A release, whether in deed or by operation of law, to one Release to 
 
 one iif 
 
 of several co-debtors, discharges all of them, as well in several co- 
 
 "■^ debtors or 
 
 equity as at law, though they are severally as well as ■|.o|e^.^,^tol■s 
 jointly bound ; and a proviso that the co-debtor shall not 
 take advantage of tlie release would be repugnant and 
 void (o). 
 
 So in equity, whatever act is a discharge of the prin- 
 cipal will be a discharge of the surety, though the surety 
 be not released at law (^;). 
 
 (j ) Watk. Conv. 3rd ed. by Prest. 817. 
 
 186 ; Co. Litt. 264 b ; 2 Bl. Com. {n) 9 Jarm. & Byth. by Sweet, 
 
 324 ; 2 Prcs. Shop. T. 320, 327 ; 4 884 (6). 
 
 Cruise T. 32, c. 6, § 20. (o) 9 Jarm. & Bytb. by Sweet, 
 
 {k) Co. Litt. 264 b. 811 ; 1 Pres. Sbep. T. 71 ; 2 Id. 
 
 (l) 9 Jarm. & Byth. by Sweet, 337. 
 
 797 ; Rnj V. Jones, 19 C. D. (N. S.) (jj) 1 Pres. Sliep. T. 71 ; Wchb v* 
 
 416. Ileimtt, 3 K; & J. 438. 
 
 {m) 9 Jarm. & Bytb. by Sweet.
 
 716 
 
 llELRASES AND THEIR OPERATlOX. 
 
 Tt. III.T.12, 
 
 Ch. 2, s. 8. 
 
 Joint release 
 to tbose 
 against 
 ■wlaom tliere 
 are several 
 causes o£ 
 action. 
 
 Bel ease to 
 one trustee. 
 
 nelease of 
 right to (lio 
 owner of a 
 particular 
 estate, or to 
 a remainder- 
 man or 
 reversioner. 
 
 Release by 
 tenant in 
 tail. 
 
 What 
 
 releases may 
 he for a time 
 uuly. 
 
 And the like rule applies to joint and several cove- 
 nants ((/). But tliis rule is confined to a release properly 
 and technically so called ; for a perpetual covenant not to 
 sue, which operates as an absolute release of the cove- 
 nantee, will not discharge a co-debtor, though the debt of 
 the covenantee and the third person is joint only, and not 
 joint and several (;•). 
 
 If one has several causes of action against two, and 
 makes a joint release to them, this shall be taken to be a 
 release of all joint and several causes of action (s). 
 
 A release of breaches of trust to one trustee, will gene- 
 rally enure to the benefit of his co -trustee (/). 
 
 A release of the right to land, if made to a tenant in tail 
 or for life, will avail and enure to a person who has a re- 
 version or remainder. And so, e converso, a release of 
 right made to a person who has a remainder or reversion 
 will avail and enure to the benefit of a person who has a 
 prior estate in tail, or for life, or for years (u). Indeed, 
 such a release will operate for the benefit of all persons 
 who are entitled to the property by the same means (.''). 
 
 If a tenant in tail makes a lease for years, and after- 
 wards releases all his right to the lessee for years in pos- 
 session, to hold to him and his heirs for ever, this will pass 
 a determinable fee, subject to be avoided by the issue, 
 until they are barred (?/). 
 
 A right of action cannot be released for a time oiily^ but 
 if once released, it will be so for ever. And therefore, if a 
 release of right is made to any one who has an estate of 
 inheritance by wrong, or a particular estate of freehold, 
 thouoh but for one hour, this is a good release for ever. 
 
 (2) 2 Prcs. Shcp. T. 337. 
 
 (r) 9 Jarm. & Byth. by Sweet, 
 811, 812 ; 2 Pres. Shep. T. 253. 
 
 (s) 2 Pres. Shep. T. BU. 
 
 (0 9 Jarm. & Byth. by Sweet, 
 812. 
 
 (h) 2 Pres. Shep. T. 335 ; Co. 
 Litt. 2G7 b ; Watk. Ccnv. Srd ed. by 
 Prest. 42, 114. 
 
 (x) Burton, § 49 ; Watk; CoiiT. 
 3rd cd. by Prest. 42. 
 
 ii/) 2 Pres, Bhepi T. 347;
 
 RELEASES AND TIIEIE OPERATION'. 717 
 
 But it is otherwise Avitli a release operating by way of en- t't. 111.T.12, 
 lara'ement. Tims, if a lessor releases to his lessee for years 
 
 _ ^ But a release 
 
 all his ritiht Mliich he has in the land, without usinGj any bycuiai-ge- 
 
 "3 ' o ./ inent may bo 
 
 other Avords in the deed, or releases to him for his life, he ^°'^^^^^- 
 has an estate for his life only by way of enlargement of 
 estate {z\ 
 
 We have seen that inior to the stat. 22 & 23 Vict. c. 35, Release of 
 
 part of land 
 
 s. 10, a release of any part of the lands operated as a release ^||,'^^!|.t *to g, 
 
 of a rent-charge issuing out of the whole (a). reut-ciiarge. 
 
 In general, a release made between certain parties can- Tinni person 
 
 not be set up a2;ainst the claims of the releasor by a third to benefit of 
 
 ■^ ° . "^ release. 
 
 person Avho is no party, thougli it professes to discharge 
 him from those claims (&). 
 
 11. What may he ■released (c). 
 
 A covenant to do an act may be released before it is covenasito 
 broken, by a release of the covenant eo nomine, or by 
 words to that effect (cI). 
 
 Debts, legacies, and other duties may be released and Debts, 
 discharged before or after they should be paid or per- other duties. 
 formed (c). 
 
 If a lease for years is made to two, to beoin at a day to interesso 
 
 •^ ^ . termini. 
 
 come, a release by one of them to the other is good. And 
 a person who has an interesse termini may release it to the 
 lessor (/). 
 
 If a person grants an estate on condition, he may, before condition. 
 condition broken, release all his right in the land, or release 
 
 (z) 2 Pres. Sliep. T. 345—6; (>;) As to the release of a right of 
 Walk. Conv. 3rd ed. by Pres. 42, execution under a judgment or sta- 
 lls, tute, see supra, pp. 454 — 6. 
 
 (a) See supra, p^ 25—6. (d) 2 Pres. Shep. T. 322. 
 
 (b) 9 Jarm. & Byth. by Sweet, {<:■) 2 Pros. Shep. T. 323, 333. 
 809. (/) 2 Pres. Sliep. T. 327.
 
 718 
 
 WHAT M.VY DE RELEASED. 
 
 Pt. III.T.12, 
 
 Ch. 2, B. 8. 
 
 Tenures, 
 
 services, 
 
 rents, 
 
 commons, 
 
 and other 
 
 profits. 
 
 Hope of 
 
 succession, 
 possibility, 
 or executory 
 iuterest. 
 
 Power. 
 
 Hights and 
 triies of 
 cntiy or 
 action. 
 
 the condition to tlie grantee ; and tliis will make the estate 
 absolute {y). 
 
 Tenures^ services, rents, commons, and other profits 
 arising out of or annexed to lands may he extinguished by 
 release to the owner of the land (li). 
 
 Except so far as the stat. 7 & 8 Vict. c. 7G. s. 5, and 8 & 
 9 Vict. c. 106, s. G (^), may apply, the mere hope of an heir 
 apparent, or a mere possibility, or an executory interest, 
 where the person is unascertained, cannot be released {j). 
 And though executory interests in real estate in a person 
 who is ascertained may be released, yet they are only re- 
 leaseable to the terre-tenant or owner of the land, and not 
 to a stranger (/v). 
 
 A mere authority or a power without any interest can- 
 not be released. And therefore, if a person devises that 
 his executors shall sell his land, and the executors release 
 all their right and title in the land to the heir, this 
 is void. But a power coupled with an interest may be re- 
 leased (T). 
 
 Although rights and titles of entry could not be granted 
 by act of the party {m), nor could any action be granted by 
 act of law or of the party, yet these may, and always might, 
 be released to the terre-tenant, and his heirs, in respect of 
 realty, or his executors and administrators, in respect of 
 chattel interests {n). They may be released to any person 
 who has a vested estate in the tenement, whether in pos- 
 session, reversion, or remainder, with this qualification 
 only, that the right to an estate of freehold can only be 
 
 {[/) 2 Pres. Shep. T. 332. 
 
 {h) 2 Pres. Shep. T. 322, 332 ; i 
 Cruise T. 32, c. C, § 38; Watk. 
 Conv. 3rd ed. by Prest. 158. 
 
 {i) See infra, c. 6, s. 4, No. V. 
 
 0") 2 Pres. Shep. T. 322, 328 ; 
 Burton, § 47, 48; Co. Litt. 265. 
 a. b> 
 
 ilc) 2 Pres. Abstracts, 284 ; seo 
 
 infra, T. 12, Ch. 6, s. 4, No. V. 
 
 {I) 2 Pres. Shep. T. 328, 332 ; 4 
 Cruise T. 32, c. G, § 39 ; Co. Litt. 
 265 b. ; Smith v. HoiMon, 26 Beav. 
 482. 
 
 {m) See infra, e. 6, s. 4, No. V. 
 
 (h) 2 Pres. Shep. T. 321 ; 4 Cruise 
 T. 32, c. 6, § 38, 39 ; Co. Litt. 265 
 a. n. (1).
 
 WHAT MAY BE RELEASED. 719 
 
 released to a person whose estate is of that degree either by ^^■J-^^-'^-'f' 
 
 right or by wrong (o). 
 
 A man may release a sum of money owing to his wife, Money owing 
 
 •^ JO ' to a wife or 
 
 while sole ; and one of several partners in trade may re- partuir. 
 lease a debt owing to the firm ; the power of release being 
 incidental to the power to receive, which is possessed by 
 the husband and partner (p). 
 
 If two have the errant of the next advowson or avoid- Next presen- 
 
 ^ tatioii, 
 
 ance of a church, one of them may release to the other, 
 before it is void, but not afterwards (q). 
 
 One of several joint obligees may release the obligation, obligation or 
 
 *" _ cause of 
 
 So, generally, one of several co-plaintiffs may release the action, 
 cause of action, though the plaintiffs be trustees ; but if 
 this power is exercised fraudulently, the Court will set 
 aside the release (r). 
 
 III. Construction of Releases. 
 By a release of rent, the rent is extinct and discharged, Eeiease of 
 
 J ' o ' rent. 
 
 whether the day of payment be come or not (s). And a 
 release of rent to a reversioner or remainderman, will en- 
 title the owner of a particular estate to the benefit of the 
 release, and e converse. But a grant to the tenant, rever- 
 sioner, or remainderman, cannot be taken advantage of by 
 any other person than the grantee (t). 
 
 ]jy a release of all covenants, all covenants then in beino', Release of 
 
 •^ ° coveuants. 
 
 which are then broken, or may afterwards be broken, are 
 discharged (w). 
 
 By a release of all promises or assumpsits, a man may Keiease of 
 
 promises or 
 
 bar himself of the fruit or effect of the promises, or damages assumpsits. 
 
 (o) Burton, § 46 ; Co. Litt. 265 (r) 9 Jarm. & Byth. by Sweet, 
 
 a 1, 265 b, 266 a; Litt. s. 449 803. 
 —451. (s) 2 Pres. Shep. T. 343. 
 
 if) 9 Jarm & Bytli. by Sweet, {t) Watk. Conr. Srd edit, by 
 
 802. Prest. 158. 
 
 (5) 2 Pros. Shep. T. 332. («) 2 Pres. Shep. T. 342.
 
 720 
 
 CONSTRUCTIOX OF RELEASES. 
 
 Release of 
 debts. 
 
 Release of 
 actions. 
 
 rT.iii.T.i2, for tliG brcacli of tliem, when tliey could not be released by 
 
 Ch. 2, s. 8. > J J 
 
 other words (,'). 
 
 By a release of all debts, are discliarged all debts then 
 owing from the releasee to the releasor (y). 
 Release of By a release of all qnarrels, or all controversies, or all 
 
 contioversies debates, all actions real and personal and all canses of such 
 
 or debate?. 
 
 actions are discharged, except causes of suit that were not 
 existing at the time of the release, as the future breach of 
 a covenant, whether existing at the time of the release or 
 afterwards entered into (z). 
 
 A release of all actions will not discharge executions, or 
 bar a man of taking out execution, except it be where it 
 must be done by scire facias ; neither will it discharge or 
 bar a man of suits by audita cpierela, unless depending, or 
 by writ of error to reverse an erroneous judgment ; neither 
 will it discharge covenants before they are broken ; nor 
 will it discharge anything for which the releasor had not 
 cause of action at the time of the release made («). A 
 release to A. & B. of all actions ^vhich the releasor has 
 against them, extends to actions against the releasees seve- 
 rally as well as jointly ; for it shall be taken most benefi- 
 cially for him to wlioni the release is made, and most 
 strongly against him who makes it (jj). 
 
 The word " suits " is of a somewhat more large extent 
 than " actions ;" for, by a release of all suits, are dis- 
 charged, not only all actions, but also all executions, in the 
 case of a subject (c). 
 
 By a release of all a man's right in any lands or tene- 
 ments, all manner of rights of action and entry of the re- 
 leasor in or against the land, are discharged. But this 
 release of right will not bar a man of a possibility of a 
 
 Release of 
 suits. 
 
 Release of 
 right. 
 
 {x) 2 Pres. Shep. T. 343. 
 (?/) 2 Pres. Shep. T. 341. 
 (z) 2 Pres. Shep. T. 342. 
 (a) 2 Pres. Shep, T. 338, 
 
 {h) 9 Jarra. & Byth. by Sweet, 
 SIO, 811. 
 
 (f) 2 Pres. Shep. T. 342.
 
 COXSTKUCTION OF RELEASES. 721 
 
 rio'lit tliat lie lias at the time of the release, or of a ridit pt.iii. T.12, 
 
 ° * Cu. 2, s. 8. 
 
 that shall descend to him afterwards. And therefore, if the 
 
 coimsee of a statute before execution releases all his right 
 in the land to the terre-tenant, or the heir of a disseisee in 
 the lifetime of his father releases to the disseisor all his 
 right, these releases do not bar them (d). 
 
 A release of title has the same operation as a release of Keiense of 
 
 ■■- title, 
 
 all right (e). 
 
 A release of all demands is the best release of all. By Release of 
 
 demands or 
 
 a release of all demands, are released all right and titles to daims. 
 land, warranties and conditions annexed to estates, whether 
 broken or not, all statutes, obligations, contracts, recogni- 
 sances, covenants, rents, commons, and the like ; and all 
 manner of actions, real and personal, appeals, debts, and 
 duties ; and all manner of judgments and executions ; and 
 all annuities and arrears of annuities and rents. And if a 
 man has a rent service, rent charge, estovers, or other profit 
 to be taken out of the land, by such a release to the tenant 
 of the land it is discharged and extinct. And a release of 
 all claims is much of the same nature (/). But a release 
 of all demands or all claims has not the effect of releasing 
 anything which cannot be specifically released ; as a mere 
 possibility not coupled with any present interest, or the 
 like (//). And a release of all demands is in general con- 
 fined to demands existing at the time of the release ; and 
 therefore does not extend to a covenant not then in being 
 or then unbroken ; nor to a legacy payable at a future 
 day (Ji). 
 
 A receipt in full discharge of all claims, means of all 
 claims which were known to the person giving the 
 receipt (i). 
 
 (f?) 2 Pres. Shep. T. 339 ; Litt. (k) 9 Jarm. & Byth. by Sweet, 
 
 s. 446 ; Co. Litt. 265 b. 815, 816. 
 
 (f) 2 Pres. Shep. T. 340. (/) Eaves v. Hidson, 30 Beav. 
 
 (/) 2 Pres. Shep. T. 348—4. 142. 
 iff) 2 Prc3. Shep. T. 344.
 
 V22 
 
 CONSTUUCTION OF IlELEASES. 
 
 tt. III.T.12, In a release of tlic piincipa], the accessoiy is iDclucled. 
 
 Oh. 2. s. 8. 11' J 
 
 And therefore a release of all debts or duties will operate 
 
 Release of 
 
 the principal, r^g r^ discliargc of all actions, judgments, executions, and 
 
 RbIgiIso of 
 
 debts or oljliQ-ations. By releasing a debt, the security for the debt 
 
 duties. ^ 
 
 Release of is released. And a release of judgments will extend to an 
 
 judgments. , . , ,^ 
 
 execution [j ). 
 
 IV. Releases generally. 
 
 Seal. 
 
 Release upon 
 condition or 
 oil a future 
 time or 
 event. 
 
 Partial 
 
 releasus. 
 
 Release of a 
 debt. 
 
 A release must be under seal QS). 
 
 A release by way of mitter Testate may be made upon 
 condition, either precedent or subsequent. And a release 
 by way of mitter le droit or extinguishment may be made 
 upon a condition precedent ; but it cannot be made subject 
 to a condition subsequent. If such a thing is attempted, 
 the release is good, and the condition subsequent is void ; 
 because a right released for an instant is released for 
 ever {I). 
 
 A release of all actions may be made upon a time past, 
 as until the 1st of May last, or until the day of the date 
 of the release. But a release cannot be made of a right 
 or action for a part of an estate, nor, as we have seen, for 
 a time only to come ; as for one year, or until a future 
 time. And yet a man may release his right in a part of 
 the land (m). 
 
 If a man is under covenant to perform two things, the 
 covenantee may discharge one of them ; but an entire thing 
 cannot be released in part {n). 
 
 A debt may be released even before the day of payment, 
 by apt words (o). 
 
 U) 9 Jarm. & Bytli. by Sweet, (m) 2 Pres. Shop. T. 323. 
 
 814. (i?) 9 Jarm. & Bjth. by Sweet, 
 
 (/.•) 9 Jarm. & Byth. by Sweet, 814. 
 
 801. (o) See 2 Bres. Shcp. T. 334. 
 
 (0 2 Pres. Shep. T. 307, 323.
 
 RELEASES GENERxVLLY. 72c 
 
 A release is an act favoured and strenuously supported PT.iir.T.12, 
 by the law, as it induces peace and promotes good - 
 
 order Qj). favoured. 
 
 But releases will be set aside by tlie Court of Chancery, belief 
 
 agaiust 
 
 where they have been extorted by fraud, or extended to releases. 
 matters not contemplated by the releasor, or have been 
 obtained from persons who at the time were not conusant 
 of their rights (r/). And although a release is general in 
 its terms, the Court will limit its operation to matters 
 contemplated by the parties at the time of its execu- 
 tion (r). And the Court will not permit a release to stand 
 which has been obtained without a full and honest disclo- 
 sure to the releasor of all the circumstances in the releasee's 
 knowledge affecting his (the releasor's) actual situation. 
 But, unless such a disclosure has been withheld, the Court 
 will not disturb an arrangement intended as a compromise 
 of doubtful rights, especially between the members of a 
 family, because the parties entertained mistaken notions of 
 those rights (s). 
 
 Section IX. 
 
 Of a Confirmation. 
 
 Definition. 
 
 A confirmation is a deed whereby a conditional or void- PT.iri.T.12, 
 
 Ch 2 s 9 
 
 able estate is made absolute and unavoidal)le by the con- 
 firmor, so far as he is able, or wherel )y a particular estate is 
 increased {t). 
 
 {p) 2 Pros. Shep. T. 244. (s) 9 Jarra. & Bjth. by Sweet, 
 
 (2) 9 Jarm. & Bytli. by Sweet, 806. 
 
 805; Story's Eq. Jur. §145; Eyre (t) Co. Litt. 295 b; 2 Bl. Com. 
 
 V. Burmestcr, 10 H. L. Cas. 90. 325 ; Walk. Conv. 3rcl eel, by Brest. 
 
 (?■) Lyall V. Edwxrds, G Hurl. & 18G--7. 
 Norm. 337.
 
 724 OF A CONFIKMATION. 
 
 The usual operative -svorcls of a confirmation are '' give, 
 grant, ratify, approve, and confirm " (u). But a confirmation 
 may be made by otlier words. 
 
 Tliere must be a precedent riglitful or wrongful estate 
 in the person to whom the confirmation is made, in his 
 own or in another's right, or, at least, he must have the 
 possession of the thing whereof the confirmation is made, 
 as a foundation for the confirmation to work upon (a;). A 
 person who has only an interesse termini cannot receive a 
 confirmation until he has entered (y). 
 other To givo Validity to a confirmation of a voidable estate, 
 
 requisites to 
 
 cuuflrmatiou f}^Q partv coufirminiT; must not be ignorant of his riolits, and 
 estates. must bc informed of the consequences in point of law, and 
 
 must be a free agent (z). 
 wiiere words To enlarge a particular estate by confirmation, there 
 
 of limitation 
 
 are ueces- must bc words of limitation (a). 
 
 sary. ^ ' 
 
 Operation of A Confirmation sometunes serves to make sure a void- 
 
 a confirma- i t t i . i 
 
 tion. able contract, conveyance, or estate, by addmg the right to 
 
 the possession or defeasible seisin ; and sometimes to 
 make a conditional estate alDsolute, hj discharging the 
 condition; and sometimes to enlarge an estate. But it 
 will not make a contract, conveyance, or estate good, 
 which is absolutely void ; for quod ab initio non valet, in 
 tractu temp oris non convalescit. Nor will it add to an 
 estate a descendible quality, nor make a man capable who 
 is incapable of himself (h). 
 
 Confirmation A Confirmation of the estate of one joint tenant enures 
 
 ill tlie case of 
 
 mid'tenaiu:*^^ to tlic othcr joiut tcuaut or tenants ; because they have 
 
 in common. 
 
 ((() Co. Litt. 295 b, 301 b ; 2 (z) Sugd. Concise View, 181 ; 
 
 Bl. Com. 325 ; 3 Jarm. & Byth. by Sarcri/ v. King, 5 H. L. Cas. 627, 
 
 Sweet, 591 ; 2 Tres. Shep. T. 314 ; GG4. 
 
 Watk. Conv., 3rcl edit, by Brest. («) 2 Bres. Shop. T. 315. 
 
 188. {b) 2 Bres. Shep. T. 311, 315; 
 
 (x) 2 Bres. Slicp. T. 312. Story's Eq. Jur. § 306 ; 4 Cruise T. 
 
 (y) Watk. Conv. 3rd edit, by 32, o. 6, § 47 ; Co. Litt. 295 b, and 
 
 Brest. 20. n. (1).
 
 OF A CONFIRMATIOK 725 
 
 one joint seisin. But it is otherwise in tlie case of tenants p;;-^"-''"-;!,-. 
 
 " (Jil. 2, s. 9. 
 
 in common ; because they have several freeholds and 
 several seisins. But if the confirmation is of the laud, to 
 have and to hold the land to one joint tenant, it may 
 enure to him alone (c). 
 
 A confirmation Ly a disseisee of a particular estate will confli-mation 
 
 '' -^ of oae estate 
 
 not enure to the remainder or reversion. But a confirma- *"^>'- 
 tion by him of a remainder or reversion will operate as a 
 confirmation of the particular estate (d). 
 
 In the case of a lease for years, a confirmation may be Part of ca 
 
 •^ term may be 
 
 made for part of the time. But the proper mode of contu-med; 
 accomplishing tliis is. by a confirmation of the land, to 
 liold for part of the term, and not of the term or estate (c). 
 
 A confirmation cannot be made of i)art of an estate of but not part 
 
 of an estate 
 
 freeliold; because an estate of freehold is entire and indi- of freehold, 
 visible (/). 
 
 A confirmation may be made of part of the land or other confirmation 
 
 •J -i- of part of tlie 
 
 subject (r/). Sect.'*''' 
 
 If there is nothing more than a confirmation of title, uses or 
 there cannot be any uses or trusts, because no seisin 
 passes (//.). 
 
 (c) 2 Pres. Shep. T. 319 ; Co. Jarm. & Byth. by Sweet, 591 ; Co. 
 Litt. 297 b. Litt. 296 b, 297 a, n. (1) ; Watk. 
 
 (d) 2 Pres. Shep. T. 313, 319 ; Coiiv. 3rd ed. by Prest. 188. 
 
 Co. Litt. 297 a, 298 a; Watk. (ff) 2 Pres. Shep. T. 317; Co. 
 
 Conv. 3rd ed. by Pret^t. 188. Litt. 297 a ; 3 Jarm. & Byth. by 
 
 (f) See 2 Pres. Shep. T. 317;3 Sweet, 521—2; Watk. Conv. 3rd 
 
 Jarm. & Byth. by Sweet, 592 ; Co. ed. by Prest. 188. 
 
 Litt. 297 a, and n.(l) ; Watk. Conv. (/() 3 Jarm. & Byth. by Sweet, 
 
 3rd ed. by Prest. 188. 592. 
 
 (/) 2 Pres. Shep. T. 317; 3 
 
 k2
 
 Dtfiuitioii. 
 
 726 OF A SURKENDER. 
 
 Section X. 
 Of a Surrender. 
 rT.iii.T.12, A surrender, sursum redditio, or renderincf up, is of a 
 
 Cn. 2, s. 10. ' ' o i > 
 
 nature directly opposed to a release operating by way of 
 enlargement. It is a yielding up of an estate for life or 
 years to him who has a higher or equal estate in immediate 
 reversion or remainder, wherein the particular estate may 
 merge or drown (J). 
 siiiTcmiers ^ Surrender is of two kinds : — 1. Express, or in deed, 
 
 are either -i- ^ ' 
 
 fmpiT^.°' that is, by the express agreement of the parties that a 
 surrender should be made. 2. Implied, or in law, that is, 
 by operation of law (/). 
 
 operativo The usual operative words are — " surrender, and yield 
 
 words. -'• -^ 
 
 up." But any other words that denote that the remain- 
 derman or reversioner is to have the particular estate will 
 suffice (k). 
 What estates Subjcct to the followiug qualifications, a surrender may 
 surrendered. \)q made of any kind of estate for life ; (as by dower, by 
 curtesy, or by tenancy in tail after possibility of issue 
 extinct ;) or of any estate for years, or for years determi- 
 nable upon lives, in any kind of property that is grant- 
 able (l). 
 Eequisites to In ordcr that a surrender in deed may be good — 
 
 a surrender "^ ^ 
 
 indeed. \ ^he Surrenderor must have a vested estate. And 
 
 1. Vested t^ • -, -i • ^ 
 
 estate. therefore rights and titles only cannot be surrendered {m). 
 
 Thus, if a lessee for life is ousted by a stranger, and after- 
 
 (/) Co. Litt. 337 b, and n. (1) ; T. 306 ; 4 Cruise T. 32, c. 7, § 4 ; 
 
 2 Bl. Com. 326 ; 2 Pres. Sliep. T. Watk. Conv. 3rd ed. by Prest. 23, 
 
 300 ; Watk. Conv. 3rd. ed. by Prest. 192. 
 
 189, 191. (Z) 2 Pres. Shep. T. 303, 306. 
 
 (i) 2 Pres. Shep. T. 300; Co. (m) 2 Pres. Shep. T. 306; Co. 
 
 Litt. 338 a; Phcnc v. Poppkivdl, Litt. 338 a ; Watk. Conv. 3rd ed. 
 
 12 C. B. N. S. 334. by Prest. 114. 
 
 {k) 2 Bl. Com. 326 ; 2 Pres. Shep.
 
 01-' A SURRENDER. - 727 
 
 wards surrenders to his lessor, the surrender is void : pt. 111.T.12, 
 
 Cn. 2, s. 10. 
 
 because he liad but a right at the time of tlie surrender. 
 
 So if a woman has a title to dower, and surrenders to the 
 person against whom she ought to have dower, it is void 
 for the same reason. And a lease for years, to commence 
 at a future day, cannot be surrendered ; nor can a lease 
 for years at common law, before entry ; because the lessee 
 has no vested interest, but only an interesse termini 
 before the commencement of the lease in the one case, or 
 entry in the other, and the lessor has no reversion before 
 that time (n). 
 
 2. The estate of the surrenderor must be one that may 2, capacity 
 
 of merger. 
 
 meru'e in the estate of the surrenderee. And therefore an 
 estate tail cannot be surrendered, even to a person who has 
 the reversion in fee (0). And for the same reason, 
 
 3. The estate of the surrenderor must be of a lower 3. Not of 
 
 higher 
 
 denomination than the estate of the surrenderee, or of the denomina- 
 
 ' tion. 
 
 same, and not of a higher denomination. And therefore an 
 estate in fee simple cannot be surrendered ; nor can an 
 estate for life be surrendered to a person who has only an 
 estate for years. But a tenant for his ovvn life may sur- 
 render to another person who has only an estate for his own 
 life. And a term for years may be surrendered even to a 
 person who has a term for a fewer numljer of years than 
 the surrenderor (j;). For the same reason, 
 
 4. The estate of the surrenderee must be the next estate 4. Next 
 
 estate in 
 
 in remainder or reversion, so that there be no intervening jg^g'J^'-onl^ °^' 
 estate to prevent a merger ((/). Thus, if a lease is made 
 for years, remainder for life, remainder in fee, tire lessee 
 for years may surrender to the lessee for life ; and so may 
 
 (h) 4 Cruise T. 32, c. 7, § 10 ; T. 303, 306 ; Watk. Conv. 3rd ed. 
 
 Walk. Conv. 3rd ed. by Prest. 20. by Prest. 25, 36, 190. 
 
 (0) 2 Pre.s. Shep. T. 306 ; Burton, (9) 2 Pres. Shep. T. 303 ; Co. 
 
 § 751. Litt. 337 b, n. (1). 
 
 p) 2 BL Com. 326 ; 2 Pres. Shep*
 
 728 , OF A SURRENDEl?. 
 
 pt.iji.t.12, the tenant for life to the r^erson in remainder or reversion 
 
 Cu. 2, s. 10. ^ 
 
 in fee. But if a lease is made for life, remainder for life, 
 
 remainder in fee, tlie first tenant for life cannot surrender 
 to the person in remainder in fee, on account of the inter- 
 mediate estate (r). 
 
 5. Privity. g_ There must be a privity of estate between the surren- 
 
 deror and the surrenderee. Hence, if lessee for twenty 
 years makes a lease for five years, and the lessee for five 
 years enters, and afterwards the lessee for twenty years 
 surrenders to the person in reversion or remainder, this is 
 a good surrender. So also if the two lessees join in the 
 surrender, it is good ; for, by construction of law, there is 
 first, a surrender by the tenant for twenty years to the 
 reversioner, and secondly, a surrender by the termor for 
 five years to the same x^erson. So also if the first lessee 
 surrenders first, and the lessee for five years surrenders 
 afterwards, the surrender is good. But if the lessee for 
 five years attempts to surrender to the person in reversion 
 or remainder before the lessee for twenty years surrenders, 
 this act cannot take effect as a surrender, for two reasons ; 
 first, because there is a remnant of the term as an inter- 
 venient estate to hinder the drowning of the term ; and, 
 secondly, because, while the interposed reversion continues, 
 there wants a privity between the lessee for five years and 
 the remainderman or reversioner (s). 
 
 6. Not of (3 The sruTender must not be of part of an estate. Thus, 
 
 part of au J- ' 
 
 estate. ^£ ^ pcrsou lias a lease for ten years, he cannot surrender 
 
 the last seven years, and keep to himself the first three 
 years (t). 
 
 7. Dccdcr 7. By the Statute of Frauds, 29 Car. 2, c. 3, s. 3, no sur- 
 
 note in -^ > > j ? 
 
 render is valid unless it is by deed or note in writing duly 
 signed, or by act or operation of law (u). So that a term 
 
 (r) 2 Pres. Shep. T. 304. (t) 2 Pres. Slicp. T. 30G. 
 
 (s) 2 Pres. Shep. T. 303, 305 ; («) See supra, p. G22 ; 4 Cruise 
 
 4 Cruise T. 32, c. 7, § 11. T. 82, c. 7, § 6 5 Burton, § 751 
 
 writ in a
 
 OF A SUKREXDEn. V29 
 
 for years or for life cannot be extin<2;uislied l»y cancelliiiL!- '"''■ ni.T.12, 
 
 the instrument of demise, or otherwise than by writing, or 
 
 accepting another lease incompatible with the former 
 lease (.v). And such things as commons, rents, advowsons, 
 reversions, remainders, and other incorporeal hereditaments 
 that cannot be granted without deed, could not be surren- 
 dered without deed (?/). But an estate of freehold of lands 
 in possession might be surrendered to the immediate rever- 
 sioner or remainderman, l)y deed or note in writing, with- 
 out livery of seisin or anything tantamount to it (,;). It 
 was enacted, however, by the stat. 7 & 8 Vict. c. 76, s. 4, 
 " that no surrender in writing of any freehold or leasehold 
 land shall be ^"alid as a surrender, unless the same should 
 be made by deed ; but any agreement in writing to surren- 
 der any such land shall be valid and take effect as an 
 agreement to execute a surrender." This was repealed by 
 the stat. 8 & 9 Vict. c. 106 ; Init hj s. 3 of that statute, " a 
 surrender in writing of an interest in any tenements- or 
 hereditaments, not being a copyhold interest, and not being 
 an interest which might by law have been created without 
 ^^^■iting, made after tlie 1st October, 1845, shall be \'oid at 
 law, unless made by deed." 
 
 A surrender may be made ui^on a condition precedent or smrenda- m 
 
 couditiou. 
 
 subsequent («). 
 
 An interesse termini cannot be surrendered in deed ; but suneudcv of 
 
 an inleresse 
 
 it will be surrendered in law by accepting a lease for an termini, 
 estate which is incompatil^le with it (h). 
 
 A surrender to one of two or more joint tenants will be surrender to 
 
 one of two or 
 
 construed to enure to both or all. But if tenant for life f»oiejo'iit 
 
 tenants. 
 
 or years grants his estate to one joint tenant in reversion, 
 
 Watk. Conv. 3rd eel. by Prest. {z) 3 Jann. & Byth. by Sweet, 
 
 192. 259 ; Co. Litt. 337 b, n. (1), 338 a ; 
 
 (cc) 2 Pros. Sbep. T. 306 ; Co. Litt. Burton, § 751. 
 
 338 a, n. (1). 00 2 Prcs. Shep. T. 307. 
 
 {y) '2 Pres. Sbep. T. 307 : Co. Litt. {h) Watk. Ccnv. 3rd ed. by Prest, 
 
 338 a. 20.
 
 73 OF A SURRENDER. 
 
 r:,T-in-T.i2, tliis will not enure as a surrender to the otlier or otliers, 
 
 Cn. 2, s. 10. ' 
 
 but as a grant to liini alone (e). 
 impiied^or in ^^ ''' lessec for life accepts another valid lease in writing 
 from the lessor, though it be only for years, it will be a 
 surrender in law of the lease for life (d). Where an estate 
 incompatible witli an existing prior estate is accepted, or 
 where the particular estate is actually transferred to the 
 person having the immediate reversion or remainder, with 
 a view that it should abide in him, the law construes it to 
 be a surrender (e). The term "surrender in law" applies 
 to cases where the owner of a particular estate has been a 
 party to some act, the validity of which he is by law after- 
 wards estopped from disputing, and which would not be 
 valid if his particular estate continued to exist. Such a 
 surrender is the act of the law, and will take place inde- 
 pendently of, and even contrary to the intention of the 
 parties (/). 
 
 Definition. 
 
 Section XI. 
 Of cm Assi(jiimcnt. 
 i;T.irr.T.i2, An assignment is that kind of total alienation by deed or 
 
 Cn. 2, s. 11. _ -^ 
 
 writing, other than testamentary, of a chattel interest in 
 real property, which is not essentially destructive of such 
 interest, or an alienation by deed or writing, other than 
 testamentary, of chattels personal or of an equitable inte- 
 rest in real estate. 
 Gifts au'i Some assignments are called gifts; others, bills of 
 
 biUs of sale. o J ' 
 
 sale {g). A gratuitous transfer of personal chattels is spe- 
 
 (c) 2 Pres. Shep. T. 308 ; Co. Litt. Conv. 8rd cd. by Prcst. 189. 
 
 183 a, n. (2), ]92 a. (/) Lyon v. Real, 13 M. & W. 
 
 {d) 3 Jarm. & Byth. by Sweet, 285. 
 
 259, n. {a). (^) Burton, § 889. 
 
 (f) 2 Pres. Shcp. T. 300 ; Watk.
 
 Of AN ASSIGNMENT. 731 
 
 cifically called a gift. And a transfer of personal chattels ft. 111.T.12, 
 
 for valuable consideration is termed a bill of sale, whether 
 
 the transaction be a purchase or a mortgage (h). 
 
 The technical operative words of an assignment are, operative 
 
 *" word J. 
 
 " assign, transfer, and set over." But the words " give, 
 grant, bargain, and sell," or any other words which show 
 the intent of the parties to make a complete transfer, will 
 amount to an assignment (i). 
 
 An assignment of a term differs from a lease or under- Assignments 
 
 ■^ of terms 
 
 lease in this circumstance, that, by a lease or underlease, J|!p^j"i^'"se'^'^'^ 
 the lessor conveys an interest less than his own, reserving feaLr'^^"^' 
 to himself a reversion ; whereas, in an assignment, the as- 
 signor parts with liis whole interest in tlie thing assigned, 
 and puts the assignee in his place (/). 
 
 Cliattels personal may in general be oiven or OTanted wiiatmay 
 
 ^ . . be assigned. 
 
 without deed (IS). But a registered ship or shares therein Mode of 
 can only be transferred by bill of sale, in a prescribed 
 form, under seal, executed in the presence of and attested 
 by at least one witness, and registered. The name of the 
 transferee, as owner, must be registered, and the date and 
 hour of the entry must be indorsed on the bill of sale (/). 
 And it is enacted by the 3rd section of the Statute of Requisites 
 
 "^ to an assign- 
 
 Frauds, that all assignments of leases or terms for years 
 
 shall be by deed or note in writing, signed by the party 
 assigning or his agent thereunto lawfully authorised by 
 ^\'riting. And by the 9tli section of the Statute of Frauds, 
 it is enacted, " that all grants and assignments of any trust 
 shall be in writing, signed by the party granting or assign- 
 ing the same, or else shall lie utterly void and of none 
 
 (^) 2 Bl. Com. UO ; 2 Steph. Com. by Prest. 22, 192, 194. 
 
 43, 45. {k) 2 Pres. Sliep. T. 231 ; 2 Bl. 
 
 (0 4 Cruise T. 32, c. 7, § 17 ; Com. 441 ; Bux-ton, § 889. 
 
 Watk. Coiiv. 3rd ed. by Prcst. 22, {1} Sm. Merc. Law, 6tli cd. 193 
 
 195. —6 ; Mail. & Poll. 20—2 ; Ad. Cont. 
 
 0') 4 Cruise T. 32, c. 7, § 14 ; 2 5th ed. 141 ; 17 & 18 Vict. c. 104, 
 
 Bl. Com. 326 ; Watk. Conv. 3rd cd. ss. 55, 57. 
 
 nient of real 
 estate and 
 cliattels real.
 
 732 
 
 OF AN ASSIGNMENT. 
 
 rT.iii.T 12, 
 
 Ch. 2, s. 11. 
 
 What • 
 aiiioviiits to 
 an assign- 
 ment of 
 cliatlclsi 
 liei'soual. 
 
 effect " (m). And it was enacted by the statute 7 & 8 Vict, 
 c. 76, s. 3, tliat no assignment of any freeliold or leasehold 
 land should be valid at law unless the same should be made 
 by deed. Tliis was repealed by the statute 8 & 9 Vict. 
 c. 106 ; but by section 3 of that statute, " an assignment of 
 a chattel interest, not being copyhold, in any lands or 
 tenements, made after the 1st October, 1845, shall be void 
 at law, unless made l)y deed." 
 
 Anything written, said, or done, in pursuance of an 
 agreement, and for a valuable consideration, or in con- 
 sideration of an antecedent debt, to place a chose in action 
 or fund out of the control of the owner, and appropriate it 
 in favour of another person, amounts to an equitable as- 
 signment. So that an agreement between a debtor and a 
 creditor that the debt shall be paid out of a specified fund 
 coming to the debtor, will operate as an equitable assign- 
 ment. And so an order given by a debtor to his creditor 
 upon a person owing money to such debtor or holding 
 funds belonging to him, directing such person to pay the 
 creditor out of such money or funds, will amount to an 
 iri'cvocable equitable assignment of such money or funds 
 or a sufficient part thereof, if made in consequence of a 
 direct engagement (n). And if the person so ordered to 
 pay the assignee, nevertheless pays the assignor, he will 
 be made to pay over again to the assignee, even though 
 the assignor commenced an action against him (o). But 
 where personal property is assigned, delivery is necessary 
 
 (m) 1 Cruise T. 12, c. 2, § 6. 
 
 (m) 2 Spence's Eq. Jur. 85G, 8G0 
 — 1, 907; Coote's Mortg. 3rd ed. 
 234 J 2 Tudor's Leading Cases, 574 ; 
 lioiu V. Dawson, 1 Ves. 330 ; Ex ^lartc 
 South, 2 Swans. 392 ; Lett v. Morris, 
 4 Simons, 607 ; Burn v. CaJvaUw, 
 4 My. & Cr. 690 ; L'Estrmvje v. 
 VEstranrje, 13 Beav. 281 j Ex 2iarte 
 
 Steward, 3 M. D. & Do G. 265; 
 liodicJc V. Gandcll, 1 D. M. & G. 
 777 ; Diploch v. Hammond, 2 Sm. 
 & Gif. 141 ; 5 D. M. & G. 320 ; 
 Watson V. Duhe of WelUngton, 1 R. 
 & M. 602 ; Malcolm v. Scott, 3 Hare, 
 39 ; Clwivne v. BajjUs, 31 Beav. 351, 
 (o) Jones V. FarrcU, 1 D. & J. 
 208.
 
 OF AX ASSIGNMENT. 733 
 
 to complete the transaction, or at least that which is tan- PT.ni.T.12, 
 
 ^ ' Cn. 2, s. 11. 
 
 tamount to or is the nearest approximation to delivery of 
 
 wliich the property is susceptible. "Where the assignment 
 is for valuable consideration, it is not indeed necessary, at 
 least in equity, as between the vendor and vendee, or mort- 
 gagor and mortgagee, except to prevent the vendee or 
 mortgagee Irom losing the property by a subsequent secret 
 disposition by the vendor or mortgagor ; but it is required 
 for the protection of third persons, who might otherwise be 
 deceived by apparent possession and ownership remaining 
 in a person who in fact is not the owner ( j;). Where the 
 assignment is voluntary, it is necessary even between the 
 parties themselves ; because equity will not enforce an 
 imperfect voluntary assignment. Hence, in the case of 
 chattels in possession, delivciy of possession is necessary ; 
 and in the case of an assignment by way of mortgage of 
 chattels to be brought upon certain premises, some act 
 tantamount to taking of possession is necessary on the part 
 of the mortgagee, to perfect his title ; and if he neglects to 
 do some such act, the title of an execution creditor who 
 takes possession will be preferred (q). In the case of a 
 bond debt, delivery of the bond and notice to the deljtoi' 
 are requisite. And in the case of a trust fund, the trustee 
 being the legal depositary, formal notice ouglit to be given 
 to him by the assignee, and not by a stranger, to make him 
 a trustee for the assignee. So that if a prior assignee 
 neglects to give- notice to the trustee, and a subsequent as- 
 signee, after inquiry of the trustee and at the time of his as- 
 signment, is unaware of the prior assignment, and gives notice 
 to the trustee of his own assignment, he thereby gains 
 priority over the first assignee (r). And assignees in bank- 
 
 (p) See remarks of L. J. Turner (q) Ilolroyd v. MarslmU, 2 D. F. 
 
 iu Ex parte Bolton, 1 D. & J. 178— & J. 59(5 ; 10 H. L. Cas. 191. 
 
 9 ; Stmisfield v. Culltt, 2 Gift. 382 ; (r) Story's Eq. Jur. § 1017 ; 2 
 
 2 D. & J. 222. Spcnce's Eq. Jur. 764, 855 -857 ; 2
 
 V34 OF AX ASSIGNMENT. 
 
 cn^Vii^' ™P^cy who neglect to give notice M'ill lose their priority 
 
 efjually with particular assignees («). It is immaterial, 
 
 however, whether tlie notice was given before or after the 
 assignment, provided it was given previously to notice by 
 any other claimant (f). In the case of an assignment of an 
 interest in a fund in Court, the assignee should obtain a 
 stop order (^^), unless the fund constitutes part of a tes- 
 tator's estate ; in which case notice to the executor M'ill be 
 sufficient, without a stop order (.).;). In the case of an 
 assignment of costs of suit not yet ordered to be paid, 
 notice should be given to the parties by whom they would 
 be payable (,y). In tlie case of an erpiitable assignment of 
 shares in a company, notice must be given to the com- 
 pany (;:'). In the case of an assignment of freight, the 
 assignee should give notice of the assignment to the char- 
 terers (r/). 
 
 If the assignor is a legatee of the original cestui que 
 trust, notice must also l)e given to the executor, if the latter 
 has not assented to the bequest. A second incumbrancer 
 on stoclc gains priority by lodging a distringas on the bank, 
 if neither paiiy has given notice to the trustees of the 
 fund. If a policy of life assurance is assigned, notice of 
 such assignment must be given to the offtce in which the 
 assurance is effected, to take it out of the reach of the 
 bankrupt laws (h). In order to maintain liis priority, it is 
 
 Bl. Com. 441—2; Cootc, 3rd cd. («) Bartlett \ . Bartlctt, 1 D. & J. 
 
 231, 232; Dearie v. Hall, Love- 127. 
 
 ridge v. Cooper, 3 Kuss. 1 ; Mceh v. {jc) Tlwmpson v. Tomhins, 2 .Dr. 
 
 Kettlewell, 1 Hare, 464 ; 1 Phil. 342 ; & Sm. 8. 
 
 Bridge y. Beadon, L. E. 3 Eq. Cas. (y) Bay v. Bay, 1 D. & J. 144. 
 
 664 ; Lloyd v. Banks, L. E. 4 Eq. (z) Ex parte Boulton, 1 D. & J. 
 
 Cas. 222 ; In re Brown's Trusts, L.K. 163. 
 
 5 Eq. Cas. 88 ; and sec infra, c. 6, (a) Bromi v. Tanner, L. E. 2 Eq. 
 
 on Void and Voidable Deeds. 806. 
 
 (s) Re Barr's Trust, 4 K. & J. (b) Coote Movi.g. 3rd ed. 231 ; 
 
 219. Thompson v. Tomlins, 2 Dr. & Sm. 8. 
 
 (it) Sugd. Concise View, 275.
 
 OF AN ASSIGNMENT. 735 
 
 sufficient if a prior assignee of tlie proceeds to arise from Pf . iii-J-^'^^ 
 
 the sale of au oflicer's commission gives notice to the army 
 
 agent of the regiment before tlie money readied the agent's 
 hands, though a subsequent assignee gave notice first (c). 
 
 In general, notice to one of several trustees is notice to 
 the otlicrs. Where one of the trustees is assignee, the 
 assio-nment itself is notice to all the others. AVhere one 
 of the trustees is assignor, the assignment itself is not 
 notice to the others, but formal notice to the trustee who 
 is assignor is notice to the others {d). 
 
 " Neither a voluntary assignment by deed of a mortgage 
 debt, accompanied by a grant, not specifying the particular 
 estate, but of all estates held in mortgage, and by a covenant 
 for further assurance, without delivery of the mortgage 
 deed or notice to the mortgagor, nor the voluntary assign- 
 ment of a policy of assurance retained in the hands of the 
 assignor, and without notice given to the grantor, though 
 accompanied by a covenant for further assurance, can be 
 considered as a complete and effectual assignment, to be 
 acted upon and enforced by the assignee, without any 
 further or other act to be done by the assignor " (e). And 
 where a person becomes a trustee of money for several 
 creditors, and at the date of the trust deed the trustee 
 had a charge on the share of one of them, but it is not 
 mentioned in the deed, he will be postponed to another 
 person who has a subsequent charge on that share, and 
 had no notice of the trustee's charge, but gives immediate 
 notice of his own(/). 
 
 An assignment of a term, or of the residue of a term, to Assigameut 
 
 (c) B idler v. Pliinlelt, 1 Johns. & Willes v. Greenhill (Nos. 1 & 2), 29 
 Hem. 441. On this subject, see also Beav. 376, 387 ; 4 D. F. & J. 147. 
 Welster v. Webster, 31 Beav. 393; (e) Ward v. Andland, 8 Beav. 
 Somerset v. Cox, 33 Beav. 634. 212. 
 
 (d) Coote Mortg. 3rcl ed. 231; (f) Commissioners of PnUicWorls 
 Browne v. Savaje, 4 Drew. 635 ; v. Ilarhij, 23 Beav. 508.
 
 736 OF AN ASSIGNMENT. 
 
 pt.iii.t.12, liold from tlie deatli of tlie assio-nor, is void (ri) ; for, terms 
 
 Cii. 2, s. 11. o ' \JJ i > 
 
 — for years beinc: anciently very short, the law regarded the 
 
 of a term or "^ * J J ' a 
 
 «f '.''" , continuance of a term after the death of the termor as a 
 
 residue of a 
 
 a'^f™ure'"^ more possibility, which could not be assigned. And, upon 
 *"^^' the same principle, it would seem that an assignment of a 
 
 term or of a residue of a term, from the death of any other 
 person, would be void. Indeed, it would seem that an 
 assignment cannot be made of a term from any future 
 time ; because an assignment of a term is an alienation 
 of the whole term. But there would appear to be no 
 reason why the residue of a term from a future time, 
 otherwise than the death of any person, should not be 
 assigned (Ji). And if a termor, instead of assigning, carves 
 out of his term a new term of years which must end 
 before the expiration of the original term, such a demise 
 or underlease, which leaves a reversion in the original 
 termor, may, like any other lease for years, be made to 
 take effect at a future time (i), except such future time 
 be the death of the original termor or any other person ; 
 for then there is the same reason why such an under- 
 lease should be void, as for the invalidity of an assign- 
 ment of the residue of a term after the death of the 
 assignor (j). 
 Assignment A deed of assignment by a person of all his personal 
 
 of person- 
 alty passing estate and effects whatever, to trustees, for the benefit of 
 
 a <leed of 
 
 ofieTsehoid.,- creditors, passes a deed of assignment of leasehold -pve- 
 mises made to him by way of mortcjage, with power of 
 sale (/.:). 
 
 Contingent A continQ'ent reversionary interest will not pass by an 
 
 revei'sioiiary '^ " i j 
 
 ms'^sin'tr' by*^ assignmciit, which, after enumerating things of the pro- 
 assigninent. ^q^^j ^yiiereof the assignor has the control, purports to 
 
 ((/) 1 Pres. Shep. T. 79 ; 2 Id. (0 Burton, § 894. 
 
 251. (i) Sec 2 Pres. Shcp. T. 251. 
 
 {h) But see 1 Pres. Slicp. T. 79 ; (^O West v. Steward, 14 M. & W. 
 
 Burton, § 893. 47.
 
 OF AN ASSIGNMENT. 737 
 
 assign otlier thing's by the Q-eneral description of "all pt iit.T.12, 
 ° o J & X Cn.2, 8. 11. 
 
 other the estate and effects whatsoever and wheresoever of 
 
 or to which the assignor is now possessed or entitled " (/). 
 
 Generally speaking, assignees of a bond or a chose in Ass^neo 
 action, other than a bill of exchanG^e or a note, and assignees ^"'^J.?P' H 
 of equitable titles, whether such assignees be particular ^*«'S"°i'- 
 assignees or general assignees in bankruptcy or insolvency, 
 take them subject to all the equities to which they w^ere 
 liable in the hand of the assignors (??i). Assignees under 
 general assignments, such as assignees in cases of bank- 
 ruptcy and insolvency, take only such rights as the assignor 
 or debtor had at the time of the general assignment ; and 
 consequently a prior special assignee will hold against 
 them, without giving notice of his assignment (vi). 
 
 On the other hand, a purchaser of a chose in action, or Assignee 
 
 eutitlrd to 
 
 of any etiuitable title, will be entitled to all the remedies benefit of 
 
 " J- ' assignors 
 
 of the seller (0). And in the case of assignments of debts, aud'se'cu^i- 
 where the assi^'nor has collateral securities for the debt, ''''f; 
 
 o ' Collateral 
 
 the assignee will be entitled to the full benefit of such ff.^'^e^lfbt 
 securities, unless it is otlierwise agreed between the par- ''^^*'s»ed. 
 ties. Thus, the assignee of a debt secured by a mortgage 
 will, in equity, be held entitled to the benefit of the 
 mortgage ('p). 
 
 By the stat. 22 & 23 Vict. c. 35, s. 21, "Any person Assignment 
 shall have power to assign personal property, now by law j^-l^f^i^j^n,! 
 assignable, including chattels real, directly to himself and others!'^ ""^ 
 another person or other persons or a corporation, by the 
 like means as he might assign the same to another." 
 
 (l) Pope V. Whitcoml, 3 Russ. 124. don v. Brandon, 7 D. IL & G. 365 ; 
 
 {m) 4 Cruise T. 32, c. 8, § 26 ; Cavendish v. Geaves, 24 Beav. 163 ; 
 
 Sugd. Concise View, 275 — 6; Morris Athenceiim Life Assurance Society v. 
 
 V. Livie, 1 Y. & C. C. C. 380 ; Ord Pooleij, 3 D. & J. 294 ; Graham v. 
 
 V. White, 3 Beav. 357 ; Smith v. Johnson, L. E. 8 Eq. 36. 
 Parker, 16 Beav. 119 ; Mangles v. {n) Story's Eq. Jur. § 1038. 
 
 Dixon, 3 H. L. Cas. 702 ; In re (o) Sugd. Concise View, 275 — 6. 
 
 Atlinson, 2 D. M. & G. 140 ; Bran- {jj) Story's Eq. Jur. § 1047 a,
 
 738 OF A DEFEASANCE, 
 
 Section XII. 
 Of a Defeasance. 
 PT.iir.T.i2, A defeasance is a collateral deed, containinoj certain 
 
 Ch. 2, s. 12. . , , . , . 
 
 conditions npon wnicli an interest created or transferred 
 
 by another deed may be defeated. In the case of things 
 executed, such as an estate of freehold in land, the de- 
 feasance must be made at the same time with the deed 
 creating or transferring the estate. But terms for years, 
 and other chattels, and things executory, such as trusts 
 and uses while they are* executory, rents, annuities, bonds, 
 statutes, recognisances, judgments, conditions, and cove- 
 nants, may be defeated by defeasances made subsequent 
 to the time of their creation by all those who are inte- 
 rested {q). 
 
 A defeasance is of the same import and . efficacy as a 
 proper condition subsequent. The only difference is, that 
 a condition is inserted in the same deed as that which 
 creates or transfers the interest to be defeated ; whereas a 
 defeasance is contained in a distinct deed (?'). 
 
 Defeasances are seldom resorted to in the present day : 
 and indeed they are very objectionable, as they may bo 
 made an instrument of fraud (.s). 
 
 {q) 2 Bl. Com. 327; Co. Litt. ed. by Prest. 196-7. 
 
 236 b, 237 a ; 3 Jam. & Bytb. by (r) 4 Cruise T. 32, e. 7, g 24 ; 2 
 
 Sweet, 681—683, 685 ; 2 Eop. Leg. Pres. Shep. T. 396. 
 
 by White, 323 ; 1 Pres. Shep. T. (s) Watk. Conv. 3rd ed. by Prest. 
 
 126 ; 2 Pres. Shep. T. 396 ; 4 Cruise 196. 
 T. 32, c. 8, § 27 ; Walk. Conv. 3rd
 
 OF A UISCLAIMEE. 739 
 
 Section XIII. 
 Of a Dkd aimer (/). 
 A (lisclaiiner is a deed of renunciation of a "rant, devise, pt. in.T.12 
 
 ° Cn. 2, s. 13. 
 
 or bequest. 
 
 , , . , Defiuitiou, 
 
 When an estate is conveyed or devised to any person, lie 
 may by deed disclaim the conveyance or devise, provided 
 no act has lieen done to show an assent («). 
 
 Where two or more persons are grantees or devisees in 
 joint tenancy, the estate will entirely vest in the person or 
 persons who has or have not disclaimed. But if all the 
 grantees or devisees disclaim, then, as well as when a single 
 grantee or devisee disclaims, the estate will descend to or 
 vest in the heir of the grantor or devisor. And in case 
 there are trusts created by the grant or devise, the Court of 
 Chancery will enforce the execution of the trusts (:/;). 
 
 {t) See infra, ch. 6, s. 6, On the 70 ; Watk. Conv. 3rd ed. by Prest. 
 
 Avoidance of an Estate by Disagree- 23; Bmce \. Gilpin, L. K 3 Ex. 
 
 mcnt. 70. 
 
 (u) 3 Jarm. & Byth. by Sweet, (.r) 3 Javm. & Bytli. by Sweet, 
 
 698 ; Bcfjhlc v. Crool; 2 Bing. N". C. 698; see infra, T. 12, cli. 6, s. 6. 
 
 VOL. TJ.
 
 740 
 
 CHAPTER III. 
 
 OF THE DIFFEEENT KINDS OF STATUTORY CONVEYANCES, 
 
 m-^*„'^''J"'„ Not reckonine; tliose deeds whicli existed at common law, 
 
 T. 12, Cn. 3. ° 
 
 ~ and, wlien made to nses, operate nnder the Statute of Uses, 
 
 sucli as feoffments and bargains and sales to uses, there 
 are (as already observed) about ten kinds of statutory- 
 deeds : — 
 
 1. Covenants to stand seised. 
 
 2. Deeds of Lease and Eelease. 
 
 3. Statutory Eeleases. 
 
 4. Statutory Grants, that is. Grants to Uses under the 
 Statute of Uses, and the stat. 8 & 9 Vict. c. 106, s. 2. 
 
 5. Deeds to Lead and Declare the Uses of other assur- 
 ances. 
 
 6. Deeds of Eevocation of Uses. 
 
 7. Deeds of Appointment under Powers. 
 
 8. Leases under Powers. 
 
 9. Bargains and Sales under the Act for the Abolition oi 
 Fines and Eecoveries. 
 
 10. Concise Conveyances and Leases under the statutes 
 8 & 9 Vict. c. 119 and c. 124, and 25 & 26 Vict. c. 53. 
 
 Section L 
 Of a Covenant to stand seised. 
 pt.iii.t.i?, a covenant to stand seised to uses is a conveyance by 
 
 Cn. s, s. 1. . . 
 
 Avhich a person seised of lands covenants that he will stand 
 seised of the same to the use of his present or intended. 
 
 Definition.
 
 OF A COVENANT TO STAND SEISED. 741 
 
 ■wife, or liis ])aveiit, legitiiiiate child, kinsman, or kins- Pt.iii.ti2, 
 woman. ■ 
 
 Tlie proper words of a covenant to stand seised are, operative 
 
 '- ^ ' words. 
 
 " covenant to stand seised to tlie use of A.," &c. But any 
 other M'ords will sufftce, which import an intent to raise a 
 use ; insomnch that the words " bargain, and sell," or " give, 
 grant, and confirm to the use of A.," have been held sufii- 
 cieut. But a mere covenant that at a futnre time lauds 
 shall descend, remain, or l)e to or with A., has been held 
 not to be a covenant to stand seised {a). 
 
 Every person who is capable of being seised to the use of wiio may 
 
 convey, and 
 
 another mav convey by this assurance ili). The covenantor "'"^"^ "'-y "^^ 
 
 " J J \ / conveyed 
 
 must have a vested legal estate of freehold, in possession, aJsui^ance. 
 reversion, or remainder, in the lands or hereditaments, at 
 the time of the execution of the covenant to stand seised (c). 
 A person cannot covenant to stand seised of lands which 
 he may afterward ac(|uire (d). And a joint tenant in fee 
 cannot covenant that he will stand seised of his com- 
 panion's moiety (c). As uses of an estate for years are not 
 executed by the Statute of Uses, such an estate cannot be 
 transferred by a covenant to stand seised. But as the sta- 
 tute does execute uses for years of freehold estates, an 
 estate for years may be created out of a freehold estate by 
 a covenant to stand seised (/). 
 
 The consideration in a covenant to stand seised nnist Cousidera- 
 
 tiou. 
 
 be either lawful blood or marriage. The consideration of 
 blood extends to a parent or legitimate child, kinsman or 
 kinswoman. The consideration of marriage extends to a 
 marriage had or intended with the covenantor or any of 
 his blood (y). 
 
 (a) See 4 Cruise T. 32, c. 10, § 2, (d) 4 Cruise T. 32, c. 10, g 10. 
 
 5, 6. (e) Id. § 11. 
 
 {h) i Cruise T. 32, c. 11, § 7. (/) 3 Jarra. & Byth. by Sweet, 
 
 (c) 3 Jarm. & Bytli. by Sweet, G70. 
 
 670 ; ^yatli. Conv. 3rd cd. by Prcst. (.7) -3 Jarm. & Bytli. by Sweet, 
 
 3,97—8, 671— G73 ; Co. Litt. 123 a, n. (8) ;
 
 742 
 
 OF A COVENANT TO STAND SEISED. 
 
 PT.Iir.T.]2, 
 
 Ch. 3, s. 1. 
 
 Difference 
 in tlie cou- 
 sifleratiou 
 constitutes 
 Ibedistiuc- 
 tioii between 
 a covenant 
 to stand 
 seised and a 
 bargain and 
 Bale. 
 
 Wlien and 
 to wliom 
 a use will 
 tot arise. 
 
 Covenant 
 to stand 
 seised to use 
 c:f a « ife 
 should not be 
 entered into 
 witli liersclf. 
 
 Use after 
 
 covenauloi's 
 
 death. 
 
 Creation of 
 a rent. 
 
 It is tlie difference in the consideration, rather than in 
 the operative words, which constitutes tlie essential distinc- 
 tion between a bargain and sale and a covenant to stand 
 seised. So that where a deed is made simply in considera- 
 tion of a sum of money, though in favour of a son, it will 
 not operate as a covenant to stand seised (A). And if a 
 person for a pecuniary consideration covenants to stand 
 seised to the use of a purchaser, it is a bargain and sale, 
 and, if enrolled, is valid and effectual, as a bargain and sale 
 under the Statute of Uses, to convey the estate to the pur- 
 chaser. And, on the other hand, if a person for natural 
 love and affection bargains and sells his lands to the use of 
 his wife, it is a covenant to stand seised, and as such, with- 
 out enrolment, vests the estate in the wife {i). 
 
 A use wiU not arise on a covenant to stand seised to 
 the use of a son-in-law, an uncle-in-law, or a brother- 
 in-law (/). 
 
 We have seen that a man may covenant to stand seised 
 to the use of his wife. But if he covenants with his wife 
 herself, this is void at law ; because husband and wife are 
 considered as one person, and no man can covenant with 
 himself He must covenant with another person to stand 
 seised to the use of his wife (Jc). 
 
 A deed may operate as a covenant to stand seised, 
 though the use is not to arise till after the death of the 
 covenantor. In such a case the estate continues in the 
 covenantor till a lawful use arises (/). 
 
 In consequence of the 4th and 5th sections of the Statute 
 
 4 Cruise T. 32, c. 10, § 12, 15, 18 ; {]) S.Jarm. & Bj-tb. by Sweet, 
 
 Walk. Conv. 3rd ed. by Trest. 674. 
 
 199. {h) 3 Jarm. & Byth. by Sweet, 
 
 (A) 4 Cruise T. 32, c. 10, § 23, 672. 
 
 24. (/) 4 Jarm. & Bytb. by Sweet, 
 
 (0 Co. Litt. 271 b, u. (1), VI., 1 ; 111 ; 4 Cruise T. 32, c. 10, § 29. 
 Watk. Conv. 3rd ed. by Prest. 200.
 
 OF A COVENANT TO STAND SEISED. 743 
 
 of Uses, a rent may be created Ijy a covenant to stand tt. irT.T.12, 
 
 ' '' '' ClI. 3, 8. 1. 
 
 seised {m). 
 
 Covenants to stand seised are now wholly disused {n). SiLur- 
 
 Section II. 
 Of a Lease and Release. 
 
 A conveyance by lease and release consists of two rr. 111.T.13, 
 distinct deeds : first, a lease, or rather a bargain and sale. 
 
 Description 
 
 under the Statute of Uses, for some nominal pecuniary ^gg*^!f„(.e_ 
 consideration, for one year, which, without any enrolment, 
 vested in the lessee or bargainee the use of the term for a 
 year, and which the Statute of Uses converted into a vested 
 estate, serving as a foundation for a release to Avork upon ; 
 or, if the com^eying party could not stand seised to a 
 use (as in the case of a conveyance by a corporation), then 
 a connnon law demise, perfected by actual entry : secondly, 
 a common law release of the freehold and reversion to the 
 lessee or bargainee, dated on the day following the day of 
 the date of the lease, and operating by way of enlargement 
 of the estate for a year so created by the lease or bargain 
 and sale (0). 
 
 Even before the stat. 4 Vict. c. 21, the recital of the JJ^|^^i%f 
 lease for a year in the release was sufficient of itself for ^y^l^^l^ 
 establishing the conveyance against the releasor and all 
 who claimed under him. But if the rights of a stranger 
 could be effected, the loss of the deed of lease must, as 
 against him, have been proved (p). But by s. 2 of the 
 
 (hi) 4 Cruise T. 32, c. 10, § 30. n. (3), 271 b, n. (1), vi., 2 ; Burton, 
 
 (n) 3 Jarm. & Eyth. by Sweet, § 148; 4 Cruise T. 32, c. 11, § 1; 
 
 677; 1 Sugd. Pow. Introd. p. xi. Watk. Coiiv. 3rd ed. by Prest. 184 j 
 
 (0) See 2 Bl. Com. 339 ; Co. Litt. infra, Part IV. T. 1, c. 8. 
 
 48 a, n. (2), 207 a, n. (3), 270 a, (^j) Barton, § 481.
 
 744 
 
 OF A LEASE AND RELEASE. 
 
 Pt.IILT 12, 
 Ch. 3. 8. 2. 
 
 Consii.lera- 
 tiou. 
 
 Who should 
 be the 
 releasee. 
 
 Keleasco 
 seised and 
 uses exe- 
 cuted with- 
 out his 
 asseut. 
 
 Whore lease 
 and release 
 adopted. 
 
 stat. 4 Vict. c. 21, " wlioro, in (»r by any deed or instru- 
 iiient of release of freehold estates executed before the 
 15th day of May, 1841, any deed or instrument of bargain 
 and sale or lease for a year for giving effect to such deed 
 or instrument of release shall be recited, or by any 
 mention thereof in such deed or instrument of release 
 appear to have been made or executed, such recital or 
 mention thereof shall be deemed and taken to be con- 
 clusive evidence of the deed or instrument of bargain and 
 sale or lease for a year so recited or mentioned having 
 been made and executed ; and such deed or instrument of 
 release shall also have the like effect as if the same had 
 been executed after the 15th day of May, 1841 {q), whether 
 such deed or instrument of bargain and sale or lease for a 
 year shall or shall not have been lost or mislaid, or may or 
 may not be produced." 
 
 As the deed of release operates as a common law con- 
 veyance, there is no necessity for any consideration in 
 it (r). 
 
 The person or persons to be the releasee or releasees in 
 the release should be the bargainee or bargainees in the 
 lease for a year (s). 
 
 In the case of a lease and release to uses, the seisin is 
 in the releasee without any agreement or assent on his 
 part, and will serve the uses declared on the release. Nor 
 w^ould a subsequent disagreement by the releasee defeat 
 the uses declared in the release [t). 
 
 Hereditaments corporeal and incorporeal, in possession, 
 remainder, or reversion, might be conveyed by lease and 
 release («). And although a remainder or reversion might 
 be conveyed by a mere grant, yet it was usually conveyed 
 
 (q) See infra, pp. 745 — 6. 
 {r) 4 Cruise T. 32, c. 11, § 13. 
 (s) 3 Jarra. & Bytli. by Sweet, 
 247, 248. 
 
 (0 4 Cruise T. 32, c. 12, § 45. 
 {n) 4 Cruise T. 32, c. 11, § 8, 11 ; 
 Co. Litt. 270 a, 11. (3).
 
 OF A LEASE AND RELEASE. 745 
 
 l)y lease and release, in order to save the necessity of ^i;"JT]12, 
 
 '' ' '' Cii. 3, s. 2. 
 
 proving the existence of the particular estate, and to 
 guard against the consequence of the mistake, if it should 
 turn out that the estate vas not in fact an estate in 
 remainder or reversion. And the same mode of convey- 
 ance was frequently adopted, rather than a mere release 
 of right, or a confirmation or other deed, where parties 
 had only a right, title, or collateral charge {x). And it was 
 the uniform practice to make persons who had only equit- 
 able estates convey by lease and release, as in the case of 
 a conveyance of the equity of redemption on a mortgage 
 in fee ; though any instrument which expresses an inten- 
 tion to transfer \\\q beneficial ownership is sufficient in 
 equity, and though a conveyance by lease and release of 
 an equitable estate could have no effect at law {y). This 
 course was taken in order to guard against the chance of 
 the assurance being otherwise ineffectual, by reason of the 
 possibility of the parties having the legal estate. 
 
 A conveyance by lease and release did not divest any lease ;ind 
 
 •J J -J release has 
 
 estate, or create a discontinuance or forfeiture (,s), but only oper°\\oi"^ 
 passed what lawfully might pass. 
 
 This conveyance is now disused, in consequence of the Disuse of this 
 
 conveyaace. 
 
 enactments noticed in the next two sections. 
 
 Section III. 
 Of a Statutory Release. 
 
 By the stat. 4 Vict. c. 21, s. 1, it is enacted, " that every pt.iii.t. 12, 
 deed or instrument of release of a freehold estate, or deed '- 
 
 {x) 3 Javm. & Byth. by Sweet. 247 ; Watk. Conv. 3rd ed. by Prest. 
 
 247 ; Watk. Conv. 3rd ed. by Prest. 118, 119. 
 
 95, 109, 110, 168. ip) 4 Cruise T. 32, c. 11, § 15. 
 
 {y) 3 Jarm. & Byth. by Sweet,
 
 740 OF A STATUTORY RELEASE, 
 
 pt. in.T.i2, or instrument purportinii,' ov intended to be a deed or 
 
 C'H. 3, s. 3. 1 i o 
 
 instrument of release of a freehold estate, wliicli shall be 
 
 executed on or after the 15th day of May, 1841, and shall 
 be expressed to be made in pursuance of this Act, shall 
 be as effectual for the purposes therein expressed, and 
 shall take effect as a conveyance to uses or otherA\'ise, and 
 shall operate in all respects both at law and equity as if 
 the releasing party or parties who shall have executed the 
 same had also executed in due form a deed or instrument 
 of bargain and sale or lease for a year for giving effect 
 to such release, although no such deed or instrument of 
 bargain and sale or lease for a year shall be executed ; 
 provided that every such deed or instrument so taking 
 effect under this Act shall be chargeable with the same 
 amount of stamp duty as any bargain and sale or lease 
 for a year would have been chargeable with, (except pro- 
 gressive duty), if executed to give effect to such deed or 
 instrument, in addition to the stamp duties which such 
 deed or instrument shall be chargeable with as a release 
 or otherwise under any Act or Acts relating to stamp 
 duties." 
 
 By the stat. 7 & 8 Vict. c. 76, s. 2, it was enacted as 
 follows : " That every person may convey by any deed, 
 without livery of seisin or enrolment, or a prior lease, all 
 such freehold land as he might before the passing of this 
 Act have conveyed by lease and release ; and every such 
 conveyance shall take effect as if it had been made by 
 lease and release : I'rovided ahvays, that every such deed 
 shall be chargeable with the same stamp duty as would 
 have been chargeable if such conveyance had been made 
 by lease and release." This was repealed by the stat. 
 8 & 9 Vict. c. 106 ; l)ut by s. 2 of that statute, it was 
 enacted " that, after the said 1st day of October, 1845, all 
 corporeal tenements and hereditaments shall, as regards the 
 conveyance of the immediate freehold thereof, be deemed
 
 'OF A STATUTOllY llELEASE, ETC. 747 
 
 to lie in grant as wull as in livery ; and that every deed pt. 111.T.12, 
 which, by force only of this enactment, shall he effectual as 
 a grant, shall he chargeable with the stamp duty with 
 which the same deed A\'ould have been chargeable in case 
 the same had been a release, founded on a lease or bargain 
 and sale for a year, and also with the stamp duty, (exclu- 
 sive of progressive duty,) with which such lease or bargain 
 and sale for a year would have been chargeable." 
 
 By the stat. 13 & 14 Vict. c. 97, s. 6, the duty payable 
 in respect of a lease for a year under the last of these Acts 
 is repealed, as regards deeds bearing date after the 10th of 
 October, 1850. 
 
 Section IV. 
 Of a Statutory Grant. 
 
 This is a conveyance by virtue of the stat. 8 & 9 Vict. rr.iii.T.is, 
 
 c. 106, s. 2, whereby it is enacted "that all corporeal tene- 
 
 nients and hereditaments shall, as regards the conversance 
 of the innnediate freehold thereof, be deemed to lie in 
 grant as well as in livery." 
 
 Section V. 
 
 Of a Deed to lead or declare Uses, and of a Deed of 
 Revocation of Uses. 
 
 I. As a fine sur counizance de droit come ceo, &c., and pt. 111.T.12, 
 •^ ^ , Cu. 3, s, 5. 
 
 a recovery conveyed a clear fee simiile to the cognizee or 
 
 •^ 'f J- ° I. Nature of 
 
 recoveror, tliese assurances could not have been made to deeds to lead 
 
 ' or declare 
 
 answer the purposes of family settlements, unless their 
 
 uses.
 
 ■48 
 
 OF A DEED TO LEAD, DECLARE, Oil AVOID USES. 
 
 Pr. Iir.T.12, 
 Cn. 3, s. 5. 
 
 Stat. 4 Aline, 
 c. 16, s. 15, 
 a:^ to deeds 
 lo declare 
 uses. 
 
 Variance 
 between fine 
 or recovery 
 ;ind deed to 
 lead or 
 declare U;os. 
 
 operation lias Leeu subjected to the direction of deeds 
 wlierein uses Avere particularly expressed. A deed thus 
 expressing the uses of a fine or recovery, if it preceded 
 the fine or recovery, is termed a deed to lead the uses ; 
 if it followed the tine or recovery, it is called a deed to 
 declare the uses (a). 
 
 By the stat. 4 Anne, c. 16, s. 15, reciting that it had 
 been doubted, whether, since the Statute of Frauds, the 
 declarations or creations of uses, trusts, or confidences of 
 any fines or recoveries, manifested by deeds made after the 
 levying or suffering of such fines or recoveries, were good, 
 it is thereby declared, that all declarations or creations of 
 any uses, trusts, or confidences of any fines or common 
 recoveries of any lands, &c., manifested and proved by any 
 deed then made or thereafter to be made by the party who 
 was by law enabled to declare such uses or trusts, after the 
 levying or suffering any such fines or recoveries, were and 
 should be as good and effectual in the law as. if the Statute 
 of Frauds had not been made (li). 
 
 Whether a fine or recovery is in every respect in ac- 
 cordance with the deed to lead the uses thereof, or not, no 
 aA'erment is admissible to prove, that, after the making of 
 such deed, and before the assurance, it was agreed that the 
 assurance should be to other uses than those expressed in 
 such deed (c). But if another agreement was made by a 
 second deed or writing, executed previously to the fine or 
 recovery by all who were parties to the first deed and 
 were concerned in interest, the fine or recovery was to the 
 uses of such second deed (cl). If a deed intended to declare 
 the uses varied from the fine or recovery, it did not operate 
 as a declaration of the uses thereof (c). 
 
 («) 2 BL Com. 363 ; 4 Cruise T. 
 32, c. 12, § 10. 
 
 (6) 4 Cruise T. 32, c. 12, § 22. 
 (c) 4 Cruise T. 32, c. 12, § 11, 12; 
 
 2 Pros. Shep. T. 520. 
 
 {d) 4 Cruise T. 32, c. 12, § 11, 
 12, 15 ; 2 Pres. Shop. T. 520. 
 
 (f) 4 Cruise T. 32, c. 12, § 18.
 
 6f a deed to lead, D"::('LAr{E, OR AVOID USES. 740 
 
 The rii'-lit of declarino; the uses of a fine or recovery was I'^-iy-^'-^-- 
 
 o c' "^ Ch. 3, s. 5. 
 
 precisely co-extensive with the quantity and nature of the 
 
 r -J 1 ■/ ^ ^ ]\rea.;ure of 
 
 estate or interest wliich each of the parties had in the 5J=\'*,°y„ 
 lands. If, therefore, a tenant for life ami the person "■'^"^*- 
 entitled to the remainder or reversion joined in levying a 
 fine or suffering a recovery, they might declare the uses 
 according to their respective estates in the land (/). 
 
 II. Deeds of revocation of uses are deeds revoking uses H- Deeds of 
 
 revocation of 
 
 declared by a former deed, by virtue of a power of revo- "^^s. 
 cation contained in such former deed (//). 
 
 Foniis must 
 ))e obsirved. 
 
 Section VI. 
 
 Of a Deed of Apjwintincjit render a Power (Iif 
 
 I. The mode of executing Pot vers. 
 
 Except in cases within the 1 Otli section of the stat. 1 ^ca^^s^'g' g^' 
 Yict. c. 26 («■), and tlie 12th section of the stat. 22 & 23 
 Vict. c. 35 (J), the forms which are required by a power 
 must be strictly observed (/.;). This rule is the same even 
 in the case of a poAver of revocation of a voluntary settle- 
 ment reserved to the original owner of the estate ; for he 
 may feel conscious of such infirmity of mind as to require 
 that all future dispositions to be made by him should be 
 attended with such solemnities as may effectually prevent 
 surprise and imposition (/), A liberal construction, how- 
 ever, is usually put on the words of a power (jn). 
 
 (/) i Cruise T. 3-2, c. 12, § 40. (/) See infra, p. 756. 
 
 {<j) See 2 Bl. Com. 339. {k) 1 Siigd. Pow. 250, 252 ; Co. 
 
 (h) On Powers, as distinguished Litt. 271 b, n. (1), VII., 2, 
 
 from appointments under them, see (?) 4 Cruise T. 32, c. 16, § 2 ; 2 
 
 supra, p. 345 ; and on Leases under Sugd. Pow. 99. 
 
 Powers, see next section. {vi) 1 Sugd. Pow. 255. 
 
 (/) See infra, p. 755.
 
 750 
 
 OF A DEED OF APrOIXTMENT 
 
 Pt. ITI.T.12, 
 Cii. 3, s. 6. 
 
 Formalities 
 must bo 
 perfected ia 
 donee's 
 lifetime. 
 
 ]3y what 
 iustniment a 
 power may 
 be executed. 
 
 Execution by 
 an ordinary 
 assurance. 
 
 Power 
 
 executed by 
 a piior will. 
 
 Wliat words 
 required. 
 
 It is generally necessary that every prescribed formality, 
 even thongli it be external to the appointment (such as 
 enrolment), should be perfected in the lifetime of the donee 
 of the power (vi). 
 
 Where the mode of execution is not defined, a power 
 may be exercised either by deed or will, or even by a 
 simple unattested note in writing (o). 
 
 Where a power, wdiether it be a common law authority 
 given by will, or a power operating under the Statute of 
 Uses, may be executed by deed, it may be executed by 
 feoffment, bargain and sale, covenant to stand seised, 
 statutory grant, or, wliilst that mode of assurance re- 
 mained, it might have been exercised by lease and release 
 with or without a fine. But these assurances, so far as 
 they may be, or may have been, employed for the purpose 
 of exercising powers of appointment, do not operate as 
 feoffments, bargains and sales, covenants to stand seised, 
 statutory grants, leases and releases, or fines, but as 
 declarations of the uses under the power. And hence, if 
 a power limited by way of use is executed by any of these 
 assurances, upon which uses arc declared, the feoffee, &c.; 
 as the appointee of the first use, will be invested with the 
 legal estate by force of the Statute of Uses, and the real 
 objects of the deed, contrary to the usual intention, will 
 take mere trust estates {p). 
 
 Under the combined operation of the 24tli and 27th 
 sections of the stat. 1 Vict. c. 26 (7), a will may be a good 
 execution of a power, though made before the power was 
 created (;•). 
 
 A power may be executed by any words indicating an 
 
 (ft) 1 Sugd. Pow. 314. 
 
 (0) 1 Sugd. Pow. 247 ; Watk. 
 Conv. 3rd cd. by Prest. 140. 
 
 (p) 1 Sugd. Pow. 247—8 ; 2 Id. 
 •J, 10 ; Co. Lilt. 271 b, n. (1), vii. 
 
 1, 2. See supra, pp. 262—4. 
 
 {q) See infra, T. 15, c. 1, s, 4, No. 
 XIX. and p. 763. 
 
 (;•) StiUman v. Wecdon, 16 Sim. 
 26.
 
 UNDER A POWER. 
 
 751 
 
 intention to exercise it (s). But such technical expressions ^^^^"3^-5 {57 
 as are necessary in a deed at common law are equally - 
 necessary in a deed or other act inter vivos in execution of 
 a power. And the construction of a deed executing a 
 power is the same as that of a deed at common law. So 
 that if an estate is appointed to a person indefinitely, he 
 will take an estate for life only (t). 
 
 That which may be a complete exercise and exhaustion Total exccu- 
 
 , tioD at l.nv, 
 
 of a nower at law may amount to a i)artial execution only but partial 
 
 i- "J ^ " executiou in 
 
 in equity. Thus, if a man, having a general poAver of ''^"'^y- 
 appointment, appoints the fee by way of mortgage, the 
 power is wholly executed at law ; hut as equity considers 
 a mortgage merely a security for the debt, it operates in 
 equity as a partial execution only {u). 
 
 Powers of appointment and revocation may be executed f^g'j^lij'" ^^ 
 at different times over different parts of the property, or over different 
 over the whole property, but not to the full extent of the properV-'*^ 
 power. So that where a man has a general power of ap- 
 pointment, he may appoint an estate for life at one time, 
 and the fee at another time (;r). 
 
 There ousht to be no trifling distinctions between a creation of 
 
 ° ° . distinct 
 
 power of appointment in fee and an estate in fee, upon '^^^^^^^^^ 
 merely technical grounds. The power must not be ex- P°p(';[Qtf„p„t 
 ceeded, nor its directions evaded ; Ijut where there is no ^" ^''°' 
 prohibition, everything which is legal and within the 
 limits of the authority should be supported; so that a 
 power to appoint a fee, with no prohibition against giving 
 a less estate, ought to be held to authorise any legal limi- 
 tations within the scope of the power which could be 
 served out of a commensurate estate, that is, an estate in 
 fee. Hence, where a person had a power of appointing to 
 
 (s) 1 Sugd. Pow. 244. (*) 1 Sugd. Pow. 341—2; 4 Cruise 
 
 («) 1 Sugd. Pow, 532—3, T. 32, c. 16, § 38, 41 ; Watk. Conv. 
 
 (u) 1 Sugd. Pow. 343 ; 4 Cruise T. 3rd cd. by Prest. 145. 
 32, c. 16, § 42. :
 
 752 
 
 OF A DEED OF APPOINTMENT 
 
 Pt.III.T.12, 
 
 Ch. 3, s. 6. 
 
 Appointment 
 or revoca- 
 tion on a 
 conliLgencj'. 
 
 Mode of 
 executing? a 
 deed or will 
 intended ;i.s 
 an appoiut- 
 meut. 
 
 one or more of Lis cliildreu in fee, and he, in exercise of 
 liis power, whether referring to it or not, devised tlie lands 
 to his wife for life, to maintain and educate his children, 
 and to provide portions for them, with remainder to his 
 eldest son in fee, it was held by Sir E. Sagden, A\'hen 
 Lord Chancellor of Ireland, that the gift of the life estate 
 to the wife was void, as she was not an object of the 
 power, but that the devise to the son was a good ap- 
 pointment, though in remainder ; and that the direction 
 for maintenance and education of the children, and the 
 legacies to them, were pro tanto a good execution of the 
 power (ij). 
 
 A donee of a power may suspend an appointment or 
 revocation upon a contingency (z). 
 
 In the case of a power to appoint an estate by deed or 
 will, generally, without expressing in what manner it is to 
 be executed, the deed or will is to be executed like any 
 other deed or will ; so that, if the instrument was to be 
 a will, or " a writing of the nature of a will," and the sub- 
 ject of the power was personal estate, it might, before the 
 stat. 1 Vict. c. 26, have been executed by a mere writing, 
 without signature or attestation ; while, if the property was 
 real estate, the will must have been executed with the 
 solemnities required by the Statute of Frauds («). On the 
 other hand, two witnesses, although not sufficient to a de- 
 vise of an interest in land, were sufticient to an exercise of 
 a power by will, to be attested by that number of witnesses. 
 But by ss. 9 and 10 of the stat. 1 Vict. c. 26 (b), one uniform 
 mode of executing a Avill is prescribed, whether the will is 
 an appointment or not. 
 
 {y) Crozier v. Crozicr, 3 Dru. & 
 War. 353. 
 
 (2) 1 Sugd. Tow. 439, 440. See 
 also Caulfield v. Maynlrc, 2 J. & L. 
 170. 
 
 (a) 1 Sugd. Pow. 2S0— 1; 4 Cruise 
 T. 32, c. 16, § 19, 21. 
 
 {h) See infra, T. 15, c. 1, No. TV., 
 andp. V55.
 
 UNDER A POWEE. 753 
 
 A testamentary instrument sillied, but not attested so as pt.iii.t. 12, 
 
 to render it valid as a will, is not a good execution of a 
 
 power to appoint by writing signed or by will (c). 
 
 A deed executim? a power should state accurately the cumpiianco 
 . . ^"h re- 
 
 compliance with every formality required to be observed (d). }^'^^^y|^■^l^:^ 
 
 And in general, (at least so far as the stat. 22 & 23 Vict, f^^^'l^' 
 G. 35, s. 12 (c), may not avoid the necessity,) where powers 
 recpiire the attestation of facts, the facts must be stated in 
 the memorandum of attestation (/). Thus, wliere a power 
 was given of appointing by any deed under hand and seal, 
 executed in the presence of and attested by witnesses, a 
 deed, though in fact signed as w^ell as sealed and delivered 
 in the presence of two witnesses, was held to be not a good 
 exercise of the power, in consequence of the attestation 
 clause not expressing that the deed was signed as well as 
 sealed and delivered («/). This oversight having frequently 
 been committed, the stat. 54 Geo. 3, c. 168, was passed to 
 remedy it Ijy a retrospective operation, l)ut without ex- 
 tending to future transactions (h). The word " witness," 
 however, will be a sufficient form of attestation, if all the 
 ceremonies are previously stated in the body of the instru- 
 ment or at the conclusion of it (/). Where witnesses are 
 required, but nothing is said about the witnesses attesting 
 the execution, the power will be duly executed although 
 the witnesses do not subscribe the indorsed attestation, or 
 some of them do and others do not (/). 
 
 (c) In re Daly's Settlement, 25 (y) Waterman v. SmitJi, 9 Sim. 
 Beav. 456. 629. 
 
 (d) 1 Sugd. Pon'. 324. (h) Burton, § 450 ; 1 Sugd. Po^v. 
 
 (e) See infra, p. 763. 307— S. 
 
 (y ) Watk. Conv. 3rd ed. by Prest. (/) 1 Sugd. Pow. 300. 
 
 148—9. See Be Hichtt's Trusts, 1 (j) 1 Sugd. Pow. 312—13. 
 Johns. & Hem. 70.
 
 754 OF A DEED OF APPOINTMENT 
 
 II. Relief against the Defective. Execution or Non-Execution 
 of Poiucrs. 
 
 ^ch ^s'l G^' Kelicf against a defective execution of a power can only 
 j^gj.gj -^ be had in a court of equity, and only where the person ap- 
 Xne^ plyii^g fo^' ''^^'^ch relief is a purchaser under the donee of the 
 
 Id whose powcr, — thc term purchaser including a mortgagee and a 
 lessee, — or an intended husband or a creditor of the donee of 
 the power) or where the applicant is a wife or a legitimate 
 child of such donee, even when not claiming as a purchaser 
 for valuable consideration, because they are in some degree 
 considered as creditors by nature {k). The like relief is ex- 
 tended to a charity (J). Indeed an appointment to a charity, 
 by any writing, however informal, is valid, as the Statute of 
 Charitable Uses supplies all defects of assurance which the 
 donor was capable of making {m). But this equity is not 
 extended to a mere volunteer, or even to a husband (except 
 in the case of an intended husband, who is regarded as a 
 purchaser for valuable consideration), or to a natural child, 
 or to a grandchild, or to a father, or mother, or brother, or 
 sister {n). But cases of fraud constitute an exception to 
 this ; as where the person interested in the non-execution 
 of the power has the deed creating the power in his 
 custody, and refuses to allow the donee of the power an 
 opportunity of inspecting it to enable him to execute it 
 aright (o). 
 
 {l:) 2 Sugd. Pow. 91—94, 97—8 ; (m) 1 Sugd. Pow. 254 ; hmcs v. 
 
 1 Story's Eq. Jur. § 95, 169, 170; 4 Sayer, 3 Mac. & G. 606. 
 
 Cruise T. 32, c. 17, § 9, 15—17, 19, {n) 2 Sugd. Pow. 94—5 ; 1 Story's 
 
 20 ; Morse v. Martin, 34 Beav. 500 ; Eq. Jur. § 95. 
 
 In re Dyhes' Estate, L. R. 7 Eq. (o) 2 Sugd. Pow. 140 ; 1 Story's 
 
 337. Eq. Jur. § 94, 199 j 4 Cruise T. 32, 
 
 (/) 2 Sugd. Pow. 94 ; 1 Story's c 17, § 22—3. 
 Eq. Jur. § 95.
 
 UXDER A rowR]^ 75 O 
 
 Relief is aTaiited where there is a defect in the mode of pt. tii.t.i2, 
 
 '^ Ch. 3, s. G. 
 
 execution : as, 1. AYhere the power ought to be executed by ; 
 
 ' i » J Kelief in 
 
 deed, but is executed by will. 2. Wliere, according to the -'f t'^jj^^ '''''^'^'■' 
 
 old law, the power was required to be exercised by a testa- ^ecution, 
 
 mentary instrument executed and attested in a particular 
 
 fonn, but such instrument is wanting wholly in the forms 
 
 of signature and attestation {'p). Tliis was no derogation » 
 
 from the Statute of Frauds as regarded real estate, because 
 
 an a])pointment under a power did not take effect under 
 
 that statute. But all appointments by will, made on or J^^PJ^t^"'* 
 
 after the 1st of January, 1838 (^), must be executed like ::,i"orafter 
 
 other wills ; for by the stat. 1 Vict. c. 26, s. 10, it is enacted, to^L e'xecu-' 
 
 . . „ ted like otlier 
 
 that " no apponitment made liy will m exercise oi any wois. 
 power shall be valid, unless the same be executed in manner 
 ]iereinl3efore required " ('>■). By tlie same section it is enacted, 
 as regards wills made on or after the 1st of January, 18.38, o'^^^'- 
 
 O .; ' ' required 
 
 that " every will executed in manner hereinbefore re- neeTuiufe 
 quired shall, so far as respects the execution and attestation " ^"^"^^^ ' 
 thereof, be a valid execution of a power of appointment by 
 will, notwithstanding it shall have been expressly required 
 that a will made in exercise of such power should be 
 executed with some additional or other form of execution 
 or solemnity." But in ^¥c^t v. Kay (.s), it was held, con- Entnot 
 trary to Buchidl v. BlenJcom (i), that, where a power of ^^^f;"'".. i^ 
 appointment is to be exercised by " any deed or writing " ^'^^viu-ed. 
 under the hand and seal of the donee, it cannot be exer- 
 cised by a will executed with only the formalities required 
 by 1 Vict. c. 26, notwithstanding the 10th section of that 
 Act ; the power not being in terms a power to appoint by 
 will, but only liy any deed or writing. 
 
 (i)) 2 Sugd. Pow. 125— G ; 1 (.v) 1 Kay, 3S5 ; see C'oUard y. 
 
 Story's Eq. ,Tur. | 97, 173—4 ; 4 Sampson, 4 D. M. & G. 224 ; Orange 
 
 Cruise T. 32, c. 17, § 7. v. Plcl-fonl, 4 Drewry, 363 ; Taylor 
 
 Cq) 2 Sugd. Pow. 125—6; 1 Story's v. Meads, 13 W. R. 394 (L. C.) 
 Eq. Jur. §174. " (^ 5 Hare, 131. 
 
 (r) 2 Sugd. Pow. 125—6, 
 
 yoL. II. 51
 
 756 OF A DEED OF ArrOINTMENT 
 
 rT.iii.T.i2, By the stat. 22 & 23 Vict. c. 35, s. 12 (13tli Aug. 1859), 
 " a deed hereafter executed in the iDresence of and attested 
 
 Appoiut- ^ 
 
 deed or'^ ^^ ^^^^^ ^^ uiore witucsses in the manner in which deeds 
 Testameutary ^^'G Ordinarily executed and attested shall, so far as 
 'isthofAu- respects the execution and attestation thereof, be a valid 
 execution of a power of appointment by deed or by any 
 instrument in writing not testamentary, notwithstanding 
 it shall have been expressly required that a deed or instru- 
 ment in writing made in exercise of such power should be 
 executed or attested with some additional or other form of 
 execution or attestation of solemnity : Provided always, 
 that this provision shall not operate to defeat any direction 
 in the instrument creating the power that the consent of 
 any particular person shall be necessary to a valid execu- 
 tion, or that any act shall be performed in order to give 
 validity to any appointment, having no relation to the 
 mode of executing and attesting the instrument, and 
 nothing herein contained shall prevent the donee of a 
 power from executing it conformably to the power by 
 writing or otherwise than by an instrument executed and 
 attested as an ordinary deed, and to any such execution of 
 a power this provision shall not extend." 
 vtimh there belief Is granted even where there is only an inten- 
 int"enU(.r tiou to exccutc the power, if it is clearly manifested in 
 
 to execute. • , • / \ 
 
 writing {Uj. 
 
 Where de- Equity cannot dispense with the regulations prescribed, 
 
 execution is whcrc the powcr is created by statute (at least where they 
 
 not relieved ••- ,/ \ ./ 
 
 against. constitute the apparent policy and object of the statute), 
 or with the consent of persons whose consent is required. 
 Nor will the regulations prescribed be dispensed with, 
 where such dispensation would wholly or partially defeat 
 the object of the donor of the power ; as where, in the 
 case of a lease under a power, the best rent is required to 
 
 (u) 2 Sugd. Pow. 115—6 ; Oarih v. Toumcnd, L. K. 7 Eq. 220.
 
 UNDER A rOWER. 757 
 
 be reserved, and it is not reserved. 'Nov will an execution pt.iii.t.12, 
 
 Ch. 3, s. 6, 
 
 by an absolute deed, or by a surrender of copyholds, instead 
 
 of by will, be supported ; as that would be repugnant to 
 the power, since it would not be revocable like a will (./•). 
 Nor will a defective execution be supported, wdiere the 
 donee of the power afterwards executes it in due form in 
 favour of a bona fide purchaser or mortgagee without 
 notice of such defective execution ; it being a maxim, that 
 where the equities are equal, the law^ shall prevail Qj). 
 
 Putting aside cases of fraud and election, and cases of NoreUef 
 
 '^ in cases of 
 
 an intention to execute manifested in writing, equity will t^^'®^^'''^' 
 not interpose in the case of the non-execution of a mere 
 power ; for that would be depriving the donee of the right 
 of discretion in regard to the exercise of the power. But 
 where a power is coupled with a trust, that is, where a 
 man is invested with a trust to be effectuated by the 
 execution of a power, it is his duty to exercise the power ; 
 and if he does not execute it, equity will carry the trust 
 into execution, even though the person in whose favour 
 it is to be executed is a mere volunteer. An instance of 
 this kind occurs wdiere trustees are empowered to sell an 
 estate, and apply the proceeds upon certain trusts {z). 
 
 III. Excessive ExeciUioii of Poimrs, 
 Where there is a complete but excessive execution, the complete 
 
 b>it excessive 
 
 excess alone is void, if it is of such a nature as to be execution. 
 capable of being exactly distinguished and severed from 
 that which would constitute a complete and proper ap- 
 pointment : as where a man, having a power to lease for 
 twenty-one years, leases for forty ; or where a person 
 
 {x) 1 Story's Eq. Jur. § 96—7, (z) 2 Sugd. Pow. 157—160 ; 1 
 
 173 ; 2 Sugd. Pow. 128, 138 ; Watk. Story's Eq. Jur. § 98, 169, 170 ; 4 
 
 Conv. 3rd ed. by Prest. 140. CniLse T. 32. c. 17, § 1, 25. 
 
 ijj) 2 Sugd. Pow. 103—4,. 
 
 M 2
 
 758 
 
 OF A DEED OF APPOINTMENT 
 
 Pt. III.T.12, 
 Cli. 3, s. 0. 
 
 Effect of 
 engrafting 
 void trusts 
 on an ap- 
 pointment, 
 or illegally 
 modifying 
 tlie interest 
 appointc'-l. 
 
 liaving poM'jjr to cliarge a particular sum charges a larger 
 sum (ft) ; or, in most cases, where an ap})ointnient is made 
 to persons, some of whom are not ohjects of the power (Ii) ; 
 or where a distinct unauthorised limitation, trust, or con- 
 dition is superadded (r). 
 
 Where a testator, after appointing personal property in 
 terms which, per se, w^ould give the appointee the absolute 
 interest, proceeds to direct, that, after the death of the 
 appointee, the property shall he held upon trust for other 
 persons, who are incapahle of taking, the first appointee 
 takes the absolute interest, unaffected by the subsequent 
 trusts (d). And where there is an absolute appointment 
 liy will in favour of a proper oljject of the power, and that 
 appointment is followed by attempts to modify the interest 
 so appointed, in a manner which the law will not allow, or 
 to subject it to a condition, or to a trust in favour of persons 
 not objects of the power, the Court reads the will as if the 
 passages in which such attempts are made were swept out 
 of it, for all intents and purposes, i. e., not only so far as 
 they attempt to regulate the quantum of interest to be 
 enjoyed by the appointee in the settled property, but also 
 so far as they might otherwise be relied upon as raising a 
 case of election {c). But under a power to appoint to his 
 children, a father may appoint a share to- a daughter for 
 life for her separate use, with remainder as she should by 
 will appoint (/ ). And where, under a power of appointing to 
 children, an appointment is made to trustees for a daughter, 
 her intended husband, and the children of the marriage, it 
 
 {(() See 2 Sugcl. Pow. 75—8. 
 
 {I) 2 Sugd. Pow. 62, 66—7. 
 
 {(-) 2 Sugd. Pow. 73, 76, 84 ; 4 
 Cruise T. 32, c. 16, § 49 ; Watt v. 
 Creyl-e, 3 Sm. & Gif. 362 ; CWu- v. 
 Foster, 1 Johns, k Hem. 30 ; In re 
 Brown's Trust, L. E. 1 Eq. 74 ; In 
 re Jeaffreson's Trust, L. E. 2 Eq. 276. 
 
 (rf) Harrey v. Stracey, 1 Drewry, 
 137—40; Re Lord Sondes' Will, 2 
 S. & Gif. 416. 
 
 (e) Woolridge v. WooJridge, 1 
 Johns. 63 ; Roolce v. lioolce, 2 Dr. 
 & Sm. 38; Cliurcldll v. Churchill, 
 L. E. 5 Eq. 44. 
 
 {f)Morse v. Martin, 34 Beav. 500.
 
 UXDEK A P0"\VE1I. 759 
 
 will be supported as an appointment to the daughter, and Pr.iii.T.12, 
 
 l-'II. Of S. O. 
 
 a settlement of the sum appointed (</). 
 
 Under a power to charge an estate with a certain sum Appointment 
 
 for separate 
 
 for the portions of daughters, the donee may limit to iaaiienabie 
 the separate use of a daughter, with a restraint on anti- 
 cipation (//). 
 
 IV. Fraudulent and Illusory Appointments. 
 The donee of a power must exercise it bona fide simply Appoiut- 
 
 .. ^ ^ , ment must 
 
 and entirely tor the end designed ; and it must be a pure, bemaaefor 
 
 ^ ' i ' the end 
 
 straightforward, honest dedication of the property, as pro- <'esig>ied. 
 perty, to the person to whom he affects or attempts to give 
 it in that character : otherwise it is considered as a fraud 
 upon the power (/). Hence, \\'here a person has a power of 
 appointing to all or any of his children, and he exercises it 
 in favour of one child, merely in order to remove an objec- 
 tion to the title of an estate, the appointment is void {j). 
 And if a jjerson, having a particular power to be exercised Appointment 
 
 '" ■whereby a 
 
 for the benefit of others, make an appointment in payment benefit is 
 
 ^ ^ J. ./ secured to 
 
 of a debt due to the appointee by the appointor, or upon orl^itran"cr*er! 
 the terms or for the purpose (whether made known to the 
 appointee at the time, or not), of securing some benefit to 
 himself or some other persons who are not objects of the 
 power, such an appointment is fraudulent, and will be set 
 aside in equity (/,■) : as where the donee of a power appoints 
 a fund to one of the objects of the po^\'er, under an under- 
 standing that the latter is to lend the fund to the former, 
 
 {(j) Flkrojj V. Dulce of Rkhmnd Eep. (N. S.) 295. 
 
 (No. 2), 27 Beav. 190 ; Daniel v. (^0 Sec 2 Sugd. Pow. 181, 184, 
 
 ^r^■iM•(^//^<, 2 Hem. & Mil. 95. 191 — 4; Arnold t. Hardwick, 7 
 
 {h) Dickinson v. Mart, 8 Have, Sim. 343 ; Askham v. Barker, 12 
 
 178. Beav. 499 ; 17 Bear. 37; Eariison 
 
 (0 Portland {Duke of) v. Topham,, v. Randall, 9 Hare, 397 ; Agassiz v. 
 
 11 H. L. Cas. 32 ; Pryor y. Pnjor, Squire, 18 Beav. 431 ; Pcid v. Eeid^ 
 
 2 D. J. & S. 205. 25 Beav. 409. 
 
 (i) Weir V. Charnhj, 1 Ir. Eq.
 
 "60 
 
 OF A DEED OF APPOINTMENT 
 
 Appointment 
 to an iiifaut. 
 
 Eights of 
 creditors 
 against a 
 general 
 appointee. 
 
 Illusory ap- 
 pointments. 
 
 tliougli on good security (/) ; or that the appointee should 
 hold the fund in trust for or make over a part to persons 
 some of whom are not objects of the power (m). 
 
 Upon the same principle, if a parent appoints an im- 
 mediate portion to an infant who is not in want of it, or 
 appoints to a child, whether infant or adult, who is seriously 
 ill, with a view to becoming entitled to that which is so 
 appointed himself, as the personal representative of such 
 appointee in the event of his death, the appointment is 
 void as a fraud upon the power (w). 
 
 Wliere a person exercises a general power of appoint- 
 ment in favour of a stranger, his creditors will in equity 
 l)ecome entitled to the property appointed, if there is a 
 deficiency of assets (o). 
 
 Where a person had a power of appointing an estate or 
 a sum of money unto and among his children or any other 
 class of persons, in such shares and proportions as he 
 should think proper, there, prior to the 16tli of July, 1830, 
 each of the class must in equity have had such a fair and 
 reasonable share as was not illusory : otherwise an ap- 
 pointment to them prior to that date was void in equity (j)). 
 But by the stat. 1 AVill. 4, c. 46, s. 1, illusory appointments 
 made after the 16tli of July, 1830, are valid in equity as 
 well as at law. The Act is in these words : " Whereas, by 
 deeds, wills, and other instruments, powers are frequently 
 given to appoint real and personal property amongst several 
 objects, in such manner that none of the objects can be 
 excluded by the donee of the power from a share of such 
 property : and whereas appointments in exercise of such 
 powers whereby an unsubstantial, illusory, or nominal 
 
 (l) Arnold v. HanhcicTc, 7 Sim. 
 313. 
 
 {m) Birley v. Birley, 25 Beav. 
 299 ; Re Marsdcn's Trust, 4 Drew. 
 594. 
 
 (.rt) 2 Siigd.Pow.194; WeUesIc>/v. 
 
 Earl of Morninrjton, 2 K. & J. 143 ; 
 Beere v. Iloffmister, 23 Beav. 101. 
 
 (o) 2 Sugd. Pow. 102, 158—9 ; 1 
 Story's Eq. Jur. § 169; 1 Lead. Cas. 
 in Eq. 3rd ed. 210 ; 2 Id. 121—2. 
 
 ixi) 4 Cruise T. 32. c. 16, § 58.
 
 UNDER A rOWEE. 761 
 
 sliare of tlic property affected thereby is appointed to or ^ch^sJ'o^' 
 
 left imappointed to devolve upon any one or more of the 
 
 objects thereof, are invalid in equity, although the like 
 appointments are good and binding in law :" and Mdiereas 
 considerable inconvenience hath arisen from the rule of 
 equity relative to such appointments, and it is expedient 
 that such appointments should be as valid in equity as at 
 law ; be it therefore enacted, that no appointment which, 
 from and after the passing of this Act shall be made in 
 exercise of any power or authority to appoint any pro- 
 perty, real or personal, amongst several objects, shall be 
 invalid, or impeached in equity, on the ground that an un- 
 substantial, illusory, or nominal share only shall be thereby 
 appointed to or left unappointed to devolve upon any one 
 or more of the objects of such power ; but that every such 
 appointment shall be valid and effectual in equity as well 
 as at law, notwithstanding that any one or more of the 
 objects shall not thereunder, or in default of such appoint- 
 ment, take more than an unsubstantial, illusory, or nominal 
 share of the property subjected to such power " (s. 1). 
 " Provided always, and be it further enacted, that nothing 
 in this Act contained shall prejudice or affect any provision 
 in any deed, will, or other instrument creating any such 
 power as aforesaid, which shall declare the amount of the 
 share or shares from which no object of the power shall 
 be excluded " (s. 2). " Provided also, and be it further 
 enacted and declared, that nothing in this Act contained 
 shall be construed, deemed, or taken, at law or in equity, 
 to give any other validity, force, or effect, to any appoint- 
 ment, than such appointment would have had if a sub- 
 stantial share of the property affected by the power had 
 been thereby appointed to or left unappointed to devolve 
 upon any object of such power" (s. 3).
 
 762 OF A DEKl) OF ArPOINTME^'T 
 
 V. The Question v.hdhcr an Indmmcnt is intended to 
 operate as an A-ppointment. 
 
 ft. III.T.12, A power may Lc executed without being in any manner 
 
 Cii. 3, 3. 6. 
 
 — referred to, provided, in cases not within the Wills Act, tlie 
 
 intention to execute it or to pass the property sufficiently 
 appears {q). Where, however, a man has both a power and 
 an interest, relating to the same property, or to different 
 properties or portions of property, and he devises, be- 
 queatlis, or conveys generally, without in any manner 
 indicating an intention to exercise his power, the act done 
 will only operate, if it can, by virtue of his ownership or 
 interest, and not in exercise of his power (;•). But where 
 a person has both a power and an interest (as Avliere he 
 has a general power of appointment, with a limitation to 
 himself in fee), and he makes a disposition which is not 
 adapted to pass his interest and would be absolutely void 
 if it did not enure as an execution of the power, it will 
 take effect as an appointment, if it is of the nature and 
 executed in thg manner prescribed by the power, however 
 general it may l)e (.s). And where a man has both a power 
 and an interest, and he creates an estate which would not 
 or might not endure for the period assigned to it by the 
 terms of its creation, if it were fed out of his interest, it 
 shall take effect by force of the power {t). 
 
 Even prior to the Wills Act, where a man had a poA\er 
 of appointment over certain property, but no estate in it, 
 if he executed an instrument purporting to convey, devise, 
 or bequeatli that specific property, and the forms requisite 
 
 (2) 1 Sugcl Povv. 356; 4 Cruise (;•) 1 Siigd. Pow. 41-2; 4 CnilsG 
 
 T. 32, c. 16, § 27, 31 ; Co. Litt. 271 T. 32, c. 16, § 70 ; Burton, § 610 ; 
 
 b, n (1), vii. 2. And sec Li Re Noel v. Aocl, i DrcAV. 624. 
 
 David's Trusts, 1 Johns. 495 ; (s) 1 Sugd. Pow. 417 ; Co. Litt. 
 
 r^i-y«H V. Yi/ryati, 30 Eeav. 65; 271 b, n. (1), vii. 2. 
 
 and infra, p. 763. (t) 1 Sugd. Pow. 41S.
 
 UNDEK A POWER. 763 
 
 to an execution of the power "were observed, the convey- ^qJ^^''^'\^' 
 a nee, devise, or liequest enured as an appointment, because 
 otherwise it would have been necessarily void, ab initio (u). 
 And where an act can operate only as an exercise of a 
 power of revocation, and all the circumstances requisite to 
 an execution of the power are observed, the act shall be 
 deemed an execution of the power, although no reference 
 whatever is made to it, or to an intent to revoke (.r). 
 
 In cases under the old Vaw, where there is no general 
 reference to powers, and no reference to the particular 
 [)Ower, the property comprised in it must be mentioned, 
 or in some other way there must be an intention apparent 
 on the face of the will to operate upon it (i/). But in the 
 case of wills made on or after the 1st of January, 1838, a 
 general gift includes real and personal property over Avliich 
 the testator has a general power of testamentary appoint- 
 ment, unless a contrary intention appears by the will (z). 
 For, by the stat. 1 Vict. c. 26, s. 27, it is enacted "that a 
 general devise of the real estate of the testator, or of the 
 real estate of the testator in any place or in the occupation 
 of any person mentioned in his will, or otherwise described 
 in a general manner, shall be construed to include any real 
 estate, or any real estate to which such description shall 
 extend (as the case may be), which he may have power to 
 appoint in any manner he may think proper, and shall 
 operate as an execution of such power, unless a contrary 
 intention shall appear by the will; and in like manner a 
 berpiest of the pers(7nal estate of the testator, or any 
 
 (u) 1 Sugd. Pow. 357, 377, 380 ; K. & J. 255, 3 D. & J. 142 ; Ecldx. 
 
 1 Javrn. "Wills, 2nd ed. 582—4 ; see Held, 25 Bcav. 469 ; Roolv v. Boole, 
 
 ."^he/ford T. Acland, 23 Bear. 1014; 2 Dr. & Sm. 38. See Att.-Gen. v. 
 
 Ccu-Vcr V. FikJumh, 27 Beav. 488. Wdkinson, L. E. 2 Eq. 816. 
 
 (..) 1 Sugd. Pow. 357—8. (.-) Moss v. Harfer, 2 Sm. & Gif. 
 
 (//) 1 Sugd. Pow. 367—9 ; 4 458 ; ScHreii v. Scindom, 2 Johns. & 
 
 Cruise T. 32, c. 16, § 34 ; Evans v. H. 743 ; Bush v. CoiOaii, 32 Beav. 
 
 Evans, 23 Beav. 1 ; V.-C. Wood's 228. 
 remarks in Hidchiugs v. Osborne, 4
 
 76-4 
 
 OF A DEED OF AITOIXTMENT 
 
 rT.iii.T.i2, bequest of personal property described in a general 
 
 C'H. Oj S. 0. 
 
 manner («), shall be construed to include any personal 
 
 estate, or any personal estate to wliicli such description 
 shall extend (as the case may be), which he may have 
 power to appoint in any manner he may think proper, and 
 shall operate as an execution of such power, unless a 
 contrary intention shall appear by the will." 
 
 Notwithstanding the 8th section (h) the 27th section ap- 
 plies to testamentary appointments by married women (c). 
 
 Where a gift is prima facie specific, evidence may be 
 received as to the state of the property at the date of the 
 will, or at the time of the testator's death, for the purpose 
 of identifying the subject matter of the gift, so as to ascer- 
 tain whether the testator meant to refer to his own pro- 
 perty or to property over which he had only a power of 
 appointment (d). But the Court will not infer an inten- 
 tion to execute a power from the mere fact of the instru- 
 ment being executed in the manner required by the power, 
 nor from any other slight circumstances of conformity, nor 
 from the fact that otherwise there would not be sufficient 
 to answer the purposes of the will (c). 
 
 Who may 
 exercise a 
 power 
 
 Time for 
 execution. 
 
 VI. Appointments generally. 
 
 Every person who is capable of disposing of property of 
 wliich he is the owner, may exercise a power (/). 
 
 In the absence of any indication of a contrary intent, a 
 donee of a power may execute it at any time during his 
 life {g). 
 
 (a) See Hawtliorn v. Shedden, 3 Ap. 587. 
 
 Sm. & G. 293 ; Wilday v. Barnett, 
 L. R. 6 Eq. Cas. 193. 
 
 (6) See infra, Part IV. T. 1, c. 3, 
 s. 1. 
 
 (c) Bernard v. MinshuU, 1 Johns. 
 276 ; Thomas v. Jones, 1 D. J. & S. 
 63. In re Wilkinson, L. E. 4 Ch. 
 
 (d) Lines V. Sayer, 3 Mac. & G-. 
 606. 
 
 (e) 1 Siigcl. Pow. 370—1, 387; 
 Davies v. Thorns, 3 Dc G. & Sm. 
 347. 
 
 (/) 1 Sugd. Pow. 181. 
 {rj) 1 Sugd. Pow. 330—1.
 
 UNDER A rOWER. 765 
 
 It is the duty of a trustee who executes a power, to tt. 111.T.12, 
 
 '' _ _ ^ Cn. 3, s. 6. 
 
 show that he has complied with the exijTencies required 
 
 ■^ ij J. Duty of a 
 
 by it (h). ^""^'ee 
 
 •/ ^ '' exercising a 
 
 As a power limited by way of use is a mere riofht to ^°^^''- 
 
 ^ ^ J o Who should 
 
 appoint a use, the immediate appointee takes the first use, I'^/^f/^ig^jg 
 which the statute executes, and any use engrafted on that ^^pp^intee. 
 
 Where the 
 
 appointment is a second use, which the statute does not legai estate 
 
 ■tt vests 111 him, 
 
 execute, and which is consequently a mere trust. It is 
 therefore necessary to appoint immediately to the person 
 intended to take, and not to some other person to his use, 
 unless it is desired that he should not have the legal 
 estate (/). But in the case of a mere common-law autho- 
 rity, as in the case of a power given liy will without the 
 intervention of uses, an appointment, by virtue of such a 
 power, to a person to certain uses, would not of itself vest 
 the legal estate in him, but the legal estate would vest 
 either in the immediate appointee or in the person to whose 
 use the appointment was made, as would best effectuate 
 the intention of the parties (/). 
 
 Where a deed of appointment is required by a court of where an 
 
 ■^ 'J irrevocable 
 
 equity, or, as it would seem, by the instrument creating the ^Pj^f ^e"''''^'' 
 power, to be executed within a limited time, an irrevocable ™^*^®' 
 appointment must be made within that time : an appoint- 
 ment with power of revocation is not a proper compliance 
 with the requisition (k). 
 
 An appointment in pursuance of a power under the How an 
 
 appointment 
 
 Statute of Uses operates under that statute, not as a con- operates. 
 
 veyance of the land, but as a substitution of a new use in 
 
 the place of a former one (/). Although estates arising Estates 
 
 ^ . ^ ^ * ° appointed 
 
 from the execution of powers owe their commencement to 'ate effect as 
 
 (A) Sir /. Romilly, M; R., in Mor- 242. 
 
 fls V. Wriglit, 14 Beav. 303. {k) Piper v. Piper, 3 My. & K. 
 
 (/) 1 Sugd. PoT\% 229, 238—9, 159. 
 
 242; Co. Litt.271 b, u. (1), vii. 1. kJ) i Oruise T. 32, c, 16, § 78; 
 
 (i) See 1 Sugd. Pow. 238-9, Co. Litt. 271 b, n. (1), vii. 1.
 
 66 
 
 OF A DEED OF APrOINT.MENT UNDER A POWEIJ. 
 
 if iiisorted in 
 the instru- 
 nieut creat- 
 ing tlic 
 power. 
 
 ^.T- "i-'^'l.^' the deed of aiipointmeiit, A'ct the appointee under the 
 
 Cn. 3, 8. 6. ^ ^ " ^ ^ 
 
 power does not deii\e his title from the appointor, or out 
 of tlie estate whereof the appointor is seised, hut comes in 
 directly under the conveyance by -wliich the power was 
 created ; and the uses created hy the a})pointment precede 
 the uses limited by the original conveyance, just as if the 
 estate created l^y the appointment had been actually limited 
 in such original conveyance (ni). But the rule does not 
 apply so as to make the interest appointed vest by relation 
 from the time of the limitation of the power (n). Nor does 
 the rule apply so as to render an interest void, like a 
 remainder, because the particular estate determined before 
 the power arose (o). 
 
 Where portions of a fund are appointed, and then " all 
 the rest " or " remainder," it should be expressed whether 
 this is to include shares of appointees which may lapse, or 
 only the balance of the fund (ji). 
 
 "All the 
 rest," or 
 "icmainder" 
 ot a fund. 
 
 Section VII. 
 0/ Leases under Powers. 
 pt. III.T.12, As all leases (excel )t under the Leases and Sales of 
 
 Ch. 3, s. 7. , 
 
 Settled Estates Act) created by tenants for life out of their 
 
 giving own interest determine liy their death, powers are usually 
 
 powers of "^ ^ "^ 
 
 leasiDg to inserted in modern settlements enabling the tenants for life 
 
 tenants tor " 
 
 ^^®' to grant leases, to be valid against the persons in remainder 
 
 and reversion. 
 
 {m) 4 Cruise T. 32, c. 16, § 76 ; 2 
 Sugd. Pow; 22; Co. Lilt. 271 b, 
 n. (1), Tii. 2 ; Watk. Conv. 3rd cd. 
 byPrest. 151. 
 
 (n) 2 Sugd. Pow. 23 5 Co. Litt. 
 
 271 b, n. (1), xiu 2. 
 
 {o) 2 Sugd. Pow. 26. 
 
 (j)) Sec //( re Jfarricb-'s Trad, 1 
 Johns. 199.
 
 OF LExVSES UNDER rOWEKS. 767 
 
 beuaiits for life slioukl exert these powers 
 to the prejudice of the persons in remainder or reversion, 
 
 But, lest the tenants for life should exert these powers pt.iii.t.12, 
 
 ^ Cn. 3, s. 7. 
 
 Restrictions 
 
 they are in general restrained by the words of the power constnied 
 from making leases, except on certain conditions, hy A\liich tluauubr 
 they are obliged to secure the same advantages to those ^'*'^* 
 who may succeed to the estate as to themselves. It has 
 therefore been long settled, that the restrictive parts of 
 these powers shall be construed strictly against the tenant 
 for life, and in fa^'our of the remainderman and reversioner ; 
 because the conditions on which powers of this kind are 
 given are inserted with a view to their interest (q). The 
 instruments by which leasing powers are executed are con- 
 strued more strictly than other deeds of appointment. For, 
 it being expressly required that tenants for life should 
 execute their powers of leasing in a particular manner, that 
 becomes a condition precedent ; and if all the circumstances 
 required by the power are not strictly followed, the power 
 is held to be totally unexecuted. So that, if a usual cove- 
 nant is omitted, or if an unusual or improper covenant is 
 inserted in a lease under a power, the lease is thereby void 
 in its creation, and not the covenant only ; and, prior to 
 the stat. 12 & 13 Vict. c. 26, s. 3, and 13 Vict. c. 17, s. 2 (?■), 
 no acceptance of rent or other act by the person in remain- 
 der or reversion would operate as a confirmation of it (s). 
 
 A power in a bargain and sale, to lease to any man in- powers to 
 definitely (although for a valuable consideration), and not bargain and 
 
 sale, or 
 
 to a person from whom a valuable consideration moved at covenant to 
 
 ■^ stand seised 
 
 the time of the execution of the deed, is void. And so, a 
 power in a covenant to stand seised, to lease to any one 
 indefinitely, and not to a person named in the deed and also 
 within the consideration of blood or marriage, is void (t). 
 
 A power of leasing may be exercised toties cpoties («). Power may 
 
 be exercised 
 
 toties 
 
 (g) 4 Cruise T. 32, c. 15, § 1, 2. (i) 1 Sugd. Pow. 158—9 ; 3 Jarm. 'i"""^^- 
 
 (r) See infra, p. 772—4. & Byth. by Sweet, 676. 
 
 (s) 4 Cruise T. 32, c. 15, § 3, 61, 65. (») 2 Sugd. Pow. 312,
 
 708 
 
 OF LEASES UNDER POWEKS. 
 
 PT.iir.T.i2, 
 
 Ch. 3, s. 7. 
 
 lustrument 
 
 usually 
 
 required. 
 
 Leasing by 
 letter of 
 attorney. 
 
 Laudg 
 
 "usually 
 
 demised." 
 
 T. Usual Restrictions. 
 
 The restrictions wliicli fire usually annexed to leasiiij 
 powers relate to, 1. The instrument by which the jiower i 
 to be executed. 2. The lands to be let. 8. Tlie time whei 
 the lease is to commence. 4. Its duration. 5. The rescr 
 vation. 6. The clauses and covenants rc(iuired to be in 
 serted in such leases {x). 
 
 1. Instrument hy irJiich the Power is to he executed. 
 
 A leasing power is generally required to be executed 1)} 
 deed, sealed and delivered in the presence of and attestei 
 by two or more witnesses. It is also usually requirci 
 that the tenant should execute a counterpart of sucl 
 indenture (y). 
 
 A power to make leases for life or years cannot b( 
 exercised by letter of attorney ; for delegatus non pott's 
 delegare (z). 
 
 2. Lands to he Let. 
 
 In many cases, powers of leasing are restrained to lands 
 which have been usually demised to farmers, in order t( 
 prevent the tenant for life from leasing the mansion house 
 gardens, pleasure grounds, park, or other parts of the lane 
 usually occupied by the proprietors of tlie estate, anc 
 deemed necessary to the dignity of the family (a). Wher( 
 a power extends to lands that have been usually let, land? 
 which have been twice or thrice let are within tlie power 
 and so are lands which have been in lease for a very long 
 term, say ninety-nine years, though it has recently ex- 
 pired (&). With this exception, lands which have beer 
 
 (a-) 4 Cruise T. 32, c. 15, §4. 
 {y) 4 Cruise T. 32, c. 15, § 5. 
 {z) 1 Jarm. & Byth. by Sweet, 
 429 ; 1 Sugd. Pow. 213.. 
 
 (a) 4 Cruise T. 32, c. 15, § 7. 
 {V) See 2 Sugd. Pow. 317—319; 
 4 Cruise T. 32, c. 15, § S, P.
 
 OF LEASES UXDEr> rowEiis. 760 
 
 only once let do not fall within the description of lands pt^hi. T.12, 
 
 usually let : for usus fit ex iteratis actibus. And lands not 
 
 demised for the space of twenty-one years previous to the 
 making of a lease under a power, are not considered as 
 lands usually let (c). 
 
 Where there is a power of leasing any part of premises leasing 
 usually so leased, reserving the ancient and accustomed \^^^^^^^ 
 rents, two tenements which had previously been leased 
 separately may be leased together under a single demise, 
 if the rents reserved are in proper proportion (d). 
 
 Lands comprised in a power may be, and frequently are, 
 demised in the same lease with lands not comprised in the 
 power. But in such a case there should be several demises 
 with distinct reservations (c). Joining, at an entire rent, 
 even though it be a proportionately larger rent, premises 
 within a power of leasing at the accustomed rent, with other 
 premises not within the power, is fatal to the lease (/ ). 
 
 3. Commencement of the Lease. 
 
 Where a power is to grant leases in possession, a lease 
 in futuro is void at law and in equity, even though it 
 commences only a day after the date of the deed creating 
 
 it(^). 
 
 In one sense, as opposed to a lease in possession, that is lease i 
 said to be a lease in reversion which commences at a future 
 day. But in powers, the usual construction of the term 
 lease in reversion as opposed to a lease in possession, is a 
 lease to commence after the end of the present interest in 
 being (h). Even though a power to lease be general, with- 
 out expressing that the leases shall be in possession, leases 
 
 (c) 4 Ci-uise T. 32, e. 15, § 8, 9. Stephens, 6 Ad. & E. (N. S.) 208. 
 {d) Doe d. Earl of Egremont V. {rj) 2 Sugd. Pow. 361, 363. 
 
 Williams, 11 Ad. & E. (N. S.) 688. Qi) 2 Sugd. Pow. 343—4; 4 Cruise 
 
 (e) 2 Sugd. Pow. 417. T. 32, c. 15, § 21, 40. 
 (/) Doe d. Earl of Egremont v. 
 
 reversion.
 
 YV 
 
 OF LEASES UNDER POWERS. 
 
 Pt 
 
 >T. ni.T.i2, in possession only are authorised (/). Under a power to 
 
 '- make leases in reversion as well as in possession, the donee 
 
 cannot make a lease in possession and another lease in 
 reversion of the same land (/). And in tlie case of a lease 
 of the reversion, there should not he an interval between 
 the former lease and the lease of the reversion (JS). 
 
 4. Duration of the Lease. 
 
 Leases for 
 terms of 
 years. 
 
 Leases for 
 lives. 
 
 The usual practice is to restrain tenants for life from 
 making leases for a longer term than twenty-one years, 
 except in those counties Avhere lands are usually let for 
 live s (/). Under a power to lease for a term not exceeding 
 twenty- one years, a lease may be made for that period, 
 determinable, at the option of the lessee, at the end of 
 the first seven or fourteen years (in). 
 
 The usual power of leasing for lives authorises a lease 
 for lives in esse, and for concurrent lives only (ii). A 
 power to make leases for two or more lives authorises a 
 lease for a less number of lives, or for the same number 
 of lives and the life of the survivor (o). 
 
 Meaning of 
 word rent. 
 
 How ancient 
 rent is 
 reserveil. 
 
 5. The Beservation. 
 
 The word " rent," in powers of leasing, may mean any 
 return or equivalent adapted to the nature of the subject 
 demised. So that, upon a lease of mines, a due proportion 
 of the produce may be reserved as a rent {li). 
 
 Wliere the usual or ancient rent is to be reserved, 
 generally the usual way of reserving it must be followed. 
 But where merely the best yearly rent is required to be 
 reserved, it may be made payalile quarterly or half-yearly. 
 
 (0 2 Sugd. Pow. 345 ; 4 Cruise 
 T. 32, c. 15, §24. 
 
 {)) 2 Sugd. Pow. 358. 
 {h) 2 Sugd. Pow. 359. 
 (0 4 Cruise T, 32, c. 15, § 43. 
 
 {m) Eihoards v. Milhanl; 4 Di-ew. 
 606. 
 
 (») 2 Sugd. Pow. 329, 340. 
 (o) 2 Sugd. Pow. 339, 341. 
 (2^ 2 Sugd. Pow. 402.
 
 OF LEASES UNDER POWERS. 771 
 
 Tlie word yearly in such powers denotes, not that the ^J-^o^J'^/- 
 
 payment is to be made only once a year, but that it is to 
 
 bo made in each successive year {q). 
 
 If " the best imiiroved rents " or " the ancient accus- uncertainty 
 
 iu the reser- 
 
 tomed rents " are reserved, the lease is void on account of vatiou. 
 the uncertainty as to the amount of the rent {r), 
 
 6. Conditions and Covenants. 
 Bv the stat. 32 Plen. 8, c. 34, grantees and assi<niees of Grantees and 
 
 '' J •> o o assignees of 
 
 reversions, their heirs, successors, executors, administrators, entmedTo 
 and assigns may have the same benefit of conditions and conduioiis 
 covenants agaiiist the lessees, their executors, adminis- nauts. 
 trators and assigns, as the lessors or grantors themselves 
 or their heirs or successors mio'lit liave had. And the co/enants 
 
 " entered into 
 
 covenants entered into by a lessee with a tenant for life, J^'^^^ for 
 the donee of tlie power, his heirs and assigns, will enure the rfcma*in-" 
 to the remainderman, who is considered to be an assignee 
 within the meaning of that statute, as being an assignee 
 of the estate out of wiiicli tlie lease was created (.s) . 
 
 Where a power of leasinsj provides that the lease shall "Usuai 
 
 ■■- or covenants, 
 
 contain all " usual and reasonable covenants," the general 
 rule is to determine the question " what are usual cove- 
 nants " by reference to the lease in existence at the date of 
 the power (/"). 
 
 Where a power of leasing requires that the usual cove- 
 nants shall be inserted in the lease, with a condition of 
 re-entry 'for non-performance of the covenants therein to 
 be contained,' and the lease contains a general covenant 
 to repair and keep in repair, but, by the clause of I'e-entry, 
 the right to re-enter is not, in general terms, in case the 
 lessee shall not repair, but in case the lessee shall not 
 
 {q) 2 Sugd. Pow. 403—406. (0 Doe d. Lord Egremont v. 
 
 00 2 Sugd. Pow. 414, 415. I^tephens, G Ad. & E. 208. 
 
 (.<() 2 Sugd. Pow. 451—2.
 
 772 OF LEASES UNDER TO WE US. 
 
 Pr.iii.T.i2, repair "within six calendar months next after notice;" 
 
 Cu. 3, s. 7. -'- ••11 
 
 ■ in such case the lease is not in compliance with the 
 
 power («). 
 
 II. Relief agedmt the defeetke Execution of Fovxrs 
 (f Leasing. 
 
 EquitaUo In somc cases, where the forms prescribed Ijy the power 
 
 relief. ' . . . „ 
 
 have not been observed, equity will relieve in favour of a 
 lessee, if he is in the nature of a purchaser (x). 
 statutory Bv the stat. 12 & 13 Vict. c. 2G (?/), s. 2, " where, in the 
 
 relief. "^ \J/> '^ 
 
 iea?ea intended exercise of any such power of leasing as aforesaid, 
 
 to deviatiou" whether derived under an Act of Parliament or under any 
 
 from terms 
 
 of tije power instrument lawfully creatino; such power, a lease has been 
 
 to be deemed -^ o x ' 
 
 equuyfo*-'" °^' ^"^^dW hereafter be granted, Avhich is, by reason of the 
 asmight^^ non-observance or omission of some condition or restric- 
 grluted''" tion, or by reason of any other deviation from the terms of 
 power. such powcr, invalid as against the person entitled, after the 
 
 determination of the interest of the person granting such 
 lease, to the reversion, or against other the person who, 
 subject to any lease lawfully granted under such power, 
 would have been entitled to the hereditaments comprised 
 in such lease, such lease, in case the same liave been 
 made bona fide, and the lessee named therein, his heirs, 
 executors, administrators, or assigns, (as the case may re- 
 quire,) have entered thereunder, shall be considered in 
 equity as a contract for a grant, at the request of a lessee, 
 his heirs, executors, administrators, or assigns, (as the case 
 may require,) of a valid lease under such power, to the like 
 purport and effect as such invalid lease as aforesaid, save 
 so far as any variation may be necessary in order to comply 
 
 (m) Doe d. Lord Egrcmont v. Bur- elude corporations aggregate and 
 
 rourjh, 6 Ad. & E. 229. s^ole, unless there bo something in 
 
 (:r) 2 Sugd. Pow. 138. the context contrary to such con- 
 
 (y) ^y s. 1, "person" shall in- structiou.
 
 OF LEASES UNDER TOWERS. 7 16 
 
 ■svitli th(3 terms of sucli power ; and all persons wlio would r^- in.T.12, 
 
 ■*• ^ Cii. 3, s. 7. 
 
 liave l)een bound l)y a lease lawfully granted under such 
 
 power sliall Le bound in enuitvltv sucli contract : l*]'o\ided rroviso 
 
 -I i .. . where the 
 
 always, that no lessee under any such iuA'alid lease as fev"r«ronor 
 aforesaid, his heirs, executors, administrators, or assigns, conflrmf " 
 sliall be entitled l)y virtue of any such equitable contract 
 as aforesaid to obtain any variation of such lease, "where 
 the persons wlio would haxe l)een bound by such contract 
 are willing to confirm such lease without variation." 
 
 By s. 3, " the acceijtance of rent under any such in\alid Acceptance 
 
 •^ ' i- '' of reut to ba 
 
 lease as aforesaid shall, as against the person so accepting coum-mauou. 
 the same, be deemed a coniirmation of such lease." 
 
 By s. 4, " where a lease granted in the intended exercise Lea'-es 
 
 invalid ut 
 
 of any such power of leasing as aforesaid is invalid by thegiauting 
 
 -' i- ^ J thereof may 
 
 reason that at the time of the granting thereof tlie person |f f^^"^ ^■'^''^ 
 granting the same could not lawfully grant such lease, but ti'u"e'^[,th"" 
 the estate of such person in the hereditaments comprised ujtiftle^^ 
 
 11 1111 -IP ^ • 1 time when 
 
 in such lease shall lla^'e continued alter the time when he migiit 
 
 lawfully 
 
 such or the like lease might ha^'e been ^ranted by him in ew"*^ such a 
 
 o n J kase. 
 
 the lawful exercise of such power, then and in every such 
 case such lease shall take effect and be as valid as if the 
 same had been granted at such last-mentioned time, and 
 all the provisions herein contained shall apply to every 
 such lease." 
 
 By s. 5, " when a valid power of leasing is vested in or what shaii 
 
 , be deemed 
 
 may be exercised by a person granting a lease, and such ■'^'^ iuteiu'wi 
 
 •^ ./ i o o J exercise ot a 
 
 lease (by reason of the determination of the estate or inte- i"""'*^''- 
 rest of such ])erson or otherwise) cannot have effect and 
 continuance according to the terms thereof, independently 
 of such power, such lease shall, for the purposes of this 
 Act, be deemed to be granted in the intended exercise of 
 such power, although such power be not referred to in such 
 lease." 
 
 By g. 6, " nothing in this Act contained sliall extend or Saving of 
 
 "^ *= the rights of 
 
 1)0 construed to prejudice or take away any right of action the lessees
 
 V74 
 
 OF LEASES UNDER POWEHS. 
 
 Pt. III.T.12, 
 
 ch. 3, 3. r. 
 
 under cove- 
 nants for 
 title aud for 
 quiet enjoy- 
 ment, aud 
 tlie lessor's 
 riglit of 
 re-entry for 
 breach of 
 covenant, ifcc, 
 
 Act not to 
 extend to 
 certain 
 
 "Where there 
 is a note iu 
 writing 
 sliowiiig 
 intent to 
 confirni, 
 acceptance of 
 rent to be 
 deemed a 
 confirmation. 
 
 or other right or remedy to wliich, hut for the passing of 
 this Act, the lessee named in any sucli lease as aforesaid, 
 his heirs, executors, administrators, or assigns, would or 
 might have been entitled, under or by virtue of any cove- 
 nant for title or quiet enjoyment contained in such lease on 
 the part of the person granting tlie same, or to prejudice or 
 take away any right of re-entry or other right or remedy 
 to which, but[for the passing of this Act, the person granting 
 such lease, his heirs, executors, administrators, or assigns, or 
 other the person for the time being entitled to the rever- 
 sion expectant on the determination of such lease, would 
 or might have been entitled, for or by reason of any breach 
 of the covenants, conditions, or provisoes contained in such 
 lease, and on the part of the lessee, his heirs, executors, 
 administrators, or assigns, to be observed and performed," 
 
 By s. 7, " this Act shall not extend to any lease by an 
 ecclesiastical corporation or spiritual person, or to any 
 lease of the possessions of any college, hospital, or chari- 
 table foundation, or to any lease where, before the passing 
 of this Act, the hereditaments comprised in such lease have 
 been surrendered or relinfjuished, or recovered adversely, 
 by reason of the invalidity thereof, or there has been any 
 judgment or decree in any action or suit concerning the 
 validity of such lease," &c. 
 
 By the stat. 12 & 13 Vict. c. 110, the operation of this 
 Act w^as suspended till the 1st of June, 1850. And by the 
 stat. 13 A^ict. c. 17, the 3rd section of the 12 & 13 Vict, 
 c. 26, was repealed. And by s. 2, " where, upon or before 
 the acceptance of rent under any such invalid lease, as iu 
 the said first-recited Act mentioned, any receipt, memo- 
 randum, or note in writing, confirming such lease, is signed 
 by the person accepting such rent, or some other person by 
 him thereunto lawfully authorised, such acceptance shall, 
 as against the person so accepting such rent, be deemed a 
 confirmation of such lease."
 
 OF LEASES UNDER POWERS. Hi) 
 
 By s. 3, "where during the continuance of the possession ^^■^"- J-\^' 
 taken under such invalid lease, as in the said first-recited ,— 
 
 ' \\ here 
 
 Act mentioned, the person for the time being entitled (sub- IsZao^^m 
 ject to such possession as aforesaid) to the hereditaments conHnn!" 
 
 • T • Igsscg to 
 
 comprised in such lease, or to the possession or the receipt accept 
 
 . confirmation. 
 
 of the rents and profits thereof, is able to confirm such 
 lease without variation, the lessee, his heirs, executors, or 
 administrators (as the case may require), or any person 
 A\'lio would Iiave been bound by the lease if the same had 
 been valid, shall, upon the request of the person so able 
 to confirm the same, be bound to accept a confirmation 
 accordingly ; and such confirmation may be by memo- 
 randum or note in writing, signed l)y the person con- 
 firming and accepting respectively, or by some other 
 persons by them respectively thereunto lawfully autho- 
 rised ; and, after confirmation and acceptance of confirma- 
 tion, such lease shall be valid, and shall be deemed to have 
 had from the granting thereof the same effect as if the 
 same had been originally valid." 
 
 Section VIII. 
 
 Of Assitranccs luidcr the Act for the Abolition of Fines and 
 Recoveries (z), 
 
 I. Assurances hy Persons liable after the 31st Deceriiber, 1833, 
 to levy a Fine or suffer a Recovery. 
 
 By the stat. 3 & 4 Will. 4, c. 74, s. 3, persons liable after pt.iu.t.iz, 
 the 31st December, 1833, to levy fines or suffer recoveries, ' ^' ' . 
 
 or to procure the same to be levied or suffered, shall effect 
 
 (z) This Act being so lengthy, given verbatim in this edition, but 
 and being in the possession of every in the way of an abridgment, 
 practitioner in some form, it is not
 
 770 ASSURANCES UNDER THE ACT FOR 
 
 I'T.iir.T.is, sucli of the intended |)urpose3 as can Le so effected, by a 
 
 disposition nnder the Act, and such of them as cannot he 
 
 so effected, by a deed ^vhich shall purport to be intended to 
 liave, and Mhieli shall accordin^^ly have, the same operation 
 as a fine or recovery. 
 
 II, Dispositiun of Freehold Lands hy Tenants in Tall, 
 Issue in Tail, and Persons entitled to Base Fees in 
 gene red. 
 
 Enabling Cy thc Stat. 3 & 4 Will. 4, c. 74, s. 15, '' after the 
 
 clause, 
 
 giviug power P, 1st day of December, 1833, every actual tenant in tail, 
 
 OF dif'posing " ' ' ./ 
 
 ilnd''^^^"^ whether in possession, remainder, contingency, or other- 
 wise, may dispose of for an estate in fee simple absolute, 
 or for any less estate, the lands entailed, as against all 
 persons claiming tlie lands entailed by force of any estate 
 tail which shall be vested in or might be claimed by, or 
 Avhich but for some previous Act would have been vested 
 in or might have been claimed by, the person mahing the 
 disposition, at the time of his making the same, and also 
 as against all pei'sons Avhose estates are to take effect 
 iifter the determination or in defeasance of any such estate 
 tail." 
 
 Exception iu But, 1. By s. 16, this power of disposition as to lands of 
 
 the case of a i-i . . .,.,., iiTThr 
 
 tenaut iu tail whicli a wouiau IS tenant m tail within the stat. 1 1 Hen. 7, 
 
 ex provisione 
 
 vi"- c. 20, under a settlement prior to the stat. 8 & 4 Will. 4, 
 
 c. 74, cannot be exercised hj her, except with such assent 
 as, if this Act had not Ijeen passed, would, under the pro- 
 visions of the Act of Hen, 7, have rendered valid a fine 
 or common recovery levied or suffered by her of such 
 
 Exccptiouin laiids. 2. By. s. 18, the power of disposition does not 
 
 the case of 
 
 enautsiii cxtcud to tcnaiits of cstatcs tail who l)y any Act are 
 
 tail re- 
 
 barHug^heu' I'^st'-'f^incd fVom barring their estates tail, or to tenants in 
 and\^en!ant» f^iil after possibility of issue extinct. 3. By s. 20, a person 
 possibiiiiy of cauiiot disposc of aiw lands entailed in respect of any 
 
 issue extiuct.
 
 THE ABOLITION OF FINES AND KECOVEEIES. 777 
 
 expectant interest wliicli lie may have as issue inheritable JPt. nr.T.12, 
 ^ ^ Cn. 3, s. 8. 
 
 to any estate tail therein. - — : — 7- 
 
 •^ Expectancies 
 
 By s. 19, after the :31st day of December, 1833, where I'/^i^"'^"' 
 an estate tail in any lands is barred and converted into a Kuabiing 
 
 ■^ clause 
 
 base fee, the person who would otherwise have been actual fo^i^fa^"" 
 tenant in tail of the same lands, shall have full power to ^"^^ ^^''^^' 
 dispose of such lands, as against all persons whose estates 
 are to take effect after the determination or in defeasance 
 of the base fee, so as to enlarge the base fee into a fee 
 simple absolute. 
 
 By s. 21, if a tenant in tail of lands makes a disposition Di^sposiUon 
 
 T 1 • A 1 r '^y ^ tenant 
 
 of the same under this Act, by way of mortu-ao'e, or for any intaiifm-a 
 
 , , , O O ' J limited 
 
 other limited purpose, such disposition is to the extent rui'poss. 
 of the estate thereby created, an absolute bar to all persons 
 as against whom such disposition is by this Act authorised 
 to be made. 
 By s. 22, if at the time when there is a tenant in tail Protector 
 
 "^ where none 
 
 of lands under a settlement, there is subsisting, in the is appointed. 
 
 General rule. 
 
 same lands under the same settlement, any estate for years 
 determinable on the dropping of a life or lives, or any 
 greater estate (not being an estate for years), prior to the 
 estate tail, the owner of such prior estate, or the first of 
 such prior estates if more than one, then subsisting under 
 the same settlement, or who would have been so if no 
 absolute disposition thereof had been made, shall be the 
 protector of the settlement, although the same may have 
 been charged or incumbered or absolutely disposed of ; and 
 an estate by the curtesy, in respect of tlie estate tail, or of 
 any prior estate created by the same settlement, is deemed 
 a prior estate under the same settlement within the mean- 
 ing ; and an estate by way of resulting use or trust to or for 
 the settlor is deemed an estate under the same settlement. 
 
 By s. 23, where two or more persons are owners of a Protector ia 
 
 "^ -^ the case of 
 
 prior estate, each is the sole protector to the extent of his p^"^' owners. 
 undivided share.
 
 778 
 
 ASSURANCES UNDER THE ACT FOR 
 
 Vr. 7II.T.I2, 
 Ch. 3, s. 8. 
 
 Protector in 
 the case of 
 a roari'ied 
 woman. 
 
 rcrsoiiR who 
 are not to be 
 protectors. 
 
 Protector in 
 the case of 
 an estate 
 disposed of 
 or created 
 out of a 
 remainder or 
 reversion 
 before 
 December 
 31st, 1833. 
 
 Power to 
 
 appoint 
 
 protector. 
 
 J5y s. 24, where a married woman woiiltl, if single, Le 
 the protector of a settlement, she and her husband together 
 are the protector of snch settlement ; Init if such prifH' 
 estate has by such settlement been settled, or agreed or 
 directed to be settled, to her separate use, she alone is 
 protector of such settlement. 
 
 By ss. 27, ol, no woman, in respect of her dower, and 
 (except in the case of a bare trustee under a settlement 
 made on or before the 31st day of December, 1833, ^ho 
 would haA'e been the proper person to make a tenant to 
 the writ for suffering a common recovery to bar an estate 
 tail), no bare trustee, heir, executor, administrator, or 
 assign, is the protector. And by s. 28, where under any 
 settlement there is more than one estate prior to an estate 
 tail, and the owner of any prior estate is excluded 
 from being the protector, the person (if any) who, if such 
 estate did not exist, would be the protector, shall be such 
 protector. 
 
 By s. 29, where on or before the 31st day of December, 
 1833, an estate under a settlement has been disposed of, 
 the person who in respect of such estate would have been 
 the proper person to have made the tenant to the writ of 
 entry or other writ for suffering a common recovery of the 
 lauds entailed by such settlement, is the protector. And 
 by s. 30, where any person who, on or before the 31st day of 
 December, 1833, disposed of a remainder or reversion in 
 fee in any lands, or created any estate out of such 
 remainder or reversion, would otherwise have been the 
 protector, and thereby be enabled to concur in the barring 
 of such remainder or reversion, the person Avho would 
 have been the proper person to have made the tenant to the 
 writ of entry or other writ for suffering a common recovery 
 of such land, is the protector. 
 
 •Section 32 gives power to any settlor to appoint anyperson 
 or persons the protector, and to perpetuate the protectorship.
 
 THE ABOLITION OF FIXES ANT) RECOVERIES. 779 
 
 The miniljer of persons to compose the protector is not to pt. iiI'T-12, 
 
 exceed three. Every deed whcrehy a protector is appointed 
 
 or relin<|uislies his office, is to he void, unless inrolled in 
 Cliancery witliin six months. 
 
 By s. 33, if any person, protector of a settlement, is wiioretLe 
 
 J ' - L J L Lord Chan- 
 
 lunatic, idiot, or of unsound mind, whether found such cciiororthe 
 
 ' ' ' Court of 
 
 hy inipiisition or not, the Lord Chancellor or other the ['o'b"*fhJ'* 
 person or persons for the time being intrusted by the p'"°'*^'^'°''- 
 King's sign manual with the care and commitment of the 
 custody of the persons and estates of persons found lunatic, 
 idiot, and of unsound mind, is or are the protector in lieu 
 of the person who is such lunatic or idiot, or of unsoiuid 
 mind ; or if an}' person, protector of a settlement, is con- 
 victed of treason or felony, or if any person, not being the 
 owner of a prior estate under a settlement, is protector and 
 is an infant, or if it is uncertain whether such last-men- 
 tioned person is living or dead, then the Court of Chancery 
 is the protector in lieu of such person ; or if any settlor 
 declares that the person who would otherwise be entitled 
 to be protector shall not be such protector, and does not 
 appoint any person to be protector in his stead, then the 
 Court of Chancery is the protector ; or if in any other case 
 where there is subsisting a prior estate sufficient to qualify 
 the owner thereof to be protector, and there happens at any 
 time to be no protector, the Court of Chancery, while there 
 is no such protector, and the prior estate is subsisting, is 
 the protector. 
 
 By ss. 34 and 35, where there is a protector, his consent How far 
 
 pi'otectoi- s 
 
 is to be requisite to enable an actual tenant in tail to consent is 
 create a larger estate than a base fee, or to enable a person 
 to exercise the statutory power of disposition in the case of 
 a base fee. 
 
 By s. 36, the protector is to be subject to no control or protector to 
 liability in the exercise of his power of consenting. discretiou. 
 
 By s. 38, a voidable estate by a tenant in tail in favour coufirmation
 
 ■80 
 
 ASSUPvAXCES UNJ)l':it THE ACT FOil 
 
 I'T. iri.T.i2, 
 
 Ch. 3, E. 8. 
 
 of a voidable 
 estate ))y a 
 subsequent 
 disposition. 
 
 Enlargement 
 of a base fee 
 by union 
 with the 
 remainder or 
 reversion. 
 
 Mode of 
 assurance by 
 a tenant in 
 tail. 
 
 lurolment 
 tliereof. 
 
 Commence- 
 ment of 
 operation of 
 an inrolled 
 deed. 
 
 Protector's 
 consent, Low 
 given. 
 
 Consent by a 
 distinct deed, 
 liow con- 
 strued. 
 
 Inrolmeut of 
 consent by a 
 distinct deed. 
 
 Consent not 
 revocable. 
 
 Consent of a 
 married 
 woman as 
 protector. 
 
 Exclusion of 
 tlie aid of a 
 court of 
 equity. 
 
 of a purchaser is confirnied by a subsequent disposition of 
 sucli tenant in tail under tlie Act, but not against a pur- 
 chaser witliout notice. 
 
 By s. 39, base fees, wlien united with the immediate 
 reversions, are enlarged, instead of being merged. 
 
 l)y s. 40, a disposition l)y a tenant in tail is to be 
 effected by any description of deed used to pass the legal 
 fee, but not by a -svill or by a contract. If the tenant iii 
 tail is a married woman, the disposition must be with the 
 concurrence of her husband, and must be acknowledged 
 l)y her. 
 
 By s. 41, no assurance by a tenant in tail, except a 
 lease for not more than twenty-one years at not less tliaii 
 five-sixths of a rack rent, shall have any operation under 
 the Act, unless inrolled in Chancery within six calendar 
 months. 
 
 By s. 74, every deed required to be inrolled shall, when 
 inrolled, take effect in the same manner as it would liave 
 done if the inrolment thereof had not lieen required, 
 except that every such deed shall be void against any per- 
 son claiming the lands or money thereby disposed of for 
 valuable consideration, under any subsequent deed. 
 
 By s. 42, the consent of the protector must be given Ijy 
 the same assurance, or by a prior or contemporaneous deed. 
 And by s. 43, if l)y a distinct deed, it is to be considered 
 an unqualified consent, unless he confines it to a particular 
 disposition. And, in that case, hj s. 46, it must be enrolled 
 in Chancery, with or 1 jefore such assurance. 
 
 By s, 44, the consent of a protector cannot l)e revoked. 
 
 By s. 45, any married woman, being protector, may, 
 under this Act, in the same manner as if she were a feme 
 sole, give her consent to the disposition of a tenant in 
 tail 
 
 By s. 47, coiu'ts of equity are excluded from giving any 
 effect to dispositions by tenants in tail or consents of pro-
 
 THE ABOLITION OF FIXES AND RECOVEKIES. 781 
 
 lectors of settlements Y\-]iich in courts of Lnv ^voulcl not l)e ^'/- ^^J'^l-' 
 
 Cii. 3, s. 8. 
 
 effectual. 
 
 V>y ss. 48, 49, tlie Lord Chancellor or the Court of Chan- ^{^^'^^'^f 
 ceiy, v»-liile protector of a settlement, has the same power court of ""^^ °^ 
 to consent, and to make such orders as shall he thought ''''"^°'"y- 
 necessary, which are evidence of such consent ; and if any 
 other person is joint protector, the disposition is not valid 
 without his consent. 
 
 III. Dispositions h// Tenants in Tail and Oicncrs of 
 Base Fees in Copylwlds. 
 
 By s. 50, all the previous clauses in this Act, so far as Previous 
 
 clauses to 
 
 circumstances and the different tenures adndt, apply to apply to 
 
 -'-'->' copyhold 3, 
 
 lands held by copy of court roll, except that a disposition ^^"^^p*' '^'^• 
 hy a tenant in tail whose estate is an estate at law, must 
 l)e made by surrender, and except that a disposition l)y a 
 tenant in tail whose estate is merely an estate in equity, 
 may l)e made either T)y surrender or Ijy a deed, and 
 except so far as such clauses are otherwise altered or ^^aried 
 1 ly the clauses which follow. 
 
 ]]ut hy s. 51 it is provided, that, if the consent of the Protector's 
 
 "^ ^ consent liy 
 
 protector to the disposition of lands held hj copy of court <^'^^'^- 
 I'oll is given by deed, such deed, either at or before the 
 lime of the surrender, shall be executed by the protector 
 and produced to the lord of the manor, or to his steward, 
 or to the deputy steward ; and, on the production of the 
 deed, the lord, or steward, or deputy steward, must, by 
 v^'riting under his hand indorsed on the deed, acknowledge 
 that the same was produced within the time limited, and 
 must cause such deed, with the indorsement thereon, to be 
 entered on the court rolls of the manor ; and after such 
 deed shall have been so entered, the lord of the manor, or 
 his steward, or the deputy steward, must indorse thereon a
 
 782 ASSlTiAXCKS UNDEIl THE ACT FOll 
 
 pt. iir.T.i2, memorandum sio-ncd liy him, testifviiic[ the entry of the 
 
 Ch. 3, s. 8. a J > ^ a J 
 
 — same on the court rciUs. 
 
 Protectoi-'a Bv s. 52, if the consent of the in-otector to the disposition 
 
 consent when 
 
 not by deed, ^f hinds liehl l)y copy of court roll is not given Ijy deed, 
 the consent must he given by the protector to the person 
 taking the surrender by Avliich the disposition is effected ; 
 and if the surrender is made out of court, it must be 
 expressly stated in the memorandum of such surrender that 
 such consent has been given, and such memorandum must 
 be signed l)y the protector ; and the lord of the manor of 
 which the lands are parcel, or his steward, or the deputy 
 steward, must cause the memorandum, with such statement 
 therein as to the consent, to be entered on the court rolls of 
 the manor ; but if the surrender is made in court, the lord 
 of the manor, or his steward, or the deputy steward, must 
 cause an entry of such surrender, containing a statement 
 that such consent had been given, to be made on the court 
 rolls. 
 
 Equitable By s. 53, a tenant in tail of lands held by copy of court 
 
 estates tail J ' ^ j lj 
 
 in copyholds, poll, wliosc estate is merely an estate in equity, may by 
 deed dispose of such lands in the same manner as he could 
 have done if they had been of freehold tenure ; and all the 
 previous clauses in this Act, so far as circumstances admit, 
 apply to the lands in respect of which he avails himself of 
 this power of disposition ; and the deed by which it is 
 effected must Ije entered on the court rolls of the manor ; 
 and if there is a protector to consent to the disposition, and 
 such protector gives his consent l)y a distinct deed, the 
 consent is void unless the deed of consent is executed by 
 the protector either on or at any time before the day on 
 which the deed of disposition is executed by the equitable 
 tenant in tail ; and such deed of consent must be entered 
 on the court rolls ; and it is imperative on the lord of the 
 manor, or his steward, or the deputy steward, when required 
 so to do, to enter such deed or deeds on the court rolls, and
 
 THE ABOLITION OF FINKS AND llECOVErJES. 783 
 
 lie must indorse on each deed so entered a memorandum, pt. ni.T.12, 
 
 ' ch. 3, 8. 8, 
 
 signed by him, testifying the entry of tlie same on the 
 
 court rolls : a deed by which lands held by copy of court 
 roll shall be disposed of under this clause, by an equitable 
 tenant in tail, is void against any person claiming such 
 lands for valuable consideration under any subsequent 
 assurance duly entered on the court rolls, unless the deed 
 of disposition by the equitable tenant in tail be entered on 
 the court rolls of such manor before the subsequent assur- 
 ance is entered. 
 
 By s. 54, the surrender or the memorandum, or a coiiy im-oimeut, 
 
 '' •*• '' except ott 
 
 thereof, or the deed of disposition, or the deed of consent ^^^t neces-' 
 to tlie disposition, need not be inroUed otherwise than by ^^''^' 
 entry on the court rolls. 
 
 A disentailing deed of copyholds nmst be entered on 
 the court rolls within six months after the execution 
 thereof: otherwise it will have no operation under this 
 Act (a). 
 
 IV. Disposition of Lands of irhich Bankrupts arc Tenants 
 in Tail, or in vjhich they have Base Fees. 
 
 By s. 56, the commissioner, in the case of an actual Power of 
 
 commissioner 
 
 tenant in tail becoming bankrupt after the 31st of Decern- to dispose of 
 ber, 1833, may by deed dispose of the lands of the bank- ^'^^'^''■ 
 rupt to a purchaser, and without the protector's consent, 
 for as large an estate as the actual tenant in tail, if not a 
 bankrupt, could have created without such consent. 
 
 By s. 57, the commissioner, in the case of a tenant in Power of 
 
 .,.-,•, , PI -11 1 1 commissioner 
 
 tail entitled to a base fee becoming bankrui^t, and of there to dispose of 
 
 '^ laud wherein 
 
 beiuo- no protector, may by deed dispose of the lands of the "'^ bankrupt 
 
 o i. ' ^ ./ i ]jag a base 
 
 tenant in tail to a purchaser for as large an estate as such *'^®- 
 tenant in tail could have created, if not a bankrupt. 
 
 (rt) Honeywood v. Foster (No. 1), 30 Bcav. 1.
 
 1U 
 
 AySUF.ANCKS UXDHK THE ACT I'Oll 
 
 Pt. III.T.12, 
 Cn. 3, s. 8. 
 
 Protector's 
 couseiit. 
 
 Inrolment cf 
 deed of 
 disposition 
 aiui consent. 
 
 Enlargement 
 of base fees 
 on the event 
 of there 
 being no 
 protector. 
 
 Confirmation 
 of voidable 
 estates by a 
 subsequent 
 disposition. 
 
 Acts of a 
 bankrupt in 
 regard to his 
 estate tail 
 void against 
 a disposition 
 by the com- 
 mi«sioLer. 
 
 By s. 58, the commissioner stands in the phace of the 
 actual tenant in tail or tenant in tail entitled to a l)ase fee, 
 so far as regards the consent of sucli protector. 
 
 By s. 59, a deed of disposition of freeholds l)y a com- 
 missioner must he inrolled in Chancery witliin six months ; 
 and a deed of disposition of copyholds hy him must ho 
 entered on the court rolls, and the consent to a disposition 
 of such copyholds, if Ly a distinct deed, must he executed 
 on or before the deed of disposition, and must he entered 
 on the court rolls, and a memorandum hy the steward or 
 deputy steward testifying the entry of such deeds on tlie 
 court rolls must he indorsed tliereon. 
 
 By s. 60, where the disposition of a commissioner only 
 creates a base fee, in consequence of the protector not 
 giving his consent, then such liase fee will he enlarged as 
 soon as there ceases to he a protector, and, Ijy s. Gl, even 
 suhsequent to the sale or conveyance of the lands under 
 the bankrupt laws. 
 
 By s. 02, a voidable estate created in favour of a pur- 
 chaser hy an actual tenant in tail becoming a bankrupt, or 
 l)y a tenant in tail entitled to a base fee becoming a bank- 
 rupt, is confirmed to the full extent as against all persons, 
 except those whose rights are saved by the Act, by the 
 disposition of the commissioner, if there is no protector, or 
 if the protector consents, or if there ceases to be a protec- 
 tor, or confirmed so far as such actual tenant in tail, if not 
 a bankrupt, could have confirmed the voidable estate with- 
 out such consent, if the protector does not consent ; 1 )ut not, 
 in any of these cases, against a purchaser without express 
 notice of the voidable esttite. 
 
 All acts and deeds by a bankrupt tenant in tail of lands, 
 which affect such lands, and which, if he had been seised 
 of or entitled to such lands in fee simple absolute, would 
 have been void against his assignees, and all persons 
 claiming under them, are void against any disposition
 
 THE ABOLITION OF FIXES AND KECOVEFaES. 785 
 
 which mny be made of such lands under this Act hv the rT.iii.T.i?, 
 
 "^ •■ Cll. 3, s. 8. 
 
 commissioner (s. Go). 
 
 Subject to the i^owers ^iven to the commissioner and Power 
 
 ^ "^ reserved to 
 
 to the estate in the assignees, a bankruy)t tenant in tail t'^e bankrupt 
 
 c ' ^ himself by 
 
 retains his powers of disposition (s. 6-i). *''® statute. 
 
 The disposition l^v the commissioner of the lands of a Disposition 
 
 ■•• "^ alter the 
 
 bankrupt tenant in tail or a tenant in tail entitled to a decease'*^'* 
 base fee, will, if the Ijankrupt be dead, have the same ope- 
 ration as if he were alive, in case at the time of the bank- 
 rupt's decease there is no protector of the settlement, or 
 in case the bankrupt was an actual tenant in tail, and 
 there was, at the time of the disposition, any issue in- 
 heritable to the estate tail, or in case the bankrupt was a 
 tenant in tail entitled to a base fee, and there was, at the 
 time of the disposition, any issue who, if the base fee had 
 not lieen created, would have been actual tenant in tail, 
 and either no protector, or a protector who consented to 
 the disposition (s. 65). 
 
 By s. GG, every disposition of copyholds by a commis- Disposition 
 
 of copyholds 
 
 sioner of bankrui)ts, where the estate shall not lie e(|uit- to operate as 
 
 -"■a surrender. 
 
 able, will have the same operation as a surrender. 
 
 By s. 67, the mesne rents and profits of the lands of a Rents, cove- 
 
 nauts, and 
 
 Ijankrupt, of which a commissioner has power to make conditions, 
 disposition, sliall be received and recoverable by the assig- 
 nees ; and they may enforce covenants, conditions, and 
 aQTeements. 
 
 V. Dispositions in the case of Money suhjeet to he invested 
 in Land wJiieh is to he entailed. 
 
 By s. 71, the previous clauses apply to lands to be sold, 
 where the purchase money is subject to be invested in the 
 purchase of lands to be entailed, and to money subjoct-to 
 be invested in like manner.
 
 78(1 
 
 ASSUIiANOKS UNDER TIIK ACT FOlt 
 
 VI. Dinposifions hy Married Women, 
 
 Pt. III.T.12. 
 
 Ch. 3, s. 8. 
 
 Power of 
 disposition 
 conferred by 
 the Act. 
 
 Aclcnowledg- 
 nieut of 
 disposition. 
 
 Forms to be 
 observed. 
 
 Vij s. 77,- a married woman, not being tenant in tail, 
 may, with her husband's concurrence, by deed acknow- 
 ledged, dispose of lands, and money subject to be invested 
 in the purchase of lands, and of any estate therein, and 
 may release and extinguish powers, as a feme sole, except 
 in the case of copyholds, where any of the ol)jects to be 
 effected could have been effected by her by surrender (h). 
 
 By s. 79, every deed to be executed by a married woman 
 for any of the purposes of this Act, except such as may be 
 executed by her in the character of protector, must, upon 
 her executing the same, or afterwards, be produced and 
 acknowledged by her as her act and deed before a Judge of 
 one of the superior Courts at Westminster, or a IMaster in 
 Chancery, or before two of the perpetual commissioners, or 
 two special commissioners. 
 
 By s. 80, the feme covert is required to be separately 
 examined as to her consent. By s. 81, provisions are made 
 as to the appointment and lists of perpetual commissioners. 
 By s. 82, it is provided that their power is not to be con- 
 fined to any particular place. By s. 83, provision is luade 
 for tlie appointment of special commissioners in certain 
 cases. By s. 84, a memorandum and certificate of acknow- 
 ledgment are required. -By s. 85, the certificate, with an 
 affidavit verifying the same, is required to he filed. And 
 by ss. 87 and 88, provisions are made as to an index and 
 copies of certificates, and by s. 89, as to the power of the 
 Court of Common Pleas to make orders, &c. And by the 
 stat. 17 & 18 Vict. c. 75, s. 1, deeds acknowledged shall 
 not be impeached by reason only of the party taking the 
 acknowledgment being interested. But by s. 3, the Court 
 
 (b) See Crofts v. Middktov, 8 D. M.& G. 192.
 
 THE ABOLITION OF FINES AND RECOVERIES. 787 
 
 of Common Pleas mav make rules to prevent interested pt. T11.T.12, 
 
 ■■■ Cu. 3, s. 8. 
 
 persons from takino- acknowleclmnents. — 
 
 •I 00 Relation of 
 
 By the stat. 3 & 4 Will. 4, c. 74, s. 86, when the certifi- '^'''^^ 
 cato of the acknowledgment of a deed by a married woman 
 is so filed of record, the deed so acknowledged will, so far 
 as regards the disposition, release, surrender, or extinguish- 
 ment thereb}^ matle by any married woman whose acknow- 
 ledgment is so certified, take effect from the time of its 
 being acknowledged, and the subsequent filing of such cer- 
 tificate will have relation to such acknowledgment. 
 
 By s. 90, a married woman must be separately examined Equitable 
 
 ■^ L ./ interests in 
 
 on the surrender of her equitable estate in copyholds, as if copyholds. 
 such estate were legal ; and every such surrender, whether 
 made before or after the passing of the Act, is valid. 
 
 By s. 91, if a husband, in consequence of being a lunatic. Dispensation 
 
 Tvitli the 
 
 idiot, or of unsound mind, or from any other cause, is in- husband's 
 
 concurrence 
 
 capable of executing a deed, or of making a surrender of j.ase"''^^'^ 
 lands held by copy of court roll, or if his residence is not 
 known, or he is in prison, or he is living apart from his 
 wife, the Court of Common Pleas may dispense with the 
 concurrence of the husband, unless the Lord Chancellor, or 
 other the person or persons intrusted with the care and 
 commitment of the custody of the persons and estates of 
 persons found lunatic, idiot, and of unsound mind, or tlie 
 Court of Chancery, is the protector of a settlement, in lieu 
 of her husband. 
 
 Section IX. 
 
 Of Concise Conveyances and Leases under the Staf. 8 and 9 
 Vict. cc. 119, 124, and the Stat. 25 c(- 26 Vict. c. 53. 
 
 In the Stat. 8 & 9 Vict. c. 119, intituled " An Act to pt.iii.t.i2, 
 
 ' Ch. 3, s. 9. 
 
 facilitate the Conveyance of Eeal Property," and com- - — ^ ■
 
 788 CONCISE CONVEYANCES AND LEASES. 
 
 pt.iii.t.12. mencino; on the 1st October, 1845, a form of the com- 
 
 Ch. 3, s. 9. ° ' ' 
 
 iiiencement and the operative part and conclusion of a 
 
 Vict. c. 119, . ^ ^ 
 
 as to concise JqqcI IS given ill the first schedule. And in the second 
 
 conveyances. o 
 
 scliedule there are two columns, the first of which consists 
 of some very short forms of words, expressive of the sub- 
 stance of certain longer forms contained in the second 
 column, which are of the length and cliaracter usually 
 employed in deeds. And by s. 1, it is enacted, that, where 
 the w^ords of any form in the first column are employed, 
 the deed is to have the same effect as if the corresponding 
 form of words in the second column had been used. The 
 second schedule also contains directions for varying the 
 forms in the first column ; and provides, that, where they 
 shall be so varied, similar variations shall be deemed to 
 be made in the corresponding forms in the second column. 
 By s, 2, unless specially excepted, the deed shall be con- 
 strued to include those clauses which generally begin -with 
 the words " and all houses," &c., " and the reversion," &c., 
 " and all the estate," &c. By s. 3, provision is made as to 
 the stamp duty. By s. 4, the remuneration for such a deed 
 is to be according to the skill and labour and responsibility. 
 And by s. 5, any deed or part of a deed failiug to take 
 effect by virtue of the Act, is to be as valid as if the Act 
 had not been made. 
 Stat. 8 & 9 By the stat. 8 & 9 Vict c. 124, intituled " An Act to 
 
 Vict. c. 124, , ^ . n . T 
 
 astoconciac facilitate the Granting of certain Leases, provisions are 
 
 leases. ° ^ 
 
 made for facilitating the granting of leases of houses, 
 similar to the provisions of the stat. 8 & 9 Vict. c. 119, for 
 facilitating the conveyance of property. 
 Gtat. 2.5 & 26 Bv the stat. 25 & 26 Vict. c. 53 (the Transfer of Land 
 
 Vict. c. .53. 
 
 Act), land registered under that Act, may (as we have 
 seen (e) ) be dealt with or affected, 1st, by a statutory 
 disposition in a scheduled form ; 2ndly, by an indorsement 
 on an instrument called the land certificate. 
 
 {(■) Supra, pp. 561—2,
 
 789 
 
 CHAPTER IV. 
 
 OF THE DIFFERENT KINDS OF DEEDS OTHER THAN 
 CONYEYANCES. 
 
 There are, as alreadv observed, some other deeds wliicli ^JP-^-^'^i"-, 
 
 > « > T. 12, Ch. 4. 
 
 are not properly termed conveyances. Such are, 1. Deeds 
 of covenant or agreement. 2. Bonds. 3. Declarations of 
 trust. 4. Deeds of appointment of trustees, receivers, 
 stewards, guardians, attoruies, and others standing in a 
 confidential relation. 
 
 The points connected with deeds of covenant or agree- 
 ment and deeds of appointment of trustees, &c., so far as 
 they fall within the scope of this work, Avill be found under 
 other heads. But some observations may be made in this 
 place on bonds and declarations of trust. 
 
 Section I. 
 Of Bonds. 
 Bonds gcncralhj. 
 
 A bond or obligation is a deed poll, whereby the obligor pt.iii.t.i2, 
 binds or obliges himself alone, or himself and his heirs, or Definition, 
 himself, his heirs, executors, and administrators, to pay a 
 sum of money or to do some other thing at a particular 
 time («). 
 
 Bonds are of two kinds : simple or single, that is, with.- ^^"^^ ^P 
 
 ^ o ' ' either sim- 
 
 out any defeasance or condition in or annexed to them ; ^^® ^'^ ""^'^' 
 
 (a) See 2 Pres. Shep. T. 367, 3G9, Bl. Com. 340, 
 370 ; 4 Cruise T. 32, c. 8, § 1 ; 2 
 
 q2
 
 790 
 
 OF BONDS. 
 
 Pt 
 
 Ch, 
 
 cir double 
 or condi- 
 tional. 
 
 Requisites to 
 a bond. 
 
 r.iiT.T.i2, and double or conditional, that is, accompanied with a 
 
 'H. 4, S. 1. } ' i. 
 
 condition (b), that, if the obligor does some act, the obliga- 
 tion shall be void, or else shall remain in full force ; as pay- 
 ment of rent, performance of covenants in a certain deed, or 
 repayment of a principal sum of money borrowed of the 
 obligee with interest. AVhere the obligation is intended to 
 secure the repayment of a sum of money mentioned in the 
 condition, the penal sum mentioned in the obligation is 
 usually double the sum mentioned in the condition, the 
 payment of which is so secured (c). 
 
 There are only three things essentially necessary to a 
 bond, namely, writing, sealing, and delivery. For, as to 
 signing, that was clearly not necessary in former times, and 
 the Statute of Frauds does not extend to bonds ; for no 
 estate or interest in lands is immediately created by 
 them {(I). And no particular form of words is required to 
 constitute a bond {c). 
 
 Executors and administrators will be bound by an obli- 
 gation, although they be not named ; but the heir of the 
 obligor will not be bound by tlie obligation, unless he is 
 named (/). An exception to this, howevei-, is created by 
 the 27th section of the stat. 33 Hen. 8, c. 39, by whicli it 
 is enacted, that the King shall not be excluded from 
 demanding his just debts against any of his subjects, as 
 heir or heirs to any person or persons indebted to the King 
 or to any other persons to his use, albeit the word heir 
 be not comprised in such recognisance, obligation, or 
 specialty {g). 
 
 If an obligation is made to one and his heirs, the 
 executors and administrators, and not the heir, shall take 
 advantage of it ; for the heirs do not represent the obligee 
 as to such a matter (A). 
 
 Who are 
 bound. 
 
 Who may 
 take advan- 
 tage of a 
 bond. 
 
 (6) 2 Pres. Sliep. T. 367. 
 {c) 4 Cruise T. 32, c. 8, § 1. 
 {d) 4 Cruise T. 32, c. 8, § 2. 
 (f) 4 Cruise T. 32, c. 8, § 3 ; 2 
 
 Pres. Shep. T. 367. 
 (f) 2 Pres. Shep. T. 376, 369. 
 {g) 4 Cruise T. 32, c. 8, § 17. 
 (h) 2 Pres. Shep. T. 37C,
 
 Of bo}sDs. 791 
 
 Where there are two or more obligors, a bond mav be PT.ni.T.12, 
 
 ° ^ " C'H. 4, s. 1. 
 
 either joint only or joint and several. If two or more bind 
 
 '' -^ ^ . ^ Joint and 
 
 themselves simiiliciter, without any words expressive of several, or 
 
 ^ ' "^ ^ jomt only. 
 
 severalty or individuality, the obligation is joint only, and 
 not several. But even if the obligation is several, the 
 obligee may sue all the obligors together, or all of them 
 apart, at his pleasure ; and yet it seems that unless the 
 obligation is special for this purpose, he may not sue some 
 of them, and spare the rest, but he nuist sue them all. 
 Although he may have several judgments and several exe- 
 cutions against the obligors, yet he shall have satisfaction 
 but once, or from one of them only ; for, after he has been 
 satisfied by one, the rest shall be discharged. But where 
 the obligation is joint and not several, the obligee must 
 sue all the obligors together, except in some special cases ; 
 as where one of the obligors alone seals the deed, or where 
 all of them seal, but one of them is an infant, a married 
 woman, a monk, or the like, or Avhere one of them is 
 dead (i). 
 
 A sinole obligation is alwavs taken most in advantage constructiou 
 
 00 " ° of bonds and 
 
 of the obligee and against the obligor. But the condition ^nnt'xecr^ 
 of an obligation is always taken most in advantage of the *'^®^'^'°' 
 obligor and against the obligee, because it is introduced 
 for his benefit (/). 
 
 II. TJic Conditioii of a Bond. 
 If these words are omitted in the close of the condition, omission of 
 
 coij eluding 
 
 " that then the obligation shall be void," the condition is w..ids. 
 void (A;). 
 
 The condition of an obligation may be either in the same How the 
 
 ° "^ condition 
 
 or in another deed ; and, if in the same deed, it may be "^^^^ *'^" 
 be indorsed on the back of the obligation, subscribed under 
 it, or contained within it (/). 
 
 (0 2 Pres. Shep. T. 375. {I) 2 Pres. Shep. T. 371. 
 
 0') 2 Pres. Shep. T. 375. (0 2 Pres. Shep. T. 370.
 
 792 
 
 OF JJOXDS. 
 
 Pt. ITI.T.12, 
 Ch. 4, 3. 1. 
 
 What may 
 he the con- 
 dition. 
 
 Condition 
 malum iu 30. 
 
 Condition 
 against the 
 municipal 
 law, or re- 
 pugnant. 
 
 Condition 
 iusemnble 
 and uncer- 
 tain. 
 
 fmposaible 
 condition. 
 
 The condition of an obligation may be to do any lawful 
 and possible thing (m). 
 
 Wlien the oljject sought to Ijc accomplished by the con- 
 dition is malum in se, that is, contrary to the moral law, 
 there, not only the condition, but the whole obligation also 
 is void, ab initio (/«-). 
 
 But when the object is only against some maxim of law, 
 or is but malum prohibitum only, or is repugnant to the 
 estate, the condition only is void, and the obligation re- 
 mains single and without a condition (o). 
 
 When the condition of an obligation is insensible and 
 uncertain, so that the meaning cannot be known, or is 
 repugnant to the obligation, the condition only is void, 
 and the obligation good ( j;). 
 
 When the thing wdiich is required to be done by the 
 condition is in its nature impossible to be done at the time 
 of the making of the obligation, there the obligation is 
 good, and the condition only is void. But when it is a 
 thing possible at the time of making the obligation, and 
 afterwards, by matter ex post facto, by the act of God, the 
 act of the law, or the act of the obligee, it becomes im- 
 possible, the obligation and the condition both become 
 void (q). AVhen the condition of an obligation is to do 
 one of two things by a given day, and at the time of mak- 
 ing the obligation both of them are possible, but afterwards 
 one of the things becomes impossible by the act of God, or 
 by the sole act or laches of the obligee himself, the obligor 
 is discharged of the whole obligation. But if one of the 
 things becomes impossible afterwards by the act of the 
 obligor or a stranger, the obligor must do the other thing. 
 And if, at the time of the making of the obligation, one of 
 
 (m) 2 Pres. Sliep. T. 371. 
 
 (n) 2 Pres. Shep, T. 371 ; 2 Bl. 
 Com. 340 ; Co. Litt. 205 b. 
 
 (o) 2 Pres. Shep. T. 372 ; 2 Bl. 
 Com. 340 ; Co. Litt. 206 b. 
 
 Cp) 2 Pres. Shep. T. 373 ; 2 Bl, 
 Com. 340. 
 
 (g) 2 Pres. Shep. T. 372, 382, 
 393; 2 Bl. Com. 340; Co. Litt. 
 206 a.
 
 OF BOXD.S. 703 
 
 the things is, and the other of the thmgs is not, possible tu ^^^^/'g^'-J-'- 
 be done, he must perform that ^\'hich is possiljle (r). 
 
 On breach of the condition uf a bond, the penalty then Conse-^ ^^ 
 becomes the legal debt. And no relief ^\•as given against ^'£0! 
 it by the common law. But in equity, where the bond is 
 for the payment of money, the obligee can only recover his 
 principal, interest, and costs. And, by the stat. 4 Anne, 
 c. 1(), s. 12, payment of the principal, interest, and costs, is 
 good at law. And where the bond is for the performance 
 of any other act, for the non-performance of which com- 
 pensation may be made in damages, the obligee is in 
 equity only allowed those damages (s). AYhen the condi- 
 tion of a bond is not pei'formed, and it thereby becomes 
 absolute, it is a charge on the personal estate, including 
 the chattels real of the obligor. And on the death of the 
 obligor, it charges his heir, if named, who, if there is a de- 
 ficiency of personal assets, is bound to discharge it, so far 
 as he has assets by descent (t). But the bond itself, with- 
 out a judgment, is not an immediate or a direct charge 
 upon the real estate of the obligor ; and therefore any set- 
 tlement or disposition which he makes in his lifetime of 
 his freehold estates, whether voluntary or not, will be good 
 against bond creditors, except so far as they may be pro- 
 tected by the stat. 13 Eliz. c. 5 (u). 
 
 Section II. 
 Of Declarations of Trust. 
 
 It is not necessary that uses or trusts should be created rT.iii.x.ia 
 •^ ^ ch. i, 3. 2 
 
 by writing, but it is necessary that uses or trusts of free- 
 
 How trust 
 
 ()•) 2 Pres. Shep. T. 382, 393. («) 2 Bl. Com. 340; i Cruise T. 32, 
 
 (s) i Cruise T. 32, c. 8, § 13 ; 2 c, 8, § 8. 
 Bl. CorQ. 341 ; Story's Eq. Jur. § ((() 4 Cruise T. 32, c. 8, § 8, 10. 
 
 1314. Sec infra, T. 12, c. 6, s. 3, No. Y.
 
 794 OF DECLARATIONS OF TEUST. 
 
 pt. III.T.12, hold, copyliold, or leasehold hereditaments be evidenced 
 
 '- by writing. By tlie Statute of Frauds (29 Car. 2, c. 3), 
 
 created and g. 7, It is enactcd, " That all declarations or creations of 
 
 evidenced. ' 
 
 trusts or confidences of any lands, tenements, or heredita- 
 ments, shall be manifested and proved by some writing 
 signed by the party who is by law enabled to declare such 
 trust, or by his last will in writing, or else they shall be 
 utterly void and of none effect." But by s. 8 it is pro- 
 vided, " That where any conveyance shall be made of any 
 lands or tenements by which a trust or confidence shall or 
 may arise or result by the implication or construction of 
 law, or be transferred or extinguished by an act or opera- 
 tion of law, then and in every such case such trust or con- 
 fidence shall be of the like force and effect as the same 
 would have been if this statute had not been made." 
 
 The beneficial owner of real estate purchased in the 
 name of a trustee, may declare the trust thereof, as " the 
 person who is by law enabled to declare such trust," 
 within the meaning of the 7th section of the Statute of 
 Frauds (.1;). 
 
 Declarations of trust of money, even though secured on 
 real estate, or of chattels personal, need not be created nor 
 evidenced by writing {y). If a person declares himself to 
 be a trustee for another of money or personal property to 
 be recovered, wdiether in writing or by acts or declarations 
 of a decisive and definitive nature sufficiently proved, the 
 transaction will be binding against him and his represen- 
 tatives {z) ; and if a person, by writing or by word, directs 
 his debtor to hold the money due in trust for a third 
 person, and such direction is communicated to the debtor 
 
 {x) Tierncij v. Wood, 19 Beav. 31 Beav. 250. 
 
 330. {z) 2 Spence's Eq. Jur. 897 ; 
 
 (y) 4 Cruise T. 32, c. 12, § 2, 3 ; Dipplc v. Corles, 11 Hare, 183 ; 
 
 Story's Eq. Jur. § 972 ; 1 Spence's Peckhain v. Taylor, 31 Beav. 250 ; 
 
 Eq. Jur. 497—8; 2 Spence's Eq. Grant v. Grant, 34 Bear. 623. 
 Jur. 19, 20, 97 ; Pcclcham v. Taylor,
 
 OF DECLAEATIOXS OF TKUST. 795 
 
 and the donee, an effectual trust is created in fa^'oul• of the i";;- i^it-is, 
 
 ' Ch. i, s. 2. 
 
 donee (((). But a mere promise to give, "without A'ahiable 
 
 consideration, or a defective conveyance, gift, or assign- 
 ment, without vahiaLle consideration, where the party 
 means actually to vest the h'(/al ownership in the donee, or 
 in any other person as trustee for him, will not be con- 
 sidered as a declaration of trust (&). And it has been held 
 that a memorandum expressive of an " intention to leave " 
 and a " determination to appropriate " a fund to a person, 
 and a declaration during a last illness of a wish that it 
 should be given to such person, does not amount to a de- 
 claration of trust, but is a mere inoperative indication of a 
 testamentary intent not carried into effect (r). 
 
 "Where a person holds property in trust, a declaration of 
 trust, if bona fide, is valid, though at a distance of time, 
 and even after the trustee has committed an act of bank- 
 ruptcy (d). And if the signed document refers to any 
 other document which shows wdiat was meant by the 
 parties, that will be sufficient (f). And if the terms of 
 the trust do not sufficiently appear upon the face of the 
 instrument, evidence may be received to show the position 
 of the party signing, and the circumstances by which he 
 knew himself to be surrounded, and the credibility of the 
 instrument (/). 
 
 Declarations of trust executed are construed in the same How deck- 
 
 rations of 
 
 manner as common law conveyances (rn. But, as we have trust are 
 
 ^" construed. 
 
 seen, executory trusts are construed more liberally {Ji), 
 
 (a) 2 Spence's Eq. Jur. 531, 898 ; 186. 
 
 Paterson v. Murphij, 11 Hare, 88 ; (c/) 2 Spence's Eq. Jur. 21. 
 
 Vandcrherg v. Palmer, i K. & J. (f) 2 Spence's Eq. Jur. 22. 
 
 204. (/) 2 Spence's Eq. Jur. 22. 
 
 {h) 2 Spence's Eq. Jur. 57, 886 ; {rj) 4 Cruise T. 32, c. 19, § 66, 
 
 Dlpple V. Codes, 11 Hare, 183. {h) 4 Cruise T. 32, c. 19, § Q7. 
 
 (c) Re Glover, 2 Johns. & Hem. See supra, pp. 269, 270.
 
 796 
 
 CHArTER V. 
 
 OF THE DIFFEEENT KINDS OF DEEDS, "WHEN COXSIDEliKD 
 ■WITH EEFEEENCE TO THE FUEPOSE TO BE EFFECTED BY 
 THEM. 
 
 vt. III. Some of the various kinds of deeds serve as purchase deeds, 
 
 T. 12, Ch. 5. _ ^ 
 
 others as mortgage deeds, others as marriage settlements, 
 
 others as deeds of family arrangement, others as deeds of 
 indemnity, others as composition or creditors deeds, others 
 as apportionments of rents, others as partnership deeds, 
 and others are used for certain other purposes, which will 
 appear from the definitions given of them in the preceding 
 pages. The attention of the reader will only lie directed 
 in this place to purchase deeds, so far as the covenants iu 
 them are concerned ; the other points connected with them 
 forming the subjects of many other parts of this work. 
 The law connected with marriage settlements will also be 
 found in other parts of this work, with the exception of a 
 few points which will be mentioned in the second section 
 of this chapter. Mortgages and mortgage deeds have been 
 already noticed. And, with the exception of some obser- 
 vations on deeds of compromise and family arrangement 
 and creditors deeds, which are made in the third and 
 fourth sections, the reader is referred to other parts of this 
 book, and to other w^orks, for the points which ought to 
 be borne in mind respecting the other kinds of deeds, 
 when considered with reference to the purpose to be 
 effected by them.
 
 OF COVENANTS IN PUECIIASE DEEDS. 797 
 
 Section I. 
 Of Purchase Deeds («). 
 I. Who covenant for the Title. 
 All persons (except the Sovereign and married women) rT.iii.T.12, 
 
 -•■ ^ ^ ^ Cn. 6, s. 1. 
 
 who convey lands in their t)wn rioht and for a valuable 
 
 ^ "-^ Persons con- 
 
 consideration are bound to enter into the usual covenants J^l^l^^ 
 for the title {h). "^ 
 
 Where the wife's estate is sold l)y her and her husband, Husbands, 
 as she cannot bind herself by covenant, he enters into the 
 ordinary covenants for title (c). 
 
 Tenants for life are bound to co\'enant for title, where Tenautafor 
 
 life. 
 
 the estate is sold with their assent under a power, or Avhere 
 a power of sale has been obtained by them to be vested in 
 trustees by an Act of Parliament. But covenants could 
 not be required where the sale is compulsory under Eail- 
 way Acts and the like {(T). 
 
 A person whose estate is sold under an order of a court Persons 
 
 whose es- 
 
 of equity, or by a trustee to Avhom he has conveyed it upon ''"^j^'A'"^,^ 
 
 trust to sell, is bound to covenant for the title, in the same chTucery, or 
 
 manner as he must have done if he himself had sold the y*^"^"^"^"^**- 
 estate (f). 
 
 Where lands are devised to trustees upon trust to sell, c'estuis que 
 
 ^ trust of the 
 
 and the proceeds are absolutely given to two or more per- ^^j"'^^®^^ °^ 
 sons, all the persons whose shares in the purchase money 
 are in anywise considerable, are bound to enter into the 
 usual covenants for the title, to the extent of their respec- 
 tive shares (/). And the same course is adopted in prac- 
 
 (a) Most of the points necessary {<:) Sugd. Concise View, 433 ; 9 
 
 to be borne in mind in connection Jann. & Bytli. by Sweet, 455. 
 
 with purchase deeds will be found (c?) Sugd. Concise View, 433. 
 
 under other heads, to which they (e) Sugd. Concise View, 432. 
 
 properly belong. (/) 4 Cruise T. 32, c. 25, § 82, 
 
 {h) 4 Cruise T. 32, c. 25, § 82 : 84 ; Sugd. Concise View, 433. 
 Sugd. Concise View, 433.
 
 '08 
 
 OF COVENANTS IN PUECHASE DEEDS. 
 
 Pt. Ill.T.12, 
 Cn. 5, s. 1. 
 
 Trustees or 
 assignees. 
 
 Bankrupts. 
 
 tice, even where an estate is sold by trustees under a will, 
 and the money is to be applied in payment of debts, &c., 
 and the residue is given over, or where an estate is sold 
 for similar purposes under an order of the Court of Chan- 
 cery, although the purchaser cannot insist on any cove- 
 nants for the title in such cases. 
 
 Where an estate is conveyed by persons wlio have no 
 beneficial interest, such as trustees or assignees of a 
 bankrupt, or with their concurrence, each is only bound 
 to covenant that he has done no act to incumber the 
 estate {y). 
 
 A purchaser cannot insist on the bankrupt's covenanting 
 for title (A). But the usual practice is for the bankrupt to 
 enter into the ordinary covenants for title {i). 
 
 Usual cove- 
 uauts. 
 
 Coveuant 
 where the 
 vendor has 
 only a power 
 to appoint. 
 
 Covenant 
 
 II. Covenants for Title in the case of Estates in Fee. 
 
 The covenants usually entered into by a vendor seised 
 of the inheritance, are, 1st, that he is seised in fee. 2ndl}', 
 that he has power to convey. 3rdly, for quiet enjoyment 
 by the purchaser, his heirs, and assigns. 4tlily, that the 
 land shall be held free from incumbrances. And 5thly, 
 for further assurance {j). 
 
 A man having merely a power to appoint an estate 
 cannot be said to be seised in fee of the estate, although 
 he has a right to convey ; and therefore, in such a case, it 
 is usual to omit the first covenant, and to insert a covenant 
 that the power was well created, and is not suspended or 
 extinguished (IS). 
 
 Where lands are conveyed to particular uses, instead of 
 
 {g) i Cruise T. 32, c. 25, § 75 ; 
 Sugd. Concise View, 433 — 4 ; Bur- 
 ton, § 577. 
 
 (A) 9 Jarm. & Byth. by S^ycet, 
 266. n. (o). 
 
 (/) Sugd. Concise View, 433. 
 
 {j) Sugd. Concise View, 459 ; 4 
 Cruise T. 32, c. 25, § 45, 46, 49, 57, 
 59. 
 
 {k) Sugd. Concise View, 459.
 
 OF COVENANTS IX PURCHASE DEEDS. 799 
 
 a covenant for quiet enjoyment, the words usually inserted pt. 111.T.12, 
 are, that the estates conveyed shall he and remain to the 
 
 where the 
 
 uses thereby declared, Avithout any eviction, &c. (/). cf.uveyance 
 
 ■^ "^ ' \ / \%io particu- 
 
 Witli respect to the covena,nt as to incumbrances, which ^*'' "^^^• 
 
 Covenant as 
 
 is alwavs connected with the covenant for quiet enioyment, toincum- 
 the common form is not, that the estate is free from in- 
 cumbrances, which would amount to a covenant that would 
 be broken as soon as made if there were any incumbrance, 
 but it is only that the purchaser shall enjoy free from 
 incumbrances ; and so long as he does so enjoy the estate, 
 the co^'enant is not broken, although there may be incum- 
 brances (?/?). 
 
 A covenant to do all reasonable acts, means such neces- Covenant 
 
 for further 
 
 sary acts as the law requires (?«). assurance. 
 
 Where any defects in the title, which may be supplied 
 by the vendor, are discovered after the execution of the 
 conveyance, the vendor may be compelled in equity to do 
 whatever is necessary to supply such defects, by a bill for 
 a specific performance of the covenant for further assurance, 
 if tlie transaction is free from all objection (0). Under 
 such a covenant, a purchaser may require the removal of a 
 judgment or other incumbrance Q;). But it is laid down 
 b}' Lord Coivper that a covenant for further assurance will 
 not help the case, where the original conveyance itself is 
 void {q). 
 
 Where the agreement is to convey an estate upon a sale, 
 the purchaser would have a right to a conveyance with 
 usual covenants, although nothing was expressed about 
 covenants in the agreement (?'). But where the conveyance 
 is a further assurance, the purchaser must be supposed to 
 have already obtained all such covenants and evidence as 
 
 (/) 4 Cruise T. 32, c. 25, § 56. Sugd. Concise View, 473. 
 
 {ni) Sugd. Concise View, 471. (p) Sugd. Concise View, 474. 
 
 («) Sugd. Concise View, 474. (5) 4 Cruise T. 32, c. 25, § 94. 
 
 (0) 4 Cruise T. 32, c. 25, § 93 ; (r) Sugd. Concise View, 475.
 
 800 
 
 OF COVENANTS IN PURCHASE DEEDS. 
 
 Pt. III.T.12. 
 
 Ch. 5. 8. 1. 
 
 Duty of a 
 solicitor aa 
 to unusual 
 covenants. 
 
 Eviction 
 
 lie was entitled to ; and therefore he cannot insist upon 
 any covenants which he ought to have obtained before 
 (such, for instance, as a covenant for production of deeds), 
 under the covenant for further assurance (.s). And it has 
 been held that the covenant for further assurance does not 
 entitle a purchaser who has neglected to obtain evidence of 
 facts material to his title at the time of his purchase, after- 
 wards to call for the production of such evidence, or to 
 have the future preservation and production of the docu- 
 ments containing the evidence secured to him (;!). 
 
 If the seller's solicitor permits his client to enter into an 
 unusual covenant for title, without explaining to him, not 
 only its effect, but also that it is an unusual covenant, and 
 cannot be insisted on, the solicitor will be liable to the 
 client for any consequent loss (u). 
 
 A purchaser of land sold for building ground, who has 
 been evicted, is entitled to recover upon liis covenants, not 
 only the value of the land, but also that of tlie houses 
 erected thereon («). 
 
 III. Covenants on Sale of ZcaseJwlds. 
 
 Usual cove- 
 nants. 
 
 The usual covenants in assignments of leasehold estates, 
 are, 1st. That the lease is valid in law, not forfeited, sur- 
 rendered, or determined, or become void or voidable. 
 2ndly. That the assignor has good right to assign. 3rdly. 
 That the rent has been paid, and the covenants performed, 
 up to the time of the assignment. 4thly. For quiet enjoy- 
 ment during the term, free from incumbrances, without an}' 
 restriction. And 5thly. For further assurance (y). 
 
 (s) Sugd. Concise View, 475 — 6; 
 1 Jarm. & Byth. by Sweet, 102. 
 
 (t) 1 Jarm. & Byth. by Sweet, 
 102. 
 
 (m) Sugd. Concise View, 430 ; 9 
 
 Jarm. & Byth. by Sweet, 373. 
 
 (x) Bunny v. Hoplcinson, 27 Beav. 
 565. 
 
 0/) 4 Cruise T. 32, c. 25, § 95.
 
 OF COVENANTS IX PURCHASE DEEDS. 801 
 
 Where a leasehold estate is sold by the lessee, the pur- PT.iir.T.12, 
 chaser, vrithout any express stipulation, is bound to enter 
 
 ■ -^ ^ '- _ Coyenants 
 
 into a covenant with the vendor to indemnify him against °[/°'^^™' 
 the rent and covenants of the lease ; because the original 
 lessee continues liable, even for breaches of covenant com- 
 mitted after he has assigned. But where a leasehold estate 
 is sold by an assignee of the lessee or of any other assignee, 
 the vendor, by the assignment itself, is discharged from 
 liability for any breaches of covenant not committed during 
 the period of his ownership, unless he has entered into a 
 covenant with the person from whom he purchased, whether 
 lessee or assignee, to pay the rent and perform the cove- 
 nants ; and in that case he is entitled to an indemnity from 
 the purchaser against this covenant, from which he is not 
 released by Ms assignment (z). Except so far as the stat. 
 22 & 23 Vict. c. 38, s. 27, may protect him, the executor of 
 a lessee assigning leaseholds to a legatee, whether specific 
 or residuary, is entitled to an indemnity against the rent 
 and covenants of the lease, to which, notwithstanding the 
 assignment, he continues liable to the extent of the assets 
 that have reached his hands (a). "Where a leasehold estate. 
 is sold by tlie assignees of a bankrupt, inasmuch as such 
 assignees are not liable to the covenants of the lease after 
 assignment, nor to any covenant of indemnity the bank- 
 rupt may have entered into, they cannot require the pur- 
 chaser to enter, into a covenant for their indemnity or for 
 the indemnity of the bankrupt — a circumstance which gives 
 purchasers of leaseholds from assignees of bankrupts an 
 important advantage (h). 
 
 (z) 9 Jarm. & Bytli. by Sweet, (a) 9 Jarm & Byth. by Sweet, 
 
 172 ; Sugd. Concise View, 25 ; 4 839. See supra, 659. 
 
 Cruise T. 33, c. 25, § 37, 96 ; 2 (h) Sugd. Concise View, 25 ; 9 
 
 Piatt on Leases, 417 ; HicUing v. Jarm. & Byth. by Sweet, 172, 272, 
 
 Boyer, 3 Mac. & G. 645. 273.
 
 802 OF COVENANTS IN rURCHASE DEEDS. 
 
 IV. Against irhosc Ads a Vendor should Covenant. 
 pt.iii.t.12. Covenants for tlie title are usually restrained and quali- 
 
 Ch 5 s 1 , 
 
 ' ' ' " fled accoixling to the nature of tlie vendor's title. And 
 
 altliougli where covenants are several and of distinct na- 
 tures, restrictive words annexed to one of them will not he 
 applied to the others, yet where all the covenants have the 
 same object, and restrictive words are annexed to the first 
 of them, those words will be considered as extending to all 
 the others (c). Where the vendor has himself purchased 
 the estate, and has obtained proper covenants for the title, 
 he is only bound (giving up the title deeds) to covenant 
 against his own acts (r/). But where the title deeds are not 
 delivered up to the vendee, it is desirable that the cove- 
 nants should extend to the acts of the person from whom 
 the vendor purchased the estate ; for the covenant to pro- 
 duce his purchase deeds cannot insure the production of 
 them, which may be prevented by accidents, for which the 
 vendor, in whose custody the deeds are, ought to be the 
 sufferer, rather than the vendee (c). 
 
 The Court of Chancery appears to hold that a vendor 
 not claiming by purchase, is only bound to covenant 
 against his own acts and those of the owner who imme- 
 diately preceded him (/). But, upon principle and accord- 
 ing to the settled practice of conveyancers, where a vendor 
 derives title by descent, devise, or voluntary deed, without 
 proper covenants for the title, lie ought to covenant, not 
 only against his own acts, but also against the acts of all 
 the intermediate owners, up to the last purchaser for valu- 
 able consideration or other person who obtained proper 
 
 (0 4 Cruise T. 32, c. 25, § 68 ; (c) 4 Cruise T. 32, c. 25, § 7?, ; 
 
 Sugd. Concise View, 465. Fearne's Posth. Works, 110. But 
 
 (d) 4 Cruise T. 32, c. 25, § 72, 74 ; see Sugd. Concise View, 432. 
 
 Sugd. Concise View, 432 ; 9 Jarm. (/) .Sugd. Concise View, 432; 
 
 & P.ytli. by Sweet, 373. 9 Jarra. & Bytli. by Sweet, 373.
 
 OF COVEXANTS IN PUECIIASE DEEDS, 803 
 
 covenants for tlie title, so that tlie purchaser from such pt. 111.T.12, 
 
 ^ Cn. 5, s. 1. 
 
 vendor may be protected by covenants extending to the 
 
 acts of all the successive owners of the property (//). 
 
 Where there is a defect in the title, a purchaser has a 
 right to covenants against all persons chaiming a lawful 
 title to the estate, whicli, unless the defect appears on the 
 face of the conveyance, should be by a separate deed. 
 And where a purchaser consents to take a defective title, 
 relying for security on the vendor's covenant, this should 
 be particularly mentioned to be the agreement of the 
 parties ; for otherwise, as the defect was known, it might 
 be contended that the covenants for the title should not 
 extend to warrant it against such particular defect (h). 
 
 V. To what Ivind of Acts Covcnnnts will extend. 
 The law will never adjudge a person to covenant against As a general 
 
 rule, cove- 
 
 the wrongful acts of strangers, unless his covenant is nantsrionot 
 
 ° ° ' extend to 
 
 express to that purpose ; for the law itself defends every *'^'si°"yj'e^j.g^ 
 one against wrong. And therefore, though a person may 
 covenant in the most general terms for the title to lands, 
 yet such covenant will not be held to extend to tortious 
 acts. If general covenants extended to tortious evictions, 
 a way might be opened for secret practices and combina- 
 tions between a purchaser and strangers, that the purchasers 
 might recover damages from the covenantors {i). 
 
 But where the covenant is to save the purchaser hami- Exceptions, 
 less from all acts of a particular person, there the vendor 
 is bound to defend the purchaser against the entry of that 
 person, whether by title or not {j ). So where the covenant 
 
 ig) Fearne's Posth. Works, 110 ; (/) Sugcl. Concise View, 459 ; Bur- 
 
 Sugd. Concise View, 432 ; 4 Cruise ton, § 578 ; 4 Cruise T. -32, c. 25, 
 
 T. 32, c. 25, § 74—5 ; 9 Jarm. & § 50. 
 
 Byth. by Sweet, 373. " 0') 4 Cruise T. 32, c. 25, §52; 
 
 {h) 4 Cruise T. 32, c. 25, § 75 ; Hugd. Concise View, 459. 
 Sugd. Concise Viow,-431v
 
 804 
 
 OF COVENANTS IN rUKCHASE DEEDS. 
 
 pt.tii.t.12, is against all claims to a imrticular right, it will extend to 
 Ch. 5, s. 1, * •>• '=> ' 
 
 tortious as well as to legal claims {Jc). 
 
 Covenants Notwithstanding the engagement be expressly against 
 
 tortious acts lawlui acts, yet any act of the covenantor hmiseli which 
 amounts to an assertion of title, however groundless, will 
 he a breach of covenant (/), although the act done by him 
 was tortious and might ]3e the suliject of an action of 
 trespass ; and if the covenant extends to his heirs or 
 executors, the rule equally applies to them (//'). 
 
 of cove 
 uaiitor. 
 
 Pt. III.T. 12, 
 
 Ch. 5, s. 2. 
 
 Covenant to 
 settle 01' 
 leave pro- 
 perty, or as- 
 signment. 
 
 Section II. 
 Of Marriage Settlements (»)• 
 
 Where a covenant is entered into to settle after-acquired 
 property of the wife, it should be expressed whether it is 
 intended to comprise property given to her separate 
 use (o). 
 
 An assignment by an intended wife of her future property, 
 followed by a covenant by the intended husband to settle 
 the after-acquired property of the wdfe, will not extend to 
 property given to the wife in terms which are inconsistent 
 with the trusts of the settlement ( i)). 
 
 A covenant to settle after-acquired property does not 
 comprise a life interest of the husband under a subsequent 
 will; nor does a settlement of property "then in his pos- 
 
 (k) 4 Cruise T. 32, c. 25, § 54 ; 
 Sugd. Concise View, 460. 
 
 {I) Burton, § 578. 
 
 {m) Sugd. Concise View, 460. 
 
 (n) Most of the points necessary 
 to be borne in mind in connection 
 with marriage settlements, will be 
 found under other heads, to which 
 
 they properly belong. 
 
 (o) See BrooTcs \. Keith, 1 Dr. & 
 Sm. 462 ; Wdloughhy v. Middleton, 
 2 Johns. & Hem. 344 ; CamjoheU v. 
 Balnhridge, L. R. 6 Eq. Cas. 649. 
 
 {p) In re Mainwaring''s Settle- 
 ment, L. E. 2 Eq. 487.
 
 OF MAEKIAGE SETTLEMENTS. 805 
 
 session or to whicli he mmlit claim to be possessed of or ^;^-i"-^J2. 
 
 ~ ^ Ch. 5, s. 2. 
 
 interested in in any manner liowsoever," comprise his life ~ 
 
 interest nnder a prior will (jj). Where, in a marriage 
 settlement, the intended wife has assigned all the property 
 to which she then was, or to ^^'hich she or her intended 
 Imsband in her right should during the coverture become 
 entitled, to trustees, upon the trusts thereby declared, this 
 does not amount to a covenant to exercise a general power 
 of appointment in favour of the objects and upon the 
 trusts of the settlement. And if she appoints an annuity 
 to herself, this will not be affected by tlie settlement, 
 unless it was intended by the settlement that any after- 
 acquired property should be converted or taken otherwise 
 than in the state in which it should be so acquired. But 
 if she appoints a gross sum to herself for her separate 
 use, it will be bound by the trusts of the settlement, 
 even though the appointment contained a ])ower ofrevo- 
 cation (r). 
 
 A covenant in a marriage settlement, to settle property 
 to which the wife was " then entitled," applies to property to 
 wliich she was entitled on the death of another (s-). 
 
 A covenant to settle all the real and personal estate of 
 or to which the intended wife should at any time during 
 tlie coverture become seised, possessed, or entitled, does 
 not comprise a vested estate in a moiety of a leasehold 
 which she had at the time of the marriage ; though it does 
 comprise the other moiety which she did not acquire till 
 after the marriage : nor does it comprise a vested interest 
 in certain property, though at the time of the marriage it 
 was not ascertained whether it would turn out to be of any 
 value or not (/). 
 
 {q) St. Aahyn v. Ilumplireijs, 22 (?•) Ewart v. Ewart, 11 Hare, 27G. 
 
 BeaT. 175 ; Wliitc v. Briggs, decided {s) In re Mackenzie's Settlement, 
 
 by Lord CottenJiam, C, and repoited L. E., 2 Ch. Ap. 345. 
 
 22 Beav, 176, note. [t) Viilton v. Colvin, 3 Drewry, 
 
 p2
 
 806 OF MAEEIAGE SETTLEMENTS. 
 
 PT.ni.T.i2, And if a person covenants to settle any real or per- 
 
 sonal estate, which should descend, devolve to, or vest in 
 
 his ^\ife, or to or in him in her right, the covenant will not 
 include property "svliicli l)elouged to the ^^'ife at the 
 time (u). 
 
 The words, " become entitled," import a change of con- 
 dition, and hence they include a contingent interest which 
 becomes vested during the coverture, but they do not 
 include stock vested in possession at the date of the settle- 
 ment (a;). 
 
 Where a flither, on a treaty for the marriage of his 
 daughter, promises the intended husband that at the 
 father's decease she shall have her share of whatever 
 property he shall die possessed of, the daughter will be 
 entitled to the share of personalty which she would take 
 under the Statute of Distributions in case of an intestacy, 
 but not any real estate (y). 
 Where arii- Where there are articles and a settlement before mar- 
 
 cles and set- 
 tlement riage, there, as a general rule, the settlement alone can l)e 
 vary. o ^ ^ o ' 
 
 looked to : if it is different from the articles, it must be 
 taken as a new agreement. But if it purports to be 
 executed in pursuance of the articles, or if there is clear 
 and satisfactory evidence showing that the discrepancy had 
 arisen from a mistake, the Court will reform the settle- 
 ment, and make it conformable to the real intention of 
 the parties (z). If the articles are Ijefore marriage and 
 the settlement after marriage, the articles are in effect the 
 binding settlement ; and if the settlement gives estates or 
 interests different from those which the Court would give 
 on the construction of the articles, the settlement will be 
 
 017. Ill re Browne's Will, L. E. 7 (x) Archer v. Kelly., 1 Dr. & Sm. 
 
 Eq. 231. See re Hurjlies's Trusts, 300. 
 
 4 Gif. 432. Oj) Lavcr v. Fiehler, 32 Beav. 1. 
 
 (u) Churchill v. Shepjpenl, 33 Bear. (s) 2 Spence's Eq. Jur. 1 40 ; Bold 
 
 107. In re Wynhanis Trusts, L. R., v. Hutchinson, 5 D. M. & G. r)58, 
 
 1 Eq. 290. 568,
 
 OF MARRIAGE SETTLEi^IENTS. 80? 
 
 reformed, as l)etweeii the i )arties and tlieir representatives Pt-hi. t.i2, 
 
 ^ -■- Ch. 5, s. i. 
 
 and mere volnnteers, but not as against a purchaser for 
 valuable consideration without notice (rr). 
 
 In a maniage settlement there is sometimes a clause clause of 
 
 accruer. 
 
 providing that " in case any of the younger sons shall 
 become an eldest or only son," his portion shall accrue to 
 the other children. And by force of this clause a younger 
 son may lose his portion on liecoming an eldest or only 
 son, although he may not have succeeded to the property 
 of his elder brother (/>). This is, of course, contrary to the 
 intention of the settlor, who must be presumed to have 
 intended that all the children of the marriage should be 
 provided for. It is evident, therefore, that the condition on 
 which the accruer is to take place ought to be more fully 
 and accurately expressed. 
 
 A clause in a marriage settlement, requiring the trus- clause autho- 
 tees, at the request in writing of the wife, to advance part totirehus- 
 
 ^ . ° . -^ band. 
 
 of the trust monies to the husband, ou the security of his 
 bond, with a proviso that they should not be obliged to 
 call in the monies so lent unless required by the wife, 
 ceases to be applicable to the husband after he has taken 
 the benefit of any Act for the relief of insolvent debtors (c). 
 
 Wliere a person makes a settlement on his first marriage Piefcrence 
 
 ... . T . , . , ofchildreu 
 
 on Ins sons m tail, remamder to persons not within the claiming 
 
 under a 
 
 consideration of the marriage, and subsequently, on a settlement 
 
 ^ ' ■>■ -J ' ou a second 
 
 second marriage, covenants that he will settle the reversion OTe^vdun- 
 expectant upon the decease of his sons without issue, to in^uiurera 
 the use of the children of that marriage, it has been held on a first 
 
 marriage. 
 
 by tSir K Sur/dcn, when Lord Chancellor of Ireland, that 
 they will take in preference to the persons claiming under 
 the voluntary limitations in the first settlement (r?). 
 
 (a) 2 Spence's Eq. .Tur. 140—1. (c) Boss v. GodseU, 1 Y. & C. C. 0. 
 
 Peachy on Settl. 132. See Mignan 617. 
 
 V. Parry, 31 Bcav. 211. {d) Siaclpoole v. Stachpoolc, i 
 
 (h) See Peacocl v. Pares, 2 Keen, Dm. & W. 320. 
 689.
 
 808 OF MARRIAGE SETTLEMENTS. 
 
 pt. iii.t.12. Where a testator directs a settlement to be made, lie is 
 
 Ch. 5, s. 2. _ ' 
 
 deemed to have iutejided that all usual powers should be 
 
 Direction to ^ 
 
 tiemeiiV^'' ii^'^^erted ; such as powers of leasing, sale and exchange, 
 with a receipt clause, in the case of real estate, and provi- 
 sions for maintenance, education, and advancement, and 
 appointment of new trustees (e). 
 
 Where a fund is directed to be settled on a daughter 
 and her issue, so that the same may not be subject to her 
 husband's control or engagements, the proper mode is to 
 settle the property on her for life, for her separate vise, 
 without power of anticipation ; after her death, to her issue, 
 as she shall appoint by deed or will ; and in default of ap- 
 pointment to the issue living at her death, efjually, per 
 stirpes ; and in default of such issue, then as she shall 
 appoint by will ; and in default of appointment, to her 
 executors, administrators, and assigns (/). 
 
 Setting aside, j^^ antenui)tial settlement cannot be set aside, reformed, 
 
 reformiug, J- ' ' 
 
 settlement.* or vaiicd, Oil the grouiid that it was intended that there 
 should be a pecuniary consideration on both sides, whereas 
 the pecuniary consideration on one side has failed ; and 
 this is the case, whetlier as between the persons who are 
 within the marriage consideration, or as between the 
 husband and appointees of the wife who are strangers ; for, 
 such appointees, though volunteers as between the wife 
 and themselves, are not volunteers as between themselves 
 and the husband, but claim under and therefore stand in 
 the situation of a purchaser (rf). 
 
 Where a settlement is made by a person in illness and 
 under the apprehension of speedy dissolution, it should 
 contain a power of revocation, so as to give him the oppor- 
 tunity of revoking it in case of his recovery and formuig 
 
 (e) learner v. Sargent, 17 Boav. 450. 
 515. (ff) CahipbeU v. hiy'dbij, 21 BcaV. 
 
 (/) Slanlcij V. Jachnan, 23 Beav. 567 ; 1 D. & J. 393.
 
 OF MARRIAGE SETTLEMENTS. 809 
 
 a cool judgment ; and if sucli a power is not inserted, tlic Pt. tTi.T.12, 
 deed will be set aside (h). '- 
 
 If, in a marriage settlement, a person enters into a cove- Mutual cove- 
 nant to settle property on the objects of the settlement, in property. 
 case anotlier person who covenants so to do should also 
 settle property upon them, and it is intended that the 
 covenant of the one should not be performed unless the 
 other should make such settlement on his part, care should 
 be taken unequivocally to express that intention. For, 
 though the making of such settlement by the other may 
 appear to be a condition precedent, looking to the terms 
 of the covenant alone ; yet, if from any other part of the 
 instrument it appears to be doubtful whether it was in- 
 tended to be a condition precedent, it will not be construed 
 as such, because, as a general rule, in marriage contracts 
 there can be no resistance on the part of one, merely be- 
 cause another contracting party has failed to perform his 
 part of the agreement ; inasmuch as the parties to the con- 
 tract are not the only persons having an interest in the 
 subject, but tlie contract is made by them on behalf of the 
 issue of the marriage (z). 
 
 Marriage articles will be specifically executed on the Execution of 
 
 marriage 
 
 application of any person withm the scope of the con- artides, 
 sideration of the marriage, or of those claiming under any 
 such person. But they will not be specifically executed 
 on the application of persons who are volunteers, even of a 
 wife or child by a subsequent marriage ; although where 
 the bill is brought by persons who are within the scope of 
 the consideration, or by those claiming under tliem, courts 
 of equity will decree a specific execution throughout, as 
 well in favour of the mere volunteers, as of the plaintiff ; as 
 they either execute them in toto, or not at all {J). 
 
 {h) Forslum v. Wehhy, 30 Bear. 192. 
 213. (j) Story's Eq. Jur. § 9S6, 987 J 
 
 (t) Lloyd V. Lloyd, 2 My. & Cr 2 Spencc's Eq. Jur. 237.
 
 810 
 
 OF MAlUilAClE SETTLEMENTS. 
 
 rr.III. T.12, 
 Ch. 5, s. 2. 
 
 Sotlliament 
 on a ward of 
 Court. 
 
 Appoint- 
 ment to thy 
 executoi s 
 and adminis- 
 trators of a 
 settlor. 
 
 Frauds ou 
 marital 
 rights or ex- 
 pectations. 
 
 Ill a settleineut on the iiiarriage of a female ^va^d of 
 Court, provision must be made, out of her fortune, for the 
 children of a future marriage (/.:). 
 
 Where a settlement is executed a few days after the 
 lady, who was a ward of Court, has attained her majority, 
 and is pursuant to proposals made a very short time 
 before she attained her majority, and is such that the Court 
 would not approve thereof, it will be rectified, if at least it 
 was the work of her friends, and she was not made to un- 
 derstand its effect and called upon to exercise her judg- 
 ment upon it {I). 
 
 The effect of a limitation or appointment of personalty 
 to the executors and administrators of a settlor, is, simply 
 to add it to his general personal estate, so as to subject it 
 to any disposition which he may make of it in his lifetime 
 or by his will, or to any lialjility incident to his general 
 personal estate (as to the claims of assignees in bankruptcy 
 or insolvency), or to the Statutes of Distribution, as the 
 case may be. And this rule applies even to money pay- 
 able at the settlor's death under a policy of life assurance, 
 because the settlor or his assignees may sell the policies 
 at once (?m). 
 
 Eelief will be granted against acts secretly done by a 
 woman in contravention of the marital rights, or in disap- 
 pointment of the just expectations of her intended hus- 
 band ; as where a woman, in contemplation of marriage 
 and without the privity of her intended husband, makes a 
 settlement to her separate use, or a conveyance in favour 
 of persons for whom she is under no moral obligation to 
 provide. But a reasonable provision for her children by a 
 former marriage, under circumstances of good faith, is free 
 from objection («.). 
 
 {k) Radge v. Winnell, 10 Beav. 98. & G. 559, 
 
 (?) Money v. Moneij, 3 Drewiy, {n) Story's Eq. Jur, g 273 ; 2 
 
 256. Spence's Eq. Jur. 505. 
 (m) Machenzie v. Muclccnzk, Mac.
 
 OF MAKEIAGE SETTLEMENTS. 811 
 
 If a person marries his deceased wile's sister, she can- pt. ni.T.12, 
 
 ^ _ Ch. 5, s. 2. 
 
 nut make a valid settlement on liim (0). 
 
 ^ -^ Settlement 
 
 AVliere a marriage settlement contains a i^ower of re- by deceased 
 
 o 1 wife s sister. 
 
 yoking the uses, trusts, &c., and of appointinc!' new uses, Power of 
 
 revocation. 
 
 trusts, &c., in lieu of those revoked, this power only 
 authorises a revocation for the purpose of resettling the 
 estate for the benefit of the cestui (|ue trusts, and does not 
 authorise a mortgage for a sum to be paid to the husband (j>). 
 
 Section III. 
 Of Deeds of Compromise and Family Arrangement. 
 
 In the case of a comiiromise of doubtful rights, if all the PT.11r.Ti2, 
 „ . Ch. 5, s. 3. 
 parties are 111 a state of mutual ignorance, or they are all 
 
 acquainted with the doubts which exist in their favour, the 
 compromise is binding. But where one or more of them is 
 or are not aware of the doubts existing in his or their 
 favour, while the fact that such doubts exist is known to 
 tlie other or others of them, the compromise is not bind- 
 ing {q) ; because, in that case, there is room for the pre- 
 sumption of surprise or confidence abused, and the very 
 nature of the transaction made it requisite that all the 
 parties should be on an equality" as regards knowledge or 
 ignorance of the doubts existing in their favour. To render 
 a family compromise binding, there must be an honest dis- 
 closure, by each party to the other, of all such material 
 facts known to them, relative to their rights and title, as 
 are calculated to influence the judgment in the adoption of 
 the compromise ; and any advantage taken by either of the 
 
 (0) Coidson V. Alison, 2 D. F. & (^j) Elmid v. Baler, 29 Beav.lZT, 
 
 J. 521. r ^q) See Story's Eq. Jur. § 130—1.
 
 812 
 
 OF DEEDS OF COMPROMISE AND ARRANGEME^'T. 
 
 pt. 1II.T.12, parties of the known io-norancc of the other of such facts, 
 
 Ch. 5, s. S. ^ O 
 
 renders such compromise void in equity (r). 
 
 Deeds of the nature of family arrangements are exempted 
 from the rules as to the adequacy of the consideration 
 applicable to other deeds ; the consideration in such cases 
 being compounded partly of value and partly of natural 
 love and affection. And it is not necessary that there 
 should be any rights in dispute, in order to uphold 
 them (s). 
 
 To render the compromise of litigation valid, it is not 
 necessary that the question in dispute should be really 
 doubtful, if the parties bona fide considered it to be so (t). 
 
 Pt. III.T.12, 
 
 Ch. 5, s. 4. 
 
 Conveyance 
 or assign- 
 nient tor a 
 particular 
 creditor may 
 be valid, 
 and for all 
 the creditors 
 invalid. 
 
 Rcvocaijlc- 
 
 Section IV. 
 
 Of Creditors Deeds. 
 
 I, Creditors Deeds gencredly.' 
 
 It will appear Ironi a preceding and a subsec^uent chapter 
 that a conveyance or assignment may be valid, under 
 certain circumstances, even though made by an insolvent 
 debtor in favour of a particular creditor; and that, on the 
 other hand, a conveyance or assignment by such a person 
 may be invalid, under certain circumstances, even though 
 made for the benefit of all his creditors (u). 
 
 Conveyances in trust to sell and pay creditors are in the 
 
 (}•) Smith \. Pincomhe, 3 Mac. & 
 G. 659 ; Greeimood v. Greenwood, 2 
 D. J. & S. 28 ; Broole V. Lord 
 Moshjn, 2 D. J. & S. 373. 
 
 (s) Persse v. Persse, 7 CI. & F. 
 279 ; Williams v. Williams, 2 Dr. 
 & Sm. 378 ; L. E. 2 Ch. Ap. 294. 
 
 As to deeds of this nature, see 
 also Dinisdalev. Dimsdale, 3 Drewry, 
 556, 569—571. 
 
 (t) Lucy's Cose, 4 D. INT. & G. 
 856. 
 
 (w) See supra, p. 581 — 2 ; infra, 
 p. 838— 843>
 
 OF Creditors' deeds. 813 
 
 nature of an instrument of aQ'ency, and revocable at the Pt- in.T.12, 
 
 . . . Cn. 5, s. i. 
 
 will of the debtor, unless the creditors are executing parties, — 
 
 or the deed has been acted upon, or notice <];iven to the jeYances in 
 
 ^ ' o trust for ere- 
 
 creditors {.v). ^''°'■'• 
 
 A conveyance by a debtor of his Q'oods to two creditors, Passing of 
 
 '^ "^ ° _ tlie i)roi)ertj-. 
 
 for the benefit of themselves and the other creditors, 
 passes tJie property at once on the execution of the deed 
 by the debtor, without any assent on the part of the 
 trustees (.y). 
 
 Where a deed of assi2;nment puri^orts to be made by all i^eed of 
 the partners in a firm, and to convey all their personal one'^oni'y ^/ 
 estate and effects whatsoever in trust for the benefit of signors. 
 creditors, and it is executed by only one of the partners, it 
 operates to convey all his separate effects, and all his share 
 in the joint effects (z). 
 
 In order to entitle the creditors named in a c^eneral where ere- 
 
 *-' ditors take, 
 
 assignment for the benefit of creditors to take under it, parfe.'&c. 
 it is not necessary that they should be technical parties 
 thereto, unless they are named in the assignment as 
 parties, and are expressly required to execute before they 
 can take under its provisions. It is sufficient if they have 
 notice of the trust in their favour, and assent to it ; and 
 if there is no stipulation for a release, or any other con- 
 dition in it which may not be for their benefit, their assent 
 will be presumed, till the contrary appears {a). 
 
 Under special circumstances, creditors who have not 
 acceded to a composition deed within the time limited 
 by it, may participate in the benefits thereof (h). And 
 where creditors have acted under a deed of composi- 
 
 (.v) Coote Mortg. -3rcl. ed. 164 ; W. 128. 
 
 Story's Eq. Jur. § 1036 b ; Steele r. (a) Story's Eq. Jur. § 1036 a ; 
 
 Murphu, 3 Moore's P. C. C. 445. see Biron v. Mount, 24 Beav. 642. 
 
 (//) Hobson V. ThcUiison, L. 1\. 2 (b) Whitmore t. Turquand, 1 
 
 Q. B. 642. Johns. & Hem. 444. 
 
 (a;) JBowJccr v. Bardtlviij 11 M; &
 
 814 
 
 OF CKKDITORS DEEDS. 
 
 Pr. iir.T.i2, tioii and treated it as valid, the Court of .Cliancerv M'ill 
 
 On. 5, s. 4. " 
 
 also act under it and treat it as valid as against the 
 
 assignor, though the creditors have not executed it within 
 the time prescrilicd (r). A deed of trust for the l)cnefit of 
 creditors is not avoided, though the creditors named as 
 parties to it of the second part are described as the several 
 persons whose names and the amount of whose debts are 
 set out in a schedule thereunto annexed, and yet there is 
 no schedule annexed at the time of execution, and erasures 
 are made in the names of some of the creditors written in 
 the schedule afterwards added, and against the names of 
 others no sums are set (d). 
 
 If any creditor who is a party to a composition deed, 
 has, unknown to the other creditors, obtained any benetit 
 or security, either from the debtor or a third person, 
 beyond what the others have received, or enters into a 
 contract with the debtor which prevents him from being 
 put into that situation of freedom from resisting demands 
 which may be considered as one of the chief inducements 
 to the others to sign the deed, it is a fraud on the policy of 
 the law ; and such secret arrangements are entirely void, 
 even as against the assenting debtor, or his sureties, or his 
 friends ; and money paid under them may be recovered 
 back ((•). 
 
 Frauds on 
 creditors. 
 
 II. Deeds of Arrangement, under the Bctnkr^iptcy Act of 
 1861, where there have heen jnveeedinrfs in Bcdiknqytci/ (/). 
 
 Court to°' ^y ^- ^^'^> " ^^ ^^^® proceedings in bankruptcy be stayed 
 
 ciaratioifof as herein provided, the bankrupt, or any creditor nomi- 
 
 (c) 2 Spence's Eq. Jur. 354. 
 
 id) West V. Steward, 14 M. & W. 
 47. 
 
 (e) Sec Story's Eq. Jur. § 378—9 ; 
 2 Speuce's Eq. Jur. 357 — 3G0 ; 
 
 Pjlerjer v. Broivne, 28 Beav. 391. 
 
 (/) See enactments in the amende 
 ding Act 31 & 32 V. c. 104, some of 
 ■vvliicli are stated infra, pp. 819, 820.
 
 OF Creditors' deeds. 815 
 
 iiated ill tliat belialf by the meeting aforesaid, may, at any ^^-J^ll-]^' 
 
 time within the period during which the proceedings are '~^^ 
 
 so stayed, produce to the Court a deed of arrangement, ^^'^''^^ 
 
 signed by or on behalf of three fourths in number and vahie meut'!%id 
 
 of all the creditors of the bankrupt ; and the Court may to be regis- 
 tered ; and 
 consider the same, and may examine on oath the bankrupt to amuii 
 
 ' -^ _ baukruptcy. 
 
 and any of the creditors who may desire to be heard in 
 support of or in opposition to the deed, and may make such 
 other incpiiry as it may think necessary ; and if the Court 
 sliall be satisfied that the deed has been duly entered into 
 and executed, and that its terms are reasonable and calcu- 
 lated to benefit the general body of the creditors under the 
 estate, it shall by order make a declaration of the complete 
 execution of the deed, and shall direct the same to be 
 registered with the chief registrar, and sliall also, if he 
 thinks fit, annul the bankruptcy ; and such deed shall there- Beed.if so 
 
 ■'-■'' registered, 
 
 after be as Ijinding in all respects on any creditor who has ^^j"^,]"!!,''^: 
 
 not executed the deed as if he had executed it, provided cilaulug. 
 such deed be registered with the chief registrar in manner 
 directed by the order." 
 
 By s. 194 of the same statute, " Every deed, instrument, f/^fj^^J^'^i^ 
 
 or agreement Avhatsoever, by which a debtor, not being a il'aukruptcy! 
 
 bankrupt, conveys or covenants or agrees to convey his Suit'"ot''to 
 
 1)6 rGccivBtl 
 
 estate and effects, or the principal part thereof, for the iu evidence. 
 benefit of his creditors, or makes any arrangement or agree- 
 ment with his creditors, or any person on their behalf, for 
 the distribution, inspection, conduct, management, or wind- 
 ing up of his affairs or estate, or the release or discharge 
 of such debtor from his debts or liabilities, shall, within 
 twenty-eight days from and after the execution thereof by 
 such debtor, or within such further time as the Court in Lon- 
 don shall allow, 1)0 registered in the Court of Bankruptcy ; 
 and in default thereof shall not be received in evidence Qj)." 
 
 {g) This section does not apply to and Holmes on Bankruptcy, pp. 
 deeds under s. 192. See 2 Griffiths 1029, 10-30.
 
 816 OF creditors' deeds. 
 
 III. Deeds of Composition, under tlic Banhruptcy Act of 
 1861, suhject to the Jurisdiction of the Court of Bcmk- 
 ruptcy, where no lanlxrvpAcy 2^''oceedinr/s have hccv 
 tcdcen (/;). 
 
 PT.iir.T.i2. By the stat. 24 & 25 Vict. c. 134, s. 192, " Every deed or 
 
 Ch. 5,3.4. "^ . 
 
 instrument made or entered into between a debtor and liis 
 
 What deeds 
 
 to be valid; creditors, or any of them, or a trustee on their behalf, 
 
 and iijion ' ./ ' 
 
 tiou3 *^°"'''' rehxting to the debts or liabilities of the debtor, and his 
 release therefrom, or the distribution, inspection, manage- 
 ment, and winding up of his estate, or any of such matters, 
 shall be as valid and effectual and binding on all the cre- 
 ditors of such debtor as if they were parties to and had 
 duly executed the same, provided the following conditions 
 be observed ; that is to say, 1. A majority in number repre- 
 senting three fourths in value of the creditors of sucli debtor 
 whose debts shall respectively amount to ten pounds and 
 upwards shall, before or after the execution thereof by the 
 debtor, in writing assent to or approve of such deed or 
 instrument : 2. If a trustee or trustees be appointed by 
 such deed or instrument, such trustee or trustees shall 
 execute the same : 3. The execution of such deed or instru- 
 ment by the debtor shall be attested by an attorney or 
 solicitor : 4. Within twenty-eight days from the day of 
 the execution of such deed or instrument by the debtor, 
 the same shall be produced and left (having been first duly 
 stamped) at the office of the chief registrar, for the purpose 
 of being registered : 5. Together with such deed or instru- 
 ment there shall be delivered to the chief registrar an affi- 
 davit by the debtor or some person able to depose thereto, 
 or a certificate by the trustee or trustees, that a majority 
 
 (/(.) See enactments in the amend- ofwliichare stated infra, pp. 819, 
 ing Act 31 & 32 Vict. c. 104, some 820.
 
 OF CKEDITOES' DEEDS. 817 
 
 in number representiiio; three fourtlis in value, of the ore- Pi.iii.T.12, 
 
 ^ Cn. 6, s. 4. 
 
 ditors of the debtor whose debts amount to ten pounds or 
 
 upwards liave in writing assented to or approved of such 
 deed or instrument, and also stating the amount in value 
 of the property and credits of the debtor comprised in such 
 deed : 6. Such deed or instrument shall, before registration, 
 bear such ordinary and ad valorem stamp duties as are 
 hereinafter provided : 7. Immediately on the execution 
 thereof by the debtor, possession of all the property com- 
 prised therein, of which the debtor can give or order pos- 
 session, shall be given to the trustees." 
 
 P)V s. 196, "Everv such deed, on being so resfistered as Memoran- 
 aforesaid, shall have a memorandum thereof written on the gistrat'on. 
 face of such deed, stating the day and the hour of the day 
 at which the same Avas brought into the office of the chief 
 reo'istrar for resjistration." 
 
 By s. 197, "From and after the registration of every such Jurisdictiou 
 
 J '' O '^ of the Court, 
 
 deed or instrument in manner aforesaid, the debtor and ay^Ji!°i-|?. 
 creditors, and trustees, parties to such deed, or who have |,artrM|^after 
 assented thereto or are bound thereby, shall in all matters of deed, 
 relating to the estates and effects of such debtor be subject 
 to the jurisdiction of the Court of Bankruptcy, and shall 
 respectively have the benefit of and be liable to all the 
 provisions of this Act, in the same or like manner as if the 
 debtor had been adjudged a bankrupt, and the creditors 
 had proved, and the trustees had lieen appointed creditors 
 assignees under such bankruptcy ; and the existing or 
 future trustees of any such deed or instrument, and the 
 creditors under the same, shall as between themselves 
 respectively, and as between themselves and the debtor 
 and against third persons, have the same powers, rights, 
 and remedies, with respect to the debtor and his estate and 
 effects, and the collection and recovery of the same, as are 
 possessed or may be used or exercised by assignees or cre- 
 ditors with respect to the bankrupt, or his acts, estate and
 
 818 
 
 OF CllEDITOKS DEEDS. 
 
 Provision 
 in case 
 debtor can- 
 not obtain 
 assent of 
 requisite 
 majority of 
 creditors. 
 
 "pt. iii.t.12, effects in bankruptcy ; and, except where the deed shall 
 
 expressly provide otherwise, the Court shall determine all 
 
 questions arising under the deed according to the law and 
 practice in bankruptcy, so far as they may be applicable, 
 and shall have power to make and enforce all such orders 
 as it would be authorised to do if the debtor in such deed 
 had been adjudged bankrupt and his estate were adminis- 
 tered in bankruptcy." 
 
 By s. 200, " If a debtor cannot obtain the assent of a 
 majority in number representing three fourths in value of 
 his creditors, by reason of his being unable to ascertain by 
 whom bills of exchange, promissory notes, or other negoti- 
 able securities accepted, drawn, made, or endorsed by him 
 are holden, or by reason of the absence of creditors in a 
 foreign country, or otlier similar circumstances, it shall bo 
 sufficient if he obtain the consent of a majority in number 
 representing three fourths in value of all his other creditors 
 to such deed or instrument as aforesaid ; provided that 
 notice shall have been inserted by or on behalf of the 
 debtor in one or more newspapers published in the county 
 or place at which he shall have carried on business imme- 
 diately prior to the date of such deed or instrument, 
 recpiiring his creditors to signify their assent to or dissent 
 from such deed or instrument by notice in writing addressed 
 to the trustee or trustees thereof within fourteen days from 
 the insertion of such notice, and that the affidavit or certifi- 
 cate of the trustee or trustees shall state the circumstances 
 of the case, and the same shall be allowed by the Court, 
 and provided the deed or instrument be in such form as is 
 expressed in Schedule (D) to this Act annexed, which shall 
 vest all the estate and effects of the debtor in the trustees 
 of such deed, and provided that all such other conditions 
 as are hereinbefore required be duly complied with."
 
 OF CEEDITOES' DEEDS. 819 
 
 Tt I11.T.12. 
 Ch. 5, 8. 4. 
 
 TV. Some Enactments in the "Act to amend the Bankruptcij 
 Act, 1861." 
 
 By the stat. 31 & 32 Vict. c. 104, s. 1, it is enacted that supcraddea 
 
 '' amditions. 
 
 " no deed or instrument made or entered into between a 
 debtor and his creditors, or any of them, or a trustee on 
 their behalf, relating to the debts or liabilities of the debtor 
 and his release therefrom, or the distribution, inspection, 
 management, and winding-up of his estate, or any of such 
 matters, shall be as valid, effectual, and binding on all the 
 creditors of such debtor as if they were parties to and had 
 duly executed the same, unless, in addition to the con- 
 ditions to be observed in accordance with the provisions 
 of the Bankruptcy Act, 1861, the following conditions shall 
 be observed ; that is to say, 
 
 1. Together wdth such deed or instrument there shall be 
 delivered to the chief registrar a list showing, to the best 
 of the knowledge, information, and belief of the debtor or 
 other person by whom the list is made, the debts and 
 liabilities of every kind of the debtor, and the times when 
 such debts and liabilities were contracted or incurred, and 
 the considerations for the same, the names, residences, and 
 occupations of his creditors, and the respective amounts due 
 to them, and the securities held by them, and the estimated 
 value of such securities : 
 
 2. A statement showing, to the best of the knowledge, 
 information, and belief of the debtor or other person by 
 whom the statement is made, the debtor's property and 
 credits, and the estimated ■'ralue thereof. 
 
 By s. 3 it is enacted that "no creditor shall be reckoned "sviioshaUbe 
 
 reckoned 
 
 in the computation of the requisite majority in number creditors 
 
 ■*• i. J J Kegistratiou. 
 
 representing three fourths in value of the creditors of the 
 debtor executing such deed or instrument unless he proves 
 his debt by affidavit or declaration in the manner and sub- 
 
 VOL. II. Q
 
 820 OF CKEDITOKS' DEEDS. 
 
 pt. iii.t.12, ject and according to the provisions to be prescribed by 
 
 Cn. 5. s. 4. 
 
 general orders ; and in tlie computation of the requisite value 
 
 of such creditors, and for all other purposes of the deed, the 
 amount due to each creditor, after deducting the value of the 
 securities held by him on the debtor's property, shall alone 
 be reckoned ; and notwithstanding anything in the Bank- 
 ruptcy Act, 1861, the time for the production and leaving 
 of any such deed or instrument at the office of the chief 
 registrar as therein provided shall be twenty-eight days 
 from the day of the execution thereof by the debtor, or such 
 further time as the Court may allow. 
 
 By s. 7 it is enacted that " in case of a deed of arrange- 
 ment under section 187 of the Bankruptcy Act, 1861, no 
 creditor shall be reckoned in the computation of the re- 
 quisite majority in number and value of the creditors of the 
 bankrupt unless he proves his debt by affidavit or declara- 
 tion in the manner and subject and according to the pro- 
 visions to be prescribed by general orders ; and in the com- 
 putation of the requisite value of such creditors, and for all 
 other purposes of the deed, the amount due to each creditor, 
 after deducting the value of the securities held by him on 
 the bankrupt's property, shall alone be reckoned. 
 
 Commence- By s. 15, " this Act shall commence and take effect on 
 
 ment of Acf , "^ 
 
 '^<=- the 11th day of October, 1868, and shall be construed 
 
 together with so much of the Bankrupt Law Consolidation 
 Act, 1849, the Bankruptcy Act, 1854, and the Bankruptcy 
 Act, 1861, as is in force, as one Act, and may be cited for 
 all purposes as The Bankruptcy Amendment Act, 1868."
 
 821 
 
 CHAPTEE VI. 
 
 OF VOID AND VOIDABLE DEEDS AND CONTRACTS (a). 
 
 Section I. 
 
 Of Deeds which are Invalid hy reason of the Absence of any 
 Cotisideration, or the Inadequacy or Unlaiofidncss of the 
 Consideration. 
 
 I, Absence or Failure of Consideration. 
 Lawful considerations are of two kinds — valuable and pt. iii.t.i?. 
 
 Ch. 6, s. 1. 
 
 good. A valuable consideration is money, or any other 
 
 . Considera- 
 
 tnmg tnat bears a known value, or marriage, or some other tions are 
 
 _ _ either valu- 
 
 • benefit to the person making a promise, however slight, or a^^'e or good. 
 to a third person by the act of the promisee, or any loss, 
 trouble, detriment, or inconvenience to, or charge or lia- 
 bility upon, the promisee, however slight, for the sake or at 
 the instance of the promisor, though without any benefit 
 to the promisor, or the suspension or forbearance of legal 
 proceedings, the prevention of litigation, or the settlement 
 of disputes. A good consideration is affection for a child 
 or relation, or the payment of debts by the debtor (&). 
 
 In the case of deeds operating by transmutation of the in what 
 
 cases a con- 
 
 possession, no consideration is necessary, as between the siderationis 
 
 necessary. 
 
 parties, nor as to strangers, except in cases of actual or 
 
 (a) Of course tliis chapter only grounds of invalidity, 
 
 points out some of the grounds, not {h) See 4 Cruise T. 32, c. 2, § 50, 
 
 noticed under other heads, on which 51 ; Smith's Common Law Manual, 
 
 deeds are void or voidable. The 3rd ed. 45, 46 ; Keenan v. Handky, 
 
 perusal of other parts of the work 2 D. J. & S. 283. 
 will at once direct the reader to other 
 
 q2
 
 822 OF DEEDS VOID OR VOIDABLE 
 
 pt.iii. T.12, constructive fraud (c). But in the case of deeds operatincf 
 
 Ch. 6, s. 1. ^ ■' . . 
 
 without transmutation of the possession, that is, bargains 
 
 and sales, and covenants to stand seised, a consideration is 
 absolutely necessary (d). 
 
 Revocable- Where a person executes and delivers a deed of convey- 
 
 ness of a ■*• '' 
 
 voimitary q^^^^q ^f equitable property to a volunteer, or where the 
 legal estate is transferred and a trust of it is declared in 
 favour of a volunteer, and there is nothing upon the face 
 of the transaction or from contemporaneous evidence to 
 show that it was intended to be revocable, it cannot be re- 
 voked or avoided in any way. And even if the donor 
 procures a re-transfer of stock by the trustees, and, where 
 it is in writing, cancels the instrument, and by will makes 
 a provision for the same cestuis que trust, still the settle- 
 ment is binding ; and unless the subsequent provision is 
 expressed to be substitutionary, the cestuis que trust, if the 
 gift is not by way of portion, will take both. They will 
 have their election, if it is expressed to be in substitution ; 
 and stock not being within the stat. of 27 Eliz., a purchaser 
 from the donor cannot avoid the voluntary settlement or 
 gift (c). 
 
 The keeping a deed, so executed as to pass an estate 
 or interest, in the donor's possession, is not of itself suffi- 
 cient to enable the donor to revoke it by cancellation or 
 by will ; though no notice of it may have been given to 
 anyone ; and though it may have been foolishly or incon- 
 siderately executed (/). Hence, a person unmarried can- 
 not recall a voluntary deed which he has executed for the 
 benefit of future children. Nor can he relieve himself 
 from a provision by which he has chosen, for the benefit of 
 those children, to submit to the discretion of a third person 
 
 (c) See infra, sect. III., on volun- Pres. Sliep. T. 510 ; Burton, § 536. 
 tary deeds void as against purchasers (e) 2 Spence's Eq. Jur. 882 — 3. 
 and creditors. (/) 2 Spence's Eq. Jur. 885 ; Re 
 
 (d) 4 Cruise T. 32, c. 2, § 46 ; 2 Wai/s Trusts, 2 D. J. & S. 365.
 
 FOR WANT OF A CONSIDEKATION. 823 
 
 the extent of the enjoyment of the income of his pro- Pr.iii.T.12, 
 
 perty {g). And where a feme sole makes a settlement of 
 
 personal property upon certain trusts for herself, and any 
 husband with whom she may intermarry, and any child- 
 ren she may have, and her appointees and next of kin, 
 it has been held to be irrevocable years afterwards, 
 although she never marries, and it does not appear that it 
 was made in contemplation of an immediate marriage, or of 
 a marriage with any particular individual at any sub- 
 sequent time ; and although it is alleged in the bill, and 
 the probability is, that it was executed solely in order to 
 protect herself against the importunities of relations, and 
 is purely voluntary, and although, in consequence of 
 the locking up of the capital, she becomes greatly embar- 
 rassed {h) ! 
 
 Courts of eciuity will enforce an obligation imposed by Enforcing 
 
 ^ -^ o r J voluntary 
 
 wlQ, without any consideration (i). But they will not deeds, 
 enforce, either against the party himself or any volunteers, 
 claiming under him, any contract or any imperfect gifts 
 inter vivos (not being donations mortis causa) or imperfect 
 assignments of debts or other property, or executory trusts 
 raised by a covenant or agreement, or defective or imperfect 
 settlements or conveyances, which are not founded in a 
 valuable consideration, even though the transaction be 
 founded on a meritorious consideration, as in the case of a 
 provision for a wife or child ; that is, equity will not 
 enforce them so far as something is sought beyond what, if 
 anything, may be recovered under them at law, although it 
 will, if necessary, give effect to any legal obligation created 
 by them. But if a transfer, assignment, trust, settlement, 
 or conveyance is complete, so that no act remains to be 
 done to give full effect to the title, equity will enforce it 
 
 {g) Petre v. Espinesse, 2 My. & K. Bill v. Cureton, 2 My. & K. 503. 
 496. («') 2 Spence's Eq. Jur. 255. 
 
 (/*) 2 Spence's Eq. Jur. 129, 255 ;
 
 824 OF DEEDS VOID OR VOIDABLE 
 
 pt. JII.T.12, tlirougliout against the party making or creating it, and 
 
 his representatives, although it be merely voluntary (j). 
 
 And simply to sign a declaration of trust in favour of the 
 donee is an effectual mode of effecting a voluntary transfer. 
 And if a person directs by letter, though not for valuable 
 consideration, an executor to pay over to another the share 
 to which such person is entitled, and the letter is acted 
 upon by the executor, it will operate as an assign- 
 ment (k). 
 
 A third person, particularly if a relation, may enforce in 
 equity a stipulation made by another in his favour, and for 
 which the party who obtained it has given a valuable con- 
 sideration plainly with a view of benefiting such third 
 person, though such third person, as regards each of the 
 contracting parties, may be a volunteer (/) : as where a 
 person who has contributed a valuable consideration to a 
 settlement, has exacted, as part of the contract, that certain 
 property shall be so settled as that the property, whether 
 belonging to one of the parties or the other, shall go to 
 some near relative, in the event of the intended limitation 
 to the issue of the marriage failing to take effect (m). But 
 it would appear, that, if the party exacting the stipula- 
 tion releases the other, the stranger cannot enforce it, 
 
 ij) Story's Eq. Jur. § 433, 787, Woodford v. ClmrnUy, 28 Beav. 96 ; 
 
 793 a, b, 973 ; 1 Spence's Eq. Jur. Dilrow v. Bone, 3 Giff. 538 ; Airey 
 
 507 ; 2 Spence's Eq. Jur. 52, 57, n. v. Hall, 3 Sm. & G. 315 ; Parndl 
 
 129, 254, 255, 285, 889—893, 898, v. Hingston, 3 Sm. & G. 337 ; Mil- 
 
 899, 907, 909—915 ; Fletcher v. roy v. Lord, 4 D. F. & J. 234. 
 
 Fletcher, 4 Hare, 67 ; Voijle r. (k) Kelcewich v. Manning, 1 D. 
 
 Hughes, 2 S. & G. 18; Bridge v. M. & G, 176 ; Grants. Grant, 34 
 
 Bridge, 16 Beav, 315; Weal v. Beav. 34 ; (?«76er«v. Owrtore, 2 Hem. 
 
 '■ Ollive, l7Bea,v. 252 iScalesv.Maicdc, & Mil. 110; Jones v. Zocl, L. 
 
 6 D. M. & G. 43 ; Dening v. Ware, E. 1 Ch. Ap. 25 ; Richardson v. 
 
 22 Beav. 184; Tatham v. Vernon, Richardson, L. R. 3 Eq. 686; Lambe 
 
 29 Beav. 604 ; Beech v. Keep, 18 v, Orton, 1 Drew. & Sm. 129. 
 
 Beav. 285 ; Donaldson v, Donald- (l) 2 Spence's Eq. Jur. 286. 
 
 son, 1 Kay, 711 ; Pearson v. Ami- (m) 2 Spence's Eq. Jur. 281. 
 cable Assurance Office, 27 Beav. 229 ;
 
 FOR WANT OF A CONSIDERATION. 825 
 
 unless his condition in life has been altered by the stipula- i';;- ^"•''^•i^. 
 
 •^ ^ Cu. 6, s. 1. 
 
 tion (n). 
 
 A grant or obligation which is voluntary, as regards the 
 grantee or obligee, ceases to be voluntary, where, with the 
 privity of the grantor or obligor, it forms the consideration 
 on the faith of which a marriage is contracted and a settle- 
 ment executed (o). 
 
 When the cause of a grant fails, and the thing granted failure of 
 
 " ' '^ '^ the cause oi 
 
 is executory, the grant becomes void. Thus, if a person aslant, 
 grants an annuity for an acre of land, or for counsel, the 
 word " for" is conditional ; and, therefore, if the land is 
 evicted by an elder title, or if the annuitant refuses to 
 give counsel, the annuity is determined (p). 
 
 In every transaction in which a person obtains, by Requisites 
 
 "^ _ ^ -^ to a volun- 
 
 voluntary donation, a benefit from another, it is necessary, t^ry gift. 
 if the transaction be called in question, that he should be 
 able to establish that the person giving him the benefit, did 
 so voluntarily and deliberately, and with full knowledge of 
 what he was doing. If this is not established, the transac- 
 tion will be set aside (q). 
 
 II. Inadequacy of the Consideration. 
 
 Mere inadequacy of price, or any other inequality in the mere mere 
 baro;ain, does not constitute by itself a ground to avoid of price a 
 
 o ' JO ground of 
 
 it (?•). Still, however, there may be such an unconscion- relief, 
 ableness or inadequacy in the bargain as to shock the 
 conscience, and amount to conclusive evidence of imposi- 
 tion or undue influence ; and, in such a case, courts of 
 
 (n) See 2 Spence's Eq. Jur. 280, 241 ; Anderson v. Ehworili, 3 Gif. 
 
 281. 154 ; Sliarp v. Leach, 31 Beay. 491 ; 
 
 (o) Payne v. Mortimer, 1 Gif. Toker v. Toher, 31 Beav. 629. 
 118. (r) Story's Eq. Jur. § 244 ; Allot 
 
 {p) 2 Pres. Shep. T. 285. v. Stvorder, 4 D. G. & Sm. 448 ; liar- 
 
 (g) Cooke v. Lamotte, 15 Beav. rimn v. Guest, 6 D. M, & G. 424.
 
 826 
 
 OF DEEDS VOID OE VOIDABLE 
 
 Pt. III.T.12, 
 Ch. 6. s. 1. 
 
 Gross in- 
 adequacy, 
 coupled 
 ■with other 
 grounds of 
 relief. 
 
 Inadequate 
 consideration 
 in case of 
 persona pecu- 
 liarly liable 
 to be im- 
 posed on. 
 
 Bargains 
 with expect- 
 ant heirs, 
 remainder- 
 men, and re- 
 versioners. 
 
 equity ought to interfere on the ground of fraud. And 
 where there are other ingi^edients of a suspicious nature, 
 gross inadequacy in the consideration must furnish the 
 most vehement presumption of fraud (s). Such is the 
 case if proper time for deliberation is not allowed the 
 party injured ; if he is importunately pressed ; if those in 
 whom he placed confidence make use of strong persuasion ; 
 if he is suddenly drawn into an act, without being fully 
 aware of the consequences ; if he is not permitted to con- 
 sult disinterested friends or counsel, before he is called 
 upon to act, in circumstances of sudden emergency or un- 
 expected right and acquisition ; or if he is an illiterate 
 person, and advantage has been taken of his necessities ; 
 or if he is a person of weak understanding (t). But equity 
 will not relieve where the parties cannot be placed in statu 
 quo. Such relief, for instance, will not be given in the case 
 of marriage settlements ; inasmuch as the Court cannot un- 
 marry the parties {u). 
 
 Relief will be granted, on account of the smallness 
 of the consideration, in favour of those classes of per- 
 sons, of whom, from their peculiar circumstances, irre- 
 spective of any mental incapacity, undue advantage may 
 readily be taken, although the transaction could not be im- 
 peached if entered into by parties otherwise situated. Thus, 
 
 Bargains with expectant heirs will be set aside, unless 
 the party can show that a full consideration was paid, or 
 that the bargain was fully made known to and approved 
 by the person to whose estate the expectant heir hoped to 
 succeed (v). But although a person seeking the benefit 
 
 (s) story's Eq. .Tur. § 24G, 251. 
 See remarks of Lord Cranworth, C, 
 in Harrison v. Quest, 6 D. M. & G. 
 424. 
 
 {t) Story's Eq. Jur. § 251 ; Cochell 
 V. Taylor, 15 Beav. 103, 115; Long- 
 mate V Ledger, 2 Gif. 157 ; Clarh v. 
 
 MaljMS, 31 Beav. 80 ; Bal:er v. 
 Monk, 33 Beav. 419. 
 
 (u) Story's Eq. Jur. § 250. 
 
 (v) See Story's Eq. Jur. § 334— 
 340, 343; Bromley v. SmitJi, 26 
 Beav. 644.
 
 FOR INADEQUACY OF CONSIDERATION. 
 
 827 
 
 of a dealing with an expectant lieir for liis expectancy ^ch^^'s'i!' 
 must show that he gave him a fair market price at the 
 time of the dealing, yet he is not bound to show that he 
 gave the full value according to the calculations of actua- 
 ries on the tables ; as those calculations were made on the 
 result of a great mass of cases, and therefore may not be a 
 true criterion of the value of the particular case, as, for 
 instance, where the life in question is not of average value. 
 Besides, if the utmost value were required to be given, it 
 might altogether prevent expectants from dealing with 
 their expectancies (iv). 
 
 If, however, the heir, after being relieved from his neces- 
 sities, absolutely, and deliberately, and on full information 
 as to his right of setting aside the bargain, confirms the 
 transaction, or does any act by which the rights or property 
 of the other party are injuriously affected, he will not be 
 allowed to repudiate the bargain (x). 
 
 The same relief was afforded to remaindermen and rever- 
 sioners, unless the party who dealt with them could show 
 that a full consideration was paid, or that the bargain was 
 fully made known to and approved by their parents or 
 other persons standing in loco parentis, who had the means 
 of obviating the necessity for such an alienation of their 
 future interests. 
 
 And tliis doctrine applied to a charge as well as to a 
 sale, and notwitlistanding the expectant was of mature age, 
 and fully understood the transaction. And it was not 
 necessary to show that he was in pecuniary difficulty, for 
 that would be assumed (?/). 
 
 (ic) Earl of Aldhorough v. Trye, 11; Talbot y. Stan forth, 1 Johns. & 
 
 7 CI. & F. i36. H. 484 ; Foster v. Roberts, 29 Beav, 
 
 {x) Story's Eq. Jur. § 345, 346. 467 ; Jones V. Rkletts, 31 Beav, 
 
 {y) See Story's Eq. Jur. § 334— 131 ; Sharp v. Leach, 31 Beav. 491 
 
 340; Salter V. Bradshaio, 26 Beav. Perfect \. Lane, 3 D. F. & J. 369 
 
 161; Bromley v. Smith, 26 Beav. Tyntex. Hodge, 2B.Qm..kMi\.2i7 
 
 644 ; St. Albyny. Harding, 27 Beav. Nesbitt v. Berridge, 32 Beav. 282;
 
 828 OF DEEDS VOID OR VOIDABLE 
 
 pt. iii.t.12, By the stat. 31 Vict. c. 4, it is enacted tliat "no purchase, 
 
 Ch. 6, s. 1. "^ ' ^ 
 
 made bona fide and without fraud or unfair dealing, of any 
 
 reversionary interest in real or personal estate shall here- 
 after be opened or set aside merely on the ground of under- 
 value (s. 1) ; and that the word ' purchase ' in this Act 
 shall include every kind of contract, conveyance, or assign- 
 ment under or by which any beneficial interest in any kind 
 of property may be acquired (s. 2) ; and that this Act shall 
 come into operation on the 1st day of January, 1868, and 
 shall not apply to any purchase concerning which any suit 
 shall be then depending" (s. 3). 
 
 Post-obit On the principles above mentioned, post-obit bonds and 
 
 bonds, &c., X r ' Jr 
 
 ^y^^^pect- other securities of the like nature are set aside, when 
 made by heirs and other expectants. A post-obit bond is 
 an agreement, on the receipt of money by the obligor, 
 to pay a sum exceeding the sum so received and the 
 ordinary interest thereof, on the death of the person upon 
 whose decease he expects to become entitled to some 
 property {£). Even the sale of a post-obit bond at a public 
 auction will not give it validity, unless the sale was free, 
 fair, and with the ordinary precautions and advertise- 
 ments («). If, however, these contracts are perfectly fair 
 in other respects, relief will not be granted, except upon 
 the terms of paying that to which the lender is equitably 
 entitled (6). 
 
 The repeal of the usury laws has not altered the course 
 of the Court of Chancery as to dealings with expec- 
 tants (c). 
 
 Bargains Commou sailors, being so extremely generous, credulous, 
 
 with cum- " 
 
 raou sailors. Q^^^f[ inlprovidcnt a class of men, that they require guardian- 
 ship all their lives. Equity treats them in the same light as 
 
 Dally y. Wonhem, S3 Beav. 154, {h) Story's Eq. Jur. § 344. 
 
 162. (c) Croft V. Graham, 2 D. J. & 
 
 (z) Story's Eq. Jur. § 342. Sm. 155. 
 
 (a) Story's Eq. Jur. § 347.
 
 FOR INADEQUACY OF CONSIDERATION. 829 
 
 young expectant heirs ; and relief is generally afforded r'l. iii. t.i2, 
 
 against contracts respecting their prize-money or wages, 
 
 wherever any inequality appears in the bargain, or any 
 undue advantage has been taken (d). 
 
 Wliere a person, shortly after obtaining his majority. Bargains 
 makes a gift, sale, or lease, in favour of a relative, it will Pfi[g°^°f^g 
 be set aside, unless the grantor or lessor makes it inten- comrof age 
 tionally and deliberately, after having had the fullest in- solicitors! 
 formation on the subject, and separate, independent, and 
 disinterested advice, even though the terms, in the case of 
 a sale or lease, were fair, but yet not so advantageous as 
 might have been obtained (e). 
 
 III. Uoilawfidness of the Consideration. 
 
 Considerations which are against the principles of justice, 
 the doctrines of morality, or the rules, provisions, or policy 
 of the law, are utterly void ; it being a rule of both law 
 and equity that ex turpi contractu actio non oritur (/). 
 Hence, a deed executed in consideration of a future coha- 
 bitation between persons who are incapable of contracting 
 legal marriage, is invalid (g). And a bond given to a 
 woman as the price of prostitution is void in law (A). But 
 where a bond is given for securing an annuity or a sum of 
 money for the support and maintenance of the person 
 seduced, and not with any view to future cohabitation, a 
 court of equity will not set it aside, even though she was 
 a common prostitute (i). 
 
 {d) Story's Eq. Jur. § 332. (*/) Ford v. De Pontls, 30 Beav. 
 
 (e) Grosvenor v. Sherratt, 28 Beav. 572. 
 
 659. (h) 4 Cruise T. 32 c. 26, § 49. 
 
 (/) 4 Cruise T. 32, c. 2, § 51 ; (i) 4 Cruise T. 32, c. 26, § 51, 65. 
 Story's Eq. Jur. § 294—297.
 
 830 DEEDS INVALID ON ACCOUNT OF 
 
 Section II. 
 
 Of Deeds and Contracts vjMcIi are Invalid on the ground of 
 Constructive Fraud ^iractised hi/ Persons sta^iding in a 
 Confidential Relatioii to the Parties sotight to he hound hy 
 such Deeds or Contracts. 
 
 rT.iii.T.i2, Where a reasonable confidence is reposed in another 
 
 CfH, \}f S. A» 
 
 ; — 7- person, or a peculiar influence is possessed by him, in con- 
 
 frauda by— gequcnce of standing in a confidential relation, or where 
 a person, by being employed or concerned in the affairs 
 of another, has acquired a knowledge of his property, 
 and he makes use of that confidence or that influence or 
 that knowledge to obtain an advantage to himself at the 
 expense of the party confiding in him or under his in- 
 fluence or in whose affairs he is concerned, he will not be 
 permitted to retain any such advantage, however unim- 
 peachable the transaction would otherwise have been (/). 
 Thus, 
 1. Parents, 1. Coutracts and conveyances whereby benefits are 
 
 and others in 
 
 t^m^or^' secured by children to their parents, or to persons who 
 relations. stand in loco parentum, or by young persons to their 
 relations who had an influence over them, if not entered 
 into with scrupulous good faith, and reasonable under the 
 circumstances, will be set aside, unless third persons have 
 acquired an interest under them (k). And when a child, 
 recently after attaining majority, makes over property to 
 
 {j) Sharp V. Leach, 31 Beav. 491 ; Wright t. Vanderplank, 2 K. & J. 
 
 Brown v. Kennedy, 33 Beav. 133. 1 ; 8 D. M. & G. 133; Dimsdale 
 
 See also Modes v. Bate, 4 Gif. v. Dimsdale, 3 Drewry, 556, 575, 
 
 670 ; L. E. 1 Ch. Ap. 252 ; Tate v. 577 ; Baker v. Bradley, 7 D. M. & 
 
 Williamson, L. E. 1 Eq. 528 ; 2 G. 597, 620 ; Potts v. Surr, 34 Beav. 
 
 Ch. Ap. 55. 542 ; Berdoe v. Daivson, 34 Beav. 
 
 (/L-) Story's Eq. Juv. § 309; Hogh- 603; Sercombe v. Sanders, 34 Beav. 
 
 ion V. Hoghton, 15 Beav. 278; 382; ChamhersY. Crabhe, Zi'QQd.w. 
 
 Espley V. Lake, 10 Hare, 260; 457.
 
 THE RELATION BETWEEN THE PARTIES. 831 
 
 the father, without consideration, or for an inadequate ^'"/tiz, 
 
 consideration. Equity will require the father to be able to 
 
 show that the child was really a free agent, and had ade- 
 quate and independent advice (/). And if an estate held 
 in trust for a father for life, the remainder to his son in 
 fee, is sold by the father and son immediately on the son 
 coming of age, and the whole purchase money is paid to 
 the father, there, if the assistance of the Court is required 
 by the pm-chaser to complete the transaction, its straight- 
 forwardness must be proved (m). 
 
 2. During the existence of guardianship, the relative 2. Guard- 
 situation of the parties accasions a general inability to deal 
 
 with each other. And courts of equity will not permit 
 transactions between guardians and wards to stand, even 
 when they have occurred after the minority has ceased, if 
 the intermediate period is short ; especially if all the 
 duties attached to the office have not ceased, or if the 
 estate still remains in some sort under the control of the 
 guardian ; unless the circumstances demonstrate the fullest 
 deliberation on the part of the ward, and the most absolute 
 good faith on the part of the guardian (n). But when the 
 guardianship has entirely ceased, and a full and fair settle- 
 ment of all transactions growing out of it has been made, 
 and a sufficient time has intervened to allow the ward to 
 feel completely independent of the guardian ; there is then 
 no objection even to a bounty being conferred upon the 
 latter (0). 
 
 3. The same principles are applied to persons standing 3. Quasi- 
 
 . . . , , . guardians or 
 
 m the relation of quasi-guardians or confidential advisers advisers. 
 or ministers of religion, and to every case where influence 
 
 (Z) Savery v. King, 5 H. L. Cas. 19. 
 
 627, 655 ; Bury v. Oppenheim, 26 (n) Story's Eq. Jur. § 317—320; 
 
 Beav. 594 ; Davies \. Bavies, 4 Gif. Wright v. Vanderplanh, 2 K. & J. 1. 
 
 417. (0) Story's Eq. Jur. § 320 ; Brown 
 
 («i) Hannah v. Hodgson, 30 Beav. v. Kennedy, 33 Beav. 133.
 
 832 DEEDS INVALID ON ACCOUNT OF 
 
 pt. in.T.i2, is acquired and abused, where confidence is reposed and 
 
 Ch. 6, 8. 2. -■■ ^ 
 
 betrayed (p). 
 
 i. soUcitors. 4. A solicitor is not incapable of contracting with his 
 client; but, as the relation must give rise to great con- 
 fidence in the solicitor, or to very strong influence over 
 the client, the relation must be dissolved before the con- 
 tract, or the whole onus of proving the fairness and pro- 
 priety of the transaction will be thrown on the solicitor, or 
 he must show that the client had sufficient advice and 
 assistance to relieve him from the pressure arising from 
 the relation of solicitor and client, and that he has taken no 
 advantage of his professional position, but that he has done 
 as much to protect the client's interest as he would have 
 done in the case of the client dealing with a stranger (q). 
 And a solicitor who is an agent for a sale cannot become 
 the purchaser w^ithout full explanation to the parties in- 
 terested of all the circumstances of the sale and of the 
 value of the property ; because his duty and his interest 
 are in conflict (r). And if a solicitor can show that he is 
 entitled to purchase, yet if, instead of openly purchasing, 
 he purchases in the name of a trustee or agent, without 
 disclosing the fact, no such purchase can stand (s). And 
 in the case of a solicitor taking a security or a purchase 
 from his client, it is incumbent on the solicitor to prove 
 the advance of the money to the client by some other 
 evidence than the deed of security or purchase (t). 
 
 (p) Id. § 319 ; Nottidgey. Prince, Ccnvdri/ v. 2)a)/, 1 Gif. 316; Gresley 
 
 2 Gif. 246 ; Smith v. Kay, 7 H. L. v. Mousley, 1 Gif. 450 ; 4 D. & J. 
 
 Cas. 751, 771, 778 — 9; Brown v. 78; Pearson v. Benson, 28 Beav. 
 
 Kennedy, 33 Beav. 33 ; Graham v. 598 ; Oihhs v. Daniel, 4 Gif. 1. 
 
 Johnson, L. K. 8 Eq. 36. (r) In re Bloyes' Trust, 1 Mac. & 
 
 (q) See Sugd. Concise View, 548; G. 494, 497. 
 
 Story's Eq. Jur. § 310—313; IIol- (s) Lewis y. Hillman, 3 H. L. Cas. 
 
 man v. Loynes, 4 J). M. & G. 270 ; 630. See remarks at p. 834, on 
 
 Tomson v. Judge, 3 Drewry, 306 ; Agents. 
 
 Savery v. King, 5 H. L. Cas. 627, (t) Gresley v. Mousky, 3 D. F. 
 
 655—6 ; Waters v. Tliorn, 22 Beav. & J. 433, 444. 
 547 ; Spencer v. Topham, lb. 673 ;
 
 THE RELATION BETWEEN THE PARTIES. 833 
 
 As a general rule, a solicitor shall not accept a dft, or, pt. in.T.i2, 
 
 ° -^ ° Ch. 6, s. 2. 
 
 in any way whatever, in respect of the subject of any 
 transaction between him and his client, make a gain to 
 himself at the expense of his client, beyond the amount of 
 the just and fair professional remuneration to which he is 
 entitled (u). On the above principle, an agreement on 
 the part of a client to allow a solicitor a commission of so 
 much per cent, on a fund in Court, as a remuneration for 
 recovering the fund or employing another solicitor to 
 recover it, is void, as contrary to the policy of the law (x). 
 And an agreement by a client to allow his solicitor in- 
 terest on his bill of costs, cannot be maintained — at all 
 events, not unless the solicitor informed the client that 
 the law allowed no such charge, or the client acquiesced, 
 after the termination of the relation, and after proper advice 
 upon the subject (3/). But a deed executed by a client in 
 favour of his solicitor, if voidable, may be confirmed by the 
 will of the client (z). 
 
 An agreement between a solicitor and client, that a gross 
 sum shall be paid for costs for business already done, is 
 valid. But an agreement to pay a gross sum for business 
 hereafter to be done is void. And if a solicitor takes a 
 gross sum for his services, without an account, he should 
 preserve evidence of the fairness of the agreement, and 
 that the client had good advice, or had full opportunity 
 and capacity to judge for himself {a). 
 
 (m) 4 Cruise T. 32, c. 26, § 35 ; O'Brien v. Lewis, 4 Gif. 221. 
 
 Story's Eq. Jur. § 312; Moss v. (a;) Stranrje y. Brennon, 15 Sim. 
 
 Bainhrifjfje, 18 Beav. 478 ; 6 D. M. 346. 
 
 & G. 292 ; Tomson v. Judge, 3 {y) Lyddon v. Moss, 4 D. & J. 
 
 Drewry, 306 ; Re IIolmes''s Estate, 3 104. 
 
 Gif. 337 ; Nanney v. Williams, 22 (2) Stump v. Gaby, 2 D. M. & G. 
 
 Beav. 452 ; Walker v. Smith, 29 631. But see Waters v. Thorn, 22 
 
 Beav. 394 ; Bank of London y. Tyr- Beav. 547, 559. 
 
 veil, 2mA Tyrrell y. Bank of London, (a) Re Netvman, 30 Beav. 196; 
 
 27 Beav. 273 ; 10 H. L. Cas. 26 ; Morgan v. Eirjgins, 1 Gif. 277.
 
 834 
 
 DEEDS INVALID ON ACCOUNT OF 
 
 Pt.III.T.12, 
 
 Ch. 6, 8. 2. 
 
 5. Doctors. 
 
 6. Agents. 
 
 7. Trustees 
 or other 
 persons who 
 from their 
 office or 
 employ meut 
 have ac- 
 quired a 
 kuowledge 
 of the 
 property. 
 
 5. Similar rules apply to the case of a medical adviser 
 and liis patient (h). 
 
 6. An agent will not be permitted to reap any advan- 
 tage by becoming secret vendor or purchaser of ]Droperty 
 which he is authorised to buy or sell for his principal (c). 
 So that if an agent sells his own property to his principal 
 as the property of another, without disclosing the fact, or 
 if an agent purchases the goods of his principal in another 
 name, however fair the transaction may be, the principal 
 may either repudiate it, or may claim any profit made by 
 the agent ; because an agent will not be allowed to place 
 himself in a situation which under ordinary circumstances 
 would tempt a man to do that which is not the best for his 
 principal (d). And if an agent employed to purchase for 
 another purchases for himself, he will be considered as 
 the trustee of his employer, at the option of the latter (e). 
 And in all transactions directly and openly entered into 
 between principal and agent, the utmost good faith is 
 required ; so that the agent must not conceal any facts 
 within his knowledge which might influence the judgment 
 of his principal as to price or value (/), 
 
 7. A trustee is not allowed to partake of the bounty of 
 the party for wdiom he acts, except under circumstances 
 which would make the same valid if it were a case of 
 guardianship (g). 
 
 Trustees, mortgagees, and executors, with powers of sale, 
 cannot buy the trust estate from themselves, or in other 
 words they cannot sell it to themselves ; for although they 
 may vest the estate by conveyance in themselves as piu'- 
 chasers, or in a nominal purchaser as a trustee for them, 
 
 (b) Story's Eq. Jur. § 314. 
 
 (c) Story's Eq. Jur. § 315. 
 
 (d) Bentleij v. Craven, 18 Beav. 
 76. See also Bank of London v. 
 Tyrrell, 27 Beav. 273 ; Tyrrell v. 
 Bank of London, 10 H. L. Cas. 26. 
 
 (e) Story's Eq. Jur. § 316, 1211 
 a ; Sugd. Concise View, 545. 
 
 (/) Story's Eq. Jur. § 315, 316 a ; 
 Dcdly V. Wonham, 33 Beav. 154. 
 
 ig) Story's Eq. Jur. § 321—2.
 
 THE RELATION BETWEEN THE PAETIES. 835 
 
 yet Equity would not allow sucli a purchase to stand, unless ^^ Jii. T.12, 
 
 it should prove Ijeneficial to the cestuis que trust {h). And 
 
 if a purchase is made of a trust estate, from the cestui que 
 trust, by a trustee (not being only a formal or nominal 
 trustee, such as a trustee to support contingent remainders), 
 although the purchase be at a public auction, unless there 
 has been no fraud, concealment, or advantage on the part 
 of the trustee, and no want of protection and security on 
 the part of the cestui que trust, the cestui que trust may 
 require a reconveyance or a resale ; and, if the resale pro- 
 duces more than the trustee gave, the cestui que trust may 
 repudiate the first sale, and adopt the resale ; if less, he 
 may affirm the first sale (i'). And a trustee for a person 
 not sui juris can only buy the estate under the authority 
 of the Court (j). 
 
 On similar principles, agents, commissioners of bank- 
 rupts, assignees, and solicitors of bankrupts' and insolvents' 
 estates, or their partners in business, auctioneers, creditors 
 who have been consulted as to the mode of sale, counsel, or 
 any persons who by being employed or concerned in the 
 affairs of another have acquired a knowledge of his property, 
 even though the bargain be perfectly fair, are incapable of 
 purchasing such property, except under similar restric- 
 tions (Ji). And where a trustee or agent agrees to accept a 
 benefit from an intended purchaser, the purchase cannot be 
 maintained (I). 
 
 "Where a person cannot purchase the estate himself, lie 
 cannot buy it as agent for another. So, if a person is dis- 
 
 (h) Sugd. Concise View, 48, 547 ; Lord, 34 Beav. 220. 
 
 and dictum of M. R. in Benton v. (j) Sugd. Concise View, 548. 
 
 Bonner, 23 Beav. 290. (k) See Story's Eq. Jur. § 322 ; 2 
 
 (0 Sugd. V. & P. 14th ed. 69, Spence's Eq. Jur. 943—4 ; Sugd. 
 
 691 — 4 ; Lewin on Trusts, 4th ed. Concise View, 543 — 4 ; Pooley v. 
 
 335—342. St. § 322 ; 2 Sp. 943— Quilter, 2 D. & J. 327. 
 
 4; Smedley v. Varley, 23 Beav. 358 ; (I) Sugd. Concise View, 545. 
 Denton v. Bonner, Id. 285 ; Luff v. 
 
 VOL. II. s,
 
 836 
 
 DEEDS INVALID ON ACCOUNT OF 
 
 ^ci/^6'"s'2^' '"'■^Icd from purchasing, Lis solicitor or agent in tlic trans- 
 action is equally disabled, although for his own benefit (m). 
 The circumstance, however, that two parties stand to each 
 other in the relation of trustee and cestui que trust, does 
 not affect any dealing between them unconnected with the 
 subject of the trust (n). 
 
 Purchases by A Sale bv a mortgagor to a mortgagee does not stand 
 
 mortgagees 
 
 and upon the principle of a sale by a cestui que trust to his 
 
 trustee, but on the same principle as a sale between parties 
 having no connection with each other; for otherwise it 
 might be impossil^le for the mortgagor ever to get rid of 
 his debt by releasing the equity of redemption (o). But 
 if a mortgagee takes a conveyance with a power of sale, 
 he is a trustee for sale, and as such disabled from pur- 
 cliasing (j9). 
 
 creditors. A creditor who has taken out execution, may buy the 
 
 estate sold under the execution (q). 
 
 Purciiasesor It may licrc be remarked, that where a power is given 
 
 exchanges by 
 
 tenant tor ] ,y a, settlement to trustees to sell or exchange the estate 
 
 life. -^ " 
 
 with the consent of the tenant for life, or to the tenant for 
 life to sell or exchange with the consent of the trustees, the 
 estate may be safely purchased by the tenant for life him- 
 self, or taken in exchange for land of his own (r). 
 
 (wi) Sugd. Concise View, 546. 545. 
 
 (n) Knight \. Major ibanlcs, 2 Mac. (|)) Siigd. Concise View, 545—6. 
 
 & G. 10. (g) Sugd. Concise View, 545. 
 
 (o) KnUjlit V. MujoTibanl-s, 2 (r) 2 Sugd. Pow. 492; Sugd. 
 
 Mac. & G. 10 ; Sugd. Concise View, Concise View, 546, 49.
 
 FEAUD ON THIED PERSONS. 837 
 
 Section III. 
 
 Of Deeds which arc Invalid on account of Actual or 
 Constructive Fraud on Third Persons. 
 
 All instrument may be entirely set aside on the otoihicI pt. 111.T.12, 
 
 •^ '^ , '=' Ch. 6, s. 3. 
 
 of fraud {s), wliether actual or constructive ; so that con- 
 
 tracts which operate as a virtual fraud upon third persons 
 are invalid. Thus, 
 
 I. If clandestine marriage contracts are designed to i- ciandes- 
 
 " ° tiue marriage 
 
 impose on parents or persons standing in loco parentis or contracts. 
 in some other peculiar relation to the parties, so as to dis- 
 appoint their bounty, or to defeat their intentions in the 
 disposition of their property, such contracts ^Yill be set 
 aside, or the equities will be held to be the same as if they 
 had not been entered into {t). 
 
 II. So, relief will be granted to the injured parties, 11. Frauds 
 where persons, after doing acts required to lie done on a 
 treaty of marriage, render those acts virtually unavailing 
 by entering into other secret agreements, or derogate from 
 those acts, or otherwise commit a fraud upon a marriage {u). 
 As where a parent declines to consent to a marriage on 
 account of the intended husband being in debt, and the 
 brother of the latter gives a bond for the debts to procure 
 such consent, and the intended husband then gives a secret 
 counter-bond to his brother to indemnify him against the 
 first (;/;). So where a brother, on the marriage of his sister, 
 let her have a sum of money privately, that her fortune 
 might appear to be as much as was insisted on, and the 
 sister gave a bond to the brother to secure the repayment 
 thereof, the bond was set aside (y). So where, upon a 
 
 ou raamascs 
 
 (s) See Story's Eq. Jur. § 161. {x) Story's Eq. Jur. § 269. 
 
 (0 Sec Story's Eq. Jur. § 275. (.y) Story's Eq. Jur. § 270. 
 
 in) Story's Eq. Jur. § 268—272.
 
 838 DEEDS INVALID ON ACCOUNT OF 
 
 Pf-n^ T.12, treaty of marriage, a creditor of the intended Imsband con- 
 
 cealed his own debt, and misrepresented to the wife's father 
 
 the amount of the husband's debts, the transaction was 
 treated as a fraud upon the marriage, and the creditor was 
 prevented from enforcing his debt (z). And where a father, 
 on the marriage of his daughter, enters into a covenant, 
 that, on his death, he will leave her a full and equal share 
 of all his personal estate, he cannot afterwards transfer a 
 portion of his personal property to another child, retaining 
 the annual income thereof for his life («). 
 
 III. Belief will also be granted against acts secretly 
 done by a woman in contravention of the marital rights, 
 or in disappointment of the just expectations of her in- 
 tended husband. As where a woman, in contemplation of 
 marriage, and without the privity of her intended husband, 
 makes a settlement to her separate use, or a conveyance 
 in favour of persons for whom she is under no moral 
 obligation to provide. But a reasonable provision for her 
 children by a former marriage, under circumstances of 
 good faith, is free from objection (&). 
 IV Deeds of IV. By the Stat. 3 Hen. 7, c. 4, all deeds of gifts of 
 
 gift of goods -^ ' " 
 
 i^e™g Jr goods made in trust to the use of the donor, shall be 
 
 the donor. ^^^^^ . i^gj^r^^^^gg otherwise persons might be tempted to 
 
 commit treason or felony without danger of forfeiture, 
 
 and the creditors might also be defrauded of their 
 
 rights (c). 
 
 V. voiuu- V. By the stat. 13 Eliz. c. 5, s. 1 (made perpetual by 
 
 tary deeds '^ > \ L L J 
 
 stet Ts'mz ^^^^ ^^^^- ^^ ■^^^^- ^- ^)' "^^^^ ^^^^ avoiding of feigned, 
 
 ^•^- covinous, and fraudulent feoffments," &c., "contrived of 
 
 malice, fraud, covin, collusion, or guile," to " delay, hinder. 
 
 {z) story's Eq. Jiir. § 271. 2nd cd. 32.5, ct seq. ; Pridcaux v. 
 
 (a) Story's Eq. Jur. § 382. Lonsdale, 4 Gif. 159 ; 1 D. 'J. & 
 
 (6) Story's Eq. Jur, § 273 ; 2 Sm. 433 ; Bournes \. Jennings, 32 
 
 Spence's Eq. Jur. 505; Countess of Bcav. 290. 
 
 Strcdhmorev. Boives,! Lead.Cas. Eq. (c) 2 Bl. Com. 441.
 
 FRAUD OX THIRD PERSOXS. 839 
 
 or defraud creditors or others," it is enacted, that " all ^ck^g^'g'g^' 
 and every feoffment, gift, grant, alienation, bargain and 
 conveyance of lands, tenements, hereditaments, goods and 
 cliattels, or of any of them, or of any lease, rent, common, 
 or other profit or charge out of the same lands, tenements, 
 hereditaments, goods and chattels, or any of them, by 
 ■writing or otherwise, and all and every bond, suit, judg- 
 ment, . and execution, at any time had or made sithence 
 the beginning of the Queen's Majesty's reign that now is, 
 or at any time hereafter to be had or made, to or for any 
 intent or purpose before declared and expressed, shall be 
 from hencefortli deemed and taken (only as against that 
 person or persons, his or their heirs, successors, executors, 
 athninistrators and assigns, and every of them, whose 
 actions, suits, debts, accounts, damages, penalties, for- 
 feitures, heriots, mortuaries and reliefs, by such guileful, 
 covinous, or fraudulent devices and practices, as is afore- 
 said, are, shall, or might be in any ways disturbed, hin- 
 dered, delayed, or defrauded), to be clearly and utterly 
 void, frustrate, and of none effect ; any pretence, colour, 
 feigned consideration, expressing of use, or any other 
 matter or thing to the contrary notwithstanding." But, 
 by s. 5, it is provided " that this Act, or anything therein 
 contained, shall not extend to any estate or interest in 
 lands, tenements, hereditaments, leases, rents, commons, 
 profits, goods or chattels, had, made, conveyed or assured, 
 or hereafter to be had, made, conveyed or assured, which 
 estate or interest is or shall be upon good consideration 
 and bona fide lawfully conveyed or assured to any person 
 or persons, or bodies politic or corporate, not having at 
 the time of such conveyance or assurance to them made, 
 any manner of notice or knowledge of such covin, fraud, 
 or collusion as is aforesaid." 
 
 In consequence of this statute, deeds, though good as 
 between the parties and in other respects, are void as
 
 840 DEEDS INVALID ON ACCOUNT OF 
 
 Ft. iir.T.12, against creditors, when made with an actual intent to 
 
 Cn. 6, s. 3. * ' 
 
 defrand them {(T), even though such deeds be for valual)le 
 
 consideration (c), except as regards a bona fide purchaser 
 from tlie debtor or from an assignee of the debtor without 
 notice of the circumstances amounting to such actual 
 fraud. And if a person makes a conveyance or assign- 
 ment of any real or personal property which is liable to his 
 debts (unless it is to a purchaser for valuable consideration 
 who lias no notice of a fraudulent intent), and at the time, 
 or immediately afterwards, he is indebted to such an 
 amount that he has not ample means besides that property 
 available to pay the debts, such conveyance or assignment 
 is void as against those who were creditors at the time of 
 and subsequent to the deed, to the extent to which it may 
 be necessary to deal with the property for their satisfac- 
 tion (/). A deed, however, which is apparently voluntary, 
 may be shown by extrinsic evidence to have been made 
 for valuable consideration, and may be supported as such 
 against creditors {g). And a deed is not necessarily void 
 under this Act, merely because designed to prefer or defeat 
 a particular creditor (/t). 
 
 (rf) 4 Cruise T. 32, c. 27, § 4; 3 thmjsen, 11 Hare, 126 ; Dcning v. 
 
 Drewry, 717; Bessoj v. Windham, Ware, 22 Beav. 184; Holmes v. 
 
 6 Ad. & El. (N.S.) 166. Penney, 3 K. & J. 90; Turnley v. 
 
 (e) 4 Cruise T. 32, c. 27, § 4 ; Hooper, 3 Sm. & G. 349 ; Dariille 
 
 Stronrj T. Strong, 18 Beav. 408 ; v. Terry, 6 Hurl. & Norm. 807 ; 
 
 BottY. Smith, 21 Beav. 511 ; Wells v. Thompson v. WeUter, 4 Drew. 628 ; 
 
 Gardner, L. B. 7 Eq. 317. 4 D. & J. 600 ; Acraman v. Corlett, 
 
 (/) See Story's Eq. Jur. § 352— 1 Johns. & Hem, 410 ; Barling v, 
 
 374, 381; 2 Spence's Eq. Jur. 887; Bishopp, 29 Beav. 417 ; Stohoe v. 
 
 4 Cruise T. 32, e. 27, § 15—17 ; Coivan, 29 Beav. 637 ; Spirett v. 
 
 , Coote Mortg. 3rd ed. 238 ; 2 Bl. Willows, 3 D. J. & S. 293 ; Smithy. 
 
 Com. 441; 1 Pres. Shep. T. 66; CherriU, L. E. 4 Eq. Cas. 390; 
 
 Add. Cont. 6th ed. 149 — 156; liees River Silver Mining Com- 
 
 Twyne's case, 3 Co. 80 ; Chit. Con. pany v. Atwell, L. K. 7 Eq. 347. 
 
 8th cd. 380 et scq. ; Skarfv. Soulby, (g) Pott v. Todhmiter, 2 Coll. 76. 
 
 1 Mac. & G. 364 ; Be Magemley's (h) Ad. Cont. 0th ed. 151 ; Chit. 
 
 Trmt, 5 Do G. & S. 1 ; Botty. Smith, Cont. 8th ed. 383 ; Alton v. Harri- 
 
 21 Beav. 511 ; Barton v. Vanhey- son, L. R. 4 Ch. Ap. 622.
 
 FEAUl) ON THIRD TERSONS. 841 
 
 As regards the ridits of creditors with resi)ect to con- pt. 111.T.12, 
 
 00 L Ch. 6,8.3. 
 
 veyauces and assignments to their prejudice, there may be 
 three distinct questions : (1). AVhether they are acts of 
 bankruptcy ? (2). Whether they are fraudulent preferences, 
 which, when not prohibited by statute, were held to be 
 void as against the assignees in bankruptcy, as contrary 
 to the policy of the bankrupt law ? (3). Whether they are 
 void under the statute of 13 Eliz. c. 5, and the construc- 
 tion put on it by the courts of law and equity? 
 
 Now, with reference to the third of these questions, Judge 
 Story, in his " Commentaries on Equity Jurisprudeuce," 
 § 352, remarks, that this Act " has always received a favour- 
 able and liberal construction in all the courts, both of law and 
 equity." And the only true principle w^ould seem to be, that 
 where a conveyance or assignment is made for no considera- 
 tion, or for none luit an antecedent debt or a meritorious 
 consideration, or even for a valuable consideration, but with 
 a knowledge on the part of the purchaser of an intent to 
 delay, hinder, or defraud creditors, and it withdraws from 
 tlie debtor the means of paying the general body of his 
 creditors, it is fraudulent and void, as against them, by 
 virtue of the stat. 13 Eliz. c. 5, whether made under pressure 
 or not, and whether made in contemplation of bankruptcy 
 or not. To hold otlier\tise, would open a door to innumer- 
 able frauds on creditors, especially in the case of assignments 
 of all a debtor's property, and more particularly when 
 made to a relative or friend. A debtor might incur a 
 number of debts, to any amount, and yet defeat all but a 
 particular creditor, perhaps a relative or friend, with wdiom 
 he miglit have an understanding that he slioidd receive 
 part back, or that the property should be held in trust for 
 him. 
 
 Where a debtor gives a bill of sale or makes some other 
 disposition of all his property, it is very different from 
 the case where a creditor gets a judgment in an adverse
 
 842 DEEDS INVALID ON ACCOUNT OF 
 
 PT.iii.T.12, suit, liavinf;- tlio same effect of takintf all tlie debtor's 
 Ch. g, s. 8. "^ '=' 
 
 property. In the former case, tlie bill of sale, or other 
 
 disposition, if not the voluntary act of the debtor, is an act 
 in which the debtor concurs, though it may be under 
 pressure : it is his own act. But in the latter case, the act 
 is the act of the creditor, Avhich the debtor cannot avoid. 
 
 To take a case out of the statute, it must be both " on 
 good consideration" and "boni, fide." It has indeed been 
 held that an antecedent debt or a meritorious consideration 
 may be a " good consideration." And a preference of a par- 
 ticular creditor may, under some circumstances, be only 
 right ; while, on the other hand, the defeating a particular 
 creditor may be for the benefit of the general body or the 
 majority of the creditors. But it cannot be justly regarded 
 as a bona fide transaction, where a debtor makes over all 
 his property to a particular creditor, and thereby disables 
 himself from paying any of the others. Suppose a man 
 having £100,000, and owing that amount to one creditor, 
 and £900,000 to others : could it be anything else but the 
 grossest dishonesty and fraud upon them, if he were to 
 make over the whole £100,000 to the creditor to whom he 
 owed that amount ? and this would be especially bad, if the 
 property consisted of chattels, and if, though he assigned 
 them to the first creditor, he remained in possession of the 
 chattels, and thereby may have led the subsequent creditors 
 to suppose that he was the owner of them, in consequence 
 of which they may have been induced to trust him. True 
 it is, that they might have searched the register. But the 
 fact of registration does not validate a transaction which, of 
 itself, is invalid, or fraudulent, whether actually or con- 
 structively. It may be said of registration, that the deed 
 would not be valid as against creditors without it ; but the 
 deed may not be valid even with it. 
 
 In order to be obnoxious to the statute, it is not neces- 
 sary that there should be a wilful, otherwise called an
 
 Fr^AUD ON THIRD PERSONS. 843 
 
 actual, fraud. It is sufficient if there is a virtual or coii- fr. 111.T.12, 
 
 Ch. 6, s. 8. 
 
 structivc fraud. The question is this — Is it within the 
 
 mischief intended to l)e guarded against by tlie Act ? 
 Does it necessarily operate to delay, hinder, or defeat 
 creditors, in a manner which the law deems to he contrary 
 to good faith ? 
 
 It is for the plaintiff to make out his case; and, in inter- 
 pleader cases, the claimant, under a hill of sale or other 
 disposition, is in the situation of a plaintiff. He seeks to 
 deprive the judgment creditor of the possession which he 
 has acquired under the judgment. On the claimant, there- 
 fore, is the onus of proving his title, as claimant and virtual 
 plaintiff, to property not in his possession, but in the 
 possession of the officer of the Court, as the agent of the 
 judgment creditor. It is for the claimant to prove that the 
 bill of sale or other disposition is both on valuable or good 
 consideration, and bona fide, so far as the debtor is con- 
 cerned, or both on valuable consideration (i. c, for money or 
 money's worth, advanced at the time), and bona fide without 
 notice of circumstances amounting to actual or constructive 
 fraud, so far as the claimant is concerned. 
 
 It has been held that a creditor under a voluntary post 
 obit bond is as much entitled to the benefit of the statute 
 as any other creditor (i). 
 
 If there is a positive agreement, that after a settlement, 
 a sale, or a mortgage of chattels, the settlor, vendor, or 
 mortgagor shall retain the apparent ownership of them ; 
 this is a fraud on creditors, because it enables him to gain 
 a false credit. But this doctrine does not apply where 
 the retaining the possession is consistent with the nature 
 of the transaction, and does not appear to have been 
 fraudulent, or where the transfer is so notorious that the 
 continuance of possession does not create any false credit, 
 
 (0 Adamcs v. Halktt, L. E. 6 Eq. Cas. 408.
 
 844 DEEDS INVALID ON ACCOUNT OF 
 
 Tr.iu. T.12, or where the settlor, vendor, or mortu'«fi;or is not indebted 
 
 Cn. 6, 3. 3. _ _ ' ' ° ^^ 
 
 at the time (j). 
 
 If a trader in insolvent circumstances agrees to sell his 
 business and stock in trade to a person who has no know- 
 ledge of the state of the trader's affairs, in consideration of 
 (inter alia) an annuity to his wife, although the sale is 
 valid, yet the transaction, so far as it is a settlement of the 
 anmiity on the wife, is within the stat. 13 Eliz. c. 5, and 
 may be set aside by a creditor, as regards the annuity, 
 without impeaching it in any other respect (JS). 
 
 If a father assigns to his son his dwelling house and 
 personal estate, in consideration of natural love and affec- 
 tion, and by a bond, bearing even date with the assign- 
 ment, but not noticed therein, the son binds himself to 
 maintain his father's wife and children, the assignment is 
 not void against creditors under the stat. 18 Eliz. c. 5 (l). 
 
 As a general rule, a post-nuptial settlement by a hus- 
 band deeply indebted at the time, is void as against cre- 
 ditors, even though made in pursuance of a pre-iiuptial 
 parol contract ; for such a contract is inoperative in con- 
 sequence of the Statute of Frauds, 29 Car. 2, c. 3, s. 4 (tn). 
 But if a person agrees to pay all the debts of another, on 
 condition that the latter shall make a post-nuptial settle- 
 ment of his property, so as to be applied for the mainte- 
 nance of the settlor, his wife, and children, "or any of 
 them," at the absolute discretion of the trustees ; and such 
 a settlement is accordingly executed ; it is good against 
 subsequent creditors, and even against a person who was a 
 creditor at the time it was executed, if the person who 
 agrees to pay the settlor's debts was not aware of tlie exist- 
 
 (j) Coote Mortg. 3rcl ed. 239; (0 Gale v. Williamson, 8 M. & 
 
 Add. Cont. 5tli ed. 153— 7 j Gale v. W. 405. 
 
 Burnell, 7 Ad. & El. (N.S.) 850. (m) Warden v. Jones, 23 Beav. 
 
 {h) French v. French, 6 D. M. & 487 ; 2 D. & J. 76 ; Buhner v. 
 
 G. 95. See Wakefield v. Gibbon, 1 Hunter, L. E. 8 Eq. 46 ; and .sec 
 
 G' . 401. supra, p. 622.
 
 FEAUD ON THIRD PERSONS. 845 
 
 ence of the debt duo to that creditor, hut was assured that pt.iii.t.i2, 
 
 ' On. 6, s. 3. 
 
 the debts paid by him constituted the only debts of the 
 
 settlor. And in such case, the discretion of the trustees 
 being absolute, the Court cannot apportion the income of 
 the settlor between his wdfe and children, so as to make 
 the settlor's part of it available for his creditors (oi). 
 
 If a voluntary settlement contains a general power to 
 the settlor to dispose of or mortgage the estate, it will be 
 deemed fraudulent as against creditors by statute and 
 judgment ; but a power to revoke for a particular purpose 
 may not make such a deed void (o). 
 
 Unless the marriage itself was a mere fraudulent con- 
 trivance for defeating creditors, a settlement of the hus- 
 band's property made previously to and in contemplation 
 of the marriage, will be supported, even though the wife 
 contracted the marriage and obtained the settlement with 
 a full knowledge that the husband was in embarrassed cir- 
 cumstances (j)). 
 
 VI. By the stat. 27 Eliz. c. 4, s. 1 (made perpetual by vi. voiun- 
 the stat. 30 Eliz. c. 18), it is enacted, "That all and every voidui.der 
 
 ^ ' -^ the stat. 27 
 
 conveyance, grant, charge, lease, estate, incumbrance and ^iiz^ c 4, 
 limitation of use or uses, of, in, or out of any lands, tene- 
 ments, or other hereditaments whatsoever, had or made 
 any time heretofore sithence the beginning of the Queen's 
 ^lajesty's reign that now ±^, or at any time hereafter to be 
 had or made, for the intent and of x^in^pose to defraud and 
 deceive such person or persons, bodies politic or corporate, 
 as have purchased or shall afterwards purchase in fee 
 simple, fee tail, for life, lives, or years, the same lands, 
 tenements, and hereditaments, or any part or parcel 
 thereof so formerly conveyed, granted, leased, charged, 
 incumbered, or limited in use, or to defraud and deceive 
 
 («) Holmes v. Penney, 3 K. & J. (j)) Colomline v. Penhall, 1 Sm. 
 
 90. & G. 228 ; Fraser t. Thompson, 1 
 
 (<0 2 Sugd. Pow. 234. Gif. 49, G2.
 
 846 DEEDS INVALID ON ACCOUNT OF 
 
 pt. iii.t.12, such as have or shall purchase any rent, profit or commo- 
 
 dity in or out of the same or any part thereof, shall he 
 
 deemed and taken (only as against that person and per- 
 sons, bodies politic and corporate, his and their heirs, suc- 
 cesssors, executors, administrators, and assigns, and against 
 all and every other person and persons lawfully having or 
 claiming by, from or under them or any of them, which 
 have purchased or shall hereafter so purchase for money or 
 other good consideration, the same lands, tenements, or 
 hereditaments, or any part or parcel thereof, or any rent, 
 profit, or commodity in or out of the same), to be utterly 
 void, frustrate, and of none effect ; any pretence, colour, 
 feigned consideration, or expressing of any use or uses to 
 the contrary notwithstanding." But by s. 4, it is jDrovided, 
 "That this Act or anything therein contained shall not 
 extend or be construed to impeach, defeat, make void, or 
 frustrate, any conveyance, assignment of lease, assurance, 
 grant, charge, lease, estate, interest, or limitation of use or 
 uses, of, in, to, or out of any lands, tenements, or heredita- 
 ments heretofore at any time had or made, or hereafter to 
 be had or made, upon or for good consideration and bona 
 fide, to any person or persons, bodies politic or corporate ; 
 anything before mentioned to the contrary hereof notwith- 
 standing." 
 
 The object of this statute being to give full protection 
 to subsequent purchasers against prior voluntary convey- 
 ances, it has been decided, that in consequence of this 
 statute, a prior conveyance is void as against a subsequent 
 purchaser or mortgagee, from or of the voluntary grantor, 
 whether with or without notice, (but not from or of his 
 heir or devisee,) and even after a bill filed to enforce such 
 prior conveyance, if not actually on valuable consideration, 
 although it may be bona fide and on good consideration, 
 or although it may be expressed to be made for divers 
 valuable considerations (not naming them), or although
 
 FRAUD OX THIRD PERSONS, 847 
 
 iiiailo 1)V direction of the Court of Chancery ; on the ^l,-'^^^-^\-' 
 
 '' ' Ch. (3, s. 3. 
 
 ground that the statute in every such ■case infers fraud, ~ 
 
 and will not suffer the presumption to be rebutted. As 
 between the parties themselves, however, such convey- 
 ances are binding ; and as between two voluntary convey- 
 ances, if the first is fraudulent, the second will prevail ; 
 l)ut where each is bona fide, Equity will not interfere (q). 
 A conveyance in the form of a purchase deed for valuable 
 consideration, but, in fact, voluntary, will not be supported 
 against a prior voluntary conveyance by the same party, 
 even though the prior voluntary conveyance did not appear 
 to have been parted with or communicated to the volun- 
 tary grantee (r). And Avliere the price is inadequate in a 
 considerable degree, or where an apparent inadequacy of 
 price is coupled ^^dth other circumstances indicating a 
 fraudulent collusion between the purchaser and the vendor 
 to avoid a preceding conveyance, a purchaser under such 
 circumstances will not be entitled to the protection of the 
 statute (s). ISTor will Equity interfere in favour of a sub- 
 sec[uent purchaser, Avliere the voluntary grantee has con- 
 veyed to a bona fide purchaser for valuable consideration, 
 or a person has intermarried with the voluntary grantee on 
 the faith of the voluntary deed, before the bona fide pur- 
 chaser from the voluntary grantor acquired his title (/). 
 
 (q) Story's Eq. Jur. § 425, 426, equity against the purchase money 
 
 433 ; 2 Silence's Eq. Jur. 288, 638 ; payable to the vohmtary settlor. 
 
 4 Cruise T. 32, c. 27, § 9, 12, 21, 23, The propriety of this decision seems 
 
 26, 29, 44, 47, 49 ; Sugd. Concise questionable. 
 
 View, 565—6 ; Burton, § 224—5 ; (?•) Boberts v. Williams, 4 Hare, 
 
 Kelson y. Kelson, 10 Hare, 385 ; Doe 130. 
 
 d. Newman v. RusTiam, 17 Ad. & E. (s) 4 Cruise T. 32, e. 27, § 42 ; 2 
 
 724; Barton v. Vanhei/thuysen, 11 Sugd. Pow. 228. 
 
 Hare, 126 ; Lewis v. Rees, 3 K. & {t) For examples of the mode of 
 
 J. 132, 150 — 1 ; Lloyd v. Attwood, relief in cases of fraud, see Story's 
 
 3 D. & J. 614 ; Dahinrj v. }Miimper, Eq. Jur. § 437—439 ; Id. § 434 ; 
 
 26 Beav. 568. In this case it was Sugd. Concise View, 569 ; 1 Pres. 
 
 held that the volunteers had no Shep. T. 65.
 
 848 
 
 DEEDS INVALID ON ACCOUNT OF 
 
 Gifts to cha- 
 rity. 
 
 pt. iii.t.12, And Equity will not give its aid to a voluntary settlor to 
 enable liim to complete a contract for sale against a pur- 
 chaser; tliougii the Court will enforce it at the suit of 
 the purchaser, even with notice at the time of his pur- 
 chase («'). 
 
 There is this exception to the general rule, in the case 
 of a charity, that if a purchaser has notice of a gift to a 
 charitable use, or purchases without notice from a pur- 
 chaser with notice of such a gift, he takes subject to it ; 
 though, if he has no notice, and he has not purchased 
 from a purchaser with notice, he will have the same pro- 
 tection as he would have against an ordinary voluntary 
 conveyance (»). 
 
 A fair voluntary settlement in favour of a wife and 
 children is also an exception to the rule to this extent, 
 that almost any bon^ fide consideration, in addition to 
 the meritorious consideration of the provision itself, will 
 be sufficient for the purpose of supporting the settlement. 
 Therefore, if a person whose concurrence the parties deem 
 es.'^ential joins in a settlement, his concurrence will be 
 deemed a valuable consideration, although he did not 
 substantially part with anything (jj). And as to pre- 
 nuptial settlements, and post-nuptial settlements in pur- 
 suance of pre-nuptial articles or on receipt of an additional 
 portion, they are settlements for valuable consideration, 
 and of course good against subsequent purchasers {z), or 
 against prior voluntary grantees, as the case may be [a). 
 
 In general, the marriage consideration will not extend 
 to remainders to collateral relations, so as to support them 
 
 Where per- 
 sons claim- 
 ing under a 
 settlement 
 stand in the 
 position of 
 purchasers. 
 
 {u) Sugd. Concise View, 570 ; 2 
 Spence's Eq. Jur. 289 ; 4 Cruise T. 
 32, c. 27, § 29 ; 1 Prcs. Shop. T. 05. 
 
 {x) 2 Sp. 289 ; Tudor's Char. 
 Trusts, 2nd ed. 329—332. 
 
 (y) See 2 Spence's Eq. Jur. 288, 
 290 ; 4 Cruise T. 32, c. 27, § 23, 73 ; 
 
 Sugd. Concise View, 568 — 9 ; Butter- 
 field V. Heath, 15 Beav. 408 ; Atkin- 
 son V. Smith, 3 D. & J. 186. 
 
 (z) 2 Sugd. Pow. 229 ; Sugd. Con- 
 cise View, 568 ; 4 Cruise T. 32, 
 c. 27, § 55. 
 
 (a) 4 Cruise T. 32, c. 27, § 43, 57.
 
 FRAUD ON TIIIED PEESONS. 849 
 
 aavaiiist creditors, or a subsequent sale to a bona fide pur- i'^-ni.T.i2, 
 
 CI ' ■>- ^ Ch. 0, s. 3. 
 
 chaser (h). But if tlie remainders are, or may fairly be 
 assumed to have been, specifically contracted for and 
 brought witiiin the consideration, they will be good against 
 subsequent purchasers. And the same is the case where 
 they are interposed between two limitations to the different 
 classes of the issue of the marriage (c). And where a 
 settlement is made by a father or other lineal ancestor, in 
 consideration of the marriage of one of his sons or descend- 
 ants, and it contains remainders to the other sons or 
 descendants, such remainders will be good against creditors 
 and subsequent purchasers (f/). 
 
 A lessee, or a mortgag'ee, or any other person who for a other per- 
 
 ^ sous who 
 
 valuable consideration has any charge out of or upon the are pur- 
 
 '^ <-> -L chasers for 
 
 land, is a purchaser within the statute (c). But notwith- ™!,swira- 
 standing the stat. 1 & 2 Vict. c. 110, s. 13 (/), a judg- ^^^S^. 
 ment creditor is not a purchaser within the stat. 27 Eliz., so 
 as to be able to set aside a prior voluntary settlement {{/). 
 
 A conveyance for payment of debts generally, to which 
 no creditor is a party, and in which no particular debt is 
 expressed, is a fraudulent conveyance within the sta- 
 tute (h). 
 
 It is seldom advisable to buy from one who has made objeotioato 
 
 title from a 
 
 a prior conveyance ; because, in the first place, such prior person who 
 conveyance may in reality have been for a valuable con- p^^c^' 
 sideration, though none appear ; and parol evidence of 
 the valuable consideration would be admissible in order to 
 support the deed (?") ; and, secondly, because the prior 
 
 (6) Sugd. Concise View, 567 ; 2 (c) 2 Sugd. Pow. 228. 
 
 Spence's Eq. Jur. 291—293 ; Smith (/) Supra, p. 423. 
 
 V. Cherrill, L. E. 4 Eq. 390. C^) Beavan v. Earl of Oxford, 6 
 
 (c) Sugd. Concise Vie^y, 567 ; D. M. & G. 507. 
 
 Clarice v. Wright, 5 Hurl. & Norm. (h) 2 Spence's Eq. Jur. 351. Sec 
 
 401 ; 6 Id. 849. also Burton, § 228. 
 
 (d) See 4 Cruise T. 32, c. 27, § 67 (i) Sugd. Concise View, 570 ; 2 
 —71. Pres. Shep. T. 511.
 
 850 
 
 DEEDS INVALID ON ACCOUNT OF 
 
 rT.III. T.12, 
 
 Ch. 6, s. 3. 
 
 CopyLoIds 
 are witluii 
 the Stat. 27 
 Eliz. c. 4. 
 
 VII. Deeds 
 
 void under 
 Stat. 27 Eliz. 
 c. 4, s. 5, as 
 subject to a 
 power of 
 revocation. 
 
 grantee, if voluntary, may have made a conveyance for 
 valuable consideration before the purchaser from the volun- 
 tary grantor (/). But yet it has been held, that a pur-, 
 chaser will be compelled to accept a title depending upon 
 the invalidity of a voluntary deed (k). 
 
 Coi)yholds are within the stat. 27 Eliz. c. 4 (/). 
 
 VII. The statute 27 Eliz. c. 4, s. 5 (made perpetual by 
 stat. 30 Eliz. c. 18, s. 3) makes void, as against subsequent 
 purchasers for money or other good consideration, all con- 
 veyances with any clause, provision, article, or condition 
 of revocation, determination, or alteration at the grantor's 
 will or pleasure, whether such clause, &c., extend to the 
 whole interest conveyed, or only partially affect it (m). 
 The words are these : " If any person or persons have 
 heretofore since the beginning of the Queen's Majesty's 
 reign that now is, made, or hereafter shall make any con- 
 veyance, gift, grant, demise, charge, limitation of use or 
 uses, or assurance of, in, or out of any lands, tenements 
 or hereditaments, with any clause, provision, article, or 
 condition of revocation, determination, or alteration, at his 
 or their will or pleasure, of such conveyance, assurance, 
 grants, limitations of uses or estates of, in, or out of the 
 said lands, tenements, or hereditaments, or of, in, or out 
 of any part or parcel of them, contained or mentioned in 
 any writing, deed, or indenture of such assurance, convey- 
 ance, grant, or gift ; and after such conveyance, grant, 
 gift, demise, charge, limitation of uses, or assurance so 
 made or had, shall or do bargain, sell, demise, grant, 
 convey, or charge the same lands, tenements or heredita- 
 ments, or any part or parcel thereof, to any person or 
 persons, bodies politic and corporate, for money or other 
 
 (j) Sugd. Concise View, 570 ; 
 Burton, § 226-7. 
 
 (k) Carrie v. ^^!lld, 1 My. & Cr. 
 1 7 ; Buttcrfidd v. Ihath, 15 Boav. 408. 
 
 (A Doe d. Tunstill v. BottricJ, 5 
 B. & Ad. 131 ; Carrie v. Nind, 1 
 My. & Cr. 25. 
 
 {m) Burton, § 221
 
 FRAUD ON THIRD RERSONS. ^^1 
 
 good consideration paid or given (tlie said first conveyance, ^^-^^^I'lll' 
 assurance, gift, grant, demise, charge or limitation, not by 
 him or them revoked, made void or altered, according to 
 the power and authority reserved or expressed unto him 
 or them in and by the said secret conveyance, assurance, 
 gift or grant) that then the said former conveyance, assur- 
 ance, gift, demise, and grant, as touching the said lands, 
 tenements, and hereditaments, so after bargained, sold, 
 conveyed, demised or charged against the said bargainees, 
 vendees, lessees, grantees, and every of them, their heirs, 
 successors, executors, administrators and assigns, and 
 agauist all and every person and persons which have, shall, 
 or may lawfully claim anything, by, from, or under them 
 or any of them, shall be deemed, taken, and adjudged to be 
 void, frustrate, and of none effect, by virtue and force of 
 this present Act." 
 
 But by s. 6, it is provided, " that no Lawful mortgage 
 made or to be made bona fide, and without fraud or covin, 
 upon good consideration, shall be impeached or impaired 
 by force of this Act, but shall stand in the like force and 
 effect as the same should have done if this Act had never 
 been had nor made ; anything in this Act to the contrary 
 in any^vise notwithstanding." 
 
 In consequence of this statute, where a deed contains a 
 power of revocation at the will of the settlor, or a power 
 tantamount to it, and the deed is not revoked, it is void 
 agauist subsequent purchasers, even though the settlement 
 be for a valuable consideration, unless the power of revo- 
 cation can only be exercised with the consent of persons 
 who are not under the control of the settlor (n). A power 
 to mortgage to an indefinite extent (o), and to lease all or 
 part of the lands for any number of years, with or without 
 rent (^j), are in effect powers of revocation, and have 
 
 (ft) 4 Cruise T. 32, c. 27, § 30, 35, (o) 4 Cruise T. 32, c. 27, § 33. 
 
 37 ; 2 Sugd. Pow. 223—4. (p) 4 Cruise T. 32, c. 27, § 34.
 
 852 
 
 DEEDS INVALID ON ACCOUNT OF 
 
 Pt. III.T.12, 
 Ch. 6, 8. 3. 
 
 VIII. Mort- 
 gage or con- 
 vcyauce 
 with notice 
 of another's 
 title. 
 
 Doctrine of 
 notice a])- 
 plie3 lo pro- 
 perty in a 
 register 
 county. 
 
 tlicrefore been held to render tlie deed in which they are 
 contained void as against a subsequent purchaser {q). 
 But a power to charge a sum of money on an estate is 
 not in effect a power of revocation, unless the sum bears 
 so large a proportion to the value of the estate, that the 
 exercise thereof would virtually amount to a revoca- 
 tion ()•). And a settlement with a power to the settlor 
 to revoke, that the money might be paid to trustees to 
 be invested in the j)u.rchase of other estates, would be 
 valid (s). 
 
 VIII. AVhere a person takes a mortgage or a conveyance 
 with full notice of the legal or equitable title of other 
 persons to the same property, his own title wiU be post- 
 poned and made subservient to their title, or to that of a 
 transferee from them (t), except in cases within the stat, 
 27 Eliz. c. 4 {u). Thus, if a person takes a mortgage of 
 property, knowing that it was subject to an equitable 
 mortgage made by deposit of the title-deeds, the notice of 
 the equitable mortgage will raise a trust in him to the 
 amount of the equitable mortgage (a;). 
 
 This is the case even where the property lies in a 
 register county. The object of the Eegistry Acts was, 
 to afford to persons proposing to become mortgagees or 
 purchasers, the means of discovering any prior incum- 
 brances, if registered, or of protecting them against any 
 unregistered and secret prior incumbrances or conveyances. 
 AVhere, therefore, a person proposing to become a mort- 
 gagee or purchaser has actual notice of a prior unregistered 
 incumbrance or conveyance, the principle of the Eegistry 
 Acts becomes inapplicable ; because it is his own foUy if 
 
 (q) 4 Cruise T. 32, c. 27, § 39—41. 
 {r) See 2 Sugd. Pow. 223. 
 (s) Sugd. Concise View, 571. 
 (0 Story's Eq. Jur. § 395- 6 ; 
 Sugd. Concise View, 595, 597 ; At- 
 
 terhury v. Wallis, 8 D. M. & G. 454; 
 Pease v. Jackson, L. R. 3 Cli. Ap. 
 
 576. 
 
 (v) See supra, p. 850. 
 
 (:r) Story's Eq. Jur. § 395.
 
 FRAUD ON THIRD PERSONS. 853 
 
 he is a loser by advancing any money by way of purcliase ^^.-^^I'l^l' 
 
 or loan ; and therefore, if a subsequent purchaser or mort- 
 
 gagee has notice, at the time of his purchase or mortgage, 
 of any prior unregistered conveyance or mortgage, he will 
 not be permitted, in equity, to avail himself of his title 
 against the prior conveyance or mortgage, any more than 
 he would if the same were registered (y). 
 
 Notice may be either actual, or constructive, i c, imputed 
 by construction of law (z). 
 
 Actual notice, to constitute a binding notice, at least Actual no- 
 
 ' o ' tice. 
 
 where it depends on oral communication only, must be 
 given by a person interested in the property, and in the 
 course of tlie treaty (a). 
 
 As to constructive notice, whatever is sufficient to put constructive 
 
 ■^ notice. 
 
 any person of ordinary prudence on inquiry, is construc- 
 tive notice of everything to which that inquiry might 
 have led {&). And hence a purchaser is presumed to have 
 knowledge of the instrument under which the person 
 with whom he contracts, as executor, or trustee, or 
 appointee, derives his power (c); And if a purchaser has 
 notice of a deed, he has constructive notice of all its 
 contents {d), and of the facts which would have neces- 
 sarily become known, if its production had been insisted 
 on (e). But if instead of referring the purchaser to a 
 deed to ascertain its contents, the vendor himself states 
 what the contents of the deed are, the purchaser is not 
 bound to examine the deed itself, but may trust to such 
 
 (y) Story's Eq. Jur. § 397 ; 2 Siigd. Concise View, 606 ; Coote 
 
 Spence's Eq. Jur. 763 ; Coote Mortg. Mortg. 3rd ed. 372 ; Orjilvie v. Jeaf- 
 
 3rd ed. 381 ; 4 Cruise T. 32, c. 28, freson, 2 Gif. 353, 378 ; Ze/r/A v. 
 
 § 20 ; Sugd. Concise View, 578—9 ; Zloyd, 2 D. J. & S. 3 JO ; Broadhent 
 
 9 Jarm. & Byth. by Sweet, 691. v. Barlow, 3 D.-F. & J, 570. 
 
 (2) 2 Spence's Eq. Jur. 754. (c) Story's Eq. Jur. § 400. 
 
 («) 2 Spence's Eq. Jur. 753; Sugd. [d] Sugd. Concise View, 671, 611. 
 
 Concise View, 601. (c) Pcto v. Hammond, 30 Beav. 
 
 (6) 2 Spence's Eq. Jur. 755-760 ; 495. 
 
 s2
 
 ^^"^ DEEDS INVALID ON ACCOUNT OF 
 
 ^^n!"''^* s!' statement (/). It is sufficient if notice, actual or con- 
 sti'uctive, is brought home to the agent, attorney, or 
 counsel in the transaction, or in one immediately preced- 
 ing it {(j) ; unless there is a moral certainty that he would 
 not have communicated the fact to the principal or 
 client (Ji), or he, colluding with the person who was bound 
 to give the notice, concealed the fact (^'). The circumstance 
 of only one solicitor acting in a transaction does not con- 
 stitute him the solicitor of both parties, so as to affect both 
 parties with notice of the facts {j ). 
 
 Though it is only prudent to do so, yet it is not the 
 duty of a purchaser to search for incumbrances ; for if it 
 were, the registry would of itself be notice to all the 
 world {k). But registration is not of itself notice {l). And 
 hence a person having the legal estate as a mortgagee, and 
 advancing more money without notice aliunde of a second 
 mortgage, or of a purchase of the equity of redemption, 
 though duly registered, shall hold against the second mort- 
 gagee or purchaser of the equity of redemption, until all 
 tlie money is paid {^in). And, for the same reason, a pur- 
 chaser obtaining the legal estate will not be prejudiced by 
 a prior equitable incumbrance, of which, though duly 
 registered previously to his purchase, he had no notice 
 aliunde {n). And a purchaser of an equity of redemption 
 for valuable consideration without notice of a prior regis- 
 tered judgment, will not be postponed to it, on a bill filed 
 
 (/) Coajv. Co?'e«to?i, 31 Beav. 378. (X) Lane v. Jackson, 20 Beav. 
 
 {g) Story's Eq. Jur. 408 ; 2 535, 538. 
 
 Spence's Eq. Jur. 760—1 ; Sugd. (?) Sugd. Concise View, 578 ; 9 
 
 Concise View, 602—3 ; Atterhurij Jarm. & Byth. by Sweet, 692 ; Lane 
 
 v.WalUs, 8 D. M. & G. 454 ; Spakjht v. Jackson, 20 Beav. 535. 
 
 V, Cowne, 1 Hem. & M. 359. {m) Coote Mortg. 3rd ed. 378 ; 
 
 {h) Thompson v. C'artwright, 33 Story'sEq. Jur. § 401— 2; 2 Spence's 
 
 Beav. 178, 185. Eq. Jur. 763 ; Sugd, Concise View, 
 
 (i) Sharp V. Foy, L. R. 4 Ch. Ap. 136, 578 ; 4 Cruise T. 32, c. 28, § 16. 
 
 35. {n) Sugd. Concise View, 578 ; 9 
 
 0') Perry v. Holl, 2 D. F. & J. 38. Jarm. & Byth. by Sweet, 692.
 
 FEAUD ON THIRD PERSONS. 855 
 
 by the iiidmient creditor (^ A But if a man searches the pt.iu.t.i2, 
 
 J >> o ^ ^ Ca. 6, 8. 3. 
 
 register, he will he deemed to have notice ; though, if a 
 
 search is made for a particular period, the purchaser ^Yill 
 not by the search be deemed to have notice of any instru- 
 ment not registered within that period (7;). And where a 
 mortgagor has at different times employed the same 
 solicitor in effecting different incumbrances upon the same 
 estate, and the incumbrancers have employed the mort- 
 gagor's solicitor in the several transactions, each of the 
 puisne incumbrancers has been held to be affected with 
 notice of the prior incumbrances (q). 
 
 The court rolls of a manor do not give constructive 
 notice (r). 
 
 Notice before actual payment of all the money, although Time of 
 
 ^ -^ Jj o notice. 
 
 it be secured and the conveyance actually executed, or 
 before tlie execution of the conveyance, notwithstanding 
 that the money be paid, is equivalent to notice before the 
 contract. But notice at the time of getting in a precedent 
 incumbrance as a protection against mesne charges, is not 
 material, provided there was no notice at the time of the 
 purchase (s). 
 
 A purchaser of a legal estate, with notice of an equit- Protection of 
 
 -*- ^ , n purchaser 
 
 able claim, will be protected, if he purchases from a prior ^g|jjj«'^^ 
 bona fide purchaser without notice ; for otherwise the latter ^^^^^ ''^ ^^^ 
 would not enjoy the full benefit of his own unexceptionable 
 title. And if a person who has notice sells to another who 
 has no notice and is a bona fide purchaser for a valuable 
 consideration, the title will not be affected with notice in 
 the hands of the latter ; for otherwise no man would be safe 
 in any purchase {t). 
 
 (0) Lane v. Jackson, 20 Beav. 525. (s) Sugd. Concise View, 599. 
 
 0), Sugd. Concise View, 605. (t) See Story's Eq. Jur. § 409, 
 
 ((j) 2 Spence's Eq. Jur. 7(31. But 410; 2 Spence's Eq. Jur. 764; 
 
 query whether this is not contrary Sugd. V. & P. 14th ed. 153 ; 2 
 
 to Perry v. Holt, cited p. 854. Lead. Cas. Eq. 2nd ed. 36, 37. 
 
 {)•) Coote Mortg. 3rd ed. 382.
 
 85G 
 
 DEEDS INVALID ON ACCOUNT OF FRAUD ON TIIIUD PEESONS. 
 
 rT.iii.T. 12, 
 
 Ch. 6, 3. 3. 
 
 IX. Secret 
 deed calcu- 
 lated to de- 
 fraud pur- 
 cliasers or 
 incumbrau- 
 cers. 
 
 IX. If, on his marriage, a person demises, upon certain 
 trusts for the benefit of his intended wife, lands of which 
 he is tenant for life, and, by a distinct deed, covenants not 
 to seU or incumber the lands comprised in the term, and 
 it is declared, that, if he shall at any time sell or incumber 
 them or attempt so to do, the trustees of the term shall 
 recover the rents and profits, and api^ly them as they may 
 think fit, for the maintenance and support of him or his 
 wife or children or issue, the covenant and proviso are 
 fraudulent and void as against a subsequent incumbrancer 
 of his life estate {u). 
 
 Pt.III.T.12, 
 
 Ch. 6, s. 4. 
 
 I. Where 
 per>ons are 
 not free 
 agents ; 
 
 but under 
 duress, or in 
 fear. 
 
 or un;ler ex- 
 treme neces- 
 sity. 
 
 II. Assign- 
 ments by 
 persons 
 
 Section IV. 
 
 Of Contracts, Agreements, or Covenants which arc against 
 Piihlic Policy. 
 
 These will not be enforced. And hence, 
 
 I. Where a party is not a free agent, and is not able to 
 protect himself, a court of equity will protect him. Hence, 
 Equity will relieve against acts, done under duress, or 
 under the influence of extreme terror or of threats. And 
 it watches with great jealousy all contracts made by a 
 person while imder imprisonment ; and if there is the 
 slightest ground to suspect oppression or imposition, it will 
 set the contract aside. And in like manner, circumstances 
 of extreme necessity and distress may so entirely over- 
 power free agency, as to justify the Court in setting aside a 
 contract on account of some oppression or fraudulent ad- 
 vantage attendant on it {v). 
 
 II. An officer in the army or navy or other officer of the 
 Government cannot assign his future accruing pay or other 
 
 (»() Phipps V. Lord Ennismorc, i 
 Euss. 131. 
 
 (r) Story's Eq. Jur. § 239.
 
 DEEDS, ETC., AGAINST TUBLIC POLICY. 857 
 
 remuneration connected with the right to future services pt.iii.t.i2, 
 
 ° _ _ Cn. (J, s. 4. 
 
 from him ; because it is contrary to the honour, dignity, rrrr^ 
 
 and interest of the State, that its servants should be in ^'^^'l^.f;;,'^^^,'; 
 danger of bemg reduced to poverty, by anticipating those "ate'&rst*''^ 
 resources which were intended to_ place them in a suitable pauy) 
 condition of respectabihty, comfort and efficiency (;«). 
 
 An assignment of the pension of an officer in the royal 
 army is void. But an assignment of a pension granted by 
 the hxte East India Company is valid (y). And so it has 
 been held that a pension payable to a former officer of the 
 East India Company out of the revenues of India since the 
 Transfer Act (21 & 22 Vict. c. 106) may be assigned (s). 
 And in cases wliich are not within any statutory pro- 
 hibition, a man may assign a pension given him entirely 
 for past services, unconnected with any right to future 
 services ; and prize money may be assigned (a). And an "gug^* ^ ^ 
 assignment of the income of a fellowship of a college is ''"^''s®- 
 valid in equity (b). 
 
 An agreement tliat a person appointed to a public office Agreement 
 
 o 111 r betvvten ap- 
 
 shall pay to the person appointing liim the surplus of his IiJppointe^e'"^ 
 fees beyond a certain annual amount, is contrary to public as to fees!^ 
 policy, and void ; because he is considered to require his 
 fees to support him in performing the duties of his office. 
 And this applies to a person appointed by a corporation, 
 where he is not their officer, though the individual mem- 
 bers may not appropriate any part to themselves (c). 
 
 III. Equity will not uphold assignments which involve m. Assign- 
 
 , . . mentsin- 
 
 champerty, or maintenance, or buying of pretended titles ((t?). voiving 
 
 {x) See story's Eq. Jur. § 769, (a) 2 Spence's Eq. Jur. 867. 
 
 1040 C--1040 f, and notes; Coote (h) Fcistcl v. King's College, 10 
 
 Mortg. 3rd ed. 101, 102 ; 2 Spence's Beav. 491. 
 
 Eq. Jur. 867; 47 Geo. 3, sess. 2, (c"> Corp. of Liverpool t. Wright, 
 
 c. 25, 8. 4 ; Lloyd v. Cheetham, 3 1 Johns. 359. 
 Gif. 171. (rf) Story's Eq. Jur. § 1049 ; i?e//- 
 
 (y) ITcald V. ffay, 3 Gif. 467. nell v. Sj^rye, 1 D. M. & G. 660 ; 
 
 (z) Careiv v. Cooper, 4 Gif. 619. Grell v. Levy, 16 C. B. (N. S.) 73.
 
 858 
 
 DEEDS, ETC., AGAINST PUBLIC POLICY, 
 
 ■^Ch"^"T'4^' Champerty (canipi partitio) is properly a bargain between 
 
 champerty, 
 niaiiitennnco, 
 or buyiug of 
 pretended 
 titles 
 
 IV. AssigU" 
 ments of 
 mere uaked 
 
 a plaintiff or defendant in a canse, and another person who 
 has no interest in the subject in dispute, to divide the land 
 (campum partire) or other property sued for between them, 
 if they prevail at law, in consideration of the other person 
 carrying on the suit at his own expense. Maintenance, of 
 which champerty is a species, is properly an officious inter- 
 meddling in a suit which in no way belongs to one, by main- 
 taining or assisting either party with money or otherwise, 
 to prosecute or defend it. And an agreement whereby a 
 person engages to supply information and evidence for the 
 recovery of property, on condition of receiving a part of it, 
 is maintenance of the worst kind, as it leads to perjury and 
 perversion of justice (c). Champerty and maintenance are 
 punishable, both at the common law and by statute, as 
 tending to keep alive strife and contention, and to pervert 
 the remedial process of the law into an engine of oppres- 
 sion. Exceptions are made, however, to the general rule 
 against champerty and maintenance, in the case of father 
 and son, or of an heir apparent, or of the husband of an 
 heiress, or of a master and servant, and the like (/). And 
 a deed, whereby, in consideration of a son prosecuting a 
 commission of lunacy in the father's name against a person 
 to whom the father is heir at law, the father covenants to 
 convey the estates that should descend to Jiim on the 
 lunatic's decease, to the use of himself for life, with re- 
 mainder to the use of the son and his children, is not 
 illegal, as savouring of champerty or maintenance, or as 
 against public policy {g). 
 
 IV. Upon the same principle of not giving any en- 
 couragement to litigation, especially wdien undertaken as 
 
 (e) Sprye v. Porter, 7 EU. & BL 
 58, 81 ; Hilton v. Woods, L. E. 4 
 Eq. 432. 
 
 (/) Story's Eq. Jar. § 1041* ; 2 
 
 Silence's Eq. Jiir. 870 — 1, 
 
 (^) Persse v. Pcrsse, 7 CL & F. 
 279.
 
 DEEDS, ETC., AGAINST PUBLIC POLICY. 859 
 
 a speculation, equity will not enforce tlie assignment of a ^l,J^^-1-\^' 
 mere naked ridit to litioate, that is, a right which, from its -—— 
 
 o o ' ' o rights to 
 
 very nature, is incapable of conferring any benefit except li'igate. 
 through the medium of a suit ; such as a mere naked right 
 to set aside a conveyance for fraud (h). But a person who 
 is interested in a fund in Court, may mortgage it pen- 
 dente lite, to enable him to prosecute his claim (i). And 
 a person may take an assignment of the whole interest of 
 another in a contract, or security, or property which is in 
 litigation, at least if he does not undertake to pay the 
 costs which the seller had incurred, or make any advances 
 beyond the mere support of the interest which he has so 
 acquu-ed. Thus, notwithstanding the stat. 32 Hen. 8, c. 9, 
 referred to below, an equitable interest under a disputed 
 contract for the purchase of real estate may be the subject 
 of sale. If such an interest is sold by the purchaser under 
 such original contract, he becomes in equity a trustee for 
 his sub-purchaser, and must permit the sub-purchaser to 
 use his name in legal proceedings for obtaining the benefit 
 of the contract. And without entering into any covenants 
 for the purpose, such sub-purchaser is obliged to indemnify 
 the original purchaser from all the acts which he must do 
 for the sub-purchaser's benefit. And so, a legatee may 
 assign his legacy, and a creditor may assign his interest in 
 a debt, although he may have commenced a suit to recover 
 it (y). In these cases there is an actual interest in the 
 assignor, independently of litigation ; and although it may 
 require continued litigation to enforce it, yet the parties 
 may possibly adjust the matter without further proceed- 
 ed) story's Eq. Jur. § 1040 g, and 2 Spence's Eq. Jur. 863, 868—871 ; 
 note; 2 Spence's Eq. Jur. 868 — 9, Sugt].CoiicheYiew,2i,9; Harrington 
 8''2- V. Long, 2 My. & K. 590; Myers \. 
 
 (i) CocMl V. Taylor, 15 Beav. United Guarantee Com., 7 D. M. & 
 103, 116-7. See HiU v. Boyle, G. 112 ; Tyson v. Jachon, S(\ Beav. 
 L. E. 4 Eq. 260. 384. 
 
 ij) Story's Eq. Jur. § 1050—1054;
 
 8G0 
 
 DEEDS, ETC., AGAINST PUBLIC POLICY. 
 
 Pt.III.T.12, 
 
 Ch. 6, s. 4. 
 
 V. Aasiga- 
 ineuts of 
 things in 
 action, 
 rights of 
 entry, possi- 
 bilities, and 
 executory 
 interests. 
 
 ings ; whereas, in the case first mentioned, there is no in- 
 terest in the assignor, or none but what may result from 
 oversetting an interest in the other party (k). But no at- 
 torney can be permitted to purchase anything in litigation, 
 of which he has the management (J). If, however, a person 
 who has recovered property conveys it to his solicitor by 
 way of security for costs incurred l)efore the date of the 
 conveyance, that is not unlawful (m). 
 
 V. Things in action, rights of entry, and contingent 
 remainders and other executory interests in favour of 
 persons ascertained, might always be released by deed to 
 any one having a sufficient estate or interest by right or by 
 wrong (n). But the stat. 32 Hen. 8, c. 9, prohibits the 
 sale of any right or title to hereditaments, unless the 
 seller, or his ancestor, or those by whom he claims, have 
 been in possession of the same, or of the remainder or 
 reversion thereof, or of the rents and profits thereof, for 
 one year next before the sale (o) ; or unless the purchaser 
 is in lawful possession, in which case he may buy in any 
 pretended right, and he will not in any case be affected, 
 unless he bought with notice (^). Indeed, it is a rule of 
 the common law, that no possibility, right, title, or thing 
 in action, entry, or re-entry, can be granted to third 
 persons, except in the case of the Crown, to whom and by 
 whom an assignment could always be made ; for it was 
 thought that a different rule would be the means of 
 multiplying contests and suits. So that a stranger could 
 not take advantage of the breach of a condition for the 
 
 (A:) See Prosser v. Edmonds, 1 Y. 
 & C. Eq. Exch. 48L 
 
 (?) Simpson v. Lamh, 7 El. & Bl. 
 84, 93. 
 
 (m) Anderson v. Radcllffe, 1 El. 
 Bl. & El. 806, 819. 
 
 {u) 2 Bl. Com. 290 ; 2 Pres. Shep. 
 T. 231, 238, 322 ; 4 Jarm. & Bjth. 
 
 by Sweet, 122, 123 ; Walk. Conv. 
 3rcl ed. by Brest. 114; supra, p. 
 718. 
 
 (o) Story's Eq. Jur. § 1048, and 
 note, and 1048 a ; 2 Spence's Eq. 
 Jur. 869. 
 
 (j^) Sugd. Concise View, 258.
 
 DEEDS, ETC., AGAINST PUBLIC POLICY. 861 
 
 avoidance of an estate of freeliold, as tliat is only voidable p? i' J-I'- p. 
 
 ' "^ Ch. 6, s. 4. 
 
 by entry ; or even of an estate for years, where it was only 
 
 voidable by entry. But a stranger might take advantage 
 of a condition, the breach of which rendered an estate for 
 years ipso facto void witliout entry ; for a stranger might 
 take the benefit of a void thing, but not of a voidable 
 estate, by entry (q). Nor could contingent remainders 
 or other executory interests in real or personal estate be 
 granted over. And, at law, this still continues to be the 
 rule, except in the case of negotiable instruments, and 
 some few other securities ; and except in the case of an 
 assignment of a debt, where the debtor assents to the 
 transfer, so as to enable the assignee to maintain a direct 
 action against him on the implied promise which results 
 from such assent (r) ; and except in cases within the stat. 
 8 & 9 Vict. c. 106, s. 6. 
 By the stat. 7 & 8 Vict. c. 76, s. 5, it was enacted as stat. 7 & 8 
 
 . Vict c. 76, 
 
 follows : — " That any person may convey, assign, or charge s. 5. 
 by any deed any such contingent or executory interest, 
 right of entry for condition broken, or other future estate 
 or interest as he shall be entitled to, or presumptively 
 entitled to, in any freehold or copyhold or leasehold land, 
 or personal property, or any part of such interest, right, or 
 estate respectively ; and every person to whom any such 
 interest, right, or estate shall be conveyed or assigned, his 
 heirs, executors, administrators, or assigns, according to the 
 nature of the interest, right, or estate, shall be entitled to 
 stand in the place of the person by whom the same shall 
 be conveyed or assigned, his heirs, executors, adminis- 
 trators, or assigns, and to have the same interest, right, or 
 
 (q) Co. Litt. 214 a, b ; 215 a ; 32, c. 7,§ 21 ; 4 Jarm. and Byth. by 
 
 218 a. Sweet, 122 ; Fearne, 366 ; Burton, 
 
 (?•) Story's Eq. Jur. 1039; 2 § 857, 946— 7 ; Watk. Conv. 3rd ed. 
 
 Spence's Eq. Jur. 850,851,855; 2 by Prest. 97. 114, 116; Co. Litt. 
 
 BL Com. 290, 442 ; 2 Pres. Sbep. T. 214 a, b ; 215 a ; 232 b ; 266 a. 
 231, 238—240, 322 ; 4 Cruise T.
 
 862 DEEDS, ETC., AGAINST PUBLIC POLICY. 
 
 pr.iii.T.is, estate, or sucli part tliereof, as shall be convoyed or assigned 
 
 to him, and tlie same actions, suits, and remedies for the 
 same, as the person originally entitled thereto, his heirs^ 
 executors, or administrators would have been entitled to if 
 no conveyance, assignment, or other disposition thereof had 
 been made ; provided that no person shall be empowered 
 by this Act to dispose of any expectancy which he may 
 have as heir, or heir of the body inheritable, or as next of 
 kin, under the statutes for the distribvition of the estates 
 of intestates, of a living person, nor any estate, right, or 
 interest to which he may become entitled under any 
 deed thereafter to be executed, or under the will of any 
 living person, and no deed shall by force of this Act 
 bar or enlarge any estate tail : provided also, that no 
 chose in action shall by this Act be made assignable at 
 law." 
 Stat. 8&9 This was repealed by the stat. 8 & 9 Vict. c. 106 : but 
 
 Vict. c. 106, ^ •' 
 
 «-6- by s. 6 of that Act it was enacted, that "after the 1st day 
 
 of October, 1845, a contingent, an executory, and a future 
 interest, and a possibility coupled with an interest, in any 
 tenements or hereditaments of any tenure, w^hether the 
 object of the gift or limitation of such interest or possi- 
 bility be or be not ascertained, also a right of entry, 
 whether immediate or future, and whether vested or con- 
 tingent, into or upon any tenements or hereditaments in 
 England, of any tenure, may be disposed of by deed ; but 
 that no such disposition shall, by force only of this Act, 
 defeat or enlarge an estate tail; and that every such 
 disposition by a married woman shall be made conform- 
 ably to the provisions relative to dispositions by mamed 
 women," contained in the English (s) and Irish Acts for 
 the abohtion of fines and recoveries, and for the substitu- 
 tion of more simple modes of assurance. 
 
 (s) Stat. 3 & -i Will. 4, c. 76, see isupra, p. 780— 7.
 
 DEEDS, ETC., AGAINST PUBLIC POLICY. 803 
 
 It has been held that this section does not relate to a ^J!,- ^^I-"^'- ^2, 
 
 Ch. 6, s. 4. 
 
 right of entry for a condition broken (t). 
 
 Even in cases not within the stat. 7 & 8 Vict. c. 76, Executory 
 
 interests 
 
 s. 5, and 8 & 9 Vict, c. 106, s. 6, contingent remainders estZpe'i!!' 
 and other execntory interests in real or personal estate 
 might be bound by estoppel, on a fine or recovery, or, it 
 seems, even on an indenture f?0. They are also assign- Executory 
 
 ^ ^ "^ . ^ interests, 
 
 able in equity for valuable consideration. And it would possibilities, 
 
 ^ -J or expsct- 
 
 seem that they are assignable in equity even for good chosesin'"^ 
 consideration, except as against bona fide purchasers. A gfgn°abi?i,i 
 voluntary assignment of a mere expectancy is invalid both ^'^"' ^' 
 at law and in equity. But courts of equity give effect 
 to assignments, for valuable consideration, of possibilities 
 and even of mere expectancies of heirs at law, and choses 
 in action. Such assignments of a chose in action are 
 considered in equity as amounting to an agreement to 
 permit the assignee to make use of the name of the 
 assignor at law, in order to recover the debt, or to reduce 
 the property into possession ; or as a contract entitling the 
 assignee to sue in equity in his own name, and enforce 
 payment of the debt directly against the debtor, wdiethev 
 he has assented or not, making him, as well as the assignor, 
 if necessary, a party to the suit (.«). And such assignments 
 of possibilities and expectancies are regarded in equity as 
 amounting to a contract to assign when the interest 
 becomes vested ; and when the interest does so become 
 
 (t) Shelf. Eeal Prop. Acts, 6th Eq. Jur. 852, 865, 866, 896 ; 2 Pres. 
 
 ed. 597. Shep. T. 231, 2-38, 240, 322 ; 2 
 
 (u) 2 Pres. Shep. T. 238, 322 ; 4 Bl. Com. 442 ; Coote Mortg. 3rd 
 
 Jarm. & Byth. by Sweet, 122—128 ; ed. 235 ; 4 Jarm. & Byth. by 
 
 Watk. Conv. 3rd ed. by Prest. Sweet. 122 ; Co. Litt. 232 b, n. (1) ; 
 
 97, 116 ; Smith's Executory Inter- Watk. Conv. 3rd ed. by Prest. 87, 
 
 ests annexed to Fearne, § 754 — 116 ; Smith's Executory Tnter- 
 
 756. ests annexed to Fearne, § 749, 
 
 (x) See Story's Eq. Jur. § 1040, 750. 
 1040 c, 1044, 1055, 1057 ; 2 Spence's
 
 864 DEEDS, ETC., AGAINST PUBLIC POLICY. 
 
 PT.in.T.i2, vested, the claim of the assignee is enforced, not indeed as 
 
 Cn. 6, s. 4. ' ° 
 
 a trust, but as a riglit under a contract (ij). 
 
 ment^oT'^"' ^^- ^^^ ^^^^^> ^^^ assignment of goods which do not belong 
 bei'ongi°g\o to the assignor at the time does not pass the property in 
 artbe ume.'^ them. And accordingly at la^Y, a bill of sale of the effects 
 in a given place will only pass such things as are in that 
 place at the time of the grant, though effects to be subse- 
 quently brought on the premises are expressly included. 
 But if a person sells or mortgages after-acquired chattels, 
 the contract may operate as an actual assignment in equity, 
 having the effect of transferring the property immediately 
 it is acquired by the vendor or mortgagor, if it purports to 
 confer an interest immediately by its own force, as dis- 
 tinguished from a mere power of entry. And the instru- 
 ment may be so framed as to give the m(.>rtgagee, even at 
 law, a power of seizing such future chatties of the grantor 
 as they should be acquired and brought upon the pre- 
 mises (z). And the future fruits or proceeds of property 
 which the grantor has at the time of the assignment will 
 pass. Thus, the next year's wool of sheep belonging to the 
 grantor is capable of being assigned («). And so a tenant's 
 interest in crops grown in future years will pass by an 
 assignment to the landlord of all the tenant's " tenant- 
 right and interest yet to come and unexpired in and to the 
 farm " (h). An assignment of freight not actually earned, 
 but to be earned, is good in equity (c). And the right to 
 freight is incidental to the ownership of the vessel which 
 
 {y) Story's Eq. Jur. § 1040 b. (a) Coote Mortg. Srd ed. 235. 
 
 (z) Lunn v. Thornton, 1 M. G-r. & {h) Fetch v. Tutin, 15 M. & W. 
 
 Sc. 379 ; Gale v. Burncll, 7 Ad. & 110. 
 
 E. (N.S.) 850 ; Coote Mortg. 3rd ed. (p) Douglas v. Russell, 4 Sim. 
 
 235 ; Bope v. Ilailey, 5 EH. & Bl. 524 ; affinned 1 My. & K. 488 ; 
 
 830 ; Holroyd v. Marshall, 2 Gif. Lindsay v. Gihhs, 22 Bcav. 522 ; 
 
 382 ; 2 D. r. & J. 596 ; 10 H. Brown v. Tanner, L. E. 2 Eq. Cas. 
 
 L. Cas. 191 ; Beldinr) v. Read, 3 806 ; 3 Ch. Ap. 597. 
 HurL & Colt. 955.
 
 DEEDS, ETC., AGAINST PUBLIC POLICY. 865 
 
 earns it ; and therefore a mortgaoe of a ship carries with ^^Jfl- 1^' 
 
 it the freight, and a transfer of a share in a ship passes 
 
 the corresponding share in the fi-eight, under an existing 
 charter party, without the mention of the word "freight" (^). 
 An assignment for vakiable consideration of a cargo to be 
 obtained is valid in equity (c). And a debtor may assign 
 future accruing payments to be made to him under an en- 
 gagement with a third person (/). And if a policy of 
 assurance is assigned, with the sum assured, future bonuses 
 will pass with it (g). 
 
 VII. Marriage brokage contracts, which are agreements vri. Mar- 
 
 V '-' riage brokage 
 
 whereby a party engages to give another a remuneration if contracts. 
 he will negotiate a marriage for him, are void, as tending 
 to introduce matches wdiich are iU-advised and not based 
 on mutual affection, and therefore against public policy. 
 And they are so utterly void, that they are deemed in- 
 capable of confirmation ; and money paid under them may 
 be recovered back again in a court of equity, whether the 
 marriage is an equal or an unequal one (7i). 
 
 VIII. The same rules are applied to bonds and other viii. A-r^e- 
 
 meiits til iii- 
 
 aiiTeements entered into as a reward for using influence fluencetc.- 
 
 C' " tators. 
 
 over another, to induce him to make a will for the benefit 
 of the obligor (^) ; for such contracts encourage a spirit of 
 artifice and scheming, most prejudicial to the moral tone 
 of those in whom it exists ; and they tend to deceive and 
 injure others. 
 
 IX. On a similar ground, secret contracts made with ix. con- 
 
 tracts to 
 
 parents, or guardians, or other persons standing in a pecu- facilitate 
 liar relation to another, whereby on a treaty of marriage, 
 they are to receive a remuneration for promoting the 
 marriage or giving their consent to it, are held void (j). 
 
 (d) Lindsay v. Gibhs, 22 Beav. 522 ; {[/) Coote Mortg. 3rd ed. 235. 
 
 Eusden v. Pope, L. R. 3 Ex. 269. (h) Story's Eq. Jur. § 260—263. 
 
 (c) Lcmgton v. Horton, 1 Hare, 549. ( i ) Story's Eq. Jur. § 265. 
 
 (/) Coote Mortg. 3rd ed. 236. {j) Story's Eq. Jur. §266, 267.
 
 8G6 
 
 DEEDS, ETC., AGAINST PUBLIC POLICY. 
 
 Pt. III.T.12, 
 
 On. 6, 8. 4. 
 
 X. Contvacts 
 in restraint 
 of marriage. 
 
 XI. Con- 
 tracts in 
 restraint of 
 trade. 
 
 X. On the otlier hand, a contract is void, if it is ex- 
 pressly in restraint of marriage generally, or if it is so 
 restricted that it is probable that it may virtually operate 
 in restraint of marriage generally (Jc) ; as, that a woman 
 shall not a marry a man who has not an estate of 500^. 
 a year (/), or shall not marry till fifty years of age, or 
 shall not marry any person residing in the same town, or 
 any person wlio is a clergyman, a physician, or a lawyer, 
 or any person except of a particular trade or occupa- 
 tion (m). 
 
 XI. So, contracts in general restraint of trade are void, 
 as tending to discourage industry, enterprise, and just 
 competition. But a person may be restrained from carry- 
 ing on trade in or within a certain distance from a par- 
 ticular place, or witli particular persons, or for a reason- 
 able limited time (n). 
 
 Some contracts for the partial restraint of trade are 
 upheld, because they are advantageous not only to the in- 
 dividual in favour of whom the restraint is inserted, but 
 to the public also, who, instead of being thereby injured, 
 derive advantage in the unrestrained choice of able assist- 
 ants which such a stipulation gives to the employer, and 
 in the security it affords that the master will not withhold 
 from his assistants instruction in the secrets of his trade 
 and the communication of his own skill and experience, 
 from any fear of afterwards having a rival in the same 
 business. And hence a stipulation on the part of an 
 assistant to a London dentist not to practise in London, 
 will be enforced. But whatever restraint is larger than 
 the necessary protection of the person with whom the 
 contract is made, is unreasonable and void, as behig in- 
 jurious to the interest of the public, on the ground of 
 
 {k) See Story's Eq. Jur. § 274, 
 276—283. 
 
 ( I ) Story's Eq. Jur. § 280. 
 
 (m) Story's Eq. Jur. § 283. 
 («) Story's Eq. Jur. § 292 ; Ben- 
 well V. Inns, 24 Beav. 307.
 
 DEEDS, ETC., AGAINST PUBLIC POLICY. 867 
 
 public policy. And therefore a contract by an assistant ^J^'^g^-J;^"' 
 
 to a London dentist not to practise in any of tlie places 
 
 in England or Scotland where the employer might have 
 been practising before the expiration of the service, is 
 void (o). But a covenant, on the sale of the business of 
 a horse-hair manufacturer at a given place, not to carry 
 on the same business within 200 miles of that place, is 
 good (p). 
 
 XII. Agreements for the suppression of criminal prose- -^j^^jf^' '^j 
 cutions are void (q), as tending to weaken the beneficial p^™eedings. 
 preventive influence of the law, by duninishing the cer- 
 tainty of punishment. And an agreement by a petitioner 
 
 in a suit for divorce, to withdraw from the suit, in con- 
 sideration of money to be paid to the petitioner, is void as 
 a fraud on the Divorce Act, which enables the Court 
 to apply damages for the benefit of the wife or of the 
 children (?■). 
 
 XIII. Simoniacal contracts are void, as contrary to xiii. simo- 
 
 iiiacal cou- 
 
 public policy. Simony is the corrupt presentation of t^i'^cts. 
 any one to an ecclesiastical benefice, for money, gift, or 
 reward (s). By the statute 31 Eliz. c, 6, s. 5, it is enacted, 
 " that if any person or persons, bodies politic and cor- 
 porate, shall or do at any time after the end of forty days 
 next after the end of this session of Parliament, for any 
 sum of money, reward, gift, profit or benefit, directly or in- 
 directly, or for or by reason of any promise, agreement, 
 grant, bond, covenant, or other assurances, of or for any 
 sum of money, reward, gift, profit or benefit whoisoever, 
 directly or indirectly, present or collate any person to any 
 benefice with cure of souls, dignity, prebend or living- 
 ecclesiastical, or give or bestow the same, for or in respect 
 
 (o) Mallan v. May, 11 M. & W. ' (q) Story's Eq. Jur. § 294. 
 653. See supra, p. 654. (?•) Gipps v. Hume, 2 Johns. & 
 
 {p) Harms v. Parsons, 32 Beav. Hem. 517. 
 328. (s) 2 Bl. Com. 278.
 
 8G8 DEEDS, ETC., AGAINST PUBLIC POLICY. 
 
 pt.iii.t.12, of any such corrupt cause or consideration ; that then 
 
 Ch. 6, S. 4. "^ ^ ' _ 
 
 every such presentation, collation, gift and bestowing, and 
 
 every admission, institution, investiture and induction 
 thereupon, shall be utterly void, frustrate, and of none 
 effect in law ; and that it shall and may be lawful to and 
 for the Queen's Majesty, her heirs and successors, to 
 present, collate unto, or give or bestow every such bene- 
 fice, dignity, prebend and living ecclesiastical for that one 
 time or turn only ; and that all and every person or per- 
 sons, bodies politic and corporate, that from thenceforth 
 shall give or take any such sum of money, reward, gift, or 
 benefit, directly or indirectly, or that shall take or make 
 any such promise, grant, bond, covenant or other assur- 
 ance, shall forfeit and lose the double value of one year's 
 profit of every such benefice, dignity, prebend and living 
 ecclesiastical ; and the person so corruptly taking, pro- 
 curing, seeking, or accepting any such benefice, dignity, 
 prebend or living, shall thereupon and from thenceforth 
 be adjudged a disabled person in law to have or enjoy the 
 same benefice, dignity, prebend or living ecclesiastical." 
 And by the stat. 12 Anne, st. 2, c. 12, s. 2, it is enacted, 
 that " if any person shall or do, for any sum of money, 
 rew^ard, gift, profit, or advantage, directly or indirectly, or 
 for or by reason of any promise, agreement, grant, bond, 
 covenant, or other assurance, of or for any sum of money, 
 reward, gift, profit, or benefit whatsoever, directly or in- 
 directly, in his own name, or in the name of any other 
 person or persons, take, procure, or accept the next avoid- 
 ance of or presentation to any benefice with cure of souls, 
 dignity, prebend or living ecclesiastical, and shall be pre- 
 sented or collated thereupon, that then every such pre- 
 sentation or collation, and every admission, mstitution, 
 investiture, and induction upon the same shall be utterly 
 void, frustrate, and of no effect in law, and such agreement 
 shall be deemed and taken to be a simoniacal contract ;
 
 DEEDS, ETC., AGAINST PUBLIC POLICY. 
 
 860 
 
 aiul tliat it shall and may be lawful to and for the Queen's ^^jj"^-^]^^' 
 
 ]\Iajesty, her heirs and successors, to present or collate 
 
 unto, or give or bestow every such benefice, dignity, 
 prebend, and living ecclesiastical, for that one time or 
 turn only ; and the person so corruptly taking, pro- 
 curing, or accepting any such benefice, dignity, prebend, 
 or living, shall thereupon, and from thenceforth, be 
 adjudged a disabled person in law to have and enjoy the 
 same" (t). 
 
 Although he who is presented be not aware of the 
 simony, yet the presentation, admission, and induction are 
 void. But if the presentee be not cognisant of the corrup- 
 tion, then he shall not be within the clause of disability in 
 the statute («). 
 
 As to what constitutes simony, the following rules may 
 be laid : 1. A purchase of a next presentation made after 
 the church has actually fallen vacant, is void ; and a pur- 
 chase of an advowson at such a time is void, quoad the 
 fallen vacancy, but not otherwise (x). 2. For a clerk to 
 bargain for the next presentation, the incumbent being sick 
 and about to die, w^as simony, even before the statute of 
 Queen Anne : and now, by that statute, to purchase either 
 in his own name or in another's the next presentation, and 
 be thereupon presented at any future time to the living, is 
 simony (j/). But, 3, where a person purchases the next 
 presentation to a benefice, the church being then full, and 
 the incumbent not ill, even though the purchaser intends 
 to present a particular person other than himself, and he 
 afterwards does present that person, such a purchase is not 
 deemed simony (z). 4. A purchase of the next presenta- 
 
 ( O See 2 BL Com. 279. Shep. T. 240. 
 
 (m) 3 Cruise T. 21, c. 2, § 59 ; 2 (y) 2 Bl. Com. 479. 
 
 Bl. Com. 280. (2) .3 Cruise T. 21, c. 2, § 67 ; 3 
 
 {t} 3 Cruise T. 21, c. 2, § 64 ; 3 Steph. Com. 72. 
 Steph. Com. 70, 71, 72 ; 2 Pres. 
 
 T 2
 
 870 DEEDS, ETC., AGAINST rUlUJC POLICY. 
 
 pt. iit.t.12, tion to a cluircli, even when tlie incumbent is in a dyinj? 
 
 Ch. 6, s. 4. ^ o 
 
 state, is not simony, if without the privity and without 
 
 any view to the nomination of the particular person 
 presented (a). And a purchase made of an advowson 
 in fee simple under similar circumstances, is not si- 
 mony (&). 
 
 Engage- The stat. 9 Geo. 4, c. 94, s. 1, declares valid every en- 
 
 meuts to J } ) J 
 
 flcgSQbene- gagemcut by promise, grant, agreement, or covenant for 
 the resignation of benefices which are private property, 
 after the 28th of July, 1 828, to the expressed intent of ap- 
 pointing any one person therein named, or one of two 
 persons therein named, each of whom is related by blood 
 or marriage, as uncle, son, grandson, brother, nephew, 
 or grand nephew of the person, or the wife of the 
 person, in whom the patronage is beneficially vested. 
 But such engagement must be entered into before the 
 appointment of the person entering into it, and one 
 part of the instrument must be deposited within two 
 months with the registrar of the diocese or peculiar 
 jurisdiction. 
 
 XIV. Agree- XIV. There is nothinfj contrary to the policy of the law 
 
 mcnt to o ^ X ./ 
 
 perty^if"^"' ^^ tending to murder, or to undue influence over a testator, 
 devised. ^^, contrary to the stat. 32 Hen. 8, c. 9, relating to pre- 
 tended titles, in an agreement by a person who expects 
 to become devisee of land, that, if he should be such, he 
 will convey it to another person for a certain sum ; 
 but if he should not become devisee, he will return the 
 money (c). 
 
 XV. UKuri- XV. In consequence of the stat. 12 Anne, st. 2, c. 16, 
 
 oils con- 
 tracts, a contract for the payment of more than 51. per cent, in- 
 terest was usurious, except in certain cases (d). Bat by 
 
 (a) 3 Steph. Com. 72 ; Siigd. Con- Com. 71. 
 cise View, 259. (p) Cook v. Fcild, 15 Ad. & E. 
 
 (6)3 Cruise T. 21, c. 2, §68; 4G0. 
 Sugd. Concise View, 259 ; 3 Steph. (d ) See 2 Steph. Com. 86—94 ;
 
 DEEDS, ETC., AGAINST PUBLIC POLICY. 871 
 
 the Stat. 17 & 18 Vict. c. 90, the statutes relating to usury, ?■■• m.T.is, 
 
 except those relating to pawnbrokers, are repealed, as ■■ — 
 
 regards transactions subsequent to the 10th of August, 
 1854, the time of the passing of the Act. 
 
 A transaction is sometimes void as indirectly opera- 
 ting in violation of the law against usury (c). Thus, 
 a purchase of a rent-charge or an annuity for a deter- 
 minate number of years was set aside as usurious in 
 equity, if the total amount of the annual payments was 
 more than sufhcient to pay the principal sum and legal 
 interest (/). So, a lease to be granted in consideration 
 of a loan of money, could not be supported. But where 
 the creditor was to be re-paid his principal and legal 
 interest by way of a rent to be received or retained by 
 him, tlie aoTcement was in the nature of a mortoaoe 
 security, and was supported in equity. Where an in- 
 strument which was in appearance a lease, was in fact 
 a contrivance to secure to the vendor the purchase 
 money by instalments carrying illegal interest, it was 
 usurious and void. And where a builder assigned his 
 lease or contract for lease in consideration of a sum 
 of money advanced to him, and, as part of the same 
 transaction, took or agreed to take an underlease at a 
 rent greatly exceeding the rate of interest on the sums 
 advanced, after deducting the ground rent (so that the 
 total amount of the payments during the lease would 
 exceed the principal monies and interest), and with the 
 same covenants and obligations in the underlease as 
 were contained in the original lease, the courts both of 
 equity and common law have treated such contracts as 
 usurious, notwithstanding the liability of the lender to 
 
 Stamp's Index to the Statute Law, (e) Earl of Mansfield v. Oijlc, 7 
 
 tit. "Usury;" Bond v. Bell, 4 D. M. & G. 181. 
 
 Drew. 157, (/) Coote Mortg. 3rd ed. 423.
 
 872 "" DEEI)S, ETC., AGAINST PUBLIC POLICY. 
 
 ■^ch^"'!"]^' ^^^^ superior landlord, and risk of forfeiture, and although 
 he might have no power of calling in his money, 
 whilst the other might have an unlimited power of re- 
 purchasing (//). 
 ^^1; ^^ ^- XVI. Where contracts are intended to carry into effect 
 ®nTm"!'rai ^^ immoral purpose (as in the case of a house let for a 
 purpose. l)rothel), even though that purpose do not appear on th(^ 
 face of the instrument, the Courts will not enforce any of 
 the stipulations therein comprised (h). 
 
 Section V. 
 Of Deeds void fur Uncei^tainty. 
 pt.iii.t.12, An agreement will not he enforced, if the terms of it 
 
 Cb. 6, 3. 5. ° . , 
 
 are uncertain (^'). 
 
 A deed is void for uncertainty, if it is totally uncertain 
 on the face of it who is or are the intended grantee or 
 grantees. Thus, if a grant is made to one of the children 
 of J. S., who has more than one child, and the grantor does 
 not describe which he intends, this grant is void for 
 uncertainty, and cannot be rendered good by any evi- 
 dence ; for the ambiguity is patent, and parol evidence is 
 inadmissible {j). 
 
 An instrument which is left blank in any material part, 
 is incapable of operation until such blank is filled up, 
 although executed by the parties, and does not become 
 effectual by the subsequent filling up of the blank by a 
 
 ig) Coote Mortg. 3rd eel. 424. (i) Taylor v. Portincjton, 7 D. M. 
 
 {h) Smith V. White, L. R. 1 Eq. & G. 328. 
 626. {j) 2 Pres. Shop. T. 251.
 
 DEEDS VOID FOR UNCERTAINTY. 873 
 
 stranger, in the absence of the parties unless he is autho- pt. iii.t.12, 
 
 Cn. 6, s. 5. 
 
 rised to do so by deed (A;). 
 
 Section VI. 
 Of the Avoidance of a Deed hy Disagreement (I). 
 No person can be made to take an estate without his pt.iii.t.i2, 
 
 ^ Ch. 6, s. 6. 
 
 consent, express or implied ; and therefore the purchases 
 
 of idiots, lunatics, infants, and femes covert, if disadvanta- 
 geous, may be set aside (7/1). And it is common for trustees, 
 when nominated without their consent, to renounce the 
 estate conveyed to them, which is done by deed of dis- 
 claimer {n). 
 
 The law presumes that every conveyance is for the 
 benefit of the grantee : and therefore, till the contrary is 
 shown, supposes an agreement to the conveyance. But 
 from the moment there is evidence of disagreement, the 
 conveyance, in construction of law, is void ab initio, as if 
 none had been made ; and in intendment of law, the free- 
 hold never passed from the grantor (0). 
 
 If, however, a feoffment is made to two as joint tenants, 
 and one only disagrees, the entirety vests in the other. 
 But if a feoffment is made to two tenants in common, 
 and one disagrees, this only avoids the grant as to his 
 share (7^). 
 
 Wlien the party, being free from insanity, coverture, or 
 
 (i) 3 Jarm. & Byth, by Sweet, (0) 2 Pres. Shep. T. 285 ; Watk. 
 
 19. Conv. 3rd ed. by Prest. 23. 
 
 {I) See supra, p. 739. {p) 2 Pres. Shep. T. 285 ; see 
 
 Cm) Burton, §212. supra, p. 739. 
 {n) Burton, §213.
 
 874 
 
 AVOIDANCE OF A DEED BY DISAGREEMENT. 
 
 ^ch^6^"s.'6?' i^fe-ncy, has once by his agreement made the deed good, 
 he cannot afterwards by his disagreement make it void. 
 And when once by refusal and disagreement he has made 
 the deed void, he cannot by agreement or acceptance after- 
 wards make it good (q). 
 
 '(q) 1 Pres. Shep. T. 70.
 
 'Vt» 
 
 CHAPTEE VII. 
 
 OF DIVERS MATTERS "PERTAINING TO DEEDS IN 
 GENERAL. 
 
 Section I. 
 Of Stamjnng Deeds (a). 
 
 It is generally necessary that a deed should be stamped, ^ch^t^Ji^' 
 as required by the Stamp Acts, in order to render it 
 available in Court : but the want of a proper stamp does 
 not prevent its legal effect and operation in other re- 
 spects (6). 
 
 The deed ought regularly to be, and usually is, properly 
 stamped before execution. But by stat. 37 Geo. 3, c. 136, 
 s. 2, and 13 & 14 Vict. c. 97, s. 12, the stamp may be 
 af&xed afterwards, on payment, in addition to the duty, 
 of a certain penalty. And by stat. 44 Geo. 3, c. 98, 
 s. 24 (c), and 13 & 14 Vict. c. 97, s. 12, this penalty, which 
 by the latter Act is fixed at 10/., may be remitted, if the 
 application be made within twelve mouths after the 
 execution, and the commissioners be satisfied that no 
 fraud upon the revenue was intended. The principal ' 
 statutes by which the existing duties for Great Britain 
 have been imposed are the 55 Geo. 3, c. 184, and the 
 Stamp Duties Act of 1850, 13 & 14 Vict. c. 97, and the 
 stat. 23 & 24 Vict. cc. 15 and 111. 
 
 (a) As to the amount of the stamp Laws ; and see Vacher'a ' Pocket 
 
 required, and the exemptions, see Digest of the Stamp Duties. 
 
 Mr. George Sweet's Supplement to (b) 4 Cruise T. 32, c. 2, § 57 ; 
 
 Jann. & Byth. Conveyancing, which Burton, § 451. 
 
 contains a summary of tlie Stamp (c) Burton, § 451.
 
 870 OF THE EXECUTION OF DEEDS. 
 
 Section II. 
 
 Of tlie Execution of Deeds. 
 ^c'n.^T'J. 2^' I- So far as regards any person requiring a deed to be 
 
 I. Beadiug. read, it is necessary to its validity, either that he be per- 
 
 mitted to read it himself, or, if he cannot read, that it be 
 read to him. If it be read to him falsely, it will be void, 
 at least for so much as was misread ; unless it be agreed 
 by collusion that the deed should be read falsely, on 
 purpose to make it void ; in which case it will bind the 
 fraudulent party (cZ). 
 
 II. siguing. II. Signing is often necessary to flie valid execution of 
 
 powers. And in cases within the Statute of Frauds, the 
 better opinion would seem to be, that it is rendered neces- 
 sary by that statute (e). In practice it is an invariable 
 part of the execution of all deeds, as the present practice 
 of sealing cannot serve any purpose of identification or 
 verification, but has degenerated into a mere useless form. 
 But where a person is incapacitated from signing, by 
 infirmity or want of instruction, he may either make a 
 mark by way of signature' to a deed, or it may be 
 signed for him by a stranger at his request and in his 
 presence (/). 
 
 III. seuiiDg. III. A seal is essential to a deed, since no writing with- 
 
 out a seal can be a deed. But if the deed is sealed with 
 any setil whatever, or even if an impression is made with a 
 stick or anything else, it is sufficient {g). It is sufficient 
 that there is a seal to the deed at the time of its actual or 
 
 [d) 2 Bl. Com. 304 ; 4 Cruise T. 1 Sugd. Pow. 286, contra. 
 
 32, c. 2, § 61 ; 3 Jarm. & Byth. by (/) 3 Jarra. & Byth. by Sweet, 
 
 Sweet, 24 ; 1 Pres. Sliep. T. 56. 24, 25, 
 
 (e) 2 Bl. Com. 305, 306 ; 4 Cruise [g) 2 Bl. Com. 305 ; 4 Cruise T. 
 T. 32, c. 2, § m, 69 ; Mr. Hilliard's 32, c. 2, § 63 ; 1 Pres. Shep. T. 54, 
 note to 1 Pres. Shep. T. 56. But 56, 57. 
 
 see Mr. Preston's remarks. lb., and
 
 OF THE EXECUTION OF DEEDS. ^77 
 
 constructive delivery ; and that the party, in terms or by ^l-J^fl-\^' 
 
 conduct, adopts the sealing. And if another person seals 
 
 the deed, yet if the party delivers it himself, he thereby 
 adopts the sealing (/?). 
 
 The common practice is for the copying clerk to af&x ^^^^^^ 
 any kind of seal when he has finished copying it, and for 
 tlie party to adopt the sealing at the time of execution, by 
 placing his finger on the seal, and saying, " I deliver this 
 as my act and deed." 
 
 If there are several grantors, obligors, &c., named in a sealing by 
 
 one of tbe 
 
 deed, and one of them only seals the deed, this is a cjood sj-antors, 
 
 ./ ' o obligors, &c., 
 
 deed as against him, and void as to all the rest (i). ""'y- 
 
 A person may appoint another to be his attorney to seal sealing and 
 
 i- <J ^ i- •/ signing by 
 
 and sign a deed for him, but in such a case the deed must a""r"ey. 
 be executed in the name of the principal (_;'). 
 
 IV. Delivery is another circumstance necessary to a iv. D.n- 
 deed (Jc). Delivery may be actual, i. e., by doing some- Delivery 
 thing ; or verbal, i. e., by saying something ; or both yeibui^ or 
 actual and verbal, i. e., by both doing and saying some- 
 thing (/). 
 
 And a deed may either be delivered by the party him- Delivery i,y 
 
 ■^ -J ^ 'J the party, or 
 
 self who makes it, or by any other person, by his appoint- ^^' ^^°^^^^- 
 ment or authority precedent, or assent or agreement 
 subsequent (m). Where one person delivers an instrument 
 as the act of another person who is present, no deed con- 
 ferring an authority is requisite. But unless authorised by 
 deed, a person cannot execute an instrument as the act of 
 a person who is absent ; and every letter of attorney must 
 be by deed (71). 
 
 A deed may be delivered to the party himself ; or it may Delivery to 
 
 (A) 2 Bl. Com. 306 ; 1 Pres. Bl. Com. 306. 
 
 Shep. T. 54. ( / ) Co. Litt. 36 a; 1 Pres. Shep. 
 
 (01 Pres. Shep. T. 71. T. 57 ; i Cruise T. 32, c. 2, § 71. 
 
 (i) 4 Cruise T. 32, c. 2, § 67. (m) 1 Pres. Shep. T. 57. 
 
 (k) 4 Cruise T. 32, c. 2, § 68 ; 2 (n) 1 Pres. Shep. T. 57.
 
 878 OF THE EXECUTION OF DEEDS. 
 
 ■^CH^Vsi^' ^^^ delivered to any other person by sufficient antliority 
 
 from him, or to any stranger, for and on behalf and to 
 
 to amfthJr ""^ ^^^^ '^^^^ ^^ ^^^^^ ^^ whom it is made, without authority (o) ; 
 t/veiy?*'"*^ or it may be delivered verbally and constructively, by say- 
 ing, " I deliver this as my act and deed," or words to the 
 like effect, and yet be retained in the custody of the party 
 who made it (j^). 
 bleithJi'^b^ ^ deed may be either delivered absolutely as a deed, or 
 coiKiitionai. it may be delivered conditionally as an escrow, i. e., as a 
 scroll or ^vriting (q). Eegularly, when a deed is delivered 
 as an escrow, it ought to be delivered to a third person and 
 in terms as an escrow, in such words as these : " I deliver 
 this to you as an escrow, to deliver to the party as my 
 deed, upon condition, &c., or at such a time." And this 
 mode of delivery should be noticed in the attestation (r). 
 But in opposition to some of the early authorities (s), it is 
 now clear, that even if the instrument is executed as the 
 deed of the party in the usual manner, yet if it is delivered 
 upon a condition or is accompanied by an agreement 
 suspending its operation until some future time or event, 
 this will constitute it an escrow (f). 
 Time of de- The time of the delivery of a deed is presumed to be 
 
 livery. _ "^ ^ 
 
 the time of its date, unless the contrary appears {u). 
 y. Ai testa- V. It is usual for witnesses to attest the acts of signinsf, 
 
 tun. ° ° 
 
 sealing, and delivery, by the subscription of their names 
 to a form of words to that effect written at the foot or on 
 the back of the deed (p:). But neither the attestation 
 itself, nor any kind of attestation clause, is essential to the 
 
 (o) 4 Cruise T. 32, c. 2, § 73. (s) See Co. Litt. 36 a ; 1 Pres. 
 
 (p) See 3 Jarm. & Byth. by Sweet, Shep. T. 58 ; 4 Cruise T. 32, c. 2, 
 
 31 ; 4 Cruise T. 32, c. 2, § 75. § 79, 80. 
 
 (q) 4 Cruise T. 32, c. 2, § 75 ; 2 (t) S Jarm. & Byth. by Sweet, 
 
 Bl. Com. 307. 30 ; NasJi v. Flyn, 1 J. & L. 162 ; 
 
 (»•) 1 Pres. Shep. T. 58, 59 ; i Giuhjcnv. Besset, 6 El. & Bl. 986. 
 
 Cniise T. 32, c. 2, § 75, 79, 80 ; Co. (u) 4 Cruise T. 32, c. 20, § 4. 
 
 Litt. 36 a. (.r) Burton, § 445.
 
 OF THE EXECUTION OF DEEDS. 879 
 
 validity of any deed, unless it is made in the exercise of a pt. iir.T.i2, 
 
 power which has prescribed that as a requisite circum- 
 
 stance {y). But the practice is highly important as fur- 
 nishing an evidence of authenticity. 
 
 VI. The assent of the grantee, in the absence of evidence vi. Assent 
 
 ° otthe 
 
 to the contrary, is always presumed ; so that, even where grautee. 
 the grantee does not execute the deed, it transfers the 
 estate to hiin. But he may disclaim it if he pleases ; in 
 which case it becomes devested {£). 
 
 Section III. 
 
 Of the Registration of Deeds. 
 I. By stat. 2 & 3 Anne, c. 4, 5 Anne, c. 18, 6 Anne, pt.iii.t.12, 
 
 ■^ Ch. 7, s. 3. 
 
 c. 35, and 8 Geo. 2, c. 6, memorials of all deeds relating to 
 
 I. Registra- 
 
 liereditaments in the West, East, and ISTorth Eidings of the Vr°°/1. 
 county of York, and the town and county of the town of g"^_ Middie- 
 Kingston-upon-HuU, except those relating to copyholds, whaure 
 leases at rack rent, and leases not exceeding twenty-one reoistered 
 years where the actual occupation goes with the lease, may 
 be registered, at the election of the parties, and have the 
 registrar's certificate indorsed on them (a). And by 7 
 Anne, c. 20, similar regulations are made for registering 
 deeds in the county of Middlesex ; but this Act does not 
 extend to chambers in Serjeant's Inn, or the Inns of Court 
 and Chancery, nor to any messuages, lands or tenements 
 in the City of London (&). Lord St. Leonards remarks (c), 
 
 (y) 4 Cruise T. 32, c. 2, § 81 ; 8 ; Sugd. Concise Victv, 581. 
 
 Burton, § 450. [b) 4 Cruise T. 32, c. 28, § 7 ; 
 
 {z) 4 Cruise T. 32, c. 26, § 2 ; Sugd. Concise View, 582. 
 
 Burton, §441. See supra, p. 873 — 4. (c) Sugd. Concise View, 581. 
 
 (a) 4 Cruise, T. 32, c. 23, § 2—6,
 
 OF TIIR KEGISTRATION OF DEEDS. 
 
 Pt.III 
 Cn 
 
 f^V' ^^^^^ ^^ ^^ advisable to register such leases of copyhold 
 estates as would require registry if the estate were free- 
 hold ; and that if leases not exceeding twenty-one years 
 where the actual occupation goes along with the lease, 
 are assigned by way of mortgage, it is always usual in 
 practice to require them to be registered. A lease must 
 be registered, notwithstanding the registry of an assignment 
 in which it is recited. But an assignment of a legacy 
 charged on land does not require to be registered (d). Nor 
 does a mere agreement to mortgage a Middlesex property (e). 
 Mode of The memorials are to contain the date, the names, and 
 
 registration. 
 
 additions of the parties and witnesses, and the parcels, as 
 or to the same effect as in the original instrument (/). 
 But with respect to the parcels, it is provided, that where 
 there are more writings than one for making or perfecting 
 any conveyance or security which concerns the same 
 estates, it shall be a sufficient memorial thereof, if all the 
 estates are only once named in the memorial of any one of 
 the deeds or writings, with a reference to such deed or 
 writing in the other deeds or writings, and directions how 
 to find the registering of the same. This provision has been 
 unwarrantably extended in practice ; so that, for instance, 
 it is usual in a memorial of an assignment of a lease to 
 refer for the parcels to the prior registry of the lease (g). 
 The Acts require the memorial to be under the hand and 
 seal of some or one of the grantors or grantees, his or 
 their heirs, executors, administrators, guardians, or trus- 
 tees, attested by two witnesses, one thereof to be one of 
 the witnesses to the execution of the deed ; and he is to 
 prove on oath both the execution of the memorial and of 
 the deed itself (h). 
 
 id) Sugd. Concise View, 577, 578; (/) 4 Cruise T. 32, c. 28, § 4. 
 
 4 Cruise T. 32, c. 28, § 13. ( g) Sugd. Concise View, 580—1. 
 
 (e) Wright v. Stanfield, 27 Beav. (A) Sugd. Concise View, 579. 
 
 8.
 
 OF THE REGISTRATION OF DEEDS. 881 
 
 By the IStli section of the Gth Anne, c. 35, relatmcj to pt.ii[.t.i2, 
 
 '' ' *=■ Cu. V, s. 3. 
 
 the East Eiding and tlie town and county of the town of 
 
 Kingston-iipon-Hull, enrohnent of deeds of bargain and 
 sale is to serve instead of registering a memorial there- 
 of (.•). 
 The effect of the Eegister Acts is merely to render a Effect of 
 
 ^ ^ registration. 
 
 prior deed fraudulent and void as to a purchaser or mort- 
 gagee under a subsequent deed, unless such prior deed is 
 registered before such subsequent deed [j); or unless such 
 purchaser or mortgagee has had notice of such prior 
 deed (A;). 
 
 II. By the stat. 15 Car. 2, c. 17, s. 8, for settling the n- R'-gSs- 
 
 ■^ > > ' a tratiou of 
 
 draining of Bedford Level, it is enacted, that all convey- ^l^^^^^ ^^ 
 ances by indenture of the 95,000 acres contained within wuhfnuie 
 the said Level, or any part thereof, entered with the Levti^ 
 Eegistrar of the corporation, in a book to be kept for that 
 j)urpose, shall be of equal force to convey the freehold and 
 inheritance thereof, as if the same conveyances by inden- 
 ture were for valuable considerations of money enrolled 
 within six months in one of the King's Courts of Eecord 
 at Westminster ; and no lease, grant, or conveyance of or 
 charge u})on the same, except leases for seven years or 
 under in possession, shaU be of force but from the time it 
 shall be entered with the Eegistrar {l). 
 
 III. By the stat. 17 & 18 Vict. c. 36, s. 1, "every bill ^li^J^lf- 
 of sale of personal chattels {m) made after the passing of ^^'^^ "^ ^''^' 
 this Act, either absolutely or conditionally, or suljject or 
 
 not subject to any trusts, and whereby the grantee or 
 holder shall have power, either with or without notice, and 
 either immediately after the making of such bUl of sale or 
 at any future time, to seize or take possession of any pro- 
 
 ( i ) 4 Cruise T. 32, c. 28, § 6. ( Z ) 4 Cruise T. 32, c. 28, § 33. 
 
 (j) See 4 Cruise T. 32, c. 28, § 2, {m) See interpretation clause, 
 
 10 ; Sugd. Concise View, 577. infra, p. 883 ; and see Johnson v. 
 
 {k) See supra, p. 852. Osenton, L. E. 4 Ex. 102.
 
 882 OF THE KEGISTRATION OF DEEDS. 
 
 pt. 1II.T.12, perty and effects comprised in or made subject to such Ijill 
 
 of sale, and every schedule or inventoiy which shall bo 
 
 thereto annexed or therein referred to, or a true copy 
 thereof, and of every attestation of the execution thereof, 
 shall, together with an affidavit of the time of such bill of 
 sale being made or given, and a descrij)tion of the resi- 
 dence and occupation of the person making or giving the 
 same, or, in case the same shall be made or given by any 
 person under or in the execution of any process, then a 
 description of the residence and occupation of the person 
 against Avhom such process shall have issued, and of every 
 attesting witness to such bill of sale, be filed with the 
 officer acting as clerk of the docquets and judgments in the 
 Court of Queen's Bench, within twenty-one days after the 
 making or giving of such bill of sale (in like manner as a 
 warrant of attorney in any personal action given by a 
 trader is now by law required to be filed), otherwise such 
 bill of sale shall, as against all assignees of the estate and 
 effects of the person whose goods or any of them are com- 
 prised in such bill of sale under the laws relating to bank- 
 ruptcy or insolvency, or under any assignment for the 
 benefit of the creditors of such person, and as against all 
 sheriffs' officers and other persons seizing any property or 
 effects comprised in such bill of sale in the execution of 
 any process of any court of law or equity authorising the 
 seizure of the goods of the person by whom or of whose 
 goods such bill of sale shall have been made, and against 
 every person on whose behalf such process shall have been 
 issued, be null and void to all intents and purposes what- 
 soever, so far as regards the property in or right to the 
 possession of any jDersonal chattels comprised in such bill 
 of sale, which at or after the time of such bankruptcy, or 
 of filing the insolvent's petition in such insolvency, or of 
 the execution by the debtor of such assignment for the 
 benefit of his creditors, or of executing such process (as the
 
 OF THE REGISTRATION OF DEEDS. 88:^) 
 
 case may be), and after the expiration of the said period of ^^j,"J-^-^^> 
 
 twenty-one days, shall be in the possession or apparent 
 
 possession of the person making snch bill of sale, or of any 
 person against whom the process shall have issued under or 
 in the execution of which such bill of sale shall have been 
 made or given, as the case may be." 
 
 By s. 2, " if such bill of sale shall be made or given ^Scef^'am- 
 subject to any defeasance or condition or declaration of deciaratkins 
 trust not contained in the body thereof, such defeasance or %iih mus 
 condition or declaration of trust shall, for the purposes of subject 
 this Act, be taken as part of such bill of sale, and shall be 
 written on the same paper or parchment on which such 
 bill of sale shall be written, before the time when the same 
 or a copy thereof respectively shall be filed, otherwise such 
 bill of sale shall be null and void to all intents and pur- 
 poses, as against the same persons and as regaids the 
 same property and effects, as if such bill of sale or a copy 
 thereof had not been filed according to the provisions of 
 this Act." 
 
 By s. 6, " it shall be lawful for any Judge of the said Jiemo.-r,n- 
 
 J ' JO dum of sa- 
 
 Court of Queen's Bench to order a memorandum of satis- *'«*="="""• 
 faction to be written upon any bill of sale or copy thereof 
 respectively as aforesaid, if it shall appear to him that the 
 debt (if any) for which such bill of sale is given as security 
 shall have been satisfied or discharged." 
 
 By s. 7, " in construing this Act the following words and interpreta- 
 
 •^ " " tion clause. 
 
 expressions shall have the meanings hereby assigned to 
 them, unless there be something in the subject or context 
 repugnant to such constructions : (that is to say), The ex- 
 pression ' bill of sale,' shall include bills of sales, assign- " Bm of 
 
 sale." 
 
 ments, transfers, declarations of trust without transfer, and 
 other assurances of personal chattels, and also powers of 
 attorney, authorities, or licences to take possession of per- 
 sonal chattels, as security for any debt, but shall not in- 
 clude the following documents ; that is to say, assignments
 
 884 
 
 OF THE REGISTRATION OF DEEDS. 
 
 Pr 
 
 Ch 
 
 " Personal 
 chattels." 
 
 W'si/' ^°^" ^^^® benefit of the creditors of the person making or 
 giving the same ; marriage settlements ; transfers or as- 
 signments of any ship or vessel or any share thereof ; 
 transfers of goods in the ordinary course of business of any 
 trade or calling ; bills of sale of goods in foreign parts or at 
 sea ; bills of lading ; India warrants ; warehouse keeper's 
 certificates ; warrants or orders for the deliveiy of goods, 
 or any other documents used in the ordinary course of 
 business as proof of the possession or control of goods, or 
 authorising or purporting to authorise, either by endorse- 
 ment or by delivery, the possessor of such document to 
 transfer or receive goods thereby represented : The expres- 
 sion ' personal chattels ' shall mean goods, furniture, fix- 
 tures, and other articles capable of complete transfer by 
 delivery, and shall not include chattel interests in real 
 estate, nor shares or interests in the stock, funds, or secu- 
 rities of any government, or in the capital or property of 
 any incorporated or joint stock company, nor choses in 
 action, nor any stock or produce upon any farm or lands 
 which, by virtue of any covenant or agreement or of the 
 custom of the country, ought not to be removed from any 
 farm where the same shall be at the time of the making 
 or ffivinff of such bill of sale : Personal chattels shall be 
 deemed to be ui the ' apparent possession ' of the person 
 making or giving the bill of sale, so long as they shall 
 remain or be in or upon any house, mill, warehouse, 
 building, works, yard, land, or other premises occupied 
 by him, or as they shall be used and enjoyed by him in 
 any place whatsoever, notwithstanding that formal posses- 
 sion thereof may have been taken by or given to any other 
 person." 
 
 By s. 8, " this Act is not to extend to Scotland or Ire- 
 land." 
 
 By the stat. 29 & 30 Vict. c. 96, it is enacted as follows : 
 — " The Principal Act (17 & 18 V. c. 36) and this Act shall, 
 
 " Apparent 
 possession." 
 
 Construction 
 of Act.
 
 OF THE REGISTRATION OF DEEDS. 850 
 
 as far as. is consistent with the tenor of such Acts, he pt. 111.T.12, 
 
 ' Ch. 7, s. 3. 
 
 construed together " (s. 1). 
 
 " The Principal Act may he cited as ' The Bills of Sale ^boit titles. 
 Act, 1854,' and this Act may he cited as ' The Bills of Sale 
 Act, 1866' " (s. 2). 
 
 "The filincj of a hill of sale, or a copy thereof, with Definitiouof 
 
 o ' I- -J ' registratiou 
 
 the affidavit required hy the Principal Act, is herein- gaie.^'^*^"^ 
 after referred to as the registration of a hill of sale " 
 (S.3). 
 
 " The registration of a hill of sale under the Principal Renewal of 
 
 ^ ^ registration 
 
 Act shall, during the suhsistence of such security, he re- g^g'^^®"^ 
 newed in manner hereinafter mentioned once in every 
 period of five years, commencing from the day of the 
 registration, and, if not so renewed, such registration shall 
 cease to he of any effect at the expiration of any period 
 of five years during which a renewal has not heen made 
 as herehy required, subject to this provision, that where a 
 period of five years from the original registration of any 
 l)ill of sale under the Principal Act has expired hefore the 
 1st day of January, 1867, such bill of sale shall he as valid 
 to all intents and purposes as it would have heen if this 
 Act had not heen passed, if such registration he renewed 
 in manner aforesaid hefore the 1st day of January, 1867 " 
 (s. 4). 
 
 " The registration of a hill of sale shall he renewed by Mode of re- 
 
 nevviug bill 
 
 some person filing in the office of the Masters of the Court of^saie^ ^ ^ 
 of Queen's Bench (being the officers acting as clerk of the ^'^x^'i^' 
 docquets and judgments in the said court) an affidavit stat- 
 ing the date of such bill of sale, and the names, residences, 
 and occupations of the respective parties thereto as stated 
 therein, and also the date of the registration of such bill of 
 sale, and that such bill of sale is still a subsisting security, 
 and such Masters shall thereupon number such affidavit 
 and re-number the original bill of sale or copy filed in the 
 said office with a similar number " (s. 5.) 
 
 u2
 
 886 REGISTKATION AND ENKOLMENT OF DEEDS. 
 
 pt. iii.t.12, Where a conveyance is made of real estate, and that 
 
 conveyance carries the fixtures on the property conveyed, 
 
 this Act lias no application to such a case (vi). 
 
 Section IV. 
 Of tlm, Enrolment of Deeds. 
 Pt. iii.t.12, Dccds are sometimes enrolled for safe custody, that is, 
 
 Ch. 7, s. 4. J ' ' 
 
 they are transcribed upon the records of one of the Queen's 
 
 Enrolment "^ ^ 
 
 of de^dsfor Courts at "Westminster or at a court of quarter sessions io). 
 
 safe cubtody. -L \ ' 
 
 The enrolment of a deed does not make it a record, hut it 
 thereby becomes a deed recorded (^j). 
 Euroimentof Dccds coiiveyim? or affectinc; lands or tenements in 
 
 deeds re- JO ^ o 
 
 iitiuc; to he- Loudoii, or auv interest therein, may be enrolled either in 
 
 reditaiiients ' j ' ^ 
 
 m London. ^|jg Hustiugs of Plcas of Land or Common Pleas, the exe- 
 cution thereof being first acknowledged before the Mayor 
 or the Eecorder and one Alderman, and proclamation 
 thereof being made at one of these Courts {cf). 
 
 Section V. 
 
 Of the Possession and Transfer of Title Deeds. 
 
 Pt. III.T.12, The immediate freeholder has, both at law and in equity, 
 a prima facie title to the possession of the deeds (i"). 
 
 («) Mather v. Fraser, 2 K. & J. 263. As to tlie enrolment of annuity 
 
 536, 558. deeds and deeds of bargain and sale, 
 
 As to registration under the Trans- see supra, pp. 15, 16, 682. 
 
 fer of Land Act, see supra, 561. (r) 9 J arm. & Byth. by Sweet, 90 ; 
 
 (o) 4 Cruise T. 32, c. 28, § 34. Alhjood v. Ileywood, 1 Hurl. & Colt. 
 
 (j,) 4 Cruise T. 32, c. 28, § 35. 745. 
 
 {q) 1 Jarm. & Byth. by Sweet,
 
 POSSESSION AND TRANSFER OF TITLE DEEDS. 887 
 
 A joiutress or dowress will not be compelled to deliver ^J'^l^JP' 
 
 up title deeds, unless the person applying for tliem not 
 
 ^ ' ^ J- J. ^ O p083( ssiou 
 
 only offers to confirm, but does absolutely confirm, the ot'iieeds. 
 
 Delivery up 
 
 iomture or dower (s). ot tiiie deeds 
 
 ^ ^ by a joiutress 
 
 The right to title deeds, like that to other personal pro- "'" do^i-ess. 
 
 TruDsfcr 
 
 perty when in actual possession, may be transferred either a.id trans- 
 
 by deed or by delivery made with that intention ; but if ^eeds. 
 not transferred, it descends with the land (t), and passes 
 with it by conveyance, without being named (u). It is 
 advisable, however, to add a grant of the deeds, where the 
 purchaser is entitled to the custody of them (x). 
 
 Section VI. 
 
 Of Attested Copies and Covenants for Production of 
 Documents of Title. 
 
 Where property is sold in lots or parcels, either at one pt.iii. t.i2, 
 time or at several times, or where only a part of the pro- 
 
 , , General rule. 
 
 perty is sold, and there are documents of title which relate 
 to tlie whole, it is usual for the person who keejjs the deeds 
 to enter into a covenant with the owner or owners of the 
 other part or parts, for the production, at the expense of 
 the covenantee or covenantees, of the documents of title so 
 kept, whenever it shall be necessary for the manifestation 
 or support of the title of the covenantee or covenantees. 
 Sometimes the vendor retains the documents, and enters 
 into this covenant with a purchaser or purchasers, espe- 
 cially where he retains the most valuable part of the estate. 
 At other times, a purchaser, especially of the part of the 
 greatest value, retains the documents, and enters into such 
 
 (s) 1 Cruise T. 7, c. 2, § 12, 14. («) Sugd. Concise View, 322. 
 
 ( t ) Burton, § 476. (a;) fSugd. Concise View, 416.
 
 ATTESTED COPIES AND COVENANTS TO niODUCE. 
 
 Pt. III.T.12, 
 
 Ch. r, s. 6. 
 
 Of what 
 documents 
 a purchaser 
 is entitled to 
 atteate I 
 copies yiui 
 a coven auc 
 lor pr.jiiuc- 
 tion. 
 
 This cove- 
 nant runs 
 with the 
 land. 
 
 Assignees in 
 bankruptcy 
 bound. 
 
 irse of at- 
 tested 
 copies. 
 
 a covenant with tlie vendor, or with the other purchaser or 
 purchasers (ij). A covenant for production of deeds should 
 in most cases be by a separate deed (z). 
 
 In the absence of a stipulation to the contrary, the pur- 
 chaser is entitled to attested copies and a covenant for the 
 production of every document which the vendor is obliged 
 to state in his abstract, and which is not delivered up to 
 him, except documents on record, copies of court rolls 
 (unless in the possession or power of the vendor), wills 
 proved in the Ecclesiastical or Probate Courts, bargains 
 and sales enrolled under the stat. 10 Ann. c. 18, and gene- 
 rally documents j)reserved in some general or quasi public 
 repository, from whence copies may be obtained that will 
 be admissible as primary evidence («). And this covenant, 
 being real, will run with the land conveyed for the benefit 
 of all future purchasers of it, without a fresh covenant on a 
 re-sale. But if the deed containing such covenant be not 
 delivered to a future purchaser, he will then be entitled to 
 a new covenant from the vendor for the production of the 
 title deeds (h). 
 
 Even assignees in bankruptcy are bound, at the expense 
 of the estate, to furnish the purchaser with attested copies 
 of the deeds which they retain, and to covenant for the 
 production of the originals so long as they remain in 
 of&ce (c). 
 
 Attested copies are useless as against strangers, and can- 
 not be used on an ejectment, unless perhaps as between 
 the parties themselves {d). 
 
 (ij) 4 Cruise T. 32, c. 25, § 97 ; 
 Burton, § 475, 582 ; 9 Jarm. & Bytli. 
 by Sweet, 4, 5. 
 
 (z) Sugcl. Concise View, 334. 
 
 69 ; Sugd. Concise View, 331—333. 
 (6) 4 Cruise T. 32, c. 25, § 97. 
 (c) 9 Jarm. & Bytli. by Sweet, 
 
 70 ; Sugd. Concise View, 334. 
 
 (a) 9 Jarm. & Bytb. by Sweet, (d) Sugd. Concise View, 334.
 
 OF MISTAKES IN DEEDS. 889 
 
 Section VII. 
 Of Mistahes in Deeds (e). 
 Evident omissions and mistakes may be supplied and ^CH!V's.'r!' 
 
 rectified (/). correction 
 
 Wliere it is evident from the nature of tlie case or *^'^'"®°^- 
 
 Name of one 
 
 from the rest of the deed, that the name of one of the Pf.ty"'sert- 
 
 ctl 111 3, SCI" 
 
 parties was inserted by mistake for the name of the other, InsteaTof 
 such a mistake will be corrected : as where by articles of ofher.'' 
 separation it was stipulated that the trustees should in- 
 demnify the husband against his own debts, instead of his 
 wife's debts ((f). 
 
 If a man clearly purchases an estate by a particular of couveyauce 
 sale, and in the conveyance part of the land is left out, J^fg g^ij' 
 equity will relieve Mm. And, on the other hand, it will 
 relieve a vendor, where more land has passed than was 
 contracted for (Ji). 
 
 Where by mistake an instrument inter vivos is not what inistrument 
 
 "^ not what 
 
 the parties intended, or there is a mistake in it other than "^^ '"*',"''" 
 
 i ' ed, or there 
 
 a mistake in law, or any acts necessary to give validity to OTnecesKuy 
 the instrument have been omitted, and the mistake is omit'tel 
 clearly made out by admissible and satisfactory evidence, 
 or is admitted by an answer to a bill, equity will rectify 
 the same (i), except as against a bona fide purchaser for 
 valuable consideration without notice (J), or other person 
 
 (e) For some otlier points con- View, 117 ; Meadows v. Meadows, 
 
 nected witli tlie subject of Mistalce, 16 Beav. 401 ; Murray v. Parker, 
 
 the reader is referred to the Index, 19 Beav. 305 ; Torre v. Torre, 1 S. 
 
 tit. "Mistake." & G. 518 ; Re Morse's Settlement, 21 
 
 (/) 4 Cruise T. 32, c. 19, § 29, 31. Bear. 174 ; Wright v. Goff, 22 Beav. 
 
 {g) Wilson v. Wilson, 5 H. L. 207 ; Woltcrheek v. Barroio, 23 Beav. 
 
 Cas. 40, 52—7, 59, 63—71. 423. 
 
 (A) Sugd. Concise View, 231. {j) Story's Eq. Jur. §165; 2 
 
 (i) Story's Eq. Jur. § 152, 157 Spence's Eq. Jur. 195. 
 159, 166, 168, and see Sugd. Concise
 
 890 
 
 OF MISTAKES IN DEEDS, 
 
 Pt. ITI.T.12, 
 C'H, 7, s. 7. 
 
 Instruineut 
 not calcu- 
 lated to ef- 
 f(^ct intend- 
 ed purpose. 
 
 AVbere mis- 
 taki' not 
 rL-meilied in 
 lavinir (fa 
 stranger. 
 
 Variances 
 between 
 filial instru- 
 ment and 
 pi-eliminary 
 contract. 
 
 Evidence 
 of mistake. 
 
 having an equity e(|Tiiil to tliat of the phaintiff (/.;), such as 
 the issue in tail, or a remainderman in tail, where there is 
 no equity to affect the conscience of such issue or remain- 
 derman (/). But in order to enable the Court to rectify 
 an ante-nuptial settlement Ly striking out a part, it must 
 be proved that it contains something which has been in- 
 serted by mistake, contrary to the intention of all the 
 parties {m). 
 
 Where an instrument is substantially what the parties 
 intended, although so framed under a mistaken view of 
 the law, the Court will not rectify the mistake {%). A 
 bond to leave or convey property has, however, been 
 sometimes upheld in equity as an agreement defectively 
 executed (o). 
 
 The Court of Chancery will not remedy a defect or 
 supply an omission in a deed in favour of a stranger, 
 where there is no consideration, even in the plainest case, 
 and even when it has arisen from mere mistake, and 
 though the correction would not be inconsistent with the 
 deed {p). 
 
 Where the final instrument of conveyance or settlement 
 differs from the preliminary contract, that very circum- 
 stance affords of itself some grounds for presuming an in- 
 tentional change of purpose, unless, from some recital in 
 it, or from some attendant circumstances, it appears to have 
 been intended to be merely in pursuance of the original 
 contract {q). 
 
 As regards the admissibility of the evidence, it is a 
 rule of the common law, independently of the Statute of 
 Frauds, that parol evidence is not admissible to disannul, 
 
 {k) Story's Eq. Jur. § 176. 
 {I) Story's Eq. Jur. §178. 
 (m) Rooke v. Lord Kensin'jton, 2 
 K. & J. 753, 764. 
 
 (n) Story's Eq. Jur. § 113—115. 
 
 (o) Story's Eq. Jur, § 136 
 Spence's Eq. Jur. 886. 
 
 (i>) 2 Spcuce's Eq. Jur. 886. 
 (q) Story's Eq. Jur. § 160.
 
 OF MISTAKES IN DEEDS. 81)1 
 
 substantially add to, subtract from, qualify, or vary a tt. rii.T.12. 
 
 Ch. 7, s. 7. 
 
 Mvitteii instrument (/■). But cases of accident, mistake, 
 
 fraud, menace, and duress, are exceptions to this rule (s). 
 
 Section VIII. 
 Of Alterations in Deeds. 
 A deed should not be in any way altered after delivery, pi-hi.t.is, 
 
 •^ "^ _ _ "^ ' Ch. 7, s. 8. 
 
 but any alteration that may be requisite should be made : 
 
 "^ ^ X Alteratii '113 
 
 before the execution of the deed. Any alteration made ^ade'bl-fore 
 before the delivery of the deed, by whomsoever made, will ^^<^'='^'^^'^"- 
 not invalidate the deed ; for in that case the addition 
 constitutes part of the deed as it originally began to 
 operate (f). 
 
 An interlineation, if nothing appears to the contrary, wheninter- 
 
 . Til 1 1 • 11 lineations 
 
 Will be presumed to have been made at the time when the are presum- 
 ed to have 
 
 deed was executed, and not afterwards ; because a deed ^^^^ ^'^^''• 
 cannot be altered after it is executed without fraud or 
 wrong, which will not be presumed. But an erasure or 
 alteration in a suspicious place must be explained by the 
 party seeking to enforce the instrument (u). 
 
 The modern practice is, when any alteration, interlinea- Modem 
 
 practice. 
 
 tion, or erasure is made in a deed before it is executed, to 
 take notice of it in the attestation (sc). 
 
 It would seem, however, that at the present day no deed immaterial 
 
 alterations. 
 
 (;•) See Story's Eq. Jiir. § 153, {t ) 1 Pres. Shep. T. 69. 
 
 158 ; and see also Sugd. Concise (m) 4 Cruise T. 32, c. 26, § 14 ; 
 
 View, ch. 3, sects. 8, 9 ; Best on Burton, § 443 ; Best on Evid. 3rd 
 
 Evid. 3rd ed. 302. ed. 309 ; Doed. Tatumx. Catomorc, 
 
 (s) Story's Eq. Jur, § 155, 156, 16 Ad. &E. (N. S.) 746. 
 
 161, notes ; Best on Evid. 3rd cd. {x) 4 Cruise T. 32, c. 26, § 15. 
 306.
 
 892 
 
 OF ALTERATIONS IN DEEDS. 
 
 Pt. 111. T. 12, 
 
 Ch. 1, 8. 8. 
 
 Material 
 alterations. 
 
 would be lield void on account of any immaterial altera- 
 tion, after execution, Ijy whomsoever made (?/). 
 
 An alteration, even in a material part, by a stranger or 
 a mere spoliator, without the consent of the party bene- 
 fited, would not invalidate a deed (z). But an erasure or 
 alteration made in a material part by the party benefited, 
 at least if the alteration is in his own favour, will malce a 
 deed void as against the ojoposite party (a). 
 
 Any alteration made after the execution of a deed by 
 any one of the parties, leaves the deed valid as to him, 
 provided the alteration has not affected the situation in 
 which he stood (h). 
 
 Section IX. 
 
 Pt. 1II.T.12, 
 
 Ch. 7, s. 9. 
 
 I. Intentiou 
 to be effec- 
 tuated. 
 
 II. Inten- 
 ti m to be 
 collected 
 from the 
 words, and 
 
 Of the Construction of Deeds. 
 I. General Rules of Gonstrtiction of Deeds (c). 
 
 I. All deeds shall be construed favourably, so as to 
 support them and effectuate the apparent intention of the 
 parties, as far as possible, consistently with the ndes of 
 law. Verba intentioni, non e contra, debent inservire {d). 
 
 II. The intention must not be imputed by mere con- 
 jecture, but must be collected from the deed itself {e). And, 
 in general, when there is no ambiguity in the words, no 
 
 {y) 3 Jarm. & Byth. by Sweet, 
 18 ; Eest on Evid. 309. But see 4 
 Cruise T. 32, c. 26, § 13. 
 
 (z) See 4 Cruise T. 32, c. 26, 
 § 12 ; 1 Pres. Shep. T. 69 ; Burton, 
 §443. 
 
 {a) See Burton, § 443 ; 4 Cruise 
 T. 32, c. 26, § 12, 13 ; 2 Bl. Com. 
 308. But see 3 Jarm. & Byth. by 
 Sweet, 18, 19. 
 
 (&) 4 Cruise T. 32, c. 26, § 12, n. 
 
 (c) For other rules of construc- 
 tion of deeds and other instruments 
 inter vivos, the reader is referred to 
 the specific heads to which they 
 belong. - 
 
 (d) 4 Cruise T. 32, c. 19, § 2 ; 2 
 Bl. Com. 379, 380 ; Burton, § 503. 
 1 Pres. Shep. T. 86, 253, n. 
 
 ( e) See Burton, §504, 510.
 
 OF THE CONSTRUCTION OF DEEDS. 893 
 
 construction is to be made contrary to the words (/). ^ch^tJo^' 
 Exceptions occur to this rule in cases where a construction ^^^^^^^^^^ 
 is adopted in furtherance of the general or paramount •"J'toThe''^" 
 intention, contrary to words merely expressive of a par- ^°' ^' 
 ticular or subordinate intention {g), and also in cases where 
 an instrument is allowed to operate in a different way 
 from that which was intended (Ji). 
 
 III. As a Efeneral rule, words are to be construed in m. when 
 
 o ' words are to 
 
 their strict and proper sense. Thus, where a person agrees Ihelr'^tric" 
 not to carry on a business or profession in London, the ^^"^^" 
 word London is taken in its primary and strictly correct 
 sense of the city af London, and not in its popular and 
 colloquial sense, although the party in whose favour such 
 agreement is entered into is not carrying on that profession 
 or trade in the city of London, but in another part of the 
 metropolis ; at least, this is the case where that party, by 
 describing the locality of his place of business as situate in 
 the coimty of Middlesex, has shown that he knew that it 
 was not in the city of London {i). But words are not to be 
 construed according to their strict and proper acceptation, 
 where, from the context of the instrument, they appear to 
 be used in a different sense ; or where they are incapable 
 of being carried into effect in their strict sense (/) ; for in 
 such a case, qui hteret in litera liseret in cortice (Jc). And 
 hence, in a deed, as well as in a will, " or " may be con- 
 strued to mean " and," and " and " may be construed to 
 mean "or," if such a construction is necessary to give 
 effect to the intention (/). The meaning of a particular 
 
 (/) 2 Bl. Com. 379 ; 4 Cruise T. W. 517, 518 ; Key v. Key, 4 D. M. 
 
 32, c. 19, § 4. & G. 84, 85. 
 
 (r/) See supra, p. 161, et seq. {h) 2 Bl. Com. 379 ; 4 Cruise T. 
 
 (h) See infra, p. 897. 32, c. 19, § 4 ; 1 Pres. Shep. T. 87. 
 
 (i) MaUan v. May, 13 M. & W. (l) 4 Cruise T. 32, c. 19, § 19 ; 
 
 511. Burton, § 510 ; 1 Jarm. Wills, 2nd 
 
 {j ) 1 Pres. Shep. T. 87 ; Pollock, ed. 422, 433 ; White v. Siqjple, 2 
 
 C. B., in Mallan v. May, 13 M. & Dru. & War. 471 ; Pitt v. Pitt, 22
 
 804 
 
 GENERAL RULES OF 
 
 Pt. Ill T12 
 
 Ch. 7, s. 9. 
 
 IV. Sense 
 agresable to 
 law pre- 
 ferred. 
 
 V. Construc- 
 tion of gene- 
 ral expres- 
 sions. 
 
 VI. When 
 general 
 words are 
 to be fol- 
 lowed, and 
 when spe- 
 cial. 
 
 VII. Uncer- 
 tainty. 
 
 ^v'o^d may also be shown by parol uvidcnce to be different 
 in some particular place, trade, or business, from its proper 
 and ordinary acceptation (m). And wliere it is necessary 
 to efi'ectuate the intention, words and clauses may be 
 transposed ; the strict grammatical sense may be dis- 
 regarded ; the word " same," though properly referring 
 always to the last antecedent, may, to avoid contradiction, 
 be differently applied {%). 
 
 IV. If words will bear two senses, one agreeable and 
 another contrary to law, that sense is to be preferred 
 which is most agreeable to law. For example, if a tenant 
 for life makes a lease for life generally, it shall be construed 
 for his own life only, and not for the life of the lessee, 
 which is beyond his power to grant (o). And so, vinder a 
 general conveyance of lands and tenements, copyholds are 
 held not to he included ( p). 
 
 V. Generale dictum generaliter est intelligendum, or, 
 verba generaliter dicta generaliter accipienda {q). 
 
 VI. Wlien, however, there are general words, and these 
 are followed by special words which are consistent with 
 them, the deed shall be construed according to the special 
 words. But when a deed first contains special words, and 
 then concludes in general words, both the general words 
 and the special shall stand (?-). For, in the first case, 
 the general words may be considered as merely intro- 
 ductory ; whereas, in the latter case, they could only have 
 been inserted with the view of enlarging the operation of 
 the deed. 
 
 VII. Where the words of a deed are so uncertain that 
 
 Beav. 294 ; Blaynard v. Wriglit, 26 (o) 2 Bl. Com. 380 ; i Cruise T. 
 
 Beav. 285. 
 
 (m) PollocJc, C. B. in Median v. 
 May, 13 M. & W. 517, 518. 
 
 (n) 4 Cruise T. 32, e. 19, § 10— 
 12 ; Burton, § 509 ; 1 Pres. Shep. 
 T. 87 ; 2 Pres. Shep. T. 253, n. 
 
 32, c. 19, § 18 ; Burton, § 1332 ; 
 Co. Litt. 42 a, 183 a. 
 
 (p) Burton, § 1332. 
 
 (q) Co. Litt. 36 a. 
 
 (r) See 4 Cruise T. 32, c. 19, § 9.
 
 CONSTRUCTION OF DEEDS. 895 
 
 tlie intention of the parties cannot be discovered, the deed ^i;. 111.T.12, 
 ■'■ ' Ch. 7, s. 9. 
 
 will be void (s). 
 
 VIII. The construction should be made, not merely viii. cou- 
 
 •^ structiou to 
 
 upon particular parts of a deed, but upon the entire deed, ^^ijoi^^^egj® 
 so as to give effect, if possible, to every part and every 
 word (t). 
 
 IX. If one part of a deed is so ambiguously worded, that ^^;^^^^ 
 it is equally capable of two different constructions, one of oJ^'i^o^rds 
 which is in accordance with, and the other conflicts with 
 another part of the deed, about the meaning of which 
 there is uo doubt, the former construction must be 
 adopted («). If there are two clauses m a deed so totally 
 repugnant to each other, that they cannot be reconciled, 
 there, unless contrary to the apparent general intention, 
 
 the first shall be received, and the latter rejected (x). But 
 if in any part of an instrument there is or are any clause 
 or words evidently repugnant to the other parts of it, and 
 to the general intention apparent upon the whole instru- 
 ment, such clause or words will be rejected (y). 
 
 X. So far as the api^arent intention and the rules of law x. construc- 
 
 tion to be 
 will admit, the construction ought to be reasonable and reasonable. 
 
 agreeable to the common imderstandiug of mankind (z). 
 
 And therefore a grant of common in a manor will extend 
 
 to commonable places only, and not to gardens, orchards, 
 
 &c. And so a grant of a right to dig for metals, will not 
 
 confer a right to dig under the grantor's house, so as to 
 
 endanger it (a). 
 
 XI. The words of an indenture are the words of either xi. nuie as 
 
 to the words 
 
 party. And although they are spoken as the words of the f »» iaden- 
 
 (s) 4 Cruise T. 32, c. 19, § 24. 32, 0. 19, § 8 ; Burton, § 512. 
 
 it) 2 Bl. Com. 380 ; 4 Cruise T. (y) 4 Cruise T. 32, c. 19, § 25 ; 9 
 
 32, c. 19, § 6; Burton, § 504, 510 ; Jarm. & Bytli. by Sweet, 85. 
 
 1 Pres. Shep. T. 87. (2) 2 BI. Com. 379 ; 2 Pres. Shep. 
 
 (m) Herrick v. Sixhj, L. K 2 Ap. T. 253, n. 
 
 Ser. (P. C), 436, 450. (a) 1 Pres. Shep. T. 87. 
 
 {x) 2 Bl. Com. 381 ; 4 Cruise T.
 
 896 
 
 GENERAL RULES OF 
 
 Pt.IU. T.12, 
 
 Ch. 7, s. 9. 
 
 XII. Words 
 construed 
 most 
 strongly 
 afcainst the 
 active party. 
 
 XIII. Inad- 
 missibility 
 of averments 
 founded ou 
 parol evi- 
 dence. 
 
 one party only, yet they are not his words alone, but may 
 be applied to the other party, if they more proj)erly belong- 
 to him (h). 
 
 XII. Subject to all other rules of exposition, it is a rule 
 that a deed is to be construed most strongly against the 
 grantor, covenantor, or active party, and most favourably 
 to the grantee, covenantee, or person intended to be bene- 
 fited. Verba cartarum fortius accipiuntur contra proferen- 
 tem. For, the principle of self-interest will make men 
 sufficiently careful not to prejudice themselves by using 
 words of too extensive a meaning. And those who bind 
 themselves by deed would always adopt ambiguous ex- 
 pressions, if they were afterwards at liberty to put their 
 own construction on them (c). And although this applies 
 with more force to a deed poll than to an indenture, in 
 which the words are deemed the words of both, yet the 
 rule applies even in the case of an indenture (d). 
 
 XIII. No averment founded on parol evidence, which 
 tends to contradict, or vary, or, in general, even to explain 
 a written agreement concerning lands, shall be admitted, 
 except in certain cases of fraud, accident, or mistake (e). 
 But averments founded on parol evidence of collateral facts 
 tending to support or explain a deed have in some cases 
 been admitted ; as in the case of an averment of a consi- 
 deration for a bargain and sale (/). In the case of an 
 ambiguitas patens, i.e., where the words themselves prima 
 facie import an ambiguity, no parol evidence is admissible 
 to explain it. But in the case of an ambiguitas latens, i.e., 
 where there is no ambiguity on the face of the instrument, 
 
 (b) 1 Pres. Shep. T. 53. 
 
 (c) 2 Bl. Com. 380 ; 4 Cruise T. 
 32, c. 19, § 13 ; 1 Pres. Shep. T. 88, 
 and n. (81) ; Warde v. Warde, 16 
 Beav. 103. 
 
 {d) See Burton, § 511 ; Co. Litt. 
 30 a ; Warde v. Warde, 16 Beav. 
 
 103. But see 2 BL Com. 380 ; 4 
 Cruise T. 32 ; c. 19, § 17; 1 Pres. 
 Sliep. T. 53. 
 
 (e) 4 Cruise T. 32, c. 19, § 45, 48, 
 56 ; Burton, § 508. 
 
 (/) 4 Cruise T. 32, c. 19, § 49.
 
 CONSTKUCTION OF DEEDS. 897 
 
 l)ut an ambiguity can be made to appear from parol evi- ^i;. in.T.12, 
 
 dence, there parol evidence is admissible to explain as well 
 
 as to raise it. Thus, if it appears by parol evidence that 
 there are two persons or things of the same name, it is 
 allowaljle to adduce parol evidence in order to remove the 
 ambiguity, by showing which was intended (jj). And parol 
 evidence is admissible, whether in the case of a deed or of 
 a will, to explain the situation of the parties or the state of 
 the facts at the time, on wliich the extent of the operation 
 of the deed or will must frequently depend Qi). 
 
 XIV. Where a deed cannot operate in the way intended ^JJo /'p®''^" 
 by the parties, it will be construed in such a manner as to dfff^rent' 
 operate, in some other way, if it is possible, consistently what w^ 
 with the rules of law and tlie general intention of the 
 parties. Quando quod ago non valet ut ago, valeat quan- 
 tum valere potest {i). Thus, a deed, which was intended 
 to operate as a bargain and sale, but was void for want of 
 a pecuniary consideration, has been held to operate as a 
 confirmation (7). And so, if a person having a power of 
 appointment, but no estate, uses the language of convey- 
 ance appropriate to the transfer of estates, and not the 
 language appropriate to the exercise of his power, it will 
 be deemed an exercise of his power (JS). And, on the other 
 hand, the words " limit and appoint " may operate by way 
 of grant {t). So the word " grant " will operate as a con- 
 firmation ; and the word " confirm " may in some cases 
 operate by way of grant or release {ni). So a conveyance 
 
 {rj) 4 Cruise T. 32, c. 19, § 53— T. 30S, 514 ; Burton, § 505 ; 4 Jarm. 
 
 55 ; Burton, § 507 ; Sugd. Concise & Byth. by Sweet, 106. But see 
 
 View, 115 ; Best on Evid. 3rd cd. Co. Litt. 301 b ; Johnson \. Osen- 
 
 302—5. ton, L. E. 4 Ex. 107. 
 
 (It) 9 Jarm. & Byth. by Sweet, (j) 4 Cruise T. 32, c. 19, § 34 ; 3 
 
 821 ; Sugd. Concise View, 115, 116 ; Jarm. & Byth. by Sweet, 591. 
 
 WaterparJc v. Fennell, 7 H. L. Cas. (k) Burton, § 505. 
 
 650, 678, 684. (l) 2 Pres. Shep. T. 514. 
 
 ({) 4 Cruise, T. 32, c. 19, § 33 ; 1 (m) 3 Jarm. & Byth. by Sweet, 
 
 Pres. Shep. T. 82, 87 ; 2 Pres. Shep. 591.
 
 898 
 
 GENEKAL HULES OF 
 
 Pt 
 Ch 
 
 • "IT.12, in tlie form of and void as a ^rant, feoffment, release, bar- 
 
 H. 7, s. 9. o ' ' ' 
 
 gain and salq, or surrender, may sometimes take effect as a 
 
 covenant to stand seised (n). So a feoffment may be con- 
 strued to enure as a surrender (o). And where heredita- 
 ments may not pass by way of surrender, on account of 
 the existence of an intervening estate, if there are sufficient 
 words in the deed, it may enure and pass the property by 
 way of grant, release, &c. (p)- -^^^^ where one thing is in- 
 tended to be granted for another so as to operate in the 
 nature of an exchange, but the things cannot pass by way 
 of exchange, they may pass by way of grant (q). Again, a 
 deed purporting to be an assignment of an old term, may, 
 if that term has by any accident ceased, even operate as 
 the creation of a new one (r). And where a conveyance 
 would have some effect, but not all the effect intended, 
 there, to the end that the main design of the parties may 
 be accomplished, the estate shall pass in another way than 
 that which was intended (s). 
 
 XV. Where a deed may enure in different ways, the 
 person to whom it is made shall have his election in which 
 way to take it (t). Wliere a conveyance by the common 
 law and one by the Statute of Uses concur, that by the 
 common law shall be preferred ; and therefore, wliere the 
 lands are conveyed by bargain and sale, and also by feoff- 
 ment to the bargainee before enrolment, he shall take by 
 the feoffment, unless the bargainor incumbers the estate 
 between the execution of the bargain and sale and the 
 feoffment ; for in that case the bargainee shall be in by the 
 
 XV. Where 
 a ileed may 
 enure in dif- 
 ferent ways. 
 
 (n) 3 Jarm. & Byth. by Sweet, Conv. 3rd ed. by Prest. 192. 
 
 670—1; 2 Pres. Shep. T. 514; 
 Watk. Couv. 3rd ed. by Prest. 192, 
 199,200. 
 
 (o) Watk. Conv. 3rd ed. by Prest. 
 1G7. 
 
 {p) 2 Pres. Shep. T. 308 ; Watk. 
 
 ((?) 2 Pres. Shep. T. 297. 
 (r) Sugd. Concise View, 481. 
 (s) 1 Sugd. Pow.414. 
 (/) 4 Cniise T. 32, c. 19, § 42 ; 1 
 Pres. Shep. T. 205.
 
 COXSTIIUCTIOX OF DEEDS. 899 
 
 bargain and sale, and the enrolment shall relate back in PT.ni.T.12, 
 ° Ch. t, s. 9. 
 
 favour of the bargainee (n). 
 
 An alienation is the lease or grant of the person from 
 whom the right of possession passes, and the confirmation 
 of the other parties till their interest comes into possession ; 
 and from that time it is their lease or grant, and the con- 
 firmation of the other person. If tenant in tail and the 
 reversioner grant a rent charge in fee, it shall be taken to 
 be the grant of the tenant in tail, and the confirmation of 
 the reversioner ; but when the tenant in tail dies without 
 issue, it shall be taken to be the sole grant of the re- 
 versioner (.v). 
 
 XVI. When no time is fixed for the be«;inning of an xvi. com- 
 
 '-' '--^ meucement 
 
 estate, it shall begin immediately (y). of an estate. 
 
 XVII. An instrument, of whatever kind it may be, must xvii. same 
 
 "^ construction 
 
 receive the same construction in every Court, Wliatever j^^^^J^^""^ 
 is its true meaning, must be its meaning everywhere (.:). 
 
 IT. The Construction of particular Expressions in 
 Deeds {a). 
 
 The word " begotten," extends to issue born after the "Begotten." 
 
 o ' and to be 
 
 execution of the deed or will, and the words " to be be- begotten." 
 gotten " extend to issue born before {h) ; unless both these 
 expressions are used, in which case each has its proper 
 signification and efiicacy (c). 
 
 Wliere an act is to be done within a certain number of "From "a 
 
 certain day. 
 
 days " from " a particular day, the day named is excluded 
 
 (it) See 4 Cruise T. 32, c. 9, § 39. other expressions is noticed, 
 
 (x) 1 Pres. Sliep. T. 84. {h) 6 Cruise T. 38, c. 10, § 48 ; 2 
 
 (?/) 1 Pres. Sliep. T. 108. Rop. Leg. by White, 15, 13 ; 2 
 
 (3) 2 Sugd. Pow. 182—3. Jarm. WUls. 2nd ed. 150, 152, 153 ; 
 
 (rt) See Construction of ^Vill^=, Almaclc\. Horn.lT^&m. kll. Q2,0. 
 
 infra, and the Index, tit. "Words," (c) Ckihh \ . Preyulergast , 1 'K. k. 3 . 
 
 &c., as to certain specific heads, 439. 
 
 under which tlie construction of
 
 900 CONSTRUCTION OF PARTICULAE, EXniESSIOXS. 
 
 tt. iir.T.i2, from the computation, imless there are special grounds for 
 
 a different construction {d). 
 
 " Heir fc- The cxpressiou " heir female " in a deed is deemed to 
 
 m;ile. ■•■ 
 
 designate such person as would be heir if females only 
 were capable of being heirs : so that a daughter may take 
 by that designation, though in consequence of the exist- 
 ence of a son, she is not very heir — at least if there are 
 words showing that the word " heir " is not used in the 
 strict technical sense, as where the words " now living " 
 are added (c). 
 
 " insoi- The ordinary meaning of the word " insolvency " is an 
 
 incapacity of paying one's just debts : unless restricted by 
 the context, it is not limited to the condition of one who 
 has taken the benefit of an Act for the relief of Insolvent 
 
 "London." Debtors(/). 
 
 It has been held that the word " London," when used in 
 articles of agreement, and unexplained by express words 
 in the context, is to be understood in its strict and primary 
 sense of " the City of London ;" although, in its popular or 
 colloquial sense, it denotes the cities of London and West- 
 minster, and the borough of Southwark, and the adjacent 
 streets and places ; and although, judging from the general 
 scope and design of the instrument, it was intended to be 
 understood in its popular or colloquial sense. This was 
 decided in a case where an assistant to two surgeon- 
 dentists, who practised in Great Eussell-street, Blooms- 
 bury, but had never practised in the City, agreed not to 
 practise in London, or m any of the towns where they had 
 been practising, without their permission. He afterwards 
 practised in Great Eussell-street, and yet it was held to be 
 no breach of his agreement {g) \ 
 
 ((?) 9 Jarm & Byth. by Sweet, 817. R. 617 ; 1 Tyr. & Gr. 105 ; Re Mug. 
 
 (c) Chambers v. Taylor, 2 My. & gcridges Trusts, 1 Johns. 627. 
 Cr. 37G. (g) Median v. 3fag, 13 M. & V\". 
 
 (/) ParJcer y. Gossage, 2 Cr. 31. & 511. See supra, p. 893.
 
 CONSTRUCTION OF PARTICULAR EXPRESSIONS. 1)01 
 
 The distinction between a mine and a ciuarry is, tliat in pt. 111.T.12, 
 
 ^ J ' Ch. 7, s. . 
 
 mining you only begin on tlic surface, and by means of a ,7— — 17-^ 
 shaft or lateral drift, you work so that you leave a roof !! ^'uaaiel'''' 
 overhead. Whereas in quarrying, you remove the surface. 
 A mine, in its general sense, is that out of which some 
 metal substance is dug by means of sinking shafts or 
 making drifts, but in its strict sense it may include a 
 place out of which any other substance is so dug. And 
 minerals, in the strict sense, may mean any earthly sub- 
 stance worked by means of a mine or a quarry, or it may 
 mean some metal substance so worked, or it may mean 
 substances dug by means of a mine as distinguished from 
 a quarry (li). 
 
 Ordinarily and prima facie, a month, in a contract at "Month." 
 law, means a lunar month, except it be a mercantile con- 
 tract, when it means a calendar month {i). 
 
 Where a father covenants, that, in case he should give "Portion, 
 one daughter, on her marriage or otherwise, a greater por- 
 tion than a specified sum in money or value, his executors 
 would pay such further sum as would make the fortune of 
 another daughter equal to the fortune given to the first ; a 
 gift of a life interest in freehold and leasehold estate made 
 to the first is an additional portion of fortune within the 
 covenant. But the gift of furniture is not (j). 
 
 The word "thiixls " is not confined to real estate, but is "Thirds." 
 a general expression which may signify the interest of a 
 widow in any property, whether real or personal, of her 
 deceased husband {h). 
 
 (/i) EarlofRosse v. Wainman, 14 Chit. Cont. 8th ed. 658 ; Byles on 
 
 M. & W. 859 ; 2 Exch. 800 ; Darvlll Bills, 8th ed. 188. 
 
 V. i?ope?-, 3 Drewry, 296,299—301; (j) Eardleij v. Oivcn, 10 Beav. 
 
 Bdl V. Wilson, L. E. 1 Ch. Ap. 572. 
 
 303. (/,-) TJiompson v. Watts, 2 Johns. 
 
 (/) Sugd. V. & P. 14th ed. 257 ; & Hem. 291. 
 
 X 2
 
 902 
 
 OF ESTOrPEL. 
 
 Section X. 
 
 Pt. III.T.12, 
 
 Ch. 7, s. 10. 
 
 Definition. 
 
 Different 
 kinds. 
 
 How estop- 
 pels are 
 regarded. 
 
 Eeciprocity 
 necessary. 
 
 Affirmation 
 precise and 
 certain. 
 
 A general 
 recital does 
 not, but a 
 particular 
 recital does, 
 work an 
 estoppel. 
 
 Where es- 
 toppel by 
 
 Of Edoi^iid. 
 
 Estoppel or conclusion is the being stopped or debavred 
 by a statement or an act from alleging anything contrary 
 to that wliich such statement expresses or such act im- 
 ports. 
 
 Estoppels are of three kinds : by matter of record, such 
 as a fine or recovery ; by deed ; or by some act, such 
 as entry, payment or acceptance of rent, &c. (/). 
 
 Estoppels are favoured where they operate in support of 
 truth, but they are deemed odious, where they operate as 
 legal traps {^iii). 
 
 An estoppel must in general be reciprocal, that is, it 
 ought to bind both parties {}i). 
 
 Hence, to create an estoppel, there must be an affirma- 
 tion, precise and certain to every intent, and not taken by 
 way of argument or inference (o). 
 
 A general recital does not work an estoppel. But if an 
 indenture contains a recital of a particular circumstance as 
 a fact, it works an estoppel or conclusion, that is, it stops 
 and concludes the party or parties whose averment it is 
 from averring anything contrary to such recital in any 
 legal proceedings founded on that deed {ji). But in some 
 cases of mistake, relief is given in equity (g-). 
 
 Where a recital is intended to be a statement which all 
 
 (/) Co. Litt. 852 a ; Diikc V. 
 Aslihy, 7 Hurl. & Korm. 600. 
 
 (m) Co. Litt. 365 b ; Best on 
 Evid. 3rd ed. 654—5. 
 
 (h) Co. Litt. 352 a; 2Prcs. Sliep. 
 T. 276, n. 
 
 (o) Co. Litt. 352 b. 
 
 (i^) 1 Prcs. Sliep. T. 53 ; 4 Cniise 
 
 T. 32, c. 20, § 24 ; Burton, § 331 ; 
 Co. Litt. 352 b ; Carpenter t. Bul- 
 hr, 8 JL & "W. 209 ; Carter v. Carter, 
 3 K. & J. G17, 644—6 ; Gu-yn v. 
 Neath Canal Co., L. E. 3 Ex. 209. 
 {q) Manual of Eq. 9th cd. tit. 1,
 
 OF ESTOPPEL. 003 
 
 the parties to the deed ]iave mutually ap;reed to admit as ^t. 111.T.12, 
 i -^ ° _ Cu. 7, s. 10. 
 
 true, it is an estoppel upon all. But when it is intended . .... 
 
 to he the statement of one party only, the estoppel is con- p^°° ""o^iy 
 fined to that party. And the intention is to be gathered 
 by construing the instrument. Thus, where in an inden- 
 ture of transfer of securities from one lender to another, 
 there was a recital that money advanced by the transferror 
 was owing, and a covenant to the same effect, this was 
 held to be the statement of the transferror alone ; so that 
 the transferree was not precluded by it from suing on the 
 covenant, on the ground that no money Avas owing to the 
 transferror (;•). 
 
 Where a distinct statement of a particular fact is made Estoppel 
 
 . . confined to 
 
 in a recital, a i')arty to the instrument is not estopped pioceedings 
 
 > i- -^ i-L on the deed. 
 
 from disputing that fact in an action by another party to 
 the same instrument, not founded on that instrument, and 
 wholly collateral to it ; for such recital, thougli evidence of 
 the fact, is not conclusive evidence ; so that evidence of 
 the circumstances under which such statement was made, 
 is receivable, to show that the admission was incon- 
 siderately made, and is not entitled to weight as a proof 
 of the fact which it is used to establish (s). 
 
 Privies in blood, as the heir, except an lieir in tail ; who are 
 
 ^ r n 1 o bound by, 
 
 privies in estate, as the feoffee, lessee, &c. ; privies m lav,', anJ may 
 as the lord by escheat, tenant by the curtesy, tenant in *^"^ "'" ^^' 
 dower, and others who come in by act of law or in the 
 post, shall be bound and take advantage of estoppels by 
 deed (f). But regularly, a stranger, or a feme covert, or 
 an infant, shall not take advantage of an estoppel, for 
 want of mutuality (u). And where a person sues, not in 
 
 (r) StroughillY. Bud, li Ad. &E. T. 32, c. 19, § 60 ; 1 Pres. Shep. T. 
 
 (N. S.) 781. 53. 
 
 (s) Carpenter v. Bailer, 8 M. & (») Co. Litt. 352 a ; 9 Jarm. & 
 
 W. 209 ; Carter v. Carter, 3 K. & J. Byth. by Sweet, 81 ; 2 Pres. Shep. 
 
 617, 644—6. T. 276, ii. ; 4 Cruise T. 32, c. 19, 
 
 {t) Co. Litt. 352 a; 4 Cruise §60. 
 
 take advan- 
 tage of e 
 tcppels.
 
 904 
 
 OF ESTOPPEL, 
 
 Interest 
 created by 
 estoppel 
 under an 
 jndentm-e. 
 
 pt- "I-T-12, his own ridit, but in riolit of another, he must be deemed 
 
 Ch. 7, s. 10. o ' o ' 
 
 a stranger, so as not to be bound by estoppel by a deed 
 
 executed by him in his own right («). Strangers, how- 
 ever, shall both take tlic benefit of and be concluded by a 
 record relating to the disability or legitimation of a 
 person (if). 
 
 Where by deed indented a man directly and unequivo- 
 cally recites that he is owner of an estate, and affects to 
 convey it for valuable consideration, when in reality he has 
 only an interest under a limitation in favour of a person 
 not yet ascertained, or a mere hope or chance of succession 
 as heir apparent, or no interest whatever, there, if by any 
 means he afterwards acquires an interest in the estate, he 
 is estopped, in any legal proceedings founded on that deed, 
 from saying, as against the other party to the indenture, 
 contrary to his averment in that recital, that he had not 
 such interest at the time of its execution (z). And if a 
 lease is made by indenture by a person who at the time 
 liad no interest in the property, but that fact does not 
 appear on the face of the deed, it is a good demise by way 
 of estoppel, and a reversion in the lessor by estoppel is 
 thereby created, which may be conveyed to another person ; 
 and if a lease for a longer term is afterwards made to the 
 lessor by the real owner, the first lease thereupon becomes 
 a lease in interest, the estoppel created by the first lease 
 being fed by the interest created by the second lease of 
 the real ow^ner («). But if a deed operates to any extent 
 actually to pass an interest from the lessor, it shall not 
 
 (x) Metiers v. Brown, 1 Hurl. & 
 Colt. 686. 
 
 {y) Best on Evid. 3rd cd. 655. 
 
 {z) 2 Pres. Shep. T. 328 ; 4 Jarm. 
 & Byth. by Sweet, 125—128 ; 9 
 Jarm. & Byth. by Sweet, 81, 82 ; 
 Bcnsley v. Biirdon, 2 S. & S. 519, 
 affirmed on appeal, 8 L. J. 85. But 
 
 see Stacl-poole v. Btaclcpoole, 4 Dru. 
 & War. 347 ; and Lhyd v. Lloyd, 4 
 Dru. & War. 354. 
 
 (a) Sturgeon v. Winr/jield, 15 M. 
 & W. 224 ; Co. Litt, 47 b ; 2 Pres. 
 Sliep. T. 53, 320, 321 ; 4 Jarm. & 
 Byth. by Sweet, 122, 123, 126 ; Bur- 
 ton, § 850.
 
 OF ESTOPPEL. 905 
 
 afterwards operate by estoppel, tliougli the interest pur- ^''•^l^-^^-''^' 
 
 ported to be granted be really greater than the lessor at 
 
 that time had power to grant : as if A., lessee for the life 
 of B.j makes a lease for years by indenture, and afterwards 
 purchases the reversion in fee, and then B. dies. A, shall 
 avoid his own lease, though the years expressed in the lease 
 be not ex^^ired (h). 
 
 A deed poll cannot create an estoppel in point of estate. Estoppel by 
 But if a deed poll of A. recites that A. by bond did, &c., A. 
 cannot say that there is not any such bond (c). 
 
 The doctrine of estoppel does not prevent a deed from Fraud or 
 being impeachable for fraud or illegality (d). 
 
 Section XI. 
 Of Cancelling Deeds. 
 To cancel a deed, it may either be delivered im for that pt- in.T.12, 
 
 -^ ^ Ch. 1, s. 11. 
 
 purpose to the party who is bound by it, and cancelled by ■ 
 
 Mode of caE- 
 
 him accordingly, by tearing off the seals or otherwise <=«"i"g- 
 defacing it, or the person who has the deed may cancel it 
 by agreement with the other party (e). If the seal, &c., 
 were broken or destroyed by accident, or by a stranger, or 
 by the obligor, the deed would remain in force, on proof 
 that it was sealed and delivered, and accidentally or 
 wrongfully cancelled. To destroy the deed, there must be 
 a cancellation eo animo (/). 
 
 So far as regards the operation of an assurance in vesting Eflfect of 
 
 ■^ o cancelling, 
 
 {h) 4 Cruise T. 32, c. 19, § 58 ; (e) 2 Bl. Com. 308 ; 4 Cruise T. 
 
 Co. Litt. 45 a ; Burton, § 850 ; 1 32, c. 26, § 18. 
 Pros. Shep. T. 53. (/) 1 Pres. Shep. T. 69 ; Burton, 
 
 (c) 1 Pres. Shep. T. 53. § 443. 
 
 {d) Broom's Com. 2nd ed. 283.
 
 906 01<" CANCELLING DEEDS, 
 
 'c'^V'^'n' ^^^ estate or interest in real or personal property, as clis- 
 
 tinguislicd from those operations of the assurance which 
 
 are merely accessory or incidental, it is immaterial, except 
 as to the evidence of original validity, whether the deeds 
 continue in force or not ; for, their whole effect as regards 
 this purpose is instantaneous, and tlie estate which has 
 once passed cannot he recalled ([/). And hence an estate 
 or interest in real or personal property which has once 
 vested by a deed, cannot he devested by cancelling the 
 deed ; because, once vested, it exists, independently of the 
 deed, in the person in whose favour it was created or to 
 Avliom it was transferred (h). So that any freehold estate 
 or a money fund once absolutely vested by a settlement 
 cannot be devested by merely cancelling the deed creating 
 or transferring it ; nor can a lease for years be surrendered 
 by cancelling the indenture of lease ; nor can a lease for 
 years assigned be revested in the assignor by cancelling 
 the assignment. To accomplish the purposes intended, 
 the freehold estate must be conveyed, the benefit of the 
 settlement must be released, the lease for years must be 
 surrendered, and the leasehold estate must be assigned. 
 But a mere contract or obligation, of which the deed is 
 the essence, may be extinguished by destroying the deed 
 with that intent(2). 
 
 (ij) Burton, § 444 ; 2 Jarm. & 20 ; Lord Ward x. Lumlcy, 5 HurL 
 
 Byth. by Sweet, 285; Co. Litt. 225 b, & Norm. 87. But see Co. Litt. 308 b, 
 
 n. (1). as to incorporeal hereditaments. 
 
 {h) 2 Jarm. & Bytli. by Sweet, {I) 2 Jarm. & Byth. by Sweet, 
 
 285; 4 Cruise T. 32, c. 26, § 18— 285.
 
 907 
 
 TITLE XIII. 
 
 OF ALIENATION BY MATTEK OF KECORD (((). 
 
 Assurances hy matter of record arc sucli as do not rx.iii.T.is. 
 entirely depend on the act or consent of the parties 
 themselves, but the sanction of a Court of record is called 
 in to substantiate, preserve, and be a perpetual testimony 
 of the transfer of property, or of its establishment, when 
 already transferred. Of this nature are, 
 
 I. Private Acts of Parliament, 
 II. Royal Grants. 
 
 III. Fines. 
 
 IV. Common Recoveries. 
 
 CHAPTER T. 
 
 OF PRIVATE ACTS, AND ROYAL GRANTS. 
 
 I. Of Private Ads. 
 
 Private Acts are frequently resorted to as a mode of pt.iii.t.is, 
 assurance, in cases where the object of parties can be 
 
 Where they 
 
 effected in no other way : as to unfetter an estate, to give are used, 
 its tenant reasonable powers, or to assure it to a purchaser 
 against the remote or latent claims of persons under legal 
 disability («). 
 
 Acts of this kind are not ijassed without great care to care takea 
 
 to avoid iu- 
 
 (u) See 2 Bl. Com. 344 — 5. But and leases of settled estates, 
 see supra, pp. 597, 689, as to sales
 
 908 OF A PEIVATE ACT. 
 
 TT.ui.T.n, avoid aii}' injustice. No thing is done without the consent, 
 . — : — expressly given, of all parties in being and capable of con- 
 
 justice 3.nn 
 
 mode of as-** scnt, who havc the remotest interest in the matter ; unless 
 Burauce. ^^^q]^ couscnt appears to be perversely and without any 
 reason withheld. And an equivalent in money or other 
 property is usually settled upon infants, or persons not in 
 esse, or not of capacity to act for themselves, who are to 
 bo concluded by the Act. And a general saving is 
 constantly added, at the close of the Act, of the right 
 and interest of all persons wdiatsoever, except those whose 
 consent is so given or purchased, and who are therein 
 particularlynamed ; though even if such saving is omitted, 
 the Act will bind none but the parties {h). 
 Light in A law thus made, though it binds all parties to the Act, 
 
 wbicli pn- •> o L 
 
 regaidcd- '^'° ^'^ ^^^ lookcd upou ratlicr as a private conveyance, than as 
 coustructiou the solemn act of the legislature (c). Hence private Acts 
 
 of private ^ ^ ■' '- 
 
 ^^^^- are construed in the same manner as conveyances that 
 
 derive their effect from the common law (d). 
 
 ^iL'ai'i^t^Js "^^^^ ^^^•'■®' i^fii'giiial notes, and punctuation of an Act of 
 
 «oB.^""*''"'^* Parliament form no part of it, and ought not to be taken 
 into consideration in the construction of it (e). 
 
 Repugnancy. If two scctious of an Act are absolutely repugnant, the 
 last shall prevail (/). 
 
 Time of com- Bcforc the stat. 33 Geo, 3, c. 13, an Act took effect from 
 
 meucemeLt. ' ' 
 
 the first day of the session in which it was passed ((f). But, 
 by that statute, private as well as public Acts commence 
 their operation (unless it be otherwise provided) from the 
 time of the Eoyal Assent being given {li). 
 ^peratwu."^^ Au Act has uo rotrospective operation, unless an inten- 
 
 (6) 2 Bl. Com. 3i5 ; 5 Cruise T. Mac. & G. 651; Willes, J.,in Claydon 
 
 33, § 29 ; Burton, § 482—3. v. Green, L. R. 3 C. P. 522. 
 
 (c-) 2 Bl. Com. 3 IS. (/) Keating, J., in Wood v. Eiley, 
 
 (d) 5 Cruise T. 33, § 39. L. E. 3 C. P. 27. 
 
 (c) Att.-Gcn. V. Lord Weymouth, {g) 1 Jarm. & Bytli. by Sweet, 91. 
 
 Ambl. 22 ; Hunter v. NocMds, 1 (/;) Burton, § 485.
 
 OF A PKIVATE ACT. 909 
 
 tioii that it should so operate is clear from the language ^^-y"'!^-^^' 
 used ( ^ ). 
 
 Acts of Parliament of a local or private nature, if con- when void, 
 trary to reason, or grounded on a false statement or recital 
 in the preamble, or obtained by fraudulent suggestions, 
 have been held to be void (J). 
 
 II. Of Royal Grants. 
 
 These are contained in charters or letters patent (litera3 
 patentes), that is, open letters (IS). 
 
 1. A grant made by the Sovereign, at the suit of the 
 grantee, is taken most beneficially for the Crown, and 
 against the party : whereas the grant of a subject is 
 construed most strongly against the grantor. Wherefore, 
 it is usual to insert in the royal grants, that they are made, 
 not at the suit of the grantee, but " ex speciali gratia, 
 certa scientia, et mero motu reginfe ; " and then they have 
 a more liberal construction. 2. A subject's grant shaU be 
 construed to include many things besides what are 
 expressed, if necessary for the operation of the grant. But 
 a royal grant shall only enure to that which is precisely 
 expressed in the grant. 3. When it appears, from the 
 face of the grant, that the Sovereign is mistaken, or 
 deceived, either in matter of fact or matter of law, as in 
 case of false suggestion, misinformation, or misrecital of 
 former grants ; or if his own title to the thing granted is 
 different from what he supposes ; or if the grant is 
 
 (/) Ellis V. McCormid; L. R. 4 of a grant by letters patent, see 1 
 
 Q. B. 274. Steph. Com. 596. And as to the 
 
 {j) Burton, § 482 ; 2 Bl. Com. subject-matter of royal grants, see 1 
 
 346. Steph. Com. 59S— 9, and Stamp's 
 
 (F) 2 Bl. Com. 346 ; Burton, § Index to the Statute Law, tit. 
 
 486. As to the course of proceed- " Crown Lands," &c. 
 ing with respect to the making out
 
 010 OF A ROYAL fIRANT. 
 
 ri.iir.T. 13, informal ; or if he grants an estate contrary to the rules of 
 
 law ; in any of these cases the grant is absolutely void (/). 
 
 And to prevent the Sovereign from being deceived with 
 regard to the value of the estate granted, it is particularly 
 provided by the stat. 1 Hen. 4, c. 6, that no grant of his 
 shall be good, unless, in the grantee's petition for them, 
 express mention be made of the real value of the 
 lands (m). 
 
 (l) 2 BI. Com. 347 ; sec Att.- 386—7. 
 Gen, V. Eivclme Hospital, 17 Beav. (m) 2 Bl. Com. 348
 
 911 
 
 CHAPTEE II. 
 
 OF FINES. 
 
 Section I. 
 
 Of Fines generally. 
 
 A FINE (finis) was an amicable composition or agreement Pr.iii.T.is, 
 and termination of a suit, either actual or fictitious, 
 
 Definition of 
 
 whereby the lands which formed the subject of such suit afl"«- 
 were acknowledged to be, and thereby became, the pro- 
 perty of one of the parties, to whom the fine was levied. 
 In its origin it was founded on an actual suit, commenced 
 at law for recovery of the possession of land or other 
 hereditaments ; and the possession thus gained by such 
 composition was found to be so sure and effectual, that 
 fictitious actions were commenced, for the sake of obtaining 
 the same security («). 
 
 The mode of levying a fine was this : — 1. The party to Mode of 
 whom the land was to be conveyed or assured commenced fine. 
 an action against the other, generally an action of cove- 
 nant, by suing out a writ of pra3cipe, called a writ of 
 covenant, the foundation of which was a supposed agree- 
 ment or covenant that the one should convey the lands to 
 the other, on tlie breach of which agreement the action 
 was brought. 2. A licentia concordandi, or leave to com- 
 promise the suit, was then obtained from the Court. 
 3. Next came the concord or agreement itself, which was 
 usually an acknowledgment from the deforciants, or those 
 who kept the other out of possession, that the lands in 
 
 (a) 2 Bl. Com. 349.
 
 912 
 
 OF FINES. 
 
 I'T-^iy-T- 13, question were tlie rifflit of the complainant. And from 
 
 this acknowledgment or recognition of I'ight, the party 
 
 levying the fine was called the cognisor, and he to whom 
 it was levied the cognisee (h). 4. The next part was the 
 note of the fine, which was only an abstract of the writ of 
 covenant and the concord, naming the parties, the parcels 
 of land, and the agreement. This was to be enrolled of 
 record in the proper of&ce, by direction of the stat. 5 Hen. 
 4, c. 14. 5. The fifth part was the foot of the fine or 
 conclusion of it, which includes the whole matter, reciting 
 the parties, day, year, and place, and before whom it was 
 acknowledged or levied. Of this there were indentures made 
 or engrossed at the chirographer's oftice, and delivered to 
 the cognisor and cognisee (c). 
 
 By the above proceedings a fine was complete at the 
 common law. But, by several statutes, still more forms 
 were superadded. It is only necessary to mention that, by 
 5 Hen. 4, c. 14, and 23 Eliz. c. 3, all the proceedings on 
 fines were to be enrolled of record in the Com-t of Common 
 Pleas. And by 1 Eich. 3, c. 7, 4 Hen. 7, c. 24, and 31 Eliz. 
 c. 2, fines were to be openly read and proclaimed in court, 
 once in the term in which they were made, and once in 
 each of the three succeeding terms ; and these proclama- 
 tions were to be indorsed on the record (cT). 
 
 Fines are of four kinds : 1. A fine sur cognizance de 
 droit come ceo que il ad de son done, or a fine upon ac- 
 knowledgment of the right of the cognisee, as that which 
 he hath of the gift of the cognisor. This is the best and 
 most usual kind of fine. It acknowledged a former gift or 
 feoffment in possession to have been made by him to the 
 plaintiff, and thereby it virtually conveyed an estate, either 
 of inheritance or at least of an absolute freehold, and gave 
 
 Additional 
 forms re- 
 quired by 
 statute. 
 
 Knes are of 
 f jur kinds. 
 
 (h) 2 Bl. Com. 350. 
 (c) 2 El. Com. 350—1, 
 
 (d) 2 Bl. Com, 352.
 
 OF FINES. 913 
 
 tlie co!i:nisee a seisin in law "svitliout any actual livery, and rT.iii.T.is, 
 
 ° J J ' Cu. 2, s. 1. 
 
 is tlierefore called a fine executed, whereas the others are 
 
 but executory. 2. A fine sur cognizance de droit tantum, 
 or upon acknowledgment of the right merely, not with the 
 circumstance of a preceding gift. This was commonly used 
 to pass a reversionary interest which was in the cognisor. 
 For of such reversions there could be no feoffment or dona- 
 tion with livery supposed, as the possession, during the 
 particular estate, belonged to a third person. 3. A fine sur 
 concessit is where the cognisor granted to the cognisee an 
 estate de novo, usually for life or years, by way of sup- 
 posed composition. And in this case there might be a 
 reservation of a rent or the like ; for it operated as a new 
 grant. 4. A fine sur done grant et render is a double fine, 
 comprehending the fine sur cognizance de droit come ceo, 
 &c., and the fine sur concessit ; the cognisee, after the right 
 is acknowledged to be in him, granting it back again, or 
 rendering to the cognisor or to a stranger some other estate 
 in the premises (c). 
 
 By the stat. 3 & 4 Will. 4, c. 74, s. 2, fines are abolished. Aboiuiou of 
 By s. 5 of the same statute, the fines or common reco- Fine or re- 
 
 ct'VGi'v in 
 
 veries which at any time before the passino- of this Act uuautho- 
 
 f ^ . . "«ed Couit. 
 
 may have been levied or suffered in certain unlawful or 
 unauthorised courts shall not be invalid in consequence of 
 their having been levied or suffered therein. 
 
 By s. 7 of the same statute, errors in fines are rectified in Rectification 
 
 "^ of errors. 
 
 certain cases without amendment. 
 By the stat. 11 & 12 Vict. c. 70, s. 1, after reciting^ that lividencecf 
 
 ° proclama- 
 
 notwithstanding all fines levied in the Court of Common *'<*"*• 
 Pleas at Westminster were levied with proclamations, yet 
 unnecessary trouble and expense were occasionally incurred 
 by parties being required to procure evidence of such pro- 
 clamations having been in fact made, it is enacted that " all 
 
 (e) 2 Bl. Com. 352—3.
 
 914 
 
 OF FIXES. 
 
 ri. III.T.13, fines lieretoforc levied in the said Court of Common Pleas, 
 
 Ch. 2, 3. 1. ' 
 
 shall he conclusively deemed to have heen levied with pro- 
 clamations." But by s. 3, it is provided, that " this Act 
 shall not extend to any fine heretofore levied of or concern- 
 ing any lands, tenements, or hereditaments which at the 
 time of the passing of this Act shall he actually possessed 
 or enjoyed by any person or persons under a title adverse 
 to or inconsistent with the operation of such fine if le%aed 
 with proclamations, but in all such cases it shall be neces- 
 sary for all parties alleging that such fine was levied with 
 proclamations to prove such allegation in the same manner 
 as if this Act had not been made." 
 
 By the stat. 5 Vict. sess. 2, c. 32, intituled " An Act for 
 better recording Fines and Eecoveries in Wales and 
 Cheshire," fines in the abolished Courts of those districts 
 are made good, notwithstanding certain neglects or omis- 
 sions in re2;ard to them. 
 
 Neglects 
 and omis- 
 sioos as to 
 fiaesin 
 Wales auj 
 Cheshire. 
 
 Pt. III.T. 13, 
 Ch. 2, s. 2. 
 
 Importance 
 of the sub- 
 ject. 
 
 Section II. 
 
 Of the Oprro.tion of Fines. 
 
 It is scarcely necessary to obsei'\'e to the legal reader, or, 
 at least, to the practitioner, that, although fines and reco- 
 veries have been abolished some years past, an accurate 
 knowledge of the operation of those assurances will still be 
 of the greatest practical importance, since the Act for their 
 abolition does not set aside the force and effect of those 
 le\-ied or suffered before the year 1834, tliousands of which 
 will therefore continue most materially to affect the title to 
 real property in this country. Such being the case, an 
 attempt will here be made to give a succinct, yet accurate, 
 well-defined, and perspicuous view of that subject, which,
 
 ox THE OPEEATIOX OF FIXES. 915 
 
 in our standard text-books, occupies a considerable space, pt-hi. t.is, 
 and is involved in much intricacy, obscurity, and real or 
 apparent discrepancy. 
 
 A fine was completed when the concord was duly ac- when a fine 
 
 J- '' was com- 
 
 knowledged (/), and it began to operate from the return- ^^/g^flJ f^'^' 
 day of the writ of covenant on which it was levied, which «P«'''^'e- 
 was usually the first day of the term in which it was re- 
 corded {g). 
 
 A fine sur cognizance de droit come ceo, &c., without wiiat estate 
 
 o It passed. 
 
 any qualification in the concord or elsewhere, passed a fee 
 simple, without the word " heirs " (/;). But it miglit be so 
 qualified by express words in the concord, or even in some 
 other deed connected with it, as to pass an estate in tail or 
 for life {i). 
 
 Fines of this sort vary in their efficacy, accordino- to the I's efficacy 
 
 •^ •■' ' ^ vanes with 
 
 ceremonies observed in completing them, the legal character gi'^"™"_ 
 of the parties, and the conduct of the other persons whose 
 rights were affected by them. And it would seem that 
 they might operate in the following ways : — 
 
 I. By way of conclusion or estoppel. Modes of 
 
 'J 'J -Li operation. 
 
 II. As an ordinary conveyance, by way of grant, release, 
 surrender, or confirmation. 
 
 III. As an extinguishment of a right of entry or action. 
 
 IV. As an extinguishment of a power appendant or in 
 gross. 
 
 V. As a revocation of a devise. 
 
 VI. As a conveyance of the estate of a married woman, 
 or as an extinguishment of her dower. 
 
 VII. As a bar to the heirs in tail of the cognizor. 
 
 VIII. As an instantaneous bar of contingent remainders. 
 
 IX. As a simple devestment, without causing any bar in 
 case of non-claim. 
 
 (/ ) 5 Cru. Dig. tit. 35, c. 2, § 71. (A) 5 Cru. Dig. tit. 35, c. 3, § 13 ; 
 
 {g) 5 Cru. Dig. tit. 35, c. 2, § 1 Prest. Conv. 202. 
 73—77. (0 la. s. 14 ; infra, p. 918.
 
 916 
 
 ON THE OPERATION OF FINES. 
 
 PT.ni.T.13, X. As a forfeiture. 
 
 Ch. 2, s. 2, 
 
 XI. Both as a clevestment, and as a bar in case of non- 
 claim. 
 
 XII. As a discontinuance, without causing any bar in 
 case of non-claim. 
 
 XIII. Both as a discontinuance, and as a bar in case of 
 non-claim. 
 
 XIV. As a bar in case of non-claim, without causing a 
 devestment or discontinuance. 
 
 A fine estops 
 the parties. 
 
 and their 
 privies in 
 blood aud 
 
 estate. 
 
 and their 
 vendees, or 
 devisees, &c. 
 
 Illustration 
 of privity iu 
 hlood aud 
 estate. 
 
 I. Conclusion or Estoppel. 
 
 Unless levied by a married woman alone, as such, a fine, 
 whether it were levied Avith proclamations according to 
 the statute or not, operates by estoppel, that is, it estops 
 or prevents the parties, whether cognizors or cognizees, 
 aud their privies in blood and estate, so far as they claim 
 the same interest by the same title, from averring or 
 proving anything contrary to the fine. And privies in 
 blood and estate include those persons who, in order to 
 make title to the estate, must claim immediately through 
 or under the parties themselves, as heirs general to them, 
 and also those who claim derivatively through or under 
 such persons as heirs general to them. A fine likewise 
 operates by estoppel as against vendees or devisees of the 
 parties to it, or of their privies in blood and estate, claim- 
 ing nnder instruments taking effect subsequently to the 
 fine, and those claiming through or under such vendees or 
 devisees, in privity of blood and estate, or as derivative 
 vendees or devisees {j). 
 
 To illustrate what is meant by privity of blood and 
 estate, in reference to the doctrine of estoppel, we may 
 observe, that, if the father disseised the grandfather of 
 
 (,0 See 5 Cm. Dig. c. 12, 5 G ; 21, 30; Prcst. Conv. 2G0 ; Burt. 
 2 131. Com. 355 ; Pi-cst. Sliep. T. 3, Comp. § 79, n. SO, 83.
 
 ON THE OPERATION OF FINES. 917 
 
 land, of wliicli the latter was seised in fee simple, and pt.iii.t.i3, 
 
 ' ^ Ch. 2, B. 2. 
 
 then levied a fine of the land, and then the grandfather 
 
 died, and afterwards the father died, the grandson was 
 barred by the fine ; but, if the father had not survived the 
 grandfather, the grandson would not have been bound (Z;), 
 because the grandson would then have claimed as heir to 
 the grandfather, and not as heir to the father. 
 
 A fine had the operation above mentioned even when rineby 
 
 parties 
 
 none of the parties had any interest in the lands at the Jiaviug no 
 
 ^ '' interest. 
 
 time of levying the fine, and where it was consequently 
 void as to strangers (I). 
 
 Even if a feme covert levied a fine of her estate, but as Rne by a 
 
 married 
 
 a feme sole, the fine, unless avoided by the husband, bound woman, 
 her and her heirs, because she and they were estopped 
 from claiming anything in the lands, and could not be 
 admitted to aver that she was a married woman, that beins; 
 contrary to the record. But her husband might enter and 
 defeat such fine, either during the coverture to restore 
 himself to the freehold, which he held in right of his wife, 
 or after her death to restore himself to his tenancy by the 
 curtsey (w). But if she levied the fine alone, as a married 
 woman, it was void, or at least might be avoided, even by 
 the wife or her heirs (n). 
 
 The issue in tail cannot be bound by estoppel, so as to Estoppel as 
 
 ■^ ^^ ' agaliisttbe 
 
 prevent them from asserting their right to the estate, issue in tail, 
 because they do not claim from their immediate ancestor, 
 but per formam doni (o). It has been decided, however, 
 that, where the issue in tail levied a fine, without procla- 
 mations, in his ancestor's lifetime, the fine so far operated 
 by estoppel, as against himself, and those claiming through 
 him as heirs in tail, as that, by force of the statute 27 
 
 (k) Prest. Shep. T. 21. Sliep. T. 7. 
 
 (0 5 Cru. Dig. tit. 35, c. 5, § 36, [n) Id. c. 5, s. 13 ; 1 Prest. Conv. 
 
 and c. 12, § 6, 7 ; Prest. Shep. T. 255. 
 G, 14 ; Burt. Comp. § 80, S3. (o) 5 Cru. Dig. tit. 3G, c. 2, § 57 ; 
 
 {m) 5 Cru. Dig. tit. 35, c. 5, § 11 ; Pros. Shep. T. 14. 
 
 y2
 
 918 ON THE OPERATION OF FINES. 
 
 ^cb^'1'1^' ■'^^^^'" "'"' ^' ^ ^^^ fiiiibus levatis), it prevented them from 
 
 averring quod partes finis niliil habnerunt; and that as 
 
 soon as the issue in tail succeeded to tlie estate, the in- 
 terest which then existed fed the estoppel Qj). 
 Oper.itiouof The Operation of a fine, whether it enm'es by way of 
 
 a tine may be 
 
 qualified. estoppcl Only or not, may be qualified by another assur- 
 ance so connected with it that both form parts of one and 
 the same transaction ; so that the fine, though of itself ac- 
 knowledging the existence of an absolute fee simple in the 
 cognizee, may be rendered sul^ervient to the particular uses 
 of such assurance, and to the intention of the parties (q). 
 Hence, if A. enfeoffed B. of certain land in fee, rendering 
 rent, with a condition of re-entry for non-payment, and, 
 by indenture covenanted to levy a fine of the same land 
 to the uses and conditions in the deed of feoffinent, the 
 rent and condition were not extinguished by the fine, but 
 remained (?■). 
 
 II. An ordinary Conveyance. 
 
 A fine, whether with or without proclamations, might be 
 employed to effect the same purposes as those which are 
 accomplished under the same or other circumstances by an 
 ordinary conveyance, by way of grant, release, surrender, or 
 confirmation. 
 j^)hit tenlntT Thus, a fiuc Icvicd by one joint tenant to his companion 
 aSas'e^''* Operated as a release; for, each joint tenant being seised 
 per my et per tout before the fine, and the cognizor being 
 estopped by the fine from claiming any estate in the land, 
 the seism per tout, which the other had before the fine, 
 became freed from the participation therein of the cog- 
 nizor, so that the other became thenceforth seised per tout 
 
 {li) Doc (I. Thomas v. Jones, 1 VI.; and see Tyrrell v. Marsh, 3 
 Twynv. 506 ; see infra, XII. Eing. 31 ; S. C, 10 Moore, 305. 
 
 (5) See Co. Litt. 342 b.,. u. (1), (r) Shep. T. 35.
 
 ON THE OT'KKATIOX OF FINES. 919 
 
 simply, iust as ho would have been had the comizor died pt.ih.t.is, 
 
 ^ -^ ' •> '=' Qu, 2, H. 2. 
 
 before him. And if one coparcener in tail levied a fine 
 
 Fine between 
 
 to another coparcener, it operated as a grant. And if a ^°^,^^^tf°"^g 
 tenant in tail made a bargain and sale in fee, and then -^sraut. 
 
 ^ Fine by a 
 
 levied a fine to the bargainee, the fine operated as a con- tenant in taii, 
 
 '^ ^ operating as 
 
 lirmation of the estate which passed by the bargain and ^^0^°''™*" 
 sale. So, if a tenant in tail made a lease not warranted 
 by the statute, confessed a judgment, made a mortgage, or 
 incumbered his estate in any other manner, and after- 
 wards levied a fine with proclamations, it operated as a 
 confirmation of all his prior charges and incumbrances (s), 
 because, by barring the estate tail, it deprived the issue in 
 tail of that right to avoid the estate passed by the bargain 
 and sale, or the charges and incumbrances, which the issue 
 would otherwise have had. 
 
 A fine whicli could only operate by estopel at first. Fine operat- 
 ing first by 
 miu;ht, in some cases, at length take effect as a convey- tstopi)ei ana 
 
 o ' ' <D ^ afterwards as 
 
 ance. Thus, if a fine was levied of an executory interest, ^ncT^a^ 
 ■whether contingent or not, or even of a mere expectancy J^vied otai? 
 of an estate in fee, it operated at first by estoppel only ; it interest or an 
 
 PI- expectancy. 
 
 did not actually transfer the mterest or expectancy ; nor 
 had it any other present effect than that of indirectly 
 binding the interest or expectancy, so as to preserve it for 
 the cognizee, by estopping or preventing the cognizor from 
 contradicting what he had done, by any attempt to dispose 
 of or affect it in any other way. But as soon as the in- 
 terest or expectancy became a vested interest in the cog- 
 nizor, the fine operated as a conveyance to the cognizee, in 
 the same manner as it would have operated in the first 
 instance, if the interest or expectancy had been a vested 
 interest, and, therefore, capable of being transferred (i^). 
 
 (s) See 5 Cru. Dig. tit. 35, c. 9, (t) See Burt. Comp. § SO, 82 ; 
 
 § 39, 40 et seq., c. 12, § 1 — 4; Smitli'ri Executory Interests annexed 
 
 Co. Litt. 200 b., n. (1) ; Pres. Sliep. to Fearne, § 754—756 : Darics v. 
 
 T. 6, 237 ; and supra, p. 234. Bush, M'Clel. & You. 88,
 
 920 ON THE OrEKATION OF FINES. 
 
 pr. III.T.13, In tliese cases, then, the estoppel virtually and finally 
 
 CH. 2y s. 2. 
 
 amounted to, tliough it was not in the first instance, an 
 
 actual transfer of the interest or expectancy to the cog- 
 nizee. 
 
 III. An Extmcjidslimcnt of a BigM of Entry or Action. 
 
 A person who had a right of entry or action could not 
 transfer it ; and hence, if he levied a fine to a stranger, it 
 did not pass to the cognizee, hut the fine enured as a re- 
 lease Ijy way of extinguishment to the benefit of the person 
 to whom the right might have been released, because the 
 cognizor was estopped by the fine from claiming the land, 
 and yet the fine failed to transfer the right to the cognizee ; 
 so that the right became extinguished to the advantage of 
 the person against whom, but for the fine, it might have 
 been asserted. 
 Fine by a Thus, whcre a fine was levied by a disseisee to a third 
 
 disseisee to 
 
 a third person, it could be of no benefit Avhatever to the latter, but 
 
 person. ^ 
 
 virtually operated as an extinguishment of the right of the 
 disseisee, so as to confirm the title of the disseisor ; for the 
 disseisee could not afterwards enter on the disseisor, be- 
 cause he was estopped from saying that the land belonged 
 to him ; nor could the cognizee enter, a mere right of entry 
 not being transferable ; and the right of entry being thus 
 unavailable, both as to the disseisee and cognizor, and as 
 to the cognizee, it was virtually extinguished for the benefit 
 of the disseisor (^v). 
 
 IV. An Extinguishment of a Povjcr aiypcnclant or in gross. 
 
 A fine levied by a donee of a power appendant or in 
 gross might operate as an extinguishment of the power, 
 
 (m) See Pres. Sliep. T. 35 ; 1 § 75, 80. 
 Trest. Conv. 208, 200 ; Burt. Comp.
 
 ON THE OPERATION OF FINES. 921 
 
 where the operation of the fine was not qualified by some pt.hi.t.is, 
 
 VH. 2y S* ^. 
 
 other assurance connected with tlie fine (x). 
 
 But where it appears, from some other assurance con- 
 nected with the fine, that it was not intended to have the 
 effect of extinguishing the power, it will not have that 
 efiect. Thus, Avhere it appears, from a deed leading the 
 uses of a fine, that the fine was levied by husband and 
 wife expressly for the purpose of corroborating a term and 
 securing the regular payment of a life annuity, the fine did 
 not extinguish a power of consenting to a sale of the estate 
 reserved to the wife, so as to prevent an exercise of a power 
 of sale by the trustees, to whom such power of sale, with 
 such consent, was given, because the fine was only intended 
 to effect the particular purpose specified, and not to destroy 
 the power (y). 
 
 V. A Revocation of a Devise. 
 
 If a person levied a fine of lands which ho had devised 
 previously to the fine, and also previously to any other as- 
 surance connected with the fine and forming part of the 
 same transaction, the fine operated as a revocation of the 
 devise. This was the case even though he took back the 
 same estate ; as, where he was seised in fee, and made no 
 declaration of the uses of the fine (;:). 
 
 VI. A Conveyance of a Married Woman's Estate, or an 
 Extinguishment of Bower. 
 
 If a married woman joined in a fine of any kind it would Fme ty a 
 operate as a conveyance, either absolutely or by way of wnmau 
 mortgage, of her estate, of which her Inisband was seised in i^"- liushaud 
 her right, or of her jointure, or as an instantaneous ex- 
 
 (x) See Co. Litt. 342 b., n. (1), S. C. 10 Moore, 305, 
 
 IV.— VI. 3 ; Bic1cley\. Guest, 1 Paiss. {z) See 6 Cru.'Dig. tit. 38, c. 6, § 
 
 & My 440. 72—78. 
 
 (tj) Tijrrdl v. Marsh, 3 Byng. 31;
 
 922 ON TllK OrEKATlON OF FINES. 
 
 pt. III.T.13, tiimiiisliment of licr dower, or of any cliarszo created in her 
 
 Ch. 2, s. 2. ^ . 
 
 favour on her Imsband's lands ; because a married Avoniaii 
 
 might always be bound by a judgment in a suit, and a line 
 was an accommodation of a suit, although, indeed, of a 
 fictitious one ; and because the wife was privately examined 
 as to her voluntary consent {a). 
 
 Fine by the Eut a fine by the husband alone did not l)ar his wife of 
 
 liusbaiul "^ 
 
 alone, or by Jower ; uor did a fine by both of them, without any decla- 
 
 both without ' i' > J 
 
 of uses!' '^^'"" ration of uses ; because the use resulted to the husband, 
 and a new right to dower accrued (h). 
 
 VII. A Bar to the Heirs in tail of the Cognizor. 
 A fine was a By forcc of tlic stat. 4 Hen. 7, c. 24, explained by the 
 
 bar to lineal "^ ' ^ s: J 
 
 ijeirs^n tail, g|;r^t_ 32 Heu. 8, c. ?yQ), a fiuc, if levied vntli proclamations, 
 Miiuwi^^ &c. ^'^^^ ^-^y ^ legal tenant in tail in possession, remainder, or re- 
 version, operated as an instantaneous bar to all the lineal 
 heirs in tail of the cognizor, and to all his collateral rela- 
 tions who were privy to him in blood and estate, that is, to 
 all his collateral kindred, who, in order to take under the 
 entail, must have claimed as collateral heirs to him (the 
 cognizor) or his issue ; and the fine is also a bar to all who 
 Examples. claim Under him or them in other ways. So that, if a 
 tenant in tail had two sons, and the eldest levied a fine in 
 the lifetime of the father, and the estate tail descended to 
 him or his issue, the fine barred the younger brother and 
 his issue, as well as his own issue. But if the eldest son 
 died in the lifetime of the father without issue, his fine did 
 not bar his younger brother ; because, the estate tail having 
 never become vested in the eldest son or his issue, the 
 second son did not claim as collateral heir to the eldest 
 
 (a) See 5 Cru. Dig. tit. 35, c. 10, p. 201. 
 § 5-22 ; Co. Litt. 121 a., n. (1) ; (6) 5 Cru. Dig. tit. 35, c. 10, § 
 
 Burt. Comp. § 1369. See supra, IG— 19.
 
 ON THE OPERATION OF FIXES, 923 
 
 son or liis issue, but as liucal heir of the father (c). And pt. iit.t.is, 
 
 ^ ^ Cu. 2, s. 2. 
 
 if a tenant in tail had three sons, and the second levied a 
 
 tine with proclamatious, the fine never could bar the eldest 
 son or his issue ; and it couhl not bar the youngest son and 
 his issue, unless the estate tail descended to the second son 
 or his issue ; so that, if the second son died without issue 
 in the lifetime of the eldest son or his issue, who survived 
 the father, the third son was not liarred by the tine, because 
 he claimed as collateral heir to his eldest brother or his 
 issue (d). 
 
 It may be expedient to observe to the student, that, if 
 limitations are made in favour of the first and other sons 
 successively in tail, a line levied by an elder son or his 
 issue would not bar the younger sons or their issue, except 
 in case of non-claim ; because, in this case, each son has a 
 distinct entail. 
 
 A fine had the effect above described, even though levied Fine by the 
 
 issue in tail, 
 
 by the issue in tail in the lifetime of the tenant in tail, or or by a 
 
 ■^ tenaut in tail 
 
 by a tenant in tail during a disseisin of his estate, or by l^y ouf^Jho'" 
 one who had but a contingent interest in tail (e), and even conti'ngert 
 though it might be defeated by a stranger (/). But a fine, tairorby 
 
 .. "^ the ancestor 
 
 With proclamations, levied by the ancestor subsequently to <-<.««'■ one by 
 a fine or other assurance of his issue in tail, was an instan- 
 taneous bar to the persons claiming under such fine or 
 assurance of the issue in tail, as much as to the issue them- 
 selves ([/). 
 
 It is to be observed, that the lineal descendants of the Lineal 
 cognizor, the tenant in tail, are barred in all cases : the col- ban-edinaii 
 
 cases. 
 
 lateral kindred in i;)articular cases only. If the coouizor is couaterai 
 
 -■- i/ o kmared, in 
 
 tenant in tail in possession, the fine is an instantaneous ^o™'^*^^^^^^ 
 
 (c) See 5 Cru. Dig. tit. 35, c. 9, Pros. Shep. T. 3, 6, 13, 14, 21, 24, 
 § 30—33 ; Pros. Shep. T. 26 ; 1 26 ; 1 Prest. Conv. 218, 306. 
 Prest. Conv. 21S. (/) 5 Cru. Dig. tit. .?5, c. 9, § 45 ; 
 
 (d) Pres. Shep. T. 27 ; 1 Prest. 1 Prest. Conv. 297, 298. 
 
 Conv. 309. (rj) See 5 Cm. Dig. tit. 35, e. 9, § 
 
 (e) 5 Cru. Dig. tit. 35, c. 9, § 24 ; 23 ; Shep. T. 26.
 
 924 
 
 ON THE OPERATION OF FINES. 
 
 Pt. Tir.T.i3, l)ar to tlie whole estate tail in possession of which he is 
 
 Cii. 2, s. 2. ^ 
 
 seised : it is a bar to all his collateral kindred, so far as 
 
 they are inlieritable in respect of that estate tail, as con- 
 tradistinguished from any estate tail in remainder or rever- 
 sion, as well as to his lineal descendants, so far as they are 
 inheritable in respect thereof. But, if the cognizor is not 
 tenant in tail in possession, the fine is not necessarily a bar 
 t6 the whole estate tail. It is a bar, indeed, to all his lineal 
 descendants, so far as they are inheritable in respect of 
 the estate tail of which he is seised in remainder or rever- 
 sion, or to which he is the expectant heir, as contradistin- 
 guished from any other estate tail in the same property to 
 which they may be inheritable ; but it is no bar to those 
 of his collateral kindred (if any), who, in case he himself is 
 not the donee of the entail, are inheritable before him, 
 such as an elder brother ; and it is a bar to his collateral 
 kindred inheritable after him in respect of the same estate 
 tail, only in case such estate tail descends, or, but for the 
 fine, would have descended, to him or one of his lineal de- 
 scendants ; or, in other words, only in case of his or one of 
 them becoming heir cle facto to the entail (A). 
 
 The Court of Chancery gives the same effect to fines 
 levied of equitable estates tail as that Avhich belongs to 
 fines of legal estates tail (?'). 
 
 To the rule above laid down respecting the operation 
 of fines levied by tenants in tail, there are two exceptions. 
 First, a tenant in tail by the gift or provision of the Crown 
 for services is disabled by the stat. 34 & 35 Hen. 8, c. 10, 
 from barring the entail, while a remainder or reversion 
 continues in the Crown (j). And, secondly, a fine by 
 a woman, tenant in tail of lands of the gift of her hus- 
 
 Equitable 
 estates tail. 
 
 Exceptions 
 wliere an 
 estate tail is 
 not barred. 
 
 (A) See authorities cited in the 
 preceding paragraphs, and 1 Prest. 
 Conv. 219, 307, 308. 
 
 (/) 5 Cru. Dig. tit. .35, c. 10, § 36 ; 
 
 Biirt. Comp. § 1369, n. 
 
 (/) Co. Litt. 373 a. ; Pres. Shep. 
 T. 15; 1 Prest. Conv. 221; Burt. 
 Comp. § 707.
 
 ON THE OrEEATION OF FINES. 925 
 
 band or any of liis ancestors, may, in certain cases, bo pt.hi.t.is, 
 
 Ch. 2j S, J* 
 
 avoided. 
 
 If a tenant in tail accepted a fine from a stranger, it had ftrangeAo a 
 
 no operation ; but if lie made a grant and render of some- taS?"^' ^ 
 thing that was entailed, it would bar the issue when exe- 
 cuted in possession (h). 
 
 A fine ivithout proclamations was no bar either to the Pine without 
 
 J- proclama- 
 
 issue in tail or to strangers (l). *'^'"^- 
 
 In the case of an entailed rent, a fine levied of the land ^^''i;^"'.^'^ 
 
 ' eutail of a 
 
 out of which it issued would bar the entail of the rent ; '''^"'" 
 but, properly, the fine ought to have been of the rent, and 
 not of the land («?.). 
 
 VIII. An instantaneous Bar of CoiUingent Remainders. 
 
 Where a fine sur cognizance de droit come ceo, &c., was 
 levied by the owner of an estate for life or in tail in pos- 
 session, and the legal fee simple was not vested in trustees, 
 it occasioned the destruction, or, in other words, it operated 
 as an instantaneous bar of contingent remainders which 
 were expectant on such estate for life or in tail, and were 
 unsupported by any other estate of freehold, unless the 
 operation of the fine were so qualified by the express words 
 of the concord, or by some deed connected with it, such as 
 a deed to lead or declare the uses thereof, as to pass no 
 more than might rightfully pass (ii). 
 
 There is no necessity for the continuance of a preced- 
 ing particular estate of freehold to preserve contingent re- 
 mainders, where the legal estate in fee is vested in trustees ; 
 for that legal estate will be sufficient to preserve them (o). 
 
 (/.■) 5 Cru. Dig. tit. 35, c. 9, § 41, terests, § 766, 767, 770 ; 5 Cru. Dig. 
 
 42. Tit. 35, c. 3, § 14 ; Davics \. Bush, 
 
 {I) Pres. Shep. T. 20. M'CIel. & You. 88. 
 
 (m) Pres. Sliep. T. 25. (o) Smitli's Executory Interests, 
 
 (w) See Smith's Executory In- §783.
 
 926 
 
 ON THE orEllATION OF FINES. 
 
 Pt. III.T.13, 
 Ch. 2, s. 2. 
 
 Fine without 
 proclama- 
 tions by a 
 tenant 
 lor life in 
 possession. 
 
 Changes in 
 the law 
 relative to 
 the bar by 
 non-claim. 
 
 Fine at 
 couinion law 
 
 IX. A svmph Dcvestment, tvithout a Bar in case of 
 Non-claim. 
 
 If the owner of an iniinediatc legal estate for life in 
 actual possession levied a fine of the first kind, vjithoitt 
 proclamations, and the operation of it was not restricted 
 to such an interest as might rightfully pass, it caused a 
 simple devestment, that is, a turning of the estates in re- 
 mainder or reversion into rights of entry, without causing 
 any bar by or in case of non-claim specifically so called, 
 that is, a non-claim within the stat, 4 Hen. 7, c. 24, 
 as distinguished from a non-claim within the Statute of 
 Limitations. 
 
 Originally, indeed, a fine, like a judgment in a real 
 action, was a bar from the moment it was completed. 
 And although this was altered some time at the latter 
 end of the reign of Hen. 3, or the beginning of the reign 
 of Edw. 1, and the fine was no longer an instantaneous 
 bar, yet it was allowed to form a perfect bar, unless claim 
 were made against it within a year and a day ; and this 
 was affirmed by the statute 18 Edw. 1, st. 4, usually called 
 the statute De Modo levandi Fines. But by the statute 
 34 Edw. 1, c. 16, the bar by non-claim on a fine was 
 entirely removed ; and though the statute 4 Hen. 7, 
 c. 24, afterwards enacted that non-claim within the period 
 therein specified should be a bar, yet that was only in the 
 case of fines proclaimed in the manner required by that 
 statute ; and that statute did not repeal the statute 34 
 Edw. 1, c. 16, nor prohilnt, but expressly permitted, the 
 levying of fines as they were theretofore levied. If, 
 therefore, a fine was not proclaimed in the manner 
 directed by the statute 4 Hen. 7, or afterwards, in the 
 manner dkected by the statute 31 Eliz. c. 2, by which 
 the statute 4 Hen. 7, was amended, it was subject to the
 
 ON THE OPERATION OF FINES. 
 
 927 
 
 statute 34 Edw. 1, c. 16, and consequently, was no bar in ^(^;,"J-'^-\^' 
 case of non-claim, specifically so called {p). 
 
 Still, when levied by the owner of an immediate legal 
 estate for life in actual possession, without being restricted 
 to such an estate as he might lawfully pass, and without 
 the concurrence of the person or persons in remainder or 
 reversion as joint cognizor or cognizors with the tenant 
 for life, it devested the estates in remainder or rever- 
 sion {q), so as to turn them into rights of entry, and sub- 
 ject them to the consequences attached to non-claim by 
 the Statute of Limitations in case the persons in remainder 
 or reversion failed to enter, and so as to render them in- 
 capable of being transferred or devised (r). 
 
 When there was an estate to A. for years, remainder to 
 B. for life, remainder to C. in tail, &c., a fine levied by B. 
 while A. was in possession would not devest the remain- 
 ders, because the possession of A. was a continuance of the 
 seisin to C, {s). 
 
 X, A Forfeiture. 
 Such an act, however, of a tenant for life, or his accept- F">c by or 
 
 ' ^ -•- to a tenant 
 
 ance of a fine come ceo, &c., from a stranger, was an act of f°^l'i^®,:':?„ 
 
 ' ^ O ' ])OSSe3310D, 
 
 forfeiture of the estate for life, even thoucfh he mio-ht have 
 a remote estate of inheritance ; so that the person in im- 
 mediate remainder or reversion might, if he chose, enter 
 immediately, and thereby exclude the cognizor and cog- 
 nizee, and restore all the estates devested by the fine {t). 
 
 A fine come ceo, &c., levied by a tenant for life of thino's if^ied of 
 
 ' ' 'J o things lu 
 
 grant. 
 
 {p) See 5 Cru. Dig. tit. 35, cc. 8, 226 ; Burt. Comp. § 741, 744. 
 
 9, and c. 2, § 79, SO ; Burt. Comp. (s) 1 Pres. Conv. 220. 
 
 § 77—104. {t) 5 Cru. Dig. tit. 35, c. 12, § 
 
 (g) Pres. Shep. T. G, 28, 32. 27, 30, 31 ; Co. Litt. 233 b., n. (1) ; 
 
 (»•) See 5 Cru. Dig. tit. 35, c. 12, Pres. Shep. T. 14, 32 ; 1 Pres. Conv. 
 
 § 11, and tit. 13, c. 1, § 15 ; G Cru. 201 ; Burt. Comp. § 741, 744. See 
 
 Dig. tit. 38. c. 3, § 30 ; Pres. Sliep. supra, p. 5G7. 
 T. 14, 32 ; 1 Prest. Conv. 20G, 207,
 
 928 
 
 ON THE OPEKATION OF FINES. 
 
 Pt.III.T.13, 
 
 Cn. 2, s. 2. 
 
 Fiue cnme 
 ceo, &c., by 
 a touaut for 
 yeara. 
 
 Fine sur 
 concessit. 
 
 Fine by a 
 cestui que 
 trust for life. 
 
 Fine by a 
 copyliolder. 
 
 Fine levied 
 of a maiital 
 
 estate. 
 
 ill grant, such as a rent or an advowson, worked a forfei- 
 ture, altliougli a line of tilings in grant passed no more 
 than what might lawfully pass («). 
 
 So, although a fine come ceo, &c., by a tenant for years 
 did not create any bar, yet it worked a forfeiture. But a 
 fine sur concessit would not work a forfeiture, because not 
 only would not that assurance actually pass more than what 
 lawfully might pass, but being as appropriately used for 
 conveying an estate for life or years as for conveying a fee, 
 it did not of itself import an attempt to do an unlawful 
 act (x). 
 
 'No fine levied by a cestui que trust for life would be 
 allowed in Chancery to operate as a forfeiture, because it 
 could not afiect a remainder (t/). 
 
 If a copyholder levied a fine of his copyhold, it worked 
 a forfeiture (z). 
 
 The law respecting a fine levied by a woman of an estate 
 which moved from her husband or any of his ancestors, or 
 by a husband alone v/ho was seised in right of his wife, 
 will be found in a subsequent page. 
 
 Fine with 
 proclama- 
 tions by a 
 tenant for 
 life in posses- 
 sion. 
 
 XI, A Devestment, and a Bar in case of Non-claim. 
 
 If the owner of an immediate legal estate for life in 
 actual possession levied a fine with proclamations, and the 
 operation of it was not restricted to such an interest as 
 might rightfully pass, it operated both as a devestment, and 
 as a bar in case of non-claim, by barring all strangers, that 
 is, all who were neither parties nor privies (with the excep- 
 tions noticed infra, XIV.), in case they failed to enter 
 within the period allowed by the Statute of Non-claim, 
 4 Hen. 7, c. 2i («). 
 
 (m) 5 Cru. Dig. tit. 35, c. 12, § 32 ; Pet, 11 Ad. & Ell. 842. 
 Burt. Comp. § 745. See supra, {y) 5 Cru. Dig. tit. 35, c. 12, § 
 
 p. 5G7. 35. 
 
 Gr) 5 Cru. Dig. tit. 35, c. 12, § 33, (r.) Id. c. 12, § 3G. 
 
 34 ; and c. 3, g 21 ; Doe d. Blight v. (a) See 5 Cru. Dig. tit. 35, c. 10 ;
 
 ON THE OPERATION OF FINES. 929 
 
 Three different periods arc fixed by tlio statute in dif- pt.iii.t.is, 
 
 ■•• ' C'n. 2, s. 2. 
 
 ferent cases : — — 
 
 Periods for 
 
 1. By the terms or effect of the first saving, strangers claiming, 
 wlio had a present riglit of entry or action at tlie time of the first 
 
 saving in 
 
 tlie ingrossinoj of tlie fine, and were under no disability, favour of 
 
 ■^ *- , "^ persons who 
 
 and those claiming under them, were allowed five years Jjfjl,^'' i"'^^"'* 
 from the last proclamation. 
 
 So that if a tenant in tail was disseissed, and the dis- 
 seissor levied a fine with proclamations, the tenant in tail 
 might defeat the fine at any time within five years from 
 the last proclamation, or, if ho died Avithiu the five years, 
 his issue might avoid it within those five years, but not 
 afterwards (h). 
 
 2. By the terms or effect of the second saving, strangers Period under 
 
 •^ O' o tlie second 
 
 who were under no disability, and to whom a present f^vou^o't 
 riglit of entry or action, after the levying of the fine, from whom'aiMgiit 
 
 , , • , n n n 1 ^ ^ accrued alter 
 
 any cause or matter prior to the fine, first accrued, and the fine, 
 those claiming under them, were allowed five years from 
 the time when such right so accrued. 
 
 So that if a tenant in tail made a conveyance, and the 
 grantee levied a fine, the issue in tail had five years from 
 the death of his father to avoid the fine : because such 
 issue was the first to whom the right accrued after the fine 
 was levied ; for his father could not enter against his own 
 conveyance. 
 
 And where there was a term for years existing at the intervening 
 
 •^ ® term for 
 
 time when an estate for life or in tail determined, the re- y^'^'-'^- 
 mainderman or reversioner was allowed five years from the 
 determination of such term. 
 
 If the ow^nership of a term was vacant for want of letters Term the 
 
 , . . ownership of 
 
 of administration of the effects of the last owner at the ^i^'ch was 
 
 vacant. 
 
 time when the last proclamation was made, or when the 
 
 Pres. Shop. T. 3, 6 ; Slicp. T. 14, (b) See 5 Cru. Dig. tit. 35, c. 11, 
 
 2:3, 28, 32 ; 1 Presfc. Conv. 225, 300 ; § 1—5 ; Prest. Conv. 23G— 239 ; 
 Hurt. Comp. § 90. Shop. T. 22, 23, 30.
 
 930 
 
 ON THE OPERATION OF FINES. 
 
 ■^ch^^'s' 2^' ^'%^^^ would have accrued to the owner, if tliere had been 
 one in existence, non-claim did not begin to run till the 
 grant of letters of administration. 
 
 remafnders. "^^^ owucr of cacli successive remainder was allowed five 
 years from the determination of all the particular estates 
 anterior to his remainder. But if he, or any other stranger 
 to whom a title first accrued after the fine, not being under 
 disability at the time of the accruer of his right, did not 
 pursue it within the five years, those claiming under him 
 were barred, as well as himself. 
 
 Pine by a If a man levied a fine of land whereof his wife was dow- 
 
 husband. 
 
 able, she was thereby barred of her dower, unless she 
 claimed within five years from her husband's death. 
 Distinct ^ strano-er, Avho had distinct rights accruing at different 
 
 rights. o > o o 
 
 times, was allowed five years after the accruing of each 
 title (c). 
 Period under 3. Bv tlic temis or cffcct of tlic third saving, strangers 
 
 the third "^ O' o 
 
 faTOuf l" ^^^^^ ^^^^ ^ present right of entry or action at the time of 
 undeT* the last proclamation, but were then under coverture, under 
 ^^ ' ' ^' age, in prison, out of the realm, or not of whole mind, and 
 strangers to whom a present right of entry or action accrued 
 after the levying of the fine, from any cause or matter prior 
 to the fine, and who were then under any of the above- 
 mentioned disabilities, and those claiming under them, were 
 allowed five years from the removal of such disabilities. If 
 they died under disability, those claiming under them were 
 allowed five years from their death, or, in case the latter 
 were themselves under disability or disabilities, five years 
 from the removal of such disability or disabilities. But 
 when once the five years allowed for avoiding a fine began 
 to run, the time continued to run against the person having 
 the right, and his heirs general, or heirs of the body, or 
 
 (c) As to these paragraphs relat- Pres. Shep. T. 20, 22, 23, 30, 32, 33, 
 ing to the second saving, see 5 Cru. 34 ; 1 Prest. Conv. 238, 240. 
 Dig. tit. 35, c. 11, §7-15, 18—31 ;
 
 ON THE OPERATION OF FIXES. 931 
 
 personal representatives, according to the nature of tlie ^^•JY's'f' 
 estate, notwithstanding any subsequent disability, whether 
 voluntary or not. So that if a person who had a present 
 right of entry or action in respect of an estate of freehold 
 was under no disability at the time of the last proclama- 
 tion, or if a person to whom a right first accrued after the 
 fine in respect of an estate of freehold was under no dis- 
 ability at the time when his right so accrued, the claim 
 must have been made by him or his heir within live years 
 from that time, even though he died or fell under disability 
 Ijcfore the expiration of that period, or although his heir 
 was under age, or under any other disability, at the time 
 of his (the ancestor's) decease (d^. 
 
 XII. A Discoiitmuance, loitliout a Bar in case of 
 Non-claim. 
 If a tenant in tail in possession (though subject to a Finewith- 
 term) levied a hue of corporeal hereditaments without pro- ™^g|°^''^^t'|^ 
 clamations, as an original assurance, or as part of an *egg|^n^'°^' 
 original assurance, — as, where he levied a fine in the 
 first instance, or conveyed by lease and release, and 
 then levied a fine in pursuance of a covenant contained in 
 
 the release, — in such case the fine operated as a discon- Definition 
 
 ■^ of a discon- 
 
 tinuance, which, as it existed in more modern times, may timiauco. 
 
 be defined to be, a devestment of an estate tail in things 
 lying in livery, and of the estates in remainder or reversion, 
 and a turning of them into mere rights of action, by a feoff- 
 ment, fine, or recovery, of a tenant in tail in possession. 
 But, even an ordinary conveyance, if accompanied with 
 warranty, of a tenant in tail in possession, opera,ted as a 
 discontinuance so far as regarded the issue in tail, though 
 not as regarded the estates in remainder or reversion {c). 
 
 {d) See 5 Cru. Dig. tit. 35, c. 11, (c) Sec 5 Cm. Dig. tit. 35, c. 8, § 
 
 § 33—57 ; Pres. Shep. T. 20, 22, 23, 21, and c. 12, § KJ, 17, 20—24 ; Co. 
 311, 31 ; 1 rrest.Couv. 211, 242. Lilt. 325 a, n. (I) ; 326 b, n. (1) ;
 
 1)32 
 
 ON THE OPERATION OF FINES. 
 
 Pt. I1I.T.13, 
 Cii. 2, s. 2. 
 
 Fines with- 
 out procla- 
 mations by 
 tlie issue iu 
 tail. 
 
 Illustration 
 ottho meau- 
 ing of an 
 oritjinal 
 assurance. 
 
 If the issue in tail, as wc have abeady observed, levied 
 a fine, without proclamations, in his ancestor's lifetime, the 
 fine so far operated by estoppel as against liim, and those 
 claiming through liim as heirs in tail, as that, by force of 
 the statute 27 Edw. 1, c. 1, De finibus levatis, it prevented 
 them from averring quod partes finis niliil habuerunt ; 
 and, as soon as the issue in tail succeeded to the entail, 
 the estate which then existed fed the estoppel. And the 
 fine having created an estate in this way, by its operating 
 fkst as an estoppel in the ancestor's lifetime, and after- 
 wards as a conveyance after his decease, if the fine was 
 levied with warranty, it had, by reason of the warranty 
 which was annexed to the estate so created, the effect of 
 a discontinuance, so far as the issue in tail were concerned, so 
 tliat in such case their right of entry was taken away (/). 
 
 In illustration of what is meant by the above expression, 
 " an original assurance," it may be observed, that, if lands 
 were given to A. and the heirs male of his body, the re- 
 mainder to B. and the heirs male of his body, the re- 
 mainder to the right heirs of A., and A. bargained and sold 
 the land by deed indented and inroUed to J. S. and his 
 heirs, and afterwards levied a fine of it sur cognizance de 
 droit come ceo, &c., as a distinct assurance, to him and his 
 heirs, by this the remainder to B. was not discontinued, 
 but the estate of the bargainee lasted so long as there was 
 issue inheritable under the entail, and then determined 
 without entry. But if the fine had been before the bargahi 
 and sale, or as part of that assurance, it would have been 
 a discontinuance of the remainder, and a bar to the re- 
 
 327 a, n. (2) I. ; 330 a, ii. (1) ; 332 
 a, n. (1) ; 333 a, u. (1) ; 335 a ; 
 372 b, n. (1); Litt. ss. 598, GOl, 
 637; Co. Litt. 339 a; Pres. Sliep. 
 T. 3, 35 ; 1 Prest. Conv. 203— 20G, 
 213, 299 ; Burt. Comp. § 098; Lord 
 
 Lyudhursifs remarks in Doe d. 
 Thomas V. Jones, 1 Tyrw. 50G ; 
 Doe d. CooiKr v. Finch, 4 B. & Ad. 
 233. 
 
 (y) Doe d. Thomas v. Jones, 1 
 Tyrw. 50G.
 
 ON THE OPERATION OF FINES. 933 
 
 maiiidermaii in case lie failed to claim within five years ^^-i^-^-i^' 
 
 '' Ch. 2, s. 2. 
 
 after the remainder came in possession (^). 
 
 The effect of a discontinuance was, that the estates so Conse- 
 
 ' quences of 
 
 discontinued were subjected to the Statute of Limitations, ti^^^nTel 
 21 Jac. 1, c. 16, whereby a formedon (an action abolished 
 by the stat. 3 & 4 "Will. 4, c. 27, s. 36) must have been 
 l)rought within twenty years after the right of action 
 accrued, unless the party laboured under any of the dis- 
 abilities there specified (Ji). But the fine in such case was 
 no bar in the event of non-claim, under the stat. 4 Hen. 7, 
 because it was not proclaimed. 
 
 Another consequence of a discontinuance was, that, as 
 the estates of the persons in remainder and reversion were 
 converted into mere rights of action, their interest could 
 not be granted over or devised {%). 
 
 To the operation of a fine as a discontinuance, an ex- Exception in 
 
 ■^ the case of a 
 
 ception occurred w^here the remaiiider or reversion was remainder or 
 
 •L reversion in 
 
 in the Crown. By the common law, such a remainder or *^® ^^'°^"" 
 reversion could never be devested ; and the stat. 34 & 35 
 Hen. 8, c. 20, prohibited a tenant in tail, by the gift of the 
 Crown, as a reward for services, from barring even his own 
 issue (/). 
 
 XIII. A Discontinuance; and a Bar in case of Non- 
 claim. 
 
 If proclamations were made, and the remainder or rever- Fine with 
 
 •"- proclama- 
 
 sion was not in the Crown, the fine so levied by a tenant teuanun tail 
 in tail in possession as an original assm^ance, or as part of '" po^sessiou. 
 an original assurance, was an immediate bar to the entail, 
 
 {g) Pres. Shep. T. 27 ; see also Id. tit. 38, c. 3, § 30. 
 29,33,35; 1 Prest. Conv. 205. (j) 5 Cru. Dig. tit. 35, c. 9, § 
 
 {It) 5 Cru. Dig. tit. 35, c, 8, § 21 ; 55, c. 13, § 27 ; and tit. 36, c. 10, 
 
 Pres. Shep. T. 32, n. (39). § 41, 42 ; Co. Litt. 335 a ; 372 b, 
 
 0') See 1 Prest. Conv. 206 ; 2 Cru. u. (3) ; Burt. Comp. § 707. 
 Dig. tit. 13, c. 1, § 15; 6 Cru. Dig.
 
 934 
 
 ON THE OPEEATIOX OF FINES. 
 
 pt. iii.t.13, and both a discontinuance, and a bar in case of non-claim, 
 
 Ch. 2, s. 2. ' 
 
 as against all strangers, with the excerptions noticed infra, 
 
 XIV (/.•). 
 Fine by a And the Same was the case if a tenant in tail made a 
 
 tcnaut iu tail 
 
 alter creating i^asc foi life, and then levied a fine with proclamations (I); 
 
 a derivative ' ^ ^ ' 
 
 possesskL''^ because there was no just reason why he should lose his 
 power over the estates in remainder and reversion merely 
 because ho had created a derivative estate for life out of 
 his estate tail : for although, as regards such derivative 
 estate, he had only a reversion, yet the relation of his 
 estate tail to the estates expectant on it remained the 
 same as at first. As regarded the estates limited by the 
 instrument under which he claimed, he was still seised of 
 the prior estate ; and that Ijeing an estate tail, he not 
 only originally possessed, but also continued to retain, 
 the power of discontinuing the estates in remainder and 
 reversion, so as to subject them to the bar in case of non- 
 claim. 
 
 XIV. A Bar in case of Non-claim, tvitJiout a Dcvcstmcnt 
 or Discontinuance. 
 
 Bar of right In cacli of tlic cascs abovc noticed, in which the cognizor 
 
 of entry or _ 
 
 action. ^yf^g gg situatcd that the line was both a devestment or 
 
 discontinuance and a bar in case of non-claim, it might 
 operate in the latter way only, that is, as a bar in case of 
 non-claim, in regard to estates which had been previously 
 converted into rights of entry or action. 
 
 Fine by a So, a fiuc by a person seised in fee simple in possession, 
 
 person seised ./ j. x j. ' 
 
 in !!f=,l!.°=?^''' whether by right or by wrong, barred the rights or interests 
 
 ID possession, «/ o j o^ o 
 
 of strangers in case of non-claim, though, from the nature 
 of the case, there could be no actual estate in the land 
 for the fine to devest or discontinue. And it is conceived 
 that a fine by a person seised in fee simple in remainder 
 
 (/.) See 4 Cru. Dig. tit. 35, c. 8, § d. Gilbert v. Ross, 7 Mees. & W. 102. 
 21, and c. 9 ; Trcs. Shop. T. 3 ; Doc (I) Salrin v. Clerl; Cro. Cm: ICG. 
 
 remainder, or 
 reversion.
 
 ON THE OPEK.VTION OF FINES. 935 
 
 or reversion had the same effect of baiTm<:>' the ridits or tt.iii.t.is, 
 
 ^ ^ Ch, 2, 3. 2. 
 
 interests of strangers who had no actual estate in the 
 
 lands (m), though, of course, it did not affect a preced- 
 ing estate of freehold (^n) ; because that would have been 
 obviously a mere injustice, for which there could be no 
 pretext whatever : and, the estate of the cognizor being 
 a fee simple, of course there could be no remainder or 
 reversion to discontinue or devest. 
 
 And where a fine sur cognizance de droit come ceo, &c., ^"leby a 
 
 o ' ' remainder- 
 
 was used for the conveyance of a remainder for life or in ™™ ^°["i/''^° 
 
 tail, expectant upon a particular estate of freehold, it would 
 
 seem that it might operate as a bar in case of non-claim, 
 
 in regard to persons wlio had a mere right, when it would 
 
 not discontinue, devest, or bar those who had actual estates 
 
 in the lands. It is certain that, if a fine of this kind was 
 
 levied by a tenant for life or in tail in remainder, even 
 
 though the tenant for life in possession joined in the fine, 
 
 it would not clistin^b the preceding freehold, or the ulterior 
 
 estate, if any, in remainder or reversion, but had the same 
 
 effect in that respect as a fine of the second or third kind, 
 
 which would only operate as a grant of the conusor's 
 
 estate, without invading or affecting the estate of any 
 
 other person (o). And where a tenant in tail, after having Fine by a 
 
 assigned dower, levied a fine, it did not affect the estate tail' after 
 
 ... . . assigning 
 
 limited in remainder after his estate tail as to the part ^ower. 
 
 assigned as dower ; because, as to that part, the tenant in 
 
 tail had no immediate estate of freehold (i)). Yet we have Fine by a 
 
 tenant for 
 
 seen that a fine by one who was only a tenant for life, if life in 
 
 ■^ '^ possession. 
 
 he was in possession, would devest the estates expectant 
 
 on his freehold. The reason of the difference would seem Reason of tiie 
 
 to be this : the tenant for life in possession frequently tiie effect of 
 
 (hi) See 1 Prest. Conv. 258, 259. Bmdons Case, 1 Eep. 76. 
 
 (n) Burt. Comp. § 76, 98. {p) See 5 Cru. Dig. tit. 35, c. 14, 
 
 (o) Pres. Shep. T. 27, 29 ; 1 Prest. § 63. 
 Conv. 226 ; Burt. Comp. § 76, 98;
 
 936 
 
 ON THE OPERATION OF FINES. 
 
 Pt. TILT. 13, 
 Cu. 2, s. 2. 
 
 his fine and 
 that of a re- 
 mainderman 
 ia regard to 
 devesting 
 and barring 
 ulterior 
 estates. 
 
 Construction 
 of tlie Stat, 
 of Non- 
 claim. 
 
 appears, prima facie, to be the owner of the iiilieritance, 
 and lie mialit sometimes be mistaken for the owner thereof 
 by a pnrchaser in very early times, when land was often 
 transferred by livery of seisin without deed ; and there- 
 fore the law, which always discouraged laches, would not 
 suffer the possession under the fine to be disturbed, unless 
 the party entitled to the remainder or reversion entered 
 within a limited time. But a remainderman is not the 
 ostensible owner of the property, and therefore there is 
 not the same reason why his fine should have l^een allowed 
 to devest any ulterior estate ; on the contrary, it would 
 have been an encouragement to fraud to have permitted 
 the fine, in such a case, to affect the estates of other persons. 
 Now, as the preceding and the ulterior estates could not be 
 devested by the fine of an intervening remainderman, so 
 neither could they be barred by non-claim on his fine ; for 
 non-claim on a fine would not bar any estate or interest 
 which was not devested out of the owner, or in a state of 
 adverse claim ; because, if the estate was not devested or 
 in a state of adverse claim, there could be no necessity or 
 reason for a claim [q)] and therefore, when the Statute of 
 Non-claim (4 Hen. 7) enacts that strangers shall be l)arred, 
 unless they "take their actions and entry" within the 
 time prescribed, it pre-supposes that the interests of such 
 strangers shall have been converted into, or were in their 
 nature, mere rights ; and consequently it does not bar 
 those whose estates w^ere not devested; and hence a fine 
 by a remainderman ^vould not bar any ulterior vested 
 remainder or reversion. But it would seem that a fine by 
 the owner of any subsequent interest of freehold would 
 bar a right of entry or action, in case of non-claim, by 
 force of the express words of the statute, though it would 
 not bar a preceding or a subsequent estate {r). 
 
 (q) 5 Cm. Dig. c. 13 ; Pres. Sliep, (r) See 1 Prest. Con v. 259, 300. 
 
 T. 23 ; Co. Litt. 332 b, n. (1).
 
 ox THE OPEEATION OF FINES. 937 
 
 There were several cases iii wliicli non-claim on a fine, pt. iii.t.is, 
 
 Cn. 2, s. 2. 
 
 altliouo'li duly proclaimed, was no bar : 7~ -y- 
 
 o J I- ' Where a fiou, 
 
 1. A fine was absolutely void, as far as strangers were *]j°"i|'jj^^'^'^ 
 concerned, if none of the parties, at the time of levying '■''^^^°^'^^'- 
 
 1. Where 
 
 the fine, had an estate of freehold. But, if either the "O''^. ^-f the 
 
 ' ' parties had 
 
 cognizor or the cognizee had a freehold estate, the fine a"y ^'eeii^id. 
 was not void, even as to strangers (s) ; for the words of 
 the statute are, " saving to every person or persons not 
 party nor privy to the said fine, their exception to avoid 
 the same fine, by that, — that those who were parties to the 
 fine, nor any of them, nor no person or persons to their 
 use, nor to tlie use of any of them, had nothing in the 
 lands and tenements comprised in the said fine at the time 
 of the said fine levied " (t). 
 
 The author of " The Touchstone " and Mr. Preston have whether a 
 
 flue by or to 
 
 laid it down, that a fine by or to a remainderman or rever- ^ rcmainder- 
 
 •^ man or 
 
 sioner cannot be avoided by the plea quod partes finis nihil co^i^ff""^''" 
 habuerunt (u). And this opinion, which was also the thepfeliof 
 opinion of Mr. Burton (x), clearly seems to be in accord- toiLnihir^ 
 ance with the words of the statute above quoted, and to be 
 the correct view. Mr. Cruise, however, states that this 
 opinion is erroneous, and then proceeds to give some cases, 
 by which, as he supposed, the contrary doctrine was esta- 
 blished (?/). But, to the writer of these pages these cases 
 appear only to show what we liave already seen to be the 
 case, namely, that a fine by a remainderman or reversioner 
 w^ould not affect the owner of the preceding freehold or the 
 ulterior remainderman or reversioner, though, as to other 
 strangers, it would operate as a bar in case of non-claim. 
 And it would have this effect as well in favour of the pre- 
 ceding freeholder and the ulterior remainderman or rever- 
 
 (s) Burt. Comp. § 96, 101 ; 1 Cony. 258. 
 Prest. Conr. 223, 258. (•«) Burt. Comp. § 96. 
 
 (t) 5 Cru. Dig. tit. 35, c. 5, § 21 ; {>/) 5 Cru. Dig. tit. 35, c. 14, § 
 
 Burt. Comp. § 95. Gl— 63. 
 
 (u) Pros. Sliep. T.,13, 29 ; 1 Prest.
 
 938 
 
 ON THE OPERATIOX OF FIXES. 
 
 I'T. Iir.T.13, 
 C'li. a . s. 2. 
 
 A frccliokl by 
 wronu was 
 suflioiunt. 
 
 What will 
 give a seisin 
 by wrung. 
 
 Keccijit of 
 rent, by a 
 person 
 claiming as 
 Leir. 
 
 AVror.tjfiil 
 coiitinnance 
 of an origin- 
 ally rigblful 
 permissive 
 liossescion. 
 
 sioiiei', a,s of the cognizor, because it is a general rule, tliat 
 all acts by the OAvner of a particular estate and tlie owner 
 of a remainder or reversion enure to the benefit of each 
 other, if made on the foundation of their common seisin or 
 privity, and not adversely (z). 
 
 A fine was valid as to strangers as well as parties and 
 privies, even though the estate of freehold in the cognizor 
 or cognizee was only an estate by wrong, whether gained 
 by a feoffment or otherwise (a). So that a fine, wdth pro- 
 clamations, hy a disseisor, barred an ejectment, unless 
 there was an actual entry wdthin five years from the levy- 
 ing the fine (b). 
 
 "With regard to wliat is sufficient to give a seisin by 
 wrong, Lord Hardwicke considered that the same acts 
 that are sufficient to gain a seisin, when done by a person 
 wdio has right, are not sufficient in the case of a w^'ong-doer, 
 but he ought to have a continuance of possession, wdthout 
 interruption, to gain a seisin (c). And if one of two persons 
 who claim an estate as heir to anotlier levies a fine before 
 receipt of any rent, and afterwards obtains a A^erdict, and 
 rent is paid to him for a period antecedent to the fine, but 
 the other party subsequently succeeds in establishing his 
 claim, the reception of rent l)y the former wdll not be 
 taken to be evidence of a seisin by relation : for fictions 
 and relations in law are only good to support right, and 
 consequently the fine will not operate as a bar to the eject- 
 ment of the other party {d). And Avhere a younger son, 
 who managed his father's property, continued in possession 
 for several years after his father's decease, claiming as heir 
 to his fi^ther, on the ground of the illegitimacy of an elder 
 
 (z) Pres. Sliep. T. 29 ; 1 Trcst. 
 Conv. 258, 259. 
 
 (a) 1 Prest. Conv. 22-1, 225, 258, 
 262, 301 ; Davics v. Lowndes, in 
 error, G JMan. & Gr. 521. 
 
 (h) Doc d. Anderson and Wife v. 
 
 Thomas, 1 C. & P. 91. 
 
 (c) 3 Atk. 336, quoted 5 Cru. Dig. 
 c. 5, § 34. 
 
 (d) Doe d. Lcdyhlrd v. Lawson, 8 
 B. & C. 606.
 
 ON THE OPERATION OF FINES. 039 
 
 soil, and levied a fine, such fine would not oi^icratc ; because, tt. iii.t.is, 
 
 ' -^ ' ' Cn. 2, a. 2. 
 
 by the mere wrongful continuance of an originally right- 
 fnl permissive possession, no freehold is acquired, evTU by 
 wrong ; such a continuance of the possession not amount- 
 ing to a disseisin, abatement, or intrusion {c). But, ordi- felrl alnst 
 narily, if the heir entered, notwithstanding a devise in '^°^'^'-'°- 
 lavour of another person, and levied a fine, it barred the 
 devisee after five years' non-claim ( /). And if a person Euiiybya 
 
 J \o / L devisee 
 
 entered under a void devise, he thereby acquired a free- devj^^e^™''' 
 hold by abatement ; so that if he levied a fine it was a 
 bar in case of non-claim {g). 
 
 2. Where the possession of the coG;nizor was the posses- 2. Whoro the 
 
 ^ o J. cognizoi's 
 
 sion of a third person, such person was not barred by the ^°f^^e°" 
 fine and non-claim; because it was necessary that the aThw'"""*^ 
 party levying the fine should have a possession adverse to ^"^°"" 
 that of the person to l^e barred, for otherwise there would 
 be no occasion for a claim (Ji). 
 
 Thus, in case of non-claim a fine was a bar to a term of Terms for 
 
 years. 
 
 years in those cases only where the possession of the cog- 
 nizor was not the possession of the termor. And hence, 
 where a purchaser at the time of his contract was not 
 aware of a term, and its existence would have endangered 
 or affected his title, a fine levied with five years' non-claim 
 would have operated as a bar to the trustee of the term {i). 
 But an attendant term is not barred by a fine levied by 
 the owner of the fee, if it was not his intention that the 
 term should be barred {j). 
 
 So, where a lessor continued in possession, and levied a 
 
 (c) Doc d. Davis v. Davis, 12 {h) 5 Cm. Dig. tit. 35, c. 13, §12. 
 
 Trice, Tofi. Eut see c. 11, § 33—35, and c. 13, 
 
 (/) 5 Cm. Dig. tit. 35, c. 5, § 28 ; § 11. 
 
 Co. Litt. 240 b, n. (2) ; 1 Prcst. (/) 3 Sugd. V. & P. 2, pi. 2 ; 5 
 
 Conv. 224 ; Doe d. Cadioaladcr v. Cm. Dig. tit. 35, c. 10, § 41, 42. 
 
 Price, 16 Mces. & W. 603. (j) 3 Sugd. V. & P. 30, pi. 16 ; 
 
 dj) 5 Cm. Dig. tit. 35, c. 5, § 27 ; 5 Cm. Dig. tit. 35, c. 10, § 41, 42. 
 1 Prest. Conv, 224.
 
 940 
 
 ON THE OPERATION OF FINES, 
 
 Ft. II[.T.13, 
 
 Ch. 2, s. 2, 
 
 Joint 
 tenancy. 
 
 3. Where 
 there was no 
 ■devestmeut 
 or state of 
 adverse 
 claim. 
 
 i. In the 
 case of the 
 Crown. 
 
 5. In tho 
 case of an 
 ecclesiastical 
 corporation 
 
 line, it was no bar to liis lessee ; because a lessor is con^ 
 sidered as tenant at will to his lessee (/.•). 
 
 And so, if one of two joint tenants in fee levied a fine of 
 the whole, this did not amount to an ouster of his com- 
 panion ; but it was a severance of the jointure, though they 
 continued to be in of the old use (/). 
 
 3. No estate or interest was barred by fine and non- 
 claim which was not devested and turned to a right of 
 entry or action, or in a state of adverse claim (m). 
 
 And hence non-claim on a fine would not bar a term to 
 commence at a future time, or a condition subsequent, 
 before it was broken ; for while it conferred no right of im- 
 mediate entry there was no ground for a claim. But, as 
 soon as it conferred a right of immediate entry, non-claim 
 by the person interested in the term, or by the person who 
 was to take advantage of the breach of the condition, began 
 to be a bar to him, though the fine were levied before the 
 right of immediate possession existed. The same is the 
 case with an authority to executors to sell (n). 
 
 4. A fine and non-claim were no bar to the Crown ; for 
 nullum tempus occurrit regi (o). 
 
 5. Ecclesiastical corporations, as such, Avhether aggregate 
 or sole, could not be barred by non-claim on a fine within 
 the period specified in the Statute of ISTon-claim. But a 
 sole ecclesiastical corporation, as a bishop, parson, or vicar, 
 might be personally barred if he failed to claim within five 
 years after his title accrued ; and each of his successors 
 might be personally barred in a similar event ; and each 
 successive head of a corporation aggregate might be per- 
 sonally barred in the same manner (^j). 
 
 (A) 5 Cru. Dig. tit. 35, c. 10, 
 §44. 
 
 (l) 5 Cru. Dig. tit. 35, c. 5, § 18, 
 and c. 13, § 13. 
 
 (m) See 1 Prest. Conv. 223, 227. 
 
 (») See 1 Prest. Conv. 231, 232, 
 (o) 5 Cru. Dig. tit. 35, c. 9, s. 55, 
 
 ami c. 13, § 2 ; 1 Prest. Conv. 235, 
 (2)) 1 Prest. Conv. 235 ; 5 Cru. 
 
 Dig. tit. 35, c. 13, § i.
 
 ON THE OPERATIOX OF FINES. 941 
 
 6. If a tenant in tail of an incorporeal liereditament, rT.iii.T.is, 
 
 . , . Cn. 2, S.2. 
 
 Avlietlier in possession or remainder, levied a line, it barred 
 
 the entail, and cliano-ed the estate tail into a qnalified or 9^^^°^ , 
 
 ' o J- incorporeal 
 
 hase fee, determinable on the death of the cognizor and the menu^" 
 failure of issue inheritable according to the entail, but it had 
 ]io effect on the ulterior estates in remainder or rever- 
 sion i^i). And an incorporeal hereditament in a third 
 person, or a right to sue execution on a judgment, was not 
 barred by a fine levied of the laud (r) ; because it was col- 
 lateral to the seisin or ownership of the land, and therefore 
 not affected by any transfer of the land. 
 
 7. The same was the case with powers simply collateral, 7. in the 
 
 CtlS6 Ot 
 
 for the same reason, and because the donee of such a power powers 
 
 ■■-. simply 
 
 could not have made an entry (s). collateral. 
 
 8. There were others who, thoudi Ixarred at law, mioht ^- ^" ^^'^ 
 
 ' o ' o case of cer- 
 
 be relieved in equity ; as in the case of cestuis que trust *vho are Te"* 
 under an express or implied trust, where the fine was levied equity.'" 
 by a trustee to a person who had notice of the express trust, 
 or by a devisee to a person who had notice of a charge 
 amounting to an implied trust, or by a person coming in 
 by conveyance from a trustee, without any valuable con- 
 sideration, or with fraud, or notice of trust or fraud ; and 
 in other cases of fraud {t) ; and in cases where courts of 
 equity limit the operation of fines to the purposes for which 
 they were intended, so as to prevent them from barring a 
 jointure, or from operating farther than was intended by 
 the decree in pursuance of which they were levied, or from 
 operating to other uses than those intended by marriage 
 articles {a). And a Court of equity will not suffer an infant 
 
 (2) Bart. Comp. § 700. —775 ; 3 Sugd. V. & P. 446 ; 5 
 
 (?•) 5 Cru. Dig. tit. 35, c. 13, § Cm. Dig. tit. 35, c. 10, § 31—34, 
 
 22 ; Shop. T. 23 ; 1 Ti-est. Conv. and c. 14, § 71—81, 86. 
 
 231. (it) Story's Eq. Plead, s. 77G ; 5 
 
 (s) 5 Cni. Dig. tit. 35, c. 10, § 59 Cru. Dig. tit. 35, c. 10, § 23—25, 
 
 —62. and c. 14, § 87, 88. 
 
 {t) See Story's Eq. Plead, s. 773
 
 942 
 
 ON THE Ol'KKATION OF FINES, 
 
 i'T. III-T.13, to be barred by the laches of liis trustee (x) ; nor an equity 
 of" redemption to bo barred Ity a mortgagee; nor a mort- 
 gagee to be barred Ijy a mortgagor (//). 
 
 iluw a fiiio 
 cuulil 1)0 
 a,voi(io(i liy 
 a person 
 )i:iviii}i; a 
 rij;ht of 
 cutry. 
 
 F.ffoct of an 
 
 entry by a 
 
 particular 
 
 tenant, 
 
 copyholder, 
 
 or part 
 
 owner. 
 
 How a fine 
 could be 
 avoided by 
 a person 
 having a 
 right of 
 action. 
 
 It may here be observed, tliat a person wlio had a right 
 of entry, in order to have avoided a fine, where it was 
 levied with proclamations, must not only have entered on 
 the land, or, if prevented from entering, have made his 
 claim as near the land as might be, but nmst have also 
 brought an action of ejectment within one year afterwards, 
 and prosecuted the same (z). 
 
 The entry of the particular tenant restored the estates in 
 remainder or reversion, as M'ell as the particular estate (a). 
 And so the entry of a copyholder restored the estate of 
 the lord (&). And the entry of one joint tenant, copar- 
 cener, or tenant in common, avoided the fine as to the 
 others {c). 
 
 In order to have avoided a fine, a person who had a 
 right of action only must have brought a real action : an 
 action of ejectment was not sufficient (r/). The filing of a 
 l)ill in Chancery would not have prevented the bar by non- 
 claim, except in the case of a cestui que trust (c). 
 
 A fine sur done, grant, et render, being a double fine, 
 gave a new estate to the cognizor, so that, if before the fine 
 he was seised in fee ex parte materna, and he took back an 
 
 (x) 5 Cru. Dig. tit. 35, c 14, 
 §83. 
 
 i/j) Id. § 85 ; 1 Prest. Conv. 233. 
 
 (j) 5 Cm. Dig. tit. 35, c. 14, § 43, 
 45—49, 55 ; Co. Litt. 252, n. (1) ; 
 1 Prest. Conv. 247. 
 
 {a) 5 Cru. Dig. tit. 35, c. 14, §52; 
 Pres. Shep. T. 35 ; 1 Prest. Conv. 
 
 227, 247. 
 
 (h) 5 Cru. Dig. tit. 35, c. 14, 
 § 52 ; Pres. Sliep. T. 35. 
 
 (c) 5 Cru. Dig. tit. 35, c. 14, 
 §53. 
 
 (d) 5 Cru. Dig. tit. 35, c. 14, § 41, 
 43. 
 
 (f) Id. § 42.
 
 ON THE OPERATION OF FINES. 943 
 
 estate in fee simple, the descent was thereby altered to a PT.iir.T.13, 
 
 -'- "^ Cil. 2, s. 2. 
 
 descent ex parte paterna, although the seisin of the cog- 
 
 nizee, from whom such new estate proceeded, being but for ^^°^^^^„ ^ 
 an instant, did not entitle his widow to dower. The other '""'^ ^*"''*^- 
 fines being single fines, when levied by a tenant in fee 
 simple, did not give a new estate : so that, if a person seised 
 in fee ex parte materna levied a fine sur cognizance de 
 droit come ceo, &c., and either made no declaration of the 
 uses of it, or declared it to be to the use of himself and his 
 heirs, the lands descended ex parte materna, because the 
 old use resulted to him (/). Such a fine, however, by the 
 owner of a particular estate in possession, unless restricted 
 in its operation to such an estate as he might lawfully pass, 
 created a new and tortious estate in fee. 
 
 Various statutes, the latest of which was 43 Eliz. c. 15, Fines levied 
 
 ill local 
 
 communicated the properties of a fine levied in the Court ^-'^'''s. 
 of Common Pleas according to the stat. 4 Hen. 7, to fines 
 levied in the counties palatine of Durham, Lancaster, and 
 Chester, and in Wales and the Isle of Ely (f/). 
 
 (/) 5 Cm. Dig. tit. 35, c. 12, § 37, Conv. 211. 
 40 ; Pres. Shep. T. 4 ; 1 Trest. {g) Burt. Comp. § 78.
 
 9-i4 
 
 CHAPTEE III. 
 
 OF COMMON RECOVERIES. 
 
 Definition 
 of a reco- 
 very. 
 
 Jlode of suf- 
 feriug a re- 
 covery. 
 
 Section I. 
 Of Common Recoveries generally. 
 pt. iii.t. 13, A COMMON RECOVERY is an action, eitlier actual or fictitious, 
 
 Oh. 3, s. 1. _ ' 
 
 not compromised, but carried on tln^ongli every regular stage 
 of proceeding, by means of wliich lands Avhicli were the 
 subject of tlie action were recovered against the tenant of 
 the freehold, and all persons were bound, as by an actual 
 adjudication of the right, and an absolute fee simple was 
 thereby vested in the recoveror {a). 
 
 The mode of suffering a recovery with single voucher 
 was this : the person to whom the land was intended to be 
 conveyed, the demandant or recoveror, brought an action 
 against the person who was to suffer the recovery (the 
 tenant or recoveree), by suing out a writ, called a praecipe 
 quod reddat, against him. Tiie latter then vouched or 
 called another person to defend the title, upon the alleged 
 ground of such other person's having conveyed, the land 
 to him with a warranty. The person so vouched, who was 
 generally the crier of the court, and was called the common 
 vouchee, made default, and thereupon judgment was given 
 for the demandant to recover the lands against the tenant, 
 and the tenant had judgment to recover of the vouchee 
 lands of equal value in recompense for the lands so war- 
 ranted by him ; Imt of course lie recovered nothing, as the 
 common vouchee had no lands of his own. It was more 
 
 {a) 2 Bl. Com. 857.
 
 OF COMMON EECOVEIUES. 945 
 
 usual, however, to have a recovery with double voucher pt.ih.t.is, 
 
 ' -^ Ch. 3, s. 1. 
 
 at the least. And, in the case of a double voucher, an 
 
 estate of freehold was first conveyed to some other person 
 against whom the pra:^cipe was brought, and then he 
 vouched the tenant in tail, who vouched over the connnon 
 vouchee (h). 
 
 By the stat. 3 & 4 Will. 4, c. 74, s. 2, no recovery was to Abolition of 
 
 '' ' J J J recoveries, 
 
 be suffered after the 31st of December, 1833, unless upon 
 a writ sued out on or before that day. 
 
 By s. 5 of the same statute, recoveries are not invalid in certain 
 
 mistalies 
 
 consequence of having been suffered in unlawful or unau- 3^^,^^^'"' ^^' 
 thorised Courts. 
 
 By s. 8 of the same statute, certain misnomers, mis- 
 descriptions, or omissions in a recovery, the non-enrol- 
 ment of the deed making the tenant to the writ, and the 
 omission to make the tenant to the writ, are cured in 
 certain cases. 
 
 By s. 3 of the stat. 5 Vict. sess. 2, c. 32, certain re- 
 coveries in Wales and Cheshire are validated. 
 
 Section II. 
 Of the Operation of Recoveries. 
 
 Eecoveries vary in their eflicacy according to the mode pt. iii.t.is, 
 
 Ch. 3, s. 2. 
 
 m which they were suffered, and the legal character of the 
 
 EfBcacy 
 
 parties ; and they may operate in the following ways : — ■varies with 
 
 X ; J J X. o J cireum- 
 
 I. By way of conclusion or estoppel. stances. 
 
 Modes of 
 
 II. As an ordmary conveyance. operatiou. 
 
 III. As an extinguishment of a right of entry or action, 
 
 IV. As an extinguishment of a power appendant or in 
 gross. 
 
 {h) 2 BI. Com. 35S— 9.
 
 946 
 
 OF THE OrElLVTIOX OF KECOVERIES. 
 
 Pt. III,T.13, 
 
 C'H. 3, s. 2. 
 
 V. As a revocation of a devise. 
 
 ^''I. As a conveyance of the estate of a married woman, 
 or as an extinguishment of her dower. 
 
 VII. As a forfeiture. 
 
 VIII. As a discontinuance. 
 
 IX. As an instantaneous bar of contingent remainders. 
 
 X. As an instantaneous bar of an estate tail, and of the 
 remainders and reversion expectant tliereon, &c., and a 
 creation of a fee out of the estate tail. 
 
 I. Condusmi or Estoppel. 
 
 A recovery, unless suffered by a feme covert, as such, 
 would operate as an estoppel as against the parties and 
 their heirs general, in the same manner as a fine, even 
 though suffered by a tenant in fee, or without a voucher, 
 or without a proper tenant to the prrecipe (r), that is, a 
 person against whom the writ of entry was brought, and 
 who, at the time of the writ being so brought against him, 
 or before judgment given, had the immediate estate of 
 freehold either by right or by wrong {d). 
 
 But a recovery by a tenant in tail does not operate by 
 estoppel against the issue in tail, or persons in reversion or 
 remainder, or other strangers (c). 
 
 Eecovery by 
 a tenant in 
 tail without 
 u proper 
 tenant to 
 the prsecipo, 
 or without 
 a voucher. 
 
 II. Ail ordinary Conveyance. 
 
 Even where a recovery is void or voidable, as against 
 heirs in tail and the remaindermen and reversioners, it 
 may be good as an ordinary conveyance, as between the 
 parties themselves and tlieir heirs general, and all others, 
 except heirs in tail, who must make title by the pei'sons 
 
 (c) 5 Cru. Dig. tit. 36, c. 2, § 57 ; 
 c. 8, § 2 ; c. 9, § 1 ; Pres. Shop. T. 
 42, n. (80), 48, 49 ; 1 Pres. Conv. 
 4, 120; Burt. Comp. § 107. 
 
 {d) 1 Prcst. Conv. 48 ; Pres. 
 Shep. T. 42. 
 
 (e) 1 Prest. Conv. 5, (5, 88, 92, 95, 
 97, 98, 142.
 
 OF THE OPERATION OF RECOVERIES. 947 
 
 suffering the recoveiy (/). This is the case with a recovery pt^iii.t.is. 
 
 suftered by a tenant in tail without a proper tenant to the 
 
 praecipe, or without a voucher. Such a recovery was good 
 as a conveyance in fee, as betw^een the tenant in tail 
 himself and the other parties to it ; and it w^as only void- 
 able by, and not void as against, the issue in tail, remain- 
 dermen, and reversioners, and other strangers : it was good 
 against them until avoided by them {g). 
 
 A recovery duly suffered by a tenant in tail, after a |f'=';"[g«_^^^ 
 mortgage, charge, lease, conveyance or settlement made i.a,-'"g^a' 
 by him, wovdd operate as a confirmation of such convey- tio°u™^" 
 ance or settlement, by barring the estate tail and the 
 remainders and reversion, so as to preclude the issue in 
 tail and those in remainder or reversion from avoiding the 
 conveyance or settlement (]i). 
 
 Eecoveries by spiritual persons, such as bishops, deans. Recoveries 
 
 ■^ -^ ^ . ^y spiiitual 
 
 and parsons, of their ecclesiastical lands, were good against persons. 
 themselves, but would not bind their successors {i). 
 
 A recovery, even without a proper tenant t-o the praecipe. Recovery by 
 or without a voucher, might operate as a conveyance by o/qMiified 
 any person w^ho had an estate of inheritance, not being an 
 estate tail (/). 
 
 A recovery, which could only operate by estoppel at Recovery 
 
 •^ ./ X J L i. operating by 
 
 first, might in some cases, as in the case of an executory g^^jP^''"' ^' 
 interest or an expectancy, at length take effect as a con- 
 veyance, in the same manner as a fine under similar cir- 
 cumstances (Jx). 
 
 III. An Extinguishment of a right of Entry or Action. 
 
 It would seem that a recovery would operate as an 
 extinguishment of a right of entry or action in those cases 
 
 (/) See Pres. Shep. T. 48, 49. (i) Shep. T. 44. 
 
 {g) 1 Prest. Conv. 86—100, 120. {j ) 1 Prest. Conv. 5, 6, 86—100, 
 
 (A) 1 Prest. Conv. 22; 2 Pres. 120. 
 
 Shep. T. 287. (^•) See Fearne, 366.
 
 948 OF THE OPERATION OF RECOVERIES. 
 
 tt. III.T.13, in whicli a fine would have that effect ; as in the before- 
 
 Cn. 3, s. 2. _ ... 
 
 mentioned case of a disseisee (I). 
 
 IV. Extinguishment of a Poiuer a'p'pendant or in gross. 
 
 If the operation of a recoveiy by a donee of a power ap- 
 pendant or in gross was not qualified by some other instru- 
 ment connected with it, and it created an interest totally 
 inconsistent with the exercise of the power, it extinguished 
 the power, on the general principle that a person is not 
 permitted to defeat his own gTant {m). So that, if a tenant 
 for life, with a power of appointment in favour of his 
 children, with remainder in default of appointment to his 
 eldest son in tail, joined Avith such son in suffering a re- 
 covery, it extinguished the power {n). 
 
 V. A Revocation of a Devise. 
 
 If a person suffered a recovery of lands which he had 
 devised previously to the recovery, and also previously to 
 any other assurance connected with the recovery and form- 
 ing part of the same transaction, such as a deed to make a 
 tenant to the praecipe, the recovery operated as a revocation 
 of the devise ; even though he took back the same estate, 
 as when he was seised in fee, and made no declaration of 
 the uses of the recovery (o). 
 
 VI. A Conveyance of a Married Woman's Estate, or an 
 Extinguishment of Dower. 
 
 If a married woman joined in a recovery, it would operate 
 as a conveyance of her estate, or as an extinguishment of 
 
 (l) Supra, p. 920. (n) Smith v. Death, Madd. 371. 
 
 (m) See Co. Litt. 342 b, n. (1), {o) See 6 Cru. Dig. tifc. 38, c. 6, 
 
 IV.— VI. 3 ; and Smith v. Death, 5 § 72—78 ; 1 Prest. Conv. 196, 197. 
 Madd. 371.
 
 OF THE OPERATION OF RECOVERIES. 949 
 
 her dower ; because a married woman could always be Pt- nr.r.is, 
 
 . . . . Ch. 3, s. 2. 
 
 bound l)y a judgment in an adverse suit, of which a re- 
 
 covery was an imitation, and because she was privately 
 examined as to lier consent [p). 
 
 VII. A Forfeiture. 
 
 By the statute 14 Eliz. c. 8, it is enacted, that a recovery Recovery 
 
 . . . -IP • ^• n • against or 
 
 . prosecuted agamst tenant m tail after possibinty of issue voucher of 
 
 a teuaut in 
 
 extinct, tenant by the curtesy, or any other tenant for life, ^^}^l^^l^ 
 or any other person with voucher over of such particular 
 
 possibility 
 of issue 
 extinct. 
 
 tenant, without the concurrence of the person in remainder, thrcu.t'e^sy. 
 shall be utterly void and of none effect, as against all tenant for 
 persons m remainder or reversion [q). And a recovery by 
 a tenant for life, "svithout the concurrence of the remainder- 
 man or reversioner, operated as a forfeiture, unless he him- 
 self had a remote remainder in tail (r). 
 
 And in consequence of the statute 11 Hen. 7, c. 20, a Fine or 
 
 recovery by 
 
 fine or recovery levied or suffered by a woman, of an estate ^ "'°°'.?", °^ 
 
 ^ J > a marital 
 
 in dower, or for life, or in tail, which was limited to or for ®*'^'^' 
 her, either solely or jointly with her husband, and which 
 moved from her husband or his ancestors, was utterly void 
 and of no effect, if levied or suffered after his decease, 
 unless had with the consent of the heirs next inheritable to 
 her, or of the person next in remainder (such consent ap- 
 pearing on record) ; or unless the lands were limited to the 
 wife in tail general, without any limitation in favour of the 
 husband or his issue or relations from whom the estate 
 moved. And, in the case of such a void recovery, the 
 person in remainder or reversion was enabled to enter im- 
 mediately (s). But an alienation merely for the term of 
 
 {p) 5 Cru. Dig. tit. 36, c. 8, § 3; (r) Id. c. 9, § 8—11 ; Pres. Shep. 
 
 Shep. T. 39 ; 1 Prest. Conv. 4. See T. 40, 49, n. (3) ; 1 Prest. Conv. 
 supra, p. 201. 202; Burt. Comp. § 746. 
 
 {q) 5 Cru. Dig. tit. 36, c. 5, (s) 5 Cru. Dig. tit. 36, c. 10, § 
 
 § 23. 7—31 ; see also Shep. T. 5, 28, 43 ; 
 
 A A 2
 
 950 OF THE OPERATION OF RECOVERIES. 
 
 ^qJ^^-'^-^^' the widow's life is excepted in the statute (i). And it does 
 
 not extend to copyholds (u). 
 Fine or It mav bc mentioned, in this i^lace, that, by the statute 
 
 recovery by 
 
 ahusbaiid 32 Hen. 8, c. 28, a fine or recovery l)v a husband alone, 
 
 alone of his j j ' 
 
 wife'a es- ^j^q ^^g soiscd in right of his wife, shall not be prejudicial 
 to her or her heirs, or the person in remainder or re- 
 version (x). 
 
 VIII. A Discontinuance. 
 
 A voidable recovery by a tenant in tail in possession 
 operated as a discontinuance {y). 
 
 IX. An instantaneous Bar of Contingent Remainders. 
 
 Where a recovery was suffered by the owner of an estate 
 for life in possession, and the legal estate was not vested in 
 trustees, it occasioned the destruction, or, in other words, 
 it operated as an instantaneous bar of contingent remainders 
 which were expectant on such estate for life, and unsup- 
 ported by any other particular estate of freehold {z). For 
 although by the statute 14 Eliz. c. 8, it is enacted, that re- 
 coveries by tenants for life shall, as against " persons to 
 
 whom any reversion or remainder may appertain, 
 
 and against their heirs and successors, be clearly and utterly 
 void and of none effect," yet that refers to vested remainders 
 only («). 
 
 1 Prest. Conv. 147; Burt. Comp. effect of a discontinuance, see supra, 
 
 § 708. p. 931. 
 
 {t) Burt. Comp. § 708. {z) 5 Cru. Dig. til. 36, c, 8, § 31 
 
 (m) 1 Prest. Conv. 148. — 34 ; Smitli's Executory Interests, 
 
 {x) 5 Cru. Dig. tit. 36. c. 10, § § 766, 767, 770, 783. 
 
 33 ; see also Shep. T. 15. (a) Doe d. Davies v. Oatacre, 5 
 
 (y) See Co. Litt. 330 a, n. (1) ; Bing., N. S. 609. 
 
 335 a, n. (2) As to the nature and
 
 OF THE OPERATION OF IIECOVEIIIES. 051 
 
 X. An i7istantaneous Bar of an Estate Tail, and of the Re- 
 mainders and Reversion expectant thereon, &c., and a 
 creation of a Fee out of the Estate Tail (b). 
 
 Where the writ was brouo'ht against a tenant in tail pt. hi.t.is, 
 
 => ° Ch. 3, s. 2. 
 
 himself, when in possession, and he vouched over another 7 — 
 
 ' ■•■ ' Effect where 
 
 person, it was an instantaneous bar of the estate tail of which ^I'^^^J^l ^''^^ 
 he was so seised in possession, unless the estate tail was t^uanUn 
 granted by the Crown as a reward for services, and the re- -R'hen'ir^ ' 
 niainder or reversion was in the Crown at the time of tlie 
 recovery. But a recovery so suffered was no bar to any 
 other estate in him, or in another person, such as a re- 
 mainder in tail, or an estate tail after a disseisin or discon- 
 tinuance or alienation in fee of or by a tenant in tail (c). 
 
 Wliere a tenant in tail in possession conveyed an estate Effect where 
 
 a tenaat iu 
 
 of freehold to another person to mal^e him tenant to *^'i*° . 
 
 -•- possession or 
 
 the praecipe, and he himself came in as voucliee, tlie re- Jemaind-.u- 
 covery barred not only the estate of which he was seised vouchee.''''' 
 in possession, but also every otlier estate that had ever 
 been in him. And where the writ was brought against a 
 tenant for life in possession, and a person having a vested 
 estate tail in remainder came in as vouchee, it would bar 
 his estate tail in remainder, and also any latent right that 
 was in him {d). But a recovery by a donee under a con- necovory by 
 
 . . .■! person 
 
 tmo'eut interest m tail, or by an expectant heir m tail, h.iving a oon- 
 
 *=> ' J i- ' tiiigo.itor 
 
 would not bar the issue or those in remainder or reversion. ?xi.eciant 
 
 luterest m 
 
 And a recovery would not bar a remainder in tail, if *■'"'• 
 
 Kecovtry 
 
 the writ were brought against the tenant in tail in re- i" "iiitii ti 
 
 (b) See Parlcr v. Tooted, 11 H. Prest. Conv. 123. 
 
 L. Cas. 113. (d) 5 Cru. Dig. tit. 36, c. 7, § 54; 
 
 (c) 5 Cru. Dig. tit. 36, c. 10, § 2 Bl. Com. 359; Shep. T. 42, 45 ; 1 
 40—49 ; c. 7, § 45—53 ; 2 Bl. Com. Prest. Coiiv. 126, 138; F.urt. Comp. 
 359 ; Go. Litt. 372 b ; Pros. Shep. § 68G, &c. 
 
 T. 37, 1). (57), 39, 43, 45, 46 ; 1
 
 952 
 
 OF THE OPERATION OF RECOVERIES. 
 
 conditions, 
 limitations, 
 
 executory 
 interests, 
 derivative 
 estates, 
 cliarges, 
 and incum- 
 brances. 
 
 and colla- 
 teral inte- 
 rests. 
 
 Creation 
 of a fee 
 giniple out of 
 tlie estate 
 tail. 
 
 mainder, as well as against tlie tenant for life, and the 
 former vouched over, but was not vouched himself (e). 
 
 And in each of these cases, where the tenant in tail came 
 in as vouchee, and the estate tail was so barred, the re- 
 covery was also an instantaneous bar to the remainders 
 and reversion dependent on such estate tail and not vested 
 in the Crown (/), and to all conditions subsequent or 
 mixed [g), not being conditions for payment of rent to the 
 donor ; and to all special or collateral limitations, and con- 
 ditional limitations annexed to such estates tail, and all 
 executory interests subsequent to such estates tail ; and to 
 all estates, charges, and incumbrances derived out of such 
 remainders and reversion {h), including any estate in fee into 
 which a remainder or reversion depending on such estates 
 tail might have l)een converted by a prior recovery suffered 
 by a person entitled to such remainder or reversion {i) ; 
 and to collateral interests, such as rents, liens, judgments, 
 and powers appendant or in gross, where the recovery was 
 not qualified, and prevented from having this effect by some 
 other assurance connected with the recovery, and showing 
 that the recovery was not intended to extinguish such in- 
 terests (y). 
 
 A recovery, by barring an entail and destroying the 
 estates expectant thereon, &c., created a fee simple out of 
 the estate tail, or, at least, a fee commensurate with the 
 estate, which, at the time of granting the entail, was vested 
 
 (e) Pres. Sliep. T. 44—46 ; 1 
 Prest. Conv. 142. 
 
 (/) 5 Cru. Dig. tit. 36, c. 10, § 
 45, 53—56 ; Pres. Shep. T. 40, 43, 
 45 ; Earl of Scarborough v. Doe d. 
 SaviU, 3 Ad. & Ell. 897. 
 
 ig) Smith's Executory Interests 
 § 11 — 22 ; Earl of Scarhoroucjk v. 
 Doe d.Savile, 3 Ad. & Ell. 897. 
 
 (h) See 5 Cru. Dig. tit. 36, c. 7, 
 § 30—36 ; c. 8, § 25—29 ; Co. Litt. 
 
 327 a, n. (2), II. 1 ; 2 Bl. Com. 
 361 ; Fearne, 424, 425 ; Smith's 
 Executory Interests, § 34—36, 148, 
 149; Shep. T. 40; Pres. Shep. T. 
 40, and n. (72) ; 1 Prest. Conv. 3, 
 21. 
 
 (i) Pres. Shep. T. 41 ; 1 Prest. 
 Conv. 17, 141. 
 
 (j) 1 Prest. Conv. 5 ; Co. Litt. 
 342 b, n. (1), VI. 3 ; Smith v. 
 Death, 5 Madd. 371.
 
 OF THE OPERATION OF RECOVEEIES. 953 
 
 in the donor (Z;), even thouQ;h the tenant in tail declared pt.iii. t.is, 
 
 ^ '" ^ Ch. 3, 8. 2. 
 
 no nses, or the uses declared were void (/). 
 
 But, 1, when a tenant in tail became a tenant in tail "^'''f* ""^i;® 
 
 ' ' Dot banea. 
 
 after possibility of issue extinct, he lost the power which exp^cunT 
 he before had of barring the estates and interests of ummm^^ 
 
 , , . possibility 
 
 others (mX of issue 
 
 extiuct. 
 
 2. A recovery was no bar to powers simply collateral (n). 2. Powers 
 
 3. Nor to any inherent condition annexed to estates tail collateral. 
 for payment of rent to the donor (0). cou'dufoDs. 
 
 4. K"or to any estates or charges which were created by aud^chare^es 
 the tenant in tail himself (p). On the contrary, since it tiie^reco^^ 
 would be contrary to justice that a person should defeat 
 
 his own contract, a recovery suffered by a tenant in tail, 
 for whatsoever purpose suffered, by barring the entail, let 
 in and confirmed all the estates, charges, and incum- 
 brances which he had created, and which were before 
 defeasable by the issue, so that they took jDlace before 
 any charge which was made on the lands by or after the 
 recovery (q). 
 
 5. Nor was a recovery a bar to any estates, charges, s- Estates, 
 limitations, or conditions to which the estate of the donor Y'^^'^V^® 
 
 ' cloEior s 
 
 of the entail was subject (r). So that, if the person who subject!"*^ 
 created an estate tail had only a limited or determinable 
 interest, the recoveror had such estate only as was in the 
 donor, and not a fee simple (s). 
 
 6. Nor was a recovery a bar to any estates or interests 6. Estates 
 which were not subsequent, in point of limitation, to the tbarot't^he 
 estate of which the recovery was suffered (t). recoveree. 
 
 (k) See 5 Cru. Dig. tit. 36, c. 9, (^3) See Id. c. 9, § 7 ; Pres. 
 
 § 7 ; 2 Bl. Com. 361 ; 1 Prest. Shep. T. 41, 47 ; 1 Prest. Conv. 16. 
 
 Conv. 1. (q) Id. § 2—7. 
 
 (l) Tanner v. Radford, 6 Sim. 21. (r) Id. c. 8, § 26 ; Pres. Shep. T. 
 
 (m) 1 Pre.st. Conv. 144. 40, 47 ; 1 Prest. Conv. 17. 
 
 (.w) 5 Cru. Dig. tit. 36, c. 8, (s) Pres. Shep. T. 38 ; 1 Prest. 
 
 § 24. Conv. 2, 140. 
 
 {o) Id. § 26, 27, 30. («) 5 Cru. Dig. tit. 36, c. 10, § 3 ;
 
 954 
 
 OF THE OPERATION OF llECOVERIES. 
 
 Pt. TII.T.13, 
 
 Ch. 3, s. 2. 
 
 Instances of 
 an inter- 
 vening 
 remainder. 
 
 Instance of 
 a term 
 before an 
 estate taU 
 to raise 
 money on 
 failiiie of 
 issue. 
 
 Dower. 
 
 Distinction 
 between 
 joint ten- 
 ants. 
 
 and tenants 
 by entireties, 
 in regard to 
 the power of 
 barring. 
 
 Thus, if a remote remainderman in tail, with the as- 
 sistance of the owner of the immediate freehold, or if a 
 tenant for life in possession, wdtli a remote remainder in 
 tail in himself, suffered a recovery, it barred his estate tail 
 and the remainders and reversion expectant thereon, but 
 was no bar to the remainders intervening between the 
 immediate freehold and his estate tail (^u). And so, if a 
 term for years was limited to arise before an estate tail, 
 even though for the purpose of raising a sum of money 
 in case of a failure of issue of the parent to whose issue 
 the estate tail was given, it was not barred by a recovery 
 suffered of the estate tail {x). And so a recovery by a 
 husband, in which his wife did not join, was no bar to her 
 dower. There is an Act of Parliament, Stat. Westminster 
 2, c. 4, to this effect (?/) ; but it is conceived, that, in 
 accordance with the general principle, the same would have 
 been the case independently of that statute. 
 
 Where two persons were seised as joint tenants for life, 
 with a remainder in tail to one of them, and the person 
 who had the remainder in tail suffered a recovery, it 
 severed the jointure, and barred the estate tail and the 
 remainder over, as to a moiety, but no more (z), because 
 joint tenants are each seised of an undivided moiety of 
 the whole. And where land was limited, before marriage, 
 to a man and his intended wife and the heirs of their bodies, 
 and the husband suffered a recovery, in which he was 
 vouched, the recovery was a good bar to the estate tail as 
 to the husband's moiety («). 
 
 But if lands were given, after marriage, to husband and 
 wife and the heirs of their two bodies, remainder over, so 
 
 Co. Litt. 203 b, n. (1) ; 1 Prest. 
 Conv. 16, 141. 
 
 (m) 1 Prest. Conv. 16, 17; Pres. 
 Shep. T. 41 ; 5 Cru. Dig. tit. 36, c. 
 10, § 6. 
 
 (ic) Bales v. Conn, 4 Sim. 65. 
 
 {l/}-5 Cru. Dig. tit. 36, c. 8, § 
 5, 6. 
 
 (z) 5 Cru. Dig. tit. 36, c. 7, § 25, 
 26; 1 Prest. Conv. 125. 
 
 (a) 5 Cru. Dig. tit. 36, c. 7, § 25, 
 26 ; 1 Prest. Conv. 125, 143.
 
 OF THE OPEKATION OF RECOVEKIES. 955 
 
 tliat they were seised in tail as tenants by entireties, a pt.iii.t.is, 
 
 recovery Ijy tlie husband alone was no bar to the estate 
 
 tail, remainder, or reversion, for any part of the land; 
 because, in this case, the husband had no distinct in- 
 terest (b). And if land was limited, after marriage, to 
 husband and wife for life, and to the heirs of the body of 
 the husband, and the husband alone suffered a recovery, 
 with single voucher, it was no bar, even as to a moiety ; 
 because the limitation to the heirs of the body of the 
 husband was not executed in possession absolutely; and 
 the husband and wife took by entireties under the first 
 limitation, so that the husband took no distinct interest in 
 possession ; and a recovery with single voucher could have 
 no effect except on an estate in possession. But the 
 recovery, in such a case, was a bar to the remainder, if 
 the husband came in as vouchee, though it did not bar 
 the estate of the wife for her life, after the husband's 
 death (c). 
 
 7. A woman could not bar a marital estate tail within 7. Marital 
 the stat. 11 Hen. 7, c. 20, already noticed: a recovery 
 suffered by her of such an estate was void (d). 
 
 8. In consequence of the stat. 34 & 35 Hen. 8, c. 20, s. Estates 
 
 1 1 /-M 1 *'^'' sranted 
 
 where an estate tail was granted by the Crown as a reward by the 
 
 ° Crown as a 
 
 for services, and the remainder or reversion was in the reward for 
 
 ' services, and 
 
 Crown at the time of a recovery suffered by the tenant in auTre4*i^^ 
 tail, such recovery could not bar either the entail or the crown!^ 
 remainder or reversion in the Crown, or particular estates 
 derived out of it, or any other estate in the land (c). 
 
 And in other cases where the reversion was vested in 
 the Crown, except by a subject in fraud of alienation, it 
 
 (h) See Pres. Shep. T. 46 ; 1 (d) See § VII., supra, and 1 
 
 Prest. Conv. 124. Prest. Coav. 20. 
 
 (c) See 5 Cru. Dig. tit. 36, c. 7, (e) .5 Cru. Dig. tit. 36, c. 10, § 
 
 § 27—29, 56, 57 ; Pres. Shep. T. 40, 49 ; Co. Litt. 372 b ; 1 Prest. 
 
 46 ; 1 Prest. Conv. 55—57, 124, Conv. 18, 145. 
 125, Fearne, 36, 37.
 
 95G 
 
 OF THE OPERATION OF RECOVERIES. 
 
 •^^•^¥•'^4^' is doubtful, at least, whether such reversion could be 
 
 Ch. 3, 8. 2. 
 
 barred (/). 
 
 9. By the stat, 21 Hen. 8, c. 15, s. 14, no manner of 
 statute staple, statute merchant, nor execution by elegit 
 shall be avoided, or in any manner made frustrate, by a 
 feigned recovery {g). 
 
 10. The Court of Chancery will interfere in the case of 
 recoveries obtained by fraud (A). And it will also confine 
 the operation of a recovery to those purposes for which the 
 recovery was intended {i). 
 
 9. Statutes 
 or elegits. 
 
 10. Persons 
 not barred 
 in equity 
 iu certain 
 
 cases. 
 
 Tenant to 
 the praecipe. 
 
 Kule as to 
 him. 
 
 Enactraents 
 upon the 
 point. 
 
 As the effect of a recovery so materially depended on 
 there being a proper tenant to the praecipe, it may be 
 desirable to add a few observations upon that point. 
 
 We have seen that the rule was, that a person, in order 
 to be a proper tenant to the praecipe, must, at the time of 
 the writ being brought against him, or before judgment 
 given, have had the immediate estate of freehold, either by 
 right or by wi'oug {j). 
 
 But by the stat. 14 Geo. 2, c. 20, s. 6, a recovery was 
 valid to all intents and purposes, if the deed making the 
 tenant to the praecipe were executed before the end of the 
 term, great session, session, or assize in which such re- 
 covery was suffered (/.:). 
 
 By section 5 of the same statute, after a lapse of twenty 
 years from the suffering a recovery, it is to be deemed 
 valid, if it appear on the face of it that there was a tenant 
 to the writ, and if the persons joining iu such recovery 
 had a sufficient estate and power to suffer the same, not- 
 
 (/) See 5 Cru. Dig. tit. 36, c. 10, § 44. 
 § 45, 53—56 ; 1 Prest. Conv. 19, {i) Id. § 46. 
 
 146. (i) Pres. Shep. T. 42; 1 Prest. 
 
 (r/) 5 Cru. Dig. tit. 36, c. 10, Conv. 48. 
 § 57. (h) 5 Cru. Dig. tit. 36, c. 2, § 24, 
 
 (li) 5 Cru. Dig. tit. 36, c. 10, 25.
 
 OF THE OPEEATION OF RECOVEKIES. 957 
 
 withstandinc: the deed for making the tenant to snch writ pt. iiit.is, 
 
 ® " Cn. 3, s. 2. 
 
 be lost or not appear (/). ' 
 
 And, in consequence of tlie same statute, a tenant in 
 tail in remainder could suffer a recovery without the con- 
 currence of the tenant of the first estate of freehold, if the 
 latter were a mere lessee for life under a rent, provided 
 the owner of the estate of freehold next expectant on such 
 life estate conveyed an estate of freehold to the tenant to 
 the A\'rit (/??). 
 
 A recovery suffered by a cestui que trust in tail who ^fj^jj^^t''^ 
 was in possession under the trustees, or by a cestui que lo^the^"'*'^* 
 trust in tail in remainder in conjunction with a cestui que p"*'''p®" 
 trust for life in possession, would effectually bar such 
 estate tail and all equitable remainders and equitable 
 reversions, although there was only an equitable tenant 
 to the praecipe. And a recovery suffered by an equitable 
 tenant in tail who had previously mortgaged in fee is 
 valid without the concurrence of the mortgagee, because 
 the whole beneficial ownership, subject to the payment 
 of the money, remains in the mortgagor (71). But a re- 
 covery without a legal tenant to the praecipe was no bar 
 to any legal estate (0). It is enacted, however, by the 
 stat. 3 & 4 Will. 4, c. 74, s. 11, that no recovery " shall be 
 invalid in consequence of any person, in whom an estate 
 at law was outstanding, having omitted to make the tenant 
 to the writ of entry or other writ for suffering such recovery, 
 provided the person who was the owner of or had power to 
 dispose of an estate in possession, not being less than an 
 estate for life or lives in the whole of the rents and profits 
 of the lands in which such estate at law was outstanding, 
 
 (1) 5 Cm. Dig. tit. 36, c. 2, § 56. Turn. & Russ. 26. 
 
 (m) 5 Cru. Dig. tit. 36, c. 2, § 28; (0) See 5 Cru. Dig. tit. 36, c. 8, 
 
 Shep. T. 42, n. (82) ; Burt. Comp. § 9—20 ; 1 Prest. Conv. 22—24 ; 
 
 § 691. Ireson v. Pearman, 3 Bar. & Cress. 
 
 (n) Nouaille v. Grccmoood, ] 799.
 
 958 
 
 OF THE OPERATION OF RECOVEKIES. 
 
 I'T.III.T.IS, 
 
 Ch. 3, s. 2. 
 
 Freehold 
 ill the 
 teiiaut to 
 thi- pisecipe, 
 where some 
 only of 
 several 
 remainder- 
 men in tail 
 were 
 vouched. 
 
 Surreiider of 
 a life estate 
 to the 
 remainder- 
 man, or 
 reversioner. 
 
 or convey- 
 ance thereof 
 to a third 
 person. 
 
 or the ultimate surplus of sucli rents and profits after pay- 
 ment of any charges thereout, and whether any surplus 
 after payment of such charges shall actually remain or not, 
 shall within the time limited for making the tenant to the 
 writ for suffering such recovery, have conveyed or disposed 
 of such estate in possession to the tenant to such writ; and 
 an estate shall be deemed to be an estate in possession not- 
 withstanding there shall be subsisting prior thereto any 
 lease for lives or years, absolute or determinable, upon 
 which a rent is reserved, or any term of years upon which 
 no rent is reserved." 
 
 Where a remainder in tail was vested in several persons, 
 who joined with the tenant for life in making a tenant to 
 the praBcipe, and a recovery was suffered, in which some 
 only of them were vouched, an estate of freehold co-ex- 
 tensive with the interests of the others or other of them, 
 who was or were not vouched, remained in the tenant to 
 the precipe, and was sufficient to give validity to a subse- 
 quent recovery, in which such others or other of them was 
 or were vouched (p). 
 
 If a person, having a remainder or reversion expectant 
 on an estate for life in possession, was made tenant to the 
 praecipe, such life estate, except it were a lease for life 
 within the stat. 14 Geo. 2, c. 20 (p. 957), ought to have 
 been surrendered to the remainderman or reversioner, before 
 he became tenant to the prsecipe. The Courts will presume 
 a surrender of the life estate, where there are sufficient 
 grounds for so doing ; as where the possession has accom- 
 panied the recovery a long time, as for forty years ; or 
 w^here there are entries in an attorney's book of a surrender 
 having been prepared and paid for. The most usual course, 
 however, was for the prior estate for life to be conveyed to 
 some third person, to make him tenant to the precipe (q). 
 
 (p) Collyer v. Mason, 2 B. & B. 
 685. 
 
 Cq) Prcs. Shcp. T. 42, n. (82) ; 1 
 Prcsfc. Conv. 77 — 85.
 
 OPERATION OF FINES AND KECOVERIES CONTRASTED. 959 
 
 Section III. 
 
 The opeirttion of Fines and the operation of Recoveries con- 
 trasted. 
 
 Most of tlie points of resemblance and of difference pt. ni.T.13, 
 
 C'H. Of S. 3. 
 
 between Fines and Eecoveries, as regards tlieir operation, 
 may readily be collected from tlie preceding view of the 
 modes in which they respectively operate. One or two of 
 these differences, however, it would seem expedient par- 
 ticularly to notice. 
 
 At the same time as a recovery barred an entail, we a recovery 
 
 iustantly 
 
 have seen that it instantly destroyed the estates expectant destroyed 
 
 •J -J i the estates 
 
 thereon, and created a fee simple out of the estate tail, or and'r'^ver^^'^ 
 at least a fee commensurate with the estate which at the a fine did 
 time of granting the entail was vested in the donor (r), 
 even though the tenant in tail declared no uses, or the 
 uses declared were void (s). The effect of a fine was very 
 different. While, if levied with proclamations, it instan- 
 taneously barred all the lineal heirs in tail of the cognizor, 
 and all his collateral relations who were privy to him in 
 blood and estate, it had no immediate effect on the subse- 
 quent estates, but, until the expiration of the five years 
 within which the owners of such estates were allowed 
 to claim, only converted the estate tail into a base fee, 
 although after that time, indeed, in the event of non- 
 claim, the estate tail became an estate in fee simple {t). 
 
 From this diversity of operation, there sometimes re- 
 sulted some most important practical differences in the 
 effect of the two assurances. Thus — 
 
 (r) See 5 Cru. Dig. tit. 36, c. 9, 21. 
 
 § 7 ; 2 Bl. Com. 361 ; 1 Prest. {t) See 5 Cru. Dig. tit. 35, c. 9 ; 
 
 Cony. 1. 1 Prest. Conv. 8 ; Doe d. Gilbert v. 
 
 (s) Tanner v. Radford, 6 Sim. Ross, 7 Mees. & W. 125.
 
 960 THE OPERATION OF FINES 
 
 pt. III.T.13, 1. If the immediate reversion or remainder in fee simple 
 
 Cn. 3, s. 3. _ _ ^ 
 
 happened to be vested in the tenant in tail himself, and 
 
 1. Aiecovery 
 
 would some- had descended from and was subject to an incumbrance of 
 
 times •' 
 
 ^^cuuXance ^^^ °^ ^^^^ auccstors, a recovery suffered by the tenant in 
 woii'id''^"^ tail cut off the incumbrance, by cutting off the reversion 
 or remainder subject thereto. But if a fine was levied by 
 him, it served to accelerate the incumbrance : for the base 
 fee into which the estate tail was converted merged in the 
 reversion or remainder in fee, so that such remainder or 
 reversion became an estate in possession ; and the incum- 
 brance which was unavailing as against those who claimed 
 under the entail before the fine, became, by the operation 
 of the fine, accelerated together with the reversion or re- 
 mainder, and established as an immediate charge upon 
 those persons against whom it was before of no avail, that is 
 against the tenant in tail and the heirs in tail, under their 
 new characters of tenant in fee simple and heirs general, 
 which they acquired by the fine (u). 
 
 2. The indi- 2. If a pcrsou scised in fee ex parte materna suffered a 
 
 rectoperation J- ^ 
 
 sometimes rccovcry, it did not alter the mode of descent (x). In the 
 from that of case of a tenant in tail by purchase under a marriage 
 as regards' Settlement made by his maternal ancestor, with the re- 
 
 the descent 
 
 of au estate, version in fee by descent ex parte materna, if the tenant in 
 tail suffered a recovery to the use of himself in fee, the 
 estate would descend to his heirs ex parte paterna ; 
 because the estate tail acquired by purchase, though from 
 his maternal ancestor, would so descend ; and the fee 
 created by the recovery out of the estate tail descended 
 in the same manner as the estate tail (y). Whereas, if a 
 tenant in tail similarly situated had levied a fine, it is 
 conceived that the property would have descended to his 
 
 (m) See 5 Cru. Dig. tit. 35, c. 12, {x) 5 Cru. Dig. tit. 36, c. 9, § 
 
 § 9, 10; tit. 36, c. 9, § 7; 1 Prest. 12, 13. 
 
 Conv. 9, 10, 13, 14; 2 Pres. Shep. {y) See 5 Cru. Dig. tit. 36, c. 9, 
 
 T. 286 ; Watk. Conv. 3rd ed. by § 14, 15 ; 1 Prest. Conv. 197. 
 Prcst. 64—5.
 
 AND RECOVEEIES CONTRASTED. 961 
 
 heirs ex parte materna ; because tlie estate tail, which was pt. iii.t.is, 
 
 Ch. 3, s. 3. 
 
 alone originally descendible to his paternal heirs, would 
 
 have been converted into a base fee, and that base fee 
 would have merged in the reversion in fee simple de- 
 scendible to his maternal heirs.
 
 962 
 
 TITLE XIV. 
 
 Part. III. 
 Title XIV. 
 
 Alienation 
 by the lord 
 or a tenant. 
 
 Ordinaiy 
 mode of 
 alienating 
 copyholds- 
 
 ■when held 
 in fee sim- 
 ple. 
 
 Surrender 
 and admit- 
 tance. 
 
 OF ALIENATION OF COPYHOLDS BY VOLUNTAKY GRANT AND 
 ADMITTANCE, BY SURRENDER AND ADMITTANCE, BY 
 BARGAIN AND SALE AND ADMITTANCE, OR BY RECOVERY. 
 
 Alienation of copyholds may be either by the lord of the 
 manor, or by one tenant of the manor to another. We have 
 already made some few observations upon alienation by the 
 lord by way of voluntary grant {a). 
 
 With regard to alienation by one tenant to another, no 
 ordinary assurance applicable to property of freehold 
 tenure has any operation upon the legal estate in copy- 
 holds (h). The ordinary mode of alienation of a copyhold 
 by a tenant having an estate in fee simple is by surrender 
 and admittance, that is, a surrender or yielding up of his 
 estate by the tenant to the lord or his steward, to the use 
 of the alienee, or for such purposes as in the surrender are 
 expressed; and an admittance of the alienee or person 
 intended to take, to hold to him and his heirs at the will 
 of the lord, according to the custom of the manor. The 
 surrender and admittance are entered on the court roll, 
 and the new tenant receives a copy of this entry (c). 
 Before admittance, it was necessary, until a recent enact- 
 ment, that the surrender should be presented by the 
 homage or jury, by way of giving the lord notice of the 
 surrender, unless he chose to proceed without it. But by 
 the stat. 4 & 5 Vict. c. 35, s. 90, 23resentment is no longer 
 necessary. 
 
 (a) Supra, p. 123— 4. 
 
 (b) 2 Bl. Com. 367 ; 1 Cruise T. 
 10, c. 3, § 17. 
 
 (c) Burton, § 1263 ; 2 Bl. Com. 
 365 ; 1 Cruise T. 10, c. 3, § 17.
 
 OF ALIENATION OF COPYHOLDS. 963 
 
 We have seen (p. 121) that iu the case of free copyholds, part.iil 
 
 a deed of barofain and sale is sometimes employed, instead 
 
 ° i J ' BargaiQ 
 
 of a surrender. And sometimes, to avoid the necessity for ^ud sale. 
 
 Pow( 
 sale. 
 
 admittance of trustees for sale of copyholds under a will, a ^°^'^'" °^ 
 
 mere power of sale is given them without any estate, and 
 they then execute a deed of bargain and sale in favour of 
 the purchaser, which gives him the right of claiming ad- 
 mittance from the lord (cl). 
 
 Where a man has only a right to a copyhold, he may Release, 
 release it by deed or by copy to one who is admitted (e). 
 
 Estates tail in copyholds are not capable of being Modes of 
 
 ^ ^ '■ " barnug 
 
 discontinued ; nor could auy assurance be made of them entails. 
 similar to a fine : but iu all cases previous to the stat. 
 3 & 4 Will. 4, c. 74 (which, as we have seen, abolished 
 recoveries and substituted other modes of disposition by 
 tenants in tail and owners of base fees in copyholds) (/), 
 such estates might be enlarged into fees simple, either by 
 some appropriate proceeding in the lord's court (which was 
 most commonly analogous to a common recovery, and 
 called by that name), or, in the absence of a custom for that 
 purpose, by a mere surrender (g). 
 
 By the stat. 3 & 4 Will. 4, c. 74, s. 4, no fine or re- F>Qeor 
 
 recovery of 
 
 covery levied or suffered in a superior Court of lands of '^"'?* '" 
 the tenure of ancient demesne may be reversed as to any '^emesue. 
 person except the lord of the manor ; and every such fine 
 or recovery which may be reversed as to him will still 
 remain valid against and as binding upon the conusors or 
 vouchees, and all persons claiming under them, as if not 
 reversed. 
 
 By s. 5 of the same Act, if a fine or recovery has been 
 levied or suffered in a superior Court of lands of the 
 
 (d) See 9 Jarm. & Byth. by Sweet, (o) Burton, § 1285 ; 5 Cruise T. 
 424. 37, c. 2, § 7, 19 ; Co. Litt. 60 a, b, 
 
 (e) Co. Litt. 59 a. & n. 3, 1. 
 (/) See supra, p. 781. 
 
 VOL. II. B B
 
 964 
 
 OF ALIENATION OF COFYIIOLDS. 
 
 Part. til. 
 Title XIV. 
 
 Mode of 
 suneuder. 
 
 Where 
 grants and 
 admittances 
 may be 
 made. 
 
 tenure of ancient demesne, and subsequently a fine or 
 recovery lias been levied or suffered of the same lands in 
 tlie court of the lord of the manor, the fine or recovery in 
 the lord's court will be as valid as if the tenure had not 
 been altered. 
 
 By s. 6 of the same statute, tenure of ancient demesne, 
 where suspended or destroyed Ijy levying or suffering a fine 
 or recovery in a superior Court, will be restored wdiere the 
 lord is not barred of his right to reverse such fine or re- 
 covery, provided his rights shall have been recognised 
 within twenty years from the 1st January, 1834. 
 
 By the general custom, every copyholder may surrender 
 in Court, or he may surrender out of Court to the lord 
 himself or his steward. But he cannot surrender out of 
 Court to the lord by tlie hands of any other person, except 
 by particular custom (A). 
 
 By the old law, grants and admittances must generally 
 have been made at a court held within the manor. But 
 by particid.ar custom, the court might be held out of the 
 manor, and grants and admittances made there {i). And 
 by the stat. 4 & 5 Vict. c. 35, s. 87, it is enacted " that, 
 after the 31st day of December, 1841, it shall be lawful 
 for the lord of any manor, or his stew^ard, or the deputy 
 of such steward, to grant at any time and at any place, 
 either within or out of such manor, and without holding a 
 court for such manor, any lands, parcel of such manor, to 
 be held by copy of court roll, or according to the custom 
 of the said manor, which sucli lord shall for the time being 
 be authorised or empowered to grant out to be held by 
 copy of court roll, or according to such custom, so never- 
 theless that such lands be granted for such estate only, 
 and to such person only, as such lord, steward, or deputy 
 shall for the time being be authorised or empowered to 
 
 (h) Co. Litt. 59 a, & n. 6. 
 
 (/) 1 Cruise T. 10, c. 1, § 22.
 
 OF ALIENATION OF COPYHOLDS. 965 
 
 grant the same." And by s. 88, it is enacted, " that, alter J'^»f I'l- 
 
 ° J ' TlTLK XIV. 
 
 the 31st day of December, 1841, it shall be lawful for the 
 
 lord of any manor, or his steward, or the deputy of such 
 steward, to admit, at any time, and at any place, either 
 within or out of such manor, and without holding a court 
 for such manor, any person as tenant to any lands, parcel 
 of such manor, to be held by copy of court roll, or ac- 
 cording to the custom of such manor, to and for which such 
 person' shall for the time being be entitled to be admitted." 
 But by s. 91, it is provided, " that where by the custom of 
 any njianor the lord of such manor is authorised, with the 
 consent of the homage of such manor, to grant any common 
 or waste lands of such manor to be holden of the lord by 
 copy of court roll, nothing in this Act contained shall 
 operate to authorise or empower the lord to grant any such 
 common or waste lands without the consent of the homage 
 assembled at a customary court holden for such manor, &c." 
 
 Prior to this Act, an admittance by the steward, as such, 
 out of the manor, whether at a court or otherwise, was in- 
 operative, unless by virtue of a special authority from the 
 lord, or unless subsequently ratified by him and notified to 
 the homage {j). 
 
 By the stat. 11 Geo. 4 & 1 Will. 4, c. 65, s. 3 — 5, in- Admittance 
 
 of persons 
 
 fants, femes covert, and lunatics may be admitted to copy- ^!"|er, 
 hold estates by their guardian, committee, or attorney. By 
 s. 6, if the fines are not paid, the lord may enter and receive 
 the profits of the copyhold till he is satisfied. By s. 8, 
 guardians, or husband, or committees paying fines, may re- 
 imburse themselves out of the rents of the copyhold. And 
 by s. 9, no forfeiture is to be incurred by an infant for not 
 appearing or for refusing to pay fines. But the stat. 16 & 
 17 Vict. c. 70, repeals this Act, as regards lunatics, and 
 makes certain enactments on the subject (/c). 
 
 {j) Doe d. Gutteridrje v. Sowerbi/, (k) See Pt. IV. T. 1, c. 6. 
 
 7 Com. B. (N.S.) 599. 
 
 B B 2 
 
 disability.
 
 966 
 
 OF ALIENATION OF COPYHOLDS. 
 
 Part [TI. 
 Title XIV. 
 
 Words of 
 limitation 
 in a 
 
 surrender, 
 and construc- 
 tion tliereof. 
 
 Circum- 
 stances 
 under wliich 
 admittatccs 
 may take 
 place. 
 
 Husband 
 not admitted. 
 
 Rights of 
 surrenderee 
 before 
 admittance. 
 
 Rights of 
 heir or 
 
 devisee 
 
 before 
 
 admittance. 
 
 The words of liinitation in the surrender must be the 
 same as tliose which would he required in the conveyance 
 of freehold lands, unless the peculiar custom authorises a 
 variation. And the surrender is generally to be construed 
 in the same manner as a conveyance at common law (/). 
 
 Admittance may take place, first, upon a voluntary grant 
 from the lord. Secondly, upon a surrender or devise by 
 the former tenant. And, thirdly, upon a descent (m). 
 
 If a person marries a woman who has a term of years or 
 other greater estate in a copyhold, though he thereby be- 
 comes seised or possessed of the copyhold, yet as it is jure 
 alieno, he is not obliged to be admitted, and therefore not 
 liable to a fine (;)i). 
 
 After surrender, and before admittance of the surrenderee, 
 the surrenderor remains tenant to the lord ; and if the sur- 
 renderee surrenders to another, the surrender is void, and 
 cannot be confirmed. But the surrenderee is so far re- 
 garded as owner, that the surrenderor cannot revoke the 
 surrender, or convey away, or incumber ; and the surren- 
 deree may make an equitable, though not a legal, transfer 
 by act inter vivos ; and if the surrenderee, in the case of a 
 free copyhold, dies before admittance, his widow is entitled 
 to dower (o). Before the stat. 1 Vict. c. 26, s. 3, a sur- 
 renderee before admittance could not devise ( j)). 
 
 The heir has as complete a title without admittance, as 
 with it, against all the world (q), except the lord. Indeed, 
 upon satisfying the lord for his fine clue upon the descent, 
 he may surrender into the hands of the lord to whatever 
 use he pleases (r). And even before the stat. 1 Vict. c. 26," 
 s. 3, an heir at law might devise a copyhold estate de- 
 
 (/) Burton, § 1278 ; 5 Crui.se T. 
 37, c. 1, § 76, 84, 85. 
 
 (m) 2 Bl. Com. 370. 
 
 (m) 1 Cruise T. 10, c. 4, § 19. 
 
 (o) See 5 Cruise T. 37, c. 1, § 53 
 —59 ; 2 BL Com. 368 ; Coote 
 
 Mortg. 3rcled. 114. 
 
 (p) 1 Jarm. Wills, 2nd ed. 48. 
 
 (q) 2 Bl. Com. 371, Christian's 
 note. 
 
 (r) 2 Bl. Com. 371 ; Burton, § 
 1295.
 
 OF ALIENATION OF COPYHOLDS. 967 
 
 scended to liiiii, witliout liaving been admitted, and without pakt in. 
 
 ' ^ ' _ Title XIV. 
 
 previous payiiieiit of the lord's fine (s). But, until admit- — 
 
 tance, a devisee cannot surrender the tenement, nor, before 
 the stat. 1 Vict. c. 26, s. 3, could he devise it (t). 
 
 The uses expressed in the surrender entirely ffovern the Admittance 
 
 ■*- t/ T> governed by 
 
 operation of the subsequent admittance. If any other ^*j.*JJffiei. 
 person than he to whose use the surrender was made is ad- 
 mitted by the lord, he acquires no title ; and if, on the 
 admittance of the surrenderee, other words of limitation 
 are used than those in the surrender, they are of no avail, 
 and the estate expressed in the surrender takes effect (i(). 
 
 By the sreneral custom, admittance of a tenant for life is A<imittancc 
 
 "^ " ot lemam- 
 
 that of the remaindermen, so as to vest tJie estate in 'Mermen. 
 them (x). 
 
 The admittance of one joint-tenant is the admittance Admittauce 
 
 of one joiut- 
 
 of all his co-tenants (?/). tenant. 
 
 The title of the tenant upon admittance relates back to Admittance 
 
 •^ relates back. 
 
 the surrender (z). 
 
 In admittances upon surrender or upon descent, the lord i^ord and 
 
 i '^ fteward are 
 
 is to no intent reputed as owner, but as a mere instrument. "Jg^'fts in ™" 
 As no manner of interest passes into him by the surrender on™uTend?r 
 or the death of his tenant, so no interest passes out of him 
 by the admittance. It is a merely ministerial act, and 
 therefore it is immaterial whether the lord's estate in the 
 manor is in fee or f(jr years, or whether his possession is by 
 right or by wrong («). And a fortiori the regularity of the 
 steward's appointment is not material (&). 
 
 A sum of- money, called a fine, is due to the lord on an |'nes, when 
 
 (s) Eir/ht d. Tai/lo-,' v. Banks, 3 B. (y) Bence v. Qilpin, L. R. 3 Ex. 
 
 & Ad. 664 ; Burton, § 1295 ; 1 76, 81, 84. 
 
 Jarm. Wills, 2nd ed. 47. (z) Bence v. Gilpin, L. R. 3 Ex. 
 
 (t) Burtou, § 1294 ; 1 Jarm. 76, 83, 84. 
 
 Wills, 2ad ed. 47. (a) 2 Bl. Com. 370—1 ; Burton, 
 
 («) Burton. § 1276. § 1277 ; Co. Litt. 58 b, 59 b. 
 
 (x) Smith V. Glasscock, 4 Com. B. (h) Burton, g 1277. 
 357.
 
 968 OF ALIENATION OF COPYHOLDS. 
 
 Part III. admittance, whether upon descent, or upon a surrender or 
 
 XITLE .2L1V> 
 
 a devise by a former tenant, or upon a voluntary grant (c). 
 
 On tlie admittance of joint-tenants, the fine is not a single 
 fine, but is increased by the numl)er of the co-tenants {(I). 
 And if a person entitled to copyholds in fee dies without 
 having been admitted, two fines are payable on the admis- 
 sion of his devisee (e). Where a man acquires a copyhold 
 by the custom of curtesy, or a woman acquires a copyhold 
 by the custom of free bench, a fine is payable in some 
 manors on the admittance of these tenants, and in others 
 not (/). As by the general custom of copyholds, the ad- 
 mittance of a tenant for life is an admittance of the persons 
 in remainder, so the fine is not assessed for the particular 
 estate alone, but for the wliole inheritance. In some 
 manors, however, by particular custom, persons in re- 
 mainder must be admitted, and pay a fine on their admit- 
 tance (f/). And where this custom exists, the same rule 
 ought to be applied to an executory devisee who becomes 
 entitled on the defeasance of an estate in fee (h). A fine 
 being only due as a consideration for the admittance of a 
 new tenant, if a copyholder surrenders for life, reserving 
 the reversion to himself, and the tenant for life dies, the 
 surrenderor may enter without paying a fine, because the 
 reversion was never out of him. So if a copyholder grants 
 his estate to a stranger upon condition, and afterwards 
 enters for the condition broken, he is not liable to the pay- 
 ment of a fine ; because he comes in of his old estate (i). 
 And where a testator directs certain persons to sell his 
 copyholds, they need not be admitted, and consequently 
 they are not liable to the payment of a fine (/ ). 
 
 (c) 1 Cruise T. 10, c. 4,§ 1, 2, 3. 1 Scriven ou Copyh. 4tli ed. by 
 
 (d) Bcnce v. Gilpin,'i^.TX. 3 Ex. 76. Stalman, 294—5, 342—3. 
 
 (e) Lord Londesborouf/li v. Foster. (h) Randfidd v. Eandfidd, 3 De 
 3 Best & Sm. 805. G. F. & J. 766. 
 
 (/) 1 Cruise T. 10, c. 4, J; 4. (/) 1 Cruise T. 10, c. 4, § 15. 
 
 (<l) 1 Cruise T. 10, c. 4, g 10, 13; [j) 1 Cruise T. 10, c. 4, § 21.
 
 OF ALIENATION OF COPYHOLDS. 960 
 
 A fine is duo on the cliaiiQ'e of the lord by the aet of ^art hi. 
 God, but not by his own act (A;). 
 
 The lord may not take more than two years' miproved ^^^"^^^ 
 annual value in the case of a fine arbitrary (/), except upon 
 a voluntary grant {iii). The value is not estimated by the 
 rent under a lease ; and a deduction is made on account of 
 quit rents, but not on account of land tax {li). In some 
 manors the fine for two lives taking successively is as much 
 and half as much as the fine for one life ; and the fine for 
 three lives as much and half as much as the fine for two 
 lives {6). 
 
 In many manors, upon the death of a copyholder, even neiiots. 
 though he was only tenant for life, the lord becomes 
 entitled to his best beast or best chattel, whether con- 
 sisting of a jewel or piece of plate or anything else, or to 
 some pecuniary composition in lieu thereof (i?). A heriot 
 is only due on the death of a legal tenant, not on the 
 death of the person entitled to an ecpiitable estate in a 
 copyhold {(j). No heriot is due on the death of a married 
 woman ; because she can have no legal estate in chattels (/•). 
 "Where a copyhold estate is divided into two parts by a 
 devise of it to two persons, as tenants in common, each of 
 the devisees is subject to the payment of a separate fine, 
 and to a several heriot (.s). 
 
 Suit of court is a service to which all copyholders are services. 
 bound. But in many manors copyholders are also liable, 
 l)y particular custom, to the payment of rent service, rents 
 of assize and reliefs, and to the performance of a variety of 
 services (/). 
 
 \k) Co. Litt. 59 b. Bl. Com. 422—424. 
 
 (0 1 Cruise T. 10, c. 4, § 32, 36. {q) 1 Cruise T. 10, c 4, § 49. 
 
 \m) See 1 Cruise T. 10, c. 4, § 38. (r) 1 Cruise T. 10, c. 4, § 51 ; 2 
 
 \n) 1 Cruise T. 10, c. 4, § 36. BL Com. 424. 
 
 (o) 1 Cruise T. 10, c. 4, § 34. (s) 1 Cruise T. 10, c. 4, § 55. 
 
 {p) 1 Cruise T. 10, c. 4, § 45 ; 2 (0 1 Cruise T. 10, c. 3, § 2.
 
 i»70 
 
 TITLE XV. 
 
 OF ALIENATION BY WILL. 
 
 CHAPTER I. 
 
 OF WILLS GENEKALLY, AND OF DEVISES AND BEQUESTS 
 JOINTLY CONSIDERED. 
 
 Section I. 
 Of Wills generally. 
 pt.iii. T.15, A WILL is a disposition of property which is not to take 
 
 Ch. 1, b. 1. , , . . , . , 
 
 — enect m any manner, either mchoately or absolutely, before 
 
 Definition i i i p i i • i 
 
 of a will. the death oi the testator, that is, the person whose property 
 is so disposed of, but is to take effect on or after that 
 event. So far as a will relates to personal estate, it is 
 sometimes termed a " testament," and sometimes a " last 
 will and testament " («). 
 
 Definition A cocUcil is a Supplement which is made to a will, for 
 
 of a codicil. 
 
 the purpose of altering, explaining, adding to, or subtracting 
 from the dispositions made by the will (b). 
 Donatio A douatio mortis causa bears a resemblance to a testa- 
 
 mortis causa. .. ■ •,•, t- n 
 
 meiitary disposition, but yet materially differs from it. 
 This kind of donation is a gift of personal property, made 
 by one who apprehends that he is in peril of death, and 
 evidenced by a manual delivery by him or by another 
 
 (a) Co. Litt. Ilia. Hayes & Jarm. Concise Forms of 
 
 {h) 2 Bl. Com. 500 ; 6 Cruise T. Wills, 6tli ed. by Mr. T. S. Badger- 
 38, c. 1, § 13. As to codicils, see Eastwood, p. 44 i — 8.
 
 OF WILLS GENERALLY. 971 
 
 person in his lifetime by his direction, to the donee or pt.iit.t.is, 
 
 ^ J ' Cn. 1, s. 1. 
 
 some one else for the donee, of the property itself, or of the 
 
 means of obtaining possession of the same, or of the 
 writings by which the ownership thereof was created, and 
 conditioned to take effect absolutely in the event of his not 
 recovering from his existing disorder, and not revoking 
 the gift before his death (c). Such a donation partakes 
 partly of the characteristics of a gift inter vivos, and 
 partly of those of a legacy. It differs from a legacy in 
 these respects : 1. It takes effect sub modo from the 
 delivery in the lifetime of the donor ; and therefore it 
 cannot be proved as a testamentary act in the proper 
 Court. 2. It requires no assent or other act on the part 
 of the executor or administrator to perfect the title of the 
 donee. It differs from a gift inter vivos in certain respects 
 in which it resembles a legacy : ] . It is revocable during 
 the donor's lifetime. 2. It may be made to the wife of 
 the donor. 3. It is liable to the debts of the donor on a 
 deficiency of assets {d). 
 
 Although a will made in execution of a power does not An appoint- 
 
 " •■■ ment by will 
 
 derive its effect from the Statute of WiUs, but from the properties 
 deed of uses by which the power is created, and a will °^^^^"^^- 
 made under these circumstances is in fact an appointment 
 of a use ; yet, being made through the medium of a 
 devise, it has all the essential x^roperties of a will. Thus 
 a will made in execution of a power is revocable ; the 
 appointee must survive the appointor, in order that the 
 appointment may have any effect; an appointee in fee 
 simple, if heir at law, was, by the old law, in by descent, 
 not by purchase ; and a will made in execution of a 
 power is construed in the same manner as a proper will (e). 
 
 (c) See story's E-]. Jur. § 606, {d) Story's Eq. Jur. § 606 a ; 1 
 
 607 a, 607 c ; 1 Spence's Eq. Jur. Speace's Eq. Jur. 196. 
 
 196 ; 2 Spence's Eq. Jur. 912 ; (r) 4 Cruise T. 32, c. 16, § 24, 
 
 Powdl V. Ildlicar, 26 Bcav. 261. 25 — 6.
 
 972 OF WILLS CiENERALLY. 
 
 pt.iii.t 15, All adults who have a power of disposing of tlieir real 
 whTm^v — ^^' personal estate by any conveyance inter vivos, may 
 make a will. (^ligpQgg Qf tliem by will (/). Persons born deaf, blind, 
 and dumb, as having always wanted the common inlets 
 of understanding, are incapable of making a will. Such 
 as have their senses besotted with drunkenness are also 
 incapable of making a will, by reason of mental dis- 
 ability {g). And persons under such circumstances of 
 duress that they cannot be supposed to have been free 
 agents, are incapable of making a will {li). Of the dis- 
 abilities arising from unsoundness of mind, infancy, and 
 coverture, we shall have occasion to speak in the Fourth 
 Part of this Compendium (i). But it may be here observed, 
 that where a testator is under any disability at the time 
 when the will is made, it does not become valid by the 
 removal of the disability before his death ; for the party 
 must be capable of making a will, at the time when the 
 will is executed {j ). 
 Where Equity will rectify a clear mistake or omission in a will, 
 
 mi!^takes will ... "^ 
 
 be rectified if it is apparent on the face of the will, but not otlier- 
 
 by the Court ^J- ' 
 
 of Chancery, ^yigg ^^^ exccpt in Certain cases of mistake in the name or 
 description of a devisee or legatee (/). 
 
 It is essential to the validity of a will, that at the time of 
 its execution the testator should know and approve of its 
 contents {m). 
 
 if) 6 Cruise T. 38, c. 2, § 1 ; 1 pp. 563—5. 
 
 Wms. Exors. 4tli ed. 11. As to {j) 6 Cruise T. 38, c. 2, § 10 ; 1 
 
 competency to make a will, and Jarm. Wills, 2nd ed. 31. 
 
 undue influence, see Hayes & Jarm. (k) Story's Eq. Jur. § 179, 180, 
 
 Concise Forms of Wills, 6th ed. by 181 ; 1 Jarm. WiUs, 2nd ed. 337— 
 
 Mr. T. S. Badger-Eastwood, p. 83 310; Parker v. Tootall, 11 H. L. 
 
 —87. C. 143. 
 
 {g) 2 Bl. Com. 497 ; 1 Jarm. {I) See infra, Sect. VI. § I. 
 
 Wills, 2nd ed. 26. (m) Ilast'dow v. Stohie, Law Ecp. 
 
 {h) 2 Bl. Com. 497. 1 Prob. 64. 
 
 (t) As to criminals, see supra,
 
 KEQUISITE FORMS IN DEVISES AND BEQUESTS. 973 
 
 Section II. 
 
 Of the Requisite Forms in Devises and Bequests. 
 
 I. Of the Law as to the Reqtiisite Foi'ms Ijefore the stat. 
 1 Vict. c. 26. 
 
 Testaments are divided into two sorts : written, and pt. iii.t.is, 
 
 Ch. 1, 8. 2. 
 
 verbal or nuncupative ; of which the former is committed 
 
 Testamenta 
 
 to writino" in the first instance, w^hile the latter depends in einur 
 
 *^ -L written or 
 
 the first instance merely upon oral evidence, and was laid, ^'^''^^• 
 by the Statute of Frauds, 29 Car. 2, c. 3, under many 
 restrictions, except when made by mariners at sea and 
 soldiers in actual service {n). 
 
 By the 5th section of that statute, it is enacted, " That Requisites 
 
 to a devise 
 
 all devises and bequests of any lands or tenements, "udeithe 
 
 ■*- -^ .Statute of 
 
 devisable either by force of the Statute of Wills, or by ^'■^"'is. 
 this statute, or by force of the custom of Kent, or the 
 custom of any borough, or any other particular custom, 
 shall be in writing, and signed by the party so devising 
 the same or by some other person in his presence and by 
 his express directions, and shall be attested and subscribed 
 in the presence of the said devisor by three or four credible 
 witnesses, or else they shall be utterly void and of none 
 effect " (o). 
 
 In consequence of this statute, the following circum- 
 stances are absolutely necessary to the validity of a devise 
 of hereditaments of freehold tenure made before the year 
 1838 : 1. That it be written. 2. That it be signed by the 
 party himself or by some other in his presence or by his 
 express directions. 3. That it be attested by three or four 
 witnesses in the presence of the testator {p). But it was 
 held that copyholds were not within the Statute of Frauds, 
 
 (»i) 2 Bl. Com. 500. ( p) 6 Cruise T. .38, c. 5, § 2 ; 2 
 
 {o) Burton, § 260. Bl. Com. 376.
 
 974 
 
 REQUISITE FORMS IN DEVISES AND BEQUESTS 
 
 Pt. III.T.15, 
 Ch. 1, s. 2. 
 
 Requisites 
 by the old 
 law in the 
 case of 
 wills of 
 personal ty. 
 
 Further 
 remarks as 
 to signiug. 
 
 Remarks as 
 to publica- 
 tiou. 
 
 Init that they might be devised by any instrument which 
 was adequate to the testamentary disposition of personal 
 estate (q). 
 
 Except in the case of a bequest of stock in the public 
 funds, which was required by certain statutes to be 
 attested by two witnesses, a testament of chattels is good, 
 by the old law, if proved to be written in the testator's 
 own hand, though without his name or seal to it, and 
 without any witnesses present at its publication. And 
 though written in another man's hand, and never signed by 
 the testator, yet if proved to be according to his instruc- 
 tions, and approved by him, it is a good will of personal 
 estate (r). 
 
 Wliere a will is written on several sheets of paper, the 
 proper practice is to sign each page. If the will was 
 contained in one sheet of paper, it was sufficient by the old 
 law if the testator's name were written by himself in any 
 part of it (s). 
 
 By the old law, it was necessary that a devise should be 
 published, that is, the devisor must have done some act 
 from which it could be concluded that he intended the 
 instrument to operate as a will or devise. If, however, he 
 executed the will, and the words " signed and published 
 by him as and for his last wall and testament " occurred, 
 that was a sufficient publication (t). And even an attesta- 
 tion of the testator's having signed or signed and sealed tlie 
 will, without the mention of publication, is sufficient 
 evidence of publication (ii). And publication was not 
 necessary in the case of personal estate (x). 
 
 (q) 1 Jarm. Wills, 2iid ed. 83; 
 and see infra, c. 2, s. 3. 
 
 (r) 2 Bl. Com. 501; 1 Jarm. 
 Wills, 2nd ed. 82. 83. 
 
 (s) 6 Cruise T. 38, c. 5, § 7, 9; 1 
 Jarm. Wills, 2nd ed. fi6. It is mar- 
 vellous that it should ever have been 
 sufficient merely to sign ihclast page. 
 
 Such a practice opens a wide door 
 to fraud. 
 
 (t) 6 Cruise T. 38, c. 5, § 50, 51. 
 
 («) Mackinley v. Sison, 8 Sim. 
 561 ; Bartholomeio v. Harris, 15 
 Sim. 78 ; Vincent v. Bishoj) of Sodor 
 and Man, 4 De G. & S. 294. 
 
 (x) 1 Wms. Exors. 4th ed. 71.
 
 BY THE OLD LAW. 975 
 
 Where the testator owns his handwriting before the pt.iilt.is, 
 witnesses, it is suflicient, though they do not see him sign 
 
 Further 
 
 his name (u). An attestation, even of a devise, by the remarks as 
 
 \*-' ^ to SttGSttl" 
 
 witnesses setting their marks to the will, is good within the ^i""- 
 Statute of Frauds (z). It is not necessary to the validity 
 of the execution of a will even of lands by a blind man, 
 that it should be read over to him in the presence of the 
 attesting witnesses (a). And although the witnesses attested 
 at different times it was sufficient (&). 
 
 An infamous person (such as a person convicted of sheep- 
 stealing) is not a competent witness (c). And formerly a 
 devisee, legatee, or creditor was not a competent witness to 
 a de\ase. This occasioned the stat. 25 Grco. 2, c. 6. By 
 s. 1, " if any person shall attest the execution of any will 
 or codicil which shall be made after the 24th day of June, 
 1752, to whom any beneficial devise, legacy, estate, interest, 
 gift, or appointment of or affecting any real or personal 
 estate, other than and except charges on lands, tenements, 
 or hereditaments for payment of any debt or debts, shall be 
 thereby given or made, such devise, legacy, estate, interest, 
 gift, or appointment, shall, so far only as concerns such 
 person attesting the execution of such will or codicH, or 
 any person claiming under him, be utterly null and void ; 
 and such person shall be admitted as a witness to the 
 execution of such will or codicil, within the intent of the 
 said Act, notwithstanding such devise, legacy, estate, 
 interest, gift, or appointment mentioned in such wlQ or 
 codicil." And by s. 2, " in case, by any will or codicil 
 already made or hereafter to be made, any lands, tenements, 
 or hereditaments, are or shall be charged with any debt or 
 debts, and any creditor whose debt is so charged, hath 
 
 (y) 6 Cruise T. 38, c. 5, § 15. Jarm. & Bytli. by Sweet, 21 ; 1 
 
 (s) 6 Cruise T. 38, c. 5, § 19; Jarm. Wills, 2nd ed. 26. 
 Sugd. Concise View, 283 ; 1 Jarm. (6) 6 Cruise T. 38, c. 5, § 32. 
 
 Wills, 2nd ed. 69. (c) 6 Cruise T. 38, c. 5, § 48. 
 
 (a) 6 Cruise T. 38, c. 5; §20; 3
 
 97G REQUISITE FORMS IN DEVISES AND BEQUESTS 
 
 pt. III.T.15, attested or shall attest the execution of such will or codicil, 
 
 Ch. 1,3.2. 
 
 every such creditor, notwithstanding such charge, shall be 
 
 admitted as a witness to the execution of such will or 
 codicil, within the intent of the said Act (cT). 
 
 This statute does not extend to wills of personal estate 
 only, the preamble relating only to real estate ; and a legacy 
 to a person who is an attesting witness to such a will is not 
 void (e). And the Act does not extend to a devise of real 
 property to the wife of one of the witnesses. So that, in 
 such a case, the husband is not a credible witness (/). 
 
 A person cannot empower himself to give lands by a 
 will not duly attested (g). All devises by which terms for 
 years or other interests arising out of lands are created, or 
 by which powers to sell or charge lands are given, are 
 within the Statute of Frauds. If, however, a will duly 
 executed contains a general charge of legacies on the 
 testator's lands, such charge will extend to legacies given 
 by a subsequent will or codicil not duly attested. But if 
 a person by will duly attested charges his real estate with 
 such legacies and annuities as he shall afterwards give and 
 charoe upon that estate by will, whether attested or not, a 
 charge by an unattested codicil will not be good (Ji). 
 
 Terms for years already created were disposable by 
 testament before the Statute of Wills, and they are not 
 comprehended within the Statute of Frauds, and might 
 therefore be disposed of by any kind of will or testa- 
 mentary disposition, unless they became attendant on the 
 inheritance, when they were considered as part of the 
 inheritance, and not as chattels real, and could only be 
 disposed of by such a will as would pass the inheritance (i). 
 
 (d) 6 Cruise T. 38, c. 5, § 44, 45. (h) 6 Cruise T. 38, c. 5, § 55, 56, 
 
 (e) Emanuel v. Constable, 3 Rus. 59 ; 1 Eop. Leg. by White, 685 ; 1 
 436 ; Foster v. Banbury, 3 Sim. 40. Jarm. Wills, 2nd ed. 78, 79. 
 
 (/) Burton, § 265. (0 6 Cruise T. 38, c. 5, § 72, 74. 
 
 (i/) 6 Cruise T. 38, c. 5, § 53.
 
 BY THE OLD LAW. 977 
 
 An instrument may operate as a will, thongli it be in pt.iii.t.is, 
 the form of a deed or some other than a testamentary form, ■ 
 
 "^ Will in the 
 
 especially where it cannot operate in the form intended, or f'lniotan 
 where it contains a power of revocation. But if, in order "'''^^" ^'^°^- 
 to give full effect to an instrument, it must he considered 
 as an act inter vivos, it is generally not testamentary, espe- 
 cially if there is no power of revocation (j). Yet an in- 
 strument may operate as a will, though it be only partially 
 testamentary (k). 
 
 By the stat. 2 & 3 Anne, c. 4, and 6 Anne, c. 35, relatine: ttegistration 
 
 ^ ' ' ' ' o of wills m 
 
 to the West Eiding of Yorkshire, by the latter statute re- J^.^ MiJidie- 
 lating to the East Eiding, by the stat. 8 Geo. 2, c. 6, relat- ^^^' 
 ing to the North Eiding, and by the stat. 7 Anne, c. 20, 
 relating to the county of Middlesex, wills are made void 
 against a subsequent purchaser, unless a memorial be regis- 
 tered as directed by those statutes (/). 
 
 Wills devisino' lands or tenements in the city and liberties Euroiment 
 
 " "^ of wills 111 
 
 of London, duly executed and attested, may be enrolled £ou|io*if °^ 
 either in the Hustings of Pleas of Land or Common Pleas ; 
 the same being first proved in open Court, on the oaths of 
 two of the subscribing witnesses thereto, and proclaimed at 
 one of these Courts (m). 
 
 A will of personalty, including terms for years and other I'robate. 
 chattels real, must have been proved in the proper Eccle- 
 siastical Court : otherwise its existence could not be recog- 
 nised in any Court. But a will of realty alone need not 
 have been proved ; and so far as a will relates to realty, 
 probate of it in the Ecclesiastical Court was of no avail. 
 
 (j) Att.-Gen. v. Jones, 3 Price, (/l) -Ooe d. Cross v. Cross, 8 Ad. & 
 
 368 ; Tompson v. Browne, 3 My. & E. (N.S.) 714. 
 
 K. 32 ; Fletcher v. Fletcher, 4 Hare, (?) 6 Cruise T. 38, c. 1, § 28—32 ; 
 
 79 ; In the goods of Morgan, L. R. Sugd. Concise View, 577 ; Chad- 
 
 1 Prob. 219 ; 9 Jarm. & Bytli. 2nd ^dck v. Turner, 34 Beav. 634. 
 
 ed. 508—524 ; 1 Sugd. Pow. 261 (»i) 1 Jann. & Byth. by Sweet, 
 
 n. ; 1 Jarm. Wills, 2nd ed. 12, 17, 263. 
 18,19.
 
 978 
 
 KEQUISITE FORMS IN DEVISES AND BEQUESTS 
 
 rT.iir.T.15. But by the stat. 20 & 21 Vict. c. 77, ss. 61—64, wills are 
 
 Ch. 1, s. 2. -^ _ ' ' 
 
 now proved in tlie Court of Probate ; and such proof is con- 
 clusive evidence of the validity and contents of a will of 
 realty (ii). Where, however, a will is limited to the dis- 
 position of real property only, it is not entitled to probate, 
 although it contains the appointment of an executor, with 
 directions to convert the real into personal estate (o), 
 
 No relief will be afforded to the legatees or devisees 
 under a will defectively executed {p). Being volunteers, 
 they are deemed to have as little equity as the heir or next 
 of kin, or even less, as it is a maxim that fortior et a-quior 
 est dispositio legis, quam hominis [q) ; and therefore the 
 legal right which has vested in the latter will not be taken 
 away ; for the maxim is, that where the equity is equal, the 
 law must prevail. 
 
 No relief 
 agaiust 
 defective 
 execution 
 of a will. 
 
 Signature. 
 
 II. Of the Alterations as to the Requisite Forms made ly 
 the stat. 1 Vict. c. 26 (r) ; and of the Provisions of 
 the stat. 15 Vict. c. 24, and the stat. 24 & 25 Vict. c. 114. 
 
 By the stat. 1 Vict. c. 26, s. 9, " no will shall be valid, 
 unless it shall be in writing and executed in manner here- 
 inafter mentioned ; (that is to say), it shall be signed at 
 the foot or end thereof by the testator, or by some other 
 
 (m) 1 Wms. Exors. 5tli ed. 34, 21 ; 
 Steph. Com. 202—5. 
 
 (o) In the goods of Jane Barden, 
 L. E. 1 Prob. 325. 
 
 (p) See Story's Eq. Jur. § 105 a, 
 106. 
 
 (q) Co. Lit. 338, a. 
 
 (r) By 1 Vict. c. 26, s. 34, it is 
 enacted, " That this Act shall not 
 extend to any will made before tlie 
 1st day of January, 1838, and that 
 every will re-executed or re-published, 
 or revived by any codicil, shall, for 
 the purposes of this Act, be deemed 
 
 to have been made at the time at 
 which the same shall be so re-exe- 
 cuted, re-published, or revived ; and 
 that this Act shall not extend to 
 any estate pur autre vie of any 
 person who shall die before the 
 1st day of January, 1838." For 
 the decisions on this Act, see Hayes 
 and Jarm. Concise Forms of Wills, 
 6th edition, by the late Mr. T. 
 S. Badger-Eastwood, the learned 
 Reader on the Law of Real Property 
 to the Inns of Court.
 
 BY THE NEW LAW. 979 
 
 person in his presence and by liis direction ; and such sig- pt- in.'i-is, 
 nature shall be made or acknowlcdoed by the testator, in 
 
 ° -^ ' Attestation. 
 
 the presence of two or more witnesses present at the same 
 time, and such witnesses shall attest and shall subscribe 
 the will in the presence of the testator, but no form of 
 attestation shall be necessary." But by s. 11, it is provided, Exceptions 
 
 _ _ _ in tlie case 
 
 " that any soldier being in actual military service, or any of sowiera 
 
 «/ CI J ^ J aud sailors. 
 
 mariner or seaman being at sea, may dispose of his personal 
 estate as he might have done before the making of this Act." 
 And by s. 12, it is further enacted, that this Act shall not pre- 
 judice or affect any of the provisions contained in the stat. II 
 Geo. 4 and 1 Will. 4, c. 20, " respecting the wills of petty offi- 
 cers and seamen in the Eoyal Navy, and non-commissioned 
 officers of marines, and marines, so far as relates to their wages, 
 pay, prize money, bounty money, and allowances, or other 
 moneys payable in respect of services in her Majesty's navy." 
 
 The eleventh section, as regards soldiers, is confined to 
 those who are on an expedition. On the other hand, as 
 regards sailors, it extends to those who are on an expedi- 
 tion, though not at sea at the time. It applies even to 
 sailors in the Merchants' Service, though they be superiors 
 of a ship (s). 
 
 Bv the stat. 15 Vict. c. 24, s. 1, the following enactment stat. i5Vict. 
 
 . c. 24. 
 
 is made : "Where by the statute 1 Vict. c. 26, it is enacted, 
 
 that no will shall be valid unless it shall be signed at the wTien signa- 
 ture to a 
 foot or end thereof by the testator, or by some other person win shau be 
 
 •^ . deemed 
 
 in his presence, and by his direction ; every will shall, so ^'^i^- 
 far only as regards the position of the signature of the tes- 
 tator or of the person signing for him as aforesaid, be 
 deemed to be valid within the said enactment, as explained 
 by this Act, if the signature shall be so placed at or after, 
 or following, or under, or beside, or opposite to the end of 
 
 (s) Shelf. Real Prop. Acts, 6th better provision respecting wills of 
 ed. 490. See stat. 28 & 29 Vict. seamen and marines of the Eoyal 
 c. 72, entitled "An Act to make Navy and Marines."
 
 980 KEQUISITE FOKMS IN DEVISES AND BEQUESTS 
 
 fTiH-T.is, the will, that it shall be apparent on the face of the will 
 — — - — that the testator intended to give effect by such his signa- 
 ture to the writing signed as his will, and that no such will 
 shall be affected by the circumstance that the signature 
 shall not follow or be immediately after the foot or end of 
 the will, or by the circumstance that a blank space shall 
 intervene between the concluding word of the will and the 
 signature, or by the circumstance that the signature shall 
 be placed among the words of the testimonium clause or of 
 the clause of attestation, or shall follow or be after or under 
 the clause of attestation, either with or without a blank 
 space intervening, or shall follow or be after, or under, or 
 beside the names or one of the names of the subscribing 
 witnesses, or by the circumstance that the signature shall 
 be on a side or page or other portion of the paper or papers 
 containing the will whereon no clause or paragraph or dis- 
 posing part of the will shall be written above the signature, 
 or by the circumstance that there shall appear to be suffi- 
 cient space on or at the bottom of the preceding side or 
 page or other portion of the same paper on which the will 
 is written to contain the signature ; and the enumeration of 
 the above circumstances shall not restrict the generality of 
 the above enactment ; but no signature under the said Act 
 or this Act shall be operative to give effect to any disposi- 
 tion or direction which is underneath or which follows 
 it, nor shall it give effect to any disposition or direction 
 inserted after the signature shall be made." And by 
 s. 2, it is enacted, " that the provisions of this Act 
 shall extend and be applied to every will already made, 
 where administration or probate has not already been 
 granted or ordered by a Court of competent jurisdiction in 
 consequence of the defective execution of such will, or 
 where the property, not being within the jurisdiction of the 
 Ecclesiastical Courts, has not been possessed or enjoyed by 
 some person or persons claiming to be entitled thereto in
 
 BY THE NEW LAW. 981 
 
 consequence of the defective execution of such Avill, or the pt. iti.t.is, 
 
 riglit thereto shall not have been decided to be in some 
 
 other person or persons than the persons claiming under 
 the will, by a Court of competent jurisdiction, in conse- 
 quence of the defective execution of such will." By s. 3, 
 " the word ' will' shall in the construction of this Act be 
 interpreted in like manner as the same is directed to be 
 interpreted under the provisions in this behalf contained in 
 the said Act of the first year of the reign of her Majesty 
 Queen Victoria." And by s. 4, " this Act may be cited as 
 'The Wills Act Amendment Act, 1852.'" 
 
 A signature by the testator, after the witnesses have signature 
 
 ° "^ _ and attesta- 
 
 attested, although in their presence, is not a compliance ^'o°- 
 with the statute 1 Vict. c. 26, s. 9. An attesting witness 
 may sign for the testator by his direction. A will may be 
 attested by the witnesses making marks, and the testator 
 may write the names of the witnesses opposite their 
 respective marks. But an attesting witness, able to write, 
 cannot subscribe for another witness who is unable to 
 write ; yet he may guide the hand of the latter, at his 
 request. A husband who is witness to a will cannot also 
 subscribe for his wife. To pass over a signature pre- 
 viously made with a dry pen, or to correct a signature, 
 amounts to no more than an acknowledgment of a signa- 
 ture ; and if an attesting witness, on the re-execution of a 
 will, merely traces his previous signature with a dry pen, 
 or corrects his signature, it is insufficient (t). 
 
 The only safe way is, for the testator and witnesses not 
 only to be in the same room at the time of the will being 
 attested, but for the witnesses to be so placed that the 
 testator can see them attest (u). 
 
 {t) Shelf. Eeal Prop. Acts, 6th ed. 8 H. L. Cas. 160. 
 
 487 ; 1 Wms. Exors. 5th ed. 82—3 ; (w) Shelf. Keal Prop. Acts. 6th ed. 
 
 In the goods of Wm. Frith, 1 Swa. 488. 
 & Tris. 8 ; Hindmarsh v. Charlton, 
 
 c 2
 
 982 
 
 REQUISITE FORMS IN DEVISES AND BEQUESTS 
 
 Pt.IIT. T.I5, 
 
 Ch. 1, s. 2. 
 
 Publication 
 not to be 
 requisite. 
 
 Will not to 
 be void on 
 account of 
 incompe- 
 teucy of 
 attesting 
 witnesa. 
 
 Gifts to an 
 attesting 
 witness to 
 be void. 
 
 Creditor 
 attesting to 
 be admitted 
 a witness. 
 
 Executor to 
 be admitted 
 a witness. 
 
 No alteration 
 in a will 
 
 By the stat. 1 Vict. c. 26, s. 13, " every will executed in 
 manner hereinbefore required shall be valid without any 
 other publication thereof." 
 
 By s. 14, " if any person who shall attest the execution 
 of a will shall at the time of the execution thereof or at 
 any time afterwards be incompetent to be admitted a 
 witness to prove the execution thereof, such will shall not 
 on that account be invalid." 
 
 By s. 15, "if any person shall attest the execution of 
 any will to whom or to whose wife or husband any bene- 
 ficial devise, legacy, estate, interest, gift, or appointment, 
 of or affecting any real or personal estate (other than and 
 except charges and directions for the payment of any debt 
 or debts), shall be thereby given or made, such devise, 
 legacy, estate, interest, gift, or appointment, shall, so far 
 only as concerns such person attesting the execution of 
 such wHl, or the wife or husband of such person, or any 
 person claiming under such person or wife or husband, be 
 utterly null and void, and such person so attesting shall 
 be admitted as a witness to prove the execution of such 
 will, or to prove the validity or invalidity thereof, notwith- 
 standing such devise, legacy, estate, interest, gift, or 
 appointment mentioned in such will." 
 
 By s. 16, "in case by any will arf)^ real or personal 
 estate shall be charged with any debt or debts, and any 
 creditor, or the wife or husband of any creditor, whose 
 debt is so charged, shall attest the execution of such will, 
 such creditor notwithstanding such charge shall be ad- 
 mitted a witness to prove the execution of such will, or 
 to prove the validity or invalidity thereof." 
 
 By s. 17, "no person shall, on account of his being an 
 executor of a will, be incompetent to be admitted a witness 
 to prove the execution of such will, or a witness to prove 
 the validity or invalidity thereof." 
 , By s. 21, "no obliteration, interlineation, or other altera-
 
 BY thp: new law. 083 
 
 tion made in any will after the execution thereof shall be ^r. in. t.is, 
 
 •^ Ch. 1, s. 2. 
 
 valid or have any effect, except so far as the words or 
 
 '' ^ shall have 
 
 effect of the will before such alteration shall not be any effect 
 
 unless 
 
 apparent, unless such alteration shall be executed in like a^wiii!^*^^* 
 manner as hereinbefore is required for the execution of 
 the win ; but the will, with such alteration as part 
 thereof, shall be deemed to be duly executed if the sig- 
 nature of the testator and the subscription of the wit- 
 nesses be made in the margin or on some other part of 
 the will opposite or near to such alteration, or at the foot 
 or end of or opposite to a memorandum referring to such 
 alteration, and written at the end or some other part of 
 the will." 
 
 A will of immoveable property, including terms for ^'^^""^ 
 years, is generally governed by the law of the country ^^"^'^^j^*^ 
 where it is situate (v). But a will of chattels personal 
 (not being an appointment under a power) was generally 
 governed, as regards its requisites, its constructive inter- 
 pretation, and its operation, by the law of the country 
 which was the testator's domicile at the time of making 
 his will and of his death, where there was no intermediate 
 change of domicile {x). 
 
 By the stat. 24 & 25 Vict. c. 114, it is enacted as stat. 24*25 
 
 •^ _ _ Vict. 0.114. 
 
 follows : " Every will and other testamentary instrument wiiis made 
 
 •^ " out of the 
 
 made out of the United Kingdom by a British subject be"fd°atte.i, 
 (whatever may be the domicile of such person at the time Iccordhig to 
 of making the same or at the time of his or her death) the place 
 
 where made, 
 
 shall as reg'ards personal estate be held to be well exe- or where the 
 
 '-' ■•- testator was 
 
 cuted for the purpose of l^eing admitted in England and ^^"^'^^^^jg 
 
 {v) 1 Jarai. Wills, 2nd ed. pp. 1, cise Forms of Wills, 6th ed. by Mr. 
 
 3, note (k). T. S. Badger-Eastwood, pp. 22—36, 
 
 {x) 1 Jarm. WiUg, 2nd ed. 2—10; and 1 Jarm. Wills, 2nd ed. 8, 9 ; 
 
 Bremer v. Freeman, 10 Moo. P. C. Hodgson v. Du Beauchesne, 12 Moo. 
 
 C. 306, 358, 359. As to what con- P. C. 285 ; Enohin v. Wylie, 10 H. 
 
 btitutes domicile, see Kound on L. Cas. 1 ; and see 24 & 25 Vict. 
 
 Domicile, and Hayes & Jarm. Con- c. 121.
 
 984 
 
 REQUISITE FORMS IN DEVISES AND BEQUESTS. 
 
 Pt. III.T.15, 
 Ch. 1, s. 2. 
 
 or the law of 
 the douiitile 
 of origin. 
 
 Wills made 
 in the king- 
 dom to be 
 admitted if 
 made acciird- 
 ing to local 
 usage. 
 
 Change of 
 domicile not 
 to invalidate 
 will or alter 
 its construc- 
 tion. 
 
 Nothing in 
 this Act to 
 invalidate 
 wills other- 
 wise made. 
 
 Extent of 
 Act. 
 
 Ireland to probate, and in Scotland to confirmation, if the 
 same be made according to the forms required either by 
 the law of the place where the same was made, or hj the 
 law of the place where such person was domiciled -when 
 the same was made, or by the laws then in force in that 
 part of her Majesty's dominions where he had his domicile 
 of origin" (s. 1) (y). 
 
 " Every will and other testamentary instrument made 
 within the United Kingdom by any British subject (what- 
 ever may be the domicile of such person at the time of 
 making the same or at the time of his or her death) shall 
 as regards personal estate be held to be well executed, 
 and shall be admitted in England and Ireland to probate, 
 and in Scotland to confirmation, if the same be executed 
 according to the forms required by the laws for the time 
 being in force in that part of the United Kingdom where 
 the same is made" (s. 2). 
 
 " No will or other testamentary instrument shall be 
 held to be revoked or to have become invalid, nor shall 
 the construction thereof be altered, by reason of any 
 subsequent change of domicile of the person making the 
 same" (s. 3). 
 
 " Nothing in this Act contained shall invalidate any 
 will or other testamentary instrument as regards personal 
 estate which would have been valid if this Act had not 
 been passed, except as such will or other testamentary 
 instrument may be revoked or altered by any subsequent 
 will or testamentary instrument made valid by this Act " 
 (s. 4). 
 
 " This Act shall extend only to wills and other testa- 
 mentary instruments made by persons who die after the 
 passing of this Act " (s. 5.). 
 
 (//) See Pcchd v. Ililderhy, L. R. 1 Prob. 673.
 
 WHAT MAY BE DEVISED OR BEQUEATHED, 985 
 
 Section III. 
 What may he Devised or Bequeathed. 
 By the old law, a mere hope or chance of succession of pt.iii. t.is, 
 
 . . . Ch. 1, B. 3. 
 
 an heir apparent or presumptive was not devisable (z). 
 
 Hope of 
 
 Nor could an interest which at the time of making of succession. 
 the will was contingent, if the testator was not then inrere°sf^ 
 ascertained as the person in wliom or in whose heirs the 
 interest must vest, if it vest at all (a). But a contingent 
 interest in fee under a shifting executory limitation in 
 favour of a person ascertained, may be devised, both 
 under the old law and the new, even by the heir of such 
 person, where it would have descended (had it not been 
 devised) not to the heir of such heir, but to the heir of 
 such person himself, the first purchaser under the executory 
 limitation (6). 
 
 Estates which were devested and converted into rights. Rights of 
 
 entry or 
 
 whether at the time of making the will or only at the action, 
 testator's death, were not devisable (c). 
 
 By the old law, in the case of a devise of a legal estate, Testator 
 
 "^ o ' must have 
 
 the will could not take effect unless the devisor was not iieen seised 
 
 at the date 
 
 only seised at the date of the will, but was also seised at and atTi^ 
 the time of his death. Hence, if a person devised his 
 lands, and was afterwards disseised, and died before entry, 
 the devise was void (d). And where there was a tenant 
 for life, with a vested remainder or a reversion imme- 
 diately expectant thereon in another person, and such 
 tenant for life levied a fine, it devested the remainder or 
 reversion, and turned it to a right, leaving in the remain- 
 
 (2) Burton, § 258. (c) Burton, § 259 ; Watk. Conv. 
 
 [a) Burton, § 257, 258 ; 2 Pres. 3rd ed. by Prest. 97, 114 ; 1 Jarm. 
 
 Shep. T. 322. Wills, 2nd ed. 38, 122, 124. 
 
 (6) Ingilby v. Amcotts, 21 Beav. {d) 6 Cruise T. 38, c, 3, § 37. 
 
 585.
 
 986 
 
 WHAT MAY BE DEVISED OK BEQUEATHED. 
 
 Title by 
 mere posses- 
 sion. 
 
 Interest of 
 grantor 
 under a 
 conveyance 
 voidable iu 
 
 equity. 
 
 Estate of 
 mortgagee. 
 
 Equity of 
 redemption. 
 
 After- 
 acquired 
 propfrty. 
 
 deiTaan or reversioner a mere right of entry, which was not 
 devisable (e). 
 
 It has been held tliat a person in possession of land 
 without other title, has a devisable interest, and that the 
 heir of his devisee can maintain ejectment against a person 
 who lias entered upon the land, and cannot show title or 
 possession in any one prior to the testator (/). 
 
 But where a person executed a conveyance which was 
 voidable in equity, he had not a right of entry, but an 
 equitable estate, which he might devise, even before the 
 Wills Act {g). 
 
 If a mortgagee devised the lands mortgaged before the 
 condition was broken, such devise was void, because a 
 condition was not devisable. But an estate in mortgage 
 may be devised after the condition is broken. And an 
 equity of redemption being an equitable estate, is devis- 
 able (li). 
 
 By the old law, a devise only operated upon such real 
 estates as the testator had at the time of executing and 
 publishing his will. Freehold lands purchased after that 
 time would not pass, unless subsequent to the purchase or 
 contract the devisor republished his will (?'). Nor would 
 copyholds, unless they were afterwards surrendered to the 
 use of the will {j). But where an agreement in writing 
 was entered into for the purchase of lands, and before a 
 conveyance of the legal estate was executed the purchaser 
 devised the lands so contracted for, and died, such devise 
 was held good in equity {k). And even a parol agreement 
 
 (e) 6 Cruise T. 38, c. 3, § 30. 
 (/) Aslier V Whitlock, Law Rep. 
 
 1 Q. B. 1. 
 
 {g) Stump V. Gaby, 2 D. M. & G. 
 629 ; Gresley v. Mousley, 4 D. & J. 
 78. 
 
 {h) 6 Cruise T. 38, c. 3, § 13, 14 ; 
 
 2 Pres. Shop. T. 242; Watk. Con. 
 3i-cl cd. by Prest. 33. 
 
 (0 2 Bl. Com. 378-9 ; Sugd. 
 Concise View. 127 ; Burt. § 258 ; 1 
 Jarm. Wills, 2nd ed. 39. See infra, 
 Section X. 
 
 (i) Sugd. Concise View, 128 ; 1 
 Jai-m. Wills, 2nd ed. 46. 
 
 (Jc) 6 Cruise T. 38, c. 3, § 8 ; Sugd. 
 Concise View, 125.
 
 WHAT MAY BE DEVISED OR BEQUEATHED. 987 
 
 for the purchase of lands, which was admitted, so as to i'liu- t.is, 
 
 ••• Cn. 1, s. 3. 
 
 be binding on the parties notwithstanding the Statute of 
 
 Frauds, would vest such an interest in the purchaser 
 as he might devise by will (/). A term for years, how- 
 ever, purchased by a testator after the execution of his 
 will, passed by it even at law, because it is only a chattel 
 real (?»). 
 
 By the old law, a joint tenant could not devise his share, ^^ ?gf^\ 
 whether he survived the other joint tenant or not. For tenants, 
 as regards real estate, the stat. 4 & 5 Hen. 8, c. 5, only 
 enables persons having a sole estate in fee simple or seised 
 in fee simple in coparcenary or in common to devise. And 
 even though the joint tenancy was severed, still the share, 
 in the case of real property, would not pass by a will made 
 before the severance, because the old law only considered 
 what estate the devisor had at the time of making his will. 
 But in the case of leaseholds or other personal property, 
 if the joint tenancy was severed, a general or residuary 
 bequest in a will made previous to the severance would 
 pass the share. And the same is now the case with regard 
 to real property, where there is a general or residuary 
 devise made since the year 1838 ; as a will now operates 
 on after-acquired property (n). 
 
 By 1 Vict. c. 26, s. 3, it is enacted, "that it shall be ?y*^««t^*- 
 
 J ' ' ' 1 Vict. c. 26, 
 
 lawful for every person to devise, bequeath, or dispose of, ^^a^'^f^'^''^ 
 by his will executed in manner hereinafter required, all by wa^ 
 real estate and all personal estate which he shall be entitled 
 to, either at law or in equity, at the time of his death, and 
 which, if not so devised, bequeathed, or disposed of, would 
 devolve upon the heir at law, or customary heir of him, 
 or, if he became entitled by descent, of his ancestor, or 
 
 (0 6 Cruise T. 38, c. 3, § 11. {n) Co. Litt. 185 b ; 6 Cruise T. 
 
 (m) 6 Cruise T. 38, e. 3, § 43 ; 38, c. 3, § 27, 28 ; 1 Jarm. Wills, 
 
 but see supra, p. 222, and infra, p. 2nd ed. 35 ; Watk. Conv. 3rd ed. 
 
 989, as to attendant terms. by Prest. 82.
 
 988 
 
 WHAT MAY BE DEVISED OK BEQUEATHED. 
 
 Pt.III.T,15, 
 Ch. 1, s. 3. 
 
 comprising 
 customary 
 freelinlds and 
 copyholds 
 without 
 surrender 
 and before 
 admittance, 
 and als j 
 such of them 
 as could not 
 then be 
 devised ; 
 
 estates pur 
 autre vie ; 
 
 continKcnt 
 and other 
 future 
 interests ; 
 
 rights of 
 
 entry, and 
 
 propL'ity 
 
 acquired 
 
 alter 
 
 execution 
 
 of the will. 
 
 upon his executor or administrator ; and that the power 
 hereby given shall extend to all real estate of the nature 
 of customary freehold or tenant right, or customary or 
 copyhold, notwithstanding that the testator may not have 
 surrendered the same to the use of his will, or notwith- 
 standing that, being entitled as heir, devisee, or otherwise, 
 to be admitted thereto, he shall not have been admitted 
 thereto, or notwithstanding that the same, in consequence 
 of the want of a custom to devise or surrender to the 
 use of a will or otherwise, could not at law have been 
 disposed of by will if this Act had not been made, 
 or notwithstanding that the same, in consequence of 
 there being a custom that a will or a surrender to the 
 use of a will should continue in force for a limited time 
 only, or any other special custom, could not have been 
 disposed of by will according to the power contained in 
 this Act, if this Act had not been made ; and also to 
 estates pur autre vie, whether there shall or shall not be 
 any special occupant thereof, and whether the same shall 
 be freehold, customary freehold, tenant right, customary 
 or copyhold, or of any other tenure, and whether the same 
 shall be a corporeal or an incorporeal hereditament ; and 
 also to all contingent, executory, or other future interests 
 in any real or personal estate, whether the testator may 
 or may not be ascertained as the person or one of the 
 persons in whom the same respectively may become vested, 
 and whether he may be entitled thereto under the instru- 
 ment by which the same respectively were created or under 
 any disposition thereof by deed or will ; and also to all 
 rights of entry for conditions broken, and other rights of 
 entry ; and also to such of the same estates, interests, and 
 rights respectively, and other real and personal estate, as 
 the testator may be entitled to at the time of his death, 
 notwithstanding that he may become entitled to the same 
 subsequently to the execution of his will."
 
 WHAT MAY BE DEVISED OR BEQUEATHED. 989 
 
 This Act does not enable a testator to bequeath a ptiii. t.is, 
 
 ■'■ Ch. 1, 8. 3. 
 
 chose in action, so as to pass the right of suing to the 
 
 legatee (o). 
 
 If a man possessed of a term of years contracts for the Attendant 
 
 ^ _ _ '' terms, 
 
 purchase of the inheritance, the term, by construction of 
 equity, instantly attends the inheritance. And if the 
 purchaser had previously to the purchase made his will by 
 a general bequest in which the term woidd have passed, 
 yet the legatee would not be entitled to it, although the 
 bequest were not expressly revoked ; because the term 
 in the construction of equity attended the inheritance 
 immediately on the purchase of the fee (|?). 
 
 An advowson appendant to a manor will pass by a devise Advowsons. 
 of the manor. An advowson in gross is also devisable. 
 And the next or any number of presentations may be de- Presenta- 
 
 tioiia, 
 
 vised ; and the devisee thereof may either present himself 
 or any other person {q). 
 
 Although crops on the ground are personal estate, and <^''°p^- 
 generally speaking pass to the executor, yet, as between 
 the executor and a devisee, the latter will take them with 
 the land, unless the intention of the testator appears to be 
 otherwise (?•). 
 
 Section IV. 
 Of the General Mules of Construction of Wills. 
 I. The grand fundamental principle in the construction ^Jf m- t.is. 
 
 _ -^ ^ Ch. 1, s. 4. 
 
 of wills, is, to effectuate the intention of the testator at the : 
 
 Intention 
 
 moment when he made his will, so far as such intention is eff^tuated. 
 consistent with the rules of law (s). A will should there- 
 
 (o) Shelf. Real Prop. Acts, 6th (}•) Vaisey v. Reijuolds, 5 Rnss. 12. 
 
 ed. 484. (s) See Burton, § 603 ; 6 Cruise 
 
 (p) Sugd. Concise View, 125—6. T. 38, c. 9, § 5. 
 (q) 6 Cruise T. 38, c. 3, § 15.
 
 990 
 
 OF THE GENERAL RULES OF CONSTRUCTION OF WILLS. 
 
 PtIII. T.15, 
 di. I, 8. 4. 
 
 Intention 
 must be 
 collected 
 from the 
 words. 
 
 fore 1)6 most favourably expounded, to effectuate, if possible, 
 the intention of tlie testator. Hence no technical words 
 are necessary ; so tliat the law often dispenses with the 
 want of words in wills that are absolutely requisite in all 
 other instruments, and frequently gives effect to a mere 
 implication, if it is a necessary or plain implication (t). 
 ]3ut intention alone is not sufficient to amount to a dis- 
 position of property : words must be found to carry the 
 intention into effect. And hence a mere recital of an inten- 
 tion to make a complete disposition will not suffice (u). 
 
 II. The intention must not be collected or imputed by 
 mere conjecture, however probable ; nor is it to be evi- 
 denced by averment ; but it must either appear from 
 express words or by plain implication (x). Although in 
 the case of trusts executory, the Courts, in certain cases, 
 properly assume a greater freedom in effectuating what 
 appears to be the presumable general intention of the author 
 of the trusts, yet even in the case of trusts executory, the 
 intention must in general be collected from the language 
 of the will itself ; and an intention must not be imputed 
 by mere uncertain conjecture contrary to the express words ; 
 and especially when it is manifest that the will was drawn, 
 not by a person who used expressions without knowing the 
 meaning of them, but by a person skilled in the practice of 
 conveyancing (?/). 
 
 An exception, in regard to the admissibility of extrinsic 
 evidence of intention, occurs in the case of an ambiguitas 
 
 (t) 2 Bl. Com. 381 ; 6 Cruise T. 
 38, c. 9, § 2. 
 
 {u) Wylie V. Wylie, 1 D. F. & J. 
 410 ; Lord Romilly, M. E., in Sykes 
 V. Sykes, L. R. 4 Eq. 204. 
 
 (x) See observations of Lord 
 Truro in Eyerton v. EarJ Brmvnloiv, 
 4 H. L. Cas. 181; 6 Cruise T. 38, 
 0. 0, § 40 ; 1 Jarm. Wills, 2ncl cd. 
 
 337, 344, 353. And see remarks of 
 Lord Chelmsford, C, and Lord St. 
 Leonards, in Abbott v. Middleton, 7 
 H. L. Cijs. 81, 95 ; and Lord Romilly, 
 M. R., in Sykes v. Sykes, L. E. 4 Eq. 
 204. 
 
 (y) Eyerton v. Earl Bromdow, 4 
 H. L. Cas. 1, 181.
 
 OF THE GENEKAL RULES OF CONSTRUCTION OF WILLS. 991 
 
 latens, where it appears that there are two subjects or pt.tii. t.is, 
 
 objects answering to the description ; for an averment — ■ 
 
 supported by parol evidence is admissible to explain such 
 ambiguity as well as to raise it (z). And the particular 
 situation of a testator, the number of his children, and the 
 different kinds of property whereof he was possessed at the 
 time of makinsf his will, are cu'cumstances from which 
 arguments may be drawn respecting his intention (a). But 
 when the Court has possession of all the facts which it is 
 entitled to know, they will only enable the Court to put a 
 construction on the instrument consistent with the words (5). 
 And where the property exactly fits the description, the 
 whole of that property, and nothing more, passes, though 
 it may be most probable that other property, to which 
 some part of the description does not apply, was intended 
 to be included (c). 
 
 III. An express disposition, though probably involving ^gP^gf^ion 
 an oversight or mistake by the testator, cannot be controlled ""oUed^'by 
 by inference which is not necessary or indubitable (d). 
 
 TV. Whenever the intention is doubtful, it must be intention 
 
 ' must be 
 
 collected not from particular expressions or detached frorlht 
 passages alone to the exclusion of considerations to be 
 derived from other expressions or passages, but from the 
 scope of the whole will, compared with its several parts, 
 in such a way that each word may have its own particular 
 operation, and not be rejected, if any construction can 
 possibly be put upon it, consistently with the general 
 intention (c). 
 
 (2) 6 Cruise T. 38, c. 9, § 43 ; v. Middleton, 7 H. L. Cas. 82, 94. 
 
 Bennett v. Marshall, 2 K. & J. 740 ! (6) Per Sir^. Sugden, C, cited 1 
 
 Fleming v. Fleming, 1 Hurl. & Colt. Jarm. Wills, 2nd ed. 352 ; Webber 
 
 242 ; 1 Jarm. Wills, 2nd ed. 356— v. Stanley, 16 C. B. (N. S.) 698. 
 
 7 ; 2 Id. 678. (c) Wehher v. Stanley, 16 C. B. 
 
 (a) 6 Cruise T. 38, c. 9, § 8 ; 2 (N. S.) 698, 752. 
 
 Jarm. Wills, 2nd ed. 678—9. And {d) 2 Eop. Leg. by White, 1461 ; 
 
 see remarks of Lord Chelmsford, C, 2 Jarm. Wills, 2nd ed. 679. 
 
 and of Lord St. Leonards, in Abhott (e) 6 Cruise T. 38, c. 9, § 2 ; 2 
 
 whole will.
 
 992 
 
 OF THE GENERAL RULES OF CONSTRUCTION OF WILLS. 
 
 Pt.III. T.15, 
 Ch. 1, s. 4. 
 
 Effect of a 
 codicil. 
 
 When words 
 are io be 
 taken in 
 their proper 
 SRnse, and 
 when in 
 some other. 
 
 The more 
 probable 
 construction 
 to be 
 preferred. 
 
 V. A codicil duly executed supersedes every part of the 
 will to which it is contradictory. But so far as they are 
 not absolutely inconsistent, both the instruments are to be 
 considered as incorporated into one (/). And the onus is 
 on those who claim under a codicil to show that the inten- 
 tion to displace a devise by the will is equally clear with 
 the original intention to devise {g). 
 
 VI. " In a will, words, whether technical or otherwise, 
 are to be understood as used in the sense ordinarily and 
 properly applied to them, unless from the whole context of 
 the will and the surrounding circumstances, it appears 
 satisfactorily and clearly that the words to be construed 
 have been used and were intended to be understood in some 
 other sense "(Ji). An exception to this, how^ever, sometimes 
 occurs in regard to technical expressions, in the case of 
 trusts executory (i). 
 
 VII. Where the words of a will admit of two different 
 constructions, the more probable of the two constructions 
 is to prevail, unless the context requires a different con- 
 struction {k). As where the words used by the testator 
 are only applicable, in their strict technical sense, to a 
 species of property which the testator has not : in which 
 case they shall be applied, if possible, to some other species 
 of property which the testator has, in order to effectuate 
 
 Rop. Leg. by White, 1460 ; Egerton 
 V. Earl Brownlow, 4 H. L. Cas. 181 ; 
 BrocMebanh v. Johnson, 20 Beav. 
 205 ; Ahhott v. Middleton, 7 H. L. 
 Cas. 68, 87, 95 ; 2 Jarm. Wills, 2nd 
 ed. 115, 679, 680. 
 
 (/) Burton, § 602 ; Hartley v. 
 Tribher, 16 Beav. 510 ; 2 Rop. Leg. 
 by White 1460 ; Butler v. Greeiv- 
 wood, 22 Beav. 203 ; Barmvell v. 
 Iremonger, 1 Dr. & Sm. 242. 
 
 {g) Maddison v. Chapman, 4 K. 
 & J. 709, 722 ; Barclay v. Mas- 
 kelyne, 1 Johns. 124. 
 
 (h) 6 Cruise T. 38, c. 9, § 6; Bur- 
 ton, § 798 ; 2 Rop. Leg. by White, 
 1461 ; 1 Jarm. Wills, 2nd ed. 347, 
 349, 350, 365 ; 2 Id. 679, 680 ; 
 Wilde, C. J., in Trevor v. Trevor, 1 
 H. L. Cas. 264. See also observa- 
 tions of Lord St. Leonards in Eger- 
 ton V. Earl Broionlow, 4 H. L. Cas. 
 208, 209 ; In re Craivfurd's Trusts, 
 2 Drew. 233 ; Knight-Bruce, L. J., 
 in Pride v. Books, 3 D. & J. 266. 
 
 {i) See supra, pp. 261, 269, 270. 
 
 Qc) 2 Rop. Leg. by White, 1462 ; 
 2 Jarm. Wills, 2nd ed. 679.
 
 OF THE GENERAL RULES OF CONSTRUCTION OF WILLS, 993 
 
 his intention (/). And words strictly importing a future pt- ih.t.is, 
 tense, may, in order to effectuate the intention apparent — ; 
 
 J J ' i i Words 
 
 from the context, be construed to refer to the past {m). i^Huture 
 
 VIII. It is a rule involved in or flowing from the pre- Relative con- 
 
 struction of 
 
 ceding rules, that if an expression admits of two con struc- au^biguous 
 
 o ' i expressions. 
 
 tions, one of which would defeat, while the other would 
 effectuate, the testator's intention, the latter shall be pre- 
 ferred ill). In many cases, however, this rule has been 
 lamentably disregarded. 
 
 IX. The same words may have a different construction same worda 
 
 •' having a 
 
 in the same will, especially when applied to different kinds coustruc- 
 of property. But in general where a testator uses the same *^''°' 
 words in different parts of the will, it is to be presumed he 
 attaches to them the same meaning, unless a different in- 
 tention can be collected from the context (o). 
 
 X. Where there are words in a will which have no words re- 
 
 jected, sup. 
 
 meaning, or which are evidently contrary to the general pi'^'i. or 
 intention of the testator, they are rejected. And on the 
 other hand if the meaning distinctly appears, words omitted 
 by mistake, which are absolutely necessary to effectuate 
 the general intention to be collected from the whole will, 
 are supplied (jj). And where it is apparent from the will 
 itself, not only that the testator has used a wrong word or 
 phrase, but also what is tlie precise thing he intended to 
 have expressed, the word or phrase which would rightly 
 express what he so intended, will be substituted, so as to 
 effectuate his real intention ((?). But the Court is not jus- 
 tified either in inserting or striking out words, or in any 
 
 {l) 6 Cruise T. 38, c. 10, § 87. Rop. Leg. by White, 1461 ; 1 Jarm. 
 
 (m) 2 Eop. Leg. by White, 1517. WiUs, 2ud ed. 401, 408 ; Ahhott r. 
 
 (n) See Whicker v. Eurne, 7 H. L. Middleton, 21 Beav. 143 ; 7 H. L. 
 
 Cas. 154, 162, 167. Cas. 68 ; Toims t. Wentivorth, 11 
 
 (o) 2 Eop. Leg. by White, 1460— Moo. P. C. C. 526, 543; Knight- 
 
 1462 ; 6 Cruise T. 38, c. 9, § 8 ; 2 Bruce, L. J., in Pride v. Fooks, 3 D, 
 
 Jarm. Wills, 2nd ed. 680 ; Ehodes & J. 266. 
 
 v. Modes, 27 Beav. 413. (q) See 1 Jarm. Wills, 420, et seq. 
 
 {p) 6 Cruise T. 38, c. 9, § 15 ; 2
 
 994 
 
 OF THE GENERAL RULES OF CONSTRUCTION OF WILLS. 
 
 Pt.III.T.15, 
 Ch.1, 8.4. 
 
 Transposi- 
 tion. 
 
 Particular 
 iuteut sacri- 
 ficed to 
 general in- 
 tent. 
 
 Testator 
 presumed 
 to know 
 the law. 
 
 Mistakes not 
 presumed. 
 
 Inconsistent 
 clauses. 
 
 Devesting 
 words must 
 be as clear 
 as vesting 
 words. 
 
 manner altering tlie language of a clear devise, upon mere 
 conjecture, or upon the mere ground that the devise seems 
 capricious, and that a gift in other terms would he in con- 
 formity with other dispositions in the will (?"). 
 
 XI. Courts of law and equity will transpose words, where 
 it is necessary to do so, to make sense of a will and give 
 effect to it (s). So that an estate will he transposed, and 
 placed either before or after some other estate given by the 
 will, if such transposition is necessary to fulfil the intent 
 of the testator (t). 
 
 XII. Where there is a manifest general, primary, or 
 paramount intent, the construction should be such as to 
 effectuate it, though by that construction some particular, 
 secondary, or subordinate intent may be defeated (w). 
 
 XIII. A testator is presumed to know the law, whether 
 as declared by decision or made by statute (x). 
 
 XIV. Mistakes in a will are never to be presumed, if a 
 reasonable construction can be found out (y). 
 
 XV. If two parts of a wiU are totally inconsistent, and 
 cannot possibly be reconciled, the latter shall prevail, on the 
 principle that the testator may have changed his mind (z). 
 
 XVI. Where an estate or benefit is conferred in one 
 part of an instrument, in terms which are free from aU 
 doubt, such estate or benefit cannot be taken away, except 
 by reasonably clear words in another part of the instru- 
 ment (a). 
 
 (?•) Towns V. Weiitworth, 11 Moo. 
 P. C. C. 550. 
 
 (s) 2 Rop. Leg. by White, 1460 ; 
 1 Jarm. Wills, 2nd ed. 397, 417. 
 
 (t) 6 Cruise T. 38, c. 9, § 25 ; 1 
 Jarm. Wills, 2nd ed. 397. 
 
 (u) 6 Cruise T. 38, c. 9, § 4 ; 1 
 Pres. Shep. T. 87. See Bupra, pp. 
 161, et seq. 
 
 (x) See judgment of Sir J. Wigram, 
 in Buckell v. Blenkorn, 5 Hare, 144. 
 
 But see remarks of Sir L. Shadwell, 
 in Ware v. Roidand, 15 Sim. 595, 
 apparently contra. 
 
 [y) 2 Rop. Leg. by White, 1456. 
 
 (z) 6 Cruise T. 38, c. 9, § 27 ; 
 Burton, § 602 ; 2 Rop. Leg. by 
 White, 1461— 2; 1 Jarm. Wills, 2nd 
 ed. 394, 396—7 ; 2 Id. 678 ; Brockle- 
 banh V. Johnson, 20 Beav. 212, 213. 
 
 (a) ThornUll v. Hall, 2 CI. & F. 
 22, 36 ; RandfieU v. Randjield, 4
 
 OF THE GENERAL RULES OF CONSTRUCTION OF WILLS. 995 
 
 XVII. Where it is impossible to discover from the ^qJ^11\^' 
 words of a will what was meant to be oiven, or to whom, 
 
 TJuoei-- 
 
 tlie will is void for uncertainty. But a reasonable degree ^■^^^^y- 
 of certainty will suffice (&). 
 
 XVIII. Of two modes of construction of a will of 'per- ft-evention 
 
 "■'- of intestacy. 
 
 sonalty, that is to be preferred which will prevent in- 
 testacy (c). 
 
 XIX. Expressions of present time refer to the date of ^^^^^^m 
 the will ; and, under the old law, devises, as regards the '''"'^^'^" 
 subject, refer to the date of the wiU. But even under the 
 
 old law, in the absence of expressions of present time or 
 other clear indications to the contrary, a will of personalty, 
 as regards the subject, speaks at the testator's death (d). 
 And by the stat. 1 Vict. c. 26, s. 24, it is enacted, " that 
 every will shall be construed, with reference to the real 
 and personal estate comprised in it, to speak and take 
 effect as if it had been executed immediately before the 
 death of the testator, unless a contrary intention shall 
 appear by the will (e). Thus, where in a devise made 
 subsequent to the year 1837, the testator uses the ex- 
 pression, " all the hereditaments of which I am now 
 seised," after-acquired real estate will pass (/). But where 
 he uses the expression, " all the estate whereof I am now 
 seised," or " now occupied by me," and he uses the word 
 " now " in other parts of his will in allusion to the period 
 
 Drewy, 147; 8 H. L. Cas. 235, 238 ; 1462 ; 2 Jann. Wills, 2nd ed. 680. 
 
 Blagrove v. Bradshaw, 4 Drew. 230; (d) 1 Rop. Leg. by White, 150 
 
 Abbott V. Middlcton, 7 H. L. Cas. 1 Jarm. Wills, 2nd ed. 261, 269 
 
 68, 85, 96, 97, 101, 112 ; Hodgson Palin v. Hills, 1 My. & K. 484 
 
 V. Clarh, 1 Gif. 139. Oosden v. Dotterlll, Id. 59. 
 
 (b) 6 Cruise T. 38, c. 8, § 38 ; 1 (e) Jej^so^i v. Key, 2 Hurl. & Colt. 
 Jarm. Wills, 2ad ed. 295—301, 304, 873 ; in re Gibson, L. R. 2 Eq. 669. 
 310, 311 ; Adams v. /ones, 9 Hare, (/) Doe v. Walker, 12 M. & W. 
 485 ; i)ral-ev. Dmfe, 25 Beav. 642; 591; Lady Langdale v. Brigcjs, 3 
 8 H. L. Cas. 172 ; Maynard v. Sm. & Gif. 246 ; Lord Lilford v. 
 Wright, 26 Beav. 285. Keek (No. 2), 30 Beav. 300. 
 
 (c) 2 Rop. Leg. by Wliite, 1461,
 
 996 
 
 OF THE GENERAL KULES OF CONSTRUCTION OF WILLS. 
 
 Pt. III.T.15, 
 
 Ch. 1, s. i. 
 
 Lex loci. 
 
 Civil law 
 foUmverl as 
 to purely 
 personal 
 iegiK^ies ; 
 
 ColIllDOU 
 
 law as to 
 others. 
 
 Substituted 
 or ailditional 
 legacies go- 
 verned by 
 the original 
 legacies. 
 
 when lie was making his will ; the will in such case will 
 not speak from his death (g). This section does not apply 
 to the objects of the testator's bounty, hut only to the 
 subjects. As regards the objects, in the absence of indi- 
 cations to the contrary, devises and bequests, whether 
 under the old law or the new, speak from the date of the 
 will, except in the case of children or descendants, who, 
 from a desire to include as great a number as possible, are 
 held to include those who answer the description at the 
 death of the testator (Ji). 
 
 XX. The construction of wills of immoveable property 
 is governed by the lex loci rei sitae, but the construction of 
 wills of moveable property is generally governed by the 
 law of the domicile (i). 
 
 XXL In deciding on the validity and interpretation of 
 purely personal legacies. Courts of equity generally follow 
 the rules of the civil law as recognised and acted on in 
 the Ecclesiastical Courts ; but as to the validity and inter- 
 pretation of legacies charged on land, they generally follow 
 the rules of the common law (j). 
 
 XXII. Wlien there is a substitution of legacies or an 
 addition to them, and no times are appointed for the pay- 
 ment of the substituted or additional bequests, nor any 
 funds assigned out of which they are to be satisfied, those 
 legacies are to be paid out of the same property, at the 
 same periods, under the same restrictions, and with the 
 same incidents as the legacies in Heu of or in addition to 
 which they are given (k). And this construction will be 
 
 (ff) Cole V. Scott, 1 Mac. & G. M. & G. 285. 
 
 518 ; Hntckinson v. Barrow, 6 Hurl. 
 & Norm. 583. See also judgmeut of 
 V.-C. Stuart, in Lady Langdalc v. 
 Briggs, 3 Sm. & Gif. 2. 
 
 (A) Shelf. Real Prop. Acts, 499 : 
 1 Jarm. Wills, 2nd ed. 262, 266, 
 267, 269 ; Bullock v. Bennett, 7 D. 
 
 (i) 2 Kop. Leg. by White, 1462 ; 
 1 Jarm. Wills, 2nd ed. 1 — 4 ; Enohin 
 V. Wylie, 10 H. L. Cas. 1. See supra, 
 983. 
 
 (i) Story's Eq. Jur. § 602, 608. 
 
 m 1 Rop. Leg. by White, 872; 
 1 Jarm. Wills, 2nd ed. 154 ; Duncan
 
 OF THE GENERAL RULES OF CONSTRUCTION OF WILLS. 
 
 997 
 
 adopted, even where the subsequent gift is not expressed pt.iii.t.is, 
 
 to be in substitution for or in addition to the first gift, but 
 
 is given simpliciter, without any indication of a connecting 
 or an assimilative intention (/). Thus, where a testator 
 gives a legacy by will out of a particular fund, and by a 
 codicil revokes it, and gives a legacy of a different amount, 
 without mentioning out of what it is to be paid, the legacy 
 by the codicil will be deemed to be a mere substitution 
 for the legacy by the will, in regard to the fund out 
 of which it is to be paid, as well as in regard to the 
 amount ; so that if the particular fund fails, the legacy 
 will not be paid out of the general assets (m). And where 
 a testator by his will gives an annuity to a feme covert for 
 her separate use for life, and by a codicil he gives a certain 
 sum " in addition " thereto for her life, she will take the 
 additional sum for her separate use, as well as the sum 
 given by will (n). But this assimilative construction will 
 not be adopted if it would unnecessarily render a distinct 
 additional gift dependent on the legatee surviving the 
 tenant for life, where by the terms of such gift, apart 
 from the words " in addition," it would be vested (o). 
 
 V. Duncan (No. 2), 27 Beav. 392. 
 But see Re Wilder's Trusts, 27 Beav. 
 418 : Gallemore v. GiU, 8 D. M. & 
 G. 567. 
 
 (l) Johnstone v. Lord Rarrowby, 
 1 D. F. & J. 183, reversing decision 
 
 of V.-C. Wood, 1 Johns. 425. 
 
 (m) Bristoio v. Bristow, 5 Beav. 
 289. 
 
 {n) Day v. Croft, 4 Beav. 561. 
 
 (o) King V. Tootel, 25 Beav. 23. 
 
 D B 2
 
 OF THE CONSTRUCTION OF PARTICULAR 
 
 Section V. 
 
 Of flic Consfrnetion of particular Words and Expressions 
 in Wills (p). 
 
 rT.TiLT.i5, j^ direction that legacies be paid ''clear," means that 
 
 Cu. 1, s. 5. o J- ^ 
 
 .7^^, — they shall be paid clear of legacy duty (cj). 
 
 In some cases " taxes " or " deductions " have been held 
 to include, and in other cases not to include income or 
 property tax (f). Where it is intended that a person to 
 whom an annuity or other gift is made should have it clear 
 of property tax, such tax should be specifically mentioned 
 in order to exclude all doubts. 
 
 "Shares," Where real or personal estate is given to a class of 
 
 " purts, or 1 o 
 
 " portions." persons, with a direction, that on the death of any of them, 
 their " shares," " parts," or " portions " are to go over, the 
 original shares only, and not the accruing shares, will go 
 over ; unless the word " interest," is added, or there is an 
 apparent intention to keep the property in one aggregate 
 mass, or there is some other indication of an intention that 
 the accruing shares should also go over (.s). 
 
 The word " part," in the absence of indication to the 
 contrary, will include not only an innnediate share, but 
 also a share in remainder (/). 
 
 (p) This section only notices a few & Hem. 334 ; Lord Lovat v. Duchess 
 
 points, for which no more appro of Leeds CNo. 1), 2 Dr. & Sm. 62 ; 
 
 priate place could be found else- Festlng v. Taylor, 3 Best & Smith, 
 
 where. • Where the points of con- 217 ; Ahadam v. Abadam, 33 Beay. 
 
 struction could be distributed under 475. 
 
 specific heads, the writer deemed it (s) 2 Eop. Leg. by White, 1398 
 
 most proper to do so. See, for in- 2 Jarm. Wills, 3rd ed. 661 — 8 
 
 stance, Section VI., and Chap. III., Douglas v. Andrews, 14 Beav. 347 
 
 Section II. Richctt v. Ghiillemard, 12 Sim. 88 
 
 (q) Ford v. Buxton, 1 Coll. 403. Goodwin v. Finlayson, 25 Beav. 65 
 
 (r) Wall y. Wall, 15 Sim. 513 ; Brans y. Emns, 2b ^Q^y. ^1; Ddlton 
 
 Lethbrldge v. Thurlow, 15 Beav. v. Crowehj, 33 Beav. 272. 
 334; Sadler v. Richards, 4 K. & J. (t) Watson v. Pryce, 34 Beav. 71. 
 
 302 ; Turner v. M'Gravx, 1 Johns.
 
 WORDS AND EXPRESSIONS IN WILLS. 999 
 
 Where a devise or bequest is made to two or more pt. iii.x.is, 
 
 Ch. 1, s. 5. 
 
 persons, with words of survivorship, it is very important 
 
 to express the period to which the survivorsliip refers — 
 whether, for instance, to the death of tlie testator, or the 
 death of a tenant for life. In the absence of indication 
 to the contrary, it will be referred to tlie period of 
 division (it). 
 
 In the case of a limitation over to the survivors or "Sumvors- 
 
 or " survi- 
 
 survivor of a class of legatees, the word " survivors " or vor." 
 " survivor " is construed " others " or " other," where it 
 was apparently the intention of the testator that the 
 others or other should take, without reference to the con- 
 tingency of his, her, or their surviving the person from 
 whom the property is to go over ; as when the alternate 
 gift over is only to take effect on the death of all the 
 class without issue. But when unexplained by the con- 
 text, the word will be construed according to its literal 
 meaning (x). And the word " survivors " cannot be con- 
 strued " others " where tlie gift over is not entirely to the 
 same class (?/). 
 
 It has been held that a person attains his twenty-fifth "Auaining 
 
 his twenty- 
 year on the day when he becomes twenty-four years fifth year." 
 
 old (z). 
 
 The word " unmarried," or the words "without being; "Unmar- 
 
 *-■ ried," or 
 
 married," whether in a deed or will, may mean either jj'Ju''^""* 
 without having ever been married, so as to exclude issue, 
 or " discovert, or without a husband or wife at the time," 
 
 (u) See Cripps v. Walcot, i Mad. 122 ; BlundeUy. Chapman, 33 Beav. 
 
 15 ; Re Gregson s Estate, 2 D. J. & S. 6i8 ; Hodge v. Foot, 34 Eeav. 349 ; 
 
 428, and other cases cited 2 Wms. Hurry v. Morgan, L. E. 3 Eq. 152 ; 
 
 Ex. 6th ed. 1355-6. Badger v. Gregory, L. E. 8 Eq. 78. 
 
 (*) 1 Eop. Leg. by White, 638 ; (y) Dc Garognol v. Liardct, 32 
 
 2 Jarm. Wills, 2nd ed. 578, 580, Beav. 608. 
 
 588 ; Greenwood v. Percy, 26 Beav. (2) Grant v. Grant, 4 Y. & C. C. 
 
 572 ; Holland v. Allsop, 29 Beav. C. 256. 
 498. In re. Keep's Will, 32 Beav. 
 
 being mar- 
 ried."
 
 1000 
 
 OF THE CONSTRUCTION OF PARTICULAR 
 
 " Who have 
 
 issue." 
 
 pt. iii.t.15, so as to exclude a husband or wife, but not issue. And in 
 
 Ch. 1, s. 5. 
 
 some cases it receives the former construction, and in 
 
 others the latter, even in the same instrument, according 
 to the apparent intent of the settlor or testator. When 
 applied to a person who is not married at the time, and 
 whose marriage is not expressly or plainly contemplated 
 by the instrument, it generally receives the former con- 
 struction ; while if applied to a person who is married 
 at the time, or whose marriage is contemplated by the 
 instrument, it generally receives the latter construc- 
 tion (a). 
 
 Under a residuary devise and bequest to be equally 
 divided between the testator's wife " and her children who 
 have issues," the word " have " will not be construed 
 " shall have," but those who have no issue at his death 
 take nothing ; for, as a devise to her and her children 
 would include only the children living at that time, the 
 superadded description of having issue is applicable to 
 those children \yho then have issue (h). 
 
 Where there is an intention that a child shall take a 
 vested interest at a particular period, and words are intro- 
 duced which would devest the interest in the event of the 
 parent dying without leaving a child, there, if the interest 
 has once vested, and the testator has not too clearly ex- 
 pressed his object to admit of a doubt, the Court will 
 struggle to maintain the vested gift, by construing the 
 words " without leaving " to mean " without having 
 had " (c). 
 
 Death 
 " without 
 leaving 
 children." 
 
 (a) See 1 Rop. Leg. 616, 617; 1 
 Jarm. Wills, 2ad ed. 435—7 ; In re 
 Saunders' Trust, 3 K. & J. 152 ; /«. 
 re Norman, 3 D. M. & G. 965 ; 
 Pratt V. Matthew, 22 Beav. 328, 331 
 — 4 ; Mitchell y. Colls, 1 Johns. 674 ; 
 S. C. nom. Clarke v. Colls, 9 H. L. 
 Cas. 601 ; Day v. Barnard, 1 Dr. & 
 
 Sm. 351 ; Pratt v. Mathew, 8 D. M. 
 & G. 522 ; Heyivood v. Hey wood, 29 
 Beav. 9 ; In re Saunders' Trusts, L. R. 
 1 Eq. 675. 
 
 (6) Doe d. Burton v. White, 1 
 Exch. 526. 
 
 (c) White V. Hill, L. K. 4 Eq. 
 Cas. 265.
 
 WOKDS AND EXPRESSIONS IN WILLS. 1001 
 
 There is this distinction between testamentary disposi- ^r'™'^l^' 
 tions of estates in mortgasje " subject to the incumbrances t"; 
 
 ^ O J i> Subject to 
 
 thereon/' and of leasehold estates " subject to the per- ance'of th™' 
 formance of the covenants," that the words " subject," &c., •=°^«'^^"*^-" 
 when used in reference to mortgages, are not mere useless 
 surplusage, even when they are not construed to import 
 til at the party is to take cum onere ; for they may be 
 intended to prevent disappointment, and perhaps disputes 
 or doubts, by showing at once that the estate is in mort- 
 gage, which might not otherwise be known to be so. But 
 tlie words " subject," &c., when used with reference to 
 property which has already been described as a leasehold, 
 are mere useless surplusage, unless they are used to signify 
 that the bequest is to be subject to the performance of 
 the covenants to repair, in respect of dilapidations existing 
 at the time of the testator's death ; and the Court ought 
 not, without some special reason, to construe words as 
 mere surplusage which may fairly be employed for some 
 useful purpose. It is only natural, and in accordance 
 with the presumable intentions of a testator who makes 
 a specific bequest of leaseholds, that the legatee should 
 take them subject to the burden of putting them in 
 repair, Avhere they are in a state of dilapidation at the 
 time of the testator's decease ; altliough the general 
 personal estate is tlie natural fund for the papuent of 
 debts, and otlier kinds of property are commoid.y ex- 
 onerated by that (d). 
 
 Wliere a testator provides that an estate shall go over "Devolve." 
 from a person taking the same under the will, in case a 
 certain other estate shall " devolve " upon liim, he will be 
 held to mean tliat the shifting clause shall take effect in 
 case such person shall have the fidl beneficial enjoyment 
 of tlie latter estate : so that such estate will not be deemed 
 to have " devolved " upon him, if he takes it subject to a 
 
 id) Hickling v. Boyer, 3 Mac. & G. 643.
 
 1002 
 
 OF DEVISEES AND LEGATEES. 
 
 pt. iii.t.15, charge (e). And the expression " devolve upon her cliil- 
 dren, if she has any," denotes transmission to children 
 
 living at the time when the devolution is to take place ; 
 
 so that the representative of a child then dead will take 
 
 nothing (/) 
 
 The word " legacies " will often include annuities (g). 
 In a will, the word " London " will include the cities oi' 
 
 London and Westminster, and the borough of Southwark, 
 
 and the adjacent streets and buildings, where such would 
 
 seem to have been the intention (7t). 
 
 "Legacies" 
 
 iucludins; 
 
 "aunuities.' 
 
 " Loudon." 
 
 Section VI. 
 
 Pt. IILT.15, 
 Ch . 1, 8. 6. 
 
 Devise or 
 bequest to 
 per.-ons 
 sus'aining a 
 particular 
 character. 
 
 Of Devisees and Legatees. 
 
 Where a devise or bequest is made to a person or 
 persons by any description denoting a person sustaining a 
 particular character (such as heir, next of kin, nearest of 
 blood, youngest or only surviving son), and the person or 
 persons who sustain it at one time may be different from 
 the person or persons who sustain it at another time, it is 
 very expedient to express the time at which that character 
 is to be sustained (^). 
 
 General 
 rule. 
 
 I. Error or Defect in a Name or Description. 
 Any words that are sufficient to denote the persons 
 
 (e) Fazakerley v. Ford, 1 Ad. & E. 
 897 ; 4 Sim. 390. 
 
 (/) Parr v. Parr, 1 Mj. & K. 
 467. 
 
 {fj) 2 Jann Wills, 2nd ed. 516 ; 
 Cornfield v. Wyndham, 2 Coll. 184 ; 
 Heath V. Weston, 3 D. M. & G. 601 ; 
 
 Ward V. Grey, 26 Beav. 485 ; Mul- 
 ling V. Smith, 1 Dr. & Sm. 204; 
 GasUn v. Rogers, L. K. 2 Eq. 284. 
 
 {h) Wallace v. Att.-Gen., 33 Beav. 
 384. 
 
 {/) See Supra, p. 337 : and 2 J arm. 
 Wills, 2nd cd. 167—180.
 
 OF DEVISEES AND LEGATEES. 1003 
 
 meant by the testator, and to distinu-uisli them from all pt. iii.t. is, 
 
 •^ . . ^ Cn. 1, s. 6. 
 
 others, operate as a good description (/). 
 
 Wlien there is a mistake in the Christian or snrname, Mistake in 
 
 name. 
 
 or in both names, it will be corrected, if the intention 
 clearly appears in any other part of the will or by parol 
 evidence (/•). Bnt where there is a relative having the 
 names mentioned, but described as standing in a different 
 degree of relationship from that mentioned, and there are 
 other relatives having some only of the names and stand- 
 ing in the relationship mentioned, the gift will be void for 
 uncertainty if there be no other evidence than that of the 
 solicitor who prepared the will (/). 
 
 Parol evidence will be admitted to supply a blank for Blank for 
 a Christian name, but not a blank for an entire name (m). 
 
 If, however, a legatee is described by the initials of his initials, 
 name only, parol evidence may be given to prove his iden- 
 tity (w). But if a testator devises to certain persons by no Arbitrary 
 other names or descriptions than by certain letters of the 
 alphabet arbitrarily chosen for the purpose, and refers to 
 another paper signed by him, but not attested as explain- 
 ing who were intended by those letters, such a devise is 
 void (o). 
 
 There is no presumption in favour of the name more Error lu 
 
 description of 
 
 than of the description (p). But where the description of ^ legatee. 
 a legatee is erroneous, and there is no doubt as to the 
 person intended to be described, the mistake will be 
 
 (j) 6 Cruise T. 38, c. 10, § 23 ; 1 (I) Drake v. Brake, 25 Beav. 
 
 Jarm. Wills, 2nd ed. 310, 311. 642 ; 8 fl. L. Cas. 172. 
 
 (k) 1 Eop. Leg. by White, 164, (m) 1 Eop. Leg. by White, 186 ; 
 
 166; Burton's Compendium, § 605 ; Re Gregson's Trusts, 2 Hem. & M. 
 
 1 .Tarm. Wills, 2nd ed. 312, 368 ; 504. 
 
 Mostyny. Mostyn, 5 H. L. Cas. 155; (w) 1 Rop. Leg. by White, 187. 
 
 Wigram on Wills, 51 ; Blundell v. (o) Cl/iyton v. Lord Nugent, 13 
 
 Gladstone, 2 Phill. 279 ; Bernasco- M. & W, 200. 
 
 nini v. Atkinson, 17 Jur. 128 ; Re (p) Brake v. Brake, 8 H. L. Cas. 
 
 Blackman, 16 Beav. 377 ; Hodgson 172, 179. 
 V. Clarke, 1 D. F. & J. 394.
 
 1004 
 
 OF DEVISEES AND LEGATEES. 
 
 pt. iii.T. 15, rectified, unless tlie description imputes to the legatee a 
 
 Ch. 1, s. 6. 
 
 character which is the essence of the bequest, and it may 
 
 reasonably be presumed that the testator would not have 
 made such a bequest, if he had not been so mistaken (g). 
 
 Questions 
 arising on 
 such be- 
 quests. 
 
 Where issue 
 are only 
 substituted 
 in the event 
 of the parent 
 predeceasing 
 tho testator. 
 
 II. Devises and Bequests to Parents and Children, 
 
 In the case of devises and bequests in favour of a person 
 and his or her children, at least in wills drawn by unpro- 
 fessional persons, questions frequently arise as to the mode 
 in which they are to take — wdiether the parent is to take 
 for life, with remainder to the children ; or whether the 
 parent is to take an estate tail or the absolute interest ; or 
 whether parent and children are to take simultaneously, 
 and, if so, whether as tenants in common or as joint- 
 tenants. All such questions should be excluded (r). 
 
 Whenever the word "entitled" is used, it is highly 
 expedient to specify whether it is meant " entitled in in- 
 terest " or " entitled in possession " {s). 
 
 Where a testator bequeaths personal estate to one for 
 life, and after his death to others equally, and in case any 
 of them should liappen to die before they become " enti- 
 tled " to their shares, to the children of him, her, or them 
 so dying, the word " entitled " does not mean " entitled in 
 possession ;" but the gift to the children is merely a sub- 
 stitution in the event of the parent dying in the testator's 
 
 (g) 1 Eop. Leg. by White, 169, 
 172 ; Stoi-y's Eq. Jur. § 182, 183 ; 
 1 Jarm. Wills, 2nd ed. 312 ; Re 
 Ricket's Trust, 11 Hare, 299 ; Strin- 
 ger V. Gardiner, 4 D. & J. 468 ; see 
 In re Petts, 27 Beav. 576 ; Gamer 
 V. Garner, 29 Beav. 114. 
 
 (r) For instances, see Lendcn v. 
 Blachnore, 10 Sim. 626 ; Vawjlum 
 V. Hcadford, Id. 639 ; Mason v. 
 Clarke, 17 Beav. 126 ; Conrjreve v. 
 
 Palmer, 16 Beav. 435 ; Ive v. King, 
 Id. 46 ; Harty. Tribe, 18 Beav. 215 .. 
 Welh V. Byng, 2 K. & J. 669 ; 8 D. 
 M. & G. 633 ; S. C. nom. Byng v. 
 Byng, 10 H. L. Gas. 171 ; In re 
 Graham's Will, 33 Beav. 479 ; Greeve 
 V. Greeve, L. R. 4 Eq. Gas. 180; 
 Davis V. Bennett, 4 D. F. & J. 327. 
 (s) See Charley v. Lovehand, 33 
 Beav. 189 ; Turner v. Gosset, 3.4 
 Beav. 593.
 
 OF DEVISEES AND LEGATEES. 1005 
 
 lifetime : so that if one of the parents survives the testator, ^ r. m.T.is, 
 
 ^ ' Ch. 1, s. 6. 
 
 and dies before the tenant for life, the property vests in 
 
 his representative, and does not go over to his children (t). 
 
 And, under a bequest to A. or his children, he is absolutely ^ 
 
 entitled if he survives the testator : the children can only 
 
 take by substitution in case of the death of their parent in 
 
 the testator's lifetime (^f). 
 
 III. Devises and Bequests to Children. 
 In construino; a will, an infant in ventre matris is con- infant in 
 
 " ventre 
 
 sidered as a child " living," and even as a child " born," mat^s. 
 that word being read as synonymous with procreated (x). 
 
 In the absence of indications to the contrary, where a who take 
 
 where no 
 
 legacy is given to a class of individuals, as to children, in pe™^ for 
 general terms, and no period is appointed for the distribu- ^^ appointed, 
 tion of it, the death of the testator is the period of distri- 
 bution, and none of the class but those who are born or in 
 ventre matris at that period are entitled to participate in 
 the bequest. And so, as a general rule, where a period is who take 
 
 where a 
 
 appointed for distribution, as the attainment of maionty perindfor 
 
 ^^ J ^ distribution 
 
 or the death of a parent, the fund is distributable among '» appointed. 
 as many as come into existence before that time, and no 
 child born afterwards can be admitted to a share (y). 
 
 If there is a bequest to children " begotten" or "to be Bequest to 
 
 ^ '^ children 
 
 begotten," or "who may be born," these words refer only '' begotten or 
 
 " ./ ' -^ to be begot- 
 
 to children who may be born after the date of the will and *fJJ'i]'o°^ay 
 before the death of the testator, and not to children born ^® ''°™"" 
 after his decease, where a different construction would 
 
 (() Henderson v. Kennicot, 2 De 53 ; 2 Spence'sEq.Jur. 418 ; .Smith's 
 
 G. & S. 492. Executory Interests annexed to 
 
 (m) Penley v. Penley, 12 Beav. Fearne, § 227 — 234 ; 2 Jarm. Wills, 
 
 547. 2nd ed. 126—130 ; Mann v. Thomp- 
 
 {x) 6 Cruise T. 38, c. 2, § 16 ; son, 1 Kay, 638 ; Hagger v. Payne, 
 
 Watk. Conv. 3rd ed. by Prest, 243 ; 23 Beav. 474, 47S ; Bateman v. Gray, 
 
 2 Jarm. Wills, 2nd ed. 153—4. 29 Beav. 447. 
 
 {y) 1 Rop. Leg. by White, 38, 46,
 
 1006 
 
 OF DEVISEES AND LEGATEES. 
 
 Whether 
 cliDdren of 
 a subse- 
 quent mar- 
 riage are in- 
 cluded. 
 
 Whether 
 grandchild- 
 ren or issue 
 generally 
 are in- 
 cluded. 
 
 Where it is 
 sufficient 
 to answer 
 the desciip- 
 tion in sub- 
 stance, 
 though not 
 literally. 
 
 Where a 
 younger 
 has been 
 considered 
 as an eldest 
 chUd. 
 
 impute to the testator the inconvenient and improbable 
 intention that his residuary personal estate should not be 
 distributed until after the deaths of the parents of the 
 legatees (z). 
 
 The word " children " will include children by a second 
 or other subsequent marriage, unless it clearly appears 
 that the testator only meant children of the first mar- 
 riage (ft). 
 
 The word " children " does not orrlinarily comprehend 
 grandchildren or issue generally ; but it will be construed 
 in this more extensive sense where the will would other- 
 wise be inoperative, or where the testator has clearly 
 shown by other words that he used the word in the more 
 extensive sense (h). 
 
 In general, even in the case of a will, the persons who 
 claim must answer the description and character given of 
 them in the will (c). But sometimes they may not answer 
 the description and character literally, and yet they may 
 answ^er what was really intended by such description and 
 character. Thus in the case of provisions made for 
 younger children, by will or by way of executory trust, by 
 the parent or a person who stood in loco parentis, as 
 being under a moral obligation to provide for the children 
 or as intending to take upon himself or herself those 
 duties and obligations which ordinarily and properly 
 attach to a father or mother, a younger child becoming 
 entitled to the family estate has been considered an eldest 
 child, so as to exclude him from the benefit of the pro- 
 vision for the younger children, where such appeared to be 
 
 (z) 2 Jarm. Wills, 2nd ed. 148— 
 
 9 ; Storrs v. Benhow, 2 My. & K. 46 ; 
 3 D. M. & G. 390 ; Butler v. Lotve, 
 
 10 Sim. 317 ; Townsend v. Early, 
 28 Beav. 429. 
 
 («) 1 Rop. Leg. by White, 48 ; 2 
 Jarm. Wills. 2nd cd. 123—4. 
 
 (6) 1 Eop. Leg. by White, 68 ; 2 
 Jarm. Wills, 2nd ed. 124-5 ; Pnde 
 V. Fools, 3 D. & J. 252, 266 ; Jte 
 CrawhalVs Trust, 8 D. M. & G. 
 480. 
 
 (c) 1 Rop. Leg. by White, 6^.
 
 OF DEVISEES AND LEGATEES. 1007 
 
 the testator's intention. And, on the other hand, an pt.iii.t.is, 
 
 Ch. 1, s. 6. 
 
 eldest dauo'hter destitute of a provision has been con- 
 
 ^ -■- Where an 
 
 sidered a younger child ; and an eldest son is entitled (/a,f,;i*ter 
 to claim a portion as a younger child, when the family considered 
 estate is given from him, or he is otherwise unprovided yomiger, 
 
 o / T^ °'' ^^ eldest 
 
 tor (a). son as a 
 
 younger. 
 
 "Begotten" will extend to the issue begotten afterwards, "Begotten" 
 and the words "to be begotten" to the issue begotten begotten."* 
 before (e). 
 
 Where several sons, daughters, or children are spoken "Next 
 
 surviving 
 
 of, and the words "next surviving are used, it should be son, 
 
 ' _ . daughter, 
 
 specified whether next younger or next elder is meant (/). °^ '^^^^^■" 
 Where a testator directed that his daughters' shares Direction 
 
 that 
 
 should be " settled upon themselves strictly," it was held daughters' 
 
 shares should 
 
 that the income of the share of each should, during the 'Jesettted 
 
 ' o upon them- 
 
 joint lives of herself and her husband, be paid to her for stncUy. 
 life, without power of anticipation ; that if she should die 
 in the lifetime of her husband, then her share should go 
 as she should by will appoint ; and, in default of appoint- 
 ment, to her next of kin, exclusively of her husband ; and 
 that if she should survive her husband, then the share 
 should belong to her absolutely (g). 
 
 TV. Devises or Bequests to Issue or Offspring, 
 
 The word issue is used sometimes to denote all descen- 
 dants, and at other times immediate descendants or some 
 particular class of descendants living at a given time. 
 
 (d) 1 Kop. Leg. by White, 59, 62, L. R. 4 Eq. 48, 55 ; ColUtujwood v. 
 
 65 ; 2 Spcnce's Eq. Jur. 412—3 ; 2 CoUingwood, L. R. 4 H. L. 43. 
 Jarm. Wills, 2ad ed. 167—169 ; (e) 2 Rop. Leg. by White, 1513 ; 
 
 Lijddon V. Ellison, 19 Beav. 565; 2 Jarm. Wills, 2ad ed. 150, 152, 
 
 Macoubrey v. Jones, 21 Beav. 684 ; 153. 
 
 Sandeman v. Mackenzie, 1 Johns. & (/) See Eastwood v. Lockwood, 
 
 Hem. 613 ; Ellerde v. Thomas, 1 D. L, E. 3 Eq. Cas. 487. 
 J. & S. 18 ; Davies v. Huguenin, 1 {g) Loch v. Bagley, L. R. 4 Eq. 
 
 Hem. & Mill. 730 ; Wood v. Wood, 122.
 
 1008 
 
 OF DEVISEES AND LEGATEES. 
 
 pt.iii.t. 15, And, in a will, issue is either a word of purchase or of 
 Ch. 1, s. 6. _ ' _ ' _ _ -^ 
 
 limitation, as will best answer the intention of the devisor, 
 
 though, in the case of a deed, it is universally a word of 
 purchase (Ji). 
 
 When used as a word of purchase, and unconfined by 
 any indication of intention, it will comprise all persons 
 who can claim as descendants from or through the person 
 to whose issue a devise or bequest is made (?'). 
 
 It may be used in different senses in the same will. 
 But if in the first part of a will it is used equivocally, and 
 there is nothing in the immediate context to aid in con- 
 struing its meaning, but in another part of the same will 
 the ambiguity is corrected and the word is used in a 
 particular sense, the presumption is that the testator has 
 always used it in that sense in which he himself has cor- 
 rected the ambiguity {j). 
 
 " Issue male" means issue claiming through males, even 
 in a bequest of personalty to issue male (Jc). 
 
 The word " offspring " is a word of similar effect to the 
 word "issue" (/). 
 
 V. Devises to Heirs or Descendants. 
 
 "Heirs" 
 meaning 
 cbildren, 
 or descen- 
 dants, or 
 statutory 
 next of kin. 
 
 It is not unusual for testators, whose w^ills are not made 
 by lawyers, to use the word " heirs " as synonymous with 
 " children," or next of kin, who are descendants or sta- 
 
 (li) 2 Jarm. Wills, 2iid ed. 80— 
 4 ; L. C. J. Wilmot, in Roe v. Grew, 
 2 Wils. 322 ; and Lord Kenyan^ 
 
 C. J., in Doe d. Cooper v. Collis, 4 
 
 D. & E. 294. 
 
 {i) 1 Rop. Leg. by White, 94 
 Leigh v. Norhury, 13 Ves. 344 
 MaddocTc v. Legg, 25 Beav. 531 
 remarks of M. R. in Rhodes v. 
 
 Rhodes, 27 Beav. 416 ; M'Oregor v. 
 M'Gregor, 1 D. F. & J. 63. 
 
 {j) Edwards t. Edwards, 12 Beav. 
 100 ; Re Corrie's Will, 32 Beav. 
 426. 
 
 (k) Lywood v. Kimher, 29 Beav. 
 38. 
 
 {I) Young v. Davies, 2 Dr. & Sm. 
 167.
 
 OF DEVISEES AND LEGATEES. 100!) 
 
 tutory next of kin : and where this appears to be the case, pt.iit.t.is, 
 that meanino' will be oiven to the word (m). 
 
 ^ _ *=■ _ \ ^ Riiiht heirs 
 
 A devise in remainder to the rig-ht heirs of the testator ^^^'»<^ ''^'*- 
 
 o tatoi-, ex- 
 
 for ever, his son excepted, is void (n). *^^p* ^"^ ^°°- 
 
 A devise to the right heirs of husband and wife is a Right heirs 
 
 , . 1 .■,-...„,. of husband 
 
 devise to the person answering the description oi heir to and wite. 
 both, namely, a child of both, inasmuch as husband and 
 wife are considered in law as but one person (o). 
 
 AVliere a testator de\'ises real estate to a person and his ?¥ ^^^*' 
 
 -"■ heir. 
 
 Avife for their lives, and after their decease to their son, his 
 heirs and assigns, for ever, but in case he should not sur- 
 vive liis parents, and should die without an heir lawfully 
 begotten, then to "the next heir" of the first takers, 
 " their heirs and assigns for ever," " the next heir " means 
 the person who should be the heir of the first takers in 
 the technical sense of the word heir : so that, under the 
 limitation over to the next heir, the estate will not vest in 
 a second son of the first takers dying in the lifetime of one 
 of such first takers, but will vest in his son, as he became 
 the next heir in the technical sense of tlie word (^j). 
 
 A devise to "the heirs male" of the devisor onlv extends Heirs male 
 
 "^ _ ofthede- 
 
 to the heirs male of his body, and not to a collateral heir : ^'^or. 
 so that if the devisor has not an heir male of his body, the 
 debase is void {q). 
 
 The exiiression, " the first male heir of the branch of First male 
 
 heir of the 
 
 A.'s family," is not a definite and safe designation, but is ^.'■'^^^^ °f 
 
 "^ o ' A. s family. 
 
 one which may lead to perplexing questions, if not to the 
 total failure of the estate intended to be limited, on the 
 ground of uncertainty. For, under some circumstances, it 
 may be a matter of the most perplexing doubt whether the 
 
 (m) Roberts v. Edtmrds, 33 Beav. (o) 6 Cruise T. 38, c. 10, § 39. 
 
 259 ; In re Jeaffreson's Trusts, L. R. {p) Doe cl. Knight v. Chaffey, 16 
 
 2 Eq. 276 ; In re Philps' Will, L. R. M. & W. 656. 
 7 Eq. Cas. 151. (q) 6 Cruise T. 38, c. 10, § 37. 
 
 (re) 6 Cruise T. 38, c. 10, § 40.
 
 1010 
 
 OF DEVISEES AND LEGATEES. 
 
 Pt 
 
 Ch 
 
 III. T 15, person intended must be an heir in tlie strict teclmical 
 
 3. 1, s. 6. -"^ 
 
 sense, by being the child of a deceased parent and heir 
 general, or whether it is sufficient if he is the child of a 
 deceased person though not heir general, or whether " male 
 heir " does not mean male heir apparent " or " male 
 descendant," and whether the word " first " refers to the 
 seniority of the heir, or whether it refers to seniority and 
 priority of the stock from which he springs, or whether 
 the devise is not void for uncertainty. Thus, where A. 
 has no son, but several daughters, who have issue, it may 
 be doubted whether the son or grandson of the eldest 
 daughter is to take, because the eldest daughter has for 
 some purposes priority over the others ; or whether the 
 son of a younger or even of the youngest daughter should 
 take, on the ground that he was born before the children 
 of the other daughters ; or whether a son of a younger or 
 even of the youngest daughter is to take, because his 
 mother is dead at the time of the determination of the 
 particular estate, while the other daughters are living, so 
 that he is technically heir to her, while the children of the 
 other daughters are not technically heirs to them ; or 
 whether the devise is not void for uncertainty (r). Such 
 cases are only mentioned to illustrate the care that is neces- 
 sary in the use of the word " heir." 
 
 In limitations in tail, " the eldest male lineal descendant of 
 A." means eldest in line, not eldest in years, so as to desig- 
 nate a grandson of A.'s eldest son as the eldest in line, rather 
 than a son of A.'s youngest son, as the eldest in years (s). 
 
 In giving property to " male descendants," or to " issue 
 male," it is expedient to express whether or not the testator 
 means persons claiming through males only {t). 
 
 Eldest male 
 lineal de- 
 Bcendaut. 
 
 Male de- 
 scendants, 
 
 (r) Winter v. Perratt, 9 CI. & F. 
 606. 
 
 (s) TheUusson v. Rendlesham, 7 H. 
 L. Cas. 429. 
 
 ( t ) See Bernal v. Bcrnal, 3 My. 
 «& Cr. 559 ; Lambert v. Peyton, 8 H. 
 L. Cas. 1.
 
 OF DEVISEES AND LEGATEES. 1011 
 
 A sister of the testator may be entitled under the pt. iii.x.is, 
 
 . . . , Ch. 1, s. 6. 
 
 description of his " nearest of kin in the male line/' in 
 
 NCLU'Ci-t 
 
 iireference to a son of the testator's paternal uncle (u). ofkiniu 
 
 -I 1 \ / the male 
 
 Under a limitation of lands of cjavelkind or borouQh- ''"''•" 
 
 ^ ° Limitation 
 
 Enolish tenure to the heir or heirs as a purchaser or pur- otgaveiitind 
 
 '^ ^ ^ OT l)ori'Ugu- 
 
 chasers, the common law heir takes, and not the heir by onieSonaify 
 the custom. And the same rule applies in the case of *°**^^^^^'^- 
 chattels real or other personal estate, where the word heir 
 is used in its technical sense («). 
 
 If it appear from the context that the words "in tlie "in the 
 
 character of 
 
 character of the then heir male of the body " of tlie tenant the tiien h ir 
 
 "^ m.iie of the 
 
 for life, have been used to denote a person taking 1/y ^°'^y" 
 purchase as first tenant in tail after the determination of 
 the estate for life, the words will receive that construction. 
 But that is not the technical or proper meaning of those 
 words (y). 
 
 VI. Bequests to a Person and his Heirs, or to the Heirs 
 of ct Person. 
 
 A legacy to a person and his heirs, or to a person " or 
 his heirs or assigns," is a bequest of the entire interest to 
 him absolutely. But when money is bequeathed to the 
 heirs of a person to whom no interest in it is given, or 
 when money is bequeathed to a person with a limitation 
 to his heirs by way of substitution or remainder, in some 
 cases it is held that by the word "heh-s," the testator 
 means the persons who under the Statute of Distributions 
 would be entitled, in case the individual whose heirs are 
 spoken of had died intestate ; in which case it would 
 include even his widow, and not merely his nearest of 
 
 (u) Boijs X. Bradleii, 10 Hare, Slnden,2 Johns. kYiem.ZQ'd ; Polky 
 
 389 ; 4 D. M. & G. 58 ; S. C. nom. v. PoUey (No. 2), 31 Beav. 363. 
 Sayer v. Bradley, 5 H. L. Cas. 874. (y) Mirl:lethv:ait v. Micklethxvait, 
 
 {x) Co. Litt. 10 a, n. (4) ; Thorp 4 Com. B. 790. 
 V. Owen, 2 S. & G. 90 ; Sladen v. 
 
 VOL. II. . E E
 
 1012 
 
 OF DEVISEES AND LEGATEES. 
 
 pt. III.T.15, blood. In other cases it is held to mean "his children;" 
 
 Ch. 1, s. 6. 
 
 and in others the strict literal meaning is given to it. (z). 
 
 Gifts to 
 cousins. 
 
 Nephews 
 aud niece.'' 
 
 Relations i 
 a fnu.ily. 
 
 VII. Devises or Bequests to Ne^pheivs and Nieces, Cousins, or 
 Relations, or a Family, or Next of Kin, or Persons 
 claiming under the Statute of Distributions, or Trustees, 
 Executors, or Personal or Legal Bcprescntatives. 
 
 Where a bequest is made to "cousins "-simpliciter, first 
 cousins only will be entitled, unless there is anything in 
 the wiU to indicate a different intention (ft). 
 
 Under a bequest to the testator's first and second 
 -cousins, first cousins twice removed were held to be 
 entitled, as being within the degree of relationship men- 
 tioned in the will (b). But, under a bequest to " first 
 cousins or cousins german," children or descendants of 
 first cousins will not take ; the designation " cousin 
 german" being considered as synonymous with and used 
 in explanation of "first cousin" (c). 
 
 NejDhews and nieces of the wife of a testator will take 
 under a bequest to his nephews and nieces, where he has 
 none of his own (d). 
 
 Where a devise or bequest is made to " relations " or 
 " near relations," and there is nothing to show that more 
 remote relations or tliat some only of the relations were 
 intended, all of those and none but those are entitled, per 
 
 (s) See 1 Rop. Leg. by White, 88, 
 89, 90, 93 ; 2 Jarm. "Wills, 2nd ed. 
 65—9 ; In re Walton's Estate, 8 D. 
 M. & G. 173; Doody v. Higgins, 9 
 Hare, App. p. xxxv. ; 2 K. & J. 729 ; 
 De Beauvoir \. De Beauvoir, 3 H. 
 L. Cas. 524, 557 ; Re Roots, 1 Dr. & 
 Sm. 228 ; Hasleioood v. Green, 28 
 Beav. 1 ; Hamilton v. Mills, 29 Beav. 
 19.3 ; Tn Re Newton's Trusts, h. R. 
 
 4 Eq. 171. 
 
 («) Stoddard v. Nelson, 6 D. M. & 
 G. 68; Stevenson v. Abingdon, 31 
 Beav. 305. 
 
 (b) 1 Rop. Leg. by White, 145 ; 2 
 Jarm. Wills, 2nd ed. 125. 
 
 (c) Sanderson v. BayJeij, 4 My. & 
 Cr. 56. 
 
 {d) Hoggy. Cook, 32 Beav. 641.
 
 OF DEVISEES AND LEGATEES. 1013 
 
 capita, wlio, in case of intestacv, could claim as next of pt. iti.t.is, 
 
 r > ' o > Ch. 1, E. 6. 
 
 kin by the Statute of Distributions. This construction is 
 
 adopted as the best mode of setting bounds to the generality 
 of the word " relations." If tlie Ijeqiiest is confined to the 
 testator's " poor " or '' necessitous " or " poorest " or " most 
 necessitous " relations, those only will take who could claim 
 by the Statute of Distributions, and are also in want of 
 assistance. But when it appears from the will that a 
 testator intended to appropriate a sum of money, not only 
 for his then existing poor relations, but for those to succeed 
 without limitation as to time, a court of equity will sup- 
 port the bequest as a charity, and admit all his poor 
 relations without regard to the Statute of Distributions (e). 
 When a testator has delegated a power to distribute the 
 fund among his relations according to the discretion of 
 the donee of the power, he may distribute the property 
 among the testator's kindred, although they be not within 
 the Statute of Distributions. And if such a j)0wer is not 
 executed, the property will go to the next of kin at tlie 
 death of the donee of the power (/). And where a person 
 is empowered to fix the amount of the shares to be taken 
 by relations, but not to select the objects, those will be 
 entitled who are the next of kin according to the Statute 
 of Distributions, at the death of the donee of the power {g). 
 And bequests to a person's " family " are to be construed 
 by the same rules as bequests to " relations " {li). 
 
 Where a testator uses in an ultimate limitation the Next of Wn 
 
 and piTisous 
 
 words " next of km of my own family," they mean the entitled 
 nearest or next of kin of those persons who accordino: to ?J*^".'« °^ 
 
 ^ O Distill .11- 
 
 tions. 
 
 (e) 1 Rop. Leg. by White, 101, {g) Finch v. Hollingsicorth, 21 
 
 104, 105, 107, 112, 113; 2 Jarm. Beav. 112; and Pope v. Whitcombe, 
 
 Wills, 2nd ed. 97, 98, 100, 101 ; as there corrected, and not as re- 
 
 Tiffin V. Longman, 15 Beav. 275 ; 2 ported 3 Meriv. 689 ; Salusbury v. 
 
 Sugd. Pow. 237. Denton, 3 K. & J. 529, 536. 
 
 if) 1 Rop. Leg. by White, 107, (h) 1 Rop. Leg. by White, 141 ; 
 
 108, 110. see supra, n. {g).
 
 1014 OF DEVISEES AND LEGATEES. 
 
 Pt 
 Ch 
 
 "/"s's^' oi'^^iii^iy Iflngnage are his family ; as, for instance, the next 
 ~ of kin of his daugliter, where he had an only daughter (i). 
 The expression next of kin, uncontrolled by any other 
 expression, does not mean " those persons who in case of 
 intestacy would be entitled under the Statute of Distribu- 
 tions," but it means those persons (without any distinction 
 between the whole and the half blood) who are nearest in 
 degree of personal propinquity. And therefore, on the 
 one hand, it excludes the children of the deceased brother 
 or sister, where there is a brother or sister living ; and on 
 the other hand, it includes the parents as well as the 
 children of the person named, as being all related to him in 
 the first degree, or the brothers as well as the grand- 
 children of such person, as being all related in the second 
 degree (/). 
 
 A widow, as such, cannot take under a limitation to the 
 next of kin of her husband according to the Statute of 
 Distributions (k). And the husband is not a person en- 
 titled under that statute to the personal estate of his 
 deceased wife ; for his right is independent of any statute : 
 and therefore under a bequest " in trust for the person or 
 persons who would at the time of the decease of a daughter 
 or daughters, or of the decease or failure of her or their 
 children respectively (whichever event should last happen), 
 be entitled, as next of kin or otherwise, to the personal 
 estate of such daughter or daughters respectively under 
 the statutes made for the distribution of intestates' effects," 
 the husbands of the daughters are not entitled (/). 
 
 (i) Clapton v. Buhner, 10 Sim. (k) 2 Jarui. Wills, 2nd ed. 86 ; 
 
 426 ; 5 My. & Cr. 108. Cholmondeley v. Lord Ashburton, 6 
 
 (j) Withey V. Mangles, 4 Beav. Bear. 86. 
 
 358 ; 10 CI. & F. 215 ; 2 Jarm. {I) 2 Jarm. Wills, 2nd ed. 86, 
 
 Wills, 2nd ed. 84—6, 100 ; Cooper v. 100 ; Milne v. Gilbart, 2 D. M. & G. 
 
 Denison, 13 Sim. 290 ; Elmsley v. 715 ; 5 D. M. & G. 510. See supra, 
 
 Youfig, 2 My. & K. 82, 780 ; Avison p. 527—530. 
 V, Simpson, 1 Johns. 43.
 
 OF DEVISEES AND LEGATEES. 1015 
 
 Where a bequest is made to such of the testator's next pt.iii.t.is, 
 
 ^ _ _ Ch. 1, s. G. 
 
 of kin as would by virtue of the Statute of Distributions 
 
 have been entitled in case of his intestacy, or to such 
 persons as sliould be his next of kin " under or according 
 to the statute/' the reference to the statute points out not 
 only the class but also the manner in which they are to 
 take ; so that the class take as tenants in common and not 
 as joint tenants (?n). 
 
 A legacy to a person Avho is an executor, though given Executors, 
 to him by name, is (in the absence of any indication of 
 bounty towards him, irrespective of that office), prima 
 facie given to him as executor, and as a remuneration or 
 acknowledgment for his trouble ; and if he does not prove 
 tlie will, he will not be entitled to his legacy (n), even 
 though he may have been physically incapable of so 
 doing (o). And when bequests are made to individuals in Trustees. 
 the character of trustees, and not as marks of personal 
 regard only, the legacies are held to be given upon an 
 implied condition that such persons clothe themselves with 
 that character (jj). 
 
 The ordinary lecjal meanincy of each of the terms Representa- 
 
 . ^ ^ tives. 
 
 " representatives," " legal representatives," and " personal 
 representatives," as well as the term " legal personal 
 representatives," when used with respect to personalty, is 
 not children or next of kin, but executors and administra- 
 tors. And that is the sense in which the testator must be 
 considered to have used these terms, unless the will affords 
 evidence sufficient to satisfy the Court that he intended 
 to use them in a different sense (q), as where they are 
 
 (m) Downes v. Bullock, 25 Beav. (o) 1 Rop. Leg. by White, 777, 
 
 54 ; Bullock v. Doivnes, 9 H. L. C. 780 ; Banbury v. Spooner, 5 Beav, 
 
 1 ; In re Ranking's Settlement Trusts, 630 ; Re Haiokin's Trusts, 33 Beav. 
 
 L. R. 6 Eq. 601. 570 ; Slaney v. Watne^J, L. R. 2 Eq. 
 
 (w) 1 Rop. Leg. by White, 780 ; 418. 
 
 Calvert v. Sebhon, 4 Beav. 222 ; Re (p) 1 Rop. Leg. by White, 777. 
 
 Deiiby, 3 D. F. & J. 350. (q) 2 Jarm. Wills, 2ml ed. 91 ;
 
 1016 OF DEVISEES AND LEGATEES. 
 
 pt. iii.t.15, connected with the Statute of Distributions (r), or where 
 
 Ch. 1, s. 6. . , ^ ^ 
 the words " per stii^pes and not per capita," are added (s), 
 
 or where the word " next " is prefixed to the words " legal 
 representatives " (t) or " personal representatives " (u) ; or 
 where the words " sliare and share alike " are added to 
 those words (x) ; or where the testator frequently uses the 
 very words " executors and administrators " in other pas- 
 sages, Avhere he intended to designate them (y) ; or where 
 the legacy or gift is immediate, as to A. or his representa- 
 tives (z) ; and not after a previous life estate (a). Under 
 an ultimate limitation to the " next legal representatives " 
 of a person, the property does not pass to his executors or 
 administrators, either beneficially or otherwise, but to the 
 person or persons who, in case of intestacy, would, under 
 the Statute of Distributions, in right of consanguinity, 
 take his personal estate beneficially, whether such person 
 or persons be next by personal proximity of relationship or 
 next by representation (b). The words " to or amongst 
 such person or persons as would be the personal represen- 
 
 Eilner V. Leach, lOBeav. 362; (t) Booth y. Vicars,! Co\\. 6. 
 
 Smith V. Barneby, 2 Coll. 728 ; (w) Stockdale v. Sichohon, L. R. 
 
 Minter v. Wraith, 13 Sim. 52 ; 1 4 Eq. Cas. 359. 
 
 Rop. Leg. by White, 124, 128 ; In {x) Smith v. Palmer, 7 Hare, 225 ; 
 
 re Crawford's Trusts, 2 Drew. 237, Kinc/ v. Cleaveland, 26 Beav. 26 ; 4 
 
 239 ; Saberton v. Skcels, Taml. 383 ; D. & J. 477. But see Chapman v. 
 
 1 R. & M. 587 ; Atherton v. Crmv- Chapman, 33 Beav. 556. 
 
 «Aer, 19 Beav. 448 ; Re Henderson, (y) Walker y. Marquis of Camden, 
 
 28 Beav. 656 ; Chapman v. CJmp- 16 Sim. 329 ; King v. Cleaveland, 
 
 man, 33 Beav. 556 ; He Turner, 2 26 Beav. 26 ; 4 D. & J. 477, 488. 
 
 Dr. & Sm. 501 ; Jle Wyndham's But see Hinchliffe v. Westwood, 2 
 
 Trusts, L. R. 1 Eq. Cas. 290 ; Alger De G. & S. 216. 
 
 T. Parrott, 3 Eq. 328. In Dixon v. (2) Bridge v. Ahhott, 2 Bro. C. C. 
 
 Dixon, 24 Beav. 129, the same con- 224 ; Cotton v. Cotton, 2 Beav. 67. 
 
 struction was adopted in the case of (a) Judgment of V.-C. Kinders- 
 
 a residue of real and personal estate. ley. In re Crawford's Trusts, 2 
 
 (r) IIoUowayY. RadcUffe, 23 Beav. Drew. 240—3. 
 
 163. (h) Booth V. Vicars, 1 Coll. 6. 
 
 is) Atherton v. Croivther, 19 Beav. See also Smith v. Palmer, 7 Hare, 
 
 448. 225.
 
 OF DEVISEES AND LEGATEES. 1017 
 
 tatives," are inapplicable to executors or administrators, pt. iii.t.is, 
 
 ' ^^ ' On. 1, s. 6. 
 
 and denote next of kin (c). The full expression commonly 
 
 employed, and the most unequivocal expression to desig- 
 nate executors or administrators, is "legal personal repre- 
 sentatives." But the words "legal" and " personal" are 
 not essential to the designation when applied to personal 
 property. The word " legal," when added to representa- 
 tives, only means the representatives recognised by law ; 
 and the word "personal," when added to representatives, 
 only denotes the representatives in respect of personal pro- 
 perty (rZ). 
 
 VIII. Testamentary Gifts to other Ohjeets. 
 The circumstance of a solicitor preparing for a client a Gifts to the 
 
 . . solicitor of 
 
 will containing dispositions in favour of the solicitor, does tiie testator. 
 not of itself take away the right of the solicitor to be a de- 
 visee or legatee for his own benefit (c). 
 
 A bequest to a parish church is a gift to the church- oirts to the 
 
 , ,.,.,. , parish or 
 
 wardens ol the parish named, to be applied in adorning and pa.ish 
 
 ^ ' ri o church. 
 
 repairing the church, and not to the parson. A bequest to 
 " the parish," without saying to what use, has been con- 
 strued a bequest to the poor of the parish (/). 
 
 An undischarged bankrupt may be a legatee, but the Gift to a 
 
 . . . banlirupt. 
 
 beneficial interest will belong to Ins assignees in trust for 
 his creditors (g). 
 
 A bequest of a year's wages to each of the testator's Gifts to 
 
 servants. 
 
 servants, over and above what may be due to them at the 
 time of his decease, applies to such family servants only as 
 
 (c) Baines v. Ottey, 1 My. & K. M. & G. 301 ; Walker v. Smith, 29 
 
 465 ; In re GrylW Trusts, L. R. 6 Beav. 394. 
 Eq. 589. (/) 2 Eop. Leg. by Wliite, 1495. 
 
 {d) In re Crawford's Trusts, 2 As to charitable bequests, see supra, 
 
 Drew. 235. pp. 285, ct seq. 
 
 (c) Hindson v. Wcatherill, 5 D. (g) 1 Rop. Leg. by Wliite, 20.
 
 1018 
 
 OF DEVISEES AND LEGATEES. 
 
 ■^ch^Y'J'6*' ^^'^ usually hired by the year, and not to an under-gar- 
 dener, who, though he had worked for the testator for some 
 years, had received weekly wages, and had not resided in 
 the house (h). And where a testator gives to each person, 
 as a servant in his domestic establishment at the time of 
 his decease, a year's wages, beyond what may be due for 
 wages, a head-gardener who lives in one of the testator's 
 cottages, and was not boarded by the testator, is not en- 
 titled to a year's wages. The expression " servant in my 
 domestic establishment," in such a case, denotes an indoor 
 servant (i). 
 
 I 
 
 Section VII. 
 
 Of Implied Devises and Bequests. 
 
 ^ch^"T'7^' -^^ many cases a devise or bequest may be made by 
 plain implication as well as by express words {j). And by 
 plain implication is meant, not merely a possible or pro- 
 bable intention, but so strong a probability of intention 
 that an mtention contrary to that which is imputed to the 
 testator cannot be supposed (h). For example, in cases 
 where a fund has been given upon trust for a person until 
 the age of twenty-one or marriage, without any further be- 
 quest, or wdiere a fund or a provision or partial interest out 
 of a fund has been given to a person until he attain twenty- 
 one or marry, with a limitation over if that event should 
 not happen, but with no further bequest in case the event 
 should happen, a bequest on that event has been implied. 
 
 {h) 11 Jarm. & Byth by Sweet, 359. 
 
 505 ; Booth v. Dean, 1 My. & K. ( j) In re Blake's Trust, L. R. 3 
 
 560 ; Blackwell v. Pennant, 9 Hare, Eq. 799. 
 
 551. {k) 6 Cruise T. 3S, c. 10, § 18 ; 1 
 
 -(I) Ogle V. Morgan, 1 D. M. & G. Hop. Leg. by White, 1439.
 
 OF IMPLIED DEVISES AND BEQUESTS. 1019 
 
 And so, where a fund is directed to be paid to an indi- -Pt. hi.t. is, 
 
 '- Cn. 1, s. 7. 
 
 vidual, for the purpose of making a partial application for 
 
 the benefit of a tliird person, and there is no express gift 
 of the surphis, the legatee takes the fund absolutely, subject 
 to the trust for the partial purpose specified (/). But the 
 application of the doctrine of implied gifts is often very 
 difficult ; for there are cases in which the Courts have re- 
 fused to hold that a gift was implied, where there appeared 
 to be strong grounds for such a construction. Thus it has 
 been held that wdiere a bequest, even though it be a resi- 
 duary bequest, is made to a person, but if he should die in 
 the lifetime of the testator without leaving children, then 
 to another person, such children take nothing by implica- 
 tion (»t). And where an estate is devised to a person (who 
 is not the heir at law of the devisor) after the death of the 
 devisor's wife, the wife does not take an estate for life by 
 implication, because the testator may have intended that 
 the estate should descend to his heir at law until the death 
 of his wife (n). But where a man devised his goods to his 
 wife, and that after her decease his son and heir should 
 have a certain house, it was determined that this was a 
 good devise of the house to the wife for life by implication ; 
 for by the express words of the will the heir was not to 
 take it till after the death of the wife ; so that if she did 
 not take it, no one else could (o). 
 
 (I) See 2 Rop. Leg. by White, also Neighbour v. Thurlow, 28 Beav. 
 
 1439—1450. 33. 
 
 {m) Addison v. Bnsl; 14 Beav. {n) 6 Cruise T. 38, c. 10, § 20. 
 
 459 ; 2 D. M. & G. 810. See also (o) 6 Cruise T. 38, c. 10, § 19. 
 Sparks v. liestall, 24 Beav. 218 ; see
 
 1020 
 
 KEVOCATION UNDEll THE OLD LAW. 
 
 Pt. III.T.15, 
 Ch. 1, s. 8. 
 
 Will cannot 
 be made 
 irrevocable. 
 
 Enactments 
 of the 
 Statute of 
 Fiauds as to 
 revocation. 
 
 Section VIII. 
 
 Of the Revocation of Devises and Bequests. 
 
 I. Bevocatmi imder tlic Old Law. 
 
 Although a person shouhl declare his will to be irrevo- 
 cable in the strongest terms, yet he may revoke it, because 
 his own acts or words cannot alter the disposition of the 
 law, so as to make that irrevocable which in its own nature 
 is revocable {;p). 
 
 By s. 6 of the Statute of Frauds, 29 Car. 2, c. 3, it is 
 enacted, " that no devise in writing of lands, tenements, or 
 hereditaments, nor any clause thereof, shall be revocable 
 otherwise than by some other will or codicil in writing, or 
 other writing declaring the same, or by burning, cancelling, 
 tearing, or obliterating the same by the testator himself, or 
 in his presence and by his directions and consent ; but all 
 devises and bequests of lands and tenements shall remain 
 and continue in force until the same be burnt, cancelled, 
 torn, or obliterated by the testator or his directions, in 
 the manner aforesaid, or unless the same be altered by 
 some other will or codicil in writing or other writing of the 
 devisor signed in the presence of three or four witnesses, 
 declaring the same ; any former law or usage to the con- 
 trary notwithstanding " {cj). 
 
 By s. 22 of the same statute, it is provided that no will 
 in writing concerning any goods or chattels or personal 
 estate, shall be repealed, nor shall any clause, devise, or 
 bequest therein be alteied or changed by any words, or 
 will by word of mouth only, except the same be in the 
 life of the testator committed to \vriting, and after the 
 writing thereof read unto the testator, and allowed by 
 
 (/>) 6 Cruise T. 38, c. 6. § 1. 
 
 (q) Burton, § 261.
 
 REVOCATION UNDER THE OLD LAW. 1021 
 
 him, and proved to be so done by three witnesses at the pt. iii.t.is, 
 
 ^ ' Cu. 1, 8. 8. 
 
 least (r). 
 
 I. Under this statute there are four exi)ress modes of re- i- Express 
 
 *- revou'itiona 
 
 voking a will of real estate. 1. The first mode is by a stl^'',','te'j,f 
 subsequent will duly attested accordinfr to the statute (s). ^''''•"''^• 
 
 J- ^ ® ^ ^ Revocation 
 
 A subsequent will operates as a revocation of a former one ''^j^J';^'^^if" 
 in all cases where it contains an express clause revolting all 
 former wills, or where it makes a different and incompatible 
 disposition. The intention of a testator to revoke his will 
 is the circumstance which constitutes the revocation ; and 
 when that has appeared in a subsequent will, it is sufficient, 
 though such subsequent will should not take effect from 
 any disability of the devisee, or from being lost. Wliere a 
 second will lias not a clause of revocation of all former wills, 
 and does not make any disposition inconsistent with a 
 former will, it does not operate as a revocation of such 
 former will, but both remain in force (t). If a subsequent 
 testamentary paper is only partly inconsistent with one of 
 an earlier date, the earlier instrument is only revoked as to 
 those parts where it is inconsistent, and both of the papers 
 are entitled to probate (?^). Where a testator has made a 
 second will different from the first, but it is not known in 
 what that dift'erence consisted, such second Mill does not 
 revoke the former one (x). Where there is a duplicate of 
 a will, and the testator cancels or makes an obliteration in 
 the manuscript which is in his own possession, this gene- 
 rally operates as a revocation of or obliteration in the 
 other ; for it may not be in the testator's power to get pos- 
 session of the other manuscript (;j/). 
 
 (»■) 1 Jarm. Wills, 2iid ed. 35, (m) Lemaje v. Goodhan, L. R. 1 
 
 140. Prob. 57. 
 
 (s) 6 Cruise T. 38, c. 6, § 3. (x) 6 Cruise T. 38, c. 6, § 13 ; 1 
 
 {t) G Cruise T. 38, c. 6, § 4, 5, 9 ; Jarm. Wills, 2nd ed. 143. 
 
 1 Jarm. Wills, 2nd ed. 143, 145; {y) 6 Cruise T. 38, c. 6, § 39 ; 1 
 
 Johnson v. Lyford, L. E. 1 Prob. Jarm. Wills, 2nd ed. 115,116. 
 546.
 
 1022 KE VOCATION UNDER THE OLD LAAV. 
 
 I'T. III.T.15, 2. The second mode of revocation ia by a codicil duly 
 r \ — executed according to the Statute of Frauds, and contain- 
 
 Kevoc-atiou " 
 
 by a codicil, jj^g express words of revocation, or making a different 
 disposition from that contained in the will (z). The dis- 
 positions contained in a will are not affected farther than 
 is absolutely necessary in order to give effect to those 
 which are contained in a codicil. If a disposition in a 
 will is clear, it is incumbent on those who contend it is 
 not to take effect by reason of a revocation in a codicil, to 
 show that the intention to revoke is equally clear and free 
 from doubt as the original intention to make such a dis- 
 position (a). Therefore a devise by will to the children 
 of A. was held not to be revoked by parenthetical expres- 
 sions in a codicil, that they were not intended to take any 
 beneficial interest under the will or codicil, as it might 
 refer only to the testator's view of the effect of his will, or 
 to an intention of future revocation (&). And where A. 
 devised the remainder in fee in her lands to her grand- 
 daughter, and by a codicil, Avhich she directed to be 
 annexed to and taken as part of her will, reciting her 
 subsequent acquisition of other lands, and that she in- 
 tended to dispose of all her estates for the benefit of her 
 grand-dauc^hter " for her life, with such limitation and in 
 such manner " as thereafter expressed, " instead of the 
 devise contained in her will," she thereby devised her 
 estates in trust for her grand-daughter for life, and then 
 for her children who should sur\T.ve her in fee, or if no 
 children, for her brotliers and sisters who should survive 
 her in fee, but without limiting the estates over in case 
 of the limitations to the children and the brothers and 
 
 (2) 6 Cruise T. 38, c. 6, § 18 ; Beav. 303 ; Ar/ncw v. P021C, 1 D. & 
 
 Tupper V. Tupper, 1 K. & J. 665. J. 49 ; Robertson v. Poxoell, 2 Hurl. 
 
 (a) 1 Jarm, Wills, 2nd ed. 146, & Colt. 762. Supra, 992. 
 151; Cleohury v. Beckett, 14 Beav. (b) Cleobury v. Beckett, 14 Beav. 
 
 586, 587 ; Butler v. Oreemvood, 22 583, 588.
 
 REVOCATION UNDER THE OLD LAW. 1023 
 
 sisters (whicli event happened) never taking effect ; there, ^^■J^l''^-\^' 
 
 as it was tlie manifest intention, both in the will and 
 
 codicil to make the grand-daughter the principal object of 
 the testatrix's bounty, it was held that the words, " instead 
 of/' &c., did not amount to a revocation, but meant " in- 
 stead of so much only of the devise " in the will as was 
 incompatible with the disposition contained in the codicil ; 
 so that the gift of the remainder in fee was unaltered by 
 the codicil (c), 
 
 3. The third mode of revoking a will which is men- Hevocation 
 
 ° ny a writing 
 
 tioned by the Statute of Frauds is, by a writino- declaring ^■s"^'^^' *° ^„^® 
 
 •^ ' J o o presence of 
 
 an intention of revoking such will, signed in the presence ne'ssL*''" 
 of three witnesses. And it is observable, that the Statute 
 of Frauds requires that in devises of lands, though not in 
 mere revocations, the three witnesses should subscribe the 
 will in the presence of the testator. While, on the other 
 hand, the clause relating to revocations requires that the 
 testator should sign in the presence of three witnesses, 
 which was not required in devises (rf). And it has been 
 held, that, although a will may be revoked by a written 
 declaration without being attested by three witnesses 
 subscribing the will in the testator's presence, yet that 
 a second will, thovigh containing a clause revoking all 
 former wills, shall not operate as a revocation of the first 
 will, unless it is executed in such a manner as to operate 
 as a devise (c). 
 
 4. The fourth mode of revoking a will which is men- Revocation 
 
 by burning, 
 
 tioned by the Statute of Frauds is, by burning, cancelling, canceiiiug, 
 
 ■^ ' J to' G' tearing, or 
 
 tearing, or obliterating the will, with the intent to revoke obliterating, 
 it (/). An obliteration or alteration of a part of a will 
 does not operate as a revocation of the whole will, but 
 
 (c) Doe cl. March v. Marchant, 6 (e) 6 Cruise T. 38, c. 6, § 19. 
 
 M. & Gr. 813. (/) 6 Cruise T. 38, c. 6, § 3, 25 
 
 {d) 6 Cruise T. 38, c. 6, § 19 ; 1 —27; 1 Jarm. Wills, 109, et seq. 
 Jami. Wills, 2nd. ed. 140—1.
 
 1024 
 
 REVOCATION UNDER THE OLD LAW. 
 
 Pt. III.T.15, 
 
 Ch. 1, s. 8. 
 
 II. Implied 
 revocations. 
 
 Revocation 
 by marriage 
 aiul birlli of 
 chUd. 
 
 Revrication 
 by uu aiii na- 
 tion or 
 
 diajjosition oi' 
 merger of the 
 estate. 
 
 only of the part obliterated, and the rest will remain 
 good {g). 
 
 II. Besides the different modes of revoking a will 
 allowed by the Statute of Frauds, there are certain 
 alterations in the situation of the testator or in the estate 
 devised which have been held to operate as implied revo- 
 cations of a devise (A). 
 
 Where a man made his will, and afterwards married and 
 had a child, these events generally operated as a revocation 
 of his will ; because they produced a complete change in 
 the situation and in the duties of the testator. But neither 
 of those circumstances singly (as a subsequent marriage, or 
 the subsequent birth of a child) had that effect {i). But 
 the will of a female was always revoked by her marriage, 
 on the ground that it would otherwise by her own act 
 become irrevocable, which is contrary to the nature of 
 the instrument, though it may become so by the act 
 of Grod, as by insanity supervening and continuing till 
 death {j). 
 
 An actual alienation or disposition of an estate, whether 
 legal or equitable, after a devise, generally operated as a 
 revocation; for in such cases the alienation was deemed 
 undoubted evidence of an alteration of intention, and in 
 some of these cases the devisor did not die seised {h). 
 
 Even an agreement or covenant to convey lands which 
 have been previously devised by will, whether in execution 
 of a power or not, operates in equity, though not at law. 
 
 ig) 6 Cruise T. 38, c. 6, § 34 ; 1 
 Jarm. Wills. 2nd ed. 112. 
 
 (/i) 6 Cruise T. 38, c. 6, § 40 ; 
 Burton, § 267. 
 
 (?•) 6 Cruise T. 38, c. 6, § 41, 44 
 — 50 ; Burton, § 269 ; 1 Jarm. Wills, 
 2nd ed. 102 — 108 ; Marston v. Roe 
 d. Fox, 8 Ad. & E. 14 ; 2 N. & P. 
 .504 ; Israeli v. Rodon, 2 Moore's 
 
 P. C. C. 51 ; In the goods of Thos. 
 CadywoU, 1 Swa. & T. 34. 
 
 (j) Burton, § 270 ; 6 Cruise T. 
 38, c. C, § 53 ; 2 Bl. Com. 498 ; 1 
 Jarm. Wills, 2nd ed. 102. 
 
 (/.■) 6 Cruise T. 38, c. 6, § 55 ; 1 
 Jarm. Wills, 2nd ed. 122, 124 ; Grant 
 V. Bridgcr, 3 Eq. Cas. 347.
 
 KEVOCATION UNDEK THE OLD LAW. 1025 
 
 as a revocation or ademptioii of sucli devise, as well in ^'^J^JJ-g^* 
 
 cases before the stat. 1 Vict. c. 26, as in cases within it (/) ; 
 
 and thedevisee is not entitled to the purchase money ()n), 
 even though the contract were entered into under the 
 compulsory powers of a railway company (n) ; or though 
 the conversion be at the option of the person with whom 
 the agreement \vas ejitered into, and it be not exercised till 
 after the death of the testator (o). In cases where the will 
 is revoked in equity, but not at law, the legal estate passes 
 by the will to the devisee, but the Court of Chancery will 
 compel him to convey it to the person entitled under the 
 equitable agreement. 
 
 Even an intended alienation of an estate previously 
 devised, which failed of taking effect for want of some 
 formality, has been held to operate as a revocation of the 
 devise. Thus a feoffment without livery and a bargain and 
 sale not enrolled have been held to be revocations of prior 
 devises ; because such intended alienations were considered 
 as proofs of an alteration of intention ( jj). 
 
 An alienation to a trustee, or conveyance to a cestui que 
 use, without any intention of parting with the estate, and 
 though the alienor took back the old use, has been held to 
 operate as a revocation of a prior devise (q). 
 
 Where a person who had devised his lands, afterwards 
 levied a fine or suffered a recovery of them, these acts 
 operated as a revocation of the devise (r). 
 
 Parol evidence is not admissible to prove that the 
 
 (l) 6 Cruise T. 38, c. 6, § 58 ; 2 (o) Weeding v. WeecUnrj, 1 Johns. 
 
 Sugcl. Pow. 10 ; Sugd. Concise View, & Hem. 424. 
 
 L31, 132 ; 1 Jarm. Wills, 2nd ed. (j4 6 Cruise T. 38, c. 6, § 62, 63 ; 
 
 135 ; Andrew v. Andrew, 3 Sm. & 1 Jarm. Wills, 2nd ed. 137—139. 
 
 G. 130. iq) 6 Cruise T. 38, c. 6, § 65 ; 
 
 (m) 11 Jarm. & Bytli. by Sweet, Burton, § 267 ; 1 Jarm. Wills, 2nd 
 
 794. ed. 124. 
 
 (m) Re Manchester and SouthpoH (r) 6 Cruise T. 38, c. 6, § 72 ; 
 
 Railway Comp., 19 Beav. 365 ; Gale 1 Jarm. Wills, 2nd ed. 125. 
 V. Gale, 21 Beav. 349.
 
 1026 REVOCATION UNDER THE OLD LAW. 
 
 pt. III.T.15, testator meant that his will should remain in force and 
 
 C'n. 1, s. 8. 
 
 unrevoked by the subsequent conveyance (s). 
 
 A conveyance of property contracted to be purchased, if 
 made to the usual uses to bar dower, revoked a devise of 
 the property by the purchaser, if there was no special 
 contract that the property should be conveyed to the 
 usual uses to bar dower, and if the devise referred 
 exclusively to the estate which the testator then had, and 
 did not also refer to an estate or interest which he might 
 have at a future time ; because, at the date of his will, 
 he was equitable owner in fee under the contract, and by 
 the conveyance he acquired a legal estate of a different 
 character to his former equitable estate, which was the 
 subject of the devise (t). And in such case the testator's 
 heir, if entitled to benefits under his will, is not bound 
 to elect between those benefits and the property so 
 conveyed (v). 
 
 Where a man has an equitable interest in fee in an 
 estate, and afterwards takes a conveyance of the legal 
 estate to the same uses, this is no revocation (x). And 
 so, where a person devises a copyhold estate, and is after- 
 wards admitted to it, this does not operate as a revocation 
 of the devise (?/). And the mere change of a trustee does 
 not operate as a revocation of a preceding devise (z). Nor 
 does a partition of an estate between tenants in common 
 operate as a revocation of a prior devise made by one of 
 the tenants of his share, even though such a partition be 
 corroborated by a fine (a). 
 
 (s) 6 Cruise T. 38, c. 6, § 83. Jarm. Wills, 2nd ed. 129 ; BulUn v. 
 
 (<) 1 Jarm. Wills, 2nd ed. 130 ; Fletcher, 2 My. & Cr. 432. 
 
 Phwden v. Hyde, 2 Sim. (N.S.), 171 ; (y) Q Cruise T. 38, c. 6, § 92. 
 
 2 D. M. & G. 684 ; Bvllin v. Flet- {z) 6 Cruise T. 38, c. 6, § 94 ; 1 
 
 cher, 2 My. & Cr. 432. Jarm. Wills, 2nd ed. 129. 
 
 {u) Plowden v. Hyde, 2 Sim. (a) 6 Cruise T. 38, c. 6, § 97 ; 6 
 
 (N.S.), 171. Jarm. & Hyth. by Sweet, 596 ; 1 
 
 {x) 6 Cruise T. 38, c. fi, g 90 ; 1 Jarm. Wills, 2nd ed. 125.
 
 REVOCATION UNDER THE OLD LAW. 1027 
 
 "Where a person has an estate pur autre vie at the time ^^•'^j^-^-g^- 
 
 of making his will, and afterwards purchases the in- 
 
 heritance, it is a revocation of any devise of the estate pur 
 autre vie {h). 
 
 Although a mere mortgage in fee made after the lands 
 mortgaged were devised is a revocation of such devise at 
 law, }'et in equity it only has the effect of making the 
 devisee take subject to the mortgage as against the mort- 
 gagee, and in cases within the stat. 17 Vict. c. 113, as against 
 the testator's representatives (c). But if lands are devised 
 to a person in fee, and the testator afterwards mortgages 
 them to the devisee, it will be a revocation in toto, being 
 inconsistent with the devise (d). 
 
 Where the owner of an estate limited to the usual uses 
 to bar dower mortgaged it in fee, and then devised the 
 estate, and subsequently took a reconveyance from the 
 mortgagee to the same uses to which it stood limited 
 before the mortgage, and died before the Wills'Act came 
 into operation, the will was not revoked by the recon- 
 veyance, though, by the proviso for redemption, the estate 
 was to be reconveyed to the mortgagor, his heirs, ap- 
 pointees, or assigns, or to such other person or persons, to 
 such uses, and in • such manner as he or they should 
 direct; the Lords Justices, Sir J. L. Knight Bruce, and 
 Lord Cranworth (contrary to the decision of the Court 
 below) (c), considering that, notwithstanding the form of 
 the proviso for redemption, the mortgage deed, being 
 executed simply for the purpose of creating a charge, did 
 not affect the estate of the mortgagor any further than by 
 rendering that an equitable estate which was before a 
 legal estate ; and it being clear that the mere bringing 
 back the legal estate to the equitable estate by the recon- 
 
 (6) 6 Cruise T. 38, c. 6, § 113. Jarm. Wills, 2iid ed. 125-7. 
 
 (c) See supra, p. 518. (e) 2 Sim. (N. S.) 171. 
 
 (d) 6 Cruise T. 38, c. 6, § 106 ; 1
 
 1028 REVOCATION UNDER THE OLD LAW. 
 
 ''ch^"'!''^^' "^^yance could not operate as a revocation, if the equitable 
 
 estate existing after tlie mortgage was of a similar kind to 
 
 the legal estate which existed before the mortgage and was 
 brought back by the reconveyance (/). 
 
 A conveyance, to have the effect of a total revocation of 
 a prior devise, must be co-extensive with the disposition 
 made by the will. For if it is only of a part of the pro- 
 perty, it affects the will no farther than concerns that 
 part. And if it is of a particular estate or interest only, 
 it only operates as a revocation pro tanto. Hence a lease 
 made of lands already devised only operates as a partial 
 revocation or a revocation pro tanto in such a way that 
 the devisee takes the inheritance subject to the term, with 
 the rent, if any, reserved by the lease {g). 
 
 A conveyance in fee to trustees merely for raising 
 money to pay debts, will only operate as a revocation pro 
 tanto of a prior devise, so far as relates to the payment of 
 the debts, but no further (Ji). But where a person, after 
 having made his will, executed a conveyance in trust for 
 payment of debts in a schedule, and instead of declaring 
 the uses to himself in fee after payment of the debts, he 
 declared that the trustees should convey to such uses and 
 purposes as he by deed or will should appoint, and for 
 default of appointment to himself in fee, this was held to 
 be a revocation (*). 
 
 A surrender of a lease for lives and the taking a new 
 lease was held to operate as a revocation of a prior devise 
 
 ofit(y). 
 
 And where a testator bequeathed a term for years, and 
 afterwards surrendered it and took a new term, it was 
 held that this operated as a revocation or ademption of the 
 
 (/) Plowden V. Hyde, 2 D. & M. {h) 6 Cruise T. 38, c. 6, § 107 ; 1 
 
 G. 684. Jarm. Wills, 2nd ed. 126. 
 
 {g) 6 Cruise T. 38, c. 6, § 104 ; 1 (0 6 Cruise T. 38, c. 6, § 109. 
 
 Jarm. Wills, 2nd ed. 122. U) 6 Cruise T. 38, c. 6, § 111.
 
 REVOCATION UNDER THE OLD LAW. 1029 
 
 bequest. If however the words of the will show the testa- ''^•J^P^-^g^- 
 
 tor's intention to dispose of all terms for years whereof he 
 
 might die possessed, a renewed term would pass ; for a 
 term of years being only a chattel, there was no necessity 
 for a possession at the date of the will, or of a conthniance 
 of such possession till the testator's death (k). 
 
 A devise is revoked by a bankruptcy, so far only as may Revocation 
 be necessary for the purpose of paying the creditors (/). '^'^P^'^y- 
 
 The republication of a former will revoked one of later Revocation 
 
 i by republi- 
 
 cation of a 
 former «ill. 
 
 date, and established the first again (m). ^''*^°" °^^ 
 
 II. The Law as to Bevocation hy the Stat. 1 Vict. c. 26. 
 
 Bv s. 18, " every will made bv a man or woman shall be wiiitobe 
 
 -^ ' '^ ^ J ^ ^ revoked by 
 
 revoked by his or her marriage (except a Avill made in mainage. 
 exercise of a power of appointment, when the real or per- 
 sonal estate thereby appointed would not, in default of 
 such appointment, pass to his or her heir, customary heir, 
 executor, or administrator, or the person entitled as his or 
 her next of kin, under the Statute of Distributions) " {;)i). 
 
 Bv s. 19, "no will shall be revoked by any presumption No win to 
 
 J ' . . be revoked 
 
 of an intention on the ground of an alteration in circum- J'j^J"''^*"'^''' 
 stances." 
 
 By s. 20, " no will or codicil, or any part thereof, shall ,^3°^.^"^^°} 
 be revoked otherwise than as aforesaid, or by another wiU a^'^t'^er wui 
 or codicil executed in manner hereinbefore required, or by or by a" ' 
 some writing declaring an intention to revoke the same, execut'ed 
 
 like a will, 
 
 and executed in the manner in which a will is hereinbefore "iby 
 
 destruction. 
 
 required to be executed, or by the burning, tearing, or 
 otherwise destroying the same by the testator, or by some 
 person in his presence and by liis direction, with the inten- 
 tion of revoking the same." 
 
 % 6 Cruise T. 38, c. 6, § 114, 116. (wi) 2 Bl. Com. 502. 
 
 {I) See 6 Cruise T. 38, c. 6, § 110 ; (w) In the goods of Fenwick, L. R. 
 
 1 Jarm. Wills, 2nd ed. 127. 1 Prob. 319. 
 
 F F 2
 
 1030 
 
 REVOCATION UNDER THE STAT. 1 VICT, C, 26. 
 
 pt iii.t. n 
 
 Cii. I, s. 8. 
 
 A devise 
 not to be 
 rendered 
 iiiO])(irative 
 
 1-iy ;iiiy 
 
 subsequent 
 conveyance 
 or act, 
 except, (fee. 
 
 By s. 23, "no conveyance or other act made or done 
 subsequently to the execution of a will of or relating to 
 any real or personal estate therein comprised, except an 
 act l)y which such will shall he revoked as aforesaid, shall 
 prevent the operation of the will with respect to such 
 estate or interest in such real or personal estate as the 
 testator shall have power to dispose of by will at the time 
 of his death." 
 
 This section does not apply to conveyances or contracts 
 whereby the testator has entirely and effectually parted 
 with the property, at law or in equity (o). 
 
 I 
 
 PT.in.T.15, 
 
 Ch. 1, s. 9. 
 General rule. 
 
 Section IX. 
 
 Of the Lapse of Devises and Bccfmsts. 
 
 With the exceptions noticed below, a devise or bequest 
 lapses, that is, fails, by the death of the devisee or legatee 
 in the lifetime of the testator ( jj). And though the devise 
 be to a person and his hehs, yet if he die before the tes- 
 tator, his heirs will not take the land ; because the 
 mention of the heirs only denotes what estate he himself 
 should take, viz., a fee simple, if he were living at the time 
 when the will must take effect (q). And so, although a 
 legacy be given to a person, his executors or administra- 
 tors or personal representatives, it will lapse by his death 
 before the testator ; because the additional words may 
 have been intended merely to denote the gift of the 
 absolute interest, or to express to the legatee, that if he 
 
 (o) See supra, p. 1024 ; Ford v. De 
 Pontes, 30 Beav. 572. 
 
 ip) 1 Eop. Leg. by White, 463 ; 
 Burtou, § 275 ; 1 Jarm. Wills, 2ad 
 
 ed. 277. 
 
 (q) Burton, § 275 ; 1 Jarm. Wills, 
 2ud ed. 277.
 
 OF THE LAPSE OF DEVISES AND BEQUESTS. 1031 
 
 should survive the testator and afterwards die before the ^;^-^\^'^-i^' 
 
 Ca. 1, s. 9. 
 
 legacy would be payable, his personal representatives 
 
 should receive it (?•). 
 
 Where the testator releases and forgives a certain sum fo'J'g-^e'Jf.^""' 
 owing on a bond, and directs the bond to be delivered up 
 to be cancelled, the will does not import a general release, 
 but the benefit of the release lapses by the death of the 
 legatee before the testator (s). 
 
 If a devise or bequest is made to two or more persons Distinctions 
 
 iu the case 
 
 as joint tenants, the share or shares of any one or more of of joiut 
 
 " ' ^ tenants aud 
 
 them who may happen to die before the testator, or whose common!" 
 interest may happen to be revoked by the testator, or may 
 be avoided by becoming an attesting witness or witnesses, 
 will not lapse, but will go to the other joint tenant or 
 tenants ; because each joint tenant takes per mie et per 
 tout (/). But in the case of the death of a tenant in 
 common before the testator, or of his interest being revoked, 
 his share will not pass to the survivor or survivors (;ii), 
 unless the devise or bequest is made to the tenants in 
 common as a class of indefinite number, and not nominatim 
 or in words denoting the precise number of the individuals 
 intended to take. Thus, if a devise or bequest is made to 
 " the children of A.," i.e., to B. C. D., and E., as tenants in 
 common, or " to the four children of A.," as tenants in 
 common, and one of them dies in the lifetime of the 
 testator, his share will not go to the survivors. But if a 
 devise or bequest is made "to the children of A.," as 
 tenants in common, and one of them dies, or the interest 
 of one of them is revoked, his share belongs to the other 
 
 (r) 1 Rop. Leg. by White, 467 — 8 ; 216 ; Young v. Davies, 2 Dr. & Sru. 
 
 IJarm. Wills, 2nd ed. 277— 8. 167; Drakeford v. Dralcford, 33 
 
 (s) 11 Jarm. & Byth. by Sweet, Beav. 43. 
 
 464. («) 1 Pres. Shep. T. 71 ; Burton, 
 
 (t) 1 Pres. Shep. T. 71 ; 1 Rop. § 277 ; 1 Rop. Leg. by White, 485 ; 
 
 Leg. by White, 482 ; Burton, § 276 ; 1 Jarm. Wills, 2nd ed. 279 ; 2 Id. 
 
 1 Jarm. Wills, 2nd ed. 274 ; 2 Id. 216.
 
 1032 
 
 OF THE LAPSE OF DEVISES AND BEQUESTS. 
 
 Pt.III.T. 16, 
 Ch.1, 8. 9. 
 
 Where 
 there is no 
 lapse of a 
 beneficial 
 interest or 
 charge, or 
 of a Slim 
 due to 
 creditors. 
 
 To whom 
 a lapsed 
 estate or 
 i nterest 
 will go. 
 
 or others ; because the devise or bequest is made to them 
 as a class and not as individuals (x). 
 
 Wliere a legacy is given to a trustee for another person, 
 and the trustee dies before the testator, the trustee's death 
 does not prejudice the cestui que trust. And so if real or 
 personal estate is devised or bequeathed to a person, 
 charged with a legacy to another, the death of the devisee 
 or legatee before the testator will not be allowed in equity 
 to prejudice the charge. And where a testator bequeaths 
 a sum to creditors in discharge of debts actually due, 
 although the legal remedy for their recovery may be gone, 
 if one of the creditors dies in the testator's lifetime, yet his 
 personal representatives will be entitled (y). 
 
 By the old law, where a devise of lands in fee simple 
 became lapsed by the death of the devisee in the lifetime 
 of the testator, the estate devised would not go to the 
 residuary devisee of the real estate, but descended to 
 the heir at law of the testator (z). But this is now 
 altered (a). 
 
 If an estate is devised, charged with legacies which 
 fail, the devisee shall have the benefit of them. And 
 where an estate is devised to a mere trustee, in trust to 
 sell and pay particular sums of money which lapse, and 
 no disposition is made of the extra produce, those lapsed 
 legacies will sink into the land for the benefit of the 
 heir (&). 
 
 When a bequest which is not residuary lapses, it falls 
 
 (x) See 1 Kop. Leg. by White, 
 485—489 ; 11 Jarm. & Byth. by 
 Sweet, 527 (a) ; Burton, § 278 ; 1 
 Jarm. Wills, 2nd ed. 279 ; 2 Id. 
 216 ; Leigh v. Leigh, 17 Beav. 605 ; 
 Cruse V. Nowell, 4 Drew. 21 5 ; Fitz 
 Roy V. Duke of Richmond (No. 1), 
 27 Beav. 186 ; iSe Stanhope's 7'rusls, 
 27 Beav. 201. But see Sanders v. 
 
 Ash ford, 28 Beav. 913. 
 
 {y) 1 Eop. Leg. by White, 474— 
 5 ; 1 Jarm. Wills, 2nd ed. 282. 
 
 (2) 6 Cruise T. 38, c. 8, § 35, 37 ; 
 Burton, § 279 ; 1 Jarm. Wills, 2nd 
 ed. 548. 
 
 ((() See infra, 1037. 
 
 (6) 1 Kop. Leg. by White, 499.
 
 OF THE LAPSE OF DEVISES AND BEQUESTS. 1033 
 
 into the general residue, and consequently belonsTS to the pt.iii.t.is, 
 
 residuary legatee (c). But if a residuary bequest or a share 
 
 of a residuary bequest lapses, it belongs to the testator's 
 next of kin (d). 
 
 By the stat. 1 Vict. c. 26, s. 82, "where any person to Devises of 
 
 •^ ' J L estates tail 
 
 whom any real estate shall be devised for an estate tail or ?'>^'^ i"' 
 
 ^ lapse. 
 
 an estate in quasi entail shall die in the lifetime of the 
 testator, leaving issue who would be inheritable under 
 such entail, and any such issue shall be living at the time 
 of the death of the testator, such devise shall not lapse, 
 but shall take effect as if the death of such person had 
 happened immediately after the death of the testator, 
 unless a contrary intention shall appear by the will." 
 And by s. 33, "where any person, beino- a child or other Gifts to 
 
 J ' J C > Q children 
 
 issue of the testator, to whom any real or personal estate P"" ^^^^l 
 
 ' <J ^ issue who 
 
 shall be devised or bequeathed for any estate or interest {i>k,V^*"® 
 not determinable at or before the death of such person, testatVs 
 shall die in the lifetime of the testator leaving issue, and not lapse'. 
 any such issue of such person shall be living at the time 
 of the death of the testator, such devise or bequest shall 
 not lapse, but shall take effect as if the death of such 
 person had happened immediately after the death of the 
 testator, unless a contrary intention shall appear by the 
 will." This section does not substitute, for the predeceased 
 devisee or legatee, the issue whose existence is the event 
 or condition which excludes the lapse, but renders the 
 subject of the gift the absolute property of the predeceased 
 devisee or legatee, and therefore disposable by his will, or 
 transmissible to his personal representatives in case of 
 intestacy, notwithstanding his death before the death of 
 the testator (<?). It applies to a testamentary appointment 
 
 (c) 1 Eop. Leg. by White, 496 ; (e) Johnson v. Johnson, 3 Hare, 
 
 Thompsons. \Vhitelock,'iT>.&,JAdO. 157; Eccles v. Cheijne, 2 K. & J. 
 
 {d) 1 Rop. Leg. by White, 498 ; 676 ; In the yoods of Jane Parker, 
 
 Lloyd V. Lloyd, 4 Beav. 231. 1 Swa. & Trist. 523.
 
 1034 OF THE LAPSE OF DEVISES AND BEQUESTS. 
 
 pt. iii.t.15, made in exercise of a general power, as well as to an 
 
 ordinary bequest (/). But as this section is expressly 
 
 addressed to cases where, but for its provisions, lapse 
 would ensue, it does not apply to devises or bequests to 
 the testator's children as a class {g). 
 
 Section X. 
 Of the Rcpiiblication of Wills. 
 
 Pt. iii.T. 15, By the old law, a republication of a will has a twofold 
 
 Ch 1 "^ 10 
 
 '"" — '- effect : first, in general, to give it the effect of a will made 
 
 repiibiica- at the time of its republication ; and, secondly, to set up 
 
 tiuu 
 
 and re-establish a will that has been revoked {Ji). 
 
 Kerubiica- The first mode of republishing a will is by re-execu- 
 
 tiun by 
 
 re execution. tlOn \l). 
 
 Repubiica- Anotlicr mode is by a codicil duly executed. This 
 co°diciL operates as a republication of the will, so as to make it 
 
 take effect from the time of the execution of the codicil. 
 And hence where a will, if read as speaking at the date 
 of the execution of a codicil, contains language which 
 would operate as an incorporation of an unattested docu- 
 ment to which it refers, such document, although not in 
 existence until after tlie execution of the will, is entitled 
 to probate, by force of the codicil (/). And hence, also 
 even by the old law, in the absence of indication to the 
 contrary, realty acquired after the execution of the will, 
 and before the execution of a codicil, passed by the will, 
 if it was specified, or if the description in the will was 
 
 (/) Eccles V. Cheyne, 2 K. & J. 38, c. 7, § 1. 
 
 676. (i) 6 Cruise T. 38, c. 7, § 2 ; 1 
 
 (g) Browne y . Ham'niond, 1 Johns. Jarm. Wills, 2nd ed. 159. 
 
 210 ; Olney v. Bates, 3 Drewry, 319. {j) In the goods of Lady Truro, 
 
 (h) Burton, § 271 ; G C'ruisc T. L. K. 1 Prob. 203.
 
 OF THE REPUBLICATION OF WILLS. 1035 
 
 sufficiently general to include it (Jc). And a codicil will ^cu^l^'^il' 
 have this effect, even though it relates to the testator's per- 
 soual estate only (/) ; or only appoints a new executor (?;?). 
 And where a testator, after having made a will before the 
 stat. 1 Vict. c. 26, has, since that Act came into operation, 
 executed a codicil, ratifying and confirming the will, though 
 it was apparently made only for the purpose of appointing 
 an additional trustee ; this amounts to a republication of 
 the will, so as to have the effect, by virtue of the stat. 1 
 Vict. c. 26, ss. 24, 34 (7t), of passing real estate purchased 
 by the testator after the date of the will, and even after 
 the date of the codicil (o). But where a codicil is expressly 
 confined to the lands devised by the will, it does not ope- 
 rate as a republication of such will, so as to make it pass 
 after-purchased lands (p). And although a codicil con- 
 firming a will makes the will for many purposes to bear 
 the date of the codicil, yet this is not the case where such 
 a construction would defeat the intention of the testator. 
 So that where a will contains a power of leasing at the 
 ancient accustomed rent, and a codicil is made for some 
 special purpose wholly unconnected with the power, a 
 lease made after the date of the will, but prior to the 
 codicil, will not be taken into account in deciding the 
 question what is the ancient accustomed rent {q). 
 
 Where a person made his will, and afterwards revoked Cancelling 
 
 second will. 
 
 (h) 6 Cruise T. 38, c. 7, § 3 ; (n) Supra, 978, 995. 
 
 Sugd. Concise View, 127 ; Burton, (o) Doe d. York v. Walker, 12 
 
 § 271 ; 1 Jarm. Wills, 2nd ed. 159, M. & W. 591 ; Lady Langdale v. 
 
 161, 164—5 ; Hughes v. Basking, Briggs, 3 Sm. & G. 246. 
 
 11 Moo. P. C. C. 1. (p) 6 Cruise T. 38, e. 7, § 12 ; 
 
 {I) Burton, § 274 ; Rugd. Concise Moneypenny v. Bristow, 2 Russ. & 
 
 View, 127 ; 1 Jarm. Wills, 2nd ed. M. 117 ; 1 Jarm. Wills, 2nd ed. 161, 
 
 159 ; Bickinsonv. Stedolph, 11 Com. 165. 
 
 B. (N.S.)341. (q) Doe d. Biddidph v. Hole, 15 
 
 (m) In re EarVs Trust, 4 K. & J. Q. B. 848; 1 Jarm. Wills, 2nd ed. 
 
 673. 161, 165.
 
 1036 
 
 OF THE llEPUBLICATION OF WILLS. 
 
 1 Vict. c. 26, 
 s. 22, as 
 to revival 
 of will. 
 
 >T.in.T.i5, it by makincr another will, but did not actually cancel the 
 
 Ch. 1,8. 10. JO I . 1 
 
 first will, the cancelling of the second will operated as a 
 
 republication of the first (r). 
 
 By the stat. 1 Vict. c. 26, s, 22, " no will or codicil, or 
 any part thereof, which shall be in any manner reyoked, 
 shall be revived otherwise than by the re-execution thereof, 
 or by a codicil executed in manner hereinbefore required, 
 and showing an intention to revive the same ; and when 
 any will or codicil which shall be partly revoked, and 
 afterwards wholly revoked, shall be revived, such revival 
 shall not extend to so much thereof as shall have been 
 revoked before the revocation of the whole thereof, unless 
 an intention to the contrary shall be shown." 
 
 It was held that under this section, where a subsequent 
 will contains a clause of revocation of a prior will, such 
 prior will is not revived merely by the destruction of the 
 subsequent will And parol evidence is admissible as to the 
 contents of the second will (s). 
 
 A will cannot now be revived by mere implication (t). 
 
 Destruc- 
 tion of a 
 subsequent 
 will which 
 revokes a 
 prior oue. 
 
 (r) 6 Cruise T. 38, c. 7, § 15. 
 (s) In the goods of Wm. Brown, 
 1 Swa. & Tr. 32. 
 
 (t) In the goods of Steele, L. R. 1 
 Prob. 575.
 
 1037 
 
 CHAPTER II. 
 
 OF DEVISES SEPARATELY CONSIDERED. 
 
 Section I. 
 Of Devises generally. 
 The proper and teclmical words of devise are " ftive and ^l- i"-t. is, 
 
 ^ ^ o Ch. 2, s. 1. 
 
 de^^se," but any other words which sufficiently show the ~ : — 
 
 •^ -^ Operative 
 
 intention of the testator to dispose of all or any part of his de°vise.°^ 
 real estate will be sufficient for that purpose («). 
 
 AVith respect to the words that are necessary to denote words 
 
 ^ expressive 
 
 the nature of the estate or interest intended to be siven of the nature 
 
 o of the 
 
 by the testator to the devisee, the Courts will carry the "''"^s*- 
 intention of the testator into effect, if sufficiently declared, 
 however defective the language may be (b). 
 
 Where a testator, after limiting the fee in contingency, a residuary 
 
 o ^ devise 
 
 makes a residuary devise of " all the residue and remain- passing the 
 
 '' tee, where 
 
 der of his estate and effects whatsoever and wheresoever, {J^ftg^iu 
 not thereinbefore disposed of," the fee passes under the ^^J^J^seucy 
 residuary devise, and vests in the residuary devisee, until 
 the happening of the event on which the contingent 
 limitation in fee is to take effect (c). 
 
 By the stat. 1 Vict, c. 26, s. 25, it is enacted, "that, a residuary 
 
 devise to 
 
 unless a contrary intention shall appear by the will, such real include 
 
 estate or interest therein as shall be comprised or intended j^aS^aifd"* 
 
 to be comprised in any devise in such wiU contained, which "^^^ devises, 
 shall fail or be void by reason of the death of the devisee 
 
 (a) 6 Cruise T. 38, c. 10, § 2. (c) Eycrton v. Masscy, 3_Com. B. 
 
 (6) 6 Cruise T. 38, c. 11, § 1. 338.
 
 1038 
 
 OF DEVISES GENERALLY. 
 
 Pt 
 Ch 
 
 r.iir.T.15, iu tlie lifetime of the testator, or by reason of siicli devise 
 :b. 2, s. 1. . . 
 
 being contrary to law or otherwise incapable of taking 
 
 effect, shall be included in the residuary devise (if any) 
 
 contained in such will." 
 
 A devisee takes all the income accruing from the subject 
 of gift subsequently to the testator's decease (d). 
 
 The freehold or interest in law is in a devisee before 
 entry (c). But he may disagree to and disclaim the devise 
 by deed ; in which case the devise becomes void, and the 
 lands descend to the heir at law (/). 
 Perpetuity. A devise wliicli tends to a perpetuity is void ([/). 
 
 Income. 
 
 Disclaimer. 
 
 Pt.III.T.15, 
 
 Ch. 2, s. 2. 
 
 Devise of 
 "the reuts." 
 
 Effect of 
 
 superadded 
 
 words. 
 
 Where the 
 word 
 
 "estate" 
 passes all the 
 interest of 
 the testator. 
 
 Section II. 
 Of the Bescri'ption of the Parcels or Suhjcct. 
 
 A devise of the rents passes the land itself, both at law 
 and in equity (/;). 
 
 Where there is a correct and specific description of the 
 property devised, a mistake in any additional words will 
 have no effect ; but where the first description is merely 
 general, there additional words will be considered either 
 as explanatory or restrictive, according to the intent of the 
 testator (■/). 
 
 " It is established by a long course of decisions " (observed 
 a learned Judge), " that the word estate or estates, used in 
 the operative part of the will, passes not only the corpus 
 
 (d) 11 Jarm. & Byth. by Sweet, 
 774. 
 
 (e) Co. Litt. Ill a. 
 
 (/) 6 Cruise T. 38, c. 8, § 41. 
 (g) See supra, p. 338 ; Attorney- 
 General V. GreenhiU, 33 Beav. 193. 
 (h) 1 Jarm. Wills, ■2nd ed. 681 ; 6 
 
 Cruise T. 38, c. 10, § 66. 
 
 (0 6 Cruise T. 38, c. 10, § 80. 
 See also 1 Jarm. Wills, 2ad cd. 671 
 — 6 ; Harrison v. Hyde, 4 Hurl. & 
 Norm. 805 ; Stanley v. Stanley, 2 
 Jobns. & Hem. 491.
 
 OF THE DESCRirTION OF THE PARCELS OR SUBJECT. 1039 
 
 of the property, but all the interest of the testator in it, ^t. hi t. 15, 
 
 unless controlled by the context; and that superadded 
 
 words of local description more applicable to the corpus 
 of the property, indicating its situation or the nature of 
 its occupation, do not prevent it from passing the whole 
 interest. Nor do words apparently explanatory of the 
 meaning of the term, inserted in the devise itself ; as where 
 the testator leaves his real estate, that is, his land and 
 buildings situate at A. (j), or his freehold estate, consisting 
 of thirty acres of land (k) . . . But where the word 
 ' estate ' is not used in the operative clause of the devise 
 itself, but is introduced into another part of the will 
 referring to it, we find no decision or dictum authorising 
 us to construe it as having the effect of extending the 
 meaning of the operative clause, wdiether prior or subse- 
 quent, and to read the will as if the testator had said, by 
 the devise of lands in another clause I mean to give my 
 estate in these lands " (/). 
 
 Sometimes the word " estate " or " property," thouo'h where the 
 
 -^ ^ '^ '^ word estate 
 
 apparently applicable to personalty alone, has been held ^f'^jl''-'^ *** 
 also to apply to real property : as where the word devise 
 is not used, and there are no words of limitation to the 
 heirs (m). Indeed, the word " estate," by its own proper 
 force, without any proof aliunde of an intent to aid the 
 construction, carries the realty as well as personalty, and 
 is not to be restrained to personalty only, unless there is a 
 
 (j) Denn d. Richardson v. Hood, 633 ; D'Almainev. MoscIe>/, 1 Drew. 
 
 7 Tauul. 35. 629 ; Fattersonv. Huddart, 17 Beav. 
 
 (k) Gardner v. Harding, 3 J. B. 210 ; Re Greenwich Hospital Ini- 
 
 Moore, 565 ; 1 B. & B. 72. provemcnt Act, 20 Beav. 458. See 
 
 ( I ) Pollock, L. C. B., in Doe d. also Sanderson v. Dobson, 1 Exch. 
 
 Burton v. White, 1 Exch. 534. Tlie 141 ; S. C. 7 Com. B. 81 ; Streat- 
 
 decision in thif? case was affirmed feildv. Coopcr,27'Bea,v.S38; 3Iorris 
 
 by tlie Exchequer Chamber, 2 Exch. v. Lloi/d, 3 Hurl & Colt. 141 ; Ha- 
 
 797. See also 6 CruLse T. 38, c. 10, milton v. Buckmaster, L. E,. 3 Eq. 
 
 § 62, and supra, p. 149, 150. 323 ; Dobson v. Bowness, L. R. 5 Eq. 
 
 (m) 1 Jarm. Wills, 2nd ed. 613— 404.
 
 1040 
 
 OF THE DESCRIPTION OF 
 
 Pt. III.T.15, 
 Ch. 2, B. 2. 
 
 A^Tiere "real 
 estate " 
 iiicludf^s 
 leaseholds. 
 
 Where 
 general words 
 apply to 
 leaseholds. 
 
 A general 
 devLse of the 
 testator's 
 lands now 
 includes 
 copyhold and 
 leasehold, 
 as well as 
 freehold 
 lands. 
 
 Where 
 mortgage or 
 trust estate 
 
 clear intent so to restrain it, to be gathered either from 
 the whole will, or from the way in which the word is used 
 in that particular part of the will where the contested use 
 of it arises (/i). 
 
 Leaseholds will not pass under a general devise of " real 
 estate " before the stat. 1 Vict, c. 26, s. 26, unless aided by 
 other words (o). 
 
 In the case of a will made before the year 1838, when 
 a testator uses general words equally applicable to free- 
 hold and leasehold property (such as "lands and tene- 
 ments"), they are construed to apply to the freeholds 
 only, if the testator had, at the date of his will, both free- 
 hold and leasehold property, unless a contrary intention 
 appears ; but if the testator had leasehold but no freehold 
 property to satisfy them, they are held to apply to the 
 leasehold {p). 
 
 But by the stat. 1 Vict. c. 26, s. 26, " a devise of the 
 land of the testator, or of the land of the testator in any 
 place or in the occupation of any person mentioned in his 
 will, or otherwise described in a general manner, and any 
 other general devise which would describe a customary, 
 copyhold, or leasehold estate if the testator liad no free- 
 hold estate which could be described by it, shall be con- 
 strued to include the customary, copyhold, and leasehold 
 estates of the testator, or his customary, copyhold, and 
 leasehold estates, or any of them, to which such descrip- 
 tion shall extend, as the case may be, as well as freehold 
 estates, unless a contrary intention shall appear by the 
 will." 
 
 If in a will there is a general devise in fee sufficiently 
 comprehensive to pass the legal interest to the devisee. 
 
 («) Mayor of Hamilton v. Hods- 
 don, 6 Moo. P. C. C. 76, 82. 
 
 (o) Swift V. Swift, 1 D. F. & J. 
 160. 
 
 {p) 6 Cruise T. 38, c. 10, § 90 ; 2 
 Rop. Leg. by White, 1489 ; 1 Jarm, 
 Wills, 2nd ed. 573, 579 ; Hohson v. 
 Blackburn, 1 My. & K. 679.
 
 THE PARCELS OR SUBJECT. 1041 
 
 . siii juris, and competent to convey, and 
 the will does not charge the devised estate with debts, 
 
 who is a person siii juris, and competent to convey, and ^^-^^-'^l^ 
 
 passes by tho 
 
 leoacies, or annuities, or tho charo-e may be reteiTed to wi^i^f'e 
 
 " ' ' o J mortgagee or 
 
 other property, in which the testator had the absolute '™^'''*^- 
 beneficial interest, and there is not in the whole will any 
 other declared intention inconsistent with a devise of 
 trust or mortgaged estates, then, although there is not in 
 the will any declared intention of the testator to devise 
 the trust or mortgaged estates, they will pass to the 
 devisee, and in such a case the concurrence of the heir at 
 law may be dispensed with. And the words "for the 
 absolute use and benefit " of the devisee, will not prevent 
 the devise from including the legal estate in property 
 mortgaged to the testator (q). 
 
 The legal estate in property of which the testator is 
 mortgagee in fee will pass under a gift of " mortgages " or 
 "securities for money" (r). And it has been held, that 
 where a testator willed his wife "to receive all monies 
 upon mortgage," these words passed the legal estate upon 
 which the money was secured (.s). 
 
 Lands which are in mortgage, and whereof the devisor where lauds 
 
 in mortgas^e 
 
 has only the equity of redemption, will pass by the same v'^ss by the 
 words as lands not mortgaged ; because a mortgage is ""ortgagor. 
 only considered as a pledge for securing the repayment of 
 a debt, and the lands remain in the mortgagor for every 
 other purpose (t). 
 
 Eeversions in fee wiU pass under a general devise of where a 
 
 reversion 
 passes. 
 (g) Coote Mortg. 3rd ed. 549 ; L. R. 6 Eq. 596. 
 
 Burton, § 611 ; 1 Jarm. Wills, 2nd (r) 1 Jarm. Wills, 2nd ed. 600 ; 
 
 ed. 591, 596 ; Eackham v. Siddall, In re Kinr/'s Mortgage, 5 De G. & S. 
 
 16 Sim. 297 ; Boc d. Roylance v. 644 ; Knight v. Robinson, 2 K. & J. 
 
 Lightford, 8 M. & W. 553 ; Silvester 503 ; Rippen v. Priest and others, 
 
 V. Jarman, 10 Price, 78 ; Bope v. 13 Scott, 308. 
 
 Liddell, 21 Beav. 183 ; Re Finney's (s) Doe d. OueM v. Bennett, 6 
 
 E^itate, 3 Gif. 465 ; Re Field's Mort- Exch. 892. 
 
 gage, 9 Hare, 414; Lewis v. Mattheics, {t) 6 Cruise T. 38, c. 10, § 128. 
 
 L. R. 2 Eq. 177 ; In re Stevens' Will,
 
 1042 OF THE DESCRIPTION OF THE PARCELS OR SUBJECT. 
 
 pt.iii.t. 15, " lands or hereditaments," or even under a devise of " lands 
 
 Ch. 2, s. 2. ' 
 
 not settled or disposed of" (?(). 
 Money Monev devised or contracted to be laid out in the pur- 
 
 devised or '^ -L 
 
 bTiaiamft ia cliasc of lauds passes by the words " lands, tenements, and 
 
 the purchase i t, j. >> / \ 
 
 of lauds. hereditaments [x). 
 
 "Myun- The expression "my unsettled real estate" means, in 
 
 settled real ^ "^ 
 
 estate." commou parlance, that part of my real estate which is 
 not in settlement. But in its technical sense the word 
 " estate " refers to the interest which the testator has in his 
 hereditaments as well as to the hereditaments themselves ; 
 and hence in the legal sense the expression " my unsettled 
 real estate" comprises such interest in hereditaments 
 which have been put in settlement as is not tied up by 
 the settlement, but is at the disposal of the testator, as 
 well as hereditaments which have never been put in 
 settlement {ij). 
 
 Jjl^^^^j'.'P"' Under a devise of lands "purchased," lands which have 
 been taken in exchange will pass (&). 
 
 " ^'^''"g" The word " living " is ambiguous : it may mean either 
 
 the advowson or the next presentation, according to the 
 context («). 
 
 Section III. 
 Of Devises of Cojjyholds. 
 
 ^ch^^'1'3^' "^^^^ ^^^ statutes of wills have no connection with copy- 
 holds. And though that part of the Statute of Frauds 
 
 Copyholds 
 
 (u) 1 Jarm. Wills, 2nd ed. 558 ; (y) Incorporated Society v. Rich- 
 
 6 Cruise T. 38, c. 10, § 104. ards, 1 D. & W. 258. 
 
 (x) 6 Cruise T. 38, c. 10, § 55 ; 2 (z) Doe d. Meyrick t. Meyncl; 1 
 
 Speuce's Eq. Jur. 264 ; 1 Jarm. C. & M. 820. 
 
 Wills, 2iid ed. 494, (a) Webb v. Byng, 2 K. & J. 6C9.
 
 OV DEVISES OF COPYHOLDS. 10-13 
 
 wliicli relates to the sicjnaturc of wills (h) mentions lands ^t. iii.t is, 
 
 o ^ ' Ch. 2, s. 3. 
 
 "devisable Lv any particular custom," still it does not in- ~~~r. — 
 
 ^ 'f L not withiu 
 
 elude copyhold estates ; so that by the old law copyholds gfa,^!'^ ^j. 
 
 were devisable by any instrument which was adequate to "''"^" 
 the testamentary disposition of personal estate (c). 
 
 By the general custom of all manors every copyholder By general 
 
 '^ o v- i ./ custom they 
 
 has a right to surrender his estate to the use of his will (d). ^^J^^^^^ 
 But there are some ciistomary estates in the north which 
 were not devisable either directly or indirectly ((;). 
 
 Formerly, copyholds could not be devised unless the tes- snrrenrter to 
 
 '^ ' ^ -^ the use of 
 
 tator had previously surrendered them to the use of his "'*'^- 
 will, and they were considered to pass rather by that sur- 
 render than by the will itself. The will operated as a 
 declaration of the uses of the surrender (/). A surrender 
 to the use of a will could not be made before the admit- 
 tance of the devisor: for until then he had no estate or in- 
 terest in the copyhold. Where a copyholder surrendered 
 to the use of his will, the estate remained in him or his 
 heirs until the admittance of the devisee, and did not vest 
 in the lord during the copyholder's lifetime, nor in the 
 devisee after the copyholder's decease until he was ad- 
 mitted. But if a devise were made to two persons, and one 
 of them was admitted according to the purport of the will, 
 this enured to both ((/). Where the legal estate in a copy- 
 hold was outstanding, the person entitled to the equitable 
 interest might always devise it without a surrender : for 
 otherwise it could not be disposed of by will ; as a person 
 who has not the legal estate in a copyhold could not make 
 a surrender (h). And hence where a copyholder mortgaged 
 
 (6) Stat. 29 Car. 2, c. 3, § 5. (/) Burton, § 1288 ; 6 Cruise T. 
 
 (c) Burton, § 1287 ; 6 Cruise T. 38, c. 4, § 1 ; 1 Jarm. Wills, 2nd ed. 
 38, c. 4, § 1 ; 1 Jarm. Wills, 2nd ed. 45. 
 
 83. (g) 6 Cruise T. 38, c. 4, § 3, 4, 5, 
 
 (d) 6 Cruise T. 38, c. 4, § 2 ; 1 11 ; 1 Jarm. Wills, 2nd ed. 45. 
 Cruise T. 10, c. 3, g 17. {h) 6 Cruise T. 38, c. 4, § 21. 
 
 (e) 1 Cruise T. 10, e. 3, § 17. 
 
 VOL. II. G a
 
 1044 OF DEVISES OF COPYHOLDS. 
 
 f^iyT-15, his copyhold, and the mortgagee was admitted, the mort- 
 
 gfigor, not having the legal estate of the copyhold in him, 
 
 had no estate that he conld surrender, and therefore might 
 devise the copyhold premises without any surrender (*'). 
 But as the mortgagor had the legal estate till tlie mort- 
 gagee was admitted, so until that time the mortgagor could 
 not devise the copyhold without a surrender to the use of 
 his will (y). 
 Surrender to By stat. 55 Geo. 3, c. 192, every disposition of copyhold 
 
 tUG IISG 01 3. 
 
 will rendered tenements made by the last will of a person who should 
 
 uimecessciry. ^ ^ 
 
 die after the 12th day of July, 1815, was to be as valid, 
 though no surrender should have been made to the use of 
 his will, as if such surrender had been made Qi). This Act 
 does not dispense with a particular mode of surrender re- 
 quired by tire custom to give validity to a devise by a 
 married woman (/). It is repealed by the stat. 1 Vict, 
 c. 26, s. 2, but the necessity of a surrender is dispensed with 
 by the enabling clause of the latter Act (m). 
 As to the By s. 4 of the same Act, however, it is iDrovided, " that 
 
 fees and fines '' 
 
 devheels of whcre any real estate of the nature of customary freehold 
 and copy-^ or tenant right, or customary or copyhold, might, by the 
 custom of the manor of which the same is holden, have 
 been surrendered to the use of a will, and the testator shall 
 not have surrendered the same to the use of his will, no 
 person entitled or claiming to be entitled thereto by virtue 
 of such will shall be entitled to be admitted, except upon 
 payment of all such stamp duties, fees, and sums of money 
 as would have been lawfuUy due and payable in respect of 
 the surrendering of such real estate to the use of the will, 
 or in respect of presenting, registering, or enrolling such 
 surrender, if the same real estate had been surrendered 
 to the use of the will of such testator : Provided also, that 
 
 (i) 6 Cruise T. 38, c. 4, § 2.5. {h) Burton, § 1288. 
 
 (i) 6 Cruise T. 38, c. 4, § 8 ; 1 (Z) 1 Jarm. Wills, 2nd ed. 46. 
 
 Jarm. Wills, 2nd ed. 45. (m) See supra, p. 987. 
 
 hold estates.
 
 OF DEVISES OF COPYHOLDS. 1045 
 
 where the testator was entitled to have been admitted to pt.hi.t.is, 
 
 Ch. 2, s. 3. 
 
 such real- estate, and might, if he had been admitted thereto, 
 
 have surrendered the same to the use of his will, and shall 
 not have been admitted thereto, no person entitled or 
 claiming to be entitled to such real estate in consequence 
 of such will shall be entitled to be admitted to the same 
 real estate by virtue thereof, except on payment of all such 
 stamp duties, fees, fine, and sums of money as would have 
 been lawfully due and payable in respect of the admit- 
 tance of such testator to such real estate, and also of all 
 such stamp duties, fees, and sums of money as would have 
 been lawfully due and payable in respect of surrendering 
 such real estate to the use of the will, or of presenting, 
 registering, or enrolling such surrender, had the testator 
 been duly admitted to such real estate, and afterwards sur- 
 rendered the same to the use of his will ; all which stamp 
 duties, fees, fine, or sums of money due as aforesaid shall 
 be paid in addition to the stamp duties, fees, fine, or sums 
 of money due or payable on the admittance of such person 
 so entitled or claiming to be entitled to the same real estate 
 as aforesaid." 
 
 Where a person having an estate tail in a copyhold sur- Devise by a 
 
 -■- ° -^ -^ tenant in 
 
 renders it to the use of his will, if entails by the custom of **''• 
 the manor are not barrable by recovery or fine, but by sur- 
 render, in such case the surrender to the use of his will not 
 only effectuates the will, but operates as a bar to the 
 entail (n). 
 
 By the old law, before the stat. 55 Geo. 3, c. 192 (o), J-;^^^,^!^ 
 legal copyholds not surrendered to the use of a will, though lenlraT'^"^ 
 in some cases they would pass in equity, did not pass at 
 law, by a specific description, much less by general words. 
 And without souie indication of intention beyond mere 
 general words of devise, an equitable interest in copyholds 
 
 in) 6 Cruise T. 38, c. 4, § 19. (o) See supra, p. 1044. 
 
 o a 2
 
 1046 
 
 OF DEVISES OF COPYHOLDS, 
 
 Pt. III.T.15, 
 
 Ch. 2, s. 3. 
 
 Devise by a 
 purchaser 
 before 
 admittaace. 
 
 Escheated 
 copyholds 
 pass with 
 the manor. 
 
 Kcvocation 
 by surrender 
 of copyholds. 
 
 would not pass. But, as we have already seen, by the 
 stat. 1 Vict. c. 26, a general devise will now include unsur- 
 rendered copyholds, unless a contrary intention appears by 
 the will. And so it would, as the law stood after the stat. 
 55 Geo. 3, c. 192, and before the stat. 1 Vict. c. 26 (2^). 
 And even by the old law, where copyhold lands were sur- 
 rendered to the use of a will, they passed by a general 
 devise of all the testator's lands and tenements, notwith- 
 standing there were freeholds to answer such devise {q). 
 
 Even by the old law, if a man made a disposition by 
 will of all his copyhold estates generally, and afterwards 
 purchased other copyhold estates, and surrendered them 
 to the uses declared by his will, or even to the uses 
 declared by his will of and concerning the same, the after- 
 purchased estates would pass under the general devise, 
 although the will was not republished (r). By the new 
 law, such after-purchased estates would pass without any 
 surrender (s). 
 
 Even under the law prior to the stat. 1 Vict. c. 26, and 
 subsequent to the stat. 55 Geo. 3, c. 192, a purchaser, before 
 admittance, has an equitable and devisable interest, and the 
 devise is not revoked by his subsequent admittance, and is 
 good without any surrender to the uses of the will, and 
 though the words be mere general words, such as " real 
 estate " (t). 
 
 Even under the old law, where a person devised his 
 manor, and, subsequent to the execution of his will, but 
 before his decease, a copyhold escheated, it passed to the 
 devisee (w). 
 
 A surrender of copyholds made after the will and 
 
 {p) 6 Cruise T. 38, c. 10, §129; 
 1 Jarm. Wills, 2nd ed. 569—571 ; 
 Torre v. Browne, 5 H. L. Cas. 555. 
 See supra, p. 1040. 
 
 (?) 6 Cruise T. 38, c. 10, § 129. 
 
 (r) Sugd. Concise View, 128; 1 
 
 Jarm. Wills, 2nd ed. 46. 
 
 (s) See supra, p. 987 — 8. 
 
 {t) Seaman v. Woods, 24 Beav. 
 372. 
 
 («) 6 Cruise T. :J8, c. 3, § 40.
 
 OF DEVISES OF COPYHOLDS. 1047 
 
 amountinsf to a partial alienation of the estate, does not f^. iii.t.is, 
 
 o ^ ' Ch. 2, s. 3 
 
 operate as a complete revocation of the will, which may 
 still have its effect upon the reversion or other continuing 
 interest of the testator {x). 
 
 By s. 5 of the atat. 1 Vict. c. 26, " when any real estate wnisor 
 
 "^ . extracts of 
 
 of the nature of customary freehold or tenant rioht or wuisnf 
 
 •^ o customary 
 
 customary or copyhold shall be disposed of by will, the c'o1!vhoias''to^ 
 
 lord of the manor or reputed manor of which such real onuw'court 
 
 estate is holden, or his steward, or the deputy of such 
 
 steward, shall cause the will by which such disposition 
 
 shall be made, or so much thereof as shall contain the 
 
 disposition of such real estate, to be entered on the court 
 
 rolls of such manor or reputed manor ; and when any 
 
 trusts are declared by the will of such real estate, it shall 
 
 not be necessary to enter the declaration of such trusts, but 
 
 it shall be sufficient to state in the entry on the court rolls 
 
 that such real estate is subject to the trusts declared by 
 
 such w^ill ; and when any such real estate could not have aud the lord 
 
 ^ to be entitled 
 
 been disposed of by will if this Act had not been made, the fl^g'^^g^™^ 
 same fine, heriot, dues, duties, and services shall be paid ^suaL^are 
 and rendered by the devisee as would have been due from "isaWe^asite 
 the customary heir in case of the descent of the same real been from the 
 
 heir iu case 
 
 estate, and the lord shall, as against the devisee of such of descent, 
 estate, have the same remedy for recovering and enforcing 
 such fine, heriot, dues, duties, and services as he is now 
 entitled to for recovering and enforcing the same from or 
 against the customary heir in case of a descent." 
 
 (x) Burton, § 1292.
 
 1048 
 
 Pt. IIl.T. 15, 
 
 Ch. 3, 8. 1. 
 
 Devisiou of 
 legacies. 
 
 Definition of 
 a genei-al 
 legacy. 
 
 Definition of 
 a specific 
 legacy. 
 
 Definition of 
 a demonstra- 
 tive legacy. 
 
 CHAPTER III. 
 
 OF BEQUESTS SEPARATELY CONSIDEEED. 
 
 Section I. 
 
 Of Gemeral, Si^ecijic, and Demonstfative Legacies. 
 
 Bequests or legacies may be classed tinder three heads — 
 General, Specific, and Demonstrative {a). 
 
 A general bequest is a legacy of personal estate by a 
 general denomination which does not necessarily designate 
 any particular thing forming part of the testator's estate 
 either at the date of the will or at the death of the testator, 
 any more than something of the same kind not forming 
 part of his estate : as where a bequest is made of goods and 
 chattels, or of money or stock generally (b). 
 
 A specific bequest is a legacy of a particular thing forming 
 part of the testator's estate either at the date of his will or 
 at the time of his decease, and distinguished by him from 
 all other things of the same kind : as in the case of a 
 bequest of stock which a testator may have at the time of 
 his decease, or of money in a bag, or of a certain piece of 
 plate, or of a term of years (c). 
 
 A demonstrative bequest is a legacy of a sum of money, 
 with reference to a particular fund for its payment {d). 
 
 (a) See 1 Rop. Leg. by White, 1, 
 191 — 2, 198. 
 
 (b) See 1 Eop. Leg. by White, 1, 
 191, 203 ; Fielding v. Preston, 1 D. 
 & J. 438. 
 
 (c) See 1 Hop. Leg. by White, 1, 
 191, 203 ; Steiihenson v. Doivson, 3 
 Beav. 342 ; Mills v. Brown, 21 Beav. 
 1 ; Chester v. Urivick, 23 Beav. 402 ; 
 
 Fieldhuj V. Preston, 1 D. & J. 438 ; 
 Moore v. Moore, 29 Beav. 496 ; Mea- 
 sure V. Carleton, 30 Beav. 538 ; 
 Jones V. Southall (No. 2), 32 Beav. 
 31 ; Paget v. JIuish, 1 Hem. & M. 
 663 ; In re Jeffcrifs Trust, L. E. 2 
 Eq. 68. 
 
 Cf^) 1 Rop. Leg. by White, 192, 
 198, 199; Robinson v. Cxddard, 3
 
 OF GENERAL AND OTIIEIl LEGACIES. 1049 
 
 The terms " pecuniary legacies" and " general legacies " ^^-^-''^-JS' 
 are sometimes used as synonymous ; but every general 
 
 ^ J ' v' o Pecuniary 
 
 legacy is not pecuniary, i.e., relating to money ; and one legacies. 
 species of specific legacy is of a pecuniary nature : so that, 
 in fact, there may be either a general pecuniary legacy or 
 a specific pecuniary legacy (c). 
 
 The fact of a testator oivinGr an amount of property of a certain ca^^es 
 
 o o J. 1 ^ of general 
 
 particular kind, and of his liaving at the date of the will fe"lcies"^*' 
 some property of that kind of the same amount, is not a gSed. 
 ground upon which the Court can conclude that the legacies 
 are specific, where such property can be bought, and 
 where he has not in any way designated the property 
 bequeathed as the identical property he had at the date of 
 his will or should have at the time of his death. So that 
 where he has a certain number of canal shares at the date 
 of his will, which by Act of Parliament were to be deemed 
 personalty, and he bequeaths that precise number of canal 
 shares generally, his legacy is general, and amounts in 
 effect to a gift of such an indefinite sum of money as will 
 suffice to purchase so many shares as he has given : and 
 hence if at the testator's decease he has no shares, the 
 legatee will be entitled to the value of them out of the 
 general personal estate. But the word " my " preceding 
 the words " stock," "■ annuities," or " shares," renders a 
 legacy of stock, annuities, or shares specific (/). And 
 where a certain amount of stock is bequeathed, with a 
 du'ection, that, if the testator should not have sufficient 
 stock to answer the legacy, his executors should, out of his 
 residuary estate, purchase enough to make up the deficiency^ 
 such a bequest creates a specific legacy (^). 
 
 Mac. & G. 735 ; Hodges v. Grant, 2 Beav. 515 ; Miller v. Little, 2 
 
 L. E. 4 Eq. 140. Beav. 259. 
 
 (e) 1 Rop. Leg. by White, 191, n. {<j) Toivnsend v. Martin, 7 Hare, 
 
 (/) See 1 Kop. Leg. by White, 471. 
 ■J04, 205, 21t3 ; Robiiidon v. Addison,
 
 1050 
 
 OF GENERAL, SPECIFIC, AND 
 
 I'T. III.T.15, 
 Ch. 3, s. 1. 
 
 Uncertainty 
 whether 
 le.t;aoy is 
 specific or 
 demonstia- 
 tive. 
 
 Practical 
 di.stiuctiuns 
 between 
 general, 
 specific, and 
 demonstra- 
 tive legacies 
 
 There is often great uncertainty whether a legacy is 
 specific or demonstrative (h). Thus, where a testator 
 made a bequest in these terms : " I give to M. D. the sum 
 of £100, which said sum is owing to me by bond from 
 E. D.," it was held to be a specific and not a demon- 
 strative legacy (i). But where a testator made the fol- 
 lowing bequest: "I give to my son £10,000 sterling, being 
 my share of the capital now engaged in the banking 
 business of, &c.," it was held to be a demonstrative and not 
 a specific legacy (j). 
 
 The practical distinctions between these different kinds 
 of legacies are th'^.se : 1. If, after payment of debts, there 
 is a deficiency of assets for payment of all the legacies, a 
 general legacy will be liable to abate ; but a specific 
 legacy will not, without express words ; because the entire 
 specific thing is given to the specific legatee. 2. On the 
 other hand, if a specific bequest is made of a fund, and it 
 fails, the legatee will not be entitled to any compensation 
 out of the general personal estate of the testator ; because 
 nothing but the specific thing is given to the legatee (k). 
 3. A demonstrative legacy will not be liable to abate with 
 general legacies upon a deficiency of assets. And if the 
 fund pointed out for its payment fails, the legatee is 
 entitled to payment ovit of the general assets (I). Thus, 
 legacies directed to be paid or bequeathed out of a debt or 
 security, are to be ]3aid out of the debt or security in pre- 
 
 (h) See Williams v. Hughes, 24 
 Beav. 474 ; Gordon v. Buff, 28 Beav. 
 519 ; Bevan t. Attorney-General, 4 
 Gif. 361. 
 
 { i ) Davies v. Morgan, 1 Beav. 
 405. See also Duncan v. Duncan, 
 27 Beav. 386. 
 
 {j) Sparroiu Y. Jossclyn, 16 Beav. 
 135. 
 
 {k) 1 Eop. Leg. by White, 191— 
 2 ; Duncan v. Duncan, 27 Beav. 
 
 386 ; V.-C. Kindersleij in Mullins v. 
 Smith, 1 Drew. & Sm. 210 ; Gordon 
 V. Duff, 28 Beav. 519. 
 
 (0 1 Rop. Leg. by White, 192, 
 198—9 ; V.-C. Kindersley in 3Iul. 
 Uns V. Smith, 1 Dr. & Sm. 210. For 
 an instance of a legacy which did 
 not fall within any of these classes, 
 see Coard v. Holderness, 22 Beav. 
 391.
 
 DEMONSTKATIVE LEGACIES. 1051 
 
 ference to general legacies ; and if the debt is not in pt. ui.t.is, 
 
 *-' " Ch. 3, s. 1. 
 
 existence at the testator's death, or if it is insufficient to ■ 
 
 pay the legacies, the legatees will be entitled to payment 
 out of the general assets {m). But when stock is specifi- 
 cally becjueathed, and it does not wholly or does only in 
 part exist at the testator's death, the legacy will either be 
 wholly or partially adeemed, as the case may be («). And 
 if a debt specifically given is received by the testator, the 
 bequest of it will be adeemed, since the subject of the 
 becpiest no longer exists ; for the debt is discharged, and 
 the proceeds do not fall within the description of the 
 bequest (o). 3. A specific legacy, if of stock, carries with 
 it the dividends which accnie from the death of the tes- 
 tator ; but a demonstrative legacy does not carry interest 
 from the testator's death (7>). 
 
 Section II. 
 Of the Description of the Things Bequeathed. 
 However general the words of bequest of a term may pt. ui.t.is, 
 
 be, if they are satisfied by the interest which the testator — 
 
 y J J « xerm." 
 
 had at the date of his will, the bequest will not pass a 
 new estate acquired by the testator after the devise by 
 renewal or otherwise ; at least where the legal estate in the 
 term was vested in the testator himself, and not in some 
 other person in trust for him {rj). 
 
 The word " money " will include notes payable to bearer, "Mouey." 
 
 («i) 1 Rop. Leg. by AVhite, 237. {p) V.-C. KindersUy in Mullins 
 
 {n) 1 Rop. Leg. by White, 3. v. HmUh, 1 Dr. & Sm. 210. 
 
 (o) 1 Rop. Leg. by White, 334 ; {q) 1 Rop. Leg. by White, 350, 
 
 Sideiothavi v. Watson, 11 Hare, 170. 352; 1 Jarm. Wills, 2nd ed. 263.
 
 1052 OF THE DESCRIPTION OF 
 
 Ft. tilt. 15, excliequer bills, and bills of exchange endorsed in blank ; 
 
 \jB., Of S. Z. 
 
 because tliey are not to be considered as choses in action (r). 
 
 Generally, cboscs in action, sncli as Government securities 
 and promissory notes not payable to bearer, do not pass 
 under the name of money or cash (s). The word " money" 
 will not pass stock in the funds, unless its meaning is 
 enlarged by the context ; or unless the testator at the date 
 of his will and his death had no other property on which 
 the bequest could operate (t). And the circumstance, that 
 the amount of cash which the testator had at the time of 
 his death was very small, and yet the money was given to 
 one for life, with a limitation over, is not of itself sufficient 
 to extend the signification of the word money ; especially 
 if there are other parts of the personal estate which neither 
 that expression nor any others used by the testator would 
 pass ; so that there is nothing on the face of the will to 
 show that he intended to make a disposition of the whole 
 personal estate (u). But in the absence of any other 
 bequest of the residue, or other indication to the contrary, 
 a bequest of any money which may remain after payment 
 of debts includes the general residue not specifically 
 bequeathed, and which by law is liable to the payment of 
 the testator's debts (*). And so a bequest of any money 
 which may remain after payment of legacies may include 
 the general residue, if the testator has manifested an inten- 
 tion of disposing of everything, which would otherwise be 
 frustrated (v/). 
 
 (r) 1 Eop. Leg. by White, 282 ; 1 terill, 1 My. & K. 56 ; Lamer v. 
 
 Jarm. Wills, 2nd ed. 657, n. (/). Larmr, 3 Drew. 704 ; Newman v. 
 
 (s) Marquis of Hertford v. Lord Neioman, 26 Beav. 218 ; Voiding v. 
 
 Lowther, 7 Beav. 1 ; 1 Eop. Leg. by Cowling, 26 Beav. 449. 
 
 Wliite, 282. (x) Stoch v. Barre, 1 Johns. 54 ; 
 
 (t) Chapman v. Reynolds, 28 Beav. Neviiison v. Lady Lennard, 34 
 
 221. Beav. 487. 
 
 (u) Loioe V. Thomas, 1 Kay, 369 ; (y) Montague v. Earl of Sand- 
 
 5 D. M. & G. 315 ; Dosdcn v. Dot- wich, 33 Beav. 324.
 
 THE THINGS BEQUEATHED. 1053 
 
 And as stock in the funds is not money, so lesjacies of tt- hi.t.is, 
 
 "^ * Ch. 3, s. 2. 
 
 stock are not properly " pecuniary legacies " {z). ■_ — 
 
 Freight, under a charter-party, executed after the date of i«s.icies." 
 
 a will, and in respect of a voyage not completed till after due.""^^ 
 
 the testator's death, will not pass as " money which at the 
 
 time of his decease should be due to him " («). 
 
 But money receivable by executors under a policy of 
 
 assurance on the testator's life, will pass under a bequest of 
 
 " any money he may die possessed of, or which may be due 
 
 and owing to him at the time of his decease " {])). 
 
 A bequest of the testator's "ready money " comprehends "Keady 
 
 ■*- ^ ./ i money. 
 
 money of the testator in the hands of his banker, or in a 
 savings bank where he had given notice for payment, but 
 not promissory notes or notes of hand, or debts due to him, 
 however safe, or Avith whatsoever facility obtainable (c). 
 And it was held, that money of a testator which at the 
 time of his death was in the hands of a salemaster in 
 Smithfield was not ready money within the meaning of a 
 clause directing the payment of debts, by the application in 
 the first instance, of all his ready money and securities for 
 money {d). 
 
 While the stat. 3 & 4 Will. 4, c. 85, for the regulation Government 
 
 or parlia- 
 
 of the East India Company's Charter was in force, the meutary 
 
 stocii or 
 
 capital stock of the Company was not " a Government or ^"^^• 
 Parliamentary stock or fund," nor was it a foreign stock or Foreign 
 
 stock or 
 fund (c). funtl- 
 
 Eailway preference and other stock will pass under the Railway 
 
 , ^ stock or 
 
 term " railway shares," where the testator never had any si^ares. 
 shares, but had railway stock at the date of the will (/). 
 
 (z) 11 Jarm. & Byth. by Sweet, C. C. C. 290 ; 1 Phil. 356 ; In re 
 
 457. PoweWs Trust, 1 Johns. 49. 
 
 (a) Stephenson v. Doivson, 3 Beav. {<!) Smith v. Butler, IJ. & L. 692. 
 
 342. (e) Broivn v. Broivn, 4 K. & J. 
 
 (6) Pett7j V. WUlson, L. E. 4 Ch. 704. 
 
 Ap. 574. (/) Trinder v. Trinder, L. R. 
 
 (c) Parler v. Marchant, 1 Y. & 1 Eq. 695.
 
 1054 
 
 OF THE DESCRIPTION OF 
 
 Pt.TII.T.15, 
 
 Ch. 3, s. 2. 
 
 l"'ortuue or 
 money iu 
 tlie tunds. 
 
 Wheu 
 interest 
 passes as 
 well ;is the 
 priucipal. 
 
 Where a 
 bequest of 
 interest 
 passes the 
 principal. 
 
 Where 
 dividends for 
 a certain 
 period pass 
 as if given 
 as a gitt of 
 a principal 
 sum equiva- 
 lent to those 
 dividends. 
 
 Bank stock will not pass under the description of fortune 
 or money " in the funds," without aid from the context. 
 Money in the funds is a portion of the sums lent on the 
 security of the public funds granted by Parliament. Bank 
 stock is nothing more than a proportional share of the 
 profits of the corporation of the Bank of England belonging 
 to an individual. The dividends on the public funds are 
 paid by the ixink as agents of the Government. The 
 dividends on bank stock are paid by the Bank as a share 
 of their own profits {g). 
 
 The bequest of a certain specified sum due upon a par- 
 ticular security will not pass any part of the interest which 
 may be owing at the testator's death or at the period when 
 the will was made {h). But a gift of a bond or of the 
 money (generally) owing on a bond, will, unless restrained 
 by the context, carry arrears of interest due at the testa- 
 tor's death. And a bequest of a mortgage seems to admit 
 of the same construction (i). 
 
 A l)equest of the interest of a sum of money passes the 
 principal, although expressed to be for the sole use and 
 benefit of a woman, free, &c., and her receipt alone to be a 
 sufficient discharge, and although the word " absolutely " 
 be used in a bequest of specific articles to the same 
 person {IS). 
 
 Where a testator directed the income of his residuary 
 estate to be paid to his three children in certain propor- 
 tions ; and that, after the decease of any one or two of them, 
 until the decease of the survivor, the shares of the deceased 
 should go to their children ; and that, after the decease of 
 the surviving child, the capital of the residue should be 
 
 {fj) SUngshy v. Graiwjer, 8 D. M. Sweet, 461. 
 
 & G. 385 ; 7 H. L. Cas. 273, 285, {i) 11 Jarm. & Bytli. by Sweet, 
 
 288. 461. 
 
 \h) 1 Eoj). Leg. by White, 288 ; {k) Humphrey v. Ilu.mphrcy, 1 
 
 2 1(1. 1484; 11 Jarm. & Byth. by Sim. (N. S.) 536.
 
 THE THINGS BEQUEATHED. 1055 
 
 divided ainongst the children of his said children per capita ; ft.hi.t.i^s, 
 
 and one of the children had children, but they all died in 
 her lifetime, and she herself died before one of the other 
 children ; it was held that the children of the child so dying- 
 took vested transmissible interests in the income which 
 accrued between the death of their mother and the death 
 of the survivor of the testator's children, on the ground that 
 the grandchildren were to take, not by way of substitution 
 only in case they survived their parent, but that they took 
 the gift of the dividends from the death of their parent, for 
 the life of the survivor, as if it had been a simple gift of a 
 principal sum equivalent to those dividends (l). 
 
 Under a bequest of a certain specified sum secured upon Bonuses 
 
 -•■ pass under a 
 
 a policy of insurance, bonuses will pass, unless a contrary J'^^i'^^'j^''^ 
 intention appears (m). But a bonus on shares declared in secured. 
 the lifetime of the testator, though not payable till after his 
 death, will not pass under a bequest of the income or pro- 
 ceeds of the shares (n). 
 
 The word " debentures," occurring in a bequest of the '^^^^^,^' 
 general mass of the testator's personal property, has been 
 held by Sir F. Sugden, when Lord Chancellor of Ireland, 
 to be sufficient to pass policies of life insurance, even 
 though the testator has some debentures specifically so 
 called {o). 
 
 Bills of exchange or promissory notes, bonds, and "Securities 
 
 '-'■'- '' for money. 
 
 mortgage debts, will pass by the words " securities for 
 money" {p). 
 
 It has been held that canal and railway shares will not gg^'j^/j^f^'" 
 pass under a bequest of property " vested in securities " {q). 
 
 The word " goods," or " chattels," or " effects," standing |,'^^j°g|^' 
 
 (I) Homer X. 6^owW, 1 Sim. (N. S.) (o) PJiiIh'2:>s v. Eastivood,lAojd& 
 
 541. Gould, temp. Sugden, 270. 
 
 (m) 1 Rop. Leg. by White, 296 ; 0:>) 1 Rop. Leg. by White, 284. 
 
 Roberts v. Edwards, 33 Beav. 259, fo) H Jarm. & Byth. by vSweet, 
 
 {n) Loch V. Venahles, 27 Beav. 452 ; Iluddledon v. Gouldsburi^, 10 
 
 568. Beav. 547.
 
 1056 OF THE DESCRIPTION OF 
 
 pt.iii.t. 15, alone, will embrace all the personal estate of a testator: as 
 
 Ch. 3, s. 2. ^ 
 
 — bonds, notes, money, plate, furniture, &c. (r). But when a 
 
 property, 
 
 ettvcts testator only bequeaths floods and chattels or effects in a 
 
 personal -j x o 
 
 thiiit's'" particular situation, as " all his goods in his house at A.," 
 those alone pass which may be regarded as then connected 
 with that locality, rather than as independent of locality ; 
 so that furniture not attached to the freehold, linen, plate, 
 money, and bank notes, will pass ; but not things in action, 
 as bonds, mortgages, receipts, &c. (s). So, a specific legacy 
 of all a testator's "property," " personal estate," or "things," 
 in a particular place, will not pass choses in action there (t). 
 And when the word " goods," or " chattels," or " effects," 
 or " personalty," is preceded and connected with a number 
 of substantives of narrower import, it will be confined to 
 property ejusdem generis with those previously described 
 by those words ; unless something is excepted out of the 
 things enumerated, by words of narrower import, which is 
 not ejusdem generis with those things ; or unless the be- 
 quest is expressly or apparently residuary (u). But where 
 a testator disposes of all the residue of his estate and 
 effects, or disposes of his " personal estate," adding, without 
 any intervening words, an enumeration of certain specific 
 articles, the general words are not limited to things ejus- 
 dem generis with the specific articles, but the words enu- 
 merating the specific articles are regarded as a defective 
 enumeration (x). If a bequest is made " of all the testa- 
 
 (r) 1 Eop. Leg. by White, 250, (m) 1 Eop. Leg. by White, 261, 
 
 280 ; 1 Jarm. Wills, 2nd ed. 644 ; 267, 280 ; 1 Jarm. Wills, 2nd ed. 
 
 Kendall v. Kendall, 4 Russ. 360. 644, 648, 653 ; Ee WrighVs Trusts, 
 
 (s) 1 Eop. Leg. by White, 250 ; 15 Beav. 367 ; Avisonv. Simpson, 1 
 
 11 Jarm. & Byth. by Sweet, 442 ; Johns. 43 ; Borton^r. Dunbar, 2 Gif. 
 
 Marquis of Hertford \. Lord Low- 221; Swinfen \. Swinfen (No. 4), 
 
 ther, 7 Beav. 1 ; Svnnfen v. Sioinfen 29 Beav. 207 ; Nugee v. Chapman, 
 
 (No. 4), 29 Beav. 207. 27 Beav. 290. 
 
 (t) 1 Eop. Leg. by White, 259, (x) Fisher v. Hephurn, 14 Beav, 
 
 260 ; 11 Jarm. & Byth. by Sweet, 626 ; Dean v. Gihson, L. E. 3 Eq. 
 
 442. 713.
 
 THE THINGS BEQUEATHED. 1057 
 
 tor's ffoods, &c., in a particular house or place," without pt.iii.t.is, 
 
 any words indicating that he refers to such only as are 
 
 there at a particular time (as at the date of his will), what- 
 ever personal chattels are found there at his death will be 
 the property of the legatee (?/). And none but those wliich 
 are in that place at the death of the testator will pass, 
 except where the locality of them was referred to merely 
 for the purpose of describing the articles {s). 
 
 A bequest of "household furniture, plate, house linen, "au other 
 and all other chattel property," does not include the gene- property." 
 ral personal estate ; for the words " all other chattel pro- 
 perty " must be construed by the other words with which 
 they are associated, and mean all other chattel property 
 ejusdem generis, at least where there is a distinct residuary 
 clause (a). 
 
 In like manner the words " et cetera," following an enu- "Et cetera." 
 meration of specific articles, refer to things ejusdem generis, 
 and do not include the general residue (6). 
 
 Pictures placed as ornamental furniture of a house, and ''P^"™i- 
 plate and linen, pass under the description of " all furniture 
 belonging to a house." But, in general, books will not 
 pass under that description (c). 
 
 Where "fixtures and fixed furniture " are bequeathed to "Fixed 
 
 ^ furniture." 
 
 a person for life, and the household goods, furniture, and 
 other property " not comprehended under the term fixtures 
 and fixed furniture " are bequeathed to him absolutely, the 
 term " fixed furniture " includes looking-glasses standing 
 on chimney-pieces and nailed to the wall, and bookcases 
 standing on, but not fastened to, brackets, and screwed to 
 the waU {d). 
 
 (y) 1 Rop. Leg. by White, 248. 220. 
 
 (z) lEop. Leg. by White, 343 — 4. (c) Cremorne y. Antrobus, 5 'Russ. 
 
 (a) Lampier v. Despard, 2 D. & 312. 
 
 W. 59. {d) Birch v. Daioson, 2 Ad. & E. 
 
 (&) Newman v. Neioman, 26 Beav. 37 ; 6 C. & P. 658 ; 4 F. & M. 22.
 
 1058 
 
 OF THE DESCRIPTION OF THE THINGS BEQUEATHED. 
 
 Pt. III.T.15, 
 Ch. 3, s. 2. 
 
 "nouseLold 
 furniture." 
 
 " Household 
 scoorts." 
 
 " Household 
 effects." 
 
 *' Plant and 
 goodwill." 
 
 'Linen." 
 
 'Plate." 
 
 Under a bequest of household furniture, fixtures belong- 
 ing to the testator in a leasehold house occupied by him 
 will pass (c). But books do not pass under the words 
 " household furniture " (/). Nor do goods in a house of 
 business which belong merely to the business {g). 
 
 The term " household goods " includes all articles of 
 household which are neither fixtures nor things of such a 
 nature that they are consumed in being enjoyed {h), but 
 not articles used in the testator's trade, though contained in 
 his house ( i ). 
 
 The term " household effects " is more extensive than 
 household goods or furniture (/ ). Occurring after " house- 
 hold furniture," it comprises such things as wines (Tc). 
 
 The term " plant " includes all the things which form 
 part of the permanent establishment used for the purposes 
 of a trade, but not the fluctuating stock in trade, or the 
 household furniture. A gift of the plant and goodwill to- 
 gether may pass the leasehold interest in the house, where 
 that would be valueless without the goodwill (/). 
 
 The term " linen," without qualification, will comprise 
 body linen, table and bed linen, and every article to which 
 that general word can be applied (m). 
 
 " Plate," of itself, will not include plated articles {n). 
 
 ie) Paton v. Shepherd, 10 Sim. 
 186. As to the words " household 
 furniture, goods, or effects," see 1 
 Jarm. Wills, 2nd ed. 650, n. (6). 
 
 (/) 1 Rop. Leg. by White, 269. 
 
 {g) Manning v. Piircdl, 7 D. M. 
 & G. 55, 64, 68. 
 
 (/() See 1 Eop. Leg. by White, 
 253, 256. 
 
 (/) 1 Eop. Leg. by White, 253. 
 
 {j) 11 Jarm. & Byth. by Sweet, 
 441. 
 
 m Cole V. Fitzgerald, 1 S. & S. 
 189 ; 3 Russ. SOL 
 
 (?) BlaU V. Shav\ 1 Johns. 732. 
 
 (m) 1 Rop. Leg. by White, 289. 
 
 (w) Holden v. Ramshottom, 4 Gif. 
 205.
 
 OF THE PROPORTION IN WHICH LEGATEES TAKE. 1059 
 
 Section III. 
 
 Of the Shares or Pro]3ortions in ivhich two or more 
 Legatees take. 
 
 Under a bequest to tlie persons who would have been pt.iii.t.is, 
 
 ^ ^ Ch. 3, s. 3. 
 
 entitled under the Statute of Distributions, it should be 
 
 expressed whether they are to take in equal shares, or in 
 the proportions fixed by the statute (o). 
 
 Where a testator bequeaths personal estate to several 
 persons, as tenants in common, with a declaration, that, 
 upon all or any of their deaths before a particular time, 
 their respective shares shall be equally divided among 
 their respective issue or descendants, and they die before 
 the arrival of the period, some leaving children, and others 
 more remote descendants, the issue of such deceased 
 persons w^ill take their shares, per stirpes, and the issue of 
 any one of them so dymg, whether they be his children or 
 more remote issue, will divide his share among themselves 
 equally per capita {])). 
 
 Under a bequest to a husband and wife and another 
 person, or other persons, though in equal shares, the 
 husband and wife will generally take only one share 
 between them, as being but one person in law {q). 
 
 Under a bequest to be equally divided amongst the tes- 
 tator's next of kin, both paternal and maternal, the fund 
 is divisible between the two classes per capita, and not per 
 stirpes (?•). And under a bequest to A. and B. and their 
 
 (o) See Martin v. Glover, 1 Coll. 724 ; Gordon v. Whieldon, 11 Beav. 
 
 269 ; Richardso7i v. Richardson, 14 170. But see Paine v. Wagner, 12 
 
 Sim. 526. Sim. 184 ; Warrington v. War- 
 
 (jj) 1 Rop. Leg. by White, 163. rington, 2 Hare, 54 ; Marchant v. 
 
 See Timins v. Stackhouse, 27 Beav. Cragg, 31 Beav. 398. 
 434. {r) Dugdaley. Ditgdcde, 11 Beav. 
 
 (q) In re Wylde, 2 De G. M. & G. 402. 
 
 VOL. II. H H
 
 1060 
 
 OF THE PROPOKTION IN WHICH LEGATEES TAKE. 
 
 PT.iir.T.15, several children, to be divided between them, in equal 
 
 Ch. 3, s. 3. ' ^ 
 
 shares and proportions, the parents and their children 
 
 (such children being in esse at the date of the will) take 
 per capita and not per stirpes (.s). 
 
 Onus 
 
 probandi on 
 party seeking 
 priority. 
 
 No priority 
 from differ- 
 ence la 
 times of 
 payment ; 
 uor from 
 
 Section IV. 
 Of the Priority mid Abatement of Legacies. 
 
 If the assets, after payment of debts, are insufficient for 
 the payment of all the legacies and annuities, all the 
 general voluntary legacies and annuities abate rateably : for, 
 since they cannot all be paid in full, they shall all abate 
 rateal)ly, on the principle of the maxim " equality is 
 equity," " equity delighteth in equality." This rule is 
 indeed subject to exceptions ; for there are cases in which 
 some annuities or legacies are to be paid in priority to 
 others. But the onus lies on the party seeking priority, to 
 make out that such priority was intended by the testator ; 
 and the proof of this must be clear and conclusive. The 
 reason is, that a testator, in the absence of clear and 
 conclusive proof to the contrary, must be deemed to have 
 considered that his estate would be sufficient ; and conse- 
 quently not to have thought it necessary to provide against 
 a deficiency, by giving a priority in case of a deficiency to 
 some of the objects of his bounty {t). 
 
 Hence, a difference in times of payment will not impart 
 to any of the legatees such a preference as to exempt them 
 from abating upon a deficiency of assets. Nor will abate- 
 
 (s) CiLnninglmm v. Murray, 1 De 
 G. & S. 366. 
 
 (<) 1 Eop. Leg. by White, 421, 
 425 ; Story's Eq. Jur. § 544-7 ; 2 
 
 Spence's Eq. Jur. 314 ; Miller v. 
 HmhUeston, 3 Mac. & G. 523 ; 
 Thwaites v. Foreman, 1 Coll. 409.
 
 payment ; 
 
 nor from the 
 character of 
 
 OF THE PRIORITY AND ABATEMENT OF LEGACIES. 1061 
 
 ment be prevented by words which may be merely ex- ^ch^s's"!*' 
 pressive of the order in which the bequests are made in — - 7 
 
 •■^ ■■- words merely 
 
 succession (?<). Thus, the words " after payment " may i,'",|'^""f °'^'' 
 merely refer to the order of payment to be made, on the 
 supposition that there was a sufficiency of assets to pay 
 all the legacies, and do not necessarily or clearly import a 
 preference in the event of a deficiency of assets. They 
 are merely introductory to what follows ; importing no 
 more than would have been implied without them (,«). 
 And so where a testator, with reference to the different 
 payments to be made by his executors, uses the words " in 
 the first place," " and then," and " in the next place," these 
 words, unsupported by others, will be construed to be mere 
 introductory words of enumeration, and not words denoting 
 priority of payment {y). 
 
 And when there are no expressions manifesting an 
 intent to give a priority to a general voluntary legacy, the or^th?'*'^^' 
 character of the legatee or the purposes to which the the legacy, 
 legacy is to be applied will not exempt it from abate- 
 ment (z). Hence legacies to the children of the testator 
 will be subject to abatement as well as legacies to 
 strangers. If the testator has thought fit to provide for 
 other persons besides his children and his wife, so that he 
 has not made them the exclusive objects of his bounty in 
 the case of the property being sufficient, he might never 
 have intended them to be the exclusive objects of his 
 bounty even in the event of a deficiency. He may have 
 intended that the others should share with them in the 
 latter case as well as in the former, and in the same 
 proportion (a). 
 
 (m) 1 Rop. Leg. by White, 425, {y) Thwaites v. Foreman, 1 ColL 
 
 427. 409. 
 
 (aj) Miller v. Suddleston, 3 Mac. (2:) 1 Rop. Leg. by White, 418. 
 
 & G. 525 ; Haslewood v. Green, 28 («) Miller v. Huddlcston, 3 Mac. 
 
 Beav. 1. &G. 529. 
 
 H H 2
 
 1062 
 
 OF THE PRIORITY AND ABATEMENT OF LEGACIES. 
 
 Pt. in.T.15, 
 
 Ch. 3, s. 4. 
 
 Legacies for 
 a valuable 
 consideratiou 
 Lave 
 priority. 
 
 Abatement 
 as between 
 general and 
 specific 
 legatees ; and 
 as between 
 pecuniary 
 and residu- 
 ary legatees. 
 
 Upon the same principle, beqnests to charities are not 
 privileged from abatement. Nor are legacies to executors 
 for tlieir trouble (h). Nor are legacies bequeathed to cre- 
 ditors whose debts had been previously compounded (c). 
 
 When a general legacy is given for a valuable con- 
 sideration, as in consideration of a debt owing to the legatee, 
 or of his relinquishing any right or interest, it will have 
 priority over merely voluntary legacies. Hence legacies in 
 lieu of dower do not abate (d). 
 
 As between specific legatees and general legatees, in 
 case of a deficiency of assets, the loss falls entirely on the 
 latter ; so that the specific legacies are paid in preference 
 to the general legacies (e). If a fund is not sufficient for 
 both pecuniary and residuary legatees, and it was not of an 
 ascertained amount or expressly assumed by the testator 
 to be of a certain amount, but the amount of it was 
 unknown to him, the loss will fall wholly on the residuary 
 legatees (/). 
 
 Pt.III. T.15, 
 Ch. 3, s.S. 
 
 Double 
 legacies. 
 
 Section V. 
 
 Of Douhlc Legacies cmd Residuary Legacies. 
 
 AVhere, in form, two legacies are given to the same 
 person by the same will or the same codicil, if they are of 
 the same amount, they are construed as only one bequest 
 twice mentioned ; but if they are of different amounts, they 
 are held to be distinct legacies {g). 
 
 (b) 1 Rop. Leg. by White, 417. 
 
 (c) 1 Eop. Leg. by White, 418. 
 
 (d) 1 Eop. Leg. by White, 431 
 — 2 ; 3 & 4 Win. 4, c. 105, s. 12 ; 
 Stahlschmidt v. Lett, 1 Sm. & Gif. 
 421. 
 
 (e) 2 Spence's Eq. Jur. 343 ; 1 
 Eop. Leg. by White, 356. 
 
 (/) Petre v. Pctrc, 14Beav. 197 ; 
 ElvKs V. Causton, 30 Beav. 554. 
 
 ig) 2 Rop. Leg. by White, 996, 
 998.
 
 OF DOUBLE LEGACIES AND EESIDUAKY LEGACIES. 1063 
 
 Where, in form, two legacies, even though of the same pt^iii.t.is, 
 amount, are bequeatlied to the same person by different 
 testamentary instruments, namely, by two wills both 
 admitted to probate, or by a will and a codicil, or by different 
 codicils, two distinct legacies are thereby given, unless the 
 double coincidence occurs of the same motive expressed 
 and the same sum in both instruments ; or unless the 
 instrument giving the second legacy furnishes intrinsic 
 evidence that the second legacy was merely given in lieu of 
 the former (h). 
 
 Where a residuary legatee is general legatee, he is To what a 
 
 residuary 
 
 entitled to whatever may not be disposed of in terms or m logatte la 
 
 '' '■ entitled. 
 
 event (z). A residuary legatee of a partial residue will be 
 entitled to interests -which were a charge upon the partial 
 residue, but lapse (J ). 
 
 Section VI. 
 
 Of the Payment of Legacies. 
 
 Legacies are to be paid in the currency of the country '^^- "I-T-is, 
 in which the testator is domiciled and the will is made (l^. ~ 
 
 ^ ' In what 
 
 The executor is not obliged to pay, nor can he in many currency. 
 
 f 1 J 1 T • 1 Legacies to 
 
 cases saiely pay, the legacies sooner than a year after be paid 
 
 ■^ ^ '' ° '' within a 
 
 the testator's decease, although the testator may have y*'^''- 
 directed them to be discharged within six months after his 
 death (/). 
 
 (k) 2 Rop. Leg. by White, 999, 1 Jarra. Wills, Snd ed. 654. 
 1008, 1012 ; Russell v. Dickson, i (j) 2 Eop. Leg. by White, 1683, 
 
 H. L. Cas. 293 ; Townsend v. Mos- 1684. 
 
 ti/n, 26 Beav. 72 ; Tackey v. Ren- (1-) 1 Eop. Leg. by White, 856. 
 
 dcrson, 33 Beav. 174 ; Creswell v. (1) 1 Rop. Leg, by Wliite, 863 ; 
 
 CresweU, L. R. 6 Eq. 69. 9 Jarm. & Byth. by Sweet, 834 ; 
 
 (i) 2 Rop. Log. by White, 1673 ; 11 Jarm. & Byth. hy Sweet, 773.
 
 1064 
 
 OF THE PAYMENT OF LEGACIES, 
 
 Pt. III.T.15, 
 
 Ch. 3, s. ,6. 
 
 Eight to 
 indemnity 
 on yaymeut. 
 
 Right to 
 paynieut, 
 notwith- 
 standing 
 direction to 
 accumulate 
 or to post- 
 pone pay- 
 ment. 
 
 Death of 
 legatee 
 before time 
 for [jayment. 
 
 When there are contingent liabilities that may create 
 demands upon the assets of the testator, a Court of equity 
 will not oblige the executor to part with the fund without 
 a sufficient security for his indemnity against legal con- 
 sequences {ni). But executors bringing facts plainly before 
 the Court and distributing the assets under its direction are 
 absolutely protected against any future claims ; and the 
 only remedy of a creditor, on covenant or otherwise, is 
 against the legatees (/i). 
 
 "Where a legacy is directed to accumulate for a certain 
 period, or where the payment is postponed, the legatee, if 
 he has an absolute indefeasible interest in the legacy, is 
 not bound to wait until the expiration of that period, but 
 may require payment the moment he is competent to give 
 a valid discharge (o). 
 
 If a legacy is given to A., to be paid at twenty-one, and 
 A. dies before that period, his representative must wait for 
 the money until A,, if living, would have attained twenty- 
 one, if intermediate interest is not given, but not if inter- 
 mediate interest is given ( p). 
 
 Pt.III.T. 15, 
 
 Ch. 3, s. 7. 
 
 Interest on 
 
 Section VII. 
 
 Of the Interest or Income of Property hequeathed. 
 
 Specific legacies are considered as severed, for the benefit 
 of tlie legatee, from the bulk of the testator's property, 
 
 (m) 1 Kop. Leg. by White, 865. 
 On this subject see supra, pp. 659, 
 660. 
 
 (m) Bennett v. Lytton, 2 Johns. & 
 Hem. 155. 
 
 (o) Saunders v. Vautier, 4 Beav. 
 
 116 ; Cr. & Ph. 240 ; Eocke v. BocJce, 
 9 Beav. 66 ; ^e Toung^s Settlement, 
 18 Beav. 199 ; Gosling v. Gosling, 1 
 Johns. 265. 
 
 (p) 1 Hop. Leg. by Wldte, 868, 
 871.
 
 OF INCOME OF PKOPEKTY BEQUEATHED. 1065 
 
 from his death ; and. hence interest is computed on them pt. iilt.is, 
 
 . . Ch. 3, B. 7. 
 
 from that time, even where the enjoyment of the principal — ■_ 
 
 is postponed (q). legacies. 
 
 General legacies out of personalty usually carry interest General rule 
 only from the period when they become payable (?•). °e"aaef ^^ 
 Where no time of payment of a general legacy is named wiiere no 
 by the testator, there, in the absence of any contrary inten- ^^^'^"' ^^ 
 tion to be collected from the will itself, they shall be paid 
 at the expiration of one year next after his death ; and if 
 the executor then omits to pay them, the legatees will be 
 entitled to interest from that period, though actual payment 
 at that time may be impracticable (s). This rule applies 
 to legacies under an appointment by a feme covert (t), and 
 even to legacies given for the purchase of mourning 
 rings («'). And a direction to pay " as soon as possible " 
 does not exclude the application of the general rule (x). 
 And a general legatee of Long Annuities is not entitled to 
 dividends accruing before the expiration of a year from the 
 testator's decease (y). "VVliere a time of payment of general where a 
 legacies is named by the testator, and such legacies are not l^^^^^^ '^ 
 of a residue, there, with some exceptions, the legacies will 
 not carry interest before the arrival of the appointed time 
 of payment, even though they be vested ; but when that 
 period arrives, the legatees will be entitled, although the 
 legacy be charged upon a dry reversion (z). 
 
 The rule which postpones a legatee's title to interest Kxcepuonsto 
 
 general rule. 
 
 until the end of a year, or any other prescribed period of 
 payment, admits of exceptions, where there is an indication 
 
 (q) 2 Eop. Leg. by White, 1245 ; 504. 
 
 11 Jarm. & Byth. by Sweet, 774. (x) 11 Jarm. & Byth. by Sweet, 
 
 (r) 11 Jarm. & Byth. by Sweet, 773. 
 
 773. (y) Collyerv. Ashburner.2 De G. 
 
 (s) 2 Eop. Leg. by White, 1245. & S. 404. 
 
 {t) Tatham v. Drummond, 2 Hem. {z) 2 Rop. Leg. by White, 1253, 
 
 & Mil. 262. 1316. 
 
 (u) 11 Jarm. & Byth. by Sweet,
 
 1U66 
 
 OF INCOME OF PROPERTY BEQUEATHED. 
 
 pt.iii.t.15, of a contrary inteutioii in the will, or wliere legacies are 
 
 '- bequeathed in satisfaction of debts, or where a legacy is 
 
 given by a parent to his child, or by a person in loco 
 parentis, and no provision is made by him for the child's 
 maintenance {a), or by a person who, though not in loco 
 parentis, has empowered his executors to apply it, or 
 the income of it, for the maintenance or benefit of the 
 legatee (&). 
 
 Legacies charged primarily on real estate bear interest 
 from the testator's death (c). 
 
 Where there is no direction for accumulation, the tenant 
 for life of a residue is entitled from the death of the 
 testator to the income of all such parts of the residue as 
 are in a state of investment in accordance with the 
 directions of the will (d). And where a residue is directed 
 to be laid out in land, to be settled on one for life, with 
 remainder over, and the testator directs the interest to 
 accumulate in the meantime, the accumulation will cease 
 at the end of the year from the testator's death, and from 
 that period the tenant for life will . be entitled to the 
 interest (c). 
 
 Legacies 
 charged on 
 real estate. 
 
 Income of a 
 
 settled 
 
 residue. 
 
 Section VIII. 
 
 0/ Bequests generally (/). 
 
 ^^•^Tii.TJs, A bequest for the promotion of an object which would 
 Beq^ not be consistent with our amicable relations with a foreign 
 
 (a) 11 Jarm. & Byth. by Sweet, 
 773 ; 2 Eop. Leg. by White, 1290 ; 
 Donovan -v. Needham, 9 Beay. 164. 
 
 (b) In re Richards, L. E. 8 Eq. 
 119. 
 
 (c) 11 Jarm. & Byth. by Sweet, 
 
 773 ; 2 Bl. Com. 513. 
 
 {d) 2 Eop. Leg. by White, 1321 
 2. 
 
 (e) 2 Eop. Leg. by White, 1336. 
 
 (/) As to gifts to superstitious 
 uses, see Boyle on Charities, 242, et
 
 OF BE.QUESTS GENERALLY. 1067 
 
 state is void : as in the case of a bequest towards the ^ch^s.'I/s?' 
 political restoration of the Jews to Jerusalem {g). contrary to 
 
 So also is a bequest tending to protect persons from the ^^^^^ 
 consequences of crimes which they have committed, or 
 otherwise to encourage offences against the law iji). 
 
 So also is a bequest for a purpose which is to endure for 
 ever, other than a charitable bequest. On this principle it 
 has been held that a bequest of money in trust to keep up 
 the tomb of the testator and his family is void, as being a 
 perpetuity {%) ; but that a bequest in trust to keep in 
 repair a monument in the church and a memorial window 
 is a good charitable bequest {j). 
 
 Where a legacy is given, and the application of it is ^''?^^^]^'>j|^ 
 prescribed by the testator himself, or left by him to the purpose, 
 discretion of some other person, if that discretion is not 
 exercised, or circumstances prevent the employment of it 
 in the way which is contemplated, the gift prevails. The 
 mode of application may fail, but that will not interfere 
 with the substance of the gift (A"). And if a bequest is 
 made to or in trust for a legatee, for a particular purpose 
 (as, to put him out apprentice or to advance him in a 
 business or profession), it is an absolute bequest to him, 
 
 seq. ; 1 Jarm. Wills, 2nd ed. 170 — a purely metaphysical principle, at 
 
 173; Heath v. Chapman, 2 Drew. the expense of justice, reason, and 
 
 417 ; and supra, 283. common sense, and ought to be 
 
 {g) Habershon v. Vardon, 4 De swept away with a strong hand. 
 
 G. & S. 467. " Apices juris non sunt jura." 
 
 (A) Thrupp V. Colkit, 26 Beav. (j) Hoare y. Osborne, L. R 1 Eq. 
 
 125. 585. 
 
 (!) Rid-ard \. Rohson, 81 Beav. {k) 1 Rop. Leg. by White, 646 ; 1 
 
 244 ; Fowler \. Fowler, 33 Beav. Jarm. Wills, 2nd ed. 326 ; Lord 
 
 616 ; Hoare t. Osborne, L. R. 1 Eq. Cottenham, C, in affirmance of the 
 
 585; Fish v. Att.-Gen., L. E. 4 decision of .S'Aadtw??, V.C. E., Gow^r/t 
 
 Eq. 521. Such a deci-ion may be t. Bidk^lQ Sim. 54 ; Earl of Lons- 
 
 thought to be only in keeping with dale v. Countess of Berchfoldt, 3 K. 
 
 a large number of others, which con- & J. 185; Re Skinner's Trusts, 1 
 
 sist (in the author's opinion) in Johns. & Hem. 102. 
 carrying out an abstract and often
 
 1068 
 
 OF BEQUESTS GENERALLY. 
 
 Pt.IILT.15, 
 
 Ch. 3, s. 8. 
 
 Operation of 
 a divesting 
 clause 
 
 restricted to 
 a period 
 prior to 
 tbe time 
 appointed for 
 payment. 
 
 SO that he will be entitled to the payment of it before it is 
 required for the purpose mentioned, and, if he dies before 
 it has been so paid or applied, it will form part of his per- 
 sonal estate (/). But where a discretion is reposed in trus- 
 tees, both as to the propriety of raising the money, and as 
 to the amount, there, if the legatee dies before the discretion 
 is exercised, the legacy fails {m). 
 
 When a certain and determinate period is appointed for 
 the payment of a legacy, and it is given over upon the 
 happening of a contingent event, the divesting clause is to 
 be confined within the time when the legacy is payable ; 
 for otherwise it could not operate until the money might 
 have been received and spent (ii). 
 
 (I) 2 Eop. Leg. by White, 1496 ; 
 2 Spence's Eq. Jur. 462. 
 
 (m) Cowper v. Mantell, 22 Beay. 
 
 231. 
 
 (n) 1 Kop. Leg. by White, 797, 
 822—3.
 
 PAET IV. 
 
 (Df axinux |lcrsons aiib mbtcllaiteaus |5^abs of 
 f ah) coumctttr toitlj Conbcyiinnng. 
 
 TITLE I. 
 
 OF CEETAIN PEESONS CONNECTED WITH CONVEYANCING. 
 
 CHAPTEE I. 
 
 OF EXECUTORS AND ADMINISTEATORS («). 
 
 An executor is the person to wliom a testator commits paet iv. 
 the execution of his will. ' — 1-1 
 
 All who are capable of making wills are capable of being exerator!"^ 
 appointed executors, and many others besides, as femes ^ecuu.r^''^ 
 covert and infants, and even infants unborn or in ventre 
 sa mere. But by the stat. 38 Geo. 3, c. 87, s. 6, no person 
 who is sole executor can act as such till the age of twenty- 
 one years (h). 
 
 The appointment of an executor may be made either by now an 
 
 executor 
 
 express words, or by plain implication. maybe 
 
 -^ ./ J- J. appointed. 
 
 If the testator makes his will without naming any exe- Admiaistra- 
 cutor, or if he names incapable persons, or if tJie executors testameuto 
 
 anueio. 
 
 named refused to act, administration cum testamento annexe 
 must be granted to some other person (c). 
 
 (a) On this subject the reader is (b) 2 Bl. Com. 503 ; 1 Wms. on 
 
 referred to The Right Hou. Sir Exors. 4th ed. 189 ; Watk. Conv, 
 
 Edward Vaughan Williams's valu- 3rd ed. by Prest. 248. 
 
 able work. (c) 2 Bl. Com. 503.
 
 1070 
 
 OF EXECUTOKS AND ADMINISTRATORS. 
 
 Part IV. 
 T. 1, Ch. 1. 
 
 Administra- 
 tiou durante 
 miiiore 
 rotate, 
 durante 
 absentia, or 
 pendente 
 lit.e. 
 
 General 
 administra- 
 tion. 
 
 To whom it 
 is granted. 
 
 When a sole executor is under age, or is out of the 
 reahn, or when the validity of the will is contested in the 
 Court of l*robate, an administrator is appointed durante 
 minore tetate, or durante absentia, or pendente lite (d). 
 
 There are some peculiar cases of property of a very small 
 amount which, by certain statutes, is payable to the next 
 of kin, Avithout taking out any letters of administration (c). 
 But with these exceptions, if the deceased died totally 
 intestate, general letters of administration must ordinarily 
 be granted to such administrator as the statutes 31 Edw. 3, 
 c. 11, and 21 Hen. 8, c. 5, direct. And, 1. Administration 
 of the goods and chattels of the wife must be granted to the 
 husband or his representatives ; and administration of the 
 husband's effects to the widow or next of kin, or to both. 
 2. Among the kindred, those or some of those are to be 
 preferred who are the nearest in degree to the intestate 
 according to the Civil Law mode of computation (/), 
 whether those of the paternal or maternal line, without 
 distinction. Of persons in equal degree, there are some 
 who are to be preferred ; but subject to this, administration 
 may be granted to any of them. Thus, in the first place, 
 the children, or their lineal descendants, are entitled, or, if 
 there are no issue, the father, or, if no father, the mother of 
 the deceased, is entitled. Then follow brothers or sisters, 
 next grandfathers or grandmothers, then uncles or aunts or 
 nephews or nieces, and, lastly, cousins. But the next of 
 kin, in order to be entitled to administration, must have an 
 interest in the property. 3. The half blood is admitted to 
 the administration as well as the whole ; for they are of 
 the kindred of the intestate, and were only excluded from 
 inheritances of land upon feudal reasons. Therefore, the 
 brother of the half blood shall exclude the uncle of the 
 
 {d) 2 Bl. Com. 503; Wms. on 
 Exors. 4th ed. 189. 
 
 (e) See Stamp's Index to the 
 
 Statute Law tit. "Administration." 
 (/) See supra, p. 4G6.
 
 OF EXECUTORS AND ADMINISTRATOKS. 1071 
 
 ^vllole blood, and administration may be granted to the ^^^'^^^J-j^ 
 
 sister of the half or the brother of the whole blood. 4. If 
 
 none of the kindred will take out administration, a creditor 
 may by custom do it (g). 
 
 If the executor refuses or dies intestate, the adminis- 
 tration may be granted to the residuary legatee, in 
 exclusion of the next of kin (rj). 
 
 For default of these persons, the Court may commit 
 administration (as it might have been done before the 
 statute of Edw. 3) to such discreet person as it approves 
 of, or may grant him letters ad colligendum bona defunct i, Letters ad 
 which neither make him executor nor administrator ; his ^"f^^gti^ 
 only business being to keep the goods in his safe custody, 
 and to do other acts for the benefit of such as are entitled 
 to the property (h). 
 
 Although the above are the general rules, yet by the Power to 
 
 «= ° ' J ■; grant to 
 
 20 & 21 Vict. c. 77, s. 73, the Court of Probate is °'^''' 
 
 ' ' persuus. 
 
 empowered to grant administration to any person it may 
 deem fit. 
 
 If a bastard, who has no kindred, being nullius filius, Administra- 
 
 ° tioL where 
 
 or any one else that has no kindred, dies intestate and ti»e deceased 
 
 •^ ' has uo 
 
 without wife or child, the usual course now is for some ^"'^^'^• 
 one to procure letters patent or other authority from the 
 Cro^\m, and then the Court grants administration to 
 him (i). 
 
 By the old law, if all the goods lay within the same Diocesan 
 
 _ >_ ^ pri)bate or 
 
 jurisdiction, a probate before the ordinary or an adminis- ^|,^"'^^*'"^" 
 
 tration granted by him was the only proper authority. rrerogatiTo 
 
 But if the deceased had bona notabilia or chattels to the administra- 
 tion. 
 
 value of a hundred shillings in two distinct dioceses or 
 jurisdictions, then the will must have been proved or 
 administration taken out, to save trouble and also uncer- 
 tainty to creditors and legatees, before the metropolitan of 
 
 {g) 2 Bl. Com. 504, 505 ; 1 Wms. {h) 2 Bl. Com. 505. 
 
 Exors. 4th ed. 336—7. (i) 2 Bl. Com. 505.
 
 1072 OF EXECUTORS AND ADMINISTRATORS. 
 
 Part IV the provincG by way of special prerogative : whence 
 
 the Courts where the vahdity of such wills was tried, and 
 
 the offices where they were registered, were called the 
 Prerogative Courts, and the Prerogative Offices, of Cauter- 
 New Court ot bnry and York (/). But by the stat. 20 & 21 Vict. c. 77, 
 the jurisdiction as to probate and letters of administration 
 is vested in one new court, called the Court of Probate. 
 ofThe^coun't ^y ^- ^^> lio^cver, wliere the personalty is under £200, and 
 ^°"'''^- t]ie real estate under £300, the County Court has the 
 
 contentious jurisdiction. This section was repealed by 
 s. 11 of the stat. 21 & 22 Vict. c. 95, but the above pro- 
 vision was re-enacted by s. 10. 
 Enactments By 20 & 21 Vict, c. 77, s. 86, probatcs and adminis- 
 
 as to pro- "^ 
 
 bates and tratious granted by Courts which had not jurisdiction 
 
 admimstra- o J o 
 
 ^hTxclT^ are made valid, unless set aside by any Court. And by 
 s. 87, probates and administrations before the Act are to 
 have the same force and effect as if granted mider the 
 Act {k). 
 
 Several A. tcstator mav aiDpoint several executors for different 
 
 executors for ./ x j- 
 
 puroMesor purposes, and in respect of different parts of his property, 
 properties. ^^^ ^^^ Yi^q manner, an administrator may have only 
 
 Adrainistra- . 
 
 tJTa '^"ticu- ^ limited or special administration committed to his care (/). 
 lar thing. rjij^^ exccutor of a sole executor or sole surviving exe- 
 
 Transmission 
 
 of^represen- cutor who has provcd, is the executor and personal repre- 
 sentative of the first testator ; unless he refuses that office, 
 which he may do, while he accepts that relating to the 
 property of his own immediate testator, though not vice 
 versa. And so long as the chain of representation is 
 unbroken by any intestacy, the ultimate executor is the 
 representative of every preceding testator, because the 
 power of an executor is founded upon the special confi- 
 dence and actual appointment of the deceased, and such 
 executor is therefore allowed to transmit that power to 
 
 {j) 2 Bl. Com. 509, 510. {I) Burton, § 977—8 ; 2 Bl. Com. 
 
 (k) See Jebb's Probate Act, p. 15. 506.
 
 OF EXECUTORS AND ADMINISTRATORS. 1073 
 
 another in whom he has equal confidence. But the /j^^n^i 
 
 administrator of an executor is not the representative of 
 
 the testator; because he was merely the officer of the 
 ordinary or metropolitan, in whom the deceased executor 
 had reposed no trust at all. Nor does the executor of a 
 deceased executor at all represent the original testator, 
 where such deceased executor has left a co-executor him 
 surviving. For, in such case, the representation devolves 
 on the surviving co-executor, if he proved in the life- 
 time of the deceased executor. And if he has not proved ^o^^'bom's 
 in the lifetime of the deceased executor, and does not °™' 
 choose to prove after he becomes the survivor, (as he 
 might formerly do, even though he had renounced,) or if a 
 sole executor or sole surviving executor dies after probate, 
 intestate, or if a sole or sole surviving administrator dies, 
 whether testate or intestate, an administration de bonis 
 non is granted, that is, an administration of the goods of 
 the original testator or intestate left unadministered (vi). 
 
 An executor may contract and do many acts before Acts before 
 
 •^ '^ probate or 
 
 he proves the will, but an administrator may do nothing ^q™"''^*'^^' 
 till letters of administration are issued ; for the former 
 derives his power from the will, and not from the probate ; 
 while the latter derives his title entirely from his appoint- 
 ment as administrator, though his title relates back to the 
 time of the intestate's decease (n). An executor, before 
 probate of the will, may release a debt or duty due to the 
 testator. But the release cannot be given in evidence 
 until the will has been rendered authentic by probate or 
 letters of administration (o). 
 
 The whole personal property vests in the executor (p), Personauy 
 
 {711) Wms. on Exors. 4th ed. 207 2nd ed. 593. 
 
 —209, 387—390 ; 2 Bl. Com. 506 ; (0) 2 Pres. Shep. T. 334 ; Co. 
 
 Burton, § 962—970 ; 3 Jarm. & Litt. 292 b. 
 
 Byth. by Sweet, 709 ; see infra, ( p) 1 Wms. on Exors. 4th ed. 
 
 1082. 546. 
 
 (w) 2 Bl. Com. 507; Broom's Com.
 
 1074 
 
 OF EXECUTORS AND ADMINISTRATORS. 
 
 Part IV. 
 T. 1, Ch. 1. 
 
 vests in the 
 executors, 
 who tliercby 
 become liable 
 to c red i tors 
 and lei'atet-s. 
 
 Emblements. 
 
 Where 
 executors 
 take au 
 estate, and 
 where ouly a 
 power. 
 
 Executors 
 take a joint 
 and several 
 interest, but 
 administra- 
 tors do not. 
 
 SO that the demands of creditors and legatees are personal 
 upon the executor ; and tliough tliey exist in respect of 
 the property, and are limited by the extent of it, yet they 
 are no lien upon it, wliether in his hands or in the hands 
 of his assignees {q), where they are not affected with 
 fraud. 
 
 If an executor has, without the direction of the Court, 
 paid away tlie residue in ignorance of the existence of any 
 debt, he is still liable for it. But an executor fairly 
 stating the facts, and paying over the assets under the 
 direction of the Court, in an administration suit, is fully 
 indemnified against all existing or contingent demands on 
 the estate (?■). 
 
 Executors of a tenant in fee simple are entitled to the 
 corn growing at his death, as against his heir, but not as 
 against his devisee (.s). 
 
 A devise of land to executors to sell passes the estate 
 in it ; but a devise that executors shall sell it, or that it 
 sliall be sold by the executors, gives them a power only (/). 
 
 A\liere executors take the residue in the character of 
 executors, they take the same as joint tenants. And 
 hence if one of them dies before the testator, the sur- 
 vivors are entitled to the whole property («). But where 
 there are several executors who all prove the will, they 
 have not only a joint but also a several interest in aU the 
 goods and chattels of the testator. Hence, a sale or 
 release by one of them is good. But it is otherwise in the 
 case of administrators (a). It is the usual practice, how- 
 
 {q) See Co. Litt. 290 b, n. (1), 
 xiv. 1. 
 
 (r) 2 Sp. Eq. Jur. 921 ; Waller 
 V. Barrett, 24 Beav. 413 ; Williams 
 V. Headland, 4 Gif. 495; but see 
 supra, 659, 660. 
 
 (s) Co. Litt. 55 b, n. (2) ; 2 Pres. 
 Shep. T. 472 ; Cooper v. Woolfit, 2 
 Hurl. & Norm. 122. 
 
 {t) 1 Sugd. Pow. 131—134 ; Doe 
 d. Hampton t. Shatter, 8 Ad. & E. 
 905. 
 
 [u) 1 Pop. Leg. by White, 484 ; 
 1 Wms. on Exors. 4th ed. 208. 
 
 (or.) 1 Cruise T. 8, c. 1, § 27 ; 2 
 Pres. Shep. T. 303, 335 ; 9 Jarm. 
 & Byth. by Sweet, 802 ; 2 Bl. Com. 
 510.
 
 OF EXECUTORS AND ADMINISTRATORS. 1075 
 
 ever, to require the concurrence of all the executors, in part i v. 
 
 ' ^ T. 1, Ch. 1. 
 
 order to guard against the possible event of a sale having 
 been made by any other executor, and, in the case of an 
 assignment of a term, in order that the purchaser may 
 have the benefit of a covenant from all the executors that 
 they have not incumbered (y). 
 
 Executors and administrators represent the testator, and Rights ot 
 
 ^ executors or 
 
 are entitled to all damages which accrued to the testator in f^^^'/J,'*'"'''*" 
 
 his lifetime, and to the benefit of all covenants with and coYenluts, oi- 
 
 duties to the testator, except those duties which concern 
 
 acts to be done to tlie testator personally in respect of 
 
 his person, and which become impossible of performance 
 
 by his death, or which are to be done for creating a title to 
 
 be communicated to the heir (z). 
 
 An executor or administrator has a right to retain out Right of 
 
 retainer, or 
 
 of legal assets the amount of a debt due to him, either bene- paymeut of 
 
 o debts, thoiu h 
 
 ficially or as trustee, as against creditors of equal degree («). barred. 
 
 An executor may pay a debt justly due to another 
 person, although barred by the Statute of Limitations in 
 the testator's lifetime. And he may retain a debt due to 
 himself, although so barred (b). 
 
 One of two or more executors may settle an account Power or one 
 
 executor to 
 
 with a person who is accountable to the estate, so as to ^^"i'^ *"* 
 
 i ' account. 
 
 bind the others and the estate ; subject to any question of 
 his liability to the parties beneficially interested for any 
 impropriety of conduct ; and subject to this also, that if 
 there is any fraud or gross error in the settlement of 
 account, it may be a ground for re-opening it (c). 
 
 As the law vests all the chattels real and personal of a Necessity 
 
 for asspnt to 
 
 testator in the executor, to be applied by him, in the first a legacy, or 
 
 (ij) 9 Jarm. & Byth. by Sweet, 1635 ; Stahlschmidt v. Lett, 1 Sm. & 
 
 138. G. 41.5 ; Hill v. Walker, 4 K. & J. 
 
 (2) 1 Pres. Shep. T. 175. 176. 
 
 («) 2 Wms. on Exors. 4th ed. 894 (c) Smith v. Everett, 27 Beav. 446, 
 
 —904 ; Boyd v. Broolcs, 34 Beav. 7. 454. 
 
 (h) 2 Wms. on Exors. 5th ed-
 
 1076 
 
 OF EXECUTORS AND ADMINISTRATORS. 
 
 Part IV. 
 T. 1, Cn. 1. 
 
 to a devise of 
 a term of 
 years. 
 
 Assent of 
 executors, 
 how sisruified. 
 
 As.^ent by 
 one executor. 
 
 Assent by 
 husbaiid of 
 executrix. 
 
 Assent in 
 cases of 
 legacy 
 limited by 
 way ot quasi 
 remainder. 
 
 When assent 
 should be 
 given. 
 
 Effect of 
 assent. 
 
 Effect of 
 appointing 
 creditor or 
 debtor, or 
 obUgee or 
 
 place, in payment of debts ; so every legatee must obtain 
 the executor's assent to his legacy before his title as legatee 
 can be complete (d). So that, whenever a term for years 
 is devised, the consent of the executor is necessary to com- 
 plete the title of the devisee, as in the case of any other 
 legacy (c). 
 
 Any expression or act done by the executor which 
 shows his concurrence in a bequest will amount to an 
 assent (/). 
 
 One executor is competent to assent to a legacy ((/). 
 
 If an executrix is a married woman, the assent of her 
 husband to a legacy will be sufficient ; as the law autho- 
 rises him to administer in right of his wife (A). 
 
 Where a legacy is limited to several persons in succes- 
 sion, the executor's assent to the first taker will be con- 
 sidered an assent to the quasi remainder or remainders. 
 And, on the other hand, his assent to a quasi remainder 
 will enure to the benefit of any person taking a prior in- 
 terest in the property bequeathed (i). 
 
 It is the duty of executors to assent as soon as all the 
 debts and expenses attending the administration have 
 been satisfied, and there is a sufficient residue to pay all 
 the legacies (/). 
 
 By assent the legal interest which the executor had in 
 the fund ceases, and the entire property legal and equit- 
 able becomes vested in the legatee (k). 
 
 If an obligee or creditor makes a sole or joint obligor or 
 debtor his executor or one of his executors, the obligation 
 or debt is released at law, except as against creditors. But 
 
 (d) 2 Wms. on Exors. 4th ed. 
 1175,1176. 
 
 (e) 6 Cruise T. 38, c. 3, § 6. 
 
 (/) 1 Jarm. & Byth. by Sweet, 
 185 ; 2 "Wms. on Exors. 4th eel. 
 1178 ; 1 Rop. Leg. by White, 846. 
 
 (</) 9 Jarm. & Byth. by Sweet, 
 
 138 ; 1 Hop. Leg. by White, 844 
 —5. 
 
 (h) 1 Eop. Leg. by White, 846. 
 
 (i) 1 Rop. Leg. by White, 849 ; 6 
 Cruise T. 38, c. 3, § 6. 
 
 (j) 1 Eop. Leg. by White, 854. 
 
 {k) 1 Eop. Leg. by White, 844.
 
 OF EXECUTOKS AND ADMINISTRATOKS. 1077 
 
 in equity the executor is converted into a trustee of the part iv. 
 
 , , T. 1, Ch. 1. 
 
 debt for the parties interested in the estate, whether as 
 
 ■^ obligor, to be 
 
 creditors, legatees, or persons claiming under the Statute of ^^®j^"^?Jt°j[. 
 Distributions. The executor, as executor, is deemed to *"''• 
 have received the debt from himself, as obligor or debtor, 
 and to be answerable for it as assets in his hands (/). On 
 the other hand, if a sole or joint debtor appoints his obligee 
 or creditor to be his executor or one of his executors, and 
 he proves the will or acts as executor, and he has assets 
 to pay the debt, the debt is extinguished at law, upon the 
 principle that he is supposed to have paid himself out of 
 those assets {m). 
 
 The granting of letters of administration to an obligor or 
 debtor, is only a suspension of the obligation {n). 
 
 It is a rule, without exception, that to authorise execu- {jfj'j^s'jftor.s 
 tors to carry on a trade, or to permit it to be carried on ^"^^^e*^- 
 with the property of the testator held by them in trust, 
 there ought to be the most distinct and positive authority 
 and direction given by the will for that purpose (o). A 
 direction that the testator's trade shall be carried on does 
 not of itself authorise the employment in the trade of more 
 of the testator's property than was employed in it at the 
 time of his decease ; or at all events it does not authorise a 
 mortgage of his real estate not employed at his death in 
 the trade, for the 2:)urpose of carrying it on {p). 
 
 Sales or mortgages by executors or administrators of the saies or 
 
 mortgages 
 
 personal property, M^hether specifically bequeathed or not, iiy executors 
 
 -t ii./' r J X ' QT adminis- 
 
 are ordinarily valid, notwithstanding it may be affected Orators. 
 with some peculiar trust or equity in their hands ; for the 
 purchaser or mortgagee cannot be presumed to know that 
 
 {I) 2 Wms. onExors. 5th ed. 1180 1183 ; 2 Pres. Shep. T. 395. 
 
 — 5; 2 Spence's Eq. Jur. 296; 2 (o) Kirlonan v. Booth, 11 Beav. 
 
 Pres. Shep. T. 335, 395. 280. 
 
 ()ft) 2 Wms. on Exors. 5th ed. (p) McNeillie v. Acton, 4 D. M. 
 
 1186—7. & G. 748. 
 
 (n) 2 Wms, on Exors. 5th ed. 
 
 ii2
 
 1078 OF EXECUTOKS AND ADMINISTRATORS. 
 
 /'rcH^i ^^^® ^^^^ ^^' mortgage may not be required in order to dis- 
 
 —- charge the debts of the testator, to which they are legally 
 
 liable before all other claims. But if the purchaser or 
 mortgagee knows that the executor or administrator is con- 
 verting the estate for an unlawful purpose, the purchase or 
 mortgage will be set aside (q). And the purchase of a par- 
 ticular chattel specifically bequeathed cannot be recom- 
 mended without the concurrence of the legatee, because the 
 executor may have assented to the bequest (r). 
 ^ecfutorsare ^J ^^^^ s^at. 21 Hcu. 8, c. 4, whcrc lands are willed to be 
 to sd^ and sold by executors, though some of them refuse to act, yet 
 will not act. the rest may sell (.s). And though the letter of the law 
 extended only to cases where executors had a bare power 
 to sell, yet, being a beneficial act, it has been by con- 
 struction extended to the case of lands devised to execu- 
 tors to be sold (f). And it applies to coyyholds, and to 
 the case of devisees in trust who are named as executors in 
 a subsequent part (u) ; at least where the proceeds, as to 
 all or some of the purposes to which they are to be applied, 
 are distributable by the executors in that character, as in 
 payment of debts («). 
 aerators to Testators not unfrequently appoint executors, without 
 r^JiduT^*^ *^ making any express disposition of the residue of their per- 
 sonal estate. Executors so appointed become by law en- 
 titled to the whole residue of such personal estate. And 
 before the stat. 1 Will. 4, c. 40, Courts of equity so far 
 followed the law as to hold such executors to be entitled 
 
 (q) Story's Eq. Jur. § 422, 423, {u) Wms. oii Exors. 5th ed. 856 ; 
 
 580, 581 ; 1 Eop. Leg. by White, Sugd. V. & P. 13th ed. 547 ; Pepper- 
 
 434—5. corn v. Wayman. 5 D. & Sm. 230, 
 
 (r) Sugd. Concise View, 526 — 7. affirmed by the Lords Justices. 
 
 (a) 1 Sugd. Pow. 142 ; Burton, § {x) See 1 Chitty s Statutes, 1127; 
 
 236, 974 — 5. and Peppercorn v. Wayman, 5 De G. 
 
 («) 6 Cruise T. 38, c. 16, § 24 ; & Sm. 230 ; Denne d. Bowi/cr v. 
 
 Burton, § 976 ; 9 Jarm. & Byth. by Judijc, 11 East, 289. 
 Sweet, 429.
 
 OF EXECUTORS AND ADMINISTRATORS. 1079 
 
 to retain such residue for their own use, unless it appeared part iv. 
 
 ^ '- T. 1, Ch.1. 
 
 to have been theii' testator's intention to exclude them 
 
 from the beneficial interest therein ; in which case they 
 were held to be trustees for the person or persons (if any) 
 who would be entitled to such estate under the Statute of 
 Distributions, if the testator had died intestate. By the 
 stat, 1 Will, 4, c. 40, after reciting these circumstances, 
 and that it w\as desirable that the law should l^e extended 
 in that respect, it is enacted, " that when any person shall 
 die after the first day of September next after the passing 
 of this Act (July 16, 1830), having, by his or her will, or 
 any codicil or codicils thereto, appointed any person or 
 persons to be his or her executor or executors, such exe- 
 cutor or executors shall be deemed by Courts of equity to 
 be a trustee or trustees for the person or persons (if any) 
 who would be entitled to the estate under the Statute of 
 Distributions, in respect of any residue not expressly dis- 
 posed of, unless it shall appear by the will or any codicil 
 thereto that the person or persons so appointed executor 
 or executors was or were intended to take such residue 
 beneficially." But by the 2nd section it was enacted, " that 
 nothing herein contained shall affect or prejudice any right 
 to which any executor, if this Act had not been passed, 
 would have been entitled in cases where there is not any 
 person who would be entitled to the testator's estate under 
 the Statute of Distributions in respect of any residue not 
 expressly disposed of." 
 
 The onus probandi, therefore, is on the parties opposing 
 the executor in cases not within the stat. 1 Will. 4, c. 40, 
 just as it is now thrown on the executor in cases withm 
 that Act. In the former class of cases there must appear 
 to be an intention to exclude the executor from the bene- 
 ficial interest ; in the latter, to confer that interest upon 
 him (?/). But it must not be inferred from this, that the 
 
 (y) Juler v.Jiilcr, 29 Beav. 34 ; Harrisuu v. Harrison, 2 Hem. & Mil. 237«
 
 1080 OF EXECUTORS AND ADMINISTRATORS. 
 
 Part IV position of ail executor in the former class of cases is ana- 
 
 T. 1, Ch. 1. '- 
 
 logons to that of an heir at law of real estate, who takes 
 
 what is undisposed of. An heir at law is the person whom 
 the law, so far as it is uncontrolled by testamentary dispo- 
 sition, designates as the proper ol)ject of succession to the 
 inheritance ; and the maxim is, melior est dispositio legis 
 quam hominis. And the next of kin stand in the same 
 position as the heir at law as to realty. Each has a prima 
 facie title, so that the person claiming against either of 
 them must make out his title, by showing a valid disposi- 
 tion of the property. But the executor takes the legal 
 interest by virtue of an express appointment to the office 
 of executor, and the beneficial interest attaches to the legal 
 interest in him, unless the will affords sufficient evidence 
 of an intention that he is to take in a fiduciary character ; 
 in which case the beneficial interest has a separate and in- 
 dependent existence, and, instead of attaching in him, 
 stands apart from his legal interest, and vests in the persons 
 whom the testator has designated as the objects of his 
 bounty, and who might be termed testamentary cestuis que 
 trust ; or, in default of those, then in the persons who have 
 a statutory right grounded on the relationship to the tes- 
 tator, and who may be considered as the statutory cestuis 
 que trust (z) ; or if there are no next of kin, then in the 
 Crown («). 
 
 Cases in which the residue is expressly disposed of, 
 though it be by way of a gift of the whole property to the 
 executors themselves, are not within the Act (h). 
 
 With regard to what is sufficient evidence of such in- 
 tention to exclude the executor, in cases not within the 
 
 (z) Ellcoch V. Mapp, 3 CI. & F. & Gif. '241 ; Head v. Stcadman, 26 
 
 507 — 8 ; Underwood v. Wing, 4 D. Bcav. 495. 
 M. & G. 633, 656. 659. (6) Saltnmrsh v. Barrett, 29 Beav. 
 
 (a) Poivell V. Merrett, 1 Sm. & 474; 3D. F. & J. 279. 
 Gif. 381 ; Cradock \. Owen, 2 Sm.
 
 OF EXECUTORS AND ADMINISTRATORS. 1081 
 
 Act, "necessary implication or violent presumption," is j^^'^'^^^^j^ 
 
 not requisite : if there is a plain implication or a strong 
 
 presumption of sucli an intention, the executor will be 
 deemed a trustee. So that where a testator gave all his 
 estate to A., his executors, administrators, and assigns, to 
 and for certain uses, intents, and purposes, which he spe- 
 cified, and then appointed A. his executor, there, although 
 the trusts did not exhaust the whole property, yet A. was 
 invested with a fiduciary character as to the whole, and 
 therefore he was excluded from taking beneficially as to 
 any part of it (c). 
 
 In demises, and assignments, and devises of terms for u^e of 
 years, and in assignments and bequests of chattels personal, ti"atore'"as''^' 
 it is usual, but not necessary, to add " executors and ad- hmuluon. 
 ministrators," as words of limitation, analogous to " heirs " 
 in the case of a fee simple. The whole term or the entire 
 interest in the chattel personal will pass without naming 
 them (d). And where a devise of a term or a bequest of 
 other personal estate is made to a person, his executors 
 and administrators, and he dies before the testator, the 
 property cannot be claimed by his executors or adminis- 
 trators (c). 
 
 And if an interest for life is given to a person, with an 
 ultimate limitation, sul^ject to prior dispositions or to his 
 appointment, to his executors and administrators, or exe- 
 cutors, administrators, or assigns, the absolute interest, so 
 subject, vests in himself, if he survives the testator (/). 
 And under a bequest to a female, whether married or 
 single, for her separate use for her life, and after her de- 
 cease, to such persons as she should appoint by deed or 
 will, or by will, and in default of appointment, to her exe- 
 cutors, administrators, and assigns, as part of her personal 
 
 (c) Ellcock V. iMapp, 3 CI. & F. 849. 
 492. (e) 1 Rop. Leg. by White, 134. 
 
 {d) Co. Litt. 42 a, (9); Burt. (/ ) 1 Rop. Leg. by White, 134.
 
 1082 
 
 OF EXECUTORS AND ADMINISTRA.TORS. 
 
 Part IV. 
 T. 1, Ch. 1. 
 
 Power to 
 pay debts, 
 couipound, 
 compromise, 
 or refer. 
 
 Keiiniiciatioa 
 01 neglect to 
 take probate. 
 
 estate, she is entitled, without executing any formal ap- 
 pointment, to an immediate transfer or payment to herself 
 of the corpus of the fund (g). And where a beqviest is 
 made to such of a class as shall be living at the death of 
 the tenant for life, and the executors or administrators of 
 such of the class as shall then be dead having any child 
 then living ; it is not a gift to the next of kin, or to the 
 executors or administrators beneficially, but to them in 
 their representative and fiduciary character, as part of the 
 personal estate of those whom they represent (K). 
 
 By the stat. 23 & 24 Vict. c. 145, s. 30 {i), " it shall be 
 lawful for any executors to pay any debts or claims upon 
 any evidence that they may think sufficient, and to accept 
 any composition, or any security, real or personal, for any 
 debts due to the deceased, and to allow any time for pay- 
 ment of any such debts as they shall think fit, and also to 
 compromise, compound, or submit to arbitration all debts, 
 accounts, claims, and things whatsoever relating to the 
 estate of the deceased, and for any of the purposes afore- 
 said to enter into, give, and execute such agreements, in- 
 struments of composition, releases, and other things as they 
 shall think expedient, without being responsible for any 
 loss to be occasioned thereby." 
 
 By the stat. 20 & 21 Vict. c. 77, s. 79, where any person, 
 after the commencement of this Act, renounces probate of 
 the will of which he is appointed executor or one of the 
 executors, the rights of such person in respect of the exe- 
 cutorship shall wholly cease, and the representation to the 
 testator and the administration of his effects shall and may, 
 without any further renmiciation, go, devolve, and be com- 
 mitted in like manner as if such person had not been ap- 
 
 (g) Holloway v. Clarkson, 2 Hare, 
 521 ; Paye v. Soper, 11 Hare, 321 ; 
 Cambridge v. Rous, 25 Beav. 574. 
 
 (h) Be Sei/nioirr's Trusts, 1 Johns 
 
 472. 
 
 (i) But see ss. 32—4, infra, pp. 
 1100-1.
 
 OF EXECUTORS AND ADMINISTRATORS. 1083 
 
 pointed executor. And by the stat. 21 & 22 Vict. c. 95, Jamiv. 
 
 ... ' T. 1, Ch. 1. 
 
 s. 16, " wlienever an executor appointed in a will survives 
 
 the testator, but dies without having taken probate, and 
 whenever an executor named in a will is cited to take 
 probate and does not appear to such citation, the right of 
 such person in respect of the executorship shall wholly 
 cease, and the representation to the testator and the ad- 
 ministration of his effects shall and may, without any 
 further renunciation, go, devolve, and be committed in like 
 manner as if such person had not been appointed exe- 
 cutor."
 
 1084 
 
 CHAPTEE II. 
 
 OF TRUSTEES («). 
 
 Part IV. All persoiis, exceptiiio- aliens, so far as reGjarcls real estate, 
 
 T. 1, Ch. 2. ^ > I b > o 
 
 and exceptino- persons attainted, but not excepting femes 
 
 Who may be . i- o 
 
 trustees. covert and infants, may be trustees (h). 
 
 Equity never It is a rule in CQuity, wliicli admits of no exception, 
 
 wants a ± ^ ^ 
 
 trustee. that, wlicre a trust exists, a Court of equity never wants 
 a trustee. For, wherever a perfect trust, as opposed to a 
 trust resting in contract or in fieri, or even an imperfect 
 trust, if supported by a valuable consideration, has once 
 attached, whether it is an express, an implied, or a con- 
 structive trust, and it is not extinguished by the counter- 
 vailing equity of a bon^ fide purchaser for valuable 
 consideration, without notice, or other person having a 
 conflicting equity, nor has otherwise ceased to subsist, 
 equity will follow the legal estate, and decree the person 
 in whom it is vested to execute the trust (c). And the 
 lapse of the legal estate never has the least influence 
 on the trusts to which it is subject : if the individuals 
 named happen to fail, by death, incapacity, or refusal, 
 the Court wiU provide a trustee : if no trustees are 
 appointed at all, the Court assumes the office in the first 
 instance (d). 
 
 Devolution or If a man appoints a trustee of real or personal estate, 
 
 delegation of . 
 
 a trust. without naming his heir or personal representative, the 
 heir or personal representative does not become a trustee, 
 
 (a) On this subject the reader is 1159, 1162; 1 Spence's Eq. Jur. 
 
 referred to the very valuable works 501; 2 Id. 51, 52, 369, 875, 876; 
 
 of Mr. Lewin and Mr. Hill. Co. Litt. 113 a, n. 2, 290 b, n. 1. 
 
 (6) 2 Spence's Eq. Jur. 32. VI. ; 1 Cruise T. 12, c. 4, § 60. 
 
 (c) See Story's Eq. Jur. § 976, (d) 2 Spence's Eq. Jur. 876.
 
 OF TKUSTEES. 1085 
 
 on the decease of the person so appointed, althongh. the part i v. 
 
 property may vest in the heir or representative. And 
 
 where two or more persons, and the survivor, and tlie 
 heu's, executors, or administrators of the survivor, are 
 appointed trustees, and the word " assigns " is not intro- 
 duced, the sole or surviving trustee cannot delegate the 
 trust either by act inter vivos, or by devise ; for although 
 he may thereby pass the legal estate, yet the person in 
 whom it is thereby vested will not be clothed with the 
 character of trustee (c). Hence, where a testator gives 
 leaseholds to two trustees, their executors and adminis- 
 trators, and the surviving trustee devises and bequeaths all 
 trust estates to trustees, and appoints them and another 
 person his executors, neither the trustees nor the executors 
 of such surviving trustee can execute the trusts, but new 
 trustees must be appointed; because by the devise and 
 bequest made by such surviving trustee, he has taken 
 away the legal estate from his executors, who ought otlier- 
 wise to have been the trustees (/). And where a testator 
 devised estates to trustees, their heirs and assigns, upon 
 trust to sell, and provided that " the receipts of his trustees 
 or the survivors should be sufficient," and the surviving 
 trustee devised the estates upon the same trusts, the 
 cestuis que trust were entitled to have new trustees 
 appointed of the original will {g). 
 
 A trustee cannot, without the consent of his cestui que 
 trust or of the Court, denude himself of the character of 
 trustee, until he has performed the trusts. If, without 
 such consent, he assigns the trust, or delegates the per- 
 formance of its duties to a stranger, he will be answerable 
 for the breaches of trusts committed by the assignee or 
 stranger {h). But where a testator devises and bequeaths 
 
 (e) 2 Spence's Eq. Jur. 38 ; Cooke {g) Oclieston v. Heap, 1 De G. & 
 
 V. Crmvfurd, 13 Sm. 91. S. 640. 
 
 (/) In re Burtt, 1 Drew. 319. (li) 2 Spence's Eq. Jur. 920.
 
 108G 
 
 OF TEUSTEES. 
 
 Fabt IV. 
 T- 1, Ch. 2. 
 
 Inyest- 
 meut — 
 
 under the 
 
 Stat. 23 <& U 
 Vict. c. 38, 
 and order of 
 Feb. 1, 1861 ; 
 
 under stat. 
 22 & 23 Vict. 
 c. 35; 
 
 as extended 
 by the stat. 
 23 & 24 Vict. 
 0. 38, and by 
 the stat. 
 30 & 31 Vict. 
 c. 182 ; 
 
 real and personal estate, on cei-tam trusts, to be performed 
 hy the trustees named, and tlie sui-vivors and survivor, and 
 by the heirs and assigns, or the executors or administrators 
 of the survivor, whether the will contains a power to the 
 survivor to appoint new trustees, or not, and the surviving 
 trustee devises and bequeatlis the trust estates and moneys 
 to certain persons, upon the trusts of the first will, this is 
 a valid devise and bequest to them upon those trusts ; 
 because " assigns," may fairly be deemed to mean persons 
 who may be made assignees by devise and bequest («'). 
 
 It was the duty of trustees, executors, or administrators, 
 to whom no discretion as to investments was given, to 
 invest in consols or reduced or new £3 per cents. 
 
 Tiiistees, executors, or administmtors, having power to 
 invest upon government securities or upon parliamentary 
 stocks, funds, or securities, may now invest in Bank stock,. 
 East India stock, Exchequer bills, and £2 10s. per Cent. 
 Annuities, and upon mortgage of freehold and copyhold 
 estates in England and Wales (/). 
 
 And by the stat. 22 & 23 Vict. c. 35, s. 32, "when a trustee, 
 executor, or administrator shall not, by some instrument, 
 creating his trust, be expressly forbidden to invest any 
 trust fund on real securities, in any part of the United 
 Kingdom, or on the stock of tlie Bank of England or 
 Ireland, or on East India stock, it shall be lawful for such 
 trustee, executor, or administrator to invest such trust 
 fund on such securities or stock ; and he shall not be liable 
 on that account as for a breach of trust, provided that 
 such investment shall in other respects be reasonable and 
 proper." This is only prospective (Jc). But by the stat. 
 23 & 24 Vict. c. 38, s. 12, this 32nd section "shaH operate 
 retrospectively." And by the stat. 30 & 31 Vict. c. 132, 
 
 (i) Titleyy. WoIstenholme,7 Hcav, 
 436 ; Ball v. Mai/, 3 K. & J. 585. 
 (j) 23 & 24 Vict. c. 38, ss. 10, 11, 
 
 and Gen. Ord. of Feb. 1, 1861. 
 (k) Re Miles Will, 27 Beav. 579.
 
 OF TRUSTEES. 1087 
 
 s. 1, it is enacted that "the words 'East India stock' in Partiv. 
 
 T. 1, Oh. 2. 
 
 tlie said Act passed in the session holden in the 22 & 23 — 
 
 Vict. c. 35, sliall inchide and express as well the East 
 India stock which existed previously to the 13th day of 
 August, 1859, when the said Act received the assent of 
 her Majesty, as East India stock charged on the revenues 
 of India, and created under and by virtue of any Act or 
 Acts of Parliament wliich received her Majesty's assent on 
 or after the 13th day of August, 1859 ; and it shall be 
 lawful for every trustee, executor, or administrator to 
 invest any trust fund in his possession or under his control 
 in the stock created by the last-mentioned Act or Acts to 
 the same extent, and for the same purposes and objects, as 
 he can now invest such trust fund in the East India stock 
 which existed previously to the 13th day of August, 
 1859." And by s. 2, "it shall be lawful for every trustee, 
 executor, or administrator to invest any trust fund in his 
 possession or mider his control in any securities the inte- 
 rest of which is or shall be guaranteed by Parliament to 
 the same extent and in the same manner as he may invest 
 such trust fimd in such securities as aforesaid." 
 
 And by the stat. 23 & 24 Vict. c. 145, s. 25 (/), " trustees ^°d™de': 
 having trust money in their hands which it is their duty to J^gs "' ^^^' 
 invest at interest shall be at liberty, at their discretion, to 
 invest the same in any of the parliamentary stocks or public 
 funds, or in government securities, and such trustees shall 
 also be at liberty, at their discretion, to call in any trust 
 funds invested in any other securities than as aforesaid, 
 and to invest the same on any such securities as aforesaid, 
 and also fix3m time to time, at their discretion, to vary any 
 such investments as aforesaid for others of the same nature : 
 provided always, that no such original investment as afore- 
 
 (l) See infra, p. 1095, as to object infra, pp. 1100 — 1. 
 of this Act ; and see ss, 32, 33, 34,
 
 1088 
 
 OF TRUSTEES. 
 
 Part IV. 
 T. 1, Oh. 2. 
 
 Improper 
 investments. 
 
 said (except in the £3 per Cent. Consolidated Bank Annui- 
 ties), and no sncli change of investment as aforesaid, shall 
 be made where there is a person under no disability entitled 
 in possession to receive the income of the trust fund for 
 his life, or for a term of years determinable with his life, 
 or for any greater estate, without the consent in writing of 
 such person." 
 
 According to the general understanding of the profession, 
 and the general practice of the Courts, where trustees are 
 authorised to invest on mortgage of real estate, they are not 
 justified in advancing more than two-thirds of the value of 
 agricultural freeholds, or one half of the value of freehold 
 houses ; and if the value depends upon fortuitous circum- 
 stances — for instance, if the property consist of a mill or 
 factory, or other buildings used for purposes of trade, or 
 houses situate in a watering-place, or the like — the trus- 
 tees run the risk of having the mortgage thrown upon 
 themselves, and of being made answerable for the money 
 advanced. In such cases, the burden of proof as to suffi- 
 cient value lies upon the trustees {on). A power to invest 
 trust funds " upon the security of the funds of any com- 
 pany " does not warrant their investment in preference 
 railway shares ; for such an investment is not an invest- 
 ment on the security of the funds of a company, but a 
 purchase of shares in the undertaking, or an investment 
 secured on the profits of the concern (n). And an authority 
 to invest trust moneys on real securities does not authorise 
 an investment on London Dock stock, Eoad bonds, or 
 Sewer bonds (o). Nor does a power to invest on the secu- 
 rity by way of mortgage of any freehold, copyhold, or lease- 
 
 (m) 2 Spence's Eq. Jur. 925 ; 
 Coote Mortg. 3rd ed. 162 ; remarks 
 of Sir/. Romilly, M. R., in Madcod 
 V. Annesley, 16 Beav. 605 ; Stickney 
 V. SeweU, 1 My. & Cr. 15 ; Stretton 
 
 V. Ashmall, 3 Drew. 9. 
 
 (n) Harris v. Harris (No. 1), 29 
 Beav. 107. 
 
 (o) Rohinson v. Robinson, 11 Beav. 
 371.
 
 OF TKUSTEES. 1089 
 
 hold liereclitaments, authorise an hivestment in railway partiv. 
 
 _ "^ T. 1, Cn. 2. 
 
 mortgages and railway debenture stock ( j:>). And if trus- 
 
 tees are empowered to lend money, even on personal secu- 
 rity, and one lends a sum of money to the other, upon a 
 mortgage of his real estate, and the latter becomes bank- 
 rupt, and the estate when sold is insufhcient, the trustee 
 lending the money is liable for any loss occasioned by such 
 an investment ; because trustees ought not to lend to one 
 another {q). 
 
 Where a discretion is given to executors and others to 
 invest money on securities generally, unless personal secu- 
 rity is expressly or clearly implied, they ought not to 
 invest the funds on personal security. And even where 
 trustees are authorised to lend on such personal security 
 as they shall think sufficient, they are not enabled to lend 
 trust money to a trader or trading concern (r). And an 
 indemnity clause, declaring that they shall not be liable 
 for the insufficiency of any security, will not exonerate 
 them from liability, if they lend on palpably inadequate 
 security (s). 
 
 It is a breach of trust to sell out stock, and invest the 
 proceeds on a mortgage for securing the re-transfer of such 
 stock, and the payment of interest equal to the amount of 
 the dividends (/). 
 
 An executor will not be liable for money allowed to 
 remain with bankers who fail, where it is not an unreason- 
 able sum for executors to keep in the bank (ti), or where it 
 was right and reasonable for the money to be deposited 
 there under the circumstances {x). But he will be 
 
 {p) Mortimore v. Mortimore, 4 D. 221. 
 
 & J. 472. {t) Whitney v. Smith, L. E. 4 Ch. 
 
 Cg) Stichney v. Sewell, 1 My. & Ap. 513. 
 
 Cr. 8. (m) Swinfen v. Swinfen (No. 5), 
 
 (r) 2 Eop. Leg. by White, 1500, 29 Beav. 211. 
 
 1501 ; 2 Spence's Eq. Jur. 296, 926. (x) Fenwick v. Clarke, 4 D. F. & J. 
 
 (s) Drosier v. Brereton, 15 Beav. 248.
 
 1090 
 
 OF TRUSTEES. 
 
 Part IV. 
 T. 1, Ch. 2. 
 
 Power to 
 lend money 
 oil real 
 securities in 
 Ireland. 
 
 liable if he places money iu the hands of a banker by 
 way of investment, notwithstanding an indemnity clause 
 against losses by a banker of money deposited for safe 
 custody (?/). 
 
 By the stat. 4 & 5 Will. 4, c. 29, s. 1, it is enacted, that, 
 from and after the passing of the Act, " it shall be lawful 
 for any person or persons who, under or by virtue of any 
 direction, trust, or power already given, created, or reserved, 
 or hereafter to be given, created, or reserved as aforesaid, 
 is or are or shall be authorised or directed to lend money 
 at interest on real securities in England, Wales, or Great 
 Britain, to lend the same or any part thereof at interest on 
 real securities in Ireland, in the same manner in all respects 
 as if such investment had been expressly authorised in or 
 by such direction, trust, or power as aforesaid," &c. But 
 by s. 2, it is provided, " that all loans of money on real 
 securities in Ireland under this Act, in which any minor or 
 unborn child or person of unsound mind is or may be in- 
 terested, shall be made by the direction and under the 
 authority of the Court of Chancery or Exchequer in Eng- 
 land, such direction or authority being obtained in any 
 cause upon petition in a summary way." And by s. 5, it 
 is further provided, " that the provisions of this Act shall 
 not apply to any case in which such direction, trust, or 
 power as aforesaid doth or shall or may contain any express 
 restriction against the investment of such money as afore- 
 said on securities in Ireland." And by s. 6, " that nothing 
 contained in this Act shall relieve or be construed to relieve 
 any person or persons intrusted or clothed with such dhec- 
 tion, trust, or power as aforesaid from any responsibility as 
 to title, security, or otherwise, either at law or in equity, 
 save that [of] having lent and advanced such money as 
 aforesaid on real securities in Ireland, instead of having 
 
 {y) Reyden v. Wesley, 29 Beav. 213.
 
 OF TRUSTEES. 1091 
 
 invested siicli money on real securities in England, Wales, part.iv. 
 
 "^ ° T. 1, t'li. 2. 
 
 or Great Britain." And hence, where upon a petition under 
 
 this Act, the Court sanctioned an investment, which was 
 made without proper evidence of value, and without the 
 consent of the necessary parties, and there was a loss, the 
 trustees were held liable for the breach of trust (z). 
 
 Trustees cannot act separately, but must all join both in Trustees 
 
 ^ "^ "^ must join iu 
 
 conveyances and receipts. andTeceiTts 
 
 A trustee is responsible for his own acts and defaults, Resp.nisi- 
 
 bility lor 
 
 and for those wrongful acts and defaults of his cotrustees each other's 
 
 ~ afts and 
 
 to which he is priv}% and in which, though without any default, 
 corrupt motive, he expressly, tacitly, or virtually acquiesces, 
 or which would not have happened but for his own act or 
 default (a). 
 
 The trustee indemnity clause does not exonerate a trustee Trustee 
 
 •^ indemnity 
 
 from this liability for a breach of trust committed by c'^"*"- 
 his cotrustee (h). The insertion of it leads many, in igno- 
 rance of this, to accept a trust, and many others to be so 
 remiss as to give their cotrustees the opportunity of com- 
 mitting breaches of trust, through which they themselves 
 are involved in a Chancery suit, though that often neces- 
 sarily proves unavailing to remedy the loss occasioned to 
 the cestuis que trust. 
 
 By the stat. 22 & 23 Vict. c. 35, s. 31, "every deed, will, Every trust 
 
 instrument 
 
 or other instrument creating a trust either expressly or by *" '^e deemed 
 
 ° -'- -^ "^ to coutaiu 
 
 implication shall, without prejudice to the clauses actually ti^"f,^^c°'^ 
 contained therein, be deemed to contain a clause in the "eimbn'rle- 
 words or to the effect following ; that is to say, ' that the trustees, 
 trustees or trustee for the time being of the said deed, will, 
 or other instrument shall be respectively chargeable only 
 for such moneys, stocks, funds, and securities as they shall 
 respectively actually receive, notwithstanding their respec- 
 
 (z) Sheltbrd's Eeal Prop. Acts, ed. 206. 
 527. (6) Brvmridf/e v. Brumridge, 27 
 
 (a) See Smith's Manual of Eq. 9t]i Beav. 5.
 
 1092 
 
 OF TRUSTEES. 
 
 Pakt IV. 
 T. 1, Ch. 2. 
 
 Remunera- 
 tion. 
 
 tively signing any receipt for the sake of conformity, and 
 shall be answerable and accoiintal)le only for their own 
 acts, receipts, neglects, or defaults, and not for those of each 
 other, nor for any banker, broker, or other person with 
 whom any trust moneys or securities may be deposited, nor 
 for the insufficiency or deficiency of any stocks, funds, or 
 securities, nor for any other loss, unless the same shall 
 happen through their own wilful default respectively ; and 
 also that it shall be lawful for the trustees or trustee for 
 the time being of the said deed, will, or other instrument to 
 reimburse themselves or himself, or pay or discharge out of 
 the trust premises all expenses incurred in or about the 
 execution of the trust or powers of the said deed, will, or 
 other instrument.' " 
 
 Trustees, executors, directors of private companies, and 
 other persons standing in a similar situation, are not 
 allowed, even with the consent of their cotrustees, co- 
 executors, or coadjutors, and however extraordinary the 
 services they may have rendered, to take any remuneration 
 by way of commission, or brokerage, or salary, without 
 some express or implied provision for that purpose in the 
 instrument under which they claim (c). And a solicitor, 
 who is a trustee, is not entitled to charge for business done 
 by him in relation to the trust, as distinguished from costs 
 out of pocket, although employed to do it by his cotrustee, 
 unless there is a provision, in the deed or will creating the 
 trust, enabling him to receive remuneration for the trans- 
 action of such business (d). And even where there is a 
 provision that a solicitor is to be at liberty to charge for 
 his professional services, he is only entitled to charge for 
 services strictly professional, and not entitled to charge 
 for matters which an executor or trustee ousfht to have 
 
 (r) story's Eq. Jur. § 460 a, 1268; 
 2 Si)ence's Eq. Jur. 945, 946; Barrett 
 V. Hartloj, L. R. 2 Eq. 789. 
 
 (d) Broughton v. Broughton, 2 De 
 G. & S. 422 ; 5 D. M. & G. 160.
 
 OF TRUSTEES. 1003 
 
 done without the intervention of a solicitor; such as for at- part iv. 
 
 ' T. 1, Oh. 2. 
 
 tendances to pay premiums on policies or to make transfers 
 
 at the bank, attendances on proctors, auctioneers, legatees, 
 and creditors (c). But trustees are entitled, without any Expenses, 
 express provision, to defray out of the trust funds expenses 
 legitimately and properly incurred (/). 
 
 The Court of Chancery will not in any case permit a ^ fiducfal" 
 trustee or other person standing in a iiduciary relation to allowed tt 
 derive any benefit from the property with which he is bene&t. 
 entrusted or from the of&ce itself If a trustee or other 
 person standing in a fiduciary relation acquires property 
 or makes a profit by means of transactions within the 
 scope of his agency or authority, or if a person employs 
 another's property in any trade or speculation, there will 
 be a constructive trust as to the property so acquired or 
 the profits thereby made, for the benefit of the cestui que 
 trust, principal, owner, or otlier person standing in the 
 opposite relation (//). Therefore, if a trustee compounds a 
 debt for less than is due, he shall not derive any advantage 
 to himself from the transaction (A). And if a trustee 
 purchases a lien or mortgage on a trust estate at a dis- 
 count, he will not be allowed the benefit of the difference, 
 but the purchase will be a trust for the cestui que trust. 
 So, if a trustee or a partner renews a lease of the trust 
 or partnership estate, he will be a trustee of such renewed 
 interest for his cestui que trust or copartner, even though 
 the lessor may have refused to grant a renewal to the 
 cestui que trust or copartner (/). 
 
 (e) Hurhin v. Darhy (No. 1), 28 192. 
 
 Beav. 325. {h) 1 Cruise T. ] 2, c. 4, § 38. 
 
 (/) 2 Spence's Eq. Jur. 938. (i) Story's Eq. Jur. § 1211 ; 1 
 
 ig) 1 Craise T. 12, c. 4, § 38. Spence's Eq. Jur. 512 ; 2 Spence's 
 
 See Story's Eq. Jur. § 1211, 1211 a, Eq. Jur. 208, 299, 300; 1 Cruise T. 
 
 1261 ; 1 Spence's Eq. Jur. 512 ; 2 12, c. 1, § 61. As to purchases by 
 
 Spence's Eq. Jur. 208, 299, 800 ; trustees, see supra, p. 834—5. 
 
 Sugden v. Crossland, 3 Sm. & Gif. 
 
 K K 2
 
 1094 
 
 OF TRUSTEES. 
 
 Part IV In general, whenever property of one kind has been 
 
 wrongfully converted into property of another kind, by a 
 
 trusT' ro-"^ °^ trustee or agent, if the property which has been so substi- 
 perty. tutcd cau be ascertained to be such, it will be liable to the 
 
 rights of tlie cestui que trust or principal, to which the 
 
 property converted was subject (7). 
 Conveyance, ^ trust uiav be extinguished by a transfer of the funds 
 
 ;tssigntuent, -^ o .^ 
 
 a^rustle iif ^u the trusts of au ante-nuptial settlement, where either 
 lus^trust.^^ the husband or wife was not aware that the party trans- 
 ferring them had no power to do so (k). And if a trustee 
 conveys the trust property to a l)ona fide purchaser for 
 valuable consideration, who has paid his purchase money, 
 and had no notice of the trust at the time of paying the 
 same, the trust is extinguished. But if the trustee should 
 afterwards repurchase or otherwise become entitled to the 
 same property, the trust would be revived by construction 
 of equity (/). And if a trustee conveys or assigns the 
 trust property for valuable consideration, in violation of 
 the trust, to a person who is aware of that circumstance, 
 or conveys or assigns it without valuable consideration, 
 even to a person who has no notice, such person will be 
 treated as a trustee for the cestui que trust. And an 
 executor is deemed a trustee of the assets of his tes- 
 tator (vi). 
 
 If a cestui que trust is in possession, that is con- 
 structive notice of the trust to a purchaser from the 
 trustee (w). 
 
 A trustee may bind the estate by a bona fide mortgage 
 or other specific lien, without notice of the trust. But the 
 
 (?) See Story's Eq. Jur. 1158, 12,1.3. 
 
 1560 ; 2 Spence's Eq. Jur. 203. 
 
 (k) Cooper v. Wormnld, 27 Beav. 
 266. 
 
 [1) See Story's Eq. Jur. § 1264, 
 and note ; 2 Spence's Eq. Jur. 40, 
 19.5, 196 ; 1 Cruise T. 12, c. 4, § 10, 
 
 (wi) Story's Eq. Jur. § 1257; 1 
 Spence's Eq. Jur. 512; 2 Td. 40, 
 195, 298 ; 1 Cruise T. 12, c. 4, § 
 13. 
 
 in) 2 Pres. Sliep. T. 507, n. (8).
 
 OF TKUSTKES. IWo 
 
 trust property will not be bound by any judgment or other i'art iv.^ 
 
 claim of creditors against the trustees (o). 
 
 By the stat. 23 & 24 Vict. c. 145, after reciting that " it P-'^frs gWeu 
 
 •/ ' o by tlie Slat. 
 
 is expedient that certain powers and provisions which it is c^i^s^'*^''^'' 
 now usual to insert in settlements, mortgages, wills, and 
 other instruments should be made incident to the estates 
 of the persons interested, so as to dispense with the 
 necessity of inserting the same in terms in every such 
 instrument : " it is enacted that " in all cases where Trustees 
 
 eiiipowerea 
 
 by any will, deed, or other instrument of settlement tofs'i''''^^ 
 
 J J > > sell in lots, 
 
 it is expressly declared that trustees or other persons auctfou or ''^ 
 therein named or indicated shall have a power of sale, contract. 
 either generally, or in any particular event, over any 
 hereditaments named or referred to in or from time to 
 time subject to the uses or trusts of such will, deed, or 
 other instrument, it shall be lawful fur such trustees or 
 other persons, whether such hereditaments be vested in 
 them or not, to exercise such power of sale by selling such 
 hereditaments, either together or in lots, and either by 
 auction or private contract, and either at one time or at 
 several times, and (in case the power shall expressly 
 authorise an exchange) to exchange any hereditaments fowerto 
 
 " ^ o ^ exchauge. 
 
 which for the time being shall be subject to the uses or 
 trusts aforesaid for any other hereditaments in England or 
 M^ales or in Ireland (as the case may be), and upon such 
 exchange to give or receive any money for equality of 
 exchange " (s. 1). 
 
 And " it shall be lawful for the persons making any saie may be 
 
 made under 
 
 such sale or exchange to insert any such special or other ^i.'f."^' <=''°- 
 
 " ./ X ditioiis, and 
 
 stipidations, either as to title or evidence of title, or other- b^vl^^ '^^^ 
 wise, in any conditions of sale, or contract for sale or vri^'ion-"'^ 
 exchange, as they shall think fit, and also to buy in the re-seiiV 
 hereditaments or any part thereof at any sale by auction, 
 
 (,o) Stoi-y's Eq. Jur. §. 977.
 
 109() OF TRUSTEES. 
 
 Part IV. and to rescind or vary any contract for sale or exchange, 
 
 T. 1, Ch. 2. J J O ' 
 
 and to re-sell the hereditaments which shall be so bought 
 
 in, or as to which the contract shall be so rescinded, 
 without being responsible for any loss which may be 
 occasioned thereby, and no purcliaser under any such sale 
 purchaser/" shall be bound to inquire whether the persons making the 
 same may or may not have in contemplation any particular 
 re-investment of the purchase money in the purchase of 
 any other hereditaments or otherwise " (s. 2). 
 exereWncr " For the purposc of completing any such sale or ex- 
 
 saier&cf change as aforesaid, the persons empowered to sell or 
 to convey. cxchauge as aforesaid shall have full power to convey or 
 otherwise dispose of the hereditaments in question, either 
 by way of revocation and appointment of the use or other- 
 wise, as may be necessary" (s. 3). 
 Moneys <' Xhe moncv so received upon any such sale or for 
 
 an -lug from •• i. j 
 
 be'iaicfoiiun equality of exchange as aforesaid shall be laid out in the 
 er an s; jj-j^j^^gp indicated in that behalf in the will, deed, or 
 instrument containing the power of sale or exchange, or 
 if no such indication be therein contained as to all or any 
 part of sucli money, then the same shall with all con- 
 venient speed be laid out in the purchase of other here- 
 ditaments in fee simple in possession to be situate in 
 England or Wales or in Ireland (as the case may be), or 
 of lands of a leasehold or copyhold or customary tenure, 
 which, in the opinion of the persons making the purchase, 
 are convenient to be held therewith or with any other 
 hereditaments for the time being, subject to the subsisting 
 uses or trusts of the same will, deed or other instrument 
 of settlement in which the power of sale or exchange was 
 contained ; and all such hereditaments so to be purchased 
 or taken in exchange as aforesaid as shall be freeholds of 
 inheritance shall be settled and assured to the uses, upon 
 and for the trusts, intents, and purposes, and with, under, 
 and subject to the ]")Owers, provisoes, and declarations, to
 
 OF TRUSTEES. 1097 
 
 which the hereditaments sokl or oiveu iu exchaucfe were part iv. 
 
 ° ° T. 1, Ch. 2. 
 
 or would have been subject, or as near thereto as the 
 
 deaths of parties and other intervening accidents will 
 admit of, but not so as to increase or multiply charges ; 
 and all such hereditaments so to be purchased or taken in 
 exchange as aforesaid as shall be of leasehold or copyhold 
 or customary tenure shall be settled and assured upon and 
 for such trusts, intents, and purposes, and with, under, 
 and subject to such powers, provisoes, and declarations, as 
 shall, as nearly as may be, correspond with and be similar 
 to the aforesaid uses, trusts, intents, and purposes, powers, 
 provisoes, and declarations, but not so as to increase or 
 multiply charges, and so that if any of the hereditaments 
 so to be purchased shall be held by lease for years the 
 same shall not vest absolutely in any tenant in tail by 
 purchase who shall not attain the age of twenty-one years; 
 and any such purchase as aforesaid may be made subject 
 to any special conditions as to title or otherwise : Pro- 
 vided that no leasehold tenement shall be purchased under 
 the powers hereinbefore contained wdiich is held for a less 
 period than sixty years " (s. 4). 
 
 " Provided nevertheless. That it shall be lawful for the or in pay- 
 ment o. in- 
 
 persons exercising any such power as aforesaid, if they cumUMuces. 
 shall think fit, to apply any money to be received upon 
 any sale or for equality of exchange as aforesaid, or any 
 part thereof, in lieu of purchasing land therewith, in or 
 towards paying off or discharging any mortgage or other 
 charge or incumbrance which shall or may affect all or 
 any of the hereditaments which shall then be subject to 
 the same uses or trusts as those to which the heredita- 
 ments sold or given in exchange w^ere or was subject " 
 (s. 5). 
 
 " ;N"o monev arisino; from any such sale or exchange of Money 
 
 ■JO J ^ o ^ arising from 
 
 lands or hereditaments in England or Wales shall be laid sai^, ac 
 
 o not to W laid 
 
 out in the purchase of lands or hereditaments situate "ands^ex-
 
 1UU8 
 
 OF TllUSTEES. 
 
 I'ABT IV. 
 
 T. 1, Ch. 2. 
 
 chaiiaerl, 
 elsewhere 
 than in the 
 country lu 
 wliich laud 
 sold or 
 exchanged is 
 situated. 
 
 Until pur- 
 chase of 
 lands, &c., 
 money to be 
 invested at 
 interest. 
 
 Tnistees of 
 renewable 
 leaseholds 
 may renew. 
 
 elsewhere tliau in England or Wales, and no lands situate 
 in England or Wales, shall, under any such power as 
 aforesaid, be exchanged for any lands or hereditaments 
 situate elsewhere than in England or Wales ; and no 
 money arising from any such sale or exchange of lands in 
 Ireland shall he laid out in the purchase of lands or 
 hereditaments situate elsewhere than in Ireland, and 
 no lands or hereditaments situate in Ireland shall, under 
 any such power as aforesaid, be exchanged for any lands 
 or hereditaments situate elsewhere than in Ireland" 
 (S.6). 
 
 " Until the money to be received upon any sale or for 
 equality of exchange as aforesaid shall be disposed of in 
 the manner herein mentioned, the same shall be invested 
 at interest for the benefit of the same parties who would 
 be entitled to the hereditaments to be purchased there- 
 with as aforesaid, and the rents and profits thereof, in case 
 such pm-chase and settlement as aforesaid were then 
 actually made " (s. 7). 
 
 " It shall be lawful for any trustees of any leaseholds 
 for lives or years which are renewable from time to time, 
 either under any covenant or contract or by custom or 
 usual practice, if they shall in their discretion think fit, 
 and it shall be the duty of such trustees, if thereunto 
 required by any person having any beneficial interest, 
 present or future or contingent, in such leaseholds, to use 
 their best endeavours to obtain from time to time a 
 renewed lease of the same hereditaments on the accus- 
 tomed and reasonable terms, and for that purpose it shall 
 be lawful for any such trustees from time to time to make 
 or concur in making such surrender of the lease for the 
 time being subsisting, and to do all such other acts as 
 shall be requisite in that behalf ; but this section is not 
 to apply to any case where by the terms of the settlement 
 or will the person in possession for his life or other limited
 
 OF TKUSTEES. 1099 
 
 interest is entitled to enjoy the same without any ohli- partiv. 
 
 gation to renew the lease or to contribute to the expense of 
 
 renewing the same " (s. 8). 
 
 " In case any money shall he required for the purpose ^loney for 
 
 equality of 
 
 of payino- for equality of exchano-e as aforesaid, or for exciiango an.i 
 
 i- '' o i- J o for renewal of 
 
 renewal of any lease as aforesaid, it shall he lawful for the p^wWed""^ 
 persons effecting such exchange or renewal to pay the 
 same out of any money which may then be in their hands 
 in trust for the persons beneficially interested in the lands 
 to be taken in exchange, or comprised in the renewed 
 lease, whether arising by any of the ways and means 
 hereinbefore mentioned or otherwise, and notwithstanding 
 the provisions for the application of money arising from 
 sales or exchanges hereinbefore contained ; and if they 
 shall not have in their hands as aforesaid sufficient money 
 for the purposes aforesaid, it shall be lawful for such 
 persons to raise the money required by mortgage of the 
 hereditaments to be received in exchange or contained in 
 the renewed lease (as the case may be), or of any other 
 hereditaments for the time being subject to the subsisting 
 uses or trusts to which the hereditaments taken in ex- 
 change or comprised in the renewed lease (as the case may 
 be) shall be subject ; and for the purpose of effecting 
 such mortgage such persons shall have the same powers 
 of conveying or otherwise assuring as are herein contained 
 with reference to a conveyance on sale ; and no mortgagee 
 advancing money upon such mortgage purporting to be 
 made under this power shall be bound to see that such 
 money is wanted, or that no more is raised than is wanted 
 for the purposes aforesaid " (s. 9). 
 
 " No such sale or exchange as aforesaid, and no purchase cousent to 
 
 f, 1 , . . sale, ex- 
 
 ot hereditaments out of money received on any such sale change, or 
 
 •^ "^ purchase. 
 
 or exchange as aforesaid, shall be made without the 
 consent of the person appointed to consent by the will, 
 deed, or other instrument, or if no such person be ap-
 
 1100 OF TRUSTEES. 
 
 Part IV. poiutecl, tliGii of the person entitled in possession to the 
 
 T. 1, Ch. 2. ^ ' ^ ^ 
 
 receipt of the rents and profits of such hereditaments, if 
 
 there be such a person under no disability ; but this clause 
 shall not be taken to require the consent of any person 
 where it appears from the will, deed, or other instru- 
 ment to have been intended that such sale, exchange, or 
 purchase should be made by the person or persons making 
 the same without the consent of any other person" (s. 10)- 
 
 to be entXd " ^^r the purposes of this Act, a person shall be deemed 
 
 or lucome.""^ to be entitled to the possession or to the receipt of the 
 rents and income of laud or personal property, although 
 his estate may be charged or incumbered, either by him- 
 self or by any former owner, or otherwise howsoever to 
 any extent ; but the estates or interests of the parties en- 
 titled to any such charge or incumbrance shall not be 
 affected by the acts of the person entitled to the possession 
 or to the receipt of the rents and income as aforesaid, 
 unless they shall concur therein " (s. 31). 
 
 Puwers, &-!., " ]^one of the powers or incidents hereby conferred or 
 
 hen by given 
 
 niaybc^ auucxed to particular offices, estates, or circumstances 
 
 negatived by ^ 
 
 decLaration ^^^^^^ take effcct or be exercisable if it is declared in the 
 suiijMUo*''^ deed, will, or other instrument creating such ofhces, estates, 
 provisions, or circumstauccs that they shall not take effect ; and where 
 there is no such declaration, then if any variations or limit- 
 ations of any of the powers or incidents hereby conferred or 
 annexed are contained in such deed, will, or other instrument, 
 such powers or incidents shall be exercisable or shall take 
 effect only subject to such variations or limitations " (s. 32). 
 Provisions " Notliiug in tliis Act coutaiucd shall be deemed to 
 
 ill tlie Act T 1 • 1 
 
 to operate as empowcr any trustecs or other persons to deal Avitli or 
 
 if inserted in 
 
 me^nt"**^'"' ^^sct the cstatcs or rights of any persons soever, except 
 to the extent to which they might have dealt with or 
 affected the estates or rights of such persons if the deed, 
 will, or other instrument under which such trustees or 
 other persons are empowered to act had contained express
 
 OF TRUSTEES. 1101 
 
 powers for sncli trustees or other persons so as to deal with part i v. 
 
 or affect such estates or rights " (s. 33). 
 
 " The provisions contained in this Act shall, except as coinmepce- 
 
 -■■ ^ ineut of Act. 
 
 herein! )efore otherwise provided, extend only to persons 
 entitled or acting under a deed, will, codicil, or other in- 
 strument executed after the passing of this Act, or under a 
 will or codicil confirmed or revived by a codicil executed 
 after that date," i.e., 28 August, 18G0 (s. 34). 
 
 By the stat. 7 & 8 Yict. c. 76, s. 10, it was enacted ^An,sTeef ' 
 " that the bona fide payment to and the receipt of any tuai dfa-*^*^" 
 person to whom any money shall be payable upon any 
 express or implied trust or for any limited purpose, or of 
 the survivors or survivor of two or more mortgagees or 
 holders, or the executors or administrators of such sur- 
 vivor, or their or his assigns, shall effectually discharge the 
 person paying the same from seeing to the application or 
 being answerable for the misapplication thereof, unless the 
 contrary shall be expressly declared by the instrument 
 creating the trust or security." This enactment, which 
 only took effect on the 1st day of January, 1845, was 
 repealed by the stat. 8 & 9 Vict. c. 106, s. 1, as from the 
 first day of October in the same year ( jj»). But by the 
 stat. 22 & 23 Vict. c. 35, s. 23, " the bona fide payment to 
 and the receipt of any person to Avhom any purchase or 
 mortgage money shall be payable upon any express or 
 implied trust shall effectually discharge the person paying 
 the same from seeing to the application or being answer- 
 .able for the misapplication thereof, unless the contrary 
 shall be expressly declared by the instrument creating the 
 trust or security." And by the stat. 23 & 24 Vict. c. 145, 
 s. 29 (g'), " the receipts in writing of any trustees or trustee 
 for any money payable to them or him by reason or in 
 the exercise of any trusts or powers reposed or vested in 
 
 {2>) See supra, p. 615. (7) But sec ss. 32—4, supra, 1100 — 1.
 
 1102 OF TRUSTEES. 
 
 T, 
 
 pabt IV. them or liim shall be sufficient discharges for tlie inoiiey 
 
 r. 1, Ch. 2. o ^ 
 
 therein expressed to be received, and shall effectually ex- 
 onerate the persons paying such money from seeing to the 
 application thereof, or from being answerable for any loss 
 or misapplication thereof" 
 
 Conveyance When all the duties of a trustee are at an end, and this 
 
 of legal 
 
 estate to jy clcarlv sliown to him, and he has no notice of any dis- 
 
 costui que J ' 'J 
 
 trust. position or incumbrance made by the cestui que trust, he 
 
 must, on demand, convey the legal estate to his cestui que 
 trust, at the peril of paying the costs of any suit occasioned 
 by his refusal. In cases of real doubt or difficulty, a trustee, 
 before he parts with his estate, is fully justified in requir- 
 ing an indemnity from his cestui que trust, or in seeking 
 the direction and indemnity of the Court (r). Where 
 the beneficial occupation of a trust estate by the person 
 entitled to it has given reason to suppose that there was a 
 conveyance of the legal estate to the person who was equit- 
 ably entitled to it, a jury may be directed to presume such 
 a conveyance (s). 
 
 of u'usf^*^"" ^Vhere there is a devise, bequest, conveyance, or assign- 
 ment to two trustees, whether nominatim or not, and one 
 assents and the other disclaims, the property passes to the 
 assenting trustee. And if power is given to them, whether 
 nominatim or not, to give receipts, the receipt of the assent- 
 ing trustee alone will be sufficient {t). 
 
 A disclaiming trustee should not convey the estate to 
 his cotrustee ; for, according to Creiv v. Dichen (u), if a 
 trustee refusing to act, reconveys his interest to his co- 
 trustee, he thereby accepts the trust, though he conveys 
 away the estate (a;). But according to Nielson v. Words- 
 
 (r) 2 Spence's Eq. Jur. 48. ed. 547 ; Adams y. Taunton, 5 Mad. 
 
 (s) 1 Cruise T. 12, c. 2, § 39. 435. 
 
 (t) 2 Spence's Eq. Jiir.351;Lewin (n) 4 Ves. 97. 
 
 on Trusts, 3rd ed. 532 — 3 ; Hill on (.«) 3 J arm. & Byt.h. hy Sweet, 
 
 Trustees, 484 ; Sugd. V. & P. IStli 698 ; 1 Cruise T. 12, c. 4, §59.
 
 OF TRUSTEES. 1103 
 
 uwih (y), a release, with intent to operate as a disclaimer, /'^^''J,^^, 
 will be held to amount to a disclaimer in equity {z). 
 
 By the stat. 13 & 14 Vict. c. 60, s. 1, the stat. 11 G. 4 & l^i;]""" ^'^' 
 1 Will. 4, c. GO, as to trustees and mortgagees, the stat. 4 & 
 5 Will. 4, c. 23, as to escheat and forfeiture of trust pro- 
 perty, and the stat. 1 & 2 Vict. c. 69, as to heirs and 
 devisees of mortgagees, are repealed, but without reviving 
 the acts repealed thereby. 
 
 By the same statute (13 & 14 Vict. c. 60), an order may 
 be made, vesting in any other persons, estates vested in 
 trustees or mortgagees who are of unsound mind (s. 3), 
 or are infants (s. 7), or in trustees who are out of the juris- 
 diction or cannot be found (ss. 9, 10). 
 
 An order may also be made releasing or disposing of to 
 any other persons, contingent rights in hereditaments to 
 which such trustees or mortgagees are entitled (ss. 4, 8, 
 11, 12). 
 
 A similar vesting order may be made as to estates in 
 trustees, where it is uncertain which was the survivor 
 (s. 13) ; or where it is uncertain whether the last trustee 
 is living or dead (s. 14) ; or where a trustee dies intestate 
 without an heir, or it is not known who is his heir or 
 devisee (s. 15). 
 
 A similar vesting order may be made in the case of con- 
 tingent rights of unborn trustees (s. 16). 
 
 An order may also be made vesting in any other persons 
 the right to transfer any stock, or receive the income 
 thereof, or to sue for a chose in action on any interest in 
 respect thereof, in the case of trustees or mortgagees or 
 personal representatives of unsound mind (ss. 5, 6, 20), or 
 trustees or personal representatives out of the jurisdiction 
 or not to be found, or concerning whom it is not known 
 
 {y) 2 Swanst. 365. 700—702. 
 
 {z) See 3 Jarm. & Bytli. by Sweet,
 
 1104 OF TRUSTEES. 
 
 Part IV. whether they are living or dead (ss. 22, 25, 20), or in the 
 
 case of trustees or personal representatives who neglect or 
 
 refuse to transfer or receive the income, or trustees who 
 neglect or refuse to sue for any chose in action (see ss. 28, 
 24, 25, as amended by s. 4 & 5 of the stat. 15 & 16 Vict. 
 c. 55). Sections 21, 26, define the effect of such an order 
 as last mentioned. 
 
 Power is given to appoint a person to convey, assign, 
 release, or dispose of, instead of making a vesting or re- 
 leasing order (s. 20). 
 
 The same powers are given to the Courts in Lancaster 
 and Durham, as regards lands within their jurisdic- 
 tion (s. 21). 
 
 Section 28 defines the effect of an order vesting copy- 
 hold or customary lands, or appointing a person to convey 
 them. 
 
 Section 29 relates to the case of lands ordered to be sold 
 for payment of debts ; and section 30 enables the Court to 
 declare certain persons to be trustees. 
 
 Sections 82 — 85 confer a general power on the Court of 
 Chancery to appoint new trustees, and vest in them here- 
 ditaments, or the right to call for a transfer, or to receive 
 dividends, or to sue. 
 Act to extend Bv the stat. 15 & 16 Vict. c. 55, intituled "An Act to 
 
 Trustee Act, '' 
 
 1850. extend the provisions of the Trustee Act, 1850," the pro- 
 
 visions of the 29th section of that Act are applied to de- 
 crees for sales generally, and are otherwise extended. 
 
 By S..2 (which repeals the 17th and 18th sections of the 
 Trustee Act, 1850), power is given to make an order, vest- 
 ing in another person an estate, or releasing a contingent 
 right, on refusal or neglect of a trustee to convey or 
 release. 
 
 By s. 3, power is given to make an order vesting in 
 another person, the right to transfer or receive the income 
 of stock in the name of an infant trustee.
 
 OF TRUSTEES. 1105 
 
 By s. 8, power is given to appoint new trustees in the pa»t iv. 
 place of persons convicted of felony. 
 
 By s. 9, " in all cases where it shall be expedient to ap- . 
 point a new trustee, and it shall be found inexpedient, 
 difficult, or impracticable so to do without the assistance 
 of the Court of Chancery, it shall be lawful for the said 
 Court to make an order appointing a new trustee or new 
 trustees, whether there be any existing trustee or not at 
 the time of making such order." 
 
 The Trustee Act, 1850, contains an interpretation clause 
 (s. 2) ; and by s. 12, of the subsequent Act, that Act is 
 to be construed as part of the former Act. 
 
 By s. 13, vesting orders under these Acts are to be 
 chargeable with the same duty as deeds. 
 
 Wliere the Court of Chancery appoints new trustees, it ?'°,y?!' '° „ 
 
 *j i L 3,pp01Ilt new 
 
 does not give them a power to appoint otlier new trustees, ^'ivelf by'the 
 even though the testator empowered the original trustees chaucery. 
 to appoint new trustees («). 
 
 In selecting a person for the office of trustee, the Court Principles of 
 
 t3 r ' tlie Court 
 
 will have regard to the wishes of the author of the trust, jfew^trSs. 
 expressed in, or clearly to be collected from the instrument 
 creating it. Again, the Court will not appoint a person to 
 be a trustee, with a view to the interest of some of the 
 persons interested under the trust, in opposition to the in- 
 terests of others. For it is the essence of the duty of every 
 trustee to hold an even hand between the parties interested 
 under the trust. And thirdly, the Court will have regard 
 to the question, whether the appointment will promote or 
 impede the execution of the trust (b). 
 
 But by the stat. 23 & 24 Vict. c. 145, which recites that l^^y^^^^^ 
 it was made to dispense with the necessity of inserting u^,deru'f®^ 
 certain usual provisions, it is enacted by s. 27, that "when- v?ct."'n. 145, 
 
 s. 2T (c). 
 
 (a) Holder v. Burhin, 11 Beav. Ap. 485. 
 
 594. (c) But see ss. 32—4, supra, p. 
 
 (b) In re Tempest, L. R. 1 Ch. 1100—1.
 
 1106 OF TRUSTEES. 
 
 Part IV. ever any trustee, either original or substituted, and whether 
 
 T. 1, Ch. 2. "^ ' ° 
 
 appointed by the Court of Chancery (d), or otherwise, shall 
 
 die, or desire to be discharged from or refuse or become 
 unfit or incapable to act in the trusts or powers in him re- 
 posed, before the same shall have been fully discharged 
 and performed, it shall be lawful for the person or persons 
 nominated for that purpose by the deed, will, or other in- 
 strument creating the trust (if any), or if there be no such 
 person, or no such person able and willing to act, then for 
 the surviving or continuing trustees or trustee for the time 
 being, or the acting executors or executor or administrators 
 or administrator of the last surviving and continuing 
 trustee, or for the last retiring trustee, by writing, to ap- 
 point any other person or persons to be a trustee or trustees 
 in the place of the trustee or trustees so dying, or desiring 
 to be discharged, or refusing or becoming unfit or incapable 
 to act as aforesaid ; and so often as any new trustee or 
 trustees shall be so appointed as aforesaid all the trust 
 property (if any) which for the time being shall be vested 
 in the surviving or continuing trustees or trustee, or in the 
 heirs, executors, or administrators of any trustee, shall with 
 all convenient speed be conveyed, assigned, and transferred 
 so that the same may be legally and effectually vested in 
 such new trustee or trustees, either solely, or jointly with 
 the surviving or continuing trustees or trustee, as the case 
 may require ; and every new trustee or trustees to be ap- 
 pointed as aforesaid, as well before as after such convey- 
 ance or assignment as aforesaid, and also every trustee 
 apj)ointed by the Court of Chancery either before or after 
 the passing of this Act, shall have the same powers, autho- 
 rities, and discretions, and shall in all respects act, as if he 
 
 (d) By 28 & 29 Vict. c. 40, " tlie include the Court of Chancery of the 
 Court of Chancery," in this section County Palatine of Lancaster.'' 
 " shall be deemed to extend to and
 
 OF TRUSTEE.^. 1107 
 
 had been oricfinally nominated a trustee by the deed, will, P^^y.^^i 
 
 ^ J J T. 1, Cu. 2. 
 
 or other instrument creating the trust." 
 
 A power of appointing new trustees of a will authorises Jjj,';,'|''f,f„ 
 the filling up of a vacancy occurring in the testator's life- d'!|Xot The 
 
 . , tcritator. 
 
 tnne [c). 
 
 A power to appoint any person or persons to be a t^f°„^,ie"._ 
 trustee or trustees, in the place or stead of a trustee or 
 trustees dying or desiring to be discharged, does not autho- 
 rise the appointment of a greater number of trustees than 
 the original number, in case of the decease or resignation 
 of all the original trustees (/). 
 
 The appointment of a person as new trustee of a will onfmi^eT* 
 who]n the testator has excluded from the trust by a codicil, testator has 
 
 exduded. 
 
 after having appointed him by will, is improper, and the 
 Court will cancel the appointment, and declare the con- 
 veyance to such person void {g). 
 
 By the stat. 10 & 11 Vict. c. 96, s. 1, intituled " An Act ^S^'into 
 for better securing trust funds and for the relief of trustees," cuanc'Ty."' 
 "all trustees, executors, administrators, or other persons, 
 having in their hands any moneys belonging to any trust 
 whatsoever, or the major part of them, shall be at liberty, 
 on filing an affidavit, shortly describing the instrument 
 creating the trust, according to the best of their knowledge 
 and belief, to pay the same, with the privity of the Ac- 
 countant-General of the High Court of Chancery, into the 
 Bank of England, to the account of such Accountant- 
 General in the matter of the particular trust (describing 
 the same by the names of the parties, as accurately as may 
 be, for the purpose of distinguishing it), in trust to attend 
 the oi'ders of the said Court ; and all trustees or other 
 persons having any annuities or stocks standing in their 
 name in the books of the Governor and Company of the 
 
 (e) Lewin, 4th ed. 42fi. {g) Suyden v. C'rosdand, 3 Sai. & 
 
 (y) Ex parte Davis, 2 Y. & C. C. G. 192. 
 C. 468. 
 
 VOL. II. I' li
 
 1108 OF TRUSTEES. 
 
 Part IV. Bank of England or of the East India Company or South 
 
 1. 1, Ch. 2. ^ . . 
 
 — Sea Company, or any government or parliamentary securi- 
 ties standing in their names or in the names of any de- 
 ceased persons of whom they shall be personal represen- 
 tatives, upon any trusts whatsoever, or the major part of 
 them, shall be at liberty to transfer or deposit such stocks 
 or securities into or in the name of the said Accountant- 
 General, with his privity, in tlie matter of the particular 
 trust (describing the same as aforesaid), in trust to attend 
 the orders of the said Court;" &c. And by the stat. 12 & 
 13 Vict. c. 74, it is enacted "that if upon any petition pre- 
 sented to the Lord Chancellor or Master of the Eolls in the 
 matter of the said Act (10 & 11 Vict. c. 96), it shall appear 
 to the Judge of the Court of Chancery before whom such 
 petition shall be heard, that any monies, annuities, stocks 
 or securities are vested in any persons as trustees, execu- 
 tors, or administrators, or otherwise upon trusts within the 
 meaning of the said recited Act, and that the major part of 
 such persons are desirous of transferring, paying, or de- 
 livering the same to the Accountant-General of the High 
 Court of Chancery under tlie provisions of the said recited 
 Act, but that for any reason the concurrence of the other 
 or others of them cannot be had, it shall be lawful for such 
 Judge as aforesaid to order and direct such transfer, pay- 
 ment, or delivery to be made by the major part of such 
 persons without the concurrence of the other or others of 
 them ; and where any such moneys or government or par- 
 liamentary securities shall be deposited with any banker, 
 broker, or other depositary, it shall be lawful for such 
 Judge as aforesaid to make such order for the payment or 
 delivery of such moneys, government or parliamentary secu- 
 rities, to the major part of such trustees, executors, ad- 
 ministrators, or other persons as aforesaid, for the purpose 
 of being paid or delivered to the said Accountant-General 
 as to the said Judge shall seem meet."
 
 OF TRUSTEES. 
 
 1109 
 
 By the stat. 25 & 26 Vict. c. 108, " no sale, excliange, /^"^^^j 
 partition, or enfranchisement at any time heretofore of land g^^^ 25 & 26 
 by any trustee or other person, expressed or intended to be J^f^ ^■^^^'^' 
 made in exercise of any trust or power authorising the sale, chang??^ 
 exchange, partition, or enfranchisement of land, and not aii.ieufian- 
 
 . 1 1 • 1 1 cliisuiueiits of 
 
 forbidding the reservation of minerals, and which sale, land hereto- 
 
 " f. 're mado, 
 
 exchangee, partition, or enfranchisement shall have been le^erving or 
 
 o > L > excepting 
 
 made with an exception or reservation of minerals, and "^'"efais; 
 with or without rights or powers for or incidental to the 
 working, getting, and carrying away of such minerals, or 
 otherwise relating thereto, shall be invalid on the ground 
 only that the trust or power did not expressly authorise 
 such exception or reservation, but such sale, exchange, 
 partition or enfranchisement shall be deemed to have 
 taken effect in the same manner as if the exception or 
 reservation had been authorised by the trust or power ; and a?, to 
 
 "^ ^ past sales, 
 
 and no sale, exchange, or partition heretofore made as exchaiges, 
 
 ' o ' 1 and pai ti- 
 
 aforesaid of any minerals separately from the residue of mi'ne,°L 
 the land subject to the trust or power intended to have The'iaadT 
 been exercised, and either with or without such rights or 
 powers as aforesaid shall be invalid on the ground only 
 that the trust or power did not expressly authorise such 
 sale, exchange, or partition, but such sale, exchange, or 
 partition shall be deemed to have taken effect in the same 
 manner as if such minerals, rights, and powers (if any) had 
 been expressly authorised to be so dealt wdth separately 
 from the residue of such land ; but this enactment shall 
 not be deemed to confirm any sale, exchange, partition, or 
 enfranchisement already declared by a Court of competent 
 jurisdiction to be invalid, nor to confirm or affect any sale, 
 exchange, partition, or enfranchisement as to the validity 
 of which any suit or other proceeding is now pending" 
 (s. 1). 
 
 "■ Every trustee and other person now or hereafter to be- f^^ '^^ *" 
 
 •^ ^ future trans- 
 
 come authorised to dispose of land by way of sale, exchange, same"kind*''* 
 
 L L 2
 
 1110 
 
 OF TRUSTEES. 
 
 /i^ch^s Pf^i'tition, or enfrancliisement may, unless forbidden by the 
 
 instrument creating the trust or power, so dispose of such 
 
 land with an exception or reservation of any minerals, and 
 with or without rights and powers of or incidental to the 
 working, getting, or carrying away of such minerals, or may 
 (unless forbidden as aforesaid) dispose of by way of sale, 
 exchange, or partition the minerals with or without such 
 rights or powers separately from the residue of the land, 
 and in either case without prejudice to any future exercise 
 of the authority with resj)ect to the excepted minerals, or 
 (as the case may be) the undisposed-of land ; but this en- 
 actment shall not enable any such disposition as aforesaid 
 without the previous sanction of the Court of Chancery, to 
 be obtained on petition in a summary way of the trustee or 
 other person authorised as aforesaid, which sanction once 
 obtained shall extend to the enabling from time to time of 
 any disposition within this enactment of any pait or parts 
 of the land comprised in the order to be made on such 
 petition, without the necessity of any further or other 
 application to the Court" (s. 2). 
 
 \
 
 1111 
 
 CHArTER III. 
 
 OF MARRIED WOMEN (ft). 
 
 At the common law, the bemo; or le^^al existence of the „,^^^T,^"^; 
 
 ' o o 1\ 1^ Ch. 3. 
 
 wife, for almost all purposes, is considered as mercjed in ~~ ; : 
 
 ' L L > o How husband 
 
 that of the husband (h). But courts of equity, in many reganlldat^ 
 respects, treat husband and wife as distinct persons (c). equity. 
 In treating of tliis subject, let us consider, 
 I. The legal disability of married women. 
 II. The power which husband and wife have, in 
 equity, of contracting wdth, and giving, and 
 granting to, each other. 
 III. The interest of the husband in the wife's pro- 
 perty.' 
 IV. The wife's pin-money and paraphernalia. 
 V. The wife's separate estate. 
 VI. The equity of the wife to a settlement or main- 
 tenance out of her own property. 
 VII. Some points respecting deeds of separation. 
 VIII. Some miscellaneous points. 
 
 Ft. IV. T. 1, 
 
 Cn. 3, 8. 1. 
 
 Section I. 
 
 The Legal Disability of Married Women. 
 
 It is a rule that in no other way than with the protection 
 of a private examination to ascertain whether or not the ^ „ , 
 wife deliberately assents to the arrangement, can her real e^ate^'*''^ 
 
 {(() The reader is referred to the on this subject, 
 works of Mr. Ih'ight, Mr. Maequeeii, {h) See Story's Eq. Jar. § 1367. 
 
 and Mr. Bell, for further iuformation (c) Story's Eq. Jur. § 1368.
 
 1112 
 
 THE LEGAL DISABILITY OF MARRIED WOMEN. 
 
 Pt. IV. T. 1, 
 
 Ch. 3, s. 1. 
 
 Fines, 
 r^'coveries, 
 deeds, and 
 perfdrinance 
 of conditions 
 by married 
 women. 
 
 estate Le touched or affected ; and every act done in her 
 name or on her behalf by her husband, without this protec- 
 tion, is her husband's act, and an act with wdiich, in the eye 
 of the law, she has no concern whatever {d). 
 
 But a married woman might, with her husband, make an 
 effectual assurance by fine or recovery, and, in order to 
 this, she might join with him in the declaration of uses of 
 such fine or recovery [c). And as we have seen, married 
 women are now enabled to dispose of their real property, 
 and of money subject to be invested in the purchase of real 
 property, and of the proceeds to arise from the sale of 
 land, or may release or extinguish powers relating thereto, 
 by an assurance, under tlie stat. 3 & 4 Will. 4, c. 74 (/). 
 A married woman may also execute a power or authority, 
 in the absence of words to the contrary, whether such 
 power is given to her before or after marriage, or upon her 
 marriage, and even without the concurrence of her 
 husband {(j). Again, if an estate is made to a married 
 woman upon condition to convey, she will be bound to 
 perform it ; because this does not charge her person, but 
 the land (/;). And by the custom of London and of several 
 other cities, a married woman may bind herself by a deed 
 enrolled, after being privately examined : and this custom 
 was confirmed in the reign of Hen. 8, by a positive statute { i). 
 But with the exceptions presently noticed, all other deeds 
 executed by married women, except a queen consort, by 
 which they might be deprived of any right or charged with 
 any duty, are absolutely void at law, and not merely void- 
 able {j). They are also void in erpiity, except in certain 
 
 (d) Nicholl V. Jones, L. 11. 3 Eq. 
 708. 
 
 (e) Burton, § 206 ; 4 Cruise T. 
 32, c. 12, § 30, 35. 
 
 (/) See supra, p. 786 ; Fran /is 
 V. Bollens, L. R. 3 Ch. Ap. 717. 
 
 iff) 1 Sugd. Pow. 181-2; Co. 
 LUt. 112 a. 
 
 {h) 2 Cruise T. 13, e. 2, § 17 ; Co. 
 Litt. 112 a. 
 
 (0 4 Cruise T. 32, c. 2, § 33. 
 
 (j) 2 Bl. Com. 292—3 ; 4 Cruise
 
 THE LEGAL DISABILITY OF MAKRIED WOMEN, 1113 
 
 cases where they relate to or affect her separate estate ; and ^t. iv. t. i, 
 
 ■^ ^ ' Ch. 3, 8. 1. 
 
 no act of the wife after the death of her husband, except ' ~ 
 
 in the case of a lease, will in general operate as a confirma- 
 tion of them (/.'). But if a woman, after the death of her 
 husband, acknowledges a deed executed by her during her 
 marriage, that may in some cases amount to a re-delivery 
 of it, and so render it valid (/). 
 
 Bv the stat. 1 Will. 4, c. 65, s. 12, where a feme covert Leasesto 
 is entitled to any lease, she, or any person appointed by ^o'"'^'*- 
 the order of a court of equity in her place, may by such an 
 order be enabled to surrender such lease, and take a new 
 one. By s. 14, expenses attending renewals are to be 
 charged on the estate. And by s. 15, the new leases are to 
 be to the same uses. 
 
 By ss. 16, 20, where a feme covert might in pursuance Leases b^ 
 
 ^ -^ married 
 
 of any coveuant or agreement, if not under disability, be ^o™en. 
 compelled to renew any lease, such feme covert, by the 
 direction of the Court of Chancery, may accept a surrender 
 of such lease, and execute a new one. 
 
 And we have seen that by the stat. 19 & 20 Vict. c. 120, 
 additional leasing powers are given in the case of married 
 women (»i). 
 
 By the stat. 8 & 9 Vict. c. 106, s. 7, it is enacted, "that, capacity of 
 
 m.inied 
 
 after the 1st day of October, 1845, an estate or interest in women to 
 
 "^ ' declaim 
 
 any tenements or hereditaments in England, of any tenure, fi^lerests'by 
 may be disclaimed by a married woman by deed ; and that ^^^^' 
 every such disclaimer shall be made conformably to the 
 provisions of the Act for the abolition of fines and 
 recoveries, and for the substitution of more simple modes of 
 assurance." 
 
 A married woman is incapable of making a testament Power to 
 of chattels, without the licence of her husband ; except of wm, 
 
 T. 32, c. 2, § 29 ; Burton, § 206 ; {k) 4 Cruise T. 32, c. 2, § 29. 
 
 Watk. CoQV. Brd. ed. by Prest. 250, (I) 4 Cruise T. 32, c. 2, §31. 
 
 251. (m) See supra, p. 689.
 
 lU-i THE LEGAL DISABILITY OF MARRIED WOMEN. 
 
 Tr. IV. T. 1, property to wliicli she is entitled in autre droit, as exe- 
 
 cutrix, or of property settled to lier separate use (n), or 
 
 property over wliich she has a power of appointment by 
 will. And the husband's licence or assent must be given 
 to the particular will, and can only give validity even 
 to that, in the event of his being the survivor. And he 
 may revoke such assent at any time during his wife's life, 
 or after her death before probate. After her husband's 
 death, however, she may recognise her will made during 
 coverture, and thereby cause it to operate as a new will (o). 
 The wife of a convicted felon, however, is a feme sole, as 
 regards the power of disposing by will, at least of personal 
 property accpiu-ed after her husband's conviction (j^)- 
 
 Married women were expressly disabled by the old 
 statute of wills from devising their lands. And by s. 8 
 of the stat. 1 Vict. c. 26, it is enacted, that " no will made 
 by a married woman shall be valid, except such a ^vill as 
 might have been made by a married woman before the 
 passing of this Act." But married women are frequently 
 enabled to dispose of lands by wills "operating as appoint- 
 ments under powers contained in conveyances to uses (q). 
 And the meaning of the 8th section is simply this, that the 
 legal testamentary status of a married woman as such shall 
 remain the same, so that it does not exclude her will from 
 the 24th or the 27th section (r). 
 Surrender of A surrcudcr iiiav be made by husband and wife of the 
 
 copyhold. -^ '' 
 
 wife's copyhold land, without any special custom ; she 
 being first examined as to her consent by the steward: 
 but a custom for the wife to surrender alone cannot be 
 supported (s). 
 
 (n) See infra, p. 1132. (p) In the goods of Coioard, 4 
 
 (o) Wms. Exors, 4th ed. 4.5—52 ; Swa. & Tiis. 46. 
 
 2 ni. Com. 498 ; 1 Jarm. Wills, 2nd (q) 6 Cruise T. 38, c. 2, § 7. 
 
 ed. 130: Ex parte Fane, IC Sim. (;•) TOowrtsv. /o»jcs,l D. J. & S.do. 
 
 406. {s) Burton, g 1275.
 
 THE LEGAL DISABILITY OF MAREIED WOMEN. 1115 
 
 A power to a married woman to appoint by deed or ^pH^ss^i^' 
 will, notwitlistandinsj;' her coverture, and as if she were 
 
 ' " Puwer not 
 
 sole, does not restrict her to an execution during cover- ^""gj"^*!;^'' 
 ture (f). 
 
 Married women are capable of purchasing, but their Purchases by 
 
 ^ X <j married 
 
 husbands may disagree to their purchases, unless made yomm. 
 with their separate property, and thereby divest the whole 
 estate, and maintain an action for the purchase money. 
 If a husband neither agrees nor disagrees to a purchase by 
 his wife, it is effectual during the coverture. But after his 
 death she may waive a purchase by herself, without giving 
 any reason for so doing, even though her husband may 
 have ao-reed to it. And if after her husband's death she 
 does not agree to it, her heirs may waive it (u). If she 
 has separate property, she may contract, as if she were a 
 feme sole, for the purchase of an estate, and her separate 
 property will" be bound by the contract, although she do 
 not refer to it. 
 
 And she may purchase lands pursuant to an authority 
 given her by her husband, and he cannot avoid it after- 
 wards (x). 
 
 And where a married woman contracts and pays for 
 real estate, without the knowledge of her husband, but for 
 his benefit, such a purchase is binding when ratified by the 
 husband (y). 
 
 An aQ'reement by a married woman for the sale of her Agreement 
 
 ° . . . for sale. 
 
 estate cannot be enforced, either at law or in equity, 
 unless the estate is settled to her separate use (z). 
 
 When an exchange of the wife's land is made by the Exchange of 
 
 ^ "^ the wile's 
 
 husband or husband and wife, tlie wife after the husband's lai^. 
 
 («) 1 Sugd. Pow. 183, 333. (x) Sugd. Coacise View, 541, 148. 
 
 («) Sugd. Concise View, 541 ; 4 (y) Millard v. Ilarvey, 34 Beav. 
 
 Cruise T. 32, c. 28, § 7 ; 2 Bl. Com. 237. 
 
 293 ; 1 Pros. Shcp. T. 70 ; 2 Pres. (;) Sugd. Concise View, 147. 
 Sliep. T. 235 , Co. Litt. :J a.
 
 1116 
 
 THE LEGAL DISABILITY OF MARRIED WOMEN. 
 
 CfiistitutiMg 
 an attorney. 
 
 pt. ly. T. 1, death, or the heir of the wife after her death, and no 
 "' other person, may avoid it {a). If the husband and wife 
 
 exchange the lands of the wife, and she, after her hus- 
 l)and's death, agrees to it, and enters into the lands taken 
 in exchange, the exchange is hereby made good against 
 her and her heirs. But if the husband alone makes an 
 exchange of his wife's land, and she after his death agrees 
 to this, and enters into the land, it seems this will not 
 make the exchange good ; because her entry into the 
 lands received in exchange is without any title, and the 
 orant by the husband alone was not effectual against 
 her (h). 
 
 If a married woman makes a feoffment and letter of 
 attorney to make livery, and the attorney does so, this 
 livery is void ; because she cannot make a valid deed, and 
 therefore cannot have an attorney by force of the letter of 
 attorney (c). And a woman camiot even constitute an 
 attorney to do an act relating to her estate, though it be 
 su.ch as she herself might lawfully do, unless she par- 
 ticularly reserved a power for that purpose before her 
 marriage (d). An exception is created by the stat. 11 Geo. 
 4 & 1 Will. 4, c. 65, s. 11, whereby it is enacted that a 
 married woman, after being examined, or any other person 
 may appoint an attorney to surrender copyholds and do 
 other acts, for the purpose of a common recovery being 
 suffered of such copyholds. 
 
 When bequests are made to the separate use of mar ied 
 women, they alone can give a good discharge for them, 
 because their husbands have no interest in the funds (e). 
 But the gift of an immediate absolute legacy to a married 
 woman operates in effect as a legacy to the husband, who 
 
 Payment of 
 k's.icies 
 given to 
 man ied 
 women. 
 
 («) 2 Pres. Shep. T. 299. 
 
 (6) 2 Pres. Shep. T. 299, 300. 
 
 (c) IPres. Shep. T. 217. 
 
 (d) 3 Jarm. & Byth. by Sweet, 
 
 29. 
 
 (e) 1 Rop, Leg. by White, 887.
 
 THE LEGAL DISABILITY OF MAEKIED WOMEN, 1117 
 
 is entitled to receive it, subject indeed to the right of the pt. ly. t i, 
 
 ' '' ^ Ch. 3, s. 1. 
 
 executors to insist on a settlement in her favour, which, 
 
 however, is rarely done, unless called for by the embar- 
 rassed circumstances or bad conduct of the husband (/). 
 So that unless the wife acts as his agent with due autho- 
 rity, and the legacy is paid to her in that character, pay- 
 ment of it to her alone is void against him, and he may 
 recover it against the executors ((/). 
 
 A married woman cannot forfeit her copyhold by any a''//f*,J'Q'i^°' 
 act of her own, because she is not sui juris, sed sub 
 potestate viri. But she may incur a forfeiture by an act 
 done by her husband (Ji). 
 
 A married woman can elect so as to affect her interest Election. 
 in real property, without a deed acknowledged under the 
 stat. 3 & 4 Will. 4, c. 74. And where she has so elected, 
 the Court, that she may not avail herself of fraud, can 
 order a conveyance accordingly (z'). 
 
 An assignment or mortgage by a husband and wife of 4''mor°a"e 
 her chose in action will not defeat her right by survivor- acticir ^" 
 ship, unless the husband or the assignee or mortgagee 
 do some act amounting to a reduction of the property into 
 possession (j). 
 
 By the stat. 20 & 21 Vict. c. 85, it is enacted as fol- stat 20 & 21 
 
 "^ ' Vict. c. 85. 
 
 lows: — 1. ''A wife deserted by her husband may at any onierof 
 
 protection of 
 
 time after such desertion, if resident within the metro- property of 
 
 vvite who IS 
 
 politan district, apply to a police magistrate, or, if resident deserted. 
 in the country, to justices in petty sessions, or in either 
 case to the Court, for an order to protect any money or 
 property she may acquire by her own lawful industry, and 
 property which she may become possessed of, after such 
 desertion, against her husband or his creditors, or any 
 
 (/) 9 .Tarm. & Byth. by Sweet, (i) Barroio v. Barrow, 4 K. & J. 
 
 828 ; 1 Eop. Leg. by White, 887. 409. 
 
 {g) 1 Eop. Leg. by White, 887. {j) Prole v. Soady, L. R. 3 Ch. 
 
 Qi) 1 Cruise T. 10, c. 5, § 42. Ap. 220.
 
 1118 TPIE LEGAL DISABILITY OF MARRIED WOMEN. 
 
 pt. IV. T. 1, person claiming under liim ; and such magistrate or 
 
 '- justices or Court, if satisfied of tlie fact of such desertion, 
 
 and that the same was without reasonable cause, and that 
 the wife is maintaining herself by her own industry or 
 property, may make and give to the wife an order pro- 
 tecting her earnings and property acquired since the com- 
 mencement of such desertion, from her husband and all 
 creditors and persons claiming under him, and such 
 earnings and property shall belong to the wife as if she 
 were a feme sole : provided always, that every such order, 
 if made by a police magistrate or justices at petty 
 sessions, shall, within ten days after the making thereof, 
 be entered with the registrar of the County Court within 
 whose jurisdiction the wife is resident ; and that it shall 
 be lawful for the husband, and any creditor or other 
 persons claiming under him, to apply to the Court, or to 
 the magistrate or justices by whom such order was made, 
 for the discharge thereof (A;) : provided also, that if the 
 husband or any creditor of or person claiming under the 
 husband shall seize or continue to hold any property of 
 the wife after notice of any such order, he shall be liable, 
 at the suit of the wife (which she is hereby empowered to 
 Ijring), to restore the specific property, and also for a sum 
 equal to double the value of the property so seized or held 
 after such notice as aforesaid : if any such order of pro- 
 tection be made, the wife shall during the continuance 
 thereof be and be deemed to have been, during such 
 desertion of her, in the like position in all respects, with 
 regard to property and contracts and suing and being 
 sued, as she would be under this Act if she obtained a 
 Wife decree of judicial separation " (s. 21). 2. " In every case 
 
 SL-parated to Qf r^ iudicial Separation, the wife shall, from the date of the 
 
 be coiisiaered j i ^ 
 
 a/r^gafds'' scuteuce and whilst the separation shall continue, be con- 
 ker property, 
 
 (k) As to the discharge of such an order, see 27 & 2S V^ict. c. H.
 
 THE LEGAL DISABILITY OF MAllRIED WOMEN, 1119 
 
 sidered as a ferae sole with respect to property of every i>-^iv. r.i, 
 
 description which she may acquire or which may come to 
 
 or devolve upon her ; and such property may be disposed 
 of by her in all respects as a feme sole, and on her decease 
 the same shall, in case she shall die intestate, go as the 
 same would have gone if her husband had been then 
 dead ; provided, that if any such wife should again cohabit 
 with her husband, all such property as she may be en- 
 titled to when such cohabitation shall take place shall be 
 held to her separate use, subject, however, to any agree- 
 ment in writing made between herself and her husband 
 whilst separate " (s. 25) (/). 3. " In every case of a andjs^ 
 judicial separation, the wife shall, whilst so separated, be ^°"ongs*^^mi 
 considered as a feme sole for the purposes of contract, and ^^^^' 
 wrongs and injuries, and suing and being sued in any civil 
 proceeding ; and her husband shall not be liable in respect 
 of any engagement or contract she may have entered into, 
 or for any wT?ongful act or omission by her, or for any 
 costs she may incur as plaintiff or defendant; provided, 
 that where upon any such judicial separation alimony has 
 been decreed or ordered to be paid to the wife, and the 
 same sliall not be did.y paid by the husband, he shall be 
 liable for necessaries supplied for her use ; provided also, 
 that nothing shall prevent the wife from joining, at any 
 time during such separation, in the exercise of any joint 
 power given to herself and her husband " (s. 26). 
 
 In consequence of these enactments, a wife who has 
 obtained an order for protection is entitled to payment of 
 a fund in Court representing a legacy bequeathed to 
 her (m). 
 
 By the stat. 21 & 22 Vict. c. 108, s. 7, the provisions ft^'l^^^^^f 
 of the stat 20 & 21 Vict. c. 85, " respecting the property t^miedTo 
 
 (I) See In re Insole, L. E. 1 Eq. (m) In re Kinrjsley's Trust, 26 
 
 470; Johnson v. Lander, L. R. 7 Beav. 8-i; Cooke v. Fuller, 26 Beav. 
 Eq. 228. 99.
 
 1120 
 
 THE LEGAL DISABILITY OF MARMED WOMEN. 
 
 Ft. IV. T. 1, 
 Cn. 3, s. 1. 
 
 property to 
 which the 
 wife is 
 tntitled as 
 exi'cutrix, 
 admiuislra- 
 trix, or 
 trustee. 
 
 Eflf^'Ct of 
 order fnr 
 protection or 
 decne tor 
 se|)aiatioD, 
 atleiTvards 
 di-charged, 
 varied, or 
 reveraed. 
 
 Property ia 
 remaiu.ler 
 or reversion . 
 
 Order to 
 state time of 
 desertion. 
 
 of a wife who has obtained a decree for judicial separation 
 or an order for protection, shall be deemed to extend to 
 property to wliich such wife has become or shall become 
 entitled as executrix, administratrix, or trustee since the 
 sentence of separation or the commencement of the deser- 
 tion (as the case may be) ; and the death of the testator 
 or intestate shall be deemed to be the time when such 
 wife became entitled as executrix or administratrix." 
 
 By s. 8, "in every case in which a wife shall under this 
 Act or under the said Act of the 20 & 21 Vict. c. 85, have 
 obtained an order to protect her earnings or property, or a 
 decree for judicial separation, such order or decree shall, 
 until reversed or discharged, so far as necessary for the 
 protection of any person or corporation who shall deal 
 with the wife, be deemed valid and effectual ; and no 
 discharge, variation, or reversal of such order or decree 
 shall prejudice or affect any rights or remedies which any 
 person would have had in case the same had not been so 
 reversed, varied, or discharged in respect of any debts, 
 contracts, or acts of the wife incurred, entered into, or 
 done between the times of the making such order or 
 decree and of the discharge, variation, or reversal thereof 
 And property of or to which the wife is possessed or 
 entitled for an estate in remainder or reversion at the date 
 of the desertion or decree (as the case may be), shall be 
 deemed to be included in the protection given by the order 
 or decree " (;)i). 
 
 By s. 9, " every order which shall be obtained by a wife 
 under the said Act of the 20 & 21 Vict. c. 85, or under 
 this Act, for the protection of her earnings or property, 
 shall state the time at which the desertion in consequence 
 whereof the order is made commenced ; and the order 
 
 (tt) See In re Shackle s Trusts, 7 
 W. R. 280 ; In re Raindon's Trust, 
 
 7 W. R. 184 ; 4 Drew. 446.
 
 THE LEGAL DISABILITY OF MARRIED WOMEN. 1121 
 
 shall, as regards all persons dealing with such wife in ^^^-JJ-^-j^' 
 reliance thereon, be conclusive as to tlie time when such 
 desertion commenced." 
 
 By s. 10, " all persons and corporations who shall, in J,';;J^f,;"^;*| *" 
 reliance on any such order or decree as aforesaid, make any afce'mr''' 
 payment to, or permit any transfer or act to be made or d'/erees, 
 
 . inj_ whereafter- 
 
 done by, the wife who has obtained the same, shall, not- wani^s dis- 
 
 ctiaiged, 
 
 withstandino- such order or decree may then have been dis- vaiied, or 
 
 o "^ reversed, or 
 
 charged, reversed, or varied, or the separation of the wife "|J • ^f, jf^^g*" 
 from her husband may have ceased, or at some time since tinued.'"'"'"" 
 the making of the order or decree been discontinued, be 
 protected and indemnified in the same way in all respects 
 as if, at the time of such payment, transfer, or other act, 
 such order or decree were valid and still subsisting without 
 variation in full force and effect, and the separation of the 
 wife from her husband had not ceased or been discon- 
 tinued, unless, at the time of such payment, transfer, or 
 other act, such persons or corporations had notice of the 
 discharge, reversal, or variation of such order or decree, or 
 of the cessation or discontinuance of such separation." 
 
 Section II. 
 
 The Powers which Husband and Wife have of Contracting 
 tvith, and Giving and Granting to, each other. 
 
 I, At law, contracts made between husband and wife p?. ly. t i, 
 
 ' Ch. 3, s. 2. 
 
 before marriage, are extinguished by the marriage, if they r^ 
 are for debts or things due in pricsenti, or at or on a future Jj|![^j?,„g 
 time or event which may occur during, and not after the 
 determination of, the coverture. But Courts of equity, 
 although they generally follow the same doctrine, will 
 enforce such contracts, where it would be in furtherance
 
 1122 
 
 THE POWEIW WHICH HUSBAND AND WIFE HAVE 
 
 Ft IV. T. 1, 
 
 Ch. 3, s. 2. 
 
 II. Contracts 
 
 after 
 
 man-iage. 
 
 III. Gifts 
 and grants 
 after 
 marriage. 
 
 of the manifest intention and object of the parties to do 
 so ; as in the case of an agreement on the marriage, by 
 liiisband and wife, for the mutual settlement of their estate, 
 or of the estate of either of them, on the other, even with- 
 out the intervention of trustees (o). 
 
 II. Contracts made between husband and wife after 
 marriage, are a mere nullity at law ; but, under particular 
 circumstances, they will be enforced in equity, where they 
 are of a reasonable nature. Thus, if the liusband shovdd 
 contract with his wife, for good reasons, that she should 
 separately possess and enjoy property bequeathed to her, 
 the contract would be upheld in equity (^;). So the wife 
 may even become a creditor of her husl^and ; and her 
 rights, as such, will be enforced against him and his repre- 
 sentatives. Thus, if a wife raises money out of her estate 
 to answer his necessities^ whatever be the mode adopted to 
 carry that purpose into effect, she is, in equity, entitled to 
 reimbursement out of his estate {q). But a contract by a , 
 husband to transfer to his wife his rights and duties in 
 reference to his children, is contrary to public policy, and 
 will not be enforced (r), unless his conduct has been 
 such, that the Court of Chancery would remove the 
 children from his custody (s). 
 
 III. At the common law a wife cannot grant to her 
 husband, because they make but one person at law. And 
 for the same reason, a wife cannot by the common law be 
 the immediate grantee of her husband, but she may take 
 an estate from him through the medium of a third person 
 under the Statute of Uses {t). And as an appointee takes 
 
 (o) Story's Eq. Jur. § 1370, 1371; 
 2 Pres. Shep. T. 335, 395. 
 
 {p) See Story's Eq. Jur. § 1372 ; 
 Hexdson v. Neyus, 16 Beav. 594 ; 
 Anderson v, Abbott, 23 Beav. 457. 
 
 (q) Story's Eq. Jur. § 1373. 
 
 (}•) Vansittart v. Vanslttart, 4 K. 
 & J. 62 ; 2 D. & J. 249 ; Walrond 
 V. Walrond, 1 Johns. 18. 
 
 (s) Sioift V. Sivift, 34 Beav. 266. 
 
 (t) Co. Litt. 3 a, and n. (1) ; 112 
 a; 187 b ; 4 Cruise T. 32, c. 2,
 
 OF CONTRACTING "WITH EACH OTHER. 1123 
 
 under the original deed, so, althoudi a husband cannot at p?. ly. t i, 
 
 ~ " Ch. 3, s. 2. 
 
 common law convey directly to his wife, yet he may make 
 
 an immediate appointment to her ; because her estate 
 arises out of the original seisin. And for the same reason, 
 a wife may appoint immediately to her husband. In like 
 manner, a surrender of copyholds by the husband to the 
 wife, or by the wife to her husband, is good (u). And gifts 
 and grants by a husband to his wife, though directly and 
 immediately, wall be enforced in equity, if they are of a 
 reasonable nature, and there is no ground to suspect fraud. 
 Thus, gifts made by the husband to the wife to purchase 
 clothes or personal ornaments, or for her separate expendi- 
 ture, and personal savings and profits made by her in her 
 domestic management, which the husband allows her to 
 apply to her own separate use, will be held to vest in her, 
 as against her husband, but not as against his creditors, an 
 unimpeachable right of property therein, so that they may 
 be treated as her separate estate, if such gifts are established 
 by clear and incontrovertible evidence («). If a husband 
 makes presents of chattels to his wife, even verbally, and 
 without any words of separate use, her right to them will 
 be enforced against his residuary legatee, if the gift is 
 proved by the testimony of any one wdio heard him use 
 words of gift, or to whom he afterwards stated that he had 
 given the chattels, or that they were hers. But the Court 
 will not act upon the unsupported oath of the wife (y). 
 
 § 40 ; 1 Cruise T. 11, c. 3, § 25; 3rd ed. by Prest. 249, 250. 
 
 Burton, § 211 ; Watk. Conv. 3rd {x) Story's Eq. Jur. § 1374, 1375. 
 
 ed. by Prest. 249, 250. {y) Grant v. Grant, 34 Beav. 
 
 (w) 2 Sugd. Pow, 24; Watk, 623.
 
 1124 
 
 THE INTEREST OF THE HUSBAND 
 
 Pc. IV. T. 1, 
 
 Ch. 3, s. 3. 
 
 llusbaiid's 
 interest in 
 the wife's 
 real estate. 
 
 Huaband's 
 interest in 
 wife's 
 chattels real. 
 
 Section III. 
 
 The Interest of the Husband in the Wife's Prope7'ty lohich 
 is not settled to her s&parate use. 
 
 A husband takes a freeliold interest during tlie joint lives 
 of himself and his wife in land belonging to her in fee 
 simple, in tail, or for life ; and such interest will pass by a 
 conveyance executed by the husband alone {z). But in 
 strict legal language, where the wife has an estate, it is 
 said that the husband and wife (and not the husband only) 
 are seised in right of the wife {a). Anciently, the husband 
 had power over his wife's land by feoffment or fine, to make 
 sucli an alienation of it that she could not enter upon it 
 after his death, but must pursue her right by action. This 
 power is taken away by stat. 32 Hen. 8, c. 28, s. 6 (b). 
 And a contract by the husband as to the wife's real estate 
 will not bind her at law or in equity (c). 
 
 A chattel real which the wife has in her own and not in 
 another's right, and which is not settled to her separate 
 use, vests in the husband, not absolutely, but sub mode. 
 Thus, the husband is possessed of the wife's term for years 
 in her right, and hence he is entitled to receive all the 
 rents and profits of it. He may also sell, surrender in deed 
 or in law, or dispose of it during the coverture, so that even 
 if the wife survive, she will have no right to it, unless it is 
 reversionary and could by no possibility be reduced into 
 possession during the coverture. If lie mortgages it, and 
 the estate of the mortgagee becomes absolute, the wife's 
 legal right by survivorship will be barred, but she will in 
 general be entitled to the equity of redemption, if she sur- 
 
 (z) Co. Litt. 351 a ; 2 Stepli. 
 Com. 4th. ed. 260 ; Robertson v. 
 Non-is, 11 Ad. & E. (K S.) 916. 
 
 (a) Burton, § 757. 
 (6) Burtou, § 220. 
 (c) Sugd. Concise View, 147.
 
 IN THE wife's property. 1125 
 
 vives. If the liusbaud is outlawed, attainted, or convicted ^- iv. t. i, 
 
 ' ' Ch. 3, 3. 3. 
 
 of felony, or found felo de se, it is forfeited to the Crown. 
 It is liable to execution for his debts ; and, if he survives 
 his wife, it is to all intents and purposes his own. Yet if 
 he has made no disposition thereof in his lifetime, and dies 
 before his wife, he cannot dispose of it by will, inasmuch 
 as it has not been transferred from the wife (d). 
 
 As to chattels personal in possession which the wife has Ptg^e^"'-'* 
 in her own right, as ready money, jewels, household goods, ^ijaueis 
 and the like, the husband has an immediate and absolute p^'^^'*"^* 
 property therein by the marriage, which never can again 
 revest in the wife or her representatives, subject to an ex- 
 ception created by ss. 21 & 25 of the stat. 20 & 21 Vict. 
 c. 85 (c). But chattels personal, en autre droit, as exe- 
 cutrix or administratrix, &c., do not belong to the husband, 
 though he survive, but go to the administrator de bonis 
 non of the wife (/). 
 
 As to the wife's chattels personal or clioses in action, 
 which comprise debts, legacies, residuary personal estate, 
 money in the funds, money received by a person to be 
 appropriated to her use, &c., these the husband may have, 
 if he reduces them into possession. They then become 
 absolutely and entirely his own, and go to his executors 
 and administrators, or as he bequeaths them by will, and 
 shaU not revest in the wife. But if he dies before her, and 
 before he has released them or reduced them into posses- 
 sion, so that at his death they still continue choses in 
 action, they survive to the wife, whether against the per- 
 sonal representatives of the husband, or against his assig- 
 nees in bankruptcy or insolvency, or his assignees for 
 
 {d) 2 Bl. Com. 434 ; Co. Litt. 46 16 Beav. 33 ; 5 H. L. Cas. 388. 
 
 b, 351 a, and n. 1; 1 Bright's (e) See supra, p. 1118, 1119. 
 
 Husband and Wife, 94, 95, 98, 99, (/) 2 Bl. Com. 435 ; Co. Litt. 
 
 100, 105—6, 110 ; Bonne v. Hart, 351 b. ; 1 Bright's Husb. & Wife 
 
 2 Russ. & M. 361 ; Duherley v. Day, 34, 39. 
 
 M M 2
 
 1126 THE INTEREST OF THE HUSBAND 
 
 pt. IV. T. 1, valuable consideration. If he survives her, he will not 
 
 Cii. 3, 9. 3. 
 
 — - have them by survivorship, as lie would have a chattel 
 
 real, except in the case of arrears of rent due to the wife 
 before her coverture, which in case of her death are given 
 to the husband by the stat. 32 Hen. 8, c. 37 ; but he will 
 still be entitled to the chose in action as her administrator, 
 and may in that capacity recover such things in action as 
 became due to her before or during the coverture (g). On 
 taking out administration to her estate, he will become 
 entitled, as her administrator, to all her personal estate 
 which was outstanding and unrecovered at her death. And 
 if he does not take out administration to her estate, but 
 some other person does, the husband will be entitled to 
 any surplus which may remain after paying the- wife's 
 debts. If the husband dies before he or some other 
 person has administered to her estate, his personal repre- 
 sentatives may take out letters of administration to her 
 estate, and recover all her property in action and unre- 
 covered at her death, even though such property was 
 reversionary at her death, and in fact did not cease to be 
 so until after the death of the husband, as where he died 
 in the lifetime of a prior taker of the property ; or, if 
 the personal representatives of the husband do not take 
 out administration to her estate, any other personal repre- 
 sentatives of the wife may recover such property. But 
 such personal representatives are trustees for the persons 
 beneficially entitled to his general personal estate, under 
 his will, or under the statutes of distribution, or under his 
 bankruptcy or insolvency, or otherwise, as the case may 
 be, as to any surplus which may remain after paying the 
 wife's debts (A). 
 
 (g) 2 Bl. Com. 434—5 ; Co. Litfc. 36, 41, 42, 72, — 8 ; 1 Wms. on 
 
 351 b. Exors. Gth ed. 815 ; Drew v. Long, 
 
 {h) See 1 Bright's Husb. & Wife, 22 L. J. 717 (V. C. K); Att.-Gen
 
 iNTiiE wife's property. 1127 
 
 Where the wife is the proprietor of land-tax redeemed, pt. iv. t. i, 
 
 ^ ^ Cn. 3, 8. 3. 
 
 and the husband obtains a certificate of his title by virtue of 
 
 his marriage, he may dispose of the whole. But if he only 
 makes a mortgage of it, though he reserves the equity of re- 
 demption to himself alone, it is only a disposition pro tanto, 
 and if the wife survives, the equity of redemption will 
 belong to her {i). 
 
 As to the disposition of the reversionary interest of Disposition 
 
 _ _ of tbe rever- 
 
 married women in chattels personal (in cases not within siouary 
 
 ■*- ^ interests of 
 
 the Stat. 20 & 21 Vict. c. 57), the general result of the X™,^;^ 
 cases may be briefly stated in these general terms {j ) : — personal, in 
 1. An assignment by a married woman of a vested re- wi'thin2o& 
 
 ^ "^ 21 Vict. 
 
 versionary interest in chattels personal, if bequeathed or c. sr. 
 settled to her separate use, will be binding upon her even 
 after the determination of the coverture. 2. A married 
 woman cannot directly deprive herself or be deprived of a 
 vested reversionary interest, as such, in personalty not 
 given for her separate use, so effectually that she will be 
 precluded from asserting a claim to it, if her husband dies 
 before her without having reduced it into possession. 3. 
 According to the decisions in Lachton v. Adams (k), Creed 
 V. Perri/ (J), and Wilson v. Oldham, cited by Mr. Lewin 
 in his work on Trusts, 2nd ed. 296, and according to the 
 opinion of that eminent lawyer, the late Mr. Jacob, as 
 stated by Mr. Lewin, a married woman may deprive 
 herself or be deprived of chattels personal in which she 
 has a vested reversionary interest, by means of the con- 
 version of that reversionary interest into an interest in 
 possession in herself, through the operation of merger 
 consequent upon a surrender or assignment made to her 
 
 V. Partington, 1 Hurl. & Colt. 193 ; (j) See an article on this subject, 
 
 Fleet V. Perrins, L. R. 3 Q. B. 536; by the writer of these pages, 10 
 
 4 Q. B. 500 (Ex. Ch). Jurist, 231, 24S. 
 
 (i) Pigott V. PIgott, L R. 4 Rq. (k) 5 L. J. (N. S.) Chanc. 382. 
 
 549. (I) 2 Eq. Rep. 42.
 
 1128 THE INTEREST OF THE HUSBAND 
 
 pt IV. T. 1, of the prior life interest, where at least the person to 
 
 Ch. 3, s. 3. ^ ^ 
 
 whom that prior life interest is limited is some other 
 
 person than her own husband, and by means of a sub- 
 sequent reduction of the property into tlie possession of the 
 husband. But according to the decision of Lord Langdale 
 and Lord Cottenliam (m), a married woman cannot so 
 deprive herseK or be deprived by means of such a merger 
 and acceleration of chattels personal in which she has a 
 vested reversionary interest. The writer of these pages 
 conceives that the opinion of Mr. Jacob was right, for the 
 reasons given by the writer in the article already refeiTed 
 to {n), and that the decision in Wliittle v. He7ining was 
 wrong ; but in the absence of any decision of the question 
 by the House of Lords, the doctrine of Lord Cottenham 
 in Whittle v. Henning must be deemed to be the law of 
 the land (o). 4. If the reversionary interest of a married 
 woman in personalty is contingent, and bequeathed or 
 settled to her separate use, and, a fortiori, if it is con- 
 tingent and not settled to her separate use, she cannot 
 deprive herself or be deprived of it, so as to be bound after 
 the determination of the coverture. 
 
 Stat. io&2i By the stat. 20 & 21 Vict. c. 57, it is enacted as fol- 
 
 Vict. c. 57. "^ 
 
 Disposal of lows : — " 1. After the 31st day of December, 1857, it shall 
 
 reversionary n p i p • i 
 
 interests of be lawful for cvcry married woman by deed to dispose of 
 
 married . . 
 
 women, and evciT futurc or reversioiiary interest, whether vested or 
 
 release or •' j ' 
 
 or^'theu-Tia'bt Contingent, of such married woman, or her husband in 
 ment'.*^ '^^ her right, in any personal estate whatsoever to which she 
 shall be entitled under any instrument made after the 
 said 31st day of December, 1857 (except such a settlement 
 as after mentioned), and also to release or extinguish any 
 power which may be vested in or limited or resei'ved to 
 her in regard to any such personal estate, as fully and 
 
 (m) WJiittle V. Ilennijig, 11 BesLV. (o) 2 Tudor's Lead. Cas. in Equity, 
 
 222, and 2 Phil. 731. 580. 
 
 (n) Supra, p. 1127, n.{j).
 
 IN THE wife's property. 1129 
 
 effectually as she could do if she were a feme sole, and i't- iv. t. i, 
 
 also to release and extinguish her right or equity to a 
 
 settlement out of any personal estate to which she or her 
 husband in her right, may be entitled in possession under 
 any such instrument as aforesaid ; save and except that no 
 such disposition, release, or extinguishment shall be valid 
 unless the husband concur in the deed by which the same 
 shall be effected, nor unless the deed be acknowledged by 
 her as hereinafter directed : Provided ahvays, that nothing 
 herein contained shall extend to any reversionary interest 
 to which she shall become entitled by virtue of any deed, 
 will, or instrument by which she shall be restrained from 
 alienating or affecting the same (s. 1). 2. Every deed to needs by 
 be executed in England or Wales by a married woman for ^^^''°^' 
 any of the purposes of this Act shall be acknowledged by 
 her, and be otherwise perfected, in the manner in and by 
 the Act passed in the third and fourth years of the reign of 
 his late Majesty King "William the Fourth, intituled An 
 Act for the abolition of fines and recoveries, and for the 
 substitution of more simple modes of assurance, prescribed 
 for the acknowledgment and perfecting of deeds disposing 
 of interests of married women in land ; and every deed to 
 be executed in Ireland by a married woman for any of the 
 purposes of tliis Act shall be acknowledged by her and be 
 otherwise perfected in the manner in and by the Act 
 passed in the fourth and fifth years of the reign of his late 
 Majesty King William the Fourth, intituled An Act for 
 the abolition of fines and recoveries, and the substitution of 
 more simple modes of assurance, in Ireland, prescribed for 
 the acknowledgment and perfecting of deeds disposing of 
 interests of married women in land ; and all and singular 
 the clauses and provisions in the said Acts concerning the 
 disposition of lands by married women, including the j^ro- 
 visions for dis]3ensing with the concurrence of the husbands 
 of married women, in the cases in the said Act mentioned.
 
 ll:]0 
 
 INTEREST OF THE HUSBAND IN THE WIFE'S PROPERTY. 
 
 Pt. IV. T. I 
 Ch. 3, s. 3. 
 
 The power 
 uuiler this 
 Act not to 
 iuterfere 
 with other 
 powers. 
 
 Interepts of 
 Women 
 uiuier their 
 man iago 
 8t-i,tlonieiit3 
 not to be 
 affected. 
 
 Arrears of 
 inoorae of 
 wile's choses 
 in actiou. 
 
 Release by 
 husbaml. 
 
 Hliall extend and be applicable to such interests in personal 
 estate and to such powers as may be disposed of, released, 
 or extinguished by virtue of this Act, as fully and effec- 
 tually as if such interests or powers were interests in or 
 powers over land (s. 2). 3. Provided always, that the 
 powers of disposition given to a married woman by this 
 Act shall not interfere with any power which inde- 
 pendently of this Act may be vested in or limited or re- 
 served to her, so as to prevent her from exercising such 
 power in any case, except so far as by any disposition made 
 by her under this Act she may be prevented from so doing, 
 in consequence of such power having been suspended or 
 extinguished by such disposition (s. 3). 4. Provided always, 
 that the powers of disposition hereby given to a married 
 woman shall not enable her to dispose of any interest in 
 personal estate settled upon her by any settlement or 
 agreement for a settlement made on the occasion of her 
 marriage " (s. 4). 
 
 Arrears of income of the wife's jDroperty consisting of 
 choses in action not reduced into possession by the hus- 
 band, belong to the wife by survivorship, and not to the 
 representatives of the husband or his assignees (p). 
 
 Wliere the wife has any right or duty which by possibility 
 may arise during the coverture, the husband may by release 
 discharge it (q). A husband may release a personal an- 
 nuity secured by bond to which his wife is entitled, so as to 
 bind his wife, even if she survives him (v-). And at law a 
 man may even release a cause of action which his wife has 
 as executrix or administratrix (s). But where the wife has 
 a right or duty which cannot by any possibility accrue to 
 her during the coverture, the husband cannot release it (t). 
 
 (p) Wilkinson v. CharUsivorth, 10 
 Beav. 334. 
 ('/) 2 Pres. Shep. T. 322. 
 ((•) Ilorcv. Bccher, 12 Sim. 165. 
 
 (s) 2 Pres. Shep. T. 333. 
 (0 2 Pres. Shep. T. 322 ; 
 Bri^hfs Hiisb. & Wife, 73.
 
 PIN-MONEY AND PARAPHERNALIA. 1131 
 
 Section IV. 
 Pin-Money and Para;pJiernalia. 
 
 I. Pin-money is not deemed to be an absolute gift. It ^^Jl''^-^' 
 
 is not considered like money set apart for the sole and sepa- T~Z~_ 
 
 rate use of the wife during coverture ; but it is a sum pay- ^^"^^7- 
 able by the husband to the wife, in \drtue of a particular 
 arrangement, and to be applied by tlie wife in attiring her 
 person in a manner suitable to the rank of her husband, 
 
 and in defraying other personal expenses — a sum allowed 
 to save the trouble of a constant recourse by the wife to 
 the husband, in order to meet her ordinary personal ex- 
 penses («). 
 
 Such being the peculiar nature of this provision, the wife ^"^^^j? 
 cannot make such a disposition of it as she can of her sepa- 
 rate estate. And courts of equity refuse to call upon the 
 husband to pay beyond the arrears of a year, although sti- 
 pulated for by a marriage settlement. For, setting aside 
 the presumed satisfaction by acquiescence, the money is 
 meant to dress tlie wife during the year, so as to keep up 
 the dignity of the Imsband, and not for the purpose of 
 accumulation. And, on the same principle, the personal 
 representatives of the wife are not allowed to make any 
 claim even for arrears of a year (x). 
 
 II. The wife's paraphernalia are personal apparel and n- Para- 
 
 . . phernaJia. 
 
 ornaments of the wife, suitable to her rank and condition 
 in life {]/). Old family jewels, although worn by the wife, 
 do not constitute a part of her paraphernalia, unless she 
 has acquired them by gift or bequest {z). 
 
 ((() See story's Eq. Jur. § 1375 {y) Story's Eq. Jur. § 1376 ; 11 
 
 a, and note; 2 Spcnce's Eq. Jur. Jarm. & Byth. by Sweet, 442 ; 2 Bl. 
 
 500, :.01. Com. 436. 
 
 {x) Story's Eq. Jur. § 1375 a, and (2) Jervoise v. Jervoise, 17 Beav. 
 
 note; 2 Spence's Eq. Jur. 501. ;)Q6.
 
 1132 
 
 PIN-MONEY AND PARAPHERNALIA. 
 
 Pt. IV. T. 1, 
 
 Cii. 3, s. 4. 
 
 Rule of law 
 
 respectiug 
 
 them. 
 
 Rule of 
 
 equity, 
 where they 
 were given 
 by the 
 husband ; 
 
 or where 
 given by any 
 one else. 
 
 At law, the husband may, in his lifetime, but not by his 
 will, dispose of the wife's paraphernalia, with the exception 
 of necessary apparel. And tliey are lialjle to the claims of 
 creditors, with the like exception. And if the articles were 
 given by the husband, either before or after marriage, 
 courts of equity fully recognise this right of the husband 
 and his creditors, instead of treating the articles as absolute 
 gifts to the wife, as her own separate property ; although 
 in the case of creditors claiming against the assets of the 
 husband, the personal assets of tlie husband will be mar- 
 shalled against his representatives, in favour of the widow. 
 But if the articles were bestowed on the wife by any one 
 else, they will be deemed absolute gifts to her separate use ; 
 and then, if received with the consent of the husband, 
 neither he nor his creditors can dispose of them (a). 
 
 Section V, 
 The Wife's se^xtrate Estate. 
 
 I. With regard to the means of acquiring a separate 
 
 e — 
 1. Wlienever real or personal estate is given, granted, or 
 
 Pt. IV. T. 1, 
 Ch. 3, B. 5. 
 
 ,— — estate — 
 
 I. Means of 
 acquiring it. 
 
 1. By gift, 
 
 grant, devise, dcviscd to, or Settled Oil, a woman, either with or without 
 
 or settle' 
 ment. 
 
 the intervention of trustees, whether after marriage, or as a 
 provision on marriage, or not in contemplation of immediate 
 marriage, and whether by her husband or by a mere stran- 
 ger, it will be deemed separate estate, if it clearly appears 
 from the will itself that the property was intended for her 
 separate use Q>). Thus, not to mention other instances 
 
 (a) Story's Eq. Jur. § 1376, 1377 ; 
 11 Jarm. & Byth. by Sweet, 442 ; 2 
 
 Bl. Com. 43fi. 
 
 yb) Story's Eq. Jur. § 1380, 1381,
 
 THE wife's separate ESTATE. 1133 
 
 where the intention is more obvious, a legacy to a married f^- ly- t. i, 
 
 woman, with a declaration " that her receipt alone shall be 
 
 a siitficient discharge to the executors," amounts to a be- 
 quest for her separate use. So a bequest to a married 
 woman " for her own use, and at her own disposal," has 
 been held to be a bequest to her separate use (c). But 
 where the expressions do not clearly show that the husband 
 is to be excluded from his marital rights, the wife will not 
 take for her separate use. Thus, in the case of a direction 
 to pay money into her own proper hands " for her own use 
 and benefit," it has been held, that, although the money 
 is to be for her own use, yet there is nothing in that 
 inconsistent with its being subject to the husband's marital 
 rights (d). And a direct devise or bequest " for her sole 
 use and benefit," to a woman who is either single or will 
 become discovert on the death of the testator, does not 
 amount to a gift to her separate use (e) ; unless, aided 
 by other expressions in the will, or other circumstances, 
 such as the fact that tlie instrument shows that the mar- 
 riage of the person spoken of was contemplated by the 
 author of it (/ ). But a gift, by way of trust, " for her 
 sole benefit," to a married woman, does create a separate 
 estate {g). 
 
 Wliere personal chattels are given for the separate use of 
 a married woman, a trustee should always be interposed, 
 in order to exclude the legal title of the husband, who might 
 
 1384; 2 Spence'sEq.Jur. 502, 507, Jarm. Wills, 2nd ed. 19, 20. See 
 
 511 ; 2 Rop. Leg. by Wliite, 1414; also Sjurett v. Willoivs, 3 D. J. & S, 
 
 2 Jarm. WiUs, 2nd ed. 19, 20 ; 293. 
 
 Gouhler v. Camm. 1 D. F. & J. (c) Gilbert v. Lewis, 1 D. J. & S. 
 
 14G. 38. See also Leivis v. Mathews, 
 
 (c) Story's Eq. Jur. § 1382; L R 2 Eq. 177. 
 
 2 Spence's Eq. Jur. 507; 2 Eop. Leg. (/) In re Tassei/s Trust, L. R. 1 
 
 by White, 1414 ; 2 Jarm. Wills, Eq. 561. 
 
 2nd ed. 19. {(f) Green v. Britten, 1 D. J. & 
 
 {(I) Story's Eq. Jur. § 1383 ; 2 Sm. 649. 
 Spence's Eq. Jur. 508—511 ; 2
 
 1134 
 
 Pt. IV. T. 1, 
 
 Ch. 3, 8. 6. 
 
 2. By carry- 
 ing un a 
 sepaiate 
 trade iu 
 Loiidou, or 
 eveu else- 
 where, by 
 agieement 
 before 
 marriage ; 
 
 or by agree- 
 meut a!ter 
 marriage ; 
 
 THE WIFE S SEPARATE ESTATE. 
 
 otherwise defeat the trust by dehvering the property to a 
 purchaser, &c., without notice (h). 
 
 2. By the custom of London, a married woman may 
 carry on trade witliin the City, as a sole trader, and be 
 liable as such. But, independently of any such custom, 
 if it was agreed between the husband and wife, before 
 marriage, that the wife shall be allowed to carry on a 
 separate trade, such an agreement will be maintained at 
 law against the husband ; and being an agreement for 
 valuable consideration, namely, that of the intended 
 marriage, it will also be maintained at law against his 
 creditors. And if such an agreement is made after mar- 
 riage, and trustees are interposed, it will be maintained 
 at law against the husband ; and, if it is for valuable 
 consideration, against his creditors also ; for in such 
 case, the wife's trustees will, at law, be entitled to the 
 property assigned, and to the increase and profits thereof, 
 and she will be considered, at law, as their agent, and 
 her possession as their possession. The trustees, however, 
 will be regarded, in equity, as holding such property, and 
 receiving the increase and profits thereof, for the sole 
 and separate use of the wife. And thus, in such cases, 
 where trustees are interposed, the beneficial interest in 
 the property, and the increase and profits thereof, are 
 secured to the wife by the joint operation of law and 
 equity. By the operation of law, the legal estate is 
 vested in the trustees, and taken out of the power of the 
 husband. By the operation of equity, the beneficial 
 interest is vested in, and secured to, the wife, against her 
 husband, and, if the agreement is for valuable considera- 
 tion, against his creditors also. But even where there are 
 no trustees interposed, such an agreement has the force, in 
 equity, of creating a separate estate for the wife, and 
 
 4 
 
 '{fi, 11 Janu. & Byth. by Sweet, -146.
 
 THE wife's separate ESTATE. 1135 
 
 seciirinej it aGjainst the husband, and, if the aGfreement is pt. iv. t. i, 
 
 . . . . ^-H- 3, s. 5. 
 
 for valuable consideration, against liis creditors also. And — 
 
 this is the case even though it be a mere implied agree- even though 
 
 the agree- 
 ment. So that if the husband should permit his wife, nientbe 
 
 merely 
 
 after the marriage, to carry on business on her sole and ^^v^'^^ii- 
 separate account, all her earnings in the trade will be her 
 separate property. And if a husband should desert his 
 wife, and she should be enabled, by the aid of her friends, 
 to carry on a separate trade, her earnings in such trade will 
 be enforced in equity against her husband (i), indepen- 
 dently of the statute 20 & 21 Vict. c. 85, ss. 21, 25. 
 
 Where the property is vested in trustees, care must be 
 taken that the negotiations are not carried on in the 
 name of the wife, as by taking notes or other securities 
 in her name ; for then they will, at law, be held to 
 belong to the husband, although it will be otherwise in 
 equity (J). 
 
 3. By the stat. 20 & 21 Vict. c. 85, s. 21, and 21 & 22 3- RyB^at. 
 
 "^ ^ ' ' 20 & 21 Vict. 
 
 Vict. c. 108, s. 8, if a wife is deserted by her husband, she gi^l' 22"vict 
 may obtain an order of protection of her property against ^' ^'^^' 
 her husband and his creditors ; and by s. 25 of the former 
 Act, if she is judicially separated, she is to be considered 
 as a feme sole as regards her property ; and in case of 
 subsequent cohabitation, it shall be held to her separate 
 use, subject to any agreement (k). 
 
 II. As to the wife's power of disposing of her separate ii. wife's 
 estate, all pre-nuptial agreements for securing to the wife dispo>ing of 
 
 separate 
 
 separate personal property, will confer on her, in equity, e="ate, 
 unless the contrary be expressly stipulated or implied, the Trlseu from a 
 
 „ , . . „ , pre-nuptial 
 
 same power of disposing of such separate property, by will agreement ; 
 or otherwise, as an unmarried woman would have (I). 
 
 With respect to her power of disposing of her separate where it has 
 
 arisen from 
 
 (/) See Story's Eq. Jur. § 1385— {k) See supra, 1117—1121. 
 
 1387 ; 2 Spence's Eq. Jur. 503. (l) Story's Eq. Jur. § 1390 ; 2 
 
 (i) Story's Eq. Jur. § 1386. Spence's Eq. Jur.' 506, 507.
 
 1136 
 
 THE WIFE S SEPARATE ESTATE. 
 
 Pt. IV. T. 1, 
 Ch. 3, s. 6. 
 
 a post- 
 nuptial 
 agreement of 
 the husband ; 
 
 where it is 
 given by a 
 third person 
 before or 
 dwiug the 
 coverture. 
 
 property, where no trustee is interposed, and it rests 
 merely on a post-nuptial agreement of the husband, if the 
 property consists of personalty or an estate for life in real 
 property, her disposal thereof can affect her husband's 
 rights alone ; and therefore his assent is conclusive upon 
 him. And if real jjroperty is settled upon her in fee 
 in trust for her separate use, without any special power 
 of appointment, she may dispose of or charge the rents and 
 profits accruing during lier life. But it was formerly held 
 that she can only dispose of the inheritance by the ordinary 
 means by which married women dispose of their real 
 property ; because, in regard to real estate, her own heirs 
 are or may be affected in their interest by descent (m). 
 
 And where an estate of inheritance was given her by a 
 third person, during the coverture, or, as it seems, before 
 coverture, for her separate use, it was formerly held that 
 she could not dispose of it, except by those means (that is, 
 by a deed duly acknowledged under the Fines and 
 Eecoveries Act) or under a power: but if such a power was 
 expressly given her, she might dispose of the estate, even 
 though there were no trustees interposed to protect the 
 execution of tlie power (n). 
 
 It has been subsequently held, however, that she, like 
 a feme sole, by virtue of her ownership, may, by deed 
 or will, dispose of an estate of inheritance settled to her 
 separate use, even though a special power of appointment 
 be given her (o). 
 
 Where personal property, whether in possession or 
 reversion, or a life interest in real property, is given by a 
 third person, for the separate use of a married woman, she 
 
 I 
 
 (m) Story's Eq. Jur. § 1391 ; 2 
 Spence's Eq. Jur. 501, 513 ; and see 
 remarks of V.-C. Kindersley, in 
 Moore v. Morris, 4 Drewry, 37 — 8. 
 
 {n) Story's Eq. Jur. § 1388, 1392 ; 
 
 2 Spence's Eq. Jur. 504, 507 ; Har- 
 ris V. Mott, 14 Beav. 169 ; Lechmere 
 V. Brotheridge, 32 Beav. 853. 
 
 (o) Taylor v. Meads, 13 W. K. 
 294 (L. C).
 
 alienation or 
 auticipatioa. 
 
 THE wife's separate ESTATE. 1137 
 
 lias, in effect, a full power to dispose of it, unless, from the '^^■J-J- J-^' 
 
 words of the gift, it appears, beyond a reasonable doubt, to 
 
 have been the intention of the giver that this absolute 
 power should not exist ( p). 
 
 But where trustees hold personal property in trust for a ^^'J.rled* 
 married woman absolutely, and to apply the income for 11^^^ *^** 
 
 1 , I' ^•^ 1 ^ t/>'x ^ ^ interest for 
 
 her separate use tor iiie, she has a iiie interest and a rever- her separate 
 
 n T .. /.I !■/>• use, With a 
 
 sion, and slie has the power oi disposition of her lite interest revmsion. 
 during coverture, but no power of disposing of the rever- 
 sion until she is discovert (q). 
 
 III. Eeal property, whether in fee or for life, and per- ^^- E^eatric- 
 
 1. sr •/ ' ' L tious against 
 
 sonal property may be given or settled to the separate use 
 of a woman, though unmarried at the time when the gift 
 or settlement takes effect, and the gift may be accom- 
 panied by a prohibition of alienation or anticipation. But 
 a separate estate and a mere prohibition of alienation or 
 anticipation are both suspended whilst and as often as a 
 woman is discovert : for, the separate estate of course only 
 exists during coverture, and the prohibition of alienation 
 or anticipation is exclusively annexed to the separate 
 estate ; because such prohibition, without a clause of 
 cesser, is inoperative as against an unmarried woman, and 
 even as against a married woman if the gift is not for her 
 separate use, just as it is void as against a man (r). So 
 that a clause against anticipation, unaccompanied by a 
 gift over on such anticipation, annexed to a gift to the 
 separate use of a female for life, does not prevent her from 
 
 (p) See Story'8 Eq. Jur. § 1393, 11 Jarm. & Byth. by Sweet, 473; 2 
 
 1394 ; 2 Spence's Eq. Jur. 513 ; Jami. Wills, 2nd ed. 30 ; Barton v. 
 
 Lechmere v. Brotheridrje, 32 Beav. Briscoe, Jac. 603 ; Tullett v. Arm- 
 
 353. strong, 1 Beav. 1 ; 4 My. & Cr. 377; 
 
 {q) Hanchett v. Briscoe, 22 Beav. Baggett v. Meux, 1 Coll. 138, 1 
 
 496. Phil. 627 ; Re Young's Settlement, 
 
 {r) 2 Spence's Eq. Jur. 511, 520 18 Beav. 199; Wright v. Wright, 2 
 
 —522 ; Story's Eq. Jur. § 1382 a, Johns. & Hem. 647. 
 1884 ; 1 Rop. Leg. by White, 794 ;
 
 1138 THE wife's separate estate. 
 
 pt. IV. T. 1, alieuatinff her whole interest, or converting all the pro- 
 
 Ch. 3, a. 5. ^ O 1 
 
 perty to her own absokite use, before she is married, or 
 
 after she becomes discovert (s). And if the property con- 
 sists of a sum of money to be invested in the purchase of 
 an annuity, she is entitled before her marriage to have 
 the money paid to her at once, without having it laid 
 out {t). 
 
 The words " independent of her husband " mean no 
 more than that Equity will not permit the marital power 
 of the husband to be used in contravention of the enjoy- 
 ment of the property according to the terms of the gift. 
 If there is no restraint on alienation of the separate estate, 
 she has an alienable estate ; and though it is legally en- 
 joyable independent of her husband in the sense above 
 mentioned, yet it is virtually liable to be destroyed by the 
 influence and control of the husband, in inducing the wife 
 to exercise the power of alienation thus incident to her 
 separate estate. But if the limitation of a separate estate 
 is accompanied with a prohibition of alienation or anticipa- 
 tion, she has an unalienable estate during the coverture 
 existing at the time when the 'gift was made, or, if she 
 was then discovert, during the coverture following the 
 gift ; and if the words are general and unrestricted to any 
 particular coverture, during every subsequent coverture (w). 
 Where a sum of money was vested in trustees, upon 
 trust to pay the income to such persons as a married 
 woman should appoint, but not so as to dispose of the 
 same in the way of anticipation, and in default of such 
 appointment into her own hands, for her own separate 
 
 (s) Brown v. Pococh, 2 Euss. & (?<) 2 Spence's Eq. Jur. 524 ; Tul- 
 
 My. 210, overruling the decision of lett v. Armstrong, 1 Beav. 1 ; 4 My. 
 
 Sir /. Leach, 2 My. & K. 189 ; & Cr. 377 ; Baggett v. 3feux, 1 Coll. 
 
 Wright v. Wright, 2 Johns. & Hem. 138 ; 1 Phil. 627 ; Clark y. Jacques, 
 
 647. 1 Beav. 36 ; Dixon v. Dixon, lb. 
 
 {t) Woodmeston v. Walker, 2 Russ. 40 ; Jones v. Salter, 2 Euss. & My. 
 
 & My. 197. 208.
 
 THE wife's separate ESTATE. 11B9 
 
 use, notwitlistandinQ- her coverture, independent of her Pr. iv. t. i, 
 
 , Ch. 3, s. 5. 
 
 husband (naming him), &c., the allusion to her present 
 
 husband did not restrict the generality of the first part of 
 the provision, so as to confine the restraint on anticipation 
 to the existing coverture (x). But in the case of a devise 
 or bequest to a married woman, independent of her husband 
 (naming him), for her separate use, or for her separate use 
 independent of him, the limitation to her separate use is 
 restricted to her present coverture (,y). 
 
 Eestrictions against alienation or anticipation will not 
 be inferred fi'om any ambiguous expressions. They must 
 either be contained in express words, or be deducible by 
 plain implication (z). Hence tlie mere circumstance of 
 the interest being directed to be paid from time to time 
 will not prevent the wife from making a sweeping appoint- 
 ment at once (a). And a woman is not restrained from 
 the power of alienating her life interest, because it is given 
 to her sole and separate use, and is to be paid into her own 
 proper hands and upon her receipt alone ; such expressions 
 being intended only to exclude the marital claims of any 
 present or after-taken husband, and not to control that 
 right of disposition which is incident to property (6). But 
 it has been held on appeal, that where a testator gives 
 property upon trust to pay the rents, &c., unto such person 
 or persons, for such intents and purposes, and in such 
 manner as a married woman by any writing or writings 
 under her hand, when and as the same shall become due, 
 but not hj way of assignment, charge, or other anticipation 
 thereof, shall, notwithstanding her present or an}- future 
 coverture, direct or appoint, and in default of any such 
 
 (x) In re Gaffees Settlement, 1 (a) 1 Sugd. Pow. 207 ; 2 Jarm. 
 
 Mac. & Gord. 541. Wills, 2nd ed. 21 ; and remarks of 
 
 iy) Moore v. Morris, 4 Drewry, V.-C. KlndersUy in Moore v. Morris, 
 
 33. 4 Drewry, 37. 
 
 {z) See 2 Spence's Eq. Jur. 512, (6) 1 Sugd. Pow. 210; 2 Jarm. 
 
 522; 2 Jarm. Wills, 2nd ed. 21. Wills, 2nd ed. 21.
 
 1140 THE wife's separate estate. 
 
 ^ch^I's^'s'' tlirection or appointment, or, so far as the same, if incom- 
 ■ plete, shall not extend, into her proper hands, for her sole 
 
 and separate use, &c., for which purpose her receipts in 
 writing shall, notwithstanding any such coverture, be good 
 discharges ; there the restrictive clause " but not by way of 
 assignment, charge, or other anticipation thereof," extends 
 to the whole gift, and applies as well to any disposition 
 made as incidental to the separate estate which she is to 
 take in default of appointment, as to any appointment 
 made in execution of the power. For she is not allowed to 
 direct the payment or application of the rents, &c., by way 
 of assignment, charge, or other anticipation ; and therefore 
 she could not make any disposition, as incidental to her 
 separate estate, to take effect as an assignment, charge, or 
 other anticipation, because that would operate as a direc- 
 tion (c). And where trustees are directed to receive the 
 income of settled property, when and as often as the same 
 shall become due, and to pay the same to her, or to such 
 persons as she shall appoint, or to permit her to receive it 
 for her separate use, so and in such manner that her 
 receipts alone, or the receipts of any person to whom she 
 may appoint the income after it shall become due, shall 
 be a valid discharge, tlie feme is restrained from antici- 
 pating the income {d). 
 
 The Court of Chancery has no power to release a sepa- 
 rate estate from a restraint on anticipation or alienation, 
 even where it would manifestly be for the benefit of the 
 married woman : as where a legacy of considerable amount 
 is given to her on condition that she convey away a sepa- 
 rate estate of inconsiderable value (c). 
 
 (c) Brown v. Bamford, 1 Phil. 597, overruling tlie decision of the 
 629, reversing decision of V.-C. E., Court below ; 2 Sm. & Gif. 555 — 6, 
 11 Sim. 127. 560—3. 
 
 (d) Field V. Evans, 15 Sim. 375 ; (e) Rohinson v. mteelwrigU, 21 
 Bakei' V. Bradley, 7 D. M. & G. Beav. 214 ; 6 D. M. & G. 535.
 
 THE wife's separate ESTATE. 1141 
 
 IV. Wliere the wife bestows lier separate property upon pt. iv.t. i, 
 
 Oh. o, 3> 5. 
 
 her liusband, Courts of equity examine the transaction with 
 
 > i- "^ IV. Gifts fo 
 
 an anxious dread of undue marital influence ; and if they ^'J.^jj^" wue'^ 
 are requii-ed to give sanction or effect to it, they will ex- 
 amine the wife in Court, and adopt other precautions to 
 ascertain her unbiassed wishes (/). 
 
 Where, however, the husband, with the consent of the Husband's 
 
 receipt of 
 
 wife, is m the habit of receiving the income of her separate "^^ income, 
 estate, it is regarded as showing her voluntary choice thus 
 to dispose of it for the benefit of the family ((/). 
 
 Separate money of the wife, paid to the husband or 
 placed to his account by her authority or with her con- 
 currence, cannot be recalled, whether it exists unapplied 
 and capable of being ear-marked, or not (h). And the in- 
 come of separate estate, where the wife is of unsound 
 mind, is payable to the husband for her support, if he is 
 unable to maintain her (i). But, upon principle, it clearly 
 ought to be held to be payable to him, even if he is able to 
 maintain her. 
 
 V. "Where a married woman is possessed of money aris- 7- i^'g^'t °^ 
 
 ^ "^ hiisbaiid to 
 
 ing from personal property settled to her separate use, she rate'%^olert 
 may dispose of it either by deed or by wHl ; but if she ""depeif-*^^'''' 
 makes no disposition of it, it will, on her decease, belong gff? "^ °^ ^°^ 
 to her liusband in his marital rioht, without taking out ad- 
 ministration (J). And where it is stipulated in marriage 
 articles, that the intended wife's property shall be for her 
 separate use to all intents and purposes as if she were sole 
 and unmarried ; in such case, on her death without issue, 
 and without having made any appointment of the property, 
 
 (/) Story's Eq. Jur. § 1395; 2 Gif. 126. 
 
 Speuce's Eq. Jiir. 514. {{) 2 S]Dence's Eq. Jur. 525, 
 
 (g) Story's Eq. Jur. § 1396 ; see (/) Molony v. Kennedy, 10 Sim. 
 
 2 Spence's Eq. Jur. 514; 1 Lead. 254; see also Tagnian v. Hopkins, 
 
 Cas. Eq. 2nded. 411. 4 M. & Gr. 389; 5 Scott, N. R. 
 
 (A) Caton \. Rklout, 1 Mac. & 464. 
 Gord, 603 ; Gardner v. Gardner, 1 
 
 N K 2
 
 1142 THE wife's SEP abate ESTATE. 
 
 Pp. IV. T. 1, the husband is entitled to it as her administrator, and not 
 
 Ch. 3, s. 5. , 
 
 her next of kin (/<;). 
 
 VI. Liability VI. Except undei' the 20 & 21 Vict. c. 85, s. 26 (I), a 
 
 of separate 
 
 estate. woinaii caimot render herself or her property liable at law, 
 
 for any contract, debt, or charge created by her durmg the 
 coverture, not even for necessaries. But a married woman 
 having separate estate (except so far as she is restrained 
 from anticipation), being considered in equity as a feme 
 sole, as regards the separate estate, with respect to the ca- 
 pacity of enjoying it, she is likewise considered as a feme 
 sole with respect to the capacity of charging the estate 
 with debts or engagements. No personal decree, however, 
 can be made against her : the Court can only affect her 
 separate estate in the hands of her trustees : she cannot 
 bind her person at all, or her property generally, but only 
 her separate property (m). This will be held liable for all 
 the debts, charges, and incumbrances which she expressly 
 charges, or which, judging from the nature thereof, it may 
 be fairly inferred that she intended to charge on her sepa- 
 rate estate, and for her breaches of trust, except so far as 
 she is prevented by being restrained from anticipation (n). 
 And hence, if she gives a promissory note, or an acceptance, 
 or a bond to pay her own debt, or if she joins in a bond 
 with her husband to pay his debts, without reference to her 
 separate estate, it will be intended as an application pro 
 tanto of her separate estate ; because the security must 
 have been executed with the intention that it should operate 
 in some way, and it can have no operation except as against 
 her separate estate. And if she employs a lawyer upon 
 
 (k) Proudley t. Fielder, 2 My. & Vaughan v. Vanderstegen, 2 Drewry, 
 
 K 57. 179—184 ; BJatchford v. Woolley, 2 
 
 {I) See supra, p. 1119. Dr. & Sm. 204. 
 
 (m) Story's Eq. Jur. § 1397, and (n) Clire v. Carew, 1 Johns. & 
 
 note, and 1400, note ; 2 Spence's Hem. 199. And see Johnson v. 
 
 Eq. Jur. 324, 325, 504, 515—518 ; Gallagher, 3 D. F. & J. 494 ; in re 
 
 see remarks of Kindersley, V.-C, in Leeds Banking Co. h. E,. 3 Eq. 781. 
 
 I
 
 THE avife's separate estate. 1143 
 
 her own responsibility, lier separate estate will T)e liable, pt.iv. t. i 
 
 iroiii the nature of the engagement. But it would seem 
 
 that her separate estate would not be liable for debts of an 
 ordinary character, for which she gives no security, unless, 
 at least, she is divorced or judicially separated. For she 
 may, and in general must, be presumed to have intended 
 that these should be paid by her husband. And in no case 
 will the Court charge the corpus of the separate estate in 
 respect of her general obligations (o). 
 
 Unless contrary to the deed of settlement of the company, 
 a married woman may be a shareholder in a joint-stock 
 company in her own right, so as to bind her sejDarate 
 estate (p). 
 
 It has been held that where she has a life interest to her 
 separate use, with a general power of appointment by will 
 over the remainder, she does not, by exercising the power, 
 make the remainder applicable to the discharge of such en- 
 gagements as would bind her separate property, unless she 
 has been guilty of fraud (q). 
 
 VII. A covenant by an intended husband alone, to settle vri. a cove- 
 nant to 
 any property to which his intended wife or he in her right settle pro- 
 
 might become entitled during the coverture, will not affect ^ttj^^l^jt 
 
 property subsequently given to her separate use (?'). And orafter-^*^'' 
 
 although an ante-nuptial settlement purports to give the separate 
 
 husband a life interest in aU property which the wife might 
 
 acquire during the coverture, yet the husband will take no 
 
 interest in property afterwards given for her separate 
 
 use (s). 
 
 (o) See Story's Eq. Jur. g 1398— No. 2), 28 Beav. 354 ; Blatchford v. 
 
 1401, and notes ; 2 Spence's Eq. Woollci/, 2 Dr. & Sm. 204, Shattock 
 
 SIS, 516, and notes. v. ShaUod; L. R. 2 Eq. 182. 
 
 {p) In re Leeds Banhiny Co. L. R. (?•) Travcrs v. Travera, 2 Beav. 
 
 3 Eq. 781. 179 ; Grey v. Stmrt, 2 Gif. 398. 
 
 {q) Vaughan v. Vanderstegen, 2 (s) Duncan v. Caiman, 21 Beav. 
 
 Drewry, 165, 363 ; Hobday v. Peters, 307. 
 
 estate.
 
 1144 THE wife's equity to a settlement. 
 
 Section VI. 
 
 The Wife's Equity to a Settlement or Maintenance out of 
 her oiun Property (t). 
 
 pt. IV. T. 1, I. Trustees of a married wonian's personalty, not settled 
 
 Ch. 3, s. 6. J. J ' 
 
 to her separate use, may pay it over to her husband before 
 
 I. Powei" of 
 
 trustees of Chancery ]3roceedings are taken in respect of it. But, on 
 nor^euied to ^^^® othcr hand, they may refuse to pay it over to him, even 
 Sse.^*^^^'*'^ at his wife's request, unless he make a settlement, where 
 
 the Court would require him to make one (u). 
 Equity of the Witli regrard to cases where the Court requires a settle- 
 
 witf, wliea 
 
 deiendant, meut, if the wife has real property, or the absolute interest 
 
 against her 
 husband, 
 
 in personal property (with the exception, perhaps, of a 
 term for years), which cannot be reduced into the pos- 
 session of tlie husband without a suit in equity (as where 
 the legal property is vested in trustees), and the husband 
 applies to a Court of equity for the purpose of reducing 
 the property into his possession ; the Court, acting upon 
 the maxim that he who seeks equity must do equity, will 
 not give it up to him, without requiring him to make a 
 suitable settlement of a part of the property, or of some 
 other property, for the due maintenance of his wife in case 
 of her surviving him (»'), witli a provision for the issue of 
 mamage (y), even though the property is under £200 (z), 
 unless the wife and children are already amply provided 
 for under a prior settlement (a), or the right to a settle- 
 
 (t) See Gleaves v. Paine, 1 D. J. v. Siddall, 3 D. F. & J. 271. 
 
 & S. 87. (y) Story's Eq. Jur. § 1406 ; 2 
 
 (m) Hill on Trustees, 409, 410, Spence's Eq. Jur. 488. 
 
 415; Jie Swan, 2 Hem. & Mil. 34. (2) In re Cutler, 14 Beav. 220; 
 
 (a;) Story's Eq. Jur. § 1404, 1405, Re Kincaid's Trust, 1 Drewry, 326. 
 
 1410, 1418; 2 Spence's Eq. Jur. (a) Story's Eq. Jur. §1416; Spi- 
 
 482, 484. See Life Assoc, of Scoil. cer v. Spicer, 24 Beav. 365.
 
 THE wife's equity TO A SETTLEMENT. 1145 
 
 ment is waived or lost (h). In the absence of a contract to pt- iv- t- i. 
 
 ^ ' Cn. 3, 8. 6. 
 
 that effect, an inadequate settlement, even before marriage, 
 
 of a part of the wife's property does not deprive her of her 
 right to a settlement out of the residue of her property, 
 though vested in her at the time of the marriage (c). 
 
 This equity of the wife exists in the case of a charge on 
 land for her benefit, even though there be a power of entry 
 and receipt of the rents and profits (d). 
 
 If the husband does not choose to make a settlement or Refusal of 
 
 the husband 
 
 provision for the wife, the Court will not ordinarily take *« m-ike a 
 
 •t "^ settleuient. 
 
 from him the income and interest of his wife's fortune, so 
 long as he is willing to live with and maintain her, and 
 there is no reason for their living apart. Under such cir- 
 cumstances, the Com-t secures the fund, so as to give her 
 the chance of taking it by survivorship, allowing the hus- 
 band, under its order, to receive the income and interest, 
 or a part of it at least (c). 
 
 Where a woman is indebted at the time of her marriage, inrtebtedaesa 
 
 of wife ou 
 
 she has no equity to a settlement until her debts are pro- n^amage. 
 videcl for (/). 
 
 II. The assio-nees in bankruptcy or insolvency of a ir. Equity 
 
 o '- '' ''of the wile, 
 
 husband, and also his assignees for payment of debts due ^^en deiea- 
 to his creditors generally, are bound to make a settlement ^7,Xaucrr 
 ou the wife out of her immediate clioses in action, and 
 immediate, absolute, equitable interests in chattels per- 
 sonal assigned to them, in the same way, and under the 
 same circumstances, as he would be bound to make one ; 
 for it is a general principle that such assignees take the 
 property subject to all the equities which affect the bank- 
 rupt or insolvent or general assignor. Such assignees also 
 
 (6) Story's Eq. Jur. § 1418, 1419 ; Beav. 472 ; 2 D. F. & J. 509. 
 
 infra, 1106—7. (c) Story's Eq. Jur. § 1415 ; see 
 
 (c) Barrow v. Barrow, 18 Beav. 2 Spence's Eq. Jur. 490, 491. 
 
 529. (/) Barnard v. Ford, L. K. 4 Ch. 
 
 {d) Duncomhe v. Greenacrc, 28 Ap. 247. 
 
 assiETQees.
 
 1146 THE wife's equity to a settlement. 
 
 ■'cn^r Je^' ^^-^^ ^•'^^ propei-ty subject to the wife's riglit of survivor- 
 
 ship, in case the husband dies before the assignees have 
 
 reduced her cliosos in action and equitable interests into 
 possession ((/). And even a specific assignee or purchaser 
 from the husband, for valuable consideration, of her ehoses 
 in action and equitable interests, is bound to make such a 
 settlement. And no assignment of them will convey any 
 right to the assignee or purchaser against the wife, if she 
 survives her husband, and they are not reduced into posses- 
 sion in his lifetime (Ji). 
 When an There is this distinction, however, between the case of 
 
 imnudiite 
 
 muiied" '^ ^^^® husband himself and his specific assignees for valuable 
 consideration on the one hand, and the case of his as- 
 signees in bankruptcy or insolvency, or assignees, for 
 payment of debts generally, on the other hand, that in 
 the case of the former, it is only necessary that the pro- 
 vision for the wife should commence from the death of her 
 husband ; whereas in the case of the latter, it is necessary 
 that the provision should commence immediately, because 
 the general assignment of his property renders him in- 
 capable for a time, and perhaps for ever, of affording her a 
 suitable support (i). 
 Epfns.iiof If the assignees in bankruptcy, or other general assignees 
 
 to make a claiming title under the husband, refuse to make a settle- 
 ment on the wife, the like doctrine applies to them, as 
 to the husband himself, when he refused to make a 
 settlement (/). 
 
 The husband can sell the life interest of his wife in 
 personalty, and she has no equity to a settlement as 
 against the purchaser {k). 
 
 (y) Story's Eq. Jur. § 1411, 1421; 220. 
 
 2 Spence's Eq. Jur. 476. (0 Story's Eq. Jur. § 1421. 
 
 (A) Story's Eq. Jur. § 1412 ; 2 (/) Story's Eq. Jur. §1415 ; supra, 
 
 Spence's Eq. Jur. 476 ; Scvtt v. p. 1103. 
 
 Spaskett, 3 Mac. & Gord. 604 ; (k) Re Duffy's Trust, 28 Beav. 
 
 Prole V. Soadi/, L. 11. 3 Ch. Ap. 386.
 
 THE wife's equity to a settlement. 1147 
 
 III. AVhenever the wife, as defendant, would be entitled pt- iv. t. i, 
 
 Ch. 3. 8. 6. 
 
 to an equity for a settlement, out of her eqidtable interest, 
 
 III. E(|uity 
 
 against her husband or against his assignees, she may assert "*/•>'* ^'!e. 
 
 O " O > J whe.i plaiu- 
 
 it, as plaintiff or petitioner (/). ^L^'rftol 
 
 TV. The Court has a full discretion as to the amount to her hus^-"' "" 
 be settled, according to the circumstances of each case (m). bankiuptcy, ' 
 
 . or iiisulvency. 
 
 In the absence of special circumstances, however, the iv. Amount 
 general rule or the common course has been to settle about 
 one-half on the wife and her children (n), with remainder, 
 in default of issue, to the husband or his assignees (o). 
 But where particular reasons have occurred, the Court has 
 fi'equently settled the whole : as in Marshall v. Fotder {p), 
 where the husband had taken the benefit of the Insolvent 
 Debtors' Act, and was moreover almost entirely dependent 
 on charity ; In re Kincaid's Trust (q), and Ward v. 
 Yates (r), where the husband was a bankrupt, and the 
 fund was under £200 — so small a sum that it would not 
 have been worth while to have made any settlement at 
 all, unless the whole had been settled ; In re Cutler (s), 
 and in Watson v. Marshall (f), and in Francis v. Brook- 
 ing {u), Koeher v. Sturgis (x), Squires v. Ashford {y), 
 Duncomhe v. Greenacre (z), where the husband was an in- 
 solvent debtor ; in Scott v. Spashctt {a), where, besides other 
 special circumstances, the husband had received about 
 
 (0 story's Eq. Jur. § 1414 ; 2 (o) Spirctt v. Wilhivs, L. R. 1 Ch. 
 
 Spence's Eq. Jur. 482, 484, 485 ; Ap. 520 ; 4 Ch. Ap. 407 ; In re 
 
 Walker v. Druri/, 17 Beav. 482; Suggitt'sTriists,li.R. '^Ch. K^.2l^. 
 
 Gleaves t. Pain, 1 D. J. & S. 87 ; {p) 16 Beav. 249. 
 
 Re. Ford, 32 Beav. 621. {q) 1 Drew. 326. 
 
 {m) Waller v. Di-ury, 17 Beav. (»•) 1 Drew. «fe Sm. 80. 
 
 482 ; Smith v. Smith, 3 Gif. 121. (s) 14 Beav. 220. 
 
 i^n) Napier v. Napier, 1 Dru. & (<) 1 W. R. 523. 
 
 W. 410 ; Bagshaw v. Winter, 5 De («) 19 Beav. 347. 
 
 G. & Sm. 466 ; M'Cormich v. Gar- (x) 22 Beav. 588. 
 
 nett, 2 Sm. & G. 37 ; 5 D. M. & G. {y) 23 Beav. 132. 
 
 278 ; Re Grove's Trusts, 3 Gif. 583 ; (z) 28 Beav. 472 ; 29 Beav. 578 ; 
 
 2 Speiiee'.s Eq. Jur. 485 ; 1 Bright, Newman v. Wilson, 31 Beav. 34. 
 
 Husb. aud Wife, 241 {a) 3 Mae. & Cord. 599.
 
 1148 
 
 THE WIFE S EQUITY TO A SETTLEMENT. 
 
 Pt. IV. T. 1, 
 
 Ch. 3, s. 6. 
 
 V. Limita- 
 tions ol the 
 settlement. 
 
 VI. Substi- 
 tute for a 
 settlemeut 
 where fund 
 is &uiall. 
 
 VII. Wife's 
 equity 
 waived : 
 
 double the amount of the wife's property under a pre- 
 vious order, and no settlement had ever been made ; in 
 Dunhley v. Dunkhji (b), Vcmglian v. Buclc (c), and Gent 
 V. Harris (d), where the husband had become bankrupt, 
 and had deserted his wife ; and In re Wclchman (e), where 
 the husband was a bankrupt, and had no means of main- 
 taining his v/ife and child. 
 
 V. Wliere a settlement is made to give effect to a wife's 
 equity to a settlement, in the absence of special circum- 
 stances, the limitations, in the event of her predeceasing 
 the husband and of there being no issue of the marriage 
 who should attain a vested interest, ought not to be upon 
 such trusts as the wife shoidd appoint, and, for want of 
 appointment, for her next of kin ; for the husband's right 
 is only subject to the equity of the wife herself and her 
 issue (/). 
 
 VI. To avoid the expense of a settlement, where the fund 
 allowed to the wife is small, it will sometimes be ordered 
 to be brought into Court, or, if already in Court, it will be 
 retained there, and the dividends directed to be paid to 
 the wife for her life (g). 
 
 VII. The Court will not insist on a settlement on the 
 wife, if, at any time before a settlement under the decree 
 is completed, or at least before proposals are made under 
 the decree, the wife, by her consent given in open Court 
 or under a commission, agrees that the absolute fund shall 
 be wholly and absolutely paid over to her husband, except 
 in tlie case of a female ward" of the Court of Cliancery who 
 has married without its authority (//). But until the 
 
 (6) 4 De G. & S. 570 ; 2 D. M. & (ff) Bagshaw v. Winter, 5 De G. 
 
 G. 390. 
 
 (c) 1 Sim. (N. S.) 284. 
 
 (rf) 10 Hare, 383. 
 
 (e) 1 Gif. 31. 
 
 (/) Carter v. Tarjrjart, 1 ]). & M. 
 &286. 
 
 Watson V. Marshall, 17 
 Walker v. Drury, 17 
 
 & Sin. 466 ; 
 Beav, 363 
 Beav. 482. 
 
 (A) Story's Eq. Jiir. § 1418 ; 2 
 Spcnce's Eq. Jur. 48(), 488.
 
 THE wife's equity to a settlement. 1149 
 
 transfer to the husband has actually been made, the wife pt. iv. t. i, 
 
 *' Ch. 3, B. 6. 
 
 can revoke her consent (i). 
 
 The equity of the wife to a settlement may be lost or or lost or 
 
 i- '^ " suspeudeci. 
 
 suspended by her own misconduct. Thus, if the wife (not 
 being a ward of Court married without its consent) should 
 be living in adultery, apart from the husband, a Court of 
 equity will not direct a settlement, on her own application, 
 as it otherwise would ; because, by such misconduct, she 
 has rendered herself unworthy of the protection and favom* 
 of the Court. On the other hand, in such a case, a Court of 
 equity will not decree such equitable property to be paid 
 over to the husband, on his application ; for when the wife 
 is living apart from him, he is at no charge for her mainte- 
 nance ; and it is only in respect to his duty to maintain 
 her, that the law gives him her fortune. And in the 
 case of a female ward of Court married without its consent, 
 the Court will insist on a settlement, as a punishment to 
 the husband for contempt of its authority (J). 
 
 We must, however, be careful to distinguish an applica- 
 tion which is grounded merely on general principles of 
 equity, and an application grounded on positive vested 
 rights under a settlement or under a valid contract for a 
 settlement made before marriage. In the latter case, Courts 
 of equity cannot refuse to protect or support those vested 
 rights, on account of any misconduct in the wife (k). A 
 woman may, by her fraud, even though perpetrated imder 
 her husband's compulsion, preclude herself from asserting 
 against a purchaser that equity to a settlement which she 
 would otherwise possess (/). 
 
 We have seen that the Court, in making a settlement waiver of 
 
 provisiou 
 
 on the wife, properly attends to the mterests of the chil- »or the 
 
 cMldien. 
 
 ((■) Penfold X. Mould, L. R. 4 Eq. Jur. 4S6. 
 
 562. {k) Story's Eq. Jur. § 1420. 
 
 (j) Story's Eq. Jur. §1419, and (l) hire Lush's Trusts, L. R. 4 
 
 note, and 1419 a; 2 Spence's Eq. Ch. Ap. 591.
 
 1150 THE wife's equity to a settlement. 
 
 pt. IV. T. 1, (Iren. But it must be observed, that the Court attends to 
 
 Cu. 3, 8. 6. ' 
 
 their interest only upon the supposition, that, in so doing, 
 
 it is carrying into effect her own desire to provide for her 
 offspring. They have no independent equity of their 
 own ; for although the husband is under a moral obliga- 
 tion to provide for them, yet he is not bound to provide 
 for them in any particular way or out of any particular 
 fund. They have only a claim to the consideration of the 
 Court constituting part of the equity of their mother, and 
 capable of being either expressly given up by her before 
 the amount is ascertained, or tacitly waived by her dying 
 without having asserted it {m). And it has been held that 
 if she dies before decree, even without waiving the right to 
 a settlement, the children cannot enforce their claim {n). 
 a seurenfent "^^ ^^^^ ^^^^' °^ Scotlaud, a married woman has no equity 
 Tre'^domidied to a Settlement ; and if husband and wife are domiciled in 
 CO ail . ggQ^2r^ji(;i^ g]^Q l^rj^g HQ equity to a settlement (o), even out 
 of the produce of real estate in England du'ected to be 
 sold {])). But still, if she is a ward of Court, the Court, 
 before parting with her funds to her husband, will take 
 care that a proper provision is made for her, imless the 
 property is small, and it does not seem expedient that a 
 settlement should be made {q). 
 oVtbewlSo "^m- Although Courts of equity do not claim any 
 na"c",'i^"case general jurisdiction to decree a suitable maintenance for 
 husband's the wife, out of her husband's property, when he has 
 
 misconduct, i -n 
 
 or bank- dcsertcd or ill-treated her, yet, whenever the wife has an 
 
 ruptry, or "^ 
 
 insolvency. e(j[uitable property, even though it be only for her life, 
 within the reach of the jurisdiction of Courts of equity, 
 and the husband has deserted, or ill-treated, or refused to 
 
 (m) See Story's Eq. Jur. § 1417 ; M. & G. 278. 
 
 2 Spence's Eq. Jur. 488—492. {p) Hltchcoch v. Clundmcn, 12 
 
 (m) Wallace v. Auldjo, 2 Dr. & Beav. 534. 
 
 Sm. 216 ; 1 D. T. S. 643. {q) In re Tweedale's Settlement, 1 
 
 (^o) M'Curmkk v. Gurndt, 5 D. Johns. 109.
 
 THE wife's equity to a settlement. 1151 
 
 maintain her, they will decree a suitable and immediate pt. iv. t. i, 
 
 •^ On. 8, B. 6. 
 
 maintenance out of such equitable property, or, if it has 
 
 passed into the possession, of a bona fide purchaser with- 
 out notice, out of other property of the husband ; because 
 the obligation of maintaining the wife is the ground on 
 which the law gives her property to the husband (r). 
 And where the wife has an equitable interest, for life only, 
 and the husband is a bankrupt or insolvent, and therefore, 
 as a general rule, is deprived, for a time at least, of the 
 means of duly maintaining her, she is entitled to an allow- 
 ance for maintenance out of such life interest, as against 
 the assignees (s). But a married woman, even though her 
 husband does not maintain her, is not entitled, as against 
 a particular assignee for a valuable consideration of the 
 husband, to an allowance for maintenance out of the income 
 of real or personal estate to which she is entitled in equity 
 for her life only ; because, if she were, purchasers would be 
 involved in inquiries respecting the relations between hus- 
 band and wife, and their other property and sources of 
 maintenance ; and the life interests of married women 
 would become incapable of being dealt with, whatever 
 might be th^ exigencies of the case (t). 
 
 Section VII. 
 
 So7ne Points respecting Deeds of Separation. 
 
 Wliere, in a separation deed, the wife covenants to save pt. iv. t. i, 
 
 and keep indemnified the husband against the debts which 
 
 she had contracted at the time of making the indenture, 
 or which she shoidd thereafter during the separation con- 
 
 (r) Story's Eq. Jur. § 1408, 1422, note. 
 1424, 1426, 1408, note. {t) Tlddv. Lister, 10 Hare, 151, 
 
 (5) Story's Eq. Jur, §. 1 412, 1408, 153 ; 3 D. M. & G. 857.
 
 1152 DEEDS OF SEPARATION. 
 
 pt. IV. T. 1, tract, this covenant includes debts previously contracted by 
 
 Ch. 3, s. r. i J J 
 
 tlie wife for necessaries wliile living witli the husband (it). 
 
 A deed of separation containing no covenant on the part 
 of a trustee to indemnify the husband against the wife's 
 debts, is not void on that account [sc). And if a deed of 
 separation contains a covenant by the husband to pay an 
 annuity to a trustee for the wife, but no covenant to in- 
 demnify the husband against the wife's debts, the husband's 
 covenant may be enforced against him or his executors, 
 but, being voluntary, not against his creditors {y). And an 
 agreement by the husljand to pay an annuity for his wife 
 is voluntary, notwithstanding an agreement by her to in- 
 demnify her husband in respect of debts on account of her- 
 self or her child, although she have separate estate, if she 
 is restrained from anticipation {£). 
 
 Wlien a deed of arrangement is entered into between 
 husband and wife, by which, in consideration of the dis- 
 continuance of a suit against the husband for a divorce, 
 and of certain proceedings for obtaining a provision for the 
 wife and her children, it is agreed that the wife is to have 
 an income independent of her husband, for maintaining an 
 establishment for herself and her children, of which the 
 husband is enabled to partake, and for educating and cloth- 
 ing her children ; such a deed is not contrary to the policy 
 of law, or otherwise void, but is one which a Court of equity 
 will enforce («). 
 
 As a deed of separation cannot dissolve the marriage, it 
 does not relieve the wife from any of the ordinary dis- 
 abilities of coverture (h). 
 
 A deed of separation entered into between the husband 
 
 («) Summers v. Ball, 8 M. & W. 174. 
 
 596. (s) Walrond v. Walrond, 1 Johns. 
 
 (aj) Frampton v. Frampton, 4 18. I 
 
 Beay. 287, (a) Jodrell v. Jodrell, 9 Beav. 45. ■ 
 
 (y) Clough V. Lambert, 10 Sim. {h) Story's Eq. Jur. § 1428.
 
 DEEDS OF SEPARATION. 1153 
 
 and wife alone, without the intervention of a trustee, is pt. iv. t i, 
 
 ' Ch. 3, 8. 1. 
 
 utterly void (c). 
 
 A covenant for separation, whether immediate or future, 
 is void. But the Court of Chancery may compel parties, 
 in pursuance of articles of separation entered into between 
 them, to execute a formal deed of separation, quantum 
 valeat, unless in the meantime they agree to live together. 
 And it would seem that if a deed for immediate, and not 
 for future, separation contains a covenant by the husband 
 to maintain his wife, and a covenant by the trustees to 
 exonerate him from any debts contracted for her main- 
 tenance, such covenant will be enforced so long as the 
 separation lasts ; but it will not be enforced for a longer 
 period, even as to past separation [d). 
 
 A contract in a separation deed cannot affect the pro- 
 perty of the wife, if not settled to her separate use, or 
 reduced into possession during the coverture (c). 
 
 The Court will interfere to prevent the doing of any per- 
 sonal acts which, if done, would be in violation of an agree- 
 ment respecting property entered into on the separation (/). 
 And where by articles of separation it is agreed that the 
 husband shall permit his wife to live separate, and as if 
 unmarried, without any molestation, interference, or annoy- 
 ance whatever, and that a proper deed shall be executed 
 for effectuating the object of the articles, and containing 
 all such covenants, &c., as should be deemed expedient for 
 that purpose ; this justifies the insertion, in the deed, of a 
 covenant that the husband will not compel or endeavour to 
 compel the wife, by judicial proceedings or otherwise, to 
 cohabit or live with him. And such a covenant is enforce- 
 able by action or injunction [g). 
 
 (c) Story's Eq. Jur. § 1428. (e) 2 Spence's Eq. Jur. 532. 
 
 (d) Story's Eq. Jur. § 1428 ; 2 (/) 2 Spence's Eq. Jur. 532 ; 
 Spence's Eq. Jur. 528 ; Wilson v. Wilson v. Wihon, 1 H. L. Cas. 528 ; 
 Wilson, 1 H. L. Cas. 538 ; 5 Id. 51, Saunders v. Rodway, 16 Beav. 702. 
 61, 62. {g) Wihon v. Wilson, 5 H. L.
 
 1154 DEEDS OF SEPAEATION. 
 
 pt. IV. T. 1, Eeconciliation puts an end to a deed of separation, as it 
 
 Ch. 3, s. r. 
 must not be permitted to parties to make agreements for 
 
 themselves to hold good whenever they choose to live 
 separate (Ji). 
 
 If a wife induces her husband to execute a deed of sepa- 
 ration in contemplation by her of her renewal of an illicit 
 intercourse, the deed is void (^). 
 
 Section VIII. 
 Some Miscellaneous Points. 
 
 Pt. IV. T. 1, A power of advancement will not iustify trustees in 
 
 Ch. 3, s. 8. ^ ■) J 
 
 advancing the share of a married daughter for the purpose 
 
 Advance- . ° ° ^ ^ 
 
 ment. of paying her husband's debts (/). 
 
 Revocation Whcrc a lady's fortune, by the advice of her friends, has 
 
 of a settle- j ' J 
 
 ment. bccu Settled upon trust for her, "her executors, adminis- 
 
 trators, and assigns," until the marriage, and afterwards for 
 her, her husband and children, the intended husband and 
 wife cannot revoke the settlement without consulting her 
 friends, so as to entitle him after the marriage to the fund 
 so settled (k). 
 
 Barring the A woiuau may be barred, by the express words of her 
 
 wile 8 share "^ ' •/ l 
 
 ot personalty, settlement, of her share of the personal estate of her hus- 
 band under the Statute of Distributions in the event of his 
 intestacy. And where a certain sum was settled in trust 
 for an intended wife, "as and for her jointure, in full lieu, 
 
 Cas. 40, 51, 52, 60—3, 71, 72. And (/) Era-ns \. Cnirhujton, 2 D. P. 
 
 see remarks of V.-G. Wood, ia & J. 481. 
 
 Stocker v. Wedderhurn, R K. & J. {j) Talbot v. Marslifidd, L. E. 3 
 
 403 ; Hunt v. Hunt, 31 Beav. 89 ; Ch. Ap. 622. 
 4 D. F. & J. 221. (^0 Page v. Home, 11 Beav. 227. 
 
 Qi) 2 Spence's Eq. Jur. 532.
 
 OF MARRIED WOMEN, 1155 
 
 bar, and satisfaction of any dower or thirds which she pt- iv. t. i, 
 
 ' -^ Ch. 3, 8. 8. 
 
 could or might claim at common law out of all or any of 
 the estates, real, personal, or freehold," of her intended 
 husband, and he died intestate and without issue, it was 
 held that this barred her claim to a moiety of his personal 
 estate under the Statute of Distributions ; the words 
 "common law" meaning the general law, and not the 
 common law as opposed to the statute law (l). 
 
 By the dissolution of marriage, the husband loses all iff of 
 
 •J o rights on 
 
 those rights which he would otherwise acquire jure mariti mardaie*!" "^ 
 after that time. And hence, if the divorced wife dies be- 
 fore she has reduced a chose of action into possession, the 
 divorced husband will have no right, either as her adminis- 
 trator or otherwise (7n). 
 
 By the stat. 22 & 23 Vict. c. 61, s. 5, " the Court, after a ^owerot 
 
 ■^ Divorce 
 
 final decree of nullity of marriage or dissolution of mar- ^™j'^ ^°((.jg^ 
 riage, may inquire into the existence of ante-nuptial or p^p'^^'^^- 
 post-nuptial settlements made on the parties whose mar- 
 riage is the subject of the decree, and may make such 
 orders with reference to the application of the whole or a 
 portion of the property settled either for the benefit of the 
 children of the marriage or of their respective parents, as to 
 the Court shall seem fit." 
 
 (l) Gurly T. Gurly, 8 CI. & Fin. Jurisprudence," 9th ed. 
 743. Much offhis Chapter is taken (m) Wilkinson \. Gibson, L. R. 4 
 
 from the writer's " Manual of Equity Eq. 162.
 
 1156 
 
 CHAPTEE IV. 
 
 OF INFANTS. 
 
 paet V. By the stat. 12 Car. 2, c. 24, s. 8, a father of an immarried 
 
 T. 1, Ch. 
 
 Appiiiiitment 
 ol guai'dian. 
 
 legitimate child may by deed or will appoint any person, 
 in possession or remainder, except a Popish recusant, to be 
 a guardian, until such child shall attain the age of twenty- 
 one years, or for any less time. And by the same section, 
 a father might by will, as he may still by deed, make such 
 an appointment, though not himself of full age ; but by the 
 stat. 1 Vict. c. 26, s. 7, no will made by any person under 
 the age of twenty-one years shall be valid. By s. 9 of the 
 stat. 12 Car. 2, the authority of the guardian so appointed 
 is to extend to the custody of the profits of the real estate, 
 and the custody, tuition, and management of the personal 
 estate of the ward. 
 
 A mother cannot appoint a guardian. Nor can a father 
 make a valid appointment of a guardian to his natural 
 child. If, however, he does nominate a person to be guar- 
 dian, the Court of Chancery will appoint such person to 
 that office (a). 
 
 Section I. 
 Of the Acts which an Infant may or may not do. 
 
 I"'- ij- T. 1, If a conveyance, &c., is made to an infant, the deed 
 becomes void, in case he, when adult, disagrees to it, or in 
 
 Convpyance ' o ' 
 
 to an iniaut. ^g^gg j^^g ]jg^j^. disagrees after his death, where he died during 
 
 (a) 11 Jarm. & Bytli. by Sweet, 2.5, 34 ; Maepherson on Infants, 83, 
 431, 432 ; 1 Jarm. Wills, 2nd ed. 460.
 
 ACTS AN INFANT MAY OR MAY NOT DO. 1157 
 
 his minority, or died after he came of age without having ^ch^I's.i?' 
 agreed to it (h). 
 
 Infants may, even at law, bind themselves, under certain contracts. 
 circumstances, by contracts for necessaries suitable to their 
 degree and quality, and may bind themselves by acts which 
 the law requires them to do (c). But, in general, where a 
 contract may be either for the benefit or to the prejudice of 
 an infant, he may avoid it, as well at law as in etiuity. 
 Wliere it can never be for his benefit, it is utterly void (d). 
 
 An infant may purchase real property, because it may Purchases. 
 be for his benefit ; yet upon his attaining his full age, he 
 may either agree or disagree to it without showing any 
 cause ; and so may his heir if he dies under age or without 
 ha\dng agreed to it (e). And if an infant enters into a 
 contract for the purchase of an estate, he cannot enforce it 
 in equity, because the remedy is not mutual (/). 
 
 An infant cannot, at common law, alien his estate, unless AHenation 
 by force of a custom, not even if a special power is given 
 him (g). But the owner of gavelkind land may alien by 
 feoffment at the age of fifteen years (7t). 
 
 By the stat. 17 Geo. 3, c. 26, s. 6, and 53 Geo. 3, c. 141, coutracts for 
 
 "^ ' ' annuities 
 
 s. 8, it is enacted, that all contracts for the purchase of any 
 annuity with an infant shall be utterly void. 
 
 An infant, like a feme covert, may at common law do Esecutioh of 
 
 powers, &c. 
 
 any act where he is a mere instrument, and his interest is 
 not concerned (i). Thus an infant is capable of executing 
 a bare authority (j). But an infant cannot sell an estate 
 
 {b) 1 Pres. Shep. T. 70 ; Watk. cise View, 541 ; 2 Bl. Com. 292 ; 
 
 Couv. Srd ed. by Prest. 243. Co. Lit. 2 b. 
 
 (c) Story's Eq. Jur. § 240 ; Co. (/) Sugd. Concise View, 149. 
 Litt. 172 a; Burton, § 199. And see (j/) 1 Sugd. Pow. 211 ; Co. Litt. 
 Smith's Common Law Manual, Srd 171 b, n. (5). 
 
 ed. 57—8, (h) 2 Bl. Com. 84 ; Co. Litt. 171 
 
 (d) Story's Eq. Jur. § 241 ; Bur- b, n. (5). 
 
 ton, § 199. (i) 1 Sugd. Pow. 211. 
 
 (c) 4 Cruise, T. 32, c, 26, § 6 ; 2 (./) 4 Cruise T. 32, c. 13, § 28 ; 
 
 Pres. Shep. T. 235, 285 ; Sugd. Con- 2 Sugd. Pow. 7th ed. 537—541 ; 1
 
 1158 
 
 ACTS AN INFANT MAY OR MAY NOT DO. 
 
 Pt. IV. T. 1, 
 
 Ch. 4, s. 1. 
 
 Presenting to 
 a benefice. 
 
 Fine or 
 recovery. 
 
 Feoflfment. 
 
 Dt-ed taking 
 eSe:t by 
 delivery. 
 
 Admittance 
 to copyl)old3. 
 
 Surrendering 
 leases and 
 taking new 
 ones. 
 
 Accepting 
 surrenilers of 
 le^'ses aud 
 granting new 
 ones. 
 
 Granting 
 lea>es of 
 estates of 
 infants. 
 
 devised or conveyed to liini in trust to sell ; for a testator 
 or grantor cannot confer upon an infant a capacity of 
 discretion in the way of contract which the law does not 
 give him (/■). 
 
 An infant of the most tender age may present to a 
 benefice ! (/). 
 
 If a fine or recovery by an infant was once admitted 
 (except in the case of a recovery suffered by attorney), it 
 could not be reversed withtnit a personal examination of 
 the party by the Court during the continuance of his 
 minority (7n). 
 
 If an infant makes a feoffment and gives livery of seisin 
 in person, it is not void, but only voidable (;)i). And even 
 a deed which takes effect by delivery, without an additional 
 ceremony, if executed by an infant, is voidable only, and 
 not void, at least if it is for his benefit (o). 
 
 By the stat. 1 Will. 4, c. 65, ss. 3 — 8, infants may be 
 admitted to copyhold estates, by their guardians or at- 
 torneys (j:>). 
 
 By ss. 12 and 15 of the same Act, infants or their 
 guardians may, by order of the Court of Chancery, sur- 
 render leases, and take new leases, to the same uses, and 
 liable to the same trusts, charges, incumbrances, disposi- 
 tions, and conditions as the leases surrendered. 
 
 By ss. 16, 18, 20, and 21, infants, or if they are out of 
 the jurisdiction, some other person, by order of the Court 
 of Chancery, may accept surrenders of leases and execute 
 new leases. 
 
 By s. 17, by direction of the Court of Chancery, an 
 infant, or his guardian in his name, may grant leases 
 
 Jarm. Wills, 2iid ed. 80; Walk. 
 Conv. 3rd ed. by Prest. 246. 
 
 (k) King v. Bdlord, 1 Hem. & 
 Mil. 343. 
 
 (/) 3 Cruise T. 21, c. 2, § 24; 
 Burton, § 200 ; Co. Litt. 89 a, n. (1), 
 
 aud 172 a. 
 
 («() burton, § 19S. 
 
 (h) 4 Cruise T. 32, c. 4, § 23 ; 
 Burton, § 199. 
 
 {o) Allen V. AUen, 2 D. & W. 307. 
 
 (p) See supra, p. 965.
 
 ACTS AN INFANT MAY OR MAY NOT DO. 1159 
 
 of any land belonging to him, when it is for his benefit ; P'^iy. x.^i. 
 
 but no fine or premium is to be taken ; and the best 
 
 rent that can be obtained is to be reserved ; and the 
 leases are to be settled and approved of by a Master, and a 
 counterpart executed by tlie lessee, and deposited in the 
 Master's office, until the infant attains his majority. But 
 no lease is to be made of the capital mansion-house and 
 the park and grounds held therewith for any period ex- 
 ceeding the infant's minority. And the Court of Chancery 
 has no jurisdiction under this statute to lease an infant's 
 estates, unless the infant is indefeasibly seised either in fee 
 or in tail in possession (q). 
 
 We have seen, however, that by the stat. 19 & 20 Vict. 
 c. 120, additional leasing powers are given in the case of 
 infants (r). 
 
 Independently of these enactments, it was a rule that 
 an infant could not make a lease of his lands, unless it 
 was evidently beneficial to him (s). Hence, if an infant is 
 seised of land in fee simple, and he makes a lease for years 
 of it, rendering no rent, this lease is void, unless the lease 
 is for the purpose only of trying the title by ejectment. 
 But if there is a rent reserved upon the lease, then the 
 lease is but voidable, and may, by the acceptance of the 
 rent after his full age, be made good (f). 
 
 By the 1 Will 4, c. 65, s. 26, a guardian, with the appro- Agreements 
 
 . on behalf of 
 
 bation of the Court of Chancery, may enter into agreements infants. 
 for or on behalf of the infant. 
 
 Bv the stat. 18 & 19 Vict. c. 4:?>, s. 1, it is enacted, that. Marriage 
 
 " settlements. 
 
 " from and after the passing of this Act, it shall be lawful 
 for every infant upon or in contemplation of his or her 
 marriage, with the sanction of the Court of Chancer}^, to 
 make a valid and binding settlement or contract for a 
 
 ^^1 Ex parte Leyh, 15 Sim. 445. Burton, § 199. 
 
 ()•) See supra, p. 689, 690. (t) 2 Pres. Shep. T. 268. 
 
 (s) 4 Cruise T. 32, c. 5, § 66 ;
 
 1160 
 
 ACTS AN INFANT MAY OE MAY NOT DO. 
 
 pt. IV. T 1, settlement of all or any part of liis or lier property, or 
 property over which he or she has any power of appoint- 
 ment, whether real or personal, and whether in possession, 
 reversion, remainder, or expectancy; and every conveyance, 
 appointment, and assignment of such real or personal 
 estate, or contract to make a conveyance, appointment, or 
 assignment tliereof, executed by such infant, with the 
 approbation of the said Court, for the purpose of giving 
 effect to such settlement, shall be as valid and effectual as 
 if the person executing the same were of the full age of 
 twenty-one years : Provided always, that this enactment 
 shall not extend to powers of which it is expressly declared 
 that they shall not be exercised by an infant." But by s. 2, 
 it is provided, " that, in case any appointment under a 
 power of appointment or any disentailing assurance shall 
 have been executed by any infant tenant in tail under the 
 provisions of this Act, and such infant shall afterwards die 
 under age, such appointment or disentailing assurance shall 
 thereupon become absolutely void." And by s. 4, it is 
 further provided, "that nothing in this Act contained 
 shall apply to any male infant under the age of twenty 
 years, or to any female infant under the age of seventeen 
 years." By s. 3, the sanction of the Court may be given 
 upon a petition. 
 
 Before this enactment a male infant could not bind him- 
 self by a settlement of his real or personal estate ; nor 
 could the property of a female infant be bound, except so 
 far as regards a settlement of personal estate not given for 
 her separate use («). 
 
 An infant canuot in general execute a letter of at- 
 torney (.«). 
 
 An exchange of corporeal hereditaments made between 
 
 Letter of 
 attorney. 
 
 Exchange. 
 
 (m) Macphersonon Infants, .5] 9— (x) 1 Pres. Sliep. T. 217 ; Burton, 
 
 527 ; 4 Cruise T. 32, c. 2, § 21 ; 1 § 201. But see Watk. Conv. 3rcl 
 Cru. T. 7, c. 1, § 31. ed. by Prest. 242—3.
 
 ACTS AN INFANT MAY OR MAY NOT DO. 1161 
 
 an infant and another, is not void, but voidable only ; for pt. iv. t. i, 
 
 the infant, at his full a^'e, or if he dies under aoe or with- 
 
 out having agreed to it, his heir, may either affirm or avoid 
 it as he may choose (?/). 
 
 Under the old law, males of the age of fourteen years wiiia. 
 and females of the age of twelve might make a will of 
 personal property (z). But real estate could not be devised 
 by an infant, unless by special custom (a). And by the 
 stat. 1 Vict. c. 26, s. 7, it is enacted " that no will made by 
 any person under the age of twenty-one years shall be 
 valid." 
 
 If an estate is made to an infant upon an express condi- Performance 
 
 ^ •*• of condition. 
 
 tion, the infant will be bound to perform it (&). 
 
 Section II. 
 
 Of Portions and Legacies to Infants. 
 
 A portion is a pecuniary provision made for a child by pt. iv. t. i, 
 a parent or person standing in loco parentis. 
 
 -^ ^ ox What is a 
 
 A legacy by a parent to a child is presumed to be a portion. 
 portion, although it be not so expressed ; because providing 
 for a child is a duty w^hich the relative situation of the 
 parties imposes upon the parent. The duty which is im- 
 posed upon the parent may be assumed by any other 
 person, who for any reason thinks proper to place himself 
 in that respect in the place of the parent ; and when that 
 is so, the same presumptions will arise as in the case of a 
 legacy or gift by a parent. 
 
 There are some doctrines applicable to portions which 
 would not be applied to a gift as between strangers (c). 
 
 (y) 4 Cruise T. 32, c. 6, § 9 ; 2 {a) 6 Cruif3e T. 38, c. 2, § 5. 
 
 Pres. Shep. T. 291, 299. (6) 2 Cruise T. 1-3, c. 2, § 17 ; Co, 
 
 (2) 2 Bl. Com. 497 ; Co. Litt. 89 Litt. 2i6 b, 380 b. 
 
 b, n. (6). (^c) 2 Spence's Eq. Jur. 394.
 
 1162 
 
 Pi . IV. T. 1, 
 
 Ch. 4, s. 2. 
 
 Time for 
 
 raising 
 
 portions. 
 
 Wliere 
 portions or 
 legacies are 
 not t') be 
 raisiid. 
 
 Payment of 
 legacy to an 
 infant. 
 
 OF PORTIONS AND LEGACIES TO INFANTS. 
 
 If there is a limitation to the parent for life, with a term 
 to raise portions at twenty-one or marriage, and the in- 
 terests are vested, the portions must be raised at that age 
 or on marriage, by sale or mortgage of the reversionary 
 term, unless there is something to indicate an intention 
 that the portions should not be raised until the term falls 
 into possession (d). If the portions are not raiseable till 
 the parent's death, they will not carry interest, except from 
 that time, though they may have become vested previously, 
 unless there is some clear indication of intent that they 
 should carry interest in the meantime (c). 
 
 If portions or legacies charged on land are made payable 
 on an event personal to the party to be benefited, and 
 such party dies before that event happens, the portion 
 or legacy is not to be raised out of the land. But it 
 is otherwise if the payment is postponed until the hap- 
 pening of an event not referrible to the person of 
 the party to be benefited, but to the circumstances of 
 the estate out of which the portion or legacy is to be 
 paid (/). 
 
 Where a portion is charged on land, and no particular 
 time is fixed for the vesting, if the child dies before the 
 time when the portion is needed, the portion shall not be 
 raised ; for it is reasonable that the land should be eased 
 of the charge when the only motive for making the same 
 is at an end (g). 
 
 An executor cannot, without personal risk, pay the whole 
 or any part of a legacy directly bequeathed to an infant, 
 either to the child or to any person for his use (A). But 
 by 36 Geo. 3, c. 52, s. 31, an 'executor may pay the legacy 
 
 I 
 
 (d) 2 Spence's Eq. Jur. 405 ; 
 Coote Mortg. 3rd ed. § 131. 
 
 {e) Massy v. Lloyd, 1 H. L. Cas. 
 248. 
 
 (/) 2 Speuce's Eq. Jur. 39(>; 
 
 Parker v. Hodgson, 1 Dr. & Sm. 
 
 (g) 2 Spence's Eq. Jur. 398. 
 (/() 1 Rop. T.eg. by White, 883.
 
 OF PORTIONS AND LEGACIES TO INFANTS. 1163 
 
 of an infant into the Court of Chancery, after deducting the '^^-J'^-^.l' 
 
 duty, without suit, and when the legatee attains twenty- 
 
 one he may petition for it (/). 
 
 Section III. 
 Of Maintenance. 
 
 Let us first consider the law as it stood prior to the stat. pt. iv. t. i, 
 
 ^ Ch. 4, s. 3. 
 
 23 & 24 Vict. c. 145, s. 26. • 
 
 Law prior to 
 
 "^Vhere a legatee is under age, and is a child of the tes- ^tat. 23 & 24 
 
 ° ° Vict. c. 145, 
 
 tator, or one towards whom he has placed himself in loco ^ ^^• 
 
 Where the 
 
 parentis, and no maintenance or interest is given, there, legat.eisa 
 
 ^ o ' ' child of the 
 
 even though the legacy is contingent, interest will be al- tieLte°d'ar 
 lowed to such legatee from the time of the death of the ^^^^' 
 testator (_;'), or from the bu'th of the legatee, if the legatee 
 was in ventre sa mere at the time of the father's decease {k). 
 Where the legatee is a child of the testator, and mainte- 
 nance or interest is given by the will, and the amount or 
 rate is specified, the legatee will not in general be entitled 
 to claim more than the maintenance or interest specified (/). 
 AMiere, however, the amount specified is msufficient, and 
 the legacy is vested, the Court will allow a reasonable 
 maintenance, even though the surplus interest be directed 
 to accumulate {m). 
 
 Where legacies are sfiven to grandchildren of the tes- where the 
 
 " 00 legatee is a 
 
 tator, or to any class of infants who are strangers to the ^™°rau!r^r 
 testator, upon a future or contingent event, and the will is 
 silent as to interest or maintenance, aud there is a limita- 
 tion over to others, the Court will allow interest in the 
 shape of maintenance, if those other persons consent (m). 
 
 (/) 1 Rop. Lej;. by White, 882. (X') 2 Rop. Leg. by White, 1260. 
 
 (/) 2 Rop. Leg. by White, 1257, (I) 2 Rop. Leg. b} White, 1261. 
 
 1270, 1348 ; Mnrtin v. Martin, L. R. (m) 2 Rop. Leg. by White, 1262. 
 
 1 Eq. 369. (») 2 Rop. Leg. by Wliite, 1279.
 
 1164 
 
 OF MAINTENANCE. 
 
 Pt. IV. T. 1, 
 
 Ch. 4, s. 3. 
 
 Wliere 
 acfuinulatiou 
 is directed. 
 
 Apportion- 
 meut. 
 
 Maintenaiice 
 doppuds (in 
 circum- 
 stances and 
 state of 
 family. 
 
 ■Rule where 
 the father is 
 able to 
 iiiaiiitain his 
 chUdreu. 
 
 And wliere there is no limitation over, and all or some of 
 the class of legatees must absolutely take the fund, there, 
 all having an equal chance of taking, the Court will allow 
 interest in the shape of maintenance, if the father of the 
 legatees is not of ability to maintain them (o). 
 
 Where a legacy is vested, but no maintenance is directed, 
 the Court will order it, though the interest is directed to 
 be accumulated (|)). 
 
 Though a sum be directed to be paid periodically for 
 maintenance, until the time for the payment of the portion, 
 the child will be entitled to a proportionate part during the 
 interval between the last periodical payment and that 
 time (q). 
 
 The Court is governed by a regard to the circumstances 
 and state of the family to which the infant belongs, in 
 respect to the allowance of any maintenance at all, and to 
 the amount of such allowance. So that although there 
 may be a trust for maintenance under which the whole 
 income may be applied, yet the Court will not apply more 
 of it than necessary, where the infants have other sources 
 of income (7^). And if the father is able, out of his own 
 property, to maintain the infant, the Court will ordinarily 
 withhold all allowance from the property or income of the 
 infant for his maintenance, even though there may be a 
 power (as distinguished from a trust), in the settlement or 
 will, at the discretion of the trustees, to appoint part of the 
 income for the purpose of his maintenance and educa- 
 tion (s). But if there is a contract on marriage, amounting 
 to a trust, that property shall be applied for the mainte- 
 nance and education of the children, the property must be 
 applied, without reference to the ability of the father to 
 
 (0) 2 Rop. Leg. by White, 1283. 
 {p) 2 Spence's Eq. Jur. 462. 
 (q) Story's Eq. Jar. § 470 ; 2 
 Spence's Eq. Jur. 462. 
 
 (r) White v. Grane, 18 Beav. 571. 
 
 (s) Story's Eq. Jur. § 1354 a, and 
 note ; 2 Spence's Eq. Jur. 462, 466 ; 
 2 Hop. Leg. by White, 1292.
 
 OF MAIXTENANCE. 1165 
 
 maintain and educate tliem ; because the father has thereby ^J^^y^s^' 
 
 contracted for such a benefit or relief to himself (t). And 
 
 an allowance will not be withheld, though the father be of 
 ability to mamtain the cliildren, if it would be a hardship 
 upon him and injurious to others of his children who take 
 no benefit under the will and are dependent on the father, 
 by diminishing his means of maintaining them (u). And 
 where the interest of children's legacies is given to a 
 parent, to be applied for or towards their maintenance and 
 education, there, in the absence of a contrary intention, 
 the parent takes the interest subject to no account, pro- 
 vided only that he or she discharges the duty of maintain- 
 ing and educating the children in a competent manner. 
 And the reference to " the accumulations, if any," will not 
 afford an indication of a contrary intention, if it is capable 
 of being referred to the case of the trustees themselves ap- 
 plying the income for the maintenance and education of 
 the children, instead of paying it over to the parent for 
 that purpose (.»). But if the fund is given to the parent in 
 trust for the maintenance of his children, though he is en- 
 titled to apply it for that purpose, whatever may be his 
 ability, he must account for the application, like any otlier 
 trustee (y). 
 
 If the infant is an eldest son, and the younger children 
 liave no provision made for them, an ample allowance will 
 be decreed to the infant, so that the younger children may 
 be maintained ; and the Court will act in a similar way 
 where the father or mother of the infant is in distress or 
 narrow circumstances (z). 
 
 (t) 2 Kop. Leg. by Wliite, 1297 ; 92 ; 11 Jarm. & Byth. by Sweet, 
 
 11 Jarm. & Byth. by Sweet, 662 ; 662 ; 1 Jarm. Wills, 2nd ed. 329. 
 
 2 Spcnce's Eq. Jur. 466—468 ; (y) H Jarm. & Byth. by Sweet, 
 
 Jtansome v. Burfjess, L. R. 3 Eq. 662. 
 
 773. (s) Story's Eq. Jur. § 1355 ; 2 
 
 (») 2 Eop. Leg. by White, 1293. Spcnce's Eq. Jur. 461, 462 ; 2 Rop. 
 
 {x) Browne v. Paull, 1 Sim. (N.S.) Leg. by White, 1296.
 
 1166 OF MAINTENANCE. 
 
 pt. IV. T. 1, In the case of devises and bequests to a woman, in 
 
 Ch. 4, 8. 3. ^ 
 
 terms or in effect, for the support or benefit of her cliildren, 
 
 Dovises and 
 
 bequests to a qj. gf hersclf and her cliildren, there is often a question 
 
 wdiiian lor •■■ 
 
 or'for'h'irsdf whether she is to take a part of the beneficial interest ; 
 
 aud ciiikhen. ^^^^ ^^ ^^^^ other hand, whether she is to take the beneficial 
 interest, subject to a trust for her children, and what is 
 tlie duration of such trust ; or whether she is to take the 
 whole without any trust. All such questions should be 
 excluded {a). In general, when the income of property is 
 given to the mother of a family, for the maintenance of 
 herself and her children, what is intended, is, that she 
 shall receive the whole of the income, and shall maintain 
 the children out of it, so long as they form part of her 
 family. But in such a case, when a daughter marries, she 
 loses the right to maintenance {h). A direction by will that 
 the testator's widow shall receive all the income of his real 
 and personal estate, and pay and apjjly the same to and 
 for the use of herself and the children of their marriage, 
 agreeable and according to her own discretion, during her 
 life, confers upon the wife a discretionary power, which the 
 Court will not disturb, so long as it is reasonably and 
 honestly exercised (c). 
 Effect of In the absence of indication to the contrary, the words 
 
 SainienaDce, " maintenance, education, and bringing up," standing to- 
 
 ediication, 
 
 and bringing getlicr, liavc reference to minority only. But where a 
 provision is made for " the maintenance and education " or 
 " the maintenance, education, and bringing up " of a per- 
 son during the life of another, such person is entitled to the 
 benefit of the provision during the whole of that period (d) ; 
 
 (a) For instances, see Gilbert v. cases referred to in n. (a). 
 
 Bennett, 10 6\in. 371 ; Jiibber v. (c) Costabadie v. Costabadie, 6 
 
 Jubber, 9 Sim. 503 ; Thorp v. Owen, Hare, 410. 
 
 2 Hare, 607 ; In re Harris, 7 Excli. (cZ) Badham v. Mee, 1 Russ. & 
 
 344. My. 631 ; Bcnjnc v. Crowlher, 20 
 
 (,6) Bowden wLainy, 14 Sim. 113; I'eav. 400. 
 2 Spence's Eq. Jur. 4()1, and sec
 
 OF MAINTENANCE. 1167 
 
 and it has been held that if such person dies before that pt. iv. t. i, 
 
 _ ^ Ch. 4, 8. 3. 
 
 period expires, liis representatives are entitled to the 
 
 amount of the income accruing between his death and 
 that of the person for whose life the provision was to 
 last (('). And where the income of real or personal property- 
 is directed to be applied for the " maintenance " or " the 
 support " or " the maintenance and education " of a person, 
 though at the time an infant, he is, generally speaking, 
 entitled to the income during his life (/). " Education " 
 includes maintenance. But a legacy given to a mother 
 for " maintenance " of her children is not, by the terms 
 of the bequest, applicable to their education. Where main- 
 tenance is given during minority, as a general rule it does 
 not cease on the marriage of the child (g). A direction that 
 the testator's daughter shall reside with and be maintained 
 by his son so long as she shall remain single, oidy entitles 
 her to maintenance so long as he lives, and so long as she 
 chooses to reside with him (/;). Where a testator bequeaths 
 personal estate to trustees, amongst other things to pay and 
 apply a certain sum in and upon the education of a child, 
 this is an absolute legacy to the child, and he is entitled to 
 have the whole at once severed from the testator's estate, 
 with interest from the end of the first year after the death 
 of the testator, and inA'ested for his benefit (i). And where 
 a testator devised estates to trustees, in trust to pay, out 
 of the rents, £300 a year for the maintenance, clothing, 
 and education of his sou's children, during his son's life, 
 and the son had three children, all of whom attained 
 twenty-one, and then one died, it was held that the whole 
 of the fund was not to be applied for the maintenance, 
 
 (e) Webb v. KcUt/, 9 Sim. 469 ; 33 Beav. 474. 
 
 Bayne v. Crowther, 20 Beav. 400. (</) 2 Spence's Eq. Jur. 460 ; 2 
 
 (/) Soames v. Martin, 10 Sim. Eop. Leg. by White, 1496. 
 
 287 ; Kilvington v. G^-ay, 10 Sim. (/() Wilson v. Bell, L. R. 4 Ch. 
 
 293 ; Alexander v. M^Culloch, 1 Ap. 581. 
 
 Cox, 391 ; Carr v. Living (No. 2), (?') Noel v. Jones, 16 Sim. 309.
 
 1168 OF MAINTENANCE. 
 
 pt. IV. T. 1, clothing, and ediication of the survivors, but that the 
 
 Ch. 4, s. 3. ^' ' . 
 
 personal representative of the deceased child was entitled 
 
 to one-third of the £300 a year during the parent's life ; 
 
 the words " maintenance, clothing, and education " being 
 
 considered equivalent to " the benefit " of the children {j ). 
 
 Powers of A powcr of advancement for setting up sons and daugh- 
 
 meut. i^gpg \^ business, will not entitle trustees to make advances 
 
 for such a purpose to married daughters {k). 
 'virt 'i til^ ^y 2^ ^ 24 Vict. c. 145, s. 26 {!), "in all cases where any 
 Lcome of" property is held by trustees in trust for an infant, either 
 Fufaute.^" absolutely or contingently on his attaining the age of 
 twenty-one years, or on the occurrence of any event 
 previously to his attaining that age, it shall be lawful for 
 such trustees, at their sole discretion, to pay to the 
 guardians (if any) of such infant, or otherwise to apply for 
 or towards the maintenance or education of such infant, 
 the whole or any part of the income to which such infant 
 may be entitled in respect of such property, whether there 
 be any other fund applicable to the same purpose, or any 
 other person bound by law to provide for such maintenance 
 or education, or not ; and such trustees shall accumulate 
 all the residue of such income by way of compound 
 interest, by investing the same and the resulting income 
 thereof from time to time in proper securities, for the 
 benefit of the person who shall ultimately become entitled 
 to the property from which such accumulations shall have 
 arisen : Provided always, that it shall be lawful for such 
 trustees at any time, if it shall appear to them expedient, 
 to apply the whole or any part of such accumulations as 
 if the same were part of the income arising in the then 
 current year." 
 
 {j) Leives Y. Lewes, 16 Sim. 266. (/) But see ss. 32 — 4, supra, pp. 
 
 (^•) Talbot V. Marshfield, L. K. 4 1100—1. 
 Eq. 661.
 
 1169 
 
 CHAPTEE V. 
 
 OF ILLEGITIMATE CHILDEEN. 
 
 Bastards, or natural or illegitimate children, that is, such part iv. 
 
 . . _ T. 1, Ch. 5. 
 
 children as are not born either in lawful wedlock or within • 
 
 Bastnrds 
 
 due time after its determination, beina; regarded in law as incapable of 
 
 '-' '-' succes-iou. 
 
 uullius filii, are incapable of succeeding, by act of law, to 
 the real or personal estate of their father or mother or any 
 other person, in case of intestacy («). But when a man has 
 an illegitimate son, and afterwards marries the mother, and 
 has by her a legitimate son, and the illegitimate son (bas- 
 tard eigne) on his father's death enters upon the land, and 
 dies seised thereof, w^hereby the inheritance descends to his 
 issue, in this case the legitimate son and all other heirs, 
 though minors, femes covert, or under any incapacity what- 
 ever, are totally barred of their right (&). 
 
 We have seen that bastards cannot have any heirs, ex- Succession to 
 
 •^ ' real estate of 
 
 cept the children or remoter issue of their own bodies (c). bastards. 
 If a bastard who, as nullius filius, can have no kindred, succession to 
 
 ' personal 
 
 or any other person having no kindred dies intestate, with- ^ast*^-ds. 
 out wife or child, his effects, subject to his debts, belong to 
 the Sovereign, as ultimus haeres ; who usually grants them, 
 with the exception of a small part, by letters patent or 
 otherwise : and then the grantee becomes entitled to the 
 administration, and consequently to the sole enjoyment of 
 the property (rZ). Where a bastard or other person having 
 no ki]]dred dies intestate, leaving a wddow, but no children, 
 
 (a) 2 Bl. Com. 247 ; Birlxolmtle —401. 
 
 V. YarcUU, 7 CI. & F. 925, 934 ; (c) Supra, pp. 468—9. 
 
 and remarks of V.-C. Kindersley, In (d) Wms. Exors. 4th ed. 357, 
 
 re Don's Estate, 4 Drew. 199. 1300. 
 
 (h) 2 Bl. Com, 248 ; Litt. § 399
 
 1170 
 
 OF ILLEGITIMATE CHILDEEN. 
 
 Part IV. 
 T. 1, Ch. 5. 
 
 Provision for 
 illegitimate 
 childi'eu uot 
 in esse. 
 
 the widow is entitled to one moiety only, and the Crown 
 to the other (e). 
 Succession in Wliere a child is born in Scotland of parents domiciled 
 
 the case of a 
 
 ciiiiti bom in there, who, at the time of his birth, were not married, but 
 
 Scoilauil 
 
 before mar- aftcrwards married in Scotland, he cannot take as heir to 
 
 riage. ' 
 
 his father in England ; nor can his father take as heir to 
 him. For, though, being legitimate in Scotland, he is legi- 
 timate here also, as regards his personal status, yet by our 
 law of inheritance he cannot inherit, nor have any heir 
 except his own issue, because he was not born in lawful 
 matrimony (/). 
 
 No provision can be made for illegitimate children until 
 they are in esse [g). So that where a testator, after pro- 
 viding for each of the illegitimate children he had by his 
 housekeeper, made a devise to such other child (if any) 
 that might be born of her in his lifetime or in due time 
 after his death, an after-born illegitimate child of hers, of 
 which he was the reputed father, took nothing {JC). And 
 this rule applies to the children of a man by his deceased 
 wife's sister, though she may have gone through the cere- 
 mony of marriage (i). But an illegitimate child in the 
 mother's womb is capable of taking by a proper descrip- 
 tion (y). Natural children unborn at the date of a will 
 cannot take, however, under the description of children or 
 issue of the testator or of another man, whether to be born 
 of a particular woman or not, since the question whether in 
 fact the grantor, settlor, testator, or other person was or 
 was not the real father, is one which can only be ascer- 
 tained by evidence that public policy forbids to be ad- 
 
 (e) Wms. Exors. 4th ed. 358. 
 
 (/) Birtwhistle v. Vardell, 2 CI. 
 & Fin. 571 ; 7 CI. & Fin. 895, 925, 
 934 ; Re Bon's Estate, 4 Drew. 194, 
 199. 
 
 {g) 2 Pres. Shep. T. 235 ; 2 Jarm. 
 Wills, 2nd ed. 202-4. 
 
 (/i) Medworth v. Pope, 27 Beav. 
 71. 
 
 (i) Howarth v. Mills, L. R. 2 Eq. 
 389. 
 
 (j ) 2 Pres. Shep. T. 235 ; 2 Jarm. 
 Wills, 2nd ed. 198.
 
 OF ILLEGITIMATE CIIILDREX. 1171 
 
 mitted ; although, if the child en ventre sa mere be merely ,/\''ll\ 
 
 described as a child with which its mother is enciente, 
 
 without mentioning its putative father, then the child will 
 be capable of taking (k). It is to be assumed that wherever 
 a testator uses the w^ord children, son or daughter, issue, 
 nephew, or other relation, he prim^ facie means legitimate 
 children, &c. The law will never aUow an illegitimate ^|^'f,|;*™_^*^ 
 child or relative, though born, and though recognised as a do°not takT' 
 child or relative, to take by deed or will, merely under the debomiUtion 
 
 „ , ., T 1 T i_ "^f children, 
 
 general denomination of a child, or a sou or daughter, or or issue, or 
 
 ^ . . nest of kill, 
 
 issue, or next of kin, or relative of any kind, unless aided <>r relatives. 
 by something else in the deed or wiU itself, or unless the 
 words cannot be satisfied by any other construction. And 
 an illegitimate son will not take under the description of 
 first-born son of his mother, though the testator weU knew 
 that her son was illegitimate. Evidence cannot be received 
 to prove that they were intended by the testator to be in- 
 cluded in that description, otherwise than by showing that 
 there were illegitimate children who had acquired the name 
 and character of children by reputation, and showing the 
 existence of other material circumstances, at the date of 
 the will, conclusively proving that illegitimate children 
 must necessarily have been intended (l). 
 
 (Jc) 1 Eop. Leg. by White, 80 ; 2 Hammond, 26 Bea\^. 36 ; Medtvorth 
 
 Pres. Shep. T. 235 ; 2 Jarm. Wills, v. Pope, 27 Beav. 71 ; Me Herbert's 
 
 2nd ed. 199, 204 ; Fratt v. Matthew, Trusts, 1 Johns. & Hem. 121 ; Re 
 
 22 Beav. 328. Standleys Estate, L. E. 5 Eq. 303 
 
 {I) 2 Pres. Shep. T. 237 ; 1 Eop. Clifton \. Goodhun, L. E. 6 Eq. 278 
 
 Le-. by White, 80 ; 2 Jarm. Wills, In re Wells' Estate, L. E. 6 Eq. 599 
 
 2nd cd. 181—197 ; Durrant v. Holt v. Tindrey, L. E. 7 Eq. 170. 
 
 Friend, 5 De G. & S. 343 ; Gahb v. As to children of an illegitimate 
 
 Prendergast, 1 K. & J. 439 ; Pvc child, see Allen v. Webster, 2 Gif. 
 
 OverhiU's Ti-ust, 1 Sm. & Gif. 362 ; 177 ; Edmunds v. Fessey, 29 Beav. 
 
 Leigh v. Byron, 1 Sm. & Gif. 486 ; 223 ; Barnet v. Tugwell, 31 Beav. 
 
 Worts V. CubUt, 19 Beav. 421 ; Tug- 232. 
 weU V. Scott, 24 Beav. 141 ; Kelly v.
 
 1172 
 
 CHAPTEE VT. 
 
 OF PERSONS OF UNSOUND MIND. 
 
 Paet IV. 
 T. 1, Ch. 6. 
 
 Contracts, or 
 other acts of 
 persons of 
 unsound 
 mind. 
 
 CouTeyance 
 by an insane 
 person. 
 
 Purchases 
 by such a 
 person. 
 
 In the case of conti-acts or other acts, however solemn, of 
 persons who are idiots, lunatics, or otherwise of unsound 
 mind or of weak understanding, wherever, from the nature 
 of the transaction, tliere is not evidence of entire good 
 faith, or it is not seen to be just in itself or for the benefit 
 of tliose persons, courts of equity will set it aside, or make 
 it subservient to their just rights and interests. But where 
 there is entire good faith, and the contract or other act is 
 for the benefit of such persons, as to provide them witli 
 necessaries, there courts of equity will uphokl it, as well as 
 courts of law (a). 
 
 Where a lunatic tenant in tail of copyholds executes a 
 power of attorney authorising her attorney to procure her 
 admission as tenant in tail, and then to surrender them 
 and take a re-admission in fee, for the purpose of barring 
 her entail, the estate tail is not barred (b). 
 
 A person is not allowed to allege his own insanity to 
 avoid a conveyance made by him when insane. But after 
 his death, his heir or other person interested may take 
 advantage of his incapacity and avoid the grant. And so, 
 if a person purchases when insane, he cannot avoid the 
 purchase himself; but if he dies insane, or does not after- 
 wards, upon recovering his reason, agree to the purchase^ 
 his heir may either waive or accept the estate at his 
 option (c). And after a person is found a lunatic by inqui- 
 
 (a) Story's Eq. Jur. § 227—229, 
 234 — 238 ; Longmate v. Ledger, 2 
 Gif. 157. 
 
 (6) EUiot V. Ince, 7 D. M. & G. 
 475. 
 
 (c) 2 Bl. Com. 291-2 ; Sugd. 
 Concise View, 542 ; 4 Cruise T. 32, 
 c. 25, § 8 ; Co. Litt. 2 b, 247 b ; 
 Litt. s. 406.
 
 OF PERSONS OF UNSOUND MIND. 1173 
 
 sition, his committee may vacate the purchase. And as /*«^^,,^^'g 
 
 the Sovereign has the custody of idiots upon office found, — 
 
 he may annul a purchase by an idiot (d). AVhen, how- 
 ever, a person apparently of sound mind and not known 
 to be otherwise by the vendor, enters into a contract for 
 the purchase of property, which is fair and bona fide, and 
 which is executed and completed, and the property, the 
 subject-matter of the contract, has been paid for and fully 
 enjoyed, such contract cannot be afterwards set aside either 
 by the alleged lunatic or those Avho represent him : espe- 
 cially where the property cannot be restored so as to put 
 the parties in their original position (e). 
 
 It may here be remarked, that, before a person is found Presumption 
 
 '' ' ' 1- of g^uity or 
 
 a lunatic by inquisition, the presumption of law is in insanity. 
 favour of his sanity ; but after that, the presumption is 
 against his sanity. The finding of insanity by the jury 
 therefore shifts the burden of proof, but it is not conclusi^^e 
 on third persons (/). 
 
 Madmen and lunatics, except during a lucid interval, wiiis of 
 
 persons of 
 
 idiots, or natural fools, and persons grown childish by unsouna 
 reason of old age or disease, are incapable of making a 
 will (g). And the onus probandi lies on the party setting 
 up a will made during the subsistence of a commission of 
 lunacy, to establish the fact of a complete or partial 
 recovery of the testator, at. the time of gi\dng instructions 
 for and executing the will (h). But if a person of sound 
 mind makes his will, it is not revoked or aliected by his 
 subsequent insanity (t). 
 
 (d) Sugd. Concise View, 542. Prinsep and E. I. Company v. Dyce 
 
 (c) Molton V. ^amroux, 2 Exch- Sombre, 10 Moore P. C. 232, 239, 
 
 487, 503, affirmed 4 Excli. 17 ; Sugd. 245—7. 
 
 Concise View, 542 ; Phil. Lun., 17; {g) 2 Bl. Com. 497; 1 Jarm. 
 
 Broom Com. 2nd ed. 538 ; Kosc. AVills, 2nd ed. 26. 
 
 on Evid. 10th ed. 452; Chit. Con. (/i) Prinsep andE. I. Company v. 
 
 7th ed. 131—4 ; Ad. Con. 5th ed. Dyce Sombre, 10 Moore P. C. 232, 
 
 944—5 ; Sm. Con. 3rd ed. 294—7. 239, 245—7. 
 
 {/) Snook V. Watts, 11 Beav. 105; (/) 1 Wms. Exors.4th ed.l8,n.'(i)). 
 
 p P 2
 
 1174 
 
 OF PERSONS OF UNSOUND MIND. 
 
 Pakt IV. 
 T. 1, Ch. 6. 
 
 Lunatics 
 
 cauuot 
 
 present. 
 
 Powers 
 conferred by 
 the Lunacy 
 Regulatiou 
 Act, 1853, 
 and by the 
 statutes 18 
 Vict. c. 13, 
 and 25 & 26 
 Vict. c. 86. 
 
 Neither a limatio nor his committee can present to a 
 church. But the Lord Chancellor, by virtue of the general 
 authority delegated to him by the Crown, presents to all 
 livings whereof lunatics are patrons (,/). 
 
 By the statute 16 & 17 Vict. c. 70 (by which so much 
 of the statute 1 Will. 4, c. 65, as relates to persons of un- 
 sound mind, and parts of certain other Acts mentioned in 
 the schedule, are repealed), certain enactments are made 
 for the admittance of lunatics to copyhold property, by 
 their committees, or by attornies appointed by the lord, 
 and for the payment of the fines due thereon (ss. 108 — 
 112). The committees may surrender leases and accept 
 renewals (s. 113) ; and the expenses of renewal may be 
 charged on the leasehold property (s. 114) ; and every 
 lease renewed shall " operate and be to the same uses, and 
 be liable to the same trusts, charges, incumbrances, dis- 
 positions, devices, and conditions, as the lease surrendered 
 was subject to, or would have been subject to if the sur- 
 render had not been made" (s. 115). The property of 
 lunatics may also, by order of the Lord Chancellor, be sold, 
 mortgaged, or otherwise disposed of, for payment of debts, 
 or for future inaintenance, or for other expenses therein 
 mentioned (ss. 116, 117). The expenses of improvements 
 maybe charged on the lunatic's estate. (s. 118); and the 
 surplus of monies to be raised under the previous sections 
 will be of the same nature and character as the estate sold, 
 mortgaged, charged, or disposed of (s. 119). Committees 
 may, by order of the Lord Chancellor, sell, mortgage, let, 
 divide, exchange, or otherwise dispose of land, in per- 
 formance of contracts entered into prior to the lunacy 
 (s. 122) ; and may, on a dissolution, by order of the Lord 
 Chancellor, convey partnership property (s. 123) ; and 
 committees, by the order of the Lord Chancellor, may also 
 
 (i) 3 Cruise T. 21, c. 2, § 44.
 
 OF PERSONS OF UNSOUND MIND. 1175 
 
 sell undmded shares of land, or make partition or ex- part i v. 
 
 ^ T. 1, Cii. 6. 
 
 changes (s. 124) ; may sell lauds for building purposes 
 
 (s. 125) ; may dispose of business premises (s. 126) ; may 
 dispose of undesirable leases or underleases (s. 127) ; may 
 enter into certain agreements on behalf of lunatics (s. 128) ; 
 may make leases and underleases (ss. 129 — 135); and may 
 exercise powers vested in lunatics (ss. 136 — 138). 
 
 Sections 129, 130, 131, of this Act are explained and 
 amended by the stat. 18 Vict. c. 13, whereby the com- 
 mittee of a lunatic tenant in tail is enabled, by order of 
 the Lord Chancellor, to make leases so as to bind the 
 lunatic and his heirs, and all persons claiming under the 
 entail, or after the determination of, or in remainder or 
 reversion expectant on the estate tail (k). 
 
 By the stat. 25 & 26 Vict. c. 86, ss. 1—15, in the case 
 of insane persons not found lunatic by inquisition, whose 
 property does not exceed £1000 in value or £50 per annum, 
 the Lord Chancellor may apply such property for such 
 person's benefit in a summary manner. And by s. 16 the 
 powers over the property of lunatics given by s. 116 of the 
 preceding Act, are extended. 
 
 (k) As to leases and sales of settled estates in which lunatics are inte- 
 rested, see supra, pp. 689, 690.
 
 1176 
 
 CHAPTER VII. 
 
 OF ALIENS. 
 
 Past IV. 
 T. 1, Ch. r. 
 
 Who are 
 alleus. 
 
 What aliens 
 may acquire, 
 and what 
 they may 
 hold. 
 
 "With certain exceptions (a), a person born out of the 
 Queen's dominions is an alien, until naturalised or made a 
 denizen, unless such person's father is not attainted of 
 treason, nor liable to its penalties if he should return home, 
 nor in the actual service of any hostile prince or state, and 
 is either a natural-born subject (&), or is the son of a natural- 
 born subject, having the three other above-named qualifi- 
 cations (c), or unless such person is the wife of a natural- 
 born subject or naturalised person (d). 
 
 By the common law, an alien may purchase, but he 
 cannot hold any real estate or chattel real ; for if he pur- 
 chase any real estate or chattel real, it will be forfeited 
 to the Crown, on office found, or on the death of the alien, 
 whichever shall first happen. A lease for years of a house 
 for convenience of merchandize is an exception to this ; 
 and though the stat. 32 Hen. 8, c. 16, s. 23, makes void all 
 leases of houses or shops to an alien artificer or handicrafts- 
 man, yet in favour of aliens this enactment has been con- 
 
 (a) See Stamp's Index to the Sta- 
 tute Law, tit. "Alien." 
 
 (h) Stat. 7 Anne, c. 5, s. 5 ; 4 
 Geo. 2, c. 21. 
 
 (c) Stat. 13 Geo. 3, c. 21 ; Burton, 
 § 193 ; 3 Cruise T. 29, c. 2, § 13, 14. 
 The words in the stat. 13 Geo. 3, 
 c. 21, 8. 3, are to be read " aliens' 
 duties, customs, and impositions," 
 as in Raithby's ed., and not " aliens, 
 duties, customs, and impositions," 
 as in the quarto ed. of 1774 ; and 
 
 therefore the grandchild of a natural- 
 born subject, born out of the Queen's 
 allegiance, is entitled to the benefit 
 of the statute, in regard to holding 
 lands as a natural -born subject, al- 
 though he has not complied -with 
 the foi'malities specified in the 3rd 
 section, which only refers to fiscal 
 charges on subjects and on aliens. 
 Barrow v. Wadkin, 24 Beav. 327. 
 (d) 7 & 8 Vict. c. 66, s. 16.
 
 OF ALIENS. 1177 
 
 strued very strictly (e). And further exceptions are created , ''art iv. 
 
 by the stat. 7 & 8 Vict. c.66. By s. 3 of that Act, " every per- 
 
 son now born, or hereafter to be born, out of her Majesty's 
 dominions, of a mother being a natural-born subject of the 
 United Kingdom, shall be capable of taking to him, his 
 heirs, executors, or administrators, any estate, real or per- 
 sonal, by devise, or purchase, or inheritance, or succession," 
 And after enacting, by the 4th section, that " every alien, 
 being the subject of a friendly state, shall and may take 
 and hold by purchase, gift, bequest, representation, or 
 otherwise, every species of personal property except 
 chattels real," it is by s. 5 enacted, " that every alien now 
 residing in, or who shall hereafter come to reside in, 
 any part of the United Kingdom, and being the subject of 
 a friendly state, may, by grant, lease, demise, assignment, 
 bequest, representation, or otherwise, take and hold any 
 lands, houses, or other tenements, for the purpose of 
 residence or of occupation by him or her, or his or her 
 servants, or for tlie purpose of any business, trade, or 
 manufacture, for any term of years not exceeding twenty- 
 one years, as fully and effectually to all intents and pur- 
 poses, and with the same rights, remedies, exemptions, and 
 privileges, except the right to vote at elections for members 
 of parliament, as if he were a natural-born subject of the 
 United Kingdom. 
 
 Aliens may take under a will the produce of real estate Produce of 
 
 real estate. 
 
 thereby devised to trustees to be sold (/). 
 
 Aliens cannot be seised to a use ; and therefore, if a con- Aliens not 
 
 seised to 
 
 veyance is made to an alien and a natural -born subject to uses. 
 uses, the moiety of the alien, upon office found, becomes 
 vested in the Crown (</). 
 
 (e) Sugd. Concise View, 540 ; 2 (/) Dii Hourmelin v. Sheldon, 4 
 
 Pres. Shep. T. 232, n. (12) ; 4 Cruise My. & Cr. 525. 
 
 T. 32, c. 2, § 38 ; 2 Bl. Com. 249 ; {g) 1 Cruise T. 11, c. 3, § 10. 
 Burton, § 192 ; Co. Litt. 2 b.
 
 1178 
 
 OF ALIENS. 
 
 Part IV. 
 T. 1, Ch. 7. 
 
 Devises in 
 
 trust to 
 convey to an 
 alien. 
 
 Naturalisa- 
 tion and 
 denization. 
 
 Ways in 
 which aliens 
 purchase. 
 
 Aliens cannot 
 take by act of 
 law. 
 
 Sir J. Stuart, V.-C, has lield that a trust to convey to 
 an alien, is a trust incapable of taking effect, either for the 
 benefit of the alien or of the Crown, and that the beneficial 
 interest results to the heir of the testator Qi). But Sir J. 
 Eomilly, M. E., held the cestui que trust takes under such 
 a devise, but not being able to hold, the Crown becomes 
 beneficially entitled {i). 
 
 An alien may be naturalised by Act of Parliament, or 
 (since the stat. 7 «& 8 Vict. c. 66, ss. 6 — 12) by a certificate 
 by the Secretary of State, or may be made a denizen by 
 Eoyal letters patent ; in either of which cases he becomes 
 capable of holding real property purchased after that 
 time(y). And if an alien purchases lands, and before 
 office found the Sovereign makes him a denizen by letters 
 patent, and confirms his estate, the confirmation will be 
 good (h). 
 
 An alien cannot protect himself by taking the con- 
 veyance in the name of a trustee {I). It is common, how- 
 ever, to limit lands to an alien from and after his 
 naturalisation, and it seems that on being naturalised he is 
 capable of taking and holding them. But aliens generally 
 purchase in the names of their wives or children by way 
 of advancement to them {m). 
 
 An alien cannot take by act of law, as by descent, 
 curtesy, dower, or guardianship ; because he cannot hold, 
 et lex nihil facit frustra {n). And so, if the husband is an 
 alien, he mil not acquire any right to a term of years 
 belonging to his wife (o). 
 
 (A) Rittson V. Stordy, -3 Sm. & G. 
 230. 
 
 {i) Barrow \. Wadkin, 24Beav. 1. 
 
 (i) Burton, § 194 ; 1 Cruise T. 1, 
 § 35 ; 3 Cruise T. 29, c. 2, § 19 ; 4 
 Cruise T. 32, c. 2, § 38 ; 2 Pres. 
 Step. T. 235 ; Sugd. Concise View, 
 540. 
 
 (k) Sugd. Concise View, 540. 
 (I) Sugd. Concise View, 540. 
 (m) 2 Pres. Sliep. T. 235. 
 («.) 2 Pres. Shep. T. 232, n. (12); 
 
 1 Cniise T. 5, c. 1, § 26 ; Co. Litt. 
 
 2 b (1). 
 
 (o) 1 Cruise T. 8, c. 1, § 33.
 
 OF ALIENS. 
 
 1179 
 
 If, however, an alien is made a denizen, and afterwards i'*"' i^. 
 
 ' ' 1.1, Ch. 7. 
 
 lias issue, lie may be tenant by the curtesy in respect of -^^^-^ 
 
 such issue, though he would not be entitled on account of 
 issue had before (p). 
 
 And though an alien was generally not dowable (q), Dower, 
 yet, 1. The Queen Consort is dowable, though she be an 
 alien (/■). 2. An Act of Parliament was made in 8 Hen. 5, 
 not printed among the statutes, by which all alien women 
 who from thenceforth should be married to Englishmen, 
 by licence from the king, are enabled to have dower (s). 
 
 3. If an alien woman is naturalised by Act of Parliament, 
 she then becomes entitled to dower out of all the lands 
 whereof her husband was seised during the coverture. 
 
 4. "Where an alien woman is created a denizen, she be- 
 comes entitled to dower out of all the lands whereof her 
 husband was seised at and after the time when she was 
 created a denizen, but not out of any lands whereof he 
 was seised before, and which he had aliened (t). And 5. 
 By the stat. 7 & 8 Vict. c. 6Q, s. 16, " any woman married 
 or who shall be married to a natural-born subject or person 
 naturalised shall be deemed and taken to be herself natu- 
 ralised, and have all the rights and privileges of a natural- 
 born subject." 
 
 An alien is not capable of transmitting by descent. If ^^^^^^ ^°^ 
 an ahen be made a denizen by Eoyal letters patent and 
 tlien purchases lands, his son born before denization shall 
 not inherit those lands; for the father before denization 
 had no inheritable blood to communicate to his eldest 
 son. But a son born afterwards may inherit, even 
 though his elder brother be living. And if the father 
 were naturalised by Act of Parliament, such eldest son 
 
 (p) 1 Cruise T. 5, c. 1, § 26. {r) 2 Bl. Com. 131. 
 
 (g) Co. Litt. 31 b ; 2 Bl. Com. (s) Co. Litt. 31 b ; 1 Cruise T. 
 
 131 ; Count de Wall's case, 6 Moore 6, c. 1, § 30. 
 
 P. C. C. 216. (0 1 Cruise T. 6, c. 1, § 31.
 
 alieu. 
 
 1180 OF ALIENS. 
 
 /i^ch^t ^^^^8'^^^ ^^^^^ ha^ve inherited; for that has a retrospective 
 force {u). 
 
 tiir?u°b an ^Y ^^^ ^^^ ^^^' ^^ alien's sons born here might inherit 
 
 to each other, because the descent was immediate (x). 
 
 By the stat. 11 & 12 Will. 3, c. 6, all persons, being 
 natural-born subjects of the king, may inherit and make 
 their titles by descent from any of their ancestors, lineal 
 or collateral ; although their father, or mother, or other 
 ancestor, by, from, through, or under whom they derive 
 their pedigrees, were born out of the king's allegiance. 
 But inconveniences were afterwards apprehended, in case 
 persons should thereby gain a future capacity to inherit, 
 who did not exist at the death of the person last seised. 
 As, if Francis the elder brother of John Stiles was an 
 alien, and Oliver the younger was a natuval-born subject, 
 upon John's death without issue his lands would descend 
 to Oliver the younger brother : now, if afterwards Francis 
 had a child born in England, it was feared that, under the 
 statute of King William, this new-born child might defeat 
 the estate of his uncle Oliver. Wherefore it is provided, 
 by the statute 25 Geo. 2, c. 39, that no right of inheri- 
 tance shall accrue by virtue of the former statute to any 
 persons whatsoever, unless they are in being and capable 
 to take as heirs at the death of the person last seised ; 
 with an exception, however, in the case w^here lands shall 
 descend to the daughter of an alien ; which descent shall 
 be divested in favour of an after-born brother, or the inheri- 
 tance shall be divided with an after-born sister or sisters, 
 according to the usual rule of descents by the common 
 law (y). 
 
 (m) 2 Bl. Com. 249, 250. (y) 2 Bl. Com. 251 ; Co. Litt. 8 
 
 (x) 2 Bl. Com. 250. See supra, a (2). 
 p. 474.
 
 0¥ EOMAN CATHOLICS. 1181 
 
 It may loe liere observed, that, in addition to the other /f ^p|j^; 
 
 disabilities already mentioned, Roman Catholics were dis- -^--^ 
 
 abled by the stat. 11 & 12 Will. 3, c. 4, 3 Geo. 1, c. 18, ^i^^K^H?,,,. 
 and 11 Geo. 2, c. 17 (the latter of which is mostly re- 
 pealed by the stat. 9 & 10 Vict. c. 59, s. 1), from pur- 
 chasing any land, rents, or hereditaments ; and all estates 
 made to their use or in trust for them were void. But by 
 the stat. 18 Geo. 3, c. 60, 31 Geo. 3, c. 32, and 43 Geo. 3, 
 c. 30, they were enabled to qualify themselves by taking a 
 special oath of allegiance. And by the stat. 10 Geo. 4, 
 c. 7, s. 23, any special oath is declared unnecessary for 
 enabling Eoman Catholics to enjoy real or personal pro- 
 perty (z). But by the 5th section of the stat. 11 Geo. 2, 
 c. 17, which has not been repealed, " every grant to be 
 made from and after the 6tli day of May, 1738, of any 
 advow^son or right of presentation, collation, nomination, 
 or donation of and to any benefice, prebend, or eccle- 
 siastical living, school, hospital, or donative, and every 
 grant of any avoidance thereof by any Papist or person 
 making profession of the Popish religion, or any mortgagee, 
 trustee, or person, any ways intrusted directly or indi- 
 rectly, mediately or immediately, by or for any such 
 Papist or person making profession of the Popish religion, 
 wdiether such trust be declared by wTiting or not, shall 
 be null and void, unless such grant shall be made boni 
 fide, and for a full and valuable consideration to and 
 for a Protestant purchaser or Protestant purchasers, and 
 merely and only for the benefit of a Protestant or Pro- 
 testants." " And every devise to be made from and after 
 the said 6th day of May, by any Papist or person profess- 
 ing the Pojoish religion, of any such advowson or right of 
 presentation, collation, nomination, or donation, or any 
 such avoidance, with intent to secure the benefit thereof to 
 
 (2) Burton, 7th ed. by Cooper, Laws relating to Rom. Cath. 60 — 3. 
 ,§ 209 ; 2 Bl. Com. 293 ; Anstey's
 
 1182 OF ROMAN CATHOLICS. 
 
 Part IV tliG lieii'S 01" family of such Papist or person professing tlie 
 
 Popish, religion, shall be nuU and void." 
 
 A right of presentation, collation, or nomination, vested 
 in a Eoman Catholic, is given by the stat. 12 Anne, 
 stat 2, c. 14, s. 1, to the University of Oxford or the 
 University of Cambridge, according to the situation of the 
 benefice.
 
 1188 
 
 CHAPTEPt VIII. 
 
 OF CORPORATIONS (a). 
 
 Corporations are either aggregate, as the mayor and pamiv. 
 hurgesses of a town, the master and feUows of a college, 
 
 ° Corporations 
 
 &c. ; or sole, as a bishop or a parson and his successors. and Isfe'' 
 If land is oiven by deed to a person who is a corporation Necessity for 
 
 ^ ^ ^ ^ the word 
 
 sole, and it is intended that it should vest in him in fee successors to 
 
 ' pass a fee. 
 
 simple in his corporate capacity, it must be expressed to be 
 given to him and his successors. The word successors, 
 however, is not necessary to pass an estate in fee simple to 
 a corporation aggregate, as it never dies (&). And an estate 
 in fee will pass to the Sovereign without the words heirs or 
 successors, partly on account of the Eoyal prerogative, and 
 partly because in judgment of law the Sovereign never 
 dies (c). 
 
 The name of a corporation in grants or conveyances need lusnomer. 
 not be literally correct, so long as it is substantially correct 
 in signification (d). 
 
 A misnomer in a bequest to a corporation is immaterial, 
 if the body intended is pointed out with sufticient cer- 
 tainty (e). 
 
 With some exceptions, corporations sole or aggregate, Holding 
 whether ecclesiastical or temporal, cannot hold lands with- 
 out licence (/). 
 
 (a) See p. 491, supra, on " Sue- (d) 3 Jarm. & Byth. by Sweet, 
 cession." 263. 
 
 (b) 2 Bl. Com. 108 ; 4 Cruise T. (e) 3 Jarm. & Byth. by Sweet, 
 32, c. 21, § 9 ; Burton, § 130 ; Co. 265 ; 1 Jarm. Wills, 2nd ed. 311. 
 Litt. 8 a, 94 b. (/) Sugd. Concise View, 541 ; 
 
 (c) 2 Bl. Com. 209 ; 4 Cruise T. supra, pp. 305, 566. 
 32, e. 21, § 10.
 
 1184 
 
 OF CORPOKATIONS. 
 
 Part IV. 
 T. 1, Ch. 8. 
 
 Parishionors, 
 parsou, 
 chiirch- 
 warilens, or 
 inhabitauts. 
 
 Mode of 
 conveyance 
 by or to a 
 corporation. 
 
 Common 
 «eal. 
 
 Delivery of 
 deed of a 
 corporation. 
 
 Except under Acts of Parliament for particular purposes,, 
 or by grant from the Crown, the parishioners or inhabitants 
 of any place, or the churchwardens, are incapable of taking 
 as immediate grantees of lands by those names. But they 
 may take beneficially, by way of charitable trust, by those 
 names. And it seems that in London the parson and 
 churchwardens are a corporation to purchase lands {g). 
 
 A corporation, whether sole or aggregate, may convey 
 or take by feoffment, and appoint an attorney to give or 
 receive livery. And as a corporation cannot be seised to a 
 use, feoffments have been commonly used by corporations 
 to create freehold estates (]i). But a conveyance by a cor- 
 poration was also made by a lease at common law, per- 
 fected by an actual entry, a memorandum of which was- 
 indorsed on the lease, and followed by a release, enuring 
 by way of enlargement, so as to be independent of the 
 Statute of Uses (^). But it is presumed that corporations 
 will now convey by statutory grant {j ). 
 
 Generally speaking, a corporation cannot do any act 
 except by writing under seal (Jc) ; which ought to be its 
 common seal. But a corporation may seal with any other 
 seal besides their common seal (/). 
 
 The deed of a corporation does not need any delivery ; 
 for the apposition of their common seal gives perfection tO' 
 it, without any further ceremony (m). 
 
 (g) Sugd. Concise View, 540; Co. 
 Litt. 3 a (4) ; Willingale v. Maitland, 
 L. R. 3 Eq. 103. 
 
 (h) 4 Cruise T. 32, c. 4, § 25 ; 
 Watk. Conv. 3rd ed. by Prest. 121 
 —2, 165. 
 
 (i) 3 Jarm. & Byth. by Sweet, 
 
 242— 3; 1 Pres. Shep. T. 205; Watk.. 
 Conv. 3rd ed. by Prest. 121, 184. 
 
 {j) See supra, p. 747. 
 
 {U) 3 Jarm. & Byth. by Sweet,. 
 263. 
 
 {I) 1 Pres. Shep. T. 56, 57. 
 
 (m) 4 Cruise T. 32, c. 2, § 70.
 
 1185 
 
 TITLE II. 
 
 OF SOME MISCELLANEOUS HEADS OF LAW CONNECTED 
 WITH CONVEYANCING. 
 
 Definition. 
 
 CHAPTEE I. 
 
 OF WASTE. 
 
 "Waste is that which tends to the permanent depreciation ^'^^'^ i"^- 
 of the vahie of the inheritance. It is either voluntary, 
 which is an offence of commission, as by pulling down 
 a house ; or it is permissive, which is an offence of omis- 
 sion only, as by suffering it to fall for want of necessary 
 rejjairs (a). 
 
 I. Different Kinds of Waste. 
 Voluntary waste chiefly consists in these things : — Different 
 
 -^ , ° kinds of 
 
 1. FeUiug or destroying trees. 2. Destroying or injuring ^'ll^^'^^^ 
 houses. 3. Opening mines or pits. 4. Changing the 
 course of husbandry. 5. Destroying heir-looms (h). 6. 
 Destroying certain kinds of living creatures which are 
 regarded as part of the inheritance. 
 
 1. A tenant for life may cut down timber trees for the i. waste in 
 
 trees and 
 
 ordinary reparation of houses or fences ; but he cannot ^f^l^ 
 cut down timber to build new houses or to repair those [eli'ant for 
 that he himself has improperly suffered to fall into tlmb™^^''"* 
 decay (c). Timber trees are those which serve for building what is 
 
 timber. 
 
 (a) Co. Litt. 53 a; 2 Bl. Com. (c) 1 Cruise T. 3, c. 1, § 19 ; Co. 
 
 281 ; Burton, § 718. Litt. 53 b. 
 
 (6) 1 Cruise T. 3, c. 2, g 1.
 
 llSf) 
 
 OF WASTE. 
 
 Part IV. 
 T. 2, Ch. 1. 
 
 Destruction 
 of germius, 
 trees about a 
 house, fruit 
 trees, and 
 fences. 
 
 Kishts of 
 tenant for 
 life without 
 impeachment 
 of waste ; or 
 tenants in 
 fee with an 
 executory 
 devise over. 
 
 Timber 
 
 wionglully 
 cut liy 
 t.euant for 
 life, or blown 
 down. 
 
 or reparation of houses ; sncli as oak, ash, and elm, of the 
 age of twenty years and upwards (fZ). By the custom 
 of some counties, certain trees not usually considered as 
 timber are deemed to be such, being there used for 
 building (e). 
 
 If tenant for life suffers the young germins or shoots to 
 be destroyed, or cuts down willows, birch, &c., standing in 
 the defence and safeguard of a house, or fruit trees stand- 
 ing in a garden or orchard, or suffers a quickset fence of 
 white thorn to be stubbed up or destroyed, it is waste (/). 
 
 Estates for life are usually given " without impeachment 
 of waste " {g), that is, without the liability to be sued for 
 waste. 
 
 Where a tenant for life, impeachable for waste, wrong- 
 fully cuts down timber, the produce ought to be invested 
 and accumulated for the benefit of the first estate of in- 
 heritance. Where timber is blown down, he is entitled to 
 such parts as he might legally have cut (as thinnings, &c.), 
 and to the interest produced by the investment of the 
 rest {h). 
 
 What a prudent owner would do in the proper or 
 ordinary course of management is no measure of what a 
 tenant for life without impeachment of waste may do, in 
 regard to timber planted or left standing for ornament {%). 
 
 Tenant for life, without impeachment of waste, has a 
 right to fell timber and convert it to his own use {j), and 
 he is entitled to the property of all timber trees blown 
 down, and to the timber in a building which has been 
 blown down. But he cannot delegate his right of cutting 
 
 (d) 1 Cruise T. 3, c. 2, § 5 ; 2 Bl. 
 Com. 281 ; Co. Litt. 53 a. 
 
 (e) 1 Cruise T. 3, c. 2, § 6 ; 2 Bl. 
 Com. 281 ; Co. Litt. 53 a. 
 
 (/) 1 Cruise T. 3, c. 2, § 8, 9 ; Co. 
 Litt. 53 a. 
 
 (r/) ] Cruise T. 3, c. 2, § 51. 
 
 (Ii) Batcmnn y. Hotclihin (No. 2), 
 31 Beav. 4S6 ; Bayot v. Bagot, 32 
 Bcav. 509. 
 
 {i) Ford V. Tynte, 2 D. J. & Sm. 
 127. 
 
 {j) 1 Cruise T. 3, c. 2, § 51, 54.
 
 OF WASTE. 1187 
 
 down timber to another person, so as to enable such paetiv. 
 
 T. 2, Ch. 1. 
 
 person to exercise it after the death of the tenant for 
 
 life (k). And the Court of Chancery will also restrain a 
 tenant for life without impeachment of waste, or a tenant 
 in fee with an executory devise over, from cuttmg down 
 timber serving for shelter or ornament to a mansion-house 
 or its grounds, as also timber not fit to be felled : which is 
 commonly called equitable waste, because it is deemed to 
 be improper and restrainable in equity, though permitted 
 at law (/). But in cases of this kind, the Court will not 
 give any satisfaction to the remainderman for timber 
 actually cut down (m). 
 
 The Court of Chancery has in some cases directed the where the 
 
 . IP Court of 
 
 timber growing on an estate whereof a person was tenant chancery 
 
 "^ ° ^ will peimit 
 
 for life to be cut down, for the purpose of paying debts ^^^^^ ^ ^ 
 and legacies charged upon the inheritance (71). The Court 
 has also directed timber which was in a state of decay to 
 be cut down, for the benefit of the person who was tenant 
 for life without impeachment of waste, subject to a long 
 term, and was in a state of indigence, or in favour of the 
 person entitled to the inheritance, wdiere enough was left 
 for botes, and the trees were not needed for the shelter or 
 ornament of the house (0). 
 
 Where a tenant for life has the next existing estate of 
 inheritance, subject to intermediate contingent remainders 
 in tail, the Court of Chancery will not allow him to take 
 advantage of that circumstance by cutting down timber, 
 but will preserve it for the benefit of the intermediate con- 
 tingent remaindermen ( p). 
 
 The above restrictions apply, with even greater force, to Rights of 
 
 tenant for 
 years. 
 
 (i) 1 Cruise T. 3, c. 2, § 56. (m) 1 Cruise T. 3, c. 2, § 64. 
 
 (I) 1 Cruise T. 3, c. 2, § 61 ; Co. (n) 1 Cruise T. 3, e. 2, § 46. 
 
 Litt. 220 a, n. (1) ; Turner v. (o) 1 Cruise T. 3, c. 2, § 49, 50. 
 
 Wright, 1 Johns. 740 ; Michlethwait {p) 1 Cruise T. 3, c. 2, § 43. 
 V. MicUethwait, 1 D. & J. 504. 
 
 VOL. II. CJ Q
 
 bouse?. 
 
 1188 OF WASTE. 
 
 Part IV. teiiaiits for years. Where the clause witliout impeachment 
 
 of waste is inserted in a lease for years, it wiU have the 
 
 same limited effect as when inserted in the conveyance of 
 an estate for life (q). And the Court of Chancery will not 
 permit a tenant for years, though without impeachment of 
 waste, to fell timber just before the expiration of the lease (r). 
 2. Waste in 2. Wastc may be done in houses by pulling them down, 
 or by suffering them to be uncovered, whereby the timbers 
 become rotten. If, however, a house is imcovered when 
 the tenant comes in, it is no waste to suffer it to fall down ; 
 but it would be waste to pull it down, unless it be re- 
 built (,s). If a lessee for life builds a house where there 
 was none, or razes a house, and builds a new one which is 
 either larger or smaller than the former, it is waste (t) ; 
 and it is waste to convert one kind of edifice into another, 
 even though it is improved in value ; because it affects 
 the evidence of the estate («-). If glass windows, though 
 put in by the tenant himself, are broken or carried away, 
 it is waste. So it is of wainscot benches, doors, floors, fur- 
 naces, and the like, annexed or fixed to the house either by 
 the reversioner or the tenant («). 
 
 A tenant for life, though Avithout impeachment of Avaste, 
 is obliged to keep tenants' houses in repair, unless the 
 charge is excessive (y). 
 
 It is a general rule, that waste Avhich ensues from the 
 act of God is excusable. So that, if a house falls in con- 
 sequence of a tempest, the tenant will be excused. But 
 yet where a house is uncovered by a tempest, the tenant is 
 bound to repair it within a reasonable time before the 
 timbers grow rotten (z). 
 
 {q) 1 Cruise T. 8, c. 2, § 12. T. 3, c. 2, § 18. 
 (r) 1 Cruise T. 8, c. 2, § 14. (x) 1 Crui.sc T. 3, c. 2, § 13 ; 2 
 
 (s) 1 Cruise T. 3, c. 2, § 11 ; Co. Bl. Com. 181 ; Co. Litt. 53 a. 
 Litt. 53 a. (y) 1 Cruise T. 3, c. 2, § 58. 
 
 (t) 1 Cruise T. 3, c. 2, § 12. (z) 1 Cruise T. 3, c. 2, § 23 ; 2 Bl. 
 
 (w) 2 Bl. Com. 281—2 ; 1 Cruise Com. 181 ; Co. Litt. 53 a.
 
 OF WASTE. 1189 
 
 In consequence of the stat. C Anne, c. 31, s. 7, tenants pam iv. 
 
 for life and others are not responsible for accidental fire, 
 
 unless they covenant to repair, without excepting cases of 
 accidental fire (a). 
 
 3. A tenant for life, without impeachment of waste, may ^- waste as 
 
 regards 
 
 even open new mines. A tenant for life of land or of land ^iues and 
 
 '- pits. 
 
 and mines, if impeachable for waste, may not open new 
 mines, but he may work open mines. A tenant for life, 
 impeachable for waste, cannot dig for gravel, lime, clay, 
 l>rick-earth, stone, or the like, where there are no pits open, 
 unless for the reparation of buildings or the benefit of the 
 estate. Where a lease is made of land, and mines are not 
 mentioned in the lease, the tenant for life or years may 
 work open mines, but may not dig for any new mine. And 
 if there are open mines, a lease of the land, with the mines, 
 will only give the right to work the open mines. But if 
 there is no open mine, and the lease is of the laud with 
 all mines, the lessee may open mines (h). 
 
 A power to grant leases, without mentioning mines, does 
 not authorize a lease of unopened mines (c). 
 
 Where a power is given of leasing hereditaments, and 
 the coal and minerals under them, together with or sepa- 
 rately therefrom, in terms showing an intention that the 
 lease shoidd extend to unopened mines, a clause that the 
 lessees shall be punishable for waste, is repugnant and of no 
 effect (d). 
 
 4. The conversion of one kind of land into another, as 4. changing 
 
 t'he com.se uf 
 
 the changing of meadow into arable, is also waste, because tusbandiy. 
 it not only changes the course of husbandry, but also affects 
 the evidence of the estate (e). 
 
 (a) 1 Cruise T. 3, c. 2, § 80, 81. (c) Clegg v. Rowland, L. R. 2 Eq. 
 
 (b) 1 Cruise T. 3, c, 2, § 14, 16 ; 160. 
 
 2 Bl. C!om. 282 ; Co. Litt. 53 b, {d) Daly v. BecMt, 24 Beav. 114. 
 
 54 b ; Yool on Waste, &c., 52—55 ; (c) 1 Cruise T. 3, c. 2, § IS ; 2 BL 
 
 Barjotv. Bcujot, 32 Beav. 509 ; Clcyy Com. 182 ; Co. Litt. 53 b. 
 V. Roivland, L. R. 2 Eq. 165. 
 
 Q Q 2
 
 1100 
 
 OF WASTE. 
 
 Part IV. 
 T. 2, Ch. 1. 
 
 6. Destruc- 
 tion of 
 heir-looms. 
 
 6. Waste as 
 regards 
 living 
 creatures. 
 
 5. The destruction of heir-looms is waste (/). 
 
 6. Waste may also be committed in ponds, dove-houses, 
 warrens, parks, and the like, by so reducing the number of 
 creatures therein that there will not be sufficient for the 
 reversioner {g). 
 
 Waste, by 
 tenants iu 
 fee or in 
 tail. 
 
 Waste by 
 tenants for 
 ife. 
 
 Waste by 
 ecclesiasti- 
 cal persons. 
 
 II. Who may and 'ivho may not commit Waste. 
 
 Tenant in fee or in tail has a right to commit every kind 
 of waste ; so that even a bond to restrain him from com- 
 mitting waste is void (//). 
 
 A devisee in fee, subject to an executory devise over 
 is dispunishable for ♦ legal waste, unless restrained from 
 committing it. But he is liable for equitable waste ; and 
 he may be restrained from committing legal waste by a 
 ■clause of forfeiture {i). 
 
 Tenants for life, whether their estates are created by 
 deed or devise or by operation of law, are punishable or 
 liable to be impeached for voluntary waste, unless their 
 estates are made without impeachment for waste {j), or 
 unless they are granted with partial powers to do waste (Tc). 
 The Court of Chancery will not permit tenant for life, 
 without impeachment of waste, to commit waste upon an 
 estate which is decreed to be sold, in order that the money 
 should be invested in the purchase of another estate to the 
 same uses ; because in that case he would have the benefit 
 of double waste {I). 
 
 Bishops, parsons, vicars, and other ecclesiastical persons, 
 being considered in most respects as tenants for life of the 
 
 (/) 1 Cruise T. 3, c. 2, § 20. 
 
 (r/) 2 Bl. Com. 281 ; Co. Litt. 
 53 a. 
 
 (A) 1 Cruise T. 2, c. 1, § 32, 35 ; 2 
 Bl. Com. 115. 
 
 (?■) Turner v. Wrtrjht, 2 D. F. & 
 J. 234 ; Blake v. Peters, 1 De G. J. 
 
 & S. U5. 
 
 (i) 2 Bl. Com. 283, 122 ; Sea- 
 gram V. Knight, L. R. 2 Ch. A p. 
 628. 
 
 (k) 1 Cruise T. 3, c. 2, § 68. 
 
 {I) 1 Cruise T. 3, c. 2, § 65, 66.
 
 OF WASTE. 1191 
 
 lands M'liich tliey hold jure ecclesiaj, are disabled from com- J'**' ^"v- 
 
 J i ' T. 2, Ch. 1. 
 
 iiiittiiig any kind of waste (m). By the stat. 35 Edw. 1, it 
 is declared that parsons shall not presnme to fell trees 
 growing in the churchyard, but when the chancel or the 
 body of the church requires reparations {n). 
 
 Tenant for years may not commit any kind of waste, waste by 
 unless liis lease is made without impeachment for waste (o). years. 
 
 Tenants at will may not commit any kind of voluntary waste by 
 
 "^ tenants at 
 
 Avaste. But they are not punishable for permissive waste ; "iu 
 for they are not bound to repair {p). 
 
 One tenant in common has no right to commit any waste by 
 
 teuauts in 
 
 waste of the nature of destructive waste {(]). common. 
 
 Every copyholder may, of common right, as incident to waste by 
 
 lord or 
 
 the grant, take housebote, hedgebote, and ploughbote upon tenants of 
 
 " ° . * manor. 
 
 his copyhold. But this right may be restrained by custom, 
 namely, that the copyholder shall not take it, unless by 
 assignment of the lord or his bailiff. In consequence of 
 the right of the copyholder, the lord cannot cut down all 
 the timber trees on a copyhold estate, but inu^t led.ve 
 sufficient for the reparation of the houses and fot' plotigh- 
 bote, &c. (r). But by the general custom of most manors, 
 timber and mines are the property of the lord, and' a 
 copyholder or a customary freeholder cannot commit any 
 kind of waste, unless there is a particular custom to war- 
 rant it (s) ; and a copyholder for life is punishable for per- 
 missive waste {t). 
 
 {m) 1 Cruise T. 3, c. 2, § 71. (»•) 1 Cruise T. 10, c. 3, § 3, 7. 
 
 {n) 1 Cruise T. 3, c. 2, § 72. (s) 1 Cruise T. 10, c. 3, § 7 ; Buhe 
 
 (o) 1 Cruise T. 8, c, 2, §2, 12. of Portland v. Hill, L. R, 2 Eq. 
 
 ip) 1 Cruise T. 9, c. 1, § 10. 765. 
 
 (</) 2 Cruise T. 20, § 9—13 ; Ar- {t) 1 Cruise T. 10, c. 3, § 15, 
 tkur V. Lamb, 2 Dr. & Sm. 428.
 
 1192 
 
 Part IV. 
 T. 2, Ch. 2. 
 
 Definition. 
 
 Estates tail. 
 
 Estates for 
 lite. 
 
 CHAPTER II. 
 
 OF MEEGER («). 
 
 Meegek is the absorption of tlie less estate into the 
 greater, where two estates meet in the same person, with- 
 out any such estate between them as will prevent them 
 from coalescing. 
 
 Estates tail are not subject to merger ; so that a man may 
 have at the same time, and in his own right, both an estate 
 tail, and the immediate reversion in fee in the same 
 land (h) ; because, the object of the statute De Donis being 
 to render estates unalienable, if they were allowed to merge 
 in the fee simple, tenants in tail might have destroyed them 
 by x^urchasing the fee simple (c). 
 
 If an estate for life, and a greater estate immediately 
 expectant upon it, whether in fee, in tail, or only for life, 
 meet in the same person, the first estate is generally 
 merged. And, for this pm'pose, an estate for a person's 
 own life is considered greater than an estate for another's 
 life, or one for the joint life of liimseK and another (cf). 
 And if an estate in tail or in fee in the same lands 
 descends upon a tenant in tail after possibility of issue 
 extinct, the estate tail after possibility of issue extinct is 
 merged (e). A grant of the reversion to the tenant for 
 life, though it be only conditional, causes an irrecoverable 
 merger ; but when a surrender has been made upon con- 
 dition, an entry for condition broken revives the estate (/). 
 
 («.) The whole of the third volume 
 of Preston's Conveyancing relates to 
 this subject. 
 
 (b) 1 Cruise T. 2, c.l, § 37. 
 
 (c) 1 Cruise T. 2, c. 1, § 38. 
 
 {d) Burton, § 747 ; 1 Cruise T. 3, 
 c. 1, § 14, 15 ; 1 Cruise T. 4, § 9. 
 (e) 1 Cruise T. 4, § 9. 
 (/) Burton, § 764.
 
 OF MERGER. 1193 
 
 Terms of years were anciently very sliort, and hence ^^^"^^^^j 
 they were then, and still are, deemed in the eye of the ^gtaT^T" 
 law of less magnitude than an estate of freehold ; and, y^^^- 
 therefore, if the same person has a term of years and a 
 freehold estate immediately succeeding it, and both in the 
 same right, the term is merged [g). But a term at com- 
 mon law cannot be merged l:)y surrender till the tenant 
 has entered ; for, before entry, there is no reversion in 
 which the term can merge. If, however, the lessee for 
 years enters, and afterwards assigns his estate to another, 
 the assignee may merge the term by surrender before 
 entry ; because, by the entry of the lessee, the possession 
 was severed and divided from the reversion (1i). A term of 
 years will merge in the immediate reversion, though that 
 be a chattel interest, and even of shorter duration than the 
 former {i), because a term in reversion, though for a less 
 number of years, is accounted the higher estate. A court 
 of equity will in some cases relieve against the merger of 
 a term, and make it answer the purposes for which it was 
 created {j). 
 
 If a tenant of an estate by statute, recognisance, or elegit Estates by 
 
 statute, re- 
 acquires the immediate reversion in fee of any part of the coguisance, 
 
 '- -^ ■- or elegit. 
 
 same land, whether by purchase or descent, his former 
 estate in the whole laud is extinguished (h). 
 
 It would seem, 1. That where two estates meet in the Estates in 
 
 autre droit. 
 
 same person in different rights, merger will not take place, 
 where an injury would thereby be occasioned, and where 
 the concurrence of the two estates in the same j)erson is 
 entirely caused by the act of law, as by a descent ; be- 
 cause actus legis nemini facit injuriam. 2. That where two 
 estates meet in the same person in different rights, merger 
 
 {g) Burton, § 897 ; 1 Cruise T. 8, 32, c. 7, s. 13 ; Sugd. Concise View, 
 
 c. 2, § 41 ; Co. Litt. 54 b. 480. 
 
 (A) 1 Cruise T. 8, c. 2, § 41. (j) 1 Cruise T. 8, c. 2, § 42. 
 
 (/) Burton, § 899 ; 4 Cruise T- (i) Burton, § 926.
 
 lli^4 OF MERGER. 
 
 Part IV will not take place, even though the concurrence of the 
 — two estates is caused by the act of the owner of one of 
 
 such estates, if an injury would thereby be occasioned to 
 the owner of or the parties interested in the other estate. 
 Thus, if a woman is tenant for life, with remainder to a 
 man in tail, and they intermarry, the estates after marriage 
 remain distinct (l), because otherwise the wife might be 
 injured. And if the husband is tenant for life, with rever- 
 sion to his wife in fee, there is no merger (m), for that 
 might be an injury to the husband. But if the wife is 
 tenant for life, and the reversion in fee is conveyed to the 
 husband and wife, the estate for life is merged ; for in this 
 case both estates are vested in hu&band and wife : but if 
 the wife survives her husband, she may revive it by 
 expressing her dissent to the conveyance (n). If a man, 
 who is a lessor, intermarries with a woman who is lessee 
 for years, the term is not extinct, but the husband is 
 possessed of the tenn in right of his wife during the 
 coverture ; because he has not done any act expressly 
 to destroy the term, and it is cast upon him by the act 
 of law, which woiild not be allowed to prejudice the wife. 
 So, if a lessee grants the term to the wife of the lessor, it 
 will not merge ; for that would be allowing the lessee to 
 prejudice the husband (o). If a man is seised in right of 
 his wife, and a term is assigned to him, it is not merged ; 
 for that would be an injury to him (j9). And so, if a 
 termor for years marries, and afterwards the inheritance 
 descends on his wife, the term is not merged, for the same 
 reason (q). The husband's term will not merge in the 
 wife's freehold, unless one or the other be acquired by 
 
 (I) Burton, § 754. 37, 30. 
 
 (m) Burton, § 755. (p) 1 Cruise T. 8, c. 2, § 30. 
 
 (n) Burton, § 756. (q) 1 Cruise T. 8, c. 2, s. 32 
 
 (o) Sugd. Concise View, 480; Co. Sugd. Concis>e View, 478. 
 Litt. 338 b ; 1 Cruise T. 8, c. 2, §
 
 OF MERGER. 119^ 
 
 purchase after the marriage, by active and immediate p^k'.iv. 
 
 acquisition. If a husband is possessed of a term of years, 
 
 and the owner of the reversion in fee devises it to the 
 wife, who has issue, the husband, who, in the lifetime of 
 the wife, is tenant by the curtesy initiate, hokls the two 
 estates in different rights, and there is no merger (r). If a 
 man has a term in right of his wife, and purchases the 
 freehokl, the term is not merged, because the wife would 
 thereby be prejudiced (s). If a lessee makes his lessor 
 executor, the term is not merged ; for that would be an 
 injury to the lessee's estate, and might injure the lessor 
 also (t). If a person having a term of years as executor, 
 purchases the inheritance, the term is not merged, because 
 that would prejudice creditors and others who are in- 
 terested in the testator's estate, or, if merged, it is only so 
 far as the executor's own interest is concerned (u). And 
 in consequence of the 3rd section of the Statute of Uses, 
 no term for years or other interest, whereof a person to 
 whom lands are conveyed to uses is possessed in his own 
 right, will be merged or destroyed by such conveyance (x). 
 
 If a person is joint tenant of the first estate, and sole Estates in 
 
 joint 
 
 tenant of the second, his share only will be merged. Nor tenancy. 
 wiU even this partial merger take place, unless the two 
 estates are vested in him by several conveyances (3/). 
 
 On the other hand, if a person is sole owner of the first 
 estate, and joint tenant of the second, his estate wiU be 
 merged either for the whole or a part only of the tene- 
 ment, according to the apj)arent intention with which the 
 two estates were brought together. Thus, if A. and B., 
 
 (r) Burton, § 902 ; Sugd. Concise 1 Cruise T. 8, c. 2, § 34—36 ; 
 
 View, 6, 7 ; Jones v. Daries, 5 Hurl. Burton, § 903. 
 
 & Norm. 766 ; 7 Id. 507. (x) 1 Cniise T. 11, c. 3, § 37 ; 1 
 
 {s) 1 Cruise T. 8, c. 2, § 37, 38. Cruise T. 8, c. 2, § 40; Burton, § 758; 
 
 (t) 1 Cruise T. 8, c. 2, § 39 ; Sugd. Concise View, 480. 
 
 Sugd. Concise View, 480. {y) Burton, § 748,749 ; Co. Litt. 
 
 (u) See Sugd. Concise View, 481 ; 182 b.
 
 1196 
 
 OF MERGEK. 
 
 Part IV. 
 T. 2; Ch. 2, 
 
 Eflfecf-, on 
 
 third 
 
 persons. 
 
 Merger of a 
 charge. 
 
 being joint tenants in fee, make a lease for life to C, and 
 C. afterwards surrenders the tenement to A., this will cause 
 the estate for life to be entirely merged (z). But if C. 
 were to convey his estate to A. by the same means as he 
 might to a stranger, there, the intention being apparently 
 not to destroy the estate, the merger would take place so 
 far only as it must of necessity, that is, for one moiety : in 
 consequence of which, A. would be seised of that moiety of 
 the tenement in fee simple, and of the other moiety for the 
 life of C, with reversion in fee to B. («). 
 
 If the estate which is merged were, in any case, either 
 previously to the transaction which caused the merger or 
 by that transaction, charged with a rent or other incum- 
 brance, or if an estate were created out of it, this charge or 
 derivative estate woidd still subsist as long as the merged 
 estate might have continued if it had not been merged ; for 
 it is a maxim that actus legis nemini facit injuriam (h). 
 
 Where the same person takes under a will a rever- 
 sionary life estate in certain property, and a life annuity 
 charged on the same property, the annuity will not merge, 
 by operation of law, in the life estate, when it falls into 
 possession, where such merger would be injurious to the 
 person entitled thereto (c). And where a tenant for 
 life, or a remainderman in tail, whose estate may be 
 altogether defeated, or a tenant in tail whose estate is 
 subject to an executory devise over, pays off a charge, it 
 will be presumed that he meant to keep it alive, unless 
 there is evidence to the contrary (d). 
 
 Where a tenant in fee or a tenant in tail in possession, 
 whose estate is not subject to an executory limitation 
 over, and who can acquii'e the fee, becomes entitled to a 
 
 (2) Burton, § 750. 
 
 (a) Burton, § 752. 
 
 (b) Burton, § 765 ; 4 Cruise T. 32, 
 c. 7, § 3. 
 
 (e) Byam v. Sutton, 19 Beav. 556. 
 
 (d) Story's Eq. Jur. § 486 ; 2 
 Spence's Eq. Jur. 344, 345 ; Horton 
 V. Smith, 4 K. & J. 624. Supra, 509.
 
 OF MERGER. 1197 
 
 charge upon tlie same estate, the general rule is, that the pabt iv. 
 charge merges, unless it is the intention of the owner to 
 
 keep it alive. This intention need not be expressed. It 
 may be collected from words or acts. And it will be pre- 
 sumed where it would be injurious to him to merge the 
 charge. So that where the merger of the charge w^ould 
 have let in other charges in priority, the Court will presume 
 an intention to keep the charge on foot {c). 
 
 ^Vhere the purchaser or owner of an estate or interest 
 in real or personal property pays off a first incumbrance, 
 or a first incumbrancer takes a conveyance of the equity of 
 redemption, he should take proper steps to keep the first 
 incumbrance on foot for his own benefit ; because in some 
 cases it has been held that if he does not, it merges, so that 
 the next succeeding incumbrance becomes the first charge 
 on the estate or interest (/). 
 
 Where a tenant in tail entitled to a charge on the estate 
 is an infant, the charge is not merged, if he dies under 
 twenty-one, as well upon other grounds, as upon the prin- 
 ciple that until that age he cannot gain the absolute pro- 
 perty in the land (g). 
 
 A vested remainder for years interposed between the what win 
 
 "^ prevent 
 
 freehold and the inheritance, does not prevent their con- merger, 
 solidation (Ji) ; because it is not an intervening ]3ortion 
 of the seisin or ownership, but only confers a possessory 
 right (i). And a fortiori, a mere interesse termini cannot 
 hinder the merger of any estate (J). And yet, if a person 
 
 (e) Coote Mortg. 3rd eel. 395 ; 1 Hem. & Mil. 68. 
 
 Jarm. Wills, 2nd ed. 591 ; 1 Story's (/) Fisher on Mortg. 443—7 ; 
 
 Eq. Jur. § 486 ; 2 Spence's Eq. Jur. Coote on Mortg. 3rd ed. 394 ; 5 
 
 308, 345 ; Hatch v. Skelton, 20 Jarm. & Byth. by Sweet, 454. 
 
 Beav. 453 ; Ch-ice v. Sliav), 10 Plare, (g) Coote Mortg. 3rd ed. 397. 
 
 76; Davis X. Barrett, liBesLV. 54:2 ; (A) Burton, § 762. 
 
 Swinfen v. Su'infen (No. 3), 29 (/) See supra, pp. 143 — 6. 
 
 Beav. 199; Tyrivhitt v. Tyrivhitt, (j) Burton, § 907. 
 32 Beav. 244 ; Sing v. Leslie, 2
 
 1198 OF MERGER, 
 
 pakt IV. has a term for years, and a freehold estate, but there is 
 
 T. 2, Ca. 2. . . 
 
 a second term interposed between them, no merger will 
 
 take place (/;). If any freehold interest by way of con- 
 tingent remainder is interposed between two estates, which 
 in their creation are given to one person, the absolute 
 coalition of them by merger in his hands is prevented ; 
 because otherwise the first estate would be created and 
 destroyed in the same instant, which would be absurd (/). 
 And for the same reason if a person is made tenant for 
 life by will, wdth a contingent remainder to another, and 
 the reversion in fee descends from the testator to his 
 devisee for life, no merger will take place (m). In all cases, 
 liowever, where a contingent remainder is the only obstacle 
 to merger, there is such a coalition between the estates, 
 that, if the second is of inheritance, and the first is in 
 possession, the right of dower and most other incidents of 
 a fee in possession will attach (re). And if two estates, 
 capable of coalition by merger, become, by any act or event 
 subsequent to their creation, vested for the first time in one 
 person, a merger will take place, and by the old law, prior 
 to the stat. 8 & 9 Vict. c. 106, s. 8, an intervening contin- 
 gent remainder was destroyed (o). ] '' *' 
 
 Merger not Merger was never favoured in courts of law, and still 
 
 favoured. " 
 
 less in courts of equity (p). 
 
 (k) Burton, § 898. Executory Interests annexed to 
 
 (0 Burton, § 759. Fearne, § 777 — 780 a ; Egerton v. 
 
 (wi) Burton, § 760. Massey, 3 Com. B. 338 ; and supra, 
 
 (n) Burton, § 761. p. 329. 
 
 . (o) Burton, § 760. See Smith's {p) Co. Litt. 338 b, n. (4).
 
 1199 
 
 CHAPTEE III. 
 
 OF CONVERSION. 
 
 Where property which wears out by effluxion of time partiv. 
 (such as leasehoklsl or property invested on securities, — '- 
 
 Where pro- 
 
 which, though yieldino- a hioh rate of interest, the Court of per'y ^.i^icii 
 Chancery does not adopt, (such as bonds, shares in a °e,\ioua^;y 
 company, or Dutch bonds,) is given to be enjoyed by two pn.'perty'in- 
 or more persons in succession, it is a rule, that in order to certain 
 
 . securities, 
 
 accomplish the object oi the testator, it must be converted sijouuibe 
 
 converted. 
 
 into authorized securities, and the dividends paid to each 
 person in succession, unless the person contesting the 
 application of this rule can show that the will contains 
 some sufficient indication of intention that the property is 
 to be enjoyed in specie. This rule is for the benefit of the 
 persons in remainder. And if reversionary property is 
 made the subject of successive interests, the same rule 
 applies, for the benefit of the first taker {a). As it is 
 often made a point of dispute, whether an intention of 
 enjoyment in specie is sufficiently indicated, it is desirable 
 to exclude all doubt by express words (h). 
 
 (a) Lewin on Trusts, 283, 2nd D. M. & G. 338 ; Boys v. Boys, 28 
 
 ed. ; 2 Spence's Eq. Jur. 42, 552 — Beav. 436 ; Eowe v. Bowe, 29 Beav. 
 
 557 ; 2 Rop. Leg. by White, 1343 ; 276. 
 
 1 Jarm. Wills, 2nd ed. 516 — 519 ; (6) For instances, see Lichfield v. 
 Morgan v. Morr/an, 14 Beav. 82, 83 ; Baker, 2 Beav. 481 ; Goodenow/h v. 
 Sutherland v. Coole, 1 Coll. 498 ; Tremamondo, 2 Beav. 512 ; Picker- 
 Johnson V. Johnson, 2 Coll. 441 ; ing v. Pickerinrj, 2 Beav. 31 ; Pickup 
 Chambers v. Chambers, 15 Sim. 183 ; v. Atkinson, 4 Hare, 624 ; Blann v. 
 Pickup V. Atkinson, 4 Hare, 624 ; Bell, 5 De G. & S. 658 ; 2 D. M. & 
 Thornton v. Ellis, 15 Beav. 193; G. 775 ; Crowe v. Cm/onZ, 17 Beav. 
 Blann v. Bell, 5 De G. & S. 658 ; 2 507 ; Hood v. Clapham, 19 Beav. 
 D. M. & G. 775 ; Bate v. Hooper, 5 90 ; Jehb v. Tacjivell, 20 Beav. 84 ;
 
 1200 
 
 OF CONVERSION. 
 
 Part IV. 
 T. 2, Ch. 3. 
 
 Land directed, articled, contracted, conveyed, or devised 
 to he sold, and turned into money, is reputed as money ; 
 and, as sucli, will not pass under a devise of land, but will 
 pass under a residuary bequest, and, in case of intestacy, 
 Avill go to the personal representatives. And money 
 directed, articled, covenanted, assigned, or bequeathed to be 
 invested in land, has in equity many of the qualities of 
 real estate, and in particular is descendible and devisable 
 as such (c). But a mere direction that real estate is to be 
 considered as personal or vice versa, is insufficient to work 
 a conversion [d). 
 
 Where the specific execution of a contract respecting 
 land would have been decreed between the parties, it will 
 be decreed between all persons claiming under them in 
 privity of estate, representation, or title, unless other con- 
 trolling equities have intervened (c). And where the 
 heir of the purchaser came into equity for a specific per- 
 formance, he might in general require the purchase-money 
 to be paid out of the personal estate of the purchaser in the 
 hands of his personal representatives (/). But by the stat. 
 17 & 18 Vict. c. 113, and the stat. 30 & 31 Vict. c. 69, this 
 seems to be now altered. 
 
 If upon the death of the vendor a title cannot be 
 made, or there was not a perfect contract, or the Court 
 thinks that the contract ought not to be executed, there 
 is no conversion of real estate into personal ; and therefore 
 the estate will go to tlie heir-at-law of the vendor. And 
 
 Wearing v. Wearivff, 23 Beav. 99 
 Skirving v. Williams, 24 Beav. 275 
 Holgate v. Jennings, 24 Beav. 623 
 Llewellyn''s Trixst, 29 Beav. 171 
 VacMl V. Roherts, 32 Beav. 140 
 Green v. Britten, 1 D. J. & S. 649 
 Broion v. GcUatley, L. K. 2 Cli. Ap. 
 751. 
 
 (c) Story's Eq. Jur. 788-790, 
 1211 a ; 2 Spcncc's Eq. Jur. 256 — 
 
 258, 264 ; 1 Jarm. Wills, 2nd ed. 
 493—4 ; 1 Lead. Cas. Eq. 666, 672 ; 
 Barham v. Earl of Clarendon, 10 
 Hare, 126 ; Dixie v. Wright, 32 
 Beav. 662. 
 
 {d) 1 Jarm. Wills, 2nd ed. 495. 
 
 (e) Story's Eq. Jur. § 788 ; see 2 
 SpcDce's Eq. Jur. 268—9. 
 
 (/) Story's Eq. Jur. § 790.
 
 OF CONVERSION. 1201 
 
 SO if upon the death of the purchaser a title cannot be made, /**^^^j 
 
 or there was not a perfect contract, his heir or devisee will 
 
 not be entitled to the money agreed to be paid for the 
 
 lands, or to have any other estate bought for him (g). 
 
 And where the conversion has not taken place, and the Election to 
 
 take pro- 
 interest has vested absolutely, wliether in land or money, P^'^'y '" '^" 
 
 •' ' -J ' unconverted 
 
 in one person, he may elect to take the property in its ^'^^'"^ 
 unconverted state, and any act or declaration of his un- 
 equivocally indicating an option in which character he 
 takes the property, will determine the succession as between 
 his real and personal representatives (h). But where it has 
 vested in two or more persons, one cannot elect without the 
 others or other (i). 
 
 A strano'er (such as the Crown or the lord claimino- in a stranger 
 
 . . . . . cannot 
 
 default of heirs) is not entitled to call for a conversion (/). enforce 
 
 ' \J / conversion. 
 
 In general, courts of equitv do not incline to chano-e the ciearinten- 
 
 . 1 ^ o tion of oou- 
 
 quality of the property as the testator or intestate has left version 
 
 •^ '^ i J. ^ neceasaiy. 
 
 it, unless there is some clear act or intention by which he 
 has unequivocally fixed upon it throughout a definite and 
 different character (A'). 
 
 Where the intention in marriage articles is plain, that consent to 
 
 '■or approval 
 
 a conversion should be made, but consents of the parties o.^coi'ver- 
 
 ' i sion. 
 
 interested to the actual purchase cannot be obtained, as 
 required by the instrument, by reason of their deaths or 
 for some other cause, there, if any convenient purchase 
 could have been obtained, the Court will take upon itself 
 to judge wliether such consents ought to have been given, 
 and the conversion being the paramount object, it will be 
 considered as made ; else the parties to consent would 
 have the option of determining whether the property should 
 
 {g) Sugd. Concise View, 134 ; Be 1 Jam. Wills, 2nd ed. 507. 
 Battersea Pi(7-k Acts, Re Arnold, 52 (i) Hollowaij v. RadcUffe, 23 
 
 Beav. 591. Beav. 163. 
 
 (A) Cookson v. Cookson,12 C\. k (j) 2 Spence's Eq. Jur. 266, 
 
 Fin. 121 ; Story's Eq. Jur. § 793, (k) Story's Eq. Jur. § 1214. 
 
 1213 ; 2 Spence's Eq. Jur. 270, 271 ;
 
 1202 
 
 OF CONVEKSIOX. 
 
 Part IV. 
 T. 2, Ch.3. 
 
 I'ime 
 
 allowod for 
 conversion. 
 
 Liability 
 to legacy 
 duty coQ- 
 sequent du 
 direolion for 
 conversiou. 
 
 Failure of 
 objects for 
 conversion 
 under a will. 
 
 be real or personal, which, unless it be clearly given to 
 them, will not be permitted. An equitable conversion of 
 land into money or of money into land takes place by 
 force of the direction, notwithstanding the conversion or 
 investment is directed to be made with the approbation of 
 certain parties ; and legatees of legacies out of a property 
 •directed to be converted with the consent in writing of the 
 tenant for life are entitled to their legacies, whether the 
 property be converted or not ; and the residuary legatees 
 of the proceeds are entitled, subject to the legacies, to the 
 estate itself, if not converted (I). 
 
 Where personalty is directed to be converted as soon as 
 conveniently may be, there, as between the executors and 
 the persons interested in the estate, the personalty is to be 
 considered as converted within a year ; that being con- 
 sidered as the time within which, in the generality of cases, 
 it may be converted with ordinary diligence (m). And 
 where a sale of real estate is directed to be made with all 
 convenient speed, twelve months is to be considered as the 
 time within which a sale might reasonably be made, as 
 regards the rights of a person who is to take a beneficial 
 interest on the conversion of the property (?i). 
 
 If not accompanied by a direction to re-invest in land, 
 an absolute direction to sell real estate in any event, by 
 converting it into personalty, renders it liable to the legacy 
 duty, even though the beneficial donees should elect to 
 take it in an unconverted state. But a mere trust for sale 
 for payment of debts, or a discretionary power to sell, does 
 not render the estate liable, at least if it is not sold (o). 
 
 Where, in the events that happen, the contemplated 
 object for which a conversion of land into money or money 
 
 (?) 2 Spence's Eq. Jur. 260,^61. 
 (m) 2 Spence's Eq. Jur. 42, 565, 
 n. (r) ; 1 Jarni. Wills, 2nd ed. 514. 
 ()() Vickcrs v. Scott, 3 My. & K. 
 
 500, 
 
 (o) 11 Jarm. & Byth. by Sweet, 
 612 (h) ; 2 Spence's Eq. Jur. 267 j 
 1 Jarm. Wills, 2nd ed. 505.
 
 OF rONVi;j;sT()\. 
 
 1203 
 
 into land is directed b}- ^\•ill to bo made, doe.s not exist at /^"h^'s. 
 
 all, the Court will not vary the property from that state in 
 
 \vhieh it was found at the death of the testator : for where 
 the purpose fails, the intention fails Qj). But if any event 
 has happened on which the conversion ought to have taken 
 ]»lace, though the object for the conversion afterwards ma}^ 
 have ceased to exist, or partially fails, the property will be 
 treated as if converted (q). 
 
 Wliere real estate is directed by will to be sold for undisposed- 
 
 of produce 
 
 certain purposes, so much of the real estate or the produce ^^J^^^ «s^=^|° 
 thereof as is not effectually disposed of by the will at 
 the testator's death, from silence, or from the invalidity of 
 the testamentary disposition, or from the contingency not 
 happening on which it was to take effect, or from suli- 
 sequent lapse, ^^■ill not go to the next of kin or to a 
 residuary legatee, but will result to the heir, unless the 
 testator has sufficiently declared his intention that the 
 produce of the real estate should be deemed personalty, 
 whether such purpose is to be effected or not: and the 
 interest thus undisposed of results as part of the old use, 
 and descends as realty to the heir, in his character of 
 heir, if the sale was unnecessary, but results to him as 
 personalty, if the sale was necessary (/•). If the testator 
 directs expressly or by necessary implication that the pro- 
 ceeds of the real estate shall be considered as having been 
 converted into personalty before his death ; and a fortiori 
 if he directs that it shall be treated as personal estate for 
 every purpose, whether disposed of by his will or not, and 
 
 ip) 2 Spence'sEq. Jur. 234, 261 ; roydx. Smithson, 1 Lead. Cas. Eq. 
 
 Buchanan v. Harrison, 1 Johns. & 2nd ed. 690 et seq. ; Taylor v. 
 
 Hem. 662, 673. Taylor, 3 D. M. & G. 190 ; Robinson 
 
 (q) See 2 Spence's Eq. Jur. 262 ; v. The Governors of the London 
 
 Bayster v. Fackcrell, 26 Beav. 471 ; Hosxntal, 10 Hare, 19 ; Buchanan 
 
 Wall V. Coleshead, 2 D. & J. 683 ; v. Harrison, 1 Johns. & Hem. 662, 
 
 Wilson V. Coles, 28 Beav. 215. 673; 1 Jarm. Wills, 2nd ed. 526— 
 
 (r) 2 Spence's Eq. Jur. 233 ; 1 9 ; 1 Lead. Cas. Eq. 704—5. 
 Rop. Leg. by White, 517, 533 ; Adc-
 
 1204 
 
 OF CONVEllSION. 
 
 tX^c^b^'s. ^vliether as regards legatees or next of kin, such a direction 
 operates to give tlio next of kin, as against the heir, any 
 portion of the proceeds tliat may lapse or not be effectually 
 disposed of (s). But A\']iere it is possible to construe words 
 of exclusion of the heir, or words expressive of an intention 
 that the property should be considered as personal estate, 
 as merely expressive of an intention that there should be 
 a conversion for the purposes of the ^^■ill, or that the ex- 
 clusion of the heir was only intended for the accomplish- 
 ment of the purposes of the will, and there is any purpose, 
 however limited, as payment of costs, for which the con- 
 version may have been directed, the heir will take, and not 
 the next of kin. And no words, however strong, expressive 
 of an intention to exclude the heir, Avill be sufficient for 
 that purpose, unless there is a gift to the next of kin, 
 either l\y express words or by plain implication. Hence a 
 mere direction that the proceeds shall be deemed part of 
 the personal estate, or a reference to a mixed fund by the 
 name of personal estate, or even a direction that the ]oro- 
 ceeds shall be " considered to all intents and purposes pari, 
 of the personal estate," will not be sufficient to give the 
 surplus of the real estate to the next of Icin. And it was 
 even held that the heir took, notwithstanding a declaration 
 that the trustees should stand possessed of the proceeds as 
 " a fund of personal and not of real estate," followed by the 
 words " for which purpose I declare th-at such proceeds or 
 any part thereof shall not in any cNcnt lapse or result for 
 the benefit of my heir at law " {t). If, however, there 
 appears to have been no particular motive for changing 
 the nfi,ture of the real fund, and the testator has declared 
 
 (s) 2 Spcucc's Eq. Jur. 237 ; 1 Warren, IG Sim. 124 ; Taylor v. 
 
 Eop. Leg. by White, 517. Tcnjlor, 3 D. M. & G. 190 ; RoUnson 
 
 {t) Sec 2 Spence's Eq. Jur. 237 — \. Governors of London Hospital, 10 
 
 8 ; 1 Jarrn. Wills, 2nd cd. 530—1 ; Hare, 10 ; Fitch v. Webber, 6 Hare, 
 
 ] Lead. Cas. Eq. 706—7 ; Johnson 14,'(. 
 V. Woods, 2 Bcav. 409 ; Flint v.
 
 OF CONVERSION, 1205 
 
 or shown an intent that he meant to dispose of his real as „T^^''J'^^- 
 
 '- T. 2, Ch. 3. 
 
 ])ersonal estate, then the land will pass under a residuary 
 
 personal bequest as personal estate (u). If a testator 
 converts his real estate for all the purposes of his will, so 
 as to affect the character of the property as between the 
 real and personal representatives of persons taking under 
 the Avil], that will not prevent the heir from taking by way 
 of resulting trust any part which is undisposed of, or not 
 effectually disposed of; as where it is the subject of limita- 
 tions which are too remote («). But what he so takes will 
 vest in him as personal estate (?/), unless the other j^arts 
 are devoted to the payment of charges, and he chooses to 
 [):iy them off, and thereby ])revent a sale, and take the 
 estate (z). 1'lie question whether the surplus proceeds of 
 tlie trust ])ro]:)erty jjelong to the real or personal repre- 
 sentative, is not affected by the state, whether of realty or 
 })ersonalty, in which such surplus is found, although the 
 state of the jn'operty might affect the character in which 
 such surplus would go to one or the other of such represen- 
 tatives («). 
 
 Where real estate is directed to be corn-erted by deed, uudisposed- 
 
 of produce 
 
 even though not till after the death of the owner, there is of real estate 
 
 ° ' under a 
 
 a constructive conversion from the delivery of the deed, ^'^^'^■ 
 not only for the imrposes of the deed, Ijut " out and out," 
 so as to cause any surplus that may not be effectually 
 disposed of by the deed to result to the grantor, settlor, or 
 mortgagor, as personalty, and thereby preclude in equity 
 the title of his heir from ever arising ; unless, indeed, the 
 whole of the purposes of conversion fail from the moment 
 of the execution of the deed ; in which case the entire 
 
 (;/) 1 Eop. Leg. by White, 523, Bitrlcjj v. Evcl>/n, IQ Sim. 290. 
 537. (z) 2 Spencc's Eq. Jur. 234. 
 
 (x) 2 Spencc's Eq. Jur. 234 ; (a) Griffiths v. Rickctts, 7 Hare, 
 
 Bvrlcy v. Evelyn, 16 Sim. 290. 290. 
 
 [y) 2 Spcnce's Eq. Jur. 2-12 ; 
 
 K R 2
 
 1206 
 
 OF (■!)>; vi;i;,siox. 
 
 Part IV. 
 T. 2, Ch. I 
 
 Undisposed- 
 of produce 
 lit ifjil estate 
 uucler an 
 order of the 
 f'ourt of 
 Chancery. 
 
 Undisposcd- 
 of part of 
 mixed fuud. 
 
 ])i'operty results to liiin as realty, as if no conversion had 
 ever been directed (h). 
 
 The same rule, for the same reason, would seem to 
 apply to a sale of real estate under an order of the Court of 
 Chancery, on the application and in the lifetime of the 
 owner : for there a constructive conversion Avould take 
 place from the date of the order. But where the order 
 is oidy for a sale of a part, or of so much as may be 
 necessary, or the application for a sale is not made by the 
 owner of the realty, but is made against his will, or he 
 merely acquiesces in it, there, although the estate be all 
 converted, any surplus will belong to the heir at law ; for 
 the conversion Avill only be regarded as constructively co- 
 extensive with the purposes of the suit or proceeding (c). 
 
 Where real estate is not made a subsidiary fund, but a 
 testator creates from real and personal estate a mixed or 
 general fund, and directs the whole of that fund to be 
 applied for certain purposes, as for the payment of debts 
 and legacies, he does in effect direct that the real and 
 personal estates which have been converted into that fund, 
 shall answer the stated purposes pro rata, according to 
 their lespectiA'e values. If any of those purposes fail, then 
 the part of the fund which upon this principle would other- 
 M'ise have been applicable to those purposes, is undisposed 
 of. So far as this part of the fund has been composed 
 of real estate, the heir is to have the benefit of it, as so 
 much real estate undisposefl of, whether the estate be even- 
 tually sold or not ; and so far as this part of the fund has 
 been com])osed of personal estate, it is personal estate un- 
 disposed of, for the benefit of the next of kin ((/). 
 
 (6) Biggs v. Andrews, 5 Sim. 424 ; 
 Griffiths V. Ricketts, 7 Hare, 299 ; 
 Clark V. Franklin, 4 K. & J. 260 ; 
 Lord Eldon's remarks in Riplfj v. 
 
 Exors. 5th cd. 586, n. (c). 
 
 ((•) Corhe v. Dcaley, 22 Beav. 196 ; 
 Jcnivjv. Preston, 13 Sim. 356. 
 
 (d) 2 Spcncc's Eq. Jur. 235 ; 
 
 Watcriuorth , 7 Vcs. ido ; 1 Wms. on Johnson r. Woods, 2 Bear. 409 ;
 
 OF CONVERSION. 1207 
 
 queathed to be laid out in land, the 
 same principle applies as where land is directed to be con- 
 
 Where money is bequeathed to be laid out in land, the part iv. 
 
 Undisposed 
 
 verted into money : the conversion will operate only so far of part of 
 
 money 
 directed to 
 
 as the will disposes of the land into wliich it is to be con- ^e^con- 
 verted ; so that if the land is devised for a limited estate ti,rpn'ciuce^ 
 only, the produce of the fund, or the fund itself, if uncon- 
 verted, beyond the interest so given, will result to the 
 testator's next of kin as personalty, unless it be given aw^ay 
 to some other person (e). Where a testator directs his 
 personal estate to be converted into real estate for certain 
 purposes, some of which fail, there, after the purposes 
 which can take efiect are satisfied, the heir is not entitled 
 to the unconverted personalty as impressed wdtli the cha- 
 racter of realty (/). But if there is a residuary legatee, he 
 is entitled to it. And if it has not been converted, he may 
 elect to take it either as realty or personalty. But if lie 
 dies without indicating his election, it will go to the person 
 or persons entitled to his personal estate {g). 
 
 Whenever a trade partnership purchase real estate for Real estate 
 
 ■*■ _ of a partner- 
 
 the partnership purposes, and with the partnership funds, »h»p- 
 it is, as between the real and personal representatives of 
 the partners, personal estate. But wdiere the land, and not 
 the trade, is the principal object, and the trade is merely 
 ancillary to the beneficial enjoyment of the land, or a part 
 of it, the doctrine will not apply ; so that, if one of the co- 
 owners dies intestate, his share in the land will pass to his 
 heir, and not to his legal personal representative (/^). 
 
 Ackroyd v. Smitlisov, 1 B, C. C. 481. 
 
 .503. (.7) Hereford v. RavenUU, 5 Bear. 
 
 (e) 2 Spence's Eq. Jur. 235 ; 1 51. 
 Jarm. Wills, 2nd eel. 527 ; Reynolds (h) Darhy v. Darhy, 3 Drewiy, 
 
 V. Godlee, 1 Johns. 536, 582. 495, 50C ; Steioard t. Blcikeimy, T^. 
 
 (/) Hereford x. RarenhRl \ Beav. E. Eq. 479 ; 4 Gli. Ap. 603.
 
 1208 
 
 CHAPTER IV. 
 
 OF ELECTION. 
 
 Taet IV. 
 T. 2, Cii. 4. 
 
 Definition. 
 
 Principle 
 election. 
 
 Where elec- 
 tion arises 
 iu equity. 
 
 Election is tlic choosing- between two riglits, ]:ty a person 
 wlio derives one of tlieni under on instniinent in which a 
 clear intention appears that he slionkl not enjoy botli. 
 
 The principle of election is, that no one shall claim under 
 and in opposition to the same instrument. There is a tacit 
 condition annexed to all provisions of this nature, that the 
 person taking do not disturl) the disposition which his 
 benefactor has made {a). 
 
 Election arises in equity in cases where a grantor, or 
 more commonly, a testator, gives away, either knowingly 
 or by mistake, that in which he has no interest, or the 
 whole of that in which another person besides himself has 
 an interest, and iu the same instrument makes a gift to 
 the ov.'ner of the property so given away, or to the person 
 entitled to such interest. In such cases the owner of such 
 property, or the person entitled to such interest, cannot 
 l)oth take the gift and retain his own property or interest ; 
 but if he takes the gift, he must resign his own property 
 or interest. On the other hand, if he should elect to hold 
 his own property or interest, or, as the phrase is, if he 
 should elect against the instrument, he cannot have the 
 gift ; or at least lie cannot have the entire gift without 
 compensating the person whom he has disappointed by 
 electing to take his own property. In such cases, equity, 
 in not suffering the disposition by which the gift is made 
 to enure to the benefit of the person so electing against 
 
 («) 2 Sugd. Poff. 1-14— 5,
 
 OF ELECTIOX. 1209 
 
 iho iii.stnniicnt, will not iviidcM' that disposition inoperative, J^^^Jj^^V 
 
 but will make it tlie means oi" effectuating tliat intention 
 
 of the author of the instrument which such person has 
 frustrated by so electing to retain his own propert}'" or 
 interest : for, equity will treat the gift, or at least a part of 
 it, as a trust in the donee or devisee, the person so electing, 
 for the benefit of the party disappointed by such person's 
 refusing to give up his own property or interest (b). Indeed, 
 the doctrine of election can never be applied where an 
 election is made contrary to the instrument, unless the 
 interest that would pass by it is of that freely disposable 
 nature, that it can be laid hold of to compensate the party 
 who suffers by the exercise of such election against the 
 instrument. Thus, where there is a fund subject to the Election by 
 
 '' an appom- 
 
 appointment of a father amongst his children, and the *'^®- 
 father appoints a part to some of his children, and the 
 other part to persons not objects of the power, any child 
 who is an appointee may both take his appointed share, 
 and also claim his share of the improperly aj^pointed por- 
 tion, as in default of appointment. But if there is a powei' 
 to appoint to two, and the donee of the power appoints to 
 one only, and gives a legacy to the other, he cannot claim 
 the legacy and also dispute the validity of the appoint- 
 ment (c). So where a man, having a power to appoint to A. 
 a fund ^^'hich in default of appointment is to be given to B., 
 exercises the power in favour of C, and gives other lienefits 
 
 (i) See Story's Eq. Jur. § 1077, t. FUzsimons, 28 Beav. 417 ; Hony- 
 
 note, 1081—1084, 1086, 1088, 1089, wood v. Foster (No. 2), 30 Bear. 14 ; 
 
 1093 ; 2 Spence's Eq. Jur. 586, 587, Iloiodls v. Jenkins, 2 Johns. & Hem. 
 
 588,601—004 ; 2 Sugd. Pow. 155 ; 706 ; Whitley v. Whitley, 31 Beav. 
 
 1 Jarm. Wills, 2nd ed. 371—3 ; 173 ; 1 D. J. & S. 617; Miller v. 
 
 Sioan V. Holmes, 19 Beav. 471; Thurgood, o3 Hcav. 496 ; Grissellx. 
 
 Wintour v. Clifton, 21 Beav. 447 ; Swinhoe, L. K. 7 Eq. 291. 
 
 8 D, M. & G. 641 ; Stephens v. (c) 2 Spence's Eq. Jur. 590 ; 2 
 
 Stephens, 3 Drewry, 697 ; Asticke v. Sugd. Pow. 148 — 9 ; lie Fowlers 
 
 Peters, 4 K. & J. 437 ; Grosvcnor Trusts, 27 Beav. 362. 
 V. I>urston,25 Beav. 97 ; Fitzsimons
 
 1210 
 
 OF ELECTION. 
 
 Part IV. 
 T. 2, Ch. 4. 
 
 Words uot 
 creating a 
 case of 
 election. 
 
 No election 
 
 to B., although the execution is merely void, yet if B. will 
 accept the gifts to him, he must convey the estate to C. 
 according to the appointment. Again, where a father 
 authorised his wife to execute a power vested in himself, 
 and gave the objects of the power other benefits, although 
 the father could not delegate the power, yet it w^as held, 
 that any person who should defeat what the mother had done 
 by what was in truth no power, should have no benefit 
 under the father's Avill (r/). But words of mere desire, 
 expectation, or wish, do not create a case of election (c). 
 And hence, where a testator bequeaths his oami property 
 to persons who are objects of a power, and also appoints to 
 them the fund over which he has the power of appoint- 
 ment, in terms which per se would give the absolute 
 interest, but then adds a request that they would leave the 
 appointed fund to their children, who are not objects of the 
 power, the precatory words do not create a case of election 
 either to accept a limited appointment, leaving the re- 
 mainder for their children, or else to relinquish the legacies, 
 Ijut the words relating to the appointed fund amount to 
 an absolute appointment to the objects of the power, 
 with a condition inconsistent with the power, which is 
 simply void ; [ind therefore they are entitled to both 
 funds (/). 
 
 Prima facie, it is not to be supposed, nor must it be 
 proved by extrinsic evidence, that a testator disposes of 
 that which is not his own, so as to raise a case of election. 
 It must appear on the will itself, by plain demonstration 
 or by necessary implication {g). 
 
 ^Vliere persons are named as residuary appointees, and 
 
 {d) 2 Sugd. Pow. 148—9. 
 
 (e) Lanrjslov) v. Langsloic, 21 
 Beav. 552. 
 
 (/) Blacket V. Lamh, 14 Beav, 
 482. See supra, p. 758. 
 
 {(j) 2 Sp. 592, 593, 595 ; Wintotir 
 V. Clifton, 21 Beav. 447 ; 8 D. M. 
 & G. 641 ; 3fiUer v. Thm-rjnod, 33 
 Beav. 49(5.
 
 between 
 gifts under 
 same will. 
 
 OF ELECTTOX. 1211 
 
 also as legatees, in the same will, they are not obliged to Ji^V^-, 
 elect between the residuary appointment and their legacies, 
 so as to give up their residuary appointment or their legacies, 
 in order to give effect to, or compensate the persons claim- 
 ing under, a particular appointment void for remoteness ; 
 for they claim each gift under the will itself, and neither 
 of them is dehors the will or adverse to it (h). 
 
 The doctrine of election applies even where, in a will ^f^t^g'^**'"" 
 not within the Wills Act (1 Vict. c. 26), a devise of an t'h^^l^^ 
 estate is made to the testator's heir, and the heir, accord- 
 ing to the old rule, takes such estate by descent, and not 
 by purchase, and, by the same will, the testator devises to 
 another person an estate belonging to the heir, over which 
 the testator has no disposing power (z). 
 
 The same doctrine of election also applies in cases where 
 it was apparently a testator's intention to dispose of all 
 the property he might have at the time of his death, and 
 the heir, who is a devisee under the will, claims property 
 which was purchased subsequently to the will, and which, 
 consequently, under the old law, did not pass by the will, 
 but w^as intended to pass to another person under the 
 general words of the will (j). But wdiere a w^ill, made 
 before the year 1838, is void as a devise of land, either 
 from the incapacity of the devisor or from its not being 
 duly executed, and is good as to personal estate, the heir 
 may take a legacy under it, without relinquishing his 
 right by descent ; because, as to the land, there is in fact 
 no disposition of it, and consequently no election (Jc). But 
 although the will were not duly executed according to the 
 
 {h) WoUaston v. Klnr/, L. li. S (j) Story's Eq. Jur. § 1094; G 
 
 Eq. 165. Cruise T. 38, c. 2, § 28 j Sugd. Con- 
 
 (i) Story's Eq. Jur. § 1094 ; 2 cise View, 127 ; Schroder v. Schro- 
 
 Spence's Eq. Jur. 589 ; 2 Kop. Leg. der, 1 Kay, 578. 
 
 by White, 1595 ; Schroder v. Schro- {I) 6 Cruise T. 38, e. 2, § 26 ; 2 
 
 der, 1 Kay, 578 ; Ilaacc v. TrcKhlt, Eop. Leg. by'^liite, 1595 ; 1 Jarm. 
 
 2 Johns. & Hem. 210. Wills, 2nd cd. 374.
 
 1212 
 
 OF KI.Ef'TION. 
 
 Part IV. 
 T. 2, Ch. 4. 
 
 It applies 
 to every kind 
 of interest. 
 
 It is not 
 raised by 
 subsequent 
 events. 
 
 To what 
 estput a 
 person 
 electing 
 against a 
 will forfeits 
 the devise 
 or bequest. 
 
 Where pro- 
 perty ot the 
 person elect- 
 ing is mort- 
 gaged. 
 
 Election 
 as to one 
 benefit. 
 
 statuto, still if it contained an express t;ondition that any 
 legatee who might not comply with its terms should forfeit 
 all benefit under it, there the heir would, by force of the 
 condition, be obliged to make his election (/). 
 
 The doctrine is equally applied to all interests, whether 
 immediate or remote, vested or contingent, of value or of 
 no value, and whether in real or personal estate (m). 
 
 It has been held that the doctrine of election does not 
 apply to an instrument which was valid at the time of 
 execution as to all the property comprised in it, but was 
 considered inoperative as to some of the property by sub- 
 sequent events («). 
 
 According to the preponderance of authority and prin- 
 ciple, a person electing against a will does not forfeit the 
 whole of the benefit intended for him, where the value 
 of the gift exceeds that of his own property or interest ; 
 but he is only obliged to compensate in value the claimant 
 whom he has disappointed by his refusing to give up his 
 own property or interest (o). For, a Court of equity 
 interfering to control his legal rights, for the purpose of 
 executing the intention of the testator, is justified in its 
 interference so far only as that purpose requires Q9). 
 
 If the party has mortgaged the interest he takes in his 
 own right, and then is suffered to elect to take under the 
 will, the mortgage must be satisfied out of the interest 
 provided for him by the will (q). 
 
 A person may decline one benefit given him by a will, 
 such as a legacy charged with a portion, without being 
 precluded from taking another benefit by the same will ; 
 
 {I) 2 Eop. Leg. by White, 1595 ; 
 1 Jarm. Wills, 2nd ed. 375. 
 
 (m) Story's Eq. Jur. § 1096 ; 2 
 Spencc's Eq. Jur. 588 ; 1 Jarm. 
 Wills, 2nd ed. 372. 
 
 (n) BlaillocJc Y. Gr indie, L. R. 7 
 
 Eq, 215. 
 
 (o) Story's Eq. Jur. § 3085 ; 2 
 Spence'a Eq. Jur. COl— G04 ; 1 
 Jarm. Wills, 2nd ed. 372—3. 
 
 (j)) Story's Eq. Jur. § 1085, note. 
 
 {q) 2 Sugd. Pow. 151.
 
 OF KLECTIOX. " 12 in 
 
 unless it is fairly inforal)lo, from the nature of the dif- „partiv. 
 
 T. 2, Cn. 4. 
 
 ferent benefits, that he should either take all or reject all (r). 
 
 Election may also arise where a j^erson claims both SrcaHoofa 
 
 under and in opposition to a settlement (s). settlement. 
 
 The ixirty is not bound to make an election till all Election 
 
 nee;l uot be 
 
 the circumstances are known. And if he should make a jvj'JJl^^ilpe 
 choice in ignorance of the real state of the funds, or under stauces!"'' 
 a misconception of the extent of the claims on the fund 
 elected by him, it will not be conclusive on him. xA.nd he 
 is entitled, in order to make an election, to maintain a 
 bill in equity for a discovery, and to have all the accounts 
 taken, to ascertain the real state of the fund (/). 
 
 An election inay be presumed from a lonn; acquiescence, Election 
 
 •■' ^ o J. presumed. 
 
 or from other circumstances {u). Eemaining in possession 
 of two estates held under titles not consistent with each 
 other, affords no conclusive proof of the kind {x). The 
 doctrine of election is not of the nature of a positive rule 
 of law which a person is bound to knoM^ And there- 
 fore, in order to infer an election, it is necessary to show 
 that the person who ought to elect was aware of the 
 doctrine (y). 
 
 The doctrine of election is not arjiilied in the case of No election 
 
 in the case 
 
 creditors. They may take the benefit of a devise for pay- of creditors, 
 ment of debts, and also enforce their legal claim against 
 other funds disposed of by the will ; for a creditor claims 
 not as a mere volunteer, but for a valuable consideration, 
 and ex debito justitins (z). 
 
 {)•) Story's Eq. Jur. § 1081 ; see Beav. 447. 
 
 2 Spence's Eq. Jur. 591. («) Story's Eq. Jur. § 1097 ; 2 
 
 is) Anderson \. AlhoU, 23 Bcav. Spence's Eq. Jur. 598— GOO ; 2 
 
 457; Moslaj v. Ward, 29 Beav. Sugd. Pow. 154; Worthinr/tou v. 
 
 407 ; Broiai \. Brovni, L. R. 2 Eq. Wigginton, 20 Beav. 67. 
 
 485. {x) Spread v. Morgan, 11 H. L. 
 
 (0 Story's Eq. Jur. § 1098 ; 2 Cas. 588. 
 
 Spence's Eq. Jur. 598; 2 Sugd. {y) Spread y. Morgan, 11 H. L. 
 
 Pow. 154 ; 2 Kop. Leg. by White, Cas. 588. 
 
 1591—2 ; Wintour v. CUfton, 21 (.-) Story's Eq. Jur. g 1092 ; 2
 
 1214 
 
 OF ELF.CTIOX. 
 
 Part IV. 
 T. 2, Ch. 4. 
 
 Mistake 
 as to 
 amount 
 of another' .s 
 interest. 
 
 Disability. 
 
 Persons 
 Laving 
 separate 
 rights of 
 election as 
 next of kin 
 of persons 
 who died 
 without 
 eleetiug. 
 
 AVhcre a testator gives one child a much larger property, 
 under the mistaken impression that such child did not 
 take under the testator's marriage settlement, he is not 
 bound to elect between his interest under the settlement 
 and the gift by will («). 
 
 Where the person bound to elect labours under any dis- 
 ability, as infancy or coverture, the Court will consider 
 whether it will be most beneficial for him to take under or 
 against the will or deed, and Avill decree accordingly (h). 
 
 Where a person who had a right of election, dies 
 intestate, without having exercised it, each of his or her 
 next of kin has a separate right of election ; so that neither 
 the election of the majority nor of the heir and adminis- 
 trator will bind the others (c). 
 
 Spence's Eq. Jur. 592 ; 1 Jarm. 
 Wills, 2nd ed. 377. 
 
 (a) Box V, Barrett, L. K. 3 Eq. 
 244. 
 
 to election between dower or free 
 bencli, and benefits given by will, 
 see supra, pp. 206 — 7. 
 
 ((■) Fytche v. Fijtche, L. R. 7 Eq. 
 
 {h) 2 Spence'8 Eq. Jur. 587. As 494.
 
 Definition. 
 
 1215 
 
 CHAPTEi; V. 
 
 OF SATISFACTIOX (^0- 
 
 Satisfaction may be defined to be, tlie makiiic; of a taetiv. 
 
 'J'. 2 Ch. 5 
 
 donation witli the express or implied intention that it shall 
 be taken as an extinguishment of some claim which the 
 donee has upon the donor (J)). 
 
 Satisfaction imyjlies that something has been done in piffercncc 
 
 ■^ " between 
 
 lieu of tliat which was contracted or intended to be done. and^p^Ji""" 
 
 But performance implies that the identical act which the ^°'"'°^"'=''- 
 party contracted to do, has been done (c). 
 
 Equitalile questions of satisfaction usually arise in three ^vhel■c 
 
 satisfaction 
 
 classes of cases : — •'^''''^f^s. 
 
 I. In cases of portions secured by a marriage settle- 
 ment. 
 
 II. In cases of portions given by a will, and an ad- 
 vancement of a donee afterwards in the testator's life- 
 time. 
 
 III. In cases of legacies to creditors or debtors (cl). 
 
 It is advisable to observe in this place, with reference to satisfaction 
 
 resting on 
 
 all these classes of cases, that where the satisfaction is a presump- 
 
 ' tion may be 
 
 matter of presumption, that presumption may be rebutted '■ei»i"ed. 
 either by intrinsic evidence derived from the will itself, or 
 by extrinsic evidence, as by declarations of the testator or 
 written papers (c). 
 
 I. "Where a portion or provision is secured to a child i. as to 
 
 ■*- portions 
 
 (a) This chapter is almost entirely Ward, 22 Beav. 347. 
 
 taken from the writer's Manual of (c) 2 Rop. Leg. by White, 1109. 
 
 Equity Jurisprudence, 9th ed. ; but (d) Story's Eq. Jur. § 1109. 
 
 with the addition of references to (e) Story's Eq. Jur. § 1102; 2 
 
 Roper's Legacies. Spence's Eq. Jur. 441 — 445 ; 1 Rop. 
 
 (b) See Story's Eq. Jur. § 1099— Leg. by "White, 391 ; 1 Jami. 'VVills, 
 1101, 1106, and infra; Samuel v. 2nd cd, 343.
 
 1216 OF SATISFACTIOX. 
 
 Tart IV. ]jy a maiiiage settlement or otherwise, and the parent or 
 
 person standing? in loco iDarentis — that is, a person mean- 
 secured by ox X 
 
 settlement, i^o- to stand in the place of a parent as regards pro^'iding 
 for a relation's child — afterwards by will gives the same 
 child a legacy, whether particular or residuary, without 
 expressly declaring it to be in satisfaction of such portion 
 or proA'ision, in such case, if the legacy is suljstantially the 
 same in its value, in its nature, in time of payment, in 
 certainty, and in benefit, with the portion or provision, and 
 if it is not given for a different purpose, it will, in the 
 absence of evidence to the contrary, lie deemed a full satis- 
 faction, as the presumption is against double portions. If 
 the legacy is less in amount than the portion or provision, 
 or if is payable at a different period, then (looking to the 
 ■weight of authority) it may lie deemed a satisfaction 
 pro tanto, or in full, according to the circumstances (/). 
 A testamentary provision has been considered an advance- 
 ment in the lifetime of the parent, in full or part satisfaction 
 of the portion provided by a settlement which contains 
 a declaration that advancement by the parent in his life- 
 time shall be considered in full or part satisfaction, unless 
 the contrary is expressly declared in writing ([/). AVliere, on 
 a covenant to take eflect on the death of the settlor, a 
 ])ortion is settled on the husband for life, and then 
 on his wife and children, and an absolute gift of other 
 property is afterwards made by the settlor by A\'ill in 
 favour of the husband, it may be a satisfaction of the 
 
 (/) Story'sEq.Jur.§ 1109, 1110, 2 Hem. & Mil. 149; D. J. & S. 
 
 1103,1104; 2 Spcnce'sEq. Jur. 427 -336; S. C. nom. Chichester v. Co- 
 
 —430, 432, 433, 438—440; Lady ventnj, L. R. 2 Ap. Ser. (H. L.) 72 ; 
 
 E. Tlnjnne v. Earl of Glenr/all, 2 H. Glover v. Hartcup, 34 Beav. 74 ; 
 
 L. Cas. 153 ; 2 Rop. Leg. by White, Camplell v. Camphell, L. R. 1 Eq. 
 
 1071; Sir /. Romilbj, M. E, 1.5 383; Parjct v. Orenfell, L. R. 6 
 
 Ecav. 572 ; Pinchin v. Simmn, 30 Eq. 7. 
 
 Bcav. 119; Charlton v. West, SO [g) 2 Kop. Leg. by White, 1098. 
 
 Bear. 124 ; Coventry] v. Chichester,
 
 OF SATISFACTIOX. 1217 
 
 husband's life interest under the settlement, but not of the J^rt iv. 
 
 T. 2, Ch. S. 
 
 interest of the wife and children (/?). 
 
 11. AVheve ;i ])arent or other i)ersou standiuL,^ in loco ii. As to 
 
 , , "" , portions left 
 
 parentis bequeaths to his own oi" to his relation's child a bywui. 
 legacy, whether particular or residuary, and afterwards, by 
 an act inter vivos, makes a provision for the same child, of 
 ccjual or greater amount, of equal certainty, aud substan- 
 tially the same in kind and in degree of benefit, without 
 expressing it to be in lieu of the legacy, or for otiier 
 oluects than those for Avhich the legacy A\'as given, — in 
 such case, in the aljsence of evidence to the contrary, it 
 wiU be deemed a satisfaction or ademption of the legacy. 
 And if the provision inter vi^'os is less than the legacy, it 
 M'iU be deemed an ademption pro tanto (i). And the con- 
 iirmation of a will by a codicil does not revi\T a legacy 
 adeemed by an act inter vivos in the interval between the 
 will and the codicil (J). 
 
 In the case of a provision by will, foUo^-ed by a 
 provision by deed, the first lieing revocalile, there is no 
 difficulty in the way of the second provision taking effect 
 in lieu of tlie first; and no election on the part of the 
 ])erson to be iKuiefited is rccpiired. And if the second 
 ])rovision is c<mstrued to be substitutional, it is properly 
 termed an ademption. 
 
 On the other hand, in the case of a provision Ijy deed, 
 followed by a provision by will, the first being not 
 revocable, and actual rights being conferred thereby, it is 
 
 (/() McCarorjlier v. ^Mieldon, L. E. 95 ; Eecldon v. Barton, 27 Eear. 
 
 3 Eq. 236. 99 ; Montcfiore v. Guedalla, 1 D. F. 
 
 (i) Story's Eq. Jur. § 1111, and & J. 93 ; Watson t. Watson, 33 
 
 note, and 1112, 1113, 1115, 1103— Bcav. 575 ; Phillips v. Phillips, 34 
 
 1105 ; 2 Spence's Eq. Jur. 429, 432 Eeav. 19; Dawson v. Davson, L. E. 
 
 —435, 43S— 440 ; 1 Eop. Leg. by 4 Eq. 504; Ncvinv. Drysdalc, L. E. 
 
 White, 375 — 379 ; Hopv:ood\. Hop- 4 Eq. 517. 
 
 wood, 22 Bear. 4S8 ; 7 H. L. Cas. (j ) Monta/jue v. Jfonfajvc, 15 
 
 728 ; Sckojleld v. Heap, '11 Bear. Bcav. 565.
 
 1218 OF S.VTLSFACTION. 
 
 Part IV. morc iiatunil iji one respect to reii'ui'd the second in'ovisioii 
 
 T. 2, Ch. 6. . 
 
 — as additional rather than as substitutional ; and the appli- 
 cation of the presumption against double portions is conse- 
 quently more difficult : and indeed no substitutional effect 
 can be given to the will, except by the election of the 
 person intended to be benefited (k). 
 
 But a bequest to a daughter is not adeemed by a gift to 
 ]ier husband ; nor by an advance to her on her marriage 
 for an outfit ( / ). 
 
 Noadcnip- And this doctriuc of the constructive ademption of 
 
 tion of ^ 
 
 stran^Trs" legacies has never been applied to legacies to mere strangers, 
 unless under some peculiar circumstances ; as where the 
 legacy is bequeathed for a particular purpose, and a portion 
 is afterwards given by the testator, by an act inter vivos, 
 exactly for the same purpose, and for none other, and 
 there is no evidence of an intention to give a double 
 portion (;n). Indeed, in the case of strangers, the onus 
 probandi is upon those avIio contcuid tliat the two pro- 
 visions are to be considered but as one : whereas, in the 
 case of children, the onus probandi is on those who con- 
 tend for the double provision (n). The term " strangers" here 
 includes all who are not legitimate children of the donor, or 
 children to whom he has placed himself in loco parentis (o). 
 
 III. As to jii_ j^ leo-acy given to a creditor, if it is of an amount 
 
 legacies to o ./ o ' 
 
 creditors. Qqwol to, or gTcatcr than, the debt, and in other respects 
 equally beneficial, will, in general, in the absence of all 
 countervailing circumstances, be deemed to be a satisfac- 
 tion of the debt, on the principle that a testator shall be 
 presumed to be just before he is generous (j^). But this 
 
 {k) Lord Chichester v. Coventry, {n) 2 Spence's Eq. Jur. 430 ; 1 
 
 L. E. 2 H. L. Cas. 72. Eop. Leg. by White, 382. 
 
 (l) Ravenscroft v. Jones, 32 Bear. (o) Story's Eq. Jur. § 1116 ; 2 
 
 669. Spence's Eq. Jur. 429 ; 1 Rop. Leg. 
 
 (m) Story's Eq. Jur. § 1117, 1118, by White, 380. 
 
 1100, note ; 2 Spencc'.sEq. Jur. 430; (p) Story's Eq. Jur. § 1119, 1120 ; 
 
 1 Rop. Leg. by White, 382. 2 Spence's Eq. Jur. 605—607 ; 2
 
 OF SATISFACTION, 1219 
 
 principle lias no application to cases where the testator J'^'^J"^; 
 
 expressly directs his debts to be paid, and his assets are 
 
 sufficient to pay both debts and legacies. And the Conrt 
 leans very strongly against holding the legacy to be a 
 satisfaction (q) ; so that the rule is not allowed to prevail 
 where the legacy is of less amount than the debt, even as 
 a satisfaction pro tanto, unless the creditor have, in* the 
 debtor's li/etinie, assented to such an arrangement ; nor 
 where there is a difference in the time of payment of the 
 debt and of the legacy ; nor where they are of a different 
 nature as to the subject-matter or as to the interest therein; 
 nor where a particular motive is assigned for the gift ; nor 
 where the debt is contracted subsequently to the will ; nor 
 wdiere the legacy is contingent or uncertain ; nor where the 
 bequest is of a residue ; nor where the debt is a negotiable 
 security ; nor where the debt is on an open and running 
 account, so that the testator might not know whether he 
 owed anything. And as to a del)t strictly so called, there 
 is no difference wdiether it is a debt due to a stranger, or to 
 a wife or a child (?■). 
 
 IV. On the other hand, where a creditor leaves a legacy iv. As to 
 to his debtor, and either takes no notice of the debt, or debtors, 
 leaves his intention doubtful, Courts of equity will not 
 deem the legacy as either necessarily or prima facie mani- 
 festing an intention to release or extinguish the debt ; but 
 they will require some evidence, either on the face of the 
 will, or aliunde, to establish such an intention (s). For, if 
 the legacy is less than the debt, it would clearly be a 
 positive injury to the creditor to construe the legacy a 
 
 Tiop. Leg. by White, 1028; Edmunds 2 Spence's Eq. Jur. 605—608 ;^ 
 
 V. Lowe, 3 K. & J. 318 ; ShadhoU v. Eop. Leg. by White, 1030, 1032, 
 
 Vcmder:planh, 29 Beav. 405. 1040, 1044, 1045, 1048, 1049, 1051 ; 
 
 {q) 2 Eop. Leg. 1050 ; Ilassell v. Jefferies v. Michell, 20 Beav. 15 ; 
 
 IlmcMns, 4 Drew. 468 ; Cole v, Hammond v. Smith, 33 Beav. 452. 
 m7/arc7, 25 Bear. 568. (.s) Story's Eq. Jur. § 1123; 2 
 
 ()•) Story's Eq. Jur. § 1103, 1122 : Kop. Leg. by White, 1064. 
 
 VOL. ir. 5 3.
 
 1220 
 
 OF SATISFACTION. 
 
 V, Annuity. 
 
 Part IV. release of tlie debt : and even if the leo-acv is more than 
 
 1 . 2, Ch. 5. o ^/ 
 
 the debt, it does not follow that because the testator has 
 
 manifested his bounty towards the debtor in tliat respect, 
 he intends the debtor to have another lienefit Avliich has 
 no necessary connexion with the former. Where the tes- 
 tator does not mention the debt, but gives the debtor a 
 legacy of equal or greater amount, he thereby beneiits the 
 debtor to at least the same extent, by giving him the 
 means of paying the debt, as if he had directly forgiven 
 the debt, but had given the debtor nothing, or nothing 
 but the overplus ; and his reason for thus giving the 
 debtor the means of paying the debt, without alluding to 
 the debt, may have been one of kind consideration towards 
 the debtor, namely, in order that none but the executor 
 might be aware of the debt. 
 
 V. Where an annuity to the separate use of a married 
 woman is charged on an estate, the gift of an annuity to 
 her generally, and charged upon property of a different 
 nature, though to the same amount, and payable on the 
 same days, is not a satisfaction (t). And where a person 
 executes a deed, by Avhich he gives annuities to certain 
 others, and then executes another deed by which he gives 
 other ammities to those persons, there is no presumption 
 tliat the latter were intended to be a substitute for the 
 former, especially Avhere the annuities given by the second 
 deed are of less amount, or the first deed contains a power of 
 revocation which is not exercised by the second deed (?(.). 
 
 Where there is a covenant on marriage to settle specific 
 lands, it will not generally be satisfied by suffering other 
 
 Covenant to lauds of oqual value to descend (x). And a covenant to 
 
 bequeath a 
 
 sum of bequeath a sum of money is not satisfied by an appoint- 
 ment of a like sum (y). 
 
 Covenant to 
 
 acttle lands. 
 
 (i) 2 Spence's Eq. Jur. 609. 
 ((() Palmer v, Newell, 20 Bear. 
 S2 ; 8 D, M, & G, 74, 
 
 {x) 2 Spence's Eq. Jur. GIO. 
 (?/) Graham v. Wicl-Jiam (No. 1), 
 31 Beav. 447 ; 1 D. J. & S, 474.
 
 INDEX. 
 
 ABATEMENT 
 
 of debts and legacies, 513 
 of annuities, 14 
 of seisin, 
 
 defined, 546 
 
 not caused by entry of younger 
 brother, under the old law, 549 
 
 effect of, 549 
 
 ABEYANCE, 180 
 
 ABSOLUTE INTERESTS 
 
 defined, 372 
 ■whether taken, 1004 
 
 ACCELERATION 
 
 of an estate in remainder, GO 
 
 ACCOUNTANTS 
 
 to the Crown, who are, 498 
 
 ACCRUER, 
 
 clause of, 807 
 
 ACCUMULATION, 
 
 trusts for, 272 
 
 cesser of accumulation of residue di- 
 rected to be laid out in land, lOGG 
 
 ACKNOWLEDGMENT ^ 
 
 of deed of disposition, 780 
 
 ACQUITTANCE 
 
 defined, 711 
 
 ACT, 
 
 private, 907 
 
 title, marginal notes, and punctuation, 
 
 908 
 repugnancy, 908 
 commencement, 90S 
 retrospective operation, 90S 
 
 ACTION, 
 
 right of, 
 
 where it exists, 342 
 
 release of, 720 
 property in, 
 
 assignment of, SCO 
 release of, 8 GO 
 
 ACTIONS, 
 
 real and mixed, abolished, 5o9 
 release of, 720 
 
 ADEMPTION 
 
 of legacies, 1217 — IS 
 ADMINISTRATION, ^ee Debts. 
 
 legal and equitable assets, 511 
 
 order of administration of different 
 properties, 513 
 
 order of satisfaction of different claims, 
 520 
 
 marshalling of assets, 523 
 
 distribution among family or rela- 
 tives, 527 
 ADMINISTRATORS. See Executoks. 
 
 administrators cum testamento an- 
 nexe, durante minore setate, duraiite 
 absentia, or pendente lite, 1069—70 
 
 general, 1070 
 
 limited, 1072 
 
 de bonis nou, 1073 
 
 of a bastard or person who has no 
 kindred, 1071 
 
 of unsound mind, 1103 
 
 out of jurisdiction, or not to be found, 
 or neglecting or refusing to act, 
 1103—4 . . ^. 
 
 by what court letters of administration 
 should be granted, 1071- -2 
 
 transmission of representatioii^, 10/2 
 
 acts before administration, 1073 
 
 right to damages, covenants, or duties, 
 1075 
 
 retainer, 1075 
 
 sale by, 1074, 1077 
 
 ADMITTANCE 
 
 defined, 962 
 
 where it may be made, 964 — 5 
 
 of persons under disability, 965, 1158 
 
 of trustees, 121 
 
 of husband, 966 
 
 circumstances under which admittances 
 
 may take place, 966 
 rights before, 966 
 
 3 2
 
 1222 
 
 INDEX. 
 
 ADMITTANCE (continued). 
 
 governed by iises of surrender, 967 
 when lord and steward are mere in- 
 struments, 967 
 
 ADVANCEMENT, 
 
 what will be deemed an advancement 
 so as to rebut a resulting trust, 274 
 power of, 1154, 1168 
 
 ADVERSE POSSESSION, 
 how obtained, 342, 546 
 consequences under the old law, 548 — 
 
 551 
 
 ADVISERS, 
 
 transactions between them and those 
 whom they advise, 831 — 2 
 
 ADVOWSON. See Presentation. 
 
 defined, 32 
 
 is an incorporeal hereditament, 5 
 
 right of presentation and right of no- 
 mination, 32 
 
 appendant, 33 
 
 passes by grant of manor, 33 
 
 in gross, 33 
 
 presentative, 34 
 
 collativc, 34 
 
 donative, 35 
 
 estates in, 35 
 
 by what conveyances and for what es- 
 tates an advowson may be aliened, 
 35—6 
 
 is assets for payment of debts, 36 
 
 devolution of right of presentation, 36 
 
 presentation where an advowson is 
 held in joint tenancy, coparcenary, 
 or common, 37 
 
 gi-anted by copy, 122 
 
 force of the word " perpetual," 150 
 
 mortgage of an, 32, 381 
 
 length of title to, 599 
 
 devise of, 989 
 
 AGENTS, 
 
 sales and purchases by, 834 
 benefit to, on a sale, 835 — 6 
 
 AG-REEMENT. See Alienation— Void 
 AND Voidable Deeds and Con- 
 tracts. 
 
 by infants, 1157 
 
 to convey property if devised, 870 
 
 ALIENATION, 
 
 how conveyances may be made, 595 
 different modes of, 
 
 by matter of record, 907 
 by deed, 627 
 
 at law, by mere written agree- 
 ment, 021 
 in equity, by mere contract for 
 S^ile, 023 
 
 ALIENATION (continued). 
 different modes of, 
 by parol, 595 
 a person cannot derogate from his own 
 
 grant, 596 
 what is within a covenant not to alien, 
 
 094 
 unlawful, 566—7 
 of settled estates, 597 
 restrictions against alienation, 597 
 by married women, 597, 1137 
 by others, 98—101, 584, 1137 
 
 ALIENS, 
 
 who are, 1176 
 
 what aliens may acquire, and what 
 
 they may hold, 1176 
 may take produce of real estate, 1177 
 not seised to uses, 1137 
 devise in trust to convey to, 1178 
 naturalization and denization, 1178 
 ways in which they purchase, 1178 
 cannot take by act of law, 1178 
 
 descent, 1179 
 
 curtesy, 1179 
 
 dower, 1179 
 
 guardianship, 1178 
 descent from, or through, 1179, 1180 
 alienation to, 567 
 
 ALLOTMENTS, 
 
 tenure of, 118 
 
 title to, 602 
 
 passing as accessory, 645 
 
 ALLUVION, 539 
 
 ALTERATIONS 
 
 in a deed, 891 
 
 in a will, 982—3 
 ALTERNATIVE INTEPvESTS, 334, 336 
 
 AMBIGUITY, 
 
 distinction between a latent and a 
 patent ambiguity, 896, 990 
 
 "AND," 
 
 construed " or," 893 
 
 ANNUITY, 
 
 distinguished from a reutcharge, 7 
 personal estate, Addenda to p. 7 
 is an incorporeal thing, 4 
 ways of creating, 7 
 commencement of, 8 
 for what interests limited, 8 
 nature ot a personal annuity in fee, 8 
 duration of, when given indefinitely, 9 
 right to the price or value of an an- 
 nuity instead of the annual payment, 
 10 
 where a charge on corpus of a fund, 
 
 12, 29 
 ccsserof, 14, 625, 825
 
 INDEX. 
 
 122^ 
 
 ANNUITY (continued). 
 
 priority or abatement of, 14, 1060 
 
 apportionment of, 27 
 
 fonstniction of gifts of, 15 
 
 inrolment or registration, 15 
 
 may be a hereditament, 3 
 
 existing though renteharge is deter- 
 mined, 30 
 
 recovery of arrears of, 31 
 
 cannot be entailed, 171 
 
 cluirge of, 369 
 
 lien of anmiitant, 371 
 
 primarily payable out of personal es- 
 tate, 514 
 
 description of, in conditions of sale, 606 
 
 sale for an, 618, 625 
 
 defeasance of, 738 
 
 purchase of, usurious, 871 
 
 included in the terra "legacies," 1002 
 
 contracts for, with infants, 1157 
 
 satisfaction of, 1220 
 ANTICIPATION, 
 
 restrictions against, 1137 
 
 ANTIENT DEMESNE, 120 
 
 fine or recovei-y of lands in, 963 
 
 APPOINTMENT. See Powers. 
 
 I. Mode of executing powers, 749 
 
 observance of forms, 749 
 
 formalities must be perfected in 
 donee's lifetime, 750 
 
 by what instrument a power may 
 be executed, 750 
 by an oi'dinary assurance, 750 
 by a prior will, 750 
 
 what words requii'cd, 750 
 
 total execution at law, but partial 
 execution in equity, 751 
 
 execution at different times and 
 over different portions of pro- 
 perty, 751 
 
 creation of distinct interests under 
 a power of appointment in fee, 
 751 
 
 appointment or a revocation upon 
 a contingency, 752 
 
 mode of executing a deed or will 
 intended as an appointment, 752 
 
 attestation, 753 
 
 compliance with requisite formali- 
 ties should be stated, 753 
 
 II. liolief against defective execution 
 
 or non-execution of powers, 754 
 
 relief in equity alone, 754 
 
 in whose favour, 754 
 
 relief in case of defect in the mode 
 of execution, 755 
 
 relief though there is only an in- 
 tention to execute, 756 
 
 where no relief, 757 
 
 APPOINTMENT (continued). 
 
 III. Excessive execution, 757 
 complete, but excessive execution, 
 
 757 
 
 void trusts engrafted on an ap- 
 pointment, 758 
 
 appointment for separate inalien- 
 able use, 759 
 
 IV. Fraudulent and illusory appoint- 
 
 ments, 759 
 appointment must be made for 
 
 the end designed, 759 
 appointment whereby a benefit is 
 
 secured to the appointor or a 
 
 .stranger, 759 
 appointment to an infant, 760 
 rights of creditors against a general 
 
 appointee, 760 
 illusory appointment, 760 
 
 V. The question whether an instru- 
 
 ment is intended to operate as 
 an appointment, 762 
 YI. Appointments generally. 
 
 appointment by will, instead of 
 by deed, 755 
 
 appointment by deed, instead of 
 by wiU, 755 
 
 who may exercise a power, 764 
 
 time for execution, 764 
 
 duty of a trustee exercising a 
 power, 765 
 
 who should be the immediate ap- 
 pointee, 765 
 
 where an irrevocable appointment 
 must be made, 765 
 
 construction of powers, 749 
 
 appointment to the executors and 
 administrators of a settlor, 810 
 
 how an appointment operates, 765 
 
 estates appointed take effect as if 
 inserted in the instrument cre- 
 ating the power, 765, 
 
 by wUl has the properties of a 
 devise, 971 
 
 barring dower, 203 
 
 appointee not liable under a cove- 
 nant, 661 
 
 appointee, where entitled to bene- 
 fit of covenant, 663 
 
 conveyance operating as an ap- 
 pointment, and vice versa, 897 
 —8 
 
 by married women, 1112—13 
 
 by a husband to his wife, and vice 
 versa, 1123 
 
 election by an appointee, 1209 
 
 APPORTIONMENT 
 of conditions, 72 
 of rents, 25—30
 
 1224 
 
 INDEX. 
 
 APPORTIONMENT (ooH«i«HC(Z). 
 
 of annuities and other periodical pay- 
 ments, 26 
 of right of common, 52 
 
 APPROVING, 51 
 
 APPROXIMATION, 
 
 doctrine of, 1*35—7, 169 
 
 ARRANGEMENT. ,S'ec Family Areange- 
 
 MENT. 
 
 deed of arrangement by a debtor, 814, 
 816 
 
 AEREARS. 
 
 recovery of arrears of rents, annuities, 
 interest, or otlier periodical sums, 30 
 
 ARTICLES. Sec Marriage Settlement 
 
 "AS SOON AS," 
 
 whether expressive of contiugencv, 
 318, 321 
 
 ASSENT. See Executors. 
 of the grantee, 873 
 
 ASSETS, 
 
 legal and equitable, 511 
 
 order of administration of diii'ercuL 
 
 properties, 513 
 order of satisfaction of different claims, 
 
 512—513, 520 
 marshalling of, 522 
 
 ASSIGNMENT— ASSIGNEES. See Cre- 
 ditors' Deeds — Void and Void- 
 able Deeds and Contracts. 
 
 defined, 730 
 
 gifts and bills of sale, 730 
 
 operative words, 731 
 
 of terms distinguished from leases and 
 underleases, 731 
 
 what may be assigned, 731, 856 — 872 
 
 requisites to assignment of real estate 
 and chattels real, 731 
 
 requisites to an assignment of chattels 
 personal, 732 
 
 assignment of a term, or of the residue 
 of a term, from a future time, 735 
 
 passing a deed, 736 
 
 of a contingent reversionary interest^ 
 736 
 
 assignee taking subject to equities of 
 assignor, 737 
 
 what covenants assignees enter into, 
 798 
 
 assignee entitled to remedies and secu- 
 rity of assignor, 737 
 
 liability of assignee under a covenant, 
 661 
 
 when assignee entitled to benefit of 
 covenants, 664 
 
 ASSIGNMENT (continued). 
 
 sale of lease by assignees of bankrupt, 
 801 
 
 purchases by assignees, 835 
 
 by persons holding office under govern- 
 ment, 856 
 
 by fellows of colleges, 857 
 
 of goods not belonging to the assignor 
 at the time, 864 
 
 registration of assignment of personal 
 chattels, 881 
 
 of an old term operating as a creation 
 of a new one, 898 
 
 conditions against, 72, 694 
 
 to the assignor and another, 737 
 
 ASSUMPSITS, 
 release of, 719 
 
 whether expressive of contingency, 318 
 
 ATTAINDER, 
 
 when it takes place, 564 
 consequences of, 467, 563 
 
 ATTESTATION 
 
 of deeds, 878 
 
 of wills, 755, 973—6, 978—982 
 
 ATTESTED COPIES, 887 
 
 ATTORNEY, 
 
 acting by, 634 
 
 sealing, signing, and delivering a deed 
 
 by, 877 
 covenant by, 634 
 
 appointed by a married woman, 1116 
 letter of, 
 
 must be by deed, 877 
 by infant, 1160 
 protection of persons acting under, 362 
 
 ATTORNMENT 
 
 on a mortgage, 877 
 on grant of a seigniory, rent, remainder, 
 or reversion, 595 
 
 AUCTIONEERS, 
 
 purchases by, 835 
 
 BANKRUPTCY, 
 
 under the stat. of 1849 and 1861 
 two great Bankruptcy Acts, 573 
 iormerly two courts for adjusting 
 
 affairs of debtors, 573 
 abolition of Insolvent Debtors' 
 
 Court, 573 
 real and personal estate to vest in 
 
 assignees, 573, 576 
 copyholds and customary lands, 
 
 574
 
 INDEX. 
 
 1225 
 
 BAKKKUPTCY [cor, (hived). 
 
 under the stat. of 1849 and 18G1 
 
 life estate in remainder, &c., 574 
 
 option of assignees to take or re- 
 nounce property, 574 
 
 assignees accepting or declining, 
 or not electing either to accept 
 or decline any land, subject to 
 a perpetual yearly rent or a 
 lease, 575 
 
 assignees not electing either to 
 abide by or abandon any agree- 
 ment for purchase of real estate, 
 576 
 
 estates granted by a bankrupt 
 subject to a condition or pro- 
 yiso for redemption, 576 
 
 powers for bankrupt's benefit, 577 
 
 goods in possession, order, or dis- 
 position ot bankrupt, 577 
 
 uhat property is not affected by 
 the bankruptcy, 579 
 
 commencement of the title of the 
 assignees, 579 
 
 retrosjsective operation of the 
 transfer to the assignees, 579 
 
 what transactions not affected by 
 the bankruptcy, 580 
 
 fraudulent transfers of property, 
 581 
 
 bankrupt may be ordered to join 
 in couA-eyances, or may be 
 estopped from objecting, 583 
 
 registration of the appointment of 
 assignees, 583 
 under the stat. of 1869, 
 
 effect of order of adjudication, 585 
 
 devolution of property on the 
 registrar, 585 
 
 and then on a trustee, 585 
 
 appointment of trustee, 585 
 
 descriptions of bankrupt's pro- 
 perty divisible amongst credi- 
 tors, 587 
 
 stock, shares, or other property 
 transferable in books of a com- 
 pany, office, or person, 587 
 
 copyhold or customary property, 
 587 
 
 things in action, 588 
 
 disclaimer as to onerous property, 
 588 
 
 power of trustee to deal 'with 
 property, 589 
 
 commencement of bankruptcy, 
 590 
 
 avoidance of voluntary convey- 
 ances or transfers, 590 
 
 avoidance of fraudulent i^refe- 
 reuces, 591 
 
 BANKRUPTCY [conthmed). 
 
 under the stat. of 1869 (continued). 
 protection of certain transactions, 
 591—2 
 
 limitation of property to be enjoyed 
 notwithstanding bankruptcy, 584 
 
 cesser of life interest on bankruptcy, 
 insolvency, or alienation, 584 
 
 disposition of lands to which bank- 
 rupts are tenants in tail, or in which 
 they have base fees, 783 
 
 gifts to a bankrupt, 1017 
 
 registration of Orders of Court of, 
 448—9 
 
 cesser on, 100, 584 
 
 assignee.s take, subject to equities of 
 bankrupt, 737 
 
 sale ot lease by assignees, 801 
 
 purchases by commissioners of bank- 
 rupts, and by assignees and solici- 
 tors, 835 
 
 BAEGAIN AND SALE, 
 
 defined, 679 
 
 operative words, 680 
 
 of three kinds, 680 
 
 consideration, 680, 897—8 
 
 who may convey by, 681 
 
 what may be conveyed by, 681 
 
 not proper to create a right of way, 56 
 
 dispo.sitions by bargainor and bar- 
 gainee before enrolment, 681 
 
 disused, 682 
 
 of lands of debtors to the crown, 682 
 
 enrolment, 682 
 
 rent not newly created b}', 20 
 
 of ordinary copyholds, 570, 963 
 
 of free copyholds or customary free- 
 holds, 121 
 
 of lands, when a bar to dower, 204 
 
 when uses on a bargain and sale are 
 only trusts, 256, 262 
 
 in execution of a power, 750 
 
 powers to lease in a, 767 
 
 operating as a confirmation, or a.s a 
 covenant to stand seised, 897 — 8 
 
 BASE FEE. See Statutes (Fikes and 
 Recoveeies Act). 
 creation of, by a tenant in tail, 173 
 
 BASTARDS. See Illegitimate Chil- 
 
 DEEK. 
 
 BENEFICE. See Advowsox — Lapse— 
 
 Peesentation— Simony, 
 charges on, 458 
 right to presentation or advo^vson 
 
 barred, 558 
 infant presenting to, 1158 
 lunatics' benefices, 1174 — 5
 
 1226 
 
 INDEX, 
 
 BEQUESTS. See Wills. 
 
 general, specific, and demonstrative 
 
 legacies, 1048 
 description of things bequeathed, lOal. 
 
 See Words. 
 charge of, 365 
 effect of failure of, when charged on 
 
 real and personal estate, 367 
 failure of the fund for payment, 105U 
 mode of giving effect to charges of, 
 
 367—9 
 primarily payable out of personalty, 
 
 514 
 release of, 717 
 
 according to what law construed, 990 
 siibstituted or additional governed by 
 
 original legacies, 996 
 of dividends, 1054 
 by joint tenants, 987 
 shares or proportions in which two or 
 
 more legatees take, 1059 
 priority and abatement of, 466, 1050 
 
 —1, 1060 
 double or cumulative, 1062 — 3 
 to what a residuary legatee is entitled, 
 
 1063 
 payment of, 1063 
 when bequeathed to married women, 
 
 1116 
 when bequeathed to infants, 1161 
 interest or income of, 1064 
 contrary to public policy, 1066 — 7 
 for a particular purpose, 1067 
 divesting clauses not to operate after 
 
 time for payment of, 1068 
 ademption or satisfaction of, 1051, 
 
 1217 
 
 BILLS OF SALE, 
 what are, 730 — 1 
 of furniture, &c., 864 
 registration of, 881 
 
 BLANK, 
 
 in a deed, 872 
 
 in a will for a name, 1003 
 
 BLIND, 634, 972, 975 
 
 BOND, 
 
 defined, 789 
 
 either simple or single or double or 
 
 conditional, 789 
 requisites to, 790 
 who are bound by, 790 
 who may take advantage of, 790 
 joint and several, or joint only, 791 
 construction of bonds, 791 
 defeasance of, 738 
 condition of, 
 
 omission of concluding words, 791 
 how annexed, 791 
 
 BOND (continued). 
 condition of, 
 
 what may be the, 792 
 malum in se, 792 
 against the mxmicipal law, or re- 
 pugnant, 792 
 insensible and uncertain, 792 
 impossible, 792 
 effect of invalidity of, 107 
 consequences of breach ofj 793 
 not to alien, 99 
 trust to pay bond debts, 494 
 payment of debt by tenant for life, 
 
 509 
 post obit, 828 
 operating as a fraud on a marriage, 
 
 837 
 necessity for conversion of, 1199 
 
 BONUS, 
 
 where it passes, 865, 1055 
 
 BOROUGH-ENGLISH. 
 
 descent of borough-English lands, 489 
 
 BUILDINGS, 
 
 waste in, 1188 
 
 BURGAGE 
 
 tenure, 118 
 
 CANCELLING 
 
 deeds, 905 
 wills, 1023, 1029 
 
 CARGO, 
 
 assignment of, 865 
 
 CARTBOTE, 49 
 
 CATTLE, 
 
 levant and couchant, 48 — 9 
 
 CESTUI QUE TRUST, 260 
 
 CESTUI QUE USE, 253 
 
 CESTUI QUE VIE, 178 
 
 concealment of his deatli, 180 
 
 CHAMBER, 
 
 inheritance in a, 3 
 
 CHAMPERTY, 857—8 
 
 CHAPEL, OR liEssER Chancel 
 
 freehold in. See Addenda to p. 3. 
 
 CHARGE. Sec Powers— Debts— Judg- 
 ment. 
 
 defined, 364 
 
 devise in trust to pay debts and 
 charges, 364 
 
 devise charged with oi" subject to debts 
 and charges, 364
 
 INDEX. 
 
 1227 
 
 CHAEGE (continued). 
 
 distinctiou between a charge and an 
 
 exception where the purpose fails, 
 
 36i 
 indirect charge of debts, 364 
 simple contract ci'editors have no 
 
 charge by statute, 365 
 effect of a charge of debts, 365, 367 
 
 —9 
 of legacies, 365 
 
 mode of giving effect to, 367 — 9 
 charge on rents and profits, 367 
 of annuities, 369 
 judgment to operate as a, 423 
 on benefices, 458 
 buying up a, 495 
 merger of, 1196 ■ 
 
 CHAEGING ORDERS, 433 
 
 CHARITIES. See Moktmain. 
 favoured in regard to, 
 
 the want of trustees, 279 
 defects in conveyances, 280 
 the objects, 280 
 surplus income, 283 
 lapse of time, 284 
 perpetuities, 284 
 legacies to, not exempted from abate- 
 ment, 1062 
 proviso, as to charitable purposes being 
 
 void, 284 
 limitation over from one charity to 
 
 another, 340 
 marshalling in favour of, 524 
 lease of charity property, 698 
 appointment in favour of, 754 
 voluntary gifts to, 848 
 general remarks in fiivour of, 305, n. 
 CHASE, 53—4 
 
 CHATTELS. See Personal Propeety. 
 
 real and personal, 2 
 
 distinction between a freehold and a 
 chattel interest, 64, 65, 143—6 
 
 cannot be entailed, 171 
 
 where words confer the absolute in- 
 terest in, 171 
 
 chattel interests created for special 
 purposes, 176, 227—8 
 
 never go to the heir, 469 
 
 transmission of, on death of owner 
 intestate, 469—470 
 
 deeds of gift of, in trust for donor, 838 
 
 uses of, 265 
 
 CHILD, 
 
 where a word of limitation, 158 
 
 CHILDREN, 
 
 devises and bequests to parents and 
 their children, or to children or issue, 
 228, 1004—1012 
 
 cnosES 
 
 in possession, 343 
 in action, 343 
 
 assignment of, 737, 860 — 864 
 
 CHURCH. See Advowson — Lapse — Pre- 
 sentation — Simony. 
 
 CHURCHWARDENS, 
 
 bequests to, 280 
 devise to, in trust, 298 
 gift or grant to, 634" 
 
 CLAIM, 
 
 continual, 471—2, 549, 557,671—2 
 periods alloAved for a claim against a 
 ilne, 930 
 
 CLAIMS, 
 
 release of, 721 
 
 CLERGYMEN, 
 
 charges by, on benefices, 458 
 COAL, 
 
 covenant to raise, 665 
 
 CODICIL, 
 
 defined, 970 
 
 effect of a, 992 
 
 revocation by a, 1022, 1029 
 
 COHABITATION, 
 
 condition in restraint of, 96 
 
 COMMENCEMENT 
 
 of an estate, 899 
 
 COMMISSIONERS OF BANKRUPTS, 
 purchases by, 835 
 
 COMMON. See Tenancy in Common. 
 definition, 47 
 of pasture, 47 
 
 appendant, 47 
 
 how claimed, 47 
 to what annexed, 47 
 for what creatures, 47 
 it is of common right, 48 
 appurtenant, 48 
 
 how claimed, 48 
 to what annexed, 48 
 for what creatures, 48 
 against common right, 48 
 because of vicinage, 48 
 in gross, 49 
 
 stinted, i.e., for part of a yeai', 49 
 when it may be granted over, 48 
 of estovers, 49 
 of turbary, 50 
 of piscary, 50 
 of foldage, 50 
 
 of digging for coals, &c., 50 
 right of copyholders to, 50 
 claim to, by prescription, 542 
 freehold is in the lord, 50 
 rights of lord in, 50
 
 1228 
 
 INDEX. 
 
 COMMON {continued). 
 inclosure, 51 
 
 apportionment of right of, 52 
 extinction or suspension of right of 
 
 common, 52 
 purchase by, or lease to, a commoner, 
 
 52 
 revivor of a right of common, 53 
 granted by copy, 122 
 grant of, 639, 645 
 passing by grant of land, 638 — 9 
 passing with, not without, land, 639 
 release of, 52, 718 
 grant of, to what places it extends, 
 
 895 
 
 COMMONEES, 
 
 gift or grant to, C31 
 
 COMMUTATION 
 of tithes, 40 
 of manorial rights, 128 
 
 COMPENSATION 
 
 by a vendor, 601, 609 
 
 COMPOSITION. !>'cc Ceeditors' Deeds. 
 
 COMPEOMISE, 811 
 
 CONCEALMENT. Sec Fraud. 
 
 CONDITIONS. See Limitations. 
 defined, 58 
 express, 58 
 implied, 58 
 
 on exchange, 704 — 5 
 on partition, 710 
 in law% 59, 65 
 in deed, 59 
 
 subsequent or destructive, 59 
 precedent or creative, 59 
 Avhat words create conditions, subse- 
 quent or precedent, 59-^60 
 mixed, i. e., destructive and creative, or 
 destructive and accelerative, 59 — 60 
 performance of, 
 
 by a married woman, 1112 
 by an infant, 1161 
 where a time is fixed, 67 
 where no time is fixed, 67 
 where a place is appointed, 67 
 where none is appointed, 67 
 how conditions precedent must be 
 performed, 08 
 conditions to pay money, 68 
 conditions to execute a re- 
 lease, 68 
 conditions subsequent or 
 mixed must be performed, 
 68 
 
 CONDITIONS (contin ned). 
 
 subsequent and mixed conditions arc 
 
 odious and construed strictly, 68 
 of consent to a marriage, 69 
 
 how consent must be given, 70 
 Avhen in terrorem, 70 
 refusal of consent, 71 
 of surviving parents, 338 
 effect of non-fulfilment of a condition, 
 
 71, 569 
 dispensed with, 71 — 73 
 relief in equity against, 74 
 who may take advantage of, 75, 771, 
 
 860—861 
 when a re-entry is necessary, 76 
 when notice of a condition must be 
 
 given, 77 
 effect of entry for a breach of con- 
 dition, 77 — 78 
 whether valid or not, 
 
 contrary to public policy, 79 
 requiring the acquisition of a 
 
 peerage, 79 
 in restraint of marriage, 79 — 96 
 in restraint of cohabitation, 96 
 in restraint of trade, 97 
 as to a separation, 96 
 repugnant, 97 
 
 for cesser on alienation, bank- 
 ruptcy, or insolvency, 93 
 contrariant, 102 
 uncertain or ambiguous, 102 
 impossible, 102 
 involving too remote a possibilitv, 
 
 103 
 not to dispute a will, 1C3 
 as to invalidity of previousgift, 106 
 effect of the invalidity of, 107, 276 
 to whom reserved, 115 
 cannot be granted over, 115 
 when created, 115 
 taking possession binds to performance 
 
 of, 115 
 period to which the event of death is 
 
 to be referred, 108 
 condition, as well as a covenant, for 
 
 the resumption of land, 115 
 partial operation of, 116 
 as to repairs, 116 
 release of, 116, 717 
 apportionment of, 72 
 may be a hereditament, 3 
 of a bonrl, 791. See Bond. 
 defeasance of, 738 
 subsequent, not barred by a fine until 
 
 broken, 940 
 subsequent and mixed, barred by a re- 
 covery, 952 
 for payment of rent to donor not barred 
 by recovery, 953
 
 INDEX. 
 
 1229 
 
 CONDITIONS OF SALE, 695 _ 
 
 ■\vhcn special conditious required, 605 
 
 how expressed, 606 
 
 as to time for taking objections, 607 
 
 rescinding a contract, 606 
 
 range of title, 607 
 
 evidence, 60S 
 
 errors, 609 
 
 faults, 609 
 
 expenses, 609 
 
 possession, 610 
 
 interest, 610 
 
 time, 610 
 
 fixtures, 010 
 
 deeds, 610 
 
 lessor's title, 611 
 
 surrendered leases, 611 
 
 penalty for breach of agreement, 
 611 
 
 CONDITIONAL LIMITATION 
 
 defined, 65 — 66 
 
 construed strictly, 68 
 
 in restraint of marriage, 80 
 
 CONFIRMATION 
 
 defined, 723 
 
 operative words, 724 
 
 requisites to, 72-1 
 
 operation, 72-1 
 
 in the case of joint tenancy or tenancy 
 
 in common, 724 
 of one estate only, 725_^ 
 of part of an estate, 725 
 of part of the land, &c., 725 
 grant operating as a, 897 
 operating as a grant or release, 897 
 by a disseisee, 725 
 of an interessee termini, 724 
 bargain and sale operating as a, 897 
 uses or trusts of, 725 
 when a deed operates as a grant or 
 
 lease, and when as a confirmation, 
 
 897 
 
 CONSANGUINITY 
 
 defined, 464 
 
 lineal and collateral, 46 1 
 
 degrees of lineal consanguinity, 465 
 
 of collateral consanguinity, 465 
 
 CONSENT 
 
 to a deed, 873 
 to a marriage, 69 
 
 CONSIDERATION. >S'cc Bakgain and 
 Sale. 
 good or valuable, 821 
 when necessary, 821 
 absence or failure of, 821 
 inadequate, 825 
 unlawful, 829 
 
 CONSIDERATION (ooui;/n ?(«?). 
 
 a good consideration within the stat 
 13 Eliz. c. 5, and 27 Eliz. c. 4, 
 
 838—850 
 
 CONSTRUCTION. Sec Words. 
 
 of powers and deeds of appointment, 
 
 750—1 
 general rules of construction of deeds, 
 892 
 
 intention to be cftcctuated, 892 
 
 intention to be collected from the 
 
 words, and construction to be 
 
 according to the words, 892 — 3 
 
 wlicn words are to be taken in 
 
 their strict sense, 893 
 sense agreeable to law preferred, 
 
 894 
 construction of general expres- 
 sions, 894 
 when general words are to be fol- 
 lowed, and when special, 894 
 uncertainty, 894 
 construction to be upon tlie Avholo 
 
 deed, 895 
 repugnant clauses, 895 
 construction to be reasonable, 895 
 rule as to the words of an inden- 
 ture, 895 
 words construed most strongly 
 
 against the active party, 896 
 inadmissibility of averments found- 
 ed on parol evidence, 896 
 operation of a deed in a difTerent 
 way from what was intended, 
 897 
 where a deed may enure in diffe- 
 rent ways, 898 
 commencement of an estate, 899 
 same construction in every court, 
 899 
 of )5articular expressions in deeds, 899. 
 
 See Words, 
 general rules of construction of wills, 
 989 
 intention to bo efi'ectuated, 989, 
 
 992—3 
 intention must "be collected from 
 
 the words, 990 
 express disposition not controlled 
 
 by inference, 991 
 intention must be collected from 
 
 the whole will, 991 
 eficet of a codicil, 992 
 when words are to be taken in 
 their proper sense, and when in 
 some other, 992 
 the more probable construction to 
 
 be preferred, 992 
 words importing the futm-e, 993
 
 1230 
 
 INDEX. 
 
 CONSTRUCTION (conitnwefn. 
 
 general rules of construction of Avills, 
 relative construction of ambiguous 
 
 expressions, 993 
 same words, having a difl'crent 
 
 construction, 993 
 words rejected, sujiplicd, or 
 
 changed, 993 
 transposition, 994 
 particular intent sacrificed to ge- 
 neral intent, 994 
 testator presumed to know the 
 
 law, 994 
 mistakes not presumed, 994 
 inconsistent clauses, 994 
 devesting words must be as clear 
 
 as vesting words, 994 
 uncertainty, 995 
 prevention of intestacy, 995 
 at what lime a will speaks, 995 
 lex loci, 996 
 
 civil law followed as to purely per- 
 sonal legacies ; common law as 
 to others, 996 
 substituted or additional legacies 
 governed by the original lega- 
 cies, 996 
 of particular expressions in wills, 99S. 
 
 See Words. 
 of private acts, 90S 
 of surrenders of copyholds, 966 
 recital, a key to, 635 
 
 CONSUMABLE ARTICLES, 325 
 
 CONTINGENT INTEREST. See Con- 
 dition — ExECUTOKT Interests — 
 Vested Interests. 
 when releasable, 718, 860 
 grant or assignment of, 737, 860 — 864 
 devise or bequest of, 985, 988 
 contingencies with a double aspect, 
 
 334 
 order releasing or discharging a con- 
 tingent right, 1103 
 
 CONTINGENT REMAINDERS 
 defined, 325 
 four kinds of, 326 
 time for vesting of, 328 
 support of, 328 
 destruction of, 328, 1198 
 baiTcd by fine, 925, or recovery, 953 — 4 
 title depending on destruction of, 601 
 when they prevent merger, 1197 — 8 
 
 CONTRACTS. See Void and Voidable 
 Deeds and Contracts. 
 differently regarded at law and in 
 equity, C23 
 
 CONTROVERSIES, 
 
 release of, 720 
 
 CONVEESION 
 
 of property which is wearing out, or 
 reversionary property, or property 
 invested on certain securities, 1199 
 
 of land, articled, devised, &c. to be sold, 
 and money articled, bequeathed, 
 &c., to be invested in land, 1200 
 
 election to take property in an uncon- 
 verted state, 1201 
 
 a stranger cannot enforce, 1201 
 
 clear intention of, necessary, 1201 
 
 consent to, or approval of, 1201 
 
 time allowed for, 1202 
 
 liability to legacy duty consequent on, 
 1202 
 
 failure of the object for a, 1202 
 
 undisposed-of produce of real estate, 
 1203 
 
 imdispose.d-of part of mixed fund, 1206 
 
 undisposed-of part of money directed 
 to be converted, or the produce there- 
 of, 1207 
 
 of one kind of land into another, 1189 
 
 CONVEYANCES. Sec Deeds, &c. 
 how made, 595 
 
 COPARCENARY 
 
 defined, 241 
 
 parceners claim an inheritance by 
 descent, 241 
 
 parceners have a unity, but not en- 
 tirety of interest, 241 
 
 parceners make but one heir, 241 
 
 parceners by common law and by cus- 
 tom, 241 
 
 advowson in, 34 
 
 tithes in, 39—40 
 
 curtesy and dower, 242 
 
 conveyance by one parcener to another, 
 242 
 
 destruction of, 242 
 
 modes of partition of, 242 
 
 liability of estate in coparcenaiy to 
 extent, 431 
 
 possession of one parcener was the pos- 
 session of the other, 549 — 550 
 
 descent to coparceners, 476, 482 — 3 
 
 descent to issue of coparceners, 476, 
 480 
 
 in the case of estates tail, 487 
 
 leases by coparceners, 690 
 
 releases by coparceners, 712 
 
 COPYHOLDS. See Manor. 
 definition of, 119 
 ordinary copyholds, 120 
 free copyholds, or customarj- freeholds, 
 
 120 
 condition of, as regards the will of the 
 
 lord, 120
 
 INDEX, 
 
 1231 
 
 COPYHOLDS [roniin ued). 
 customs^ 120 
 
 froehold is in the lord, 51, 121 
 aclmittaucc of trustees of, 121 
 lord may become entitled to, 123 
 voluntary grants, 
 
 what may be granted by copy, 122 
 of waste, 122 
 granting for lives, 123 
 regranting, 123 — 4 
 derive their eflect from the cus- 
 tom, 124 
 effect where lord retains, 123 
 application of statutes to, 124 
 
 not within the Statute of Uses, 
 266 
 32 Hen. 8, c. 2S, as to leases, 
 
 (588 
 27 Eliz. c. 4, p. 850 
 extinction of, 125 
 
 effect of a release or surrender to the 
 
 lord, or of a conveyance by him, 125 
 
 effect of an extent or assignment for 
 
 dower, 12(3 
 must have been demised or demisable 
 
 immemorially by cop3% 119 
 enfranchisement of, 128 — 142. .S'peEN- 
 
 PRAXCHISEIIEXT. 
 
 rent- charge in the case of, 18 
 
 fees conditional in, 154 
 
 not entadable, except by custom, 171 
 
 curtesy, 187 
 
 freebcnch, 210 
 
 terms for years in, 224 
 
 occupancy of, 53G — 7 
 
 descent of, 479 
 
 liability of, for debts, 503 
 
 forfeiture, 
 
 for treason or felonj', 563 — 5 
 
 for breach of copyhold customs, 
 
 569 
 for alienation contrary to custom, 
 
 569 
 for waste in, 570 
 
 for disclaimer or refusal to perform 
 services, or to pay a fine or rent, 
 570, 905 
 for refusal to be admitted, 571 
 by married women, 1117 
 by infants, 9(35 
 of bankrupts, 574 
 
 gift or grant to loi\l or tenants, 634 
 not included in a conveyance, 894 
 order of Court of Chancery vesting 
 or appointing a person to convev, 
 1103—4 
 right of copyholder to housebote, hedge- 
 
 bote, and ploughbote, 1191 
 waste in, 1191 
 mortgage of, 400. See Mortgage. 
 
 COPYHOLDS {mntlmied). 
 leases of, 570, 688, 699 
 alienation of, by tiie copyholders, 
 contrary to the custom, 569 
 by surrender and admittance, 962 
 by bargain and sale and admit- 
 tance, 121, 963 
 by recovery, 963 
 
 imder the Fines and Recoveries 
 Act by tenants in tail and per- 
 sons entitled to base fees, 781 
 by devise, 973, 988, 1040, 1043. 
 
 See Devise. 
 by tenant in fee, 962 
 by tenant in tail, 963 
 by husband and wife, 1114 
 before admittance, 966 — 7, 1046 
 presentment, 962 
 where grants and admittances may 
 
 be made, 964 — 5 
 admittance of persons under dis- 
 ability, 965 
 words of Ihnitations in a sur- 
 render, 966 
 construction of a surrender, 966 
 circumstances under which ad- 
 mittances may take place, 966 
 husband not admitted, 966 
 rights of surrenderee before ad- 
 mittance, 966 
 rights of heir or devisee before 
 
 admittance, 966 
 admittance governed by uses of 
 
 surrender, 967 
 admittance of remaindermen, 967 
 admittance of one joint-tenant, 
 
 967 
 admittance relates back, 967 
 lord and steward are mere instru- 
 ments on admittances on sur- 
 render or descent, 967 
 fine, 967 
 heriots, 969 
 services, 969 
 
 right of heir or devisee before admit- 
 tance, 966 
 order as to, under Trustee Act, 1103 — 4 
 
 CORN, 
 
 grant of, 644 
 
 CORPORATION, 
 
 aggregate and sole, 1183 
 
 necessity for the word successors to 
 
 pass a fee, 1183 
 misnomer of, 1183 
 holding lands, 1183 
 mode of conveyance by a, 1184 
 common seal, 1184 
 delivery of deed of, 1184
 
 1232 
 
 INDEX. 
 
 rOra'ORATION (costumed). 
 
 corporation cannot hold in joint te- 
 nancy, 231 
 
 may take by ivay of use, but cannot bo 
 seised to a use, 256 
 
 succession to property, 491 
 
 grant by deed, 621 
 
 ecclesiastical not barred by fine, 940, 
 or recovery, 947 
 
 CORPOREAL THINGS, 4 
 
 how conveyed al common law, 5, 078 
 were said to lie in liverj', 5, 678 
 
 CORRUPTION OF BLOOD, 467, 489 
 
 COSTS, 
 
 lieu for, 370 
 mortgage for, 403 
 
 COTTAGE, 
 
 what passes by the term, 643 
 
 COUNSEL, 
 
 purchases by, 835 
 
 COUSINS, 
 
 bequests to, 1012 
 
 COVENANTS 
 defined, 653 
 
 by what instrument created, 654 
 by what words created, 655 
 by or with strangers, 654 
 void, 654 
 performance, 654 
 express and implied, 655 
 general and specific, 656 
 inherent and collateral, 657 
 joint and several, 657 
 real and personal, 658 
 to keep policy on foot, 664 
 as to purpose for which, house is to be 
 
 used, 664 
 to purchase land, 278 
 to convey, transfer, or pay, 278 
 to leave a share to a child, 838 
 to charge or settle, 371, 656, 804, 
 1220 
 wife's propei-ty, 804, 1143 
 to repair, 665 
 to pay rent, 665 
 not to transfer a lease, 694 
 not to sue, 715 
 
 to produce title deeds, &c. 887—8 
 a.s to resumption of land, 115 
 covenantor's widow is a person claiming 
 
 under him, 664 
 cesser, discharge, or satisfaction of, 
 
 665, 1220 
 waiver of, 71 
 relief against, 665 
 damages for breach of, 494 
 
 COVENANTS (contvnicd). 
 
 tlifl'ei'ently regarded at law and in 
 equity, 623 
 
 running with the land, 658—664, 8SS 
 
 liability under, 655, 658—662 
 
 benefit of, 662, 771 
 
 with whom they should be made, 063 
 
 usual covenants in a lease, 695, 771 
 
 in leases under powers, 771 
 
 obligation of lessee's covenants, 695 
 
 release of, 717, 719 
 
 who covenant for the title in purchase 
 deeds, 797 
 
 for the title in the case of estates in 
 fee, 798 
 
 duty of solicitor, as to unusual cove- 
 nants, 800 
 
 on the sale of leaseholds, 800 
 
 against whose acts a vendor should 
 covenant, 802 
 
 to what kinds of acts covenants will 
 extend, 803 
 
 COVENANT TO STAND SEISED 
 defined, 740 
 operative words, 741 
 who may convey, and what ma}' be 
 
 conveyed by it, 741 
 uses on a, 256, 262 
 consideration, 741 
 distinction between this and a bargain 
 
 and sale, 742 
 when and to whom a use will not arise, 
 
 742 
 to the use of a wife not entered into 
 
 with herself, 742 
 to a use after covenantor's death, 742 
 creation of a rent, 742 
 disuse of, 743 
 
 in execution of a power, 750 
 power to lease in, 767 
 other assurances operating as a, 897 — 8 
 
 C RE D I T R. See Creditors' Deeds— 
 Debt.s. 
 
 deeds of arrangement, subject to the 
 approval and control of the Court of 
 Eankruptcy, 788 
 
 deeds of composition, subject to the 
 jurisdiction of the Court of Bank- 
 ruptcy, where no bankruptcy pro- 
 ceedings have been taken, 816 
 
 creditors faA'oured, 364 
 
 appointed executor, 1076 
 
 marriage with, 495 
 
 right of against general appointee, 760 
 
 purchases bv, 835- — 6 
 
 frauds on, 814, 838—845 
 
 a witness to a will, 975, 982 
 
 concealment of a debt bj-, 837 — 8 
 
 no election in the case of, 1213
 
 INDEX. 
 
 123J 
 
 CREDITORS' DEEDS, 
 
 for benefit ol'all the creditors, 812 
 
 preforcnee of a parficuki" creditor, 812 
 
 rcvoeableuess of, 812 — 13 
 
 passing of the property, 813 
 
 executed by one of two or more joint 
 debtox's, 813 
 
 where creditors take though not par- 
 ties, 813 
 
 where the creditors have not executed 
 within the time, 813 
 
 Avherc no schedule at first and erasures 
 are made in the schedule afterwards 
 added, 814 
 
 frauds on creditors, 814 
 
 CRIMINAL PROCEEDINGS, 
 suppression of, 867 
 
 CROPS, i^'ce Emblements. 
 right to, on death, 989 
 assignment of, SG4 
 
 CROSS REMAINDERS, 323 
 
 CROWN 
 
 debts, 49a 
 
 obligation of Crown debtors, 421, 
 490 
 
 lauds of Crown debtors couveyed 
 by bargain aud sale, 682 
 
 liability to, 496, 790 
 
 jn-otection against, by a term, 221 
 
 discharge from, 500 
 accountants to the, 496 
 person who has executed a bond to 
 
 Crown as receirer, 496 — 7 
 surety for a Crown debtor, 497 
 parish collector of taxes, 498 
 registration, 497 
 title to property derived from, C02 
 
 CURTESY, 
 
 definition of, 184 
 
 requisites, 184 
 
 out of what, 
 
 estate limited to wife's separate 
 
 use. See Addenda to p. 185 
 remainders or reversions, 185 
 iacorporeal hereditaments, 185 
 money to be laid out in land, 185 
 not incident to estate pur autre 
 
 vie, 186 
 copyholds, 187 
 gavelkind lands, 187 
 a rent, 22 
 an advowson, 35 
 tithes, 39 
 
 estate diA'csted, 77 — 8 
 incident to coparcenary, 242 
 incident to estate in common, 247 
 not incident to joint tenancy, 184, 
 192, 235 
 
 CURTESY {rontumed). 
 
 commencement of estate by, 186 
 
 no entry necessary, 187 
 
 an inseparable incident, 187 
 
 when it ceases, 128, 135, 188 
 
 alienation by a tenant by the, 186, 567 
 
 estate by, may be surrendered, 726 
 
 in tiie case of an alien, 1179 
 
 CUSTOM, 540 
 
 CY PRES DOCTRINE, 165, 167, 169 
 
 DAMAGES, 
 
 recovery of, in respect of arrears of 
 
 rent, interest, &c., 30 
 for breach of covenant, 494 
 
 DATE, 
 
 mode of dating, 630 
 
 no date or v.Tong date, 631 
 
 not conclusive, 631 
 
 DEAF AND DUMB, 634 
 
 DEATH, 
 
 to what period it refers, 108 
 
 DEBATES, 
 
 release of, 720 
 
 DEBTS AND INCUMBRANCES. Sec 
 
 Assets. 
 
 power to seU for payment of, 354 
 
 devise in trust to pay, 364 
 
 devise charged with or subject to, 364 
 
 indirect charge of, 364 
 
 to be paid out of rents, 353 
 
 creditors have no charge by statute, 
 505 
 
 effect of a charge of, 365 
 
 mode of enforcing charges of, 367 — 9 
 
 of record, 492 
 
 specialty, 492 
 
 simple contract, 493 
 
 mortgage, 493. See Mortgage. 
 
 deeds of arrangement and composition 
 for payment of debts, 812—818 
 
 infants or persons having a limited in- 
 terest, or executory devisees, may 
 convey mider decree for sale or 
 mortgage for payment of debts, 506 
 —8 
 
 damages for breach of covenant, 494 
 
 trust to pay bond debts, 494 
 
 operation of the Statute of Limitations 
 as regards debts, 493 
 
 buying up a charge, 495 
 
 crown debts, 496 
 
 terms for years liable for, 503 
 
 liability of real estates for debts, 503 
 
 to what debts issue in tail are liable, 
 508
 
 1234 
 
 INDEX. 
 
 DEBTS AND INCUMBRANCES (con- 
 tinued). 
 proportionate liability of joiutrcss and 
 
 issue in tail to, 509 
 voluntary discharge of, 509, 1196 
 compulsory discharge of, 510 
 keeping down interest on, 510 
 payment or retainer of debts, though 
 
 barred, 1075 
 concealment of, 385, 603,n. (r\ 837—8 
 abatement of, 513 
 assignment of, 732 
 duration of an interest by devise for 
 
 payment of, 227 
 release of, 717, 719, 722, 1219 
 jiower to pay, compound, compromise 
 or refer, 1082 
 
 DEBTOR. See Creditors — Creditors' 
 
 Deeds. 
 arrangements between debtors and 
 
 creditors, 812—818 
 appointed executor, 1076 — 7 
 marriage with, 495 
 bequest of sum due from, 496 
 legacy to, 1219 
 
 DECLARATION OF TITLE ACT, SCI 
 
 DECLARATION OF TRUST, 
 for what purpose used, 793 
 how trusts may be created and evi- 
 denced, 793 — 4 
 liow construed, 795 
 
 DECREES 
 
 to have eflect of judgments, 436 
 registration of, 437 
 
 DEEDS. See Void and Voidable Deeds 
 AND Contracts. 
 defined, 627 
 indentures, 627 
 deeds poll, 628 
 
 from what time a deed takes effect, 629 
 operate according to the oi'der of tlieir 
 
 times of delivery, 629 
 bad English in, 629 
 the several parts enumerated, 629 
 date, 630 
 parties, 631 
 recitals, 635 
 operative part, 636 
 parcels, 637 
 habendum, 647 
 reservation, 650 
 covenants, 653 
 indorsed receipt, 667 
 different kinds of, 669 
 operating by transmutation of posses- 
 sion ov not, 67<) 
 passing bv assignment of personal! v, 
 736 
 
 DEEDS {continued). 
 
 other than conveyances, 789 
 different kinds of, when considered 
 
 with reference to their olyects, 706 
 stamp, 875 
 execution, 876 
 
 reading, 876 
 
 signing, 876 
 
 sealing, 876 
 
 delivery, 877 
 
 attestation, 878 
 avoidance of, by disagreement, 873 
 enrolment and registration of, 682, 
 
 879, 886 -, 
 possession and transfer of, 886 
 attested copies of, 887 
 covenants to produce, 887 — 3 
 coiaccalmcnt of, 603, n. (V) 
 mistakes in, 889 
 alterations in, 891 
 general rules of construction of, 892 
 construction of particular expressions, 
 
 899 
 estoppel, 902 
 cancelling, 905 
 operating in a different way to what 
 
 was intended, 897 
 enuring in different ways, 898 
 deed operating as a will, 977 
 
 DEFEASANCE, 
 
 nature of, 738 
 when made, 738 
 
 DEFEASIBLE INTERESTS 
 
 defined, 372 
 
 their several kinds, 372 
 DEFORCEMENT 
 
 defined, 551 
 
 effect of, 549—50 
 DELIVERY 
 
 of a deed, 877 
 
 of property, where necessary, 732 — 3 
 
 DEMANDS, 
 
 release of, 719 
 
 DEMESNES, 
 
 meaning of, 643 
 
 part of copyhold estate, 121 
 
 DEMISE. See Lease. 
 
 creating an implied covenant, 655 
 
 DENIZATION, 1178 
 
 DEPOSIT 
 
 of deeds bv way of equitable secnrilv, 
 414 
 
 DERELICTION, 539 
 
 DESCENT. See Consanguixitv — Heir. 
 definition of, 464 
 lineal and collateral, 464
 
 INDEX. 
 
 1235 
 
 DESCENT (coidiii tied). 
 what clescenLls, 469 
 table of, oppot-ite to p. iUO 
 rules of descent of an estulc iu fee 
 simple, 
 
 by the common law, 470 
 
 as altered by the statute, 479 
 of an estate iu fee simple, 
 
 from whom traced, 
 
 by the common law, 470 
 by the statute law, 479 
 
 whether to heir ex parte materna, 
 471, 478 
 
 of an advowson, 471 
 
 of a remainder or reversion, 472 
 
 title by purchase acquired by one 
 who originally took by descent, 
 471 
 
 to descendants of the propositus, 
 473, 481 
 
 to issue of coparceners, 482 — 3 
 
 to the person who is heir on the 
 ancestor's death, 473 
 
 afterborn brother displacing a sis- 
 ter, 474 
 
 afterborn son displacing uncle, 
 474 
 
 lineal ancestors excluded by the 
 old law, but taking by the new 
 law, 474, 482 
 
 to descendants of lineal cognomi- 
 nal male ancestors, 474, 482 
 
 from one brother or sister to an- 
 other, 474, 482 
 
 kindred by the half-blood, 474 
 excluded by the common law, 
 
 474 
 taking by the statute law, 
 482 
 
 to descendants of ancestors of a 
 wife of a lineal cognominal male 
 ancestor, 475, 482, 484 
 
 preference of male sex and of 
 eldest male, 475, 482 
 
 coparcenary among females, 475, 
 482 
 
 right of propinquity among de- 
 scendants, 476, 483 
 
 light of representation among de- 
 scendants, 476, 483 
 
 preference of descendants of a less 
 remote lineal cognominal male 
 ancestor, 477, 483 
 
 preference of descendants of the 
 ancestors of the wife of a more 
 remote lineal cognominal male 
 ancestor, 477, 484 
 
 to collateral kindred of the wife 
 of a lineal cognominal male an- 
 cestor, 477, 484 
 
 DESCEMT [continued). 
 
 of an estate in fee simple, 
 
 from a person whose title was by 
 
 descent, 477 
 inheritances descendible ex parte 
 materna, cannot be created, 478 
 to lineal cognominal male ances- 
 tor's wives or their descendants, 
 ancestors, or collateral kindred, 
 482 
 preference (by the statute law) of 
 lineal cognominal male ances- 
 tor to his descendants, 483 
 preference (by the statute law) of 
 the less remote lineal cognomi- 
 nal male ancestor, 483 
 preference (by the statute law) of 
 the wives to their issue related 
 by the half-blood, 484 
 preference (by the statute law) of 
 the wife of a more remote an- 
 cestor, and her descendants, 
 ancestors, and collateral kin- 
 dred, 484 
 of the ancestors and collateral 
 kindred of the wife of a male 
 ancestor — who shall inherit by 
 the statute law I 484 
 preference of paternal line to nia- 
 
 ternal, 484 
 preference of male paternal line 
 
 to female, 484 
 pi-eference of male maternal line 
 
 to female, 485 
 what property affected by the Sta- 
 tute of Inheritance, 479 
 meaning of worils in the Statute 
 of Inheritance, 
 " land," 479 
 " purchaser," 479 
 "descent," and "descend- 
 ants," 479 
 "person last entitled," 480 
 "assurance," 480 
 summary of alterations made by sta- 
 tute, 485 
 order of succession stated genera'ly, 
 
 486 
 of estates tail, 487 
 bv special custom, 488 
 gavelkind, 488 
 borongh-EnglLsh, 489 
 copyholds, 490 
 custom of, to cease on commutation of 
 manorial rights, 128 
 or on enfranchisement, 135 
 in the case of illegitimate children, 
 
 1169 
 from or through an alien, 1179, 1180 
 cast, 550. 55!"»
 
 1236 
 
 INDEX. 
 
 DESCRIPTION. Sec rABCELS— Woiics. 
 
 DEVESTMENT, 
 
 nature of, •when caused by adverse pos- 
 session, 549 — 551 
 
 devesting words must be clear, 68, 992, 
 994 
 
 eflfect of, 77 
 
 not caused bv cancelling, 906 
 
 by fine, 926, '928 
 
 not to take place after payment, 1068 
 
 DEVISE. Sec Will. 
 operative words, 1037 
 ■words expressive of the nature of in- 
 terest, 1037 
 residuary devise includes lapsed and 
 
 void devises, 1037 
 interim income, 1038 
 disclaimer of, 1038 
 tending to a perpetuity, 1038 
 by a joint tenant, 237, 987 
 the parcels or subject, 1038 
 rents, 1038 
 where the word "estate" passes 
 
 all a testator's interest, 1038 
 where the word " estate " applies 
 
 to realty, 1039 
 where a general devise passes 
 
 leaseholds, 1040 , 
 Avhere a general devise passes 
 mortgaged or trust estates, 409, 
 1040—1 
 where a reversion passes, 1041 
 money devised or contracted to 
 be invested in the purchase of 
 lands, 1042 
 copyholds, 
 
 not within the old Statute of Wills, 
 ] 042—3 ; or Statute of Frauds, 
 973 
 devisable by general custom, 1043 
 surrender to the use of will, 1043 
 fees and fines, 1044, 1047 
 devise by tenant in tail, 1045 
 passing under general words, 
 
 1040, 1045 
 escheated copyholds passing with 
 
 manor, 1046 
 revocation by surrender of, 1046 
 entry of wills on the court rolls, 
 1047 
 made void as against covenantees or 
 obligees, &c. of the devisor, 604 
 
 DEVISEE. Sec Devise. 
 
 right of, before admittance, 967 
 freehold in, before entry, 1038 
 
 DIGNITIES, 56, n. {x) 
 
 DIRECTORS, 
 
 remuneration to, 1092 
 
 DISAGREEMENT 
 
 to a deed, 873 
 
 DISCLAIMER 
 
 of tenure, 566 
 
 of interest, 739, 879 
 
 in the case of joint tenants, 739 
 by married women, 1113 
 by trustees, 873, 1102 
 
 DISCONTINUANCE, 
 
 defined, 172—3, 547 
 
 how caused, 547, 676, 745, 931—934, 
 
 950 
 abolished, 547 
 effect of, 544 
 not to defeat right of entry or action, 
 
 559 
 
 DISJUNCTIVE, 
 
 grant of several things in the, 640 
 
 DISSEISEE, 
 
 confirmation by, 725 
 
 DISSEISIN, 
 defined, 546 
 partial, 548 
 effect of, 549 
 
 DISSEISOR, 
 
 assignee of tenant at will is a, 226 
 release to a disseisor or his heir or 
 feoffee, 712, 721 
 
 DISTRESS, 
 
 contracts by persons in, 856 
 
 DISTRESS, POWER OF, 
 
 incident to rent-service, 17 — 18 
 in the case of a rent-charge, 18 
 given by statute, 18 
 
 DISTRIBUTION 
 
 of the personal estate of an intestate, 
 by the general law, 527 
 by the customs of London and 
 York, 530 
 
 DIVIDENDS, 
 
 right to, on sale of life interest in 
 stock, 620 
 
 DOCTOR, 
 
 transactions between him and his pa- 
 tients, 834 
 
 DOMICILE, 983 
 
 DONATIO MORTIS CAUSA, 970 
 
 DOWER, 
 
 defined, 189 
 requisites to, 190 — 191 
 gavelkind lands, 189
 
 INDEX. 
 
 1237 
 
 DOWER (cohtinucd). 
 
 customs as to dower to cease on com- 
 mutation of manorial rights, or en- 
 franchisement, 128, 135 
 !ul ostium ecclesise and ex assensu pa- 
 
 tris abohshed, 190 
 out of what 
 
 entailed estate, 191 
 
 equitable estate, 190, 271 
 
 incorporeal hereditaments, 191 
 
 mines, 192 
 
 estate already assigned for dower, 
 
 192 
 a rent, 22 
 an advowson, 35 
 tithes, 39 
 
 estates divested, 77, 78 
 estate in joint tenancy, 192, 235 
 estate in coparcenary, 212 
 estate in common, 217 
 remainder or reTcrsion, 192 — 3 
 estate subject to a chattel interest, 
 
 193 
 land of which the husband is 
 
 mortgagee, 193 
 wrongful estate, 193 
 Jewess not entitled to, 193 
 when it attaches, 193 
 convej'ance iu fraud of, 193 
 widow has no estate till assignment, 191 
 assignment of dower operates by re- 
 lation, 191 
 how assignment of dower must be 
 
 made, 191 
 what may be assigned for, 194 
 effect of assignment of dower on land 
 
 fomierly granted by copy, 126 — 7 
 arrears of, 194 
 not affected by alienation or charge 
 
 prior to Dower Act, 193 
 ways of preventing (at law and equity) 
 a title to dower from arising, inde- 
 pendently of the Dower Act, 195 
 uses to prevent dower, 195 
 legal jointures, 197 
 terms for years, 201—2, 221 
 other modes of barring, losing, or pre- 
 venting a title to dower. 
 
 bar or loss of dower, at law and 
 in equity, after the title 
 has arisen, 
 bv fine or recoveiy, 201, 203, 
 
 "921—2, 948—9, 954 
 by exercise of a power of ap- 
 pointment, 203 
 by statutory modes, 203 
 by bargain and sale of lands 
 
 in Loudon, &c., 204 
 by divorce or adultery, trea- 
 son or felon v. 204 
 
 DOWEE (rontuiued). 
 
 other modes of barring, losing, or pre- 
 venting a title to dower 
 
 prevention or bar of dower in 
 equity, 205 
 by gift of a trust estate, 205 
 by ante-nuptial agreement 
 
 to settle lands, 205 
 by bond, 205 
 by election, 206 
 in-cvention or bar of dower under , 
 the Dower Act, 207 
 by alienation, 208 
 by declai'ation, 208 
 by a devise, 208 
 partially affecting dower under the 
 
 Dower Act, 208— 9 
 priorit}' over simple contract creditors, 
 
 209 
 agreement not to bar dower, 209 
 when it ceases, 188 
 alienation by tenant in, 567 
 surrender by a woman entitled to, 727 
 in the case of an alien, 1179 
 in the case of an exchange, 193 
 
 DOAYRESS, 
 
 delivery up of title deeds by, 887 
 
 DRUNKENNESS 
 of testator, 972 
 
 DURESS, 
 
 relief against acts done under duress, 
 856 
 
 "DURING," 
 
 denoting a special limitation, 64 
 
 DUTIES, 
 
 release of, 722 
 
 EASEMENTS, 5 
 
 claim to, by prescription, 542 
 
 ECCLESIASTICAL PERSONS. See 
 Clergy — Corpobatiox, &c. 
 are quasi tenants for life, 180 
 waste by, 1190 
 
 ECCLESIASTICAL COMMISSIONERS 
 
 gifts to, 303 
 
 EDUCATION, 
 
 bequest for promotion of, 282 
 
 EJECTMENT, 
 
 by a mortgagee, 376, 399 
 
 ELECTION 
 
 defined, 1208 
 principle of, 1208
 
 1238 
 
 lADEX. 
 
 ELECTION {continued). 
 
 where it arises in equity, 1208 
 by an appointee, 1209 
 by the heir, 1026, 1211 
 
 to what extent a person electing against 
 a will forfeits the devise or bequest, 
 1212 
 
 where property of the person electing 
 is mortgaged, 1212 
 
 as to one benefit, 1212 
 
 in the case of a settlement, 1213 
 
 need not be made in ignorance of cir- 
 cumstances, 1213 
 
 presumed, 1213 
 
 none in the case of creditors, 1213 
 
 disability of part}', 1214 
 
 by jointress, 201 
 
 by a married woman, 1117 
 
 by widow, 206 
 
 grant rendered certain by, 638 
 
 to take property in an unconverted 
 state, ] 201 
 
 ELEGIT, 
 
 nature of, 421 
 
 execution rxndcr, 421 
 
 estate by, is a chattel, 228 
 
 extension of remedy by stat. 1 & 2 
 
 Vict. c. 110, p. 422 
 extinction of, 454 
 merger, 1193 
 
 EMBLEMENTS. .See Ckop.s. 
 
 right of tenant for life or his under- 
 tenant to, 176 
 right of tenant for years to, 219 
 statutory extension of occupation in 
 
 lieu of. 176 
 right of dowress to, 194 
 riglit of widow to, in case of freebcncli, 
 
 212 
 right of jointress to, 200 
 in the case of an estate at will, 225 
 in the case of estate in fee, 1074 
 
 ENCROACHMENTS, 548 
 
 ENFRANCHLSEMENT 
 
 of copyholds, 128—142 
 
 of customary freeholds, 135 
 
 at common law, 125 
 
 by statute, 128 
 
 voluntary, 125, 128 
 
 compulsory, 131 
 
 deed of, 12.5, 134 
 
 consideration for, 128, 131, 132, 138, 
 
 139 
 effect of, 53, 128, 134—7 
 charge of expenses of, 128, 135, 138 — 9 
 
 ENLARGEMENT 
 
 of an estate upon a condition, 331 
 
 ENROLMENT. <bte Inholment. 
 ENTAIL. See Fee Tail. 
 
 ENTIRETIES, 
 
 tenancy by, 239 
 
 ENTRY, 
 
 power of, for securing a rent-charge, 18 
 right of, 
 
 of heir, 342 
 
 of person who has lost the posses- 
 sion, 342 
 
 for breach of a condition, 342 
 
 in case there should be a breach 
 of a condition, 343 
 
 devise of, 985, 988 
 
 release of, 718, 860 
 
 assignment of, 860 
 
 on a lease, 692—3, 699 
 not to be deemed possession, 555 
 where necessary, 692 
 
 EQUITABLE ESTATES AND INTER- 
 ESTS, 248. See Trusts. 
 conveyance of, 271, 745 
 
 EQUITY OF REDEMPTION. See Mort- 
 gage. 
 
 EQUITY TO A SETTLEMENT, 1145. 
 See Married Women. 
 
 ERASURE 
 
 in a deed, 891 
 
 ESCHEAT, 
 defined, 533 
 title of lord by, 533 
 of an equitable estate, 533 
 of a copyhold, 123 
 of equity of redemption, 533 
 of an estate of trustee or mortgagee, 
 
 533-4 
 waiver of, 534 
 on attainder, 564 
 escheated copyholds passing by devise 
 
 of manor, 1046 
 
 ESCROW, 878 
 
 ESTATE, 
 
 words denoting its duration, 63 — 5 
 where the word " estate " carries the 
 
 fee, 149 
 determinable on the receipt of a sum, 
 
 or on payment of debts out of it, 
 
 175—6 
 in severalty or community, 229 
 
 ESTATE IN FEE SIMPLE. Sec Fee 
 
 Simple. 
 
 ESTATE TAIL. Sec Fee Tail.
 
 iN])i-:x. 
 
 1:239 
 
 ESTATE TAIL, AFTER POSSIBILITY 
 OF ISSUE EXTINCT, 182 
 
 ESTATE FOR LIFE. See Life. 
 
 ESTATE FOR YEARS. See Term- 
 Years. 
 
 ESTATE AT WILL. Sec Will. 
 
 ESTOPPEL, 902 
 definition, 902 
 different kinds, 902 
 how regarded, 902 
 reciprocit}' necessary, 902 
 affirmation pi-ecise and certaiu, 902 
 a general recital does not, but a par- 
 ticular recital does, work an estoppel, 
 
 902 
 where estoppel by recital is upon one 
 
 person only, 902 — 3 
 estoppel confined to proceedings on the 
 
 deed, 903 
 who are bound by, and may take 
 
 advantage of, estoppels, 903 
 interest created by an estoppel under 
 
 an indenture, 904 
 by deed poll, 905 
 does not preclude proof of fi'aud or 
 
 illegality, 905 
 by fine, 916 
 
 or recovery, 94(3 
 as to payment of money, G68 
 executory interests, bound by, 803 
 
 ESTOVERS, 
 
 right of tenant for years to, 219 
 right of tenant for life to, 181 
 passing with, not without, a house, 
 C39 
 
 ESTRAYS, 54 
 
 EVIDENCE. 
 
 where parol evidence admissible, 
 as to a deed, 872, 890—1, 89G— 7 
 as to a will, 990—1, 1215 
 
 EXCEPTIONS OUT OF PARCELS, 
 
 rules as to, 646 
 in habendum, 650 
 of trees, mines, and quarries, G51 
 distinction between them and charges 
 where the purposes fail, 364 
 
 EXCHANGE, 
 
 defined, 702 
 
 modes of effecting, 705 
 
 requisites to an exchange at common 
 
 law, 702 
 warranty or condition in law, formerly 
 
 implied, 704 
 no condition in law to bo now implied, 
 
 705 
 
 EXCHANGE {continued). 
 
 power of exchange under the stat. 23 
 
 & 24 Vict. c. 145, p. 1095—1101 
 under a power, 705 
 by a tenant in tail, 706 
 title to lands taken in, 602 
 operating as a grant, 898 
 of wife's land, 1115 
 by infant, 1160—1 
 dower in the case of an exchange, 193 
 
 EXECUTION 
 
 under writ of fi. fa., or elegit, 452 
 
 EXECUTOR. See Emblements— Trus- 
 tees. 
 
 Avho is, 1069 
 
 who may be, 1069 
 
 how appointed, 1069 
 
 several for different purposes, 1072 
 
 probate, 1072 
 
 acts before probate, 1073 
 
 personalty vests in, who becomes liable 
 to creditors and legatees, 1074 
 
 is a trustee of the assets, 1094 
 
 where he takes an estate, and where a 
 power, 1074 
 
 executors take a joint and several in- 
 terest, 1074 
 
 transmission of representation, 1072 
 
 sales by, 368, 1077 
 
 purchases by, 834 — 5 
 
 right to damages, covenants, or duties, 
 1075 
 
 payment or retainer of debts, though 
 barred, 1075 
 
 power of one, 1075 
 
 assent to a legacy, 1076 
 
 creditor, debtor, obligor, or obligee 
 appointed executor, 1076 — 7 
 
 carrying on testator's business, 1077 
 
 right to undisposed of residue, 1078 
 
 power to sell or mortgage, 368 
 
 power to convey mortgaged estate, 411 
 
 taking as special occupant, 536 — 7 
 
 reservation of rent to executors, 653 
 
 liability of, under a covenant, 658, 695 
 
 indemnity to, 695, 801, 1064 
 
 usually named in a lease, 1081 
 
 executors and administrators protected 
 in acting under powers of attorney, 
 or distributing assets, 362, 659 
 
 of a covenantor or obligor bound with- 
 out being named, 658 — 9, 790 
 
 appointment or limitation to the exe- 
 cutors or administrators of a settlor, 
 810 
 
 " executors or administrators" as words 
 of limitation, 1081 
 
 legacy to, 1015, and Addenda to that 
 page
 
 1240 
 
 INDEX. 
 
 EXECUTOE {continued). 
 
 a witness to a will, 982 
 
 remuneration, 1092 
 
 of unsound mind, or out of jurisdic- 
 tion, or not to be found, or not 
 known to be living, 1103 
 
 renunciation or neglect to take pro- 
 bate, 1082 
 
 EXECUTORY DEVISE, BEQUEST, OR 
 LIMITATION. See Execdtory 
 
 Interests. 
 meaning of the term, 335 
 
 EXECUTORY INTERESTS, 
 meaning of the term, 317, 332 
 their several kinds, 
 
 certain executory interests, 318 
 contingent executory interests, 
 
 318 
 springing interests, 333 
 alternative interests, 334 
 interests under augmentative li- 
 mitations, 334 
 interests under diminuent limita- 
 tions, 335 
 interests under conditional liiiiitations, 
 
 335 
 transmission of, 340 — 1 
 rules for determining whether an in- 
 terest is vested or cxecutorv, 318 
 destrviction of. 341, 952 
 when releasable, 718 
 assignment or grant of, 860 
 
 EXECUTORY TRUSTS, 
 construction of, 269 
 application of rule in Shelley's case to, 
 
 163, 270 
 in favour of a person and the heirs of 
 his body or his issue, 163 
 EXONERATION 
 
 of personal estate, 514 
 of a specific legacy, 526 
 
 EXPECTANCY, 
 defined, 343 
 assignment or alienation of, 826 — 7, 
 
 860 
 of issue in tail, 776 — 7 
 
 EXTENT, 421. See Statute Merchant, 
 AND Staple and Elegit. 
 effect of on land formerly granted by 
 copy, 127 
 
 FAILURE 
 
 of the cause of a grant, 825 
 
 FAIR, 
 
 right to hold, 54 
 granted by copy, 122 
 
 FAMILY, 
 
 bequest to a, 1012—13 
 
 FAMILY ARRANGEMENT, 
 
 deeds of, 811 
 
 FARM, 
 
 what passes by the term, 642 
 
 FEE 
 
 subject to a condition or conditional 
 
 limitation, 154 
 limitation over, after the expiration of 
 
 a, 322 
 
 FEE, BASE OR QUALIFIED, 153, 173 
 
 FEE CONDITIONAL, 
 at the common law, 154 
 
 FEE LIMITED, 153 
 
 FEE SIMPLE, 
 
 defiuition of, 147 
 
 when a fee passes 
 by deed, 147 — 8 
 by will, 148—151 ^ • 
 
 cannot be surrendered, 727 
 
 FEE TAIL. See Debts— Tenant in Tail. 
 
 origin of, 155 
 
 defiuition of, 156 
 
 general or special, 156 
 
 male or female, 157 
 
 what words are necessary to the crea- 
 tion of, 157 — 8 
 
 devise upon trust to settle upon the 
 issue in tail male, 159 
 
 under a limitation to the heirs of the 
 body of a person, 160 
 
 under the rule in Shelley's case, 160 
 
 in the case of a devise to a person, with 
 remainder to his issue, 165 
 
 in the case of a devise to the child of 
 an unborn child, 166 
 
 in the case of an intended perpetual 
 succession of life estates, 167 
 
 by implication, 167 
 
 imder the cy pres doctrine in the case 
 of an appointment, 1 69 
 
 several estates tail in succession, 169 
 
 in whom an estate tail vests, where 
 both husband and wife are men- 
 tioned, 170 
 
 descent, 487 
 
 what may be entailed, 170 
 
 mortgage by a tenant in tail, 404 
 
 obligation of a tenant in tail or issue 
 in tail to pay debts or keep down 
 interest, 508 
 
 leases by tenant in tail, 686 
 
 exchange by him, 706 
 
 partition by him, 709 
 
 release by him, 716
 
 INDEX. 
 
 1241 
 
 FEE TAIL (continued). 
 
 alienation, by the old law, 172 
 
 effect of coutx'acts of ancestor on issue 
 
 in tail, 173 
 alienation by a quasi tenant in tail of 
 
 an estate pour autre vie, 174: 
 tenant in tail could not be restrained 
 from suffering a recovery or levying 
 a fine within the statutes, 99 
 proviso for determining, 102 
 how long protected, 339 — 340 
 cannot be surrendered, 727 
 disposition of, by the new law, 
 in the case of freeholds, 776 
 copyholds, 781 
 bankrupts' estates, 
 783 
 dispositions in the case of money sub- 
 ject to be invested in laud to be 
 entailed, 785 
 waste by, 1190 
 does not merge, 1192 
 
 FELLOWSHir, 
 
 assignment of the income, 857 
 
 FELONY, 
 
 forfeiture for, 564 
 trustees convicted of, 1105 
 
 FEOFFMENT 
 
 defined, 671 
 
 two parts of, 671 
 
 must now be by deed, 671 
 
 livery in deed or in law, 671 
 
 where necessary, 672 
 
 who may give, 672 
 
 of what made, 672 
 
 when made, 673 
 
 by attorney, 673 
 
 in the case of several pieces of 
 land, 674 
 
 when a fi'cehold estate is created 
 expectant on another estate, 
 674 
 
 memorandum of, 674 
 
 supplied, 675 
 
 the land passes by, 675 
 operative words, 675 
 operation of, 675 
 opei'ating as a covenant to stand seised, 
 
 or a surrender, 898 
 in execution of a power, 750 
 remainder not conveyed by, 675 
 
 FIERI FACIAS, 
 
 execution under, 452 
 
 FINE 
 
 defined, 911 
 
 mode of levying, 911 
 
 FINE [continued). 
 four kinds of, 912 
 abolition of, 913 
 in an unauthorised court, 913 
 errors in, 913 
 neglects and omissions as to fines in 
 
 Wales and Cheshire, 914 
 when completed, 915 
 when it began to operate, 915 
 what estate it passed, 915 
 its efl[icacy varied with circumstances, 
 
 915 
 its operation may be qualified, 918 
 modes of its operation, 915 
 
 I. By way of conclusion or estop- 
 pel, 916 
 
 II. As an ordinary conveyance, 
 918 
 
 TIL As an extinguishment of a 
 right of entry or action, 920 
 
 IV. As an extinguishment of a 
 power appendant or in gross, 
 360, 920 
 
 V. As a revocation of a devise, 
 921 
 
 VI. As a conveyance of the estate 
 of a married woman, or as an 
 extinguishment of her dower, 
 201—3, 921 
 
 VII. Asa bar to the heirs in tail 
 of a coguisor, 922 
 
 VIII. As an instantaneous bar of 
 contingent remainders, 925 
 
 IX. As a simple devestment,with- 
 out causing any bar in case of 
 non-claim, 926 
 
 X. As a forfeiture, 566 — 7, 927 
 
 XI. Both as a devestment and as 
 a bar in case of non-claim, 928 
 
 XII. As a discontinuance, without 
 causing any bar in case of non- 
 claim, 931 
 
 XIII. Both as a discontinuance, 
 and as a bar in case of non- 
 claim, 933 
 
 XIV. As a bar in case of non- 
 claim, without causing a de- 
 vestment or discontinuance, 
 934 
 
 operation of fines and the operation of 
 
 recoveries contrasted, 959 
 acceleration of incumbrances by the 
 
 operation of a fine, 960 
 alteration in the mode of descent by 
 
 the operation of a fine, 960 
 levied in a local court, 945 
 how avoided, 942 
 by a person seised in fee simple in 
 
 possession, remainder, or reversion, 
 
 934
 
 1242 
 
 JNHK.K. 
 
 FINK {continued). 
 
 by the ownci" of the lee, where there is 
 
 an outstanding term, 939 
 by a person who had an executory in- 
 terest iu fee or an expectancy in fee, 
 919 
 )«y the owner of a particuhir estate in 
 
 possession, 925—9, 931—5 
 by or to a remainderman or rever- 
 sioner, 934, 937 
 l)y or to a tenant in tail. ,^ee Tenant 
 "in Tail. 
 by a tenant in tail after possibility of 
 
 issue extinct, 567 
 by a grantee of a tenant in tail, 929 
 by issue in tail, 922, 923, 932 
 by a tenant for life in possession, 5GG 
 —7, 925, 927 
 witliout proclamations, 92G 
 with proclamations, 928 
 by an equitable tenant for life, 928 
 by a remainderman for life, 935 
 by a stranger to a tenant in tail, 925 
 by a mortgagor or mortgagee, 404, 
 
 941—2 
 by a lessor, 939—40 
 by a tenant for years, 928 
 by a copyholder, 928 
 I'V a married woman alone, 917 
 
 or jointly with her husband, 921, 
 1112 
 by a husband alone, 922 
 by an infant, 1158 
 by a joint tenant to a stranger, 940 
 by one joint tenant to another, 918 
 by one coparcener to another, 919 
 by disseisee, 920 
 by a person having an estate by wrong, 
 
 938 
 by a person claiming as heir, 938 
 by a devisee under a void devise, 939 
 by a person whose possession was that 
 of the person sought to be barred, 
 939 
 by a person having no interest to 
 another having no interest, 917,937 
 for conveyance of equitable estate, 271 
 deeds to lead or declare uses of, 747 
 in execution of a power, 750 
 
 FINES AND RECOVERIES ACT. For 
 
 the particular sections, see Statutes, 
 
 Stat. 3 & 4 W. IV. c. 74. 
 J. Assurances by persons liable after 
 
 the 31st Dec. 1833, to levy a fine or 
 
 suffer a recovery, 775 
 II. Dispositions of freehold lands by 
 
 tenants in tail, issue in tail, and 
 
 persons entitled to base fees, in 
 
 general, 77G 
 
 FINES AND RECOVERIES ACT (con- 
 tinued). 
 
 III. Dispositions by tenants in tail 
 and owners of base fees, in copv- 
 holds, 781 
 
 IV. Dispositions of lands of which 
 bankrupts are tenants in tail, or in 
 which they have base fees, 783 
 
 V. Dispositions in the case of money 
 subject to be invested inland which 
 is to be entailed, 785 
 
 VI. Dispositions by married women, 
 786 
 
 FINES (PAYMENTS) 
 
 on admittance to copyholds, 967 — 8 
 
 FIEE, 
 
 obligation to pay rent, notwithstand- 
 ing, 665 
 responsibility for, 1189 
 
 FIREBOTE, 40 
 
 FISH, 
 
 grant of, 639 
 
 FISHERY, 54 
 FIXTURES, 377, 1057 
 FLOOR, 
 
 inheritance in a, 3 
 FORECLOSURE, 386 
 FORESTS, 53 
 
 FORFEITURE, 
 
 defined, 563 
 
 causes of, 563, 927, 949 
 
 effect not given to clause of, unless 
 
 clearly expressed, 68 
 by one joint tenant, 234 
 by an infant, of copyholds, 571, 965 
 by a married woman, 1117 
 of equitable life estate, 271 
 of copyholds, 569 
 waiver of, 569 
 relief against, 74 
 
 FRANCHISES, 53 
 FRANKALMOIGN, 118 
 
 FRAUD. See Void and Voidable Deeds 
 
 AND Contracts. 
 fraudulent conveyance, 279 
 fraudulent devises, statute of, 504 
 fraudulent appointment, 759 
 falsifying pedigree, 603, n. (e) 
 on marital rights and expectations, 
 
 810 
 on creditors, 814, 838, 845 
 fraudulent concealment of documents 
 
 of title or incumbrances, 384, 603, 
 
 n. (f)
 
 INDEX. 
 
 124:] 
 
 FRAUDS, STATUTE OF, fi21 
 
 FREEBENCH, 
 
 of what it consists, 210 
 
 of life estates, 210 
 
 no freebeneli of an equitable estate, 
 
 210 
 when it attaches, 211 
 is perfect without admittance, 211 
 barred by 
 
 jointure, 211 
 alienation, 211 
 barred by agreement, 211 
 forfeiture, 211 
 
 conveyance by the lord, 211 
 devise, 211 
 custom as to freebench to cease on 
 commutation of manorial rights, or 
 enfranchisement, 128, 135 
 effect of a lease, 211 
 emblements, 212 
 
 FREEHOLD, 
 
 definition of an estate of freehold dura- 
 tion, 143 
 
 as distinguished from copyhold, 117 
 
 different kinds of freehold tennres, 117 
 
 customary, 120, 987—8 
 
 freeholds of inheritance and not of in- 
 heritance, 146, 175 
 definition of, 147, 175 
 several kinds, 147, 153, 177 
 
 interests of freehold duration and in- 
 tests less than freehold distin- 
 guished, 143 
 
 no freehold out of a chattel interest, 
 146 
 
 different senses of the term as denoting 
 the quantity of interest, 175 
 
 estates or interests less than, 213 
 
 commencing in futuro, 675 
 
 FEEE-WAEREN, 53 
 
 FREIGHT, 
 
 assignment of, 864 
 
 share of, passing with share of ship, 
 734, 865 
 
 " FROM AND AFTER," 
 
 whether expressive of contingency, 318 
 
 FRUIT, 
 
 gi-antof, 644 
 
 GAME, 
 
 right to shoot, kill, and take, 4 
 
 GARDEN, 
 
 passing by grant of a house, 639 
 
 GAVELKIND LANDS, 117 
 
 curtesy, 187 
 dower, 189 
 descent, 489 
 
 limitation of gavelkind lands to the 
 right heirs, 1011 
 
 GENERAL WORDS 
 in a deed, 638, 641 
 
 GIFT 
 
 of real ov personal estate, 677- 8 
 
 GIVE, 
 
 where the word " give," creates an 
 implied covenant, 656 
 
 GLEBE 
 
 cannot be granted, 36 
 
 GOODS, 
 
 what passes by the terno, 642 
 
 GOODWILL 
 
 defined, 402 
 
 rules respecting, 402, 619 
 mortgage including, 402 
 sale of, 619 
 
 GOVERNMENT, 
 
 assignment by persons holding office 
 under, 856 — 7 
 
 GRANT 
 
 defined, 678 
 
 what may be conveyed or created by, 
 
 678 
 operative words, 679 
 operation of a, 679 
 where the word " grant " creates an 
 
 implied covenant, 656 
 operating as a confirmation, and vice 
 
 versa, 897 
 operating as a covenant to stand seised, 
 
 897—8 
 exchange operating as a, 898 
 statutory, 747 
 royal, 909 
 a man cannot derogate from his own 
 
 grant, 596 
 
 GRASS, 
 
 grant of, 644 
 
 GREENWICH HOSPITAL, 
 
 gifts to, 303 
 
 GUARDIANS. See Infants. 
 appointment of, 1156 
 transactions between guardians and 
 their wards, 831
 
 1244 
 
 l.\i)K.\". 
 
 HABENDUM, 
 
 use of, 647 
 
 ■where repugnant and void, 647 
 
 where it explains the premises, 648 
 
 ■where premises and habendum have a 
 several operation, 649 
 
 ■where use declared is not commensu- 
 rate with the estate in the premises, 
 649 
 
 ne"w subject or exception in the ha- 
 bendum, 650 
 
 t^yo or more grants and one habendum, 
 or one grant and t'wo or more haben- 
 dums, 650 
 
 HALF BLOOD, 
 
 when excluded, 474—5, 488, 490 
 
 HAYBOTE, 50 
 
 HEDGEBOTE, 49— 50 
 
 HEDGES, 
 
 waste in, 1185 
 
 HEIE OK HEIRS. /See Descent, Words. 
 defined, 464 
 where a necessary word in the creation 
 
 of 
 
 a fee, 147—152 
 an estate tail, 157 — 8 
 devise to, after death of anothei-, 179 
 who takes under a limitation to, 337 
 where heir takes as a purchaser under 
 
 a devise, 462, 481 
 where he takes by descent, though he 
 
 be a devisee or grantee, 472 — 3 
 whei'e a word of limitation, and where a 
 
 word of purchase, 63 — 5, 160 
 resulting trust in favour of, 273 — 277 
 exclusion of, 277 
 where limitations to heirs or heirs of 
 
 the body do not create contingent 
 
 remainders, 327 
 nemo est hares viventis, 466 
 apioarent, 466 
 presumptive, 466 
 requisites to support claim of heirship, 
 
 466 
 of illegitimate child, 468 
 birth of a nearer, 466, 473, 487 
 seisin of, 471 
 not seised of the part assigned to the 
 
 widow for dower, 475 
 right of, before admittance, 966 
 limitation to heir or heirs of the body 
 
 of an ancestor, 481 
 taking as special occupant, 535 
 right of heir to have estate purchased 
 
 out of his ancestor's personalty, 625 
 
 HEIR OP. HEIRS [mntlnued). 
 
 explained to mean heirs of the body, 
 
 648 
 reservation of rent to, 652 
 hope or chance of succession not re- 
 
 Icasablo, 718 
 liability of, under covenant, 663 
 where bound by a bond, 790 
 cannot take advantage of a bond, 790 
 bargains with expectant heirs, 826 
 meaning children, 1008 
 devises to heirs or descendants, 1008 
 bequests to a person and his heirs, or 
 
 to the heirs of a person, 1011 
 his title to undisposed of produce of 
 
 real estate, 1203 
 election by, 1211 
 
 HEIRLOOMS, 
 
 what are, 469 
 alienation of, 469 
 waste in, 1190 
 
 HERBAGE, 
 
 granted by copy, 122 
 
 HEREDITAMENT, 
 
 meaning of the word, 2 
 
 HERIOTS, 969 
 
 extinguishment of claim to, 135 
 
 HOLDING OVER, 218, 227 
 
 HOPE OF SUCCESSION, 
 not releasable, 718 
 devise of, 985 
 
 HOUSE, 
 
 what passes by the term, 639, 642 
 waste in houses, 1188 
 
 HOUSEBOTE, 49 
 
 HUSBAND. See Maeeied Women. 
 alienation by, 
 
 when seised or possessed jure ma- 
 
 riti, 1124 
 when tenant by the curtesy, 184, 
 
 567 
 when tenant by entu-eties, 239 
 right of, to the wife's effects on her 
 
 death, 527 
 leases by, 686-690 
 partition by, 238 
 covenant by, 797 
 loan to, 807 
 
 frauds on marital rights or expecta- 
 tions, 810 
 not admitted to copyhold, 966
 
 INDEX. 
 
 1245 
 
 HUSBAND AND WIFE, ^ce Markied 
 
 Women— Entireties. 
 bequest to husband and wife for their 
 
 lives, 239 
 conreyauce or devise to them before 
 
 marriage, 239 
 conveyance, devise, or bequest to them 
 
 and some other person or persons, 
 
 239 
 alienation of an estate held by them as 
 
 tenants hy entireties, 239 
 mortgage by, of the -wife's estate, 406 
 where they only talce one share, 1059 
 
 IDIOTS. See Lunatics. 
 " IF," 
 
 importing a condition precedent, 320 
 importing a special or collateral limi- 
 tation, 64—5, 320 
 referring to the time of vesting in pos- 
 session, 321 
 
 ILLEGITIMATE CHILDREN, 
 incapable of succession, 1169 
 succession to real or personal estate of, 
 
 1169 
 provision for illegitimate children not 
 
 in esse, 1170 
 do not take under denomination of 
 
 children or issue, or next of kin, or 
 
 relatives, 1171 
 heirs of, 468 
 
 ILLUSORY APPOINTMENTS, 760 
 
 I?»[PLICATION, 
 
 estate by, 167 
 
 estate for life bj^, 179 
 
 powers containing gifts by, 348, 352 
 
 what is meant by plain implication, 
 
 1018 
 devise or bequest by, 1018 
 
 IMPROVEMENT OF LANDS, 369, n. 
 
 " IN CASE," 
 
 importing a condition precedent, 320 
 importing a special or collateral limi- 
 tation, 320 
 referring to the vesting in possession, 
 321 
 
 INADEQUACY 
 
 of the consideration, 825 
 
 jNCLOSURE of COMMONS, 51 
 title under Inelosure Act, 602 
 
 INCORPOREAL THINGS 
 defined, 4 
 
 distinction between things corporeal 
 and incorporeal, 4 
 
 INCOEPOREAL THINGS (continued). 
 remainders and reversions sometimes 
 
 so termed, 4 
 how conveyed, 678 
 were said to lie in grant, 5, 678 
 rent out of, 21 
 
 subject to cuitesy and dower, 185, 191 
 occupancy of, 537—8 
 disseisin of, 546 
 
 are within the Statute of Uses, 257 
 leases of, 691 
 
 conveyed by lease and release, 744 
 effect of fine on, 941 
 
 INCUMBRANCES. See Charge— Debts 
 
 — MOKTGAGES. 
 
 searching for, 854 
 
 INDEMNITY, 
 
 title with, 601 
 
 against calls and other payments, 418 
 
 against incumbrances, 618 
 
 statutory clause of, 1091 
 
 against repairs, 695, 801 
 
 covenants of, on sale of leaseholds, 695, 
 
 800 
 right of executor, 1064 
 to bankrupt, 801 
 to his assignees, 801 
 
 INDENTURE 
 defined, 627 
 origin of, 627 
 mode of indenting, 627 
 reason for indenting, 628 
 indenting not now necessary, 628 
 originals and counterparts, 628 
 words of, how construed, 895 
 estoppel by, 902 
 
 INDUCTION, 35 
 
 INFANTS, 
 
 appointment of guardians, 1156 
 
 acts of, 1156 
 
 conveyance to, 1156 
 
 contracts in general, 1157 
 
 contracts for annuities, 1157 
 
 purchases, 873, 1157 
 
 alienation, 1157 
 
 execution of powei's, trusts, &c., 1157 
 
 presenting to a benefice, 1158 
 
 fine or recovery, 1153 
 
 feoffment, 1158 
 
 deed taking effect by delivery, 1158 
 
 admittance to copyholds, 965 
 
 surrendering leases and taking new 
 
 ones, 1158 
 granting leases of estates of infants, 
 
 1158 
 partition, 242, 706—7 
 agreements on behalf of infants, 1159
 
 124<; 
 
 INDKX. 
 
 INFANTS (roniiniied). 
 
 marriage settlements, llt'O 
 letter of attorney, 1160 
 exchange, 1160 
 wills, llGl 
 
 performance of condition, 11 01 
 may convey nnder decree for sale or 
 mortgage for payment of debts, 50G 
 portions and legacies to, 1161 
 ■\vliat is a portion, 1161 
 time for raising, 1162 
 interest, 1162 
 
 where not to be raised, 1162 
 payment of legacy to, 1162 
 maintenance, 1163 
 
 of a child of the testator, or one 
 
 treated as such, 1163 
 of a grandchild or stranger, 1163 
 where accumulation is directed, 
 
 1164 
 apportionment, 1164 
 depends on circumstances and 
 
 state of family, 1164 
 devises and bequests to a woman 
 for her children or herself and 
 children, 1166 
 effect of gifts for " maintenance, 
 education, and bringing up," 
 1166 
 statutory provisions as to, 1168 
 liarred of dower by a jointure, 198 
 heir or devisee of a mortgagor, fore- 
 closure against, 386 
 appointment to an. 760 
 estoppel in favour of, 904 
 devise to an infant unborn, lOOf) 
 devise to an infant not a trust, 277 
 trustees or mortgagees, 1103 
 keeping do^Ti interest, 510 
 
 INHABITANTS, 
 
 purchases by, 634, 1184 
 
 INHERITANCE. See Descent, 
 defined, 464 
 
 INITIALS, 1003 
 
 INEOLMENT 
 
 of annuity deeds, 15 
 
 of charity deeds, 288—9, 311—320 
 
 of bargain and sale, 684 
 
 of disposition bv a tenant in tail, 780, 
 
 782-4 
 of consent, 780 
 of deeds for safe custody, 886 
 of wills, 977 
 acknowledgment not necessary to in- 
 
 rolment since stat. 31 & 32 Vict. 
 
 c. 44, p. 314 
 
 INSOLVENCY, 
 
 general or particular assignees repre- 
 sent insolvent, and take subject to 
 the same equities, 737 
 
 deeds of arrangement and composition, 
 812—818 
 
 cesser of life interest on, 100, 584 
 
 sale of property, G18 
 
 purchases by assignees and solicitors 
 of insolvent estates, 835 
 
 INSUEANCE, 389, 653, n. (h). See Poli- 
 cies. 
 
 INTENTION 
 
 of parties to deeds 
 
 to be effectuated, 892 
 how collected, 892 — 7 
 
 of testator, 
 
 to be effectuated, 989 
 how collected, 990—997 
 particularsacrificed to general, 994 
 
 INTEEESSE TEEMINI, 
 nature of, 213, 216 
 may be assigned or made subject of 
 
 an underlease, 216 
 cannot be enlarged, 714 
 cannot be confirmed, 724 
 release of, 216, 717 
 cannot be surrendered, 216, 727, 729 
 not barred by fine, 940 
 
 INTEREST. See Maintenance. 
 
 when due, 495 
 
 on mortgage, 378, and Addenda to 
 p. 416 
 
 conversion into principal, 378 
 increase of, 378 
 
 of property bequeathed, 1064 
 
 apportionment of, 378 
 
 recovery of arrears of, 378 
 
 on judgment debts, 435 
 
 obligation to keep down, 510—11 
 
 to be paid by purchaser, 623 
 
 to be paid by vendor, 024 
 
 when interest passes as avcU as prin- 
 cipal, 1054 
 
 where a bequest of interest passes the 
 principal, 1054 
 
 where dividends for a certain period 
 pass as if given as a gift of principal, 
 1054 
 
 INTERESTS, 
 
 words denoting quantity of interest, 
 63—5 
 
 both legal and equitable, 315 
 
 clothed with the ownership, and col- 
 lateral to the ownership, 316 
 
 vested and executory, 317. See Ve.sted 
 and Executoky Interests.
 
 INDEX, 
 
 1247 
 
 INTEELINEATION 
 
 in a deed, 891 
 in a will, 982—3 
 
 INTESTACY. See Administratiun. 
 leaning against, 995 
 
 INTESTATES. See Administration. 
 bar to claim on property of, 560 
 
 INTEUSION, 
 defined, 546 
 effect of, 549 
 
 INVESTMENT. See Tru.stees. 
 
 IRELAND, 
 
 power to lend money on real securities 
 in, 1090 
 
 ISSUE, 
 
 when a word of purchase, and when a 
 word of limitation, 165 
 
 ill adapted for a word of purchase, 165 
 
 devise to a person for life, with re- 
 mainder to his issue, 165 
 
 failure of issue, whether indefinite, 
 168 
 
 limitation on an indefinite failure of, 338 
 
 substituted for parent, 1004 
 
 bequests to, 1004—1008 
 
 JEWELS, 1131 
 
 JEWESS 
 
 has no dower, 193 
 
 JOINT-TENANCY, 
 
 defined or described, 230 
 who may be joint tenants, 231 
 ccpiality, 231 
 
 where there is not a joint right of sur- 
 vivorship, 231 
 gift to two for their lives, 231 
 for life, with several inheritances in 
 
 tail, 231 
 not by act of law, 232 
 exceptions to, in equity, 232 
 unity of interest, 233 
 title, 234 
 time, 234 
 possession, 234 
 alienation or forfeiture, 23 1 
 grants or charges by joint tenants, 234 
 leases by joint tenants, 235, 690 
 release by a joint tenant, 712 
 no dower or curtesy of estate in, 235 
 surrender by lessee to one joint tenant, 
 
 235 
 conveyance by one joint tenant to an- 
 other, 235 
 effect of alienation or lease to a 
 stranger', 236 
 
 JOINT-TE N A NC Y (contin ucd). 
 
 effect of alienation by one joint tenant 
 
 to another, 237 
 destruction of, 
 by destroying 
 
 unity of title, 236 
 unity of interest, 238 
 unity of possession, 238 
 by union of shares, 239 
 advowson in, 37 
 tithes in, 39 
 
 no dower or curtesy of estate in, 192 
 lien of joint tenant, 371 
 liability to extent, 431 
 where one joint tenant is incapable of 
 
 taking, 633 
 confirmation in the case of, 724 — 5 
 surrender to one joint tenant, 729 
 grant to one joint tenant, 729 
 disclaimer or disagreement by joint 
 
 tenants, 739, 873 
 devise or bequest bj' joint tenant, 987 
 distinction in the case of joint tenants 
 and tenants in common as to 
 livery, 673 
 disclaimer or disagreement, 739, 
 
 873 
 lapse, 1030 
 merger, 1195 
 
 JOINTRESS. See Jointure. 
 
 jointress relieved against prior volun- 
 tary conveyance or a satisfied term, 
 200 
 
 delivery up of deeds by jointress, 887 
 
 right of jointress to crops, 200 
 
 eviction of jointress, 200 
 
 liability to debts, 509 
 
 JOINTURE, 
 
 origin of, 197 
 definition of, 197 
 requisites to, 198 
 effect of, 198—9 
 under a power, 198 — 9 
 
 in proportion to wife's fortune, 
 
 199 
 to whom jointure land conveved, 
 
 199 
 how far clear of taxes, &:c., 199 
 rentcharge, 199 
 jointress considered as a purchaser, 
 
 199 
 deficiency of, 200 
 barring, 200 
 
 not lost by misconduct, 201 
 a bar to freebeneb, 211 
 
 JUDGMENT, 
 
 warrant of attorney to confeiss, 422
 
 1248 
 
 INDEX, 
 
 JUDGMENT {owthiucd). 
 
 extension of tho creditor's remedy by 
 Stat. 1 & 2 Vict. c. 110, p. 422 
 at law, 422, 425 
 in equity, 423, 426 
 to operate as a charge, 423 
 effect of, by the old law, 
 
 on freeholds, 425, 426, 429 
 on cop}'holds, 425, 427 
 on terms for vears, 425, 427 
 effect of, by the stat. 1 & 2 Vict. c. 110 
 at law, under s. 11, p. 425 
 in equity, under s. 13, p. 425 — 6 
 on freeholds, 426, 429 
 on copyholds, 427 
 on terms for years, 427 
 freeholds acquired or aliened after the 
 
 judgment, 430 
 freeholds aliened or encumbered before 
 
 the judgment, 430 
 relative position of a jiidgmeut cre- 
 ditor and a mortgagee, 430 
 effect in the case of 
 
 estates in joint tenancy, in co- 
 parcenary, and in common, 431 
 rents, 431 
 
 marital interests, 431 
 estates tail, 431 
 equitable interests, 432 
 effect of an appointment on, 432 
 against vendor after contract for sale, 
 
 and before conveyance, 433 
 against persons entitled to proceeds oi 
 
 sale, 433 
 not a charge on benefices, 433 
 charging orders, 433 
 interest on judgment debts, 435 
 decrees, rules, and orders to have effect 
 
 of, 436 
 in palatinate courts, 448 
 removal into superior courts, 448 
 registration 
 
 of judgments generally, 428, 437 
 
 —444 
 of removed judgments, 448 
 of judgments in Yorkshire and 
 
 iliddlesex, 448 
 of process of execution, 444 
 after notice, 451 
 extension of effect of judgments to 
 other parts of the United Kingdom, 
 450 
 general remarks on the effect of judg- 
 ments entered up at different times, 
 450 
 notice, 450 — 1 
 searching for, 451 
 execution, 452 
 elegit after a fieri facias, 453 
 execution of a term, 453 
 
 JUDGMENT {continued). 
 
 extinction of estate by elegit, 454 
 
 release from a, 456 
 
 debts within the Mortmain Act, 293 
 
 defeasance of, 738 
 
 judgment creditor not a purchaser 
 within the stat. 27 Eliz. c. 4, p. 849 
 
 judgment against heir has no priority 
 over simple contract debtors of an- 
 cestor, 505 
 
 judgments after passing of 27 & 28 
 Vict. c. 112, not to affect land until 
 delivery of it in execution, 429 
 
 order for sale of land delivered in exe- 
 cution, 453 
 
 LAND, 
 
 what it comprises, 1, 638—9, 641 — 2 
 covenant or trust to purchase land, 278 
 waste in, 1189 
 articled, devised, &c., to be sold, 1200 
 
 LANDTAX 
 
 converted into a fee farm rent, 19 
 
 redeemed, 1127 
 
 by whom payable, 692 
 
 LAPSE 
 
 of clevises and bequests, 1030 
 
 general rule, 1030 
 
 sum forgiven, 1031 
 
 distinction in the case of joint 
 tenants and tenants in common, 
 1031 
 
 beneficial interest, or charge, or 
 sum due to creditors, 1032 
 
 estates tail, 1033 
 
 gifts to children, 1033 
 
 to whom a lapsed estate or inte- 
 rest goes, lo32 
 of benefice, 568 
 
 LAW, 
 
 testator presumed to know, 994 
 
 LEASE. .See Rent — Eeservation. 
 
 defined and distinguished from an as- 
 signment and an underlease, 685 
 
 where a deed is a lease, or only an 
 agreement for a, 685 
 
 who may lease, 686 — 690 
 
 by a mortgagee, 376 
 
 to a mortgagee, 379 
 
 by tenant for life, 686, 690 
 
 by tenant for life and remainderman 
 or reversioner, 686 
 
 by tenants in tail or husband seised in 
 "right of their wives, 686 — 9
 
 INDEX. 
 
 1249 
 
 LEASE (continued). 
 
 by tenant in fee whose wife is endowed, 
 690 
 
 by joint tenants, tenants in common, 
 and coparceners, 235, 690 
 
 by or to married women, 689, 1113 
 
 by or to intants, 689, 1158—9 
 
 operative words, 690 
 
 beginning and ending of, 214 
 
 tenancy from year to year, 216 
 
 grant of residue of term after the 
 death of the termor, 691 
 
 for life, in futuro, 691 
 
 executors usually named, 1081 
 
 timber, 691 
 
 lessee not estopped by description, 692 
 
 rent, 692 
 
 where entry is necessary, 692 
 
 assignment or underletting, 72 — 4, 693 
 
 tithe rentcharge and landtax, 692 
 
 disagi'ceing to a term, 692 
 
 covenant not to alien, 694 
 
 covenant to perform covenants in ori- 
 ginal lease, 694 
 
 usual covenants, 695 
 
 obligation of lessee's covenants, 695 
 
 renewal, 279, 696 
 
 effect of taking a new lease, 698 
 
 of incorporeal hereditaments, 691 
 
 of charity propertj', 698 
 
 constructive notice of covenants, 699 
 
 underlease, 685, 699 
 
 right of entry on, 699 
 
 of copyholds, 699 
 
 must be by deed, 700 
 
 remedies for rent and covenants not to 
 be extinguished by merger of re- 
 version, 700 — 1 
 
 condition against assignment, 72 — i, 
 693 
 
 condition and covenant for the re- 
 sumption of land, 115 — 116 
 
 effect of, on dower or freebench, 201 
 —2, 211 
 
 to a corporation sole, 491 
 
 waiver of forfeiture for breach of con- 
 dition, 569 
 
 M'here surrender of lease docs not 
 affect interests created by lessee, 
 596—7 
 
 assignment of parcels in a lease, the 
 date of which is misrecited, 636 
 
 concise, under the stat. 8 & 9 Vict, 
 c. 124, p. 787 
 
 in consideration of a loan, 871 
 
 liability of lessee under a covenant, 
 662 
 
 severing a joint tenancy, 236 
 
 leases and agreements for leases irnder 
 Stat. 19 & 20 Vict. c. 120, p. 689 
 
 LEASES UNDER POWERS, 
 
 reasons of giving powers of leasing to 
 
 tenants for life, 766 
 restrictions construed strictly against 
 
 tenants for life, 767 
 powers to lease in a bargain and sale or 
 
 covenant to stand seised, 767 
 such powers may be exercised toties 
 
 quoties, 767 
 usual restrictions, 768 
 
 instrument by which power is to 
 
 be executed, 768 
 lands to be let, 768 
 commencement of the lease, 769 
 duration of the lease, 770 
 reservation, 770 
 condition and covenants, 771 
 relief against defective execution of 
 powers of leasing, 772 
 equitable relief, 772 
 statutory relief, 772 
 by archbishops, bishops, colleges, dean s 
 and chapters, hospitals, parsons, an d 
 vicars, 685, n. (o) 
 
 LEASE FOR A YEAR, 
 
 where recital or mention of it is suffi- 
 cient, 743 
 dispensed with, 745 — 6 
 
 LEASE AND RELEASE, 
 
 described, 743 
 
 where recital of lease for a year suffi- 
 cient, 743 
 
 lease for a year now dispensed with, 
 745—746 
 
 consideration, 744 
 
 who should be the releasee, 744 
 
 releasee seised and uses executed with- 
 out his assent, 744 
 
 where adopted, 235 — 6, 744 
 
 has no tortious operation, 745 
 
 in execution of a power, 750 
 
 LEASEHOLDS. See Terms. 
 
 conversion when necessary, 1199 
 where "real estate" includes, 1040 
 
 LEGACIES. See Administration — Be- 
 quests— Construction — Will. 
 
 LEGACY DUTY, 492, n. («) 
 
 where annuity is subject to, 24 
 consequent on direction for conversion 
 1202 
 
 LEGAL ESTATE, 
 
 where an immediate appointee takes 
 the, 765 
 
 LEGAL INTERESTS, 248 
 
 LETTERS PATENT, 909
 
 123(1 
 
 iXL)i:x. 
 
 LICENCES 
 
 to assign, uuderlct, &.v., 72 — 3 
 
 LIEN, 
 
 defined, 370 
 
 equitable, 370 
 
 enforcing, 370 
 
 of a solicitor for costs, 370 
 
 of a joint tenant, 371 
 
 of a trustee, 371 
 
 of annuitants, 371 
 
 under covenants to settle or charge, 
 
 371 ^ 
 vendor's, 615 
 
 within the Mortmain Act, 293 
 
 LIFE, ESTATES FOR, 178 
 difierent kinds of, 178 
 how created, 148, 157, 178 
 ecclesiastical persons and civil officers 
 
 have, 180 
 determinable on a contingency, 180 
 alienation by tenant for life, 180 
 concealment of death by cestui que 
 
 vie, 180 
 surrender of, 726 — 730 
 merger of, 1192 — 8 
 
 LIFE, TENANT FOR, 
 
 obligation to pay debts and keep down 
 
 interest, 509—11 
 alienation by, 567 
 leases by, 686—690, 766, 891 
 purchase by, 836 
 waste by, 1185—1190 
 covenant by, 797 
 
 LIGHT, 
 
 claim to, by prescription, 543 
 
 LIMITATION. Sec Condition. 
 
 words of, necessary in a confirmation to 
 enlarge an estate, 721 
 
 ■words of, unnecessary in case of release 
 by way of mitter Testate or mittcr le 
 droit, 712 
 
 different senses of the word, 63 
 
 general or special, 63, 64 
 
 direct, 65 
 
 indirect, 65 
 
 special limitations called conditions iu 
 law, 65 
 
 effect of invalidity of special limita- 
 tions, 107 
 
 in restraint of marriage, 79 — 96 
 
 same limitations operating in different 
 characters, 336 
 
 a remainder, rather than an executory 
 limitation, not by way of remainder, 
 336 
 
 effect of recovery on special or colla- 
 teral, 952 
 
 LIMITATIONS, STATUTE OF. Sec 
 Statutes (List of) 21 Jac. 1, c. 16; 
 3 & 4 W. 4, c. 27. 
 
 operation of, as regards debts, 493 
 
 title depending on, 601 
 
 length of title under, 599 
 
 LIS PENDENS, 
 
 registration of, 446 
 
 LIVERY. Sec Feoffment. 
 things lying in, 5 
 
 LORD. See Copyholds — Escheat. 
 paramount, 117 
 mesne or middle, 117 
 grant to lord and tenants, 634 
 
 LORDS, HOUSE OF, 
 
 effect of decision of, 603 
 
 LUNATICS AND OTHER PERSONS 
 OF UNSOUND MIND, 
 lunatic trustees, and mortgagees, and 
 
 personal representatives, 1103 — 4. 
 contracts or other acts of, 1172 
 partition by, 242 
 conveyance Ijy, 1172 
 purchases by, 873, 1172 
 wills of, 1173 
 benefices of, 1174 
 copyholds of, 965 
 presumption of sanity or insanity, 
 
 1173 
 powei's conferred by Lunacy Regula- 
 tion Act, and stat. 18 Vict. c. 13, 
 and 25 & 26 Vict. c. 86, p. 1174 
 
 MAINTENANCE, 
 
 wife's equity to, 1150 
 
 of infants, 1163. See Infants. 
 
 Maintenance, i.e., intermeddling in a suit, 
 
 857—8. 
 
 MANOR, 
 
 defined, Ixxxviii 
 
 lay in livery, 5 
 
 granted by copy, 122 
 
 extinction of, 127 
 
 what passes by the term, 643 
 
 reputed, 644 
 
 MANORIAL RIGHTS, 
 extinction of, 125 
 commutation of, 128 
 
 MARK 
 
 instead of signature, 876 
 
 MARKET, 
 
 right to hold, 51
 
 INDEX. 
 
 1251 
 
 MARRIAGE, 
 
 consent to a, 69 
 restraint of, 79, 866 
 
 conditions subsequent and condi- 
 tional limitations in restraint of 
 marriage generally, 79 
 conditions and conditional limita- 
 tions in restraint of marriage in 
 particular cases, SO 
 reasons of the distinction as to 
 personalty, between conditions 
 subsequent and conditional 
 limitations in restraint of mar- 
 riage, 83 
 illustrations of tlie distinction, 84 
 conditions precedent in restraint 
 of marriage, in tlie case of per- 
 sonal estate, 84 
 restraints on marriage by way of 
 special or collateral limita- 
 tion, 85 
 in the case of real estate, 86 
 in the case of personalty, 86 
 clandestine marriage contracts, 837 
 frauds on, 837 
 
 marriage brocage contracts, 865 
 contracts to facilitate marriage, 865 
 
 MARRIAGE SETTLEMENT. See Set- 
 
 TLEMENT. 
 
 what a covenant to settle or settlement 
 comprises, 804, 1143 
 
 where articles and settlement vary, 
 806 
 
 clause of accruer, 807 
 
 loan to husband, 807 
 
 preference of children claiming under 
 a settlement on a second marriage 
 over volunteers under a settlement 
 on a first marriage, 807 
 
 direction to make a, 808 
 
 execution of mai-riage articles, 809 
 
 on a ward of Court, 810 
 
 limitation to the executors or adminis- 
 trators of the settlor, 810 
 
 frauds on marital rights or expecta- 
 tions, 810 
 
 ante-nuptial revocation of, 1154 
 
 by an infant, 1159 
 
 setting aside, reforming, or varying, 
 808, 889, 890 
 
 mutual covenant to settle property, 
 809 
 
 made under apprehension of death, 
 808—9 
 
 by a deceased wife's sister, 811 
 
 where a power of revocation should be 
 inserted, 811 
 
 for what purposes a power of revocation 
 may be exercised, 811 
 
 VOL. II. 
 
 MARRIAGE SETTLEMENT {continued) 
 whore void against creditors, 838 — 
 
 845 
 
 MARRIED WOMEN, 
 
 devise to, not a trust, 277 
 release of money due to, 719 
 covenants to stand seised to use of, 
 
 742 
 protectors of settlements, 776, 778 
 dispositions by, under the Fines and 
 
 Recoveries Act, 786 
 frauds on marital rights or expecta- 
 tions, 810 
 estoppel in favour of, 903 
 copyholds of, 965, 1116 
 how husband and wife regarded, 1111 
 legal disability of, 1111 
 fine or recovery by, 1112 
 general rule as to disposition of their 
 
 real estate, 1112 
 deeds by, 1111 
 leases to and by, 1113 
 cannot bind themselves by covenant, 
 
 797 
 disclaimers, 1113 
 wills, 1113—14 
 surrenders of copyholds, 1114 
 restraints on alienation by, 597, 1137 
 sale by, 1115 
 
 mortgages of estates of, 406 
 execution of powers by, 1112, 1115 
 power not confined to coverture, 1115 
 purchase, 873, 1115 
 exchange, 1115 
 partition, 242, 709 
 constituting attorney, 1116 
 performance of condition, 1112 
 legacies to, 1116 
 election, 1117 
 protection of property of wife deserted, 
 
 1117—18, 1119—20 
 assignment or mortgage of chose in 
 
 action, 1117 
 wife judicially separated considered as 
 
 a feme sole, 1118— 20 
 powers which husband and wife have 
 
 of contracting with, and giving and 
 
 granting to each other, 1121 
 contracts before marriage, 1121 
 contracts after marriage, 1122 
 gifts and grants after marriage, 
 1122, 1141 
 interest of the husband in the wife's 
 
 property, 1124 
 real estate, 1124 
 chattels real, 1124 
 chattels personal, 1125 
 arrears of income of wife's choses in 
 
 action, 1130 
 
 U u
 
 1252 
 
 INDEX. 
 
 MAKEIED WOMEN {continued). 
 release by husband, 1130 
 disposition of the reversionary interests 
 of, 1127 
 land tax redeemed, 1127 
 pin money, 1131 
 paraphernalia, 1131 
 separate estate, 1132 
 how acquired, 1132 
 power of disposing of it, 1135 
 life interest for separate nse, with 
 
 a reversion, 1137 
 restrictions against alienation or 
 
 anticipation, 1137 
 gifts to the husband by the wife, 
 
 1141 
 husband's marital right, 1141 
 liability of, 1142 
 
 not affected by covenant to settle 
 property, or by marriage settle- 
 ment, 1143 
 power of trustees of wife's personalty 
 not settled to her separate use, 
 1144 
 wife's equity to a settlement, 1144 
 when defendant, 
 
 against her husband, 1144 
 against his assignees or ven- 
 dees, 1145 
 when plaintiff, 1147 
 amount to be settled, 1147 
 limitations of the settlement, 1148 
 substitute for a settlement, 1148 
 waived, lost, or suspended, 1148 
 
 —9 
 none by the Scotch law, 1150 ■ 
 wife's equity to a maintenance, 1150 
 deeds of separation, 1151 
 ante-nuptial revocation of a settle- 
 ment, 1154 
 barring the wife's share of personalty, 
 
 1154 
 power of advancement, 1154 
 loss of rights on dissolution of mar- 
 riage, 1155 
 
 MAESHALLING 
 
 of assets, 522 
 
 MERGER 
 
 defined, 1192 
 
 conditional fees, 155 
 
 particular estate, 714 
 
 estates tail, 1192 
 
 estates tail, after possibility of issue 
 
 extinct, 1192 
 estates for life, 1192 
 estates for years, 1193 
 estates by statute, recognizance, or 
 
 elegit, 1193 
 
 MERGER (continued). 
 
 estates in autre droit, 1193 
 
 estates in joint tenancy, 1195 
 
 charges, 1196 
 
 tithes, or tithe rentcharge, 40 
 
 effect on third persons, 1196 
 
 what will prevent, 1197 
 
 not favoured, 1198 
 
 of equitable in legal estate, 410, 478 
 
 reversion will not merge, 714 
 
 MESSUAGE, 
 
 what passes by the term, 642 
 
 MINERALS, 
 
 exceptions, reservations, sales, ex- 
 changes, and partitions of, 1109 
 
 MINES 
 
 distinguished from quarries, 901 
 dower of, 192 
 conveyance of, 639, 644 
 waste in, 1189 
 
 MISTAKE, 
 
 in a deed, 
 
 in the date, 631 
 
 in the parties, 633, 889 
 
 in a recital, 635 
 
 in the parcels or subject, 640 — 1, 
 889 
 
 in the nature of the instrument, 
 889—90 
 
 generally, 889—91 
 in a will, where rectified, 972 
 
 not presumed, 994 
 
 in name or description of devisee 
 or legatee, 1003 
 
 in description of parcels, 1038 
 payment by, 612, n. (h) 
 
 MONEY. >S'ee Words. 
 
 agreed or directed to be laid out ia 
 land, 
 regarded as converted, 1200 
 curtesy of, 185 
 disposition of, 785 
 passes by term " lands," &c., 1042 
 delivery of, 274 
 
 acknowledgment of payment of pur- 
 chase or mortgage money, 667 — 8 
 
 MONTH, 
 
 meaning calendar month, 67 
 
 MONUMENT, 
 
 bequest to keep up a, 1067 
 
 MORTGAGE. See Debts. 
 defined, 373 
 
 in the form of an absolute conveyance 
 or assignment, 373
 
 INDEX. 
 
 1253 
 
 MORTGAGE (continued). 
 
 by way of trust for sale, 398 
 
 Welsh mortgage, 373 
 
 purchases with right of repurchase, 
 
 374 
 wife of mortgagee not dowable, 193 
 where money is advanced by two per- 
 sons in unequal shares, 232 
 severing a joint-tenancy, 236 
 money within the JMortmain Act, 292 
 power appendant, not destroyed by, 
 
 359 
 debt, out of what payable, 517 
 under decree for payment of debts, 
 
 507 
 forfeiture of mortgaged estates, 566 
 purchases by mortgagees, 834 — 6 
 with notice of another's title, 852 
 estates passing under a general devise, 
 
 1040—1 
 power to executors to convey mortgage 
 
 estate, 411 
 of property of person electing, 1212 
 mortgagor barred by Statute of Limi- 
 tations, 558 
 estates, &c., of mortgagees of unsound 
 
 mind, 1103 
 judgments, &c., against mortgagees 
 
 who have been paid oft', 412 
 I. Legal Mortgages of Real Property. 
 what may be mortgaged, 375 
 mortgagee's estate, 376 
 mortgagee's rights as to possession, 
 
 timber, and leases, 376 
 moi'tgagee's liability to account, 376 
 attornment, 377 
 interest, 378 
 
 conversion into principal, 378 
 increase of, on default in regular 
 
 payment, 378 
 is apportionable, 378 
 arrears of, 378 
 leases to the mortgagee, 379 
 limit to mortgagee's advantage, 378 
 what the mortgagee may add to his 
 
 debt, 380 
 charge for management, 380 
 allowance for receiver, 380 
 rights ot a mortgagee of a West Indian 
 
 estate, 380 
 mortgage of au advowson, 32, 381 
 pre-emption, 381 
 production of deeds by mortgagee, 
 
 381 
 mortgagee ejecting or refusing a tenant, 
 
 381 
 priority of charges and securities, 381 
 tacking, 381 
 postponement of a pi-ior mortgagee, 
 
 independently of tacking, 384, 852 
 
 MORTGAGE {continued). 
 
 concealment of, by mortgagor, or ftilsi- 
 
 fying pedigree, 385, 603, n. {e) 
 foreclosure, 386 
 sale, 387—91 
 
 power to mortgage under the stat. 
 22 & 23 Vict. c. 35, ss. 14—18, pp. 
 367—9 
 powers to sell, insure, and appoint 
 receiver, under the stat. 23 & 24 
 Vict. c. 145, pp. 389—93 
 concurrent remedies of mortgagee, 388 
 mortgagor's estate, 394 
 equity of redemption, 
 nature of, 394 
 where the mortgage is by way of 
 
 trust for sale, 398 
 cannot be controlled, 394 — 5 
 incidents, 395 
 redemption of part, 396 
 redemption of one estate, 397 
 who may redeem, 397 
 extinguishment or loss of, 398 
 mortgage of, 402 
 subject to old uses or trusts, 406 
 right of purchaser of, 409 
 does not escheat, 41-3, 533 
 annual rests, 398 
 
 right of mortgagor as regards posses- 
 sion, rents, and timber, 399 
 expenditure hy mortgagee, 400 
 of copyhold, 400 
 how made, 400 
 how vacated, 400 
 mortgagee frequently not ad- 
 mitted, 400 
 what acts a mortgagee can do be- 
 fore admittance, 401 
 consequences of the admittance of 
 
 the mortgagee, 401 
 second surrender, 402 
 of freeholds and copyholds together, 
 
 402 
 of leaseholds, 402, 403 
 rent instead of interest, 403 
 for costs, 403 
 
 conveyance in trust to sell, 403 
 by a tenant in tail, 404 
 defective mortgage, 404 
 payment of debt, 405 
 of wife's estate, 406, 1127 
 first mortgagee answerable to second, 
 
 407 
 registration of a mortgage not notice, 
 
 407 
 protection of a mortgagee by registra- 
 tion, 408 
 assignment of mortgage, 408 
 what a purchaser of a mortgage has a 
 right to, 409 
 
 TJU2
 
 1254 
 
 INDEX. 
 
 MOETGAGE (continued). 
 
 gift of a mortgage security, 409 
 devise by a mortgagee, 381, 409, 986, 
 1040—1 
 by a mortgagor, 986, 1041 
 right of second equitable mortgagee, 
 
 410 
 extinguishment of mortgage debt, 410 
 reconreyance, 410 
 judgments against mortgagees who 
 
 have been paid off, 412 
 death of mortgagor intestate, and 
 
 without heirs, 413, 533 
 right of executors of mortgagee, 413 
 only a partial execution of a poAver of 
 
 appointment, 751 
 
 II. Equitable Mortgages of Real ProjKrtij, 
 how created, 414 
 
 further advances, 415 
 priority, 415, 852 
 
 III. Mortgages of Personal Property, 
 416. See Assignment. 
 
 distinguished from pledges, 416 
 
 stock, 416 
 
 a fund in Court, 859 
 
 non-delivery of possession, 416 
 
 priority, 417 
 
 tacking, 417 
 
 redemption, 417 
 
 sale, 417 
 
 indemnity, 418 
 
 of a sliip, 418 
 
 MORTMAIN, 
 
 alienation in, 566 
 
 MOETMAIN ACT, 
 
 title of, 285 
 preamble, 285 
 enactments by s. 1, p. 285 
 extension of these by s. 3, i). 290 
 enactments by s. 2, p. 287 
 enactments of 9 Geo. 4, c. §5, in expla- 
 nation of s. 2, of the Mortmain Act, 
 p. 288 
 provisions by recent statutes on the 
 
 same subject, 305 
 objects of, 291 
 
 leaning of the authorities, 292 
 cases witliin the Act, 292 
 terms, 292 
 
 charges on realty, 292 
 estates in mortgage, 292 
 money to exonerate lands in mort- 
 main, 292 
 money ou tolls, rates, and rail- 
 ways, 292, and Addenda to 
 that page 
 profits from mooring chains, 293 
 navigation shares, 293 
 judgment debts, 298 
 
 MOETMAIN ACT {continued). 
 cases Af ithin the Act, 
 
 money to be expended in the 
 
 erection or repair of buildings, 
 
 293 
 lien for purchase money, 293 
 proceeds of sale of land, 294 
 bequest to restore tithes, 294 
 secret reservation of life interest 
 
 to grantor, 294 
 cases not within the Act, 295 
 
 trusts for the Universities, or for 
 
 colleges therein, or for Eton, 
 
 Winchester, or Westminster, 
 
 295 
 Scotch property, 295 
 Irish property, 295 
 Colonial property, 296 
 discretionary investment, 296 
 devise by a freeman of London, 
 
 296 
 melioration of lands in mortmain, 
 
 296, 297, and Addenda to p. 
 
 297 
 endowment of churches, 297 
 gifts to Incorporated Church 
 
 Building Society, 297 
 establishment of a school or hos- 
 pital, 297 
 policies, 298 
 arrears of rent, 298 
 devise for certain poor families, 
 
 298 
 railway debentures, 298 
 shares in a company, 298, but see 
 
 293 
 covenant to invest money on 
 
 charitable trusts, 300 
 bequest as an inducement to bring 
 
 lands into mortmain, 300 
 devise or bequest which on the 
 
 face of it is absolute, 301 
 exemptions by other statutes, 303 
 licence to hold in mortmain, without 
 enabling . corporate bodies to take 
 otherwise than under the Mortmain 
 Act, 305 
 
 MURDEE, 
 
 forfeiture for, 564 — 5 
 
 NAME, 
 
 of party to a deed, 633 
 of devisee or legatee. 
 
 mistake in, 1003 
 
 blank for, 1003 
 
 initials, 1003 
 
 arbitrary signs for, 1003 
 
 misnomer of a corporation, 1183
 
 INDEX. 
 
 1255 
 
 NEW EIVER 
 
 shares are real property, 2 
 
 NATURALIZATION, 11 7S 
 
 NEXT OF KIN, 
 
 limitatious to, 337 
 
 exclusion of, 277, 1078—80 
 
 right of, under the Statute of Distribu- 
 tions, 527 — 9, or the customs of 
 London and York, 530 
 
 their title to undisposed-of produce of 
 real estate, or money directed to be 
 converted, or of the produce thereof, 
 1203 
 
 NOMINATION 
 
 to a benefice, 32 
 
 NON COMPOS MENTIS. See Lunatic. 
 NOTICE, 
 
 of judgments, 450 
 
 not necessary to priority of equitable 
 
 mortgage, 385 
 necessity of, on assignment, 733 — 4 
 mortgage or conveyance with notice of 
 
 another's title, 852 
 doctrine of notice applies to property 
 
 in a register county, 852 
 registration is not notice, 854 
 actual, 853 
 constructive, 853 
 time of, 855 
 protection of a purchaser against claims 
 
 of Avhich he has notice, 855 
 
 OBLIGATION, 
 
 release of, 719 
 
 OBLITERATION 
 
 in a \nll, 982—3 
 
 OCCUPANCY, 535 
 
 estate pour autre vie, 
 
 common occupancy of, 535 
 special occupancy of, 536 — 7 
 
 OFFICES, 56, u. {x) 
 
 assignments of income, 856 — 7 
 persons holding civil offices are quasi 
 
 tenants for life, 1 80 
 entail of, 170 
 
 OFFICEE, 
 
 assignment of pay, &c., by, 856—7 
 
 OPERATIVE PART, 636 
 
 ORDERS. See Vesting Order. 
 to have effect of judgments, 436 
 registration of, 437 
 
 releasing or discharging a contingent 
 right, 1206—7 
 
 OWNERSHIP 
 
 defuied, 1 
 
 three kinds of, 143 
 
 division of, into portions, 143 — 6 
 
 PARAPHERNALIA, 1131 
 
 PARCELS, 
 
 in a deed, 637 
 in a will, 1038 
 
 I. Parcels generally, 637 
 territorial divisions, 637 
 
 old, general, or vague descriptions, 637 
 
 stating quantity, 638 
 
 property not included where it would 
 
 work a forfeiture, 638 
 general words, 638 
 reversion clause, 638 
 "all the estate," &c., 638 
 means to attain or use the thing 
 
 granted, 638 
 fruits, incidents, and accessories, 638 
 certainty in the subject-matter, 639 
 erroneous description, 640 
 mistake in quantity, 889 
 effect of adding words of a general 
 
 character, 641 
 
 II. Particular Subjects of Property , 642 
 all lands or goods, 642 
 allotments, 645 
 
 commons, 639, 645 
 
 corn, 644 
 
 cottage, 643 
 
 farm, 642 
 
 fruit, 644 
 
 grass, 644 
 
 house, 639, 642 
 
 land, 638, 642 
 
 machinery, 645 
 
 manor, 643 
 
 messuage, 642 
 
 mines, 639, 644 
 
 pool, 645 
 
 profits, 644 
 
 rectory, 644 
 
 remainders and reversions, 645 
 
 share, 645 
 
 trees, 639, 644 
 
 toft, 644 
 
 vicarage, 644 
 
 watei', 644 
 
 wool, 644 
 
 III. Exceiitions, 646 
 
 PARENTS, 
 
 frauds by, 830 
 frauds on, 837 
 bequest to, 1004.
 
 1256 
 
 INDEX. 
 
 PAEISHIONERS, 
 
 gift or grant to, 634 
 purchases by, 1184 
 
 PARISH OR PARISH CHURCH, 
 
 gifts to, 1017 
 
 PARK, 53 
 
 PAROL 
 
 conveyances, 595 
 
 PARTICULAR ESTATE, 
 
 what is, 322 
 
 PARTIES, 
 
 either active or passive, G31 
 
 who must be, 632 
 
 how designated, 631 
 
 when a person need not be named as a 
 
 party in the premises, 632 
 arrangement of, 633 
 description of, 633 
 where some are capable and others not, 
 
 633 
 who may be grantors or grantees, 634 
 acting by attorney, 634 
 
 PARTITION 
 
 defined, 706 
 voluntary 
 
 by persons competent to bind 
 their interests, 706 
 
 by infants, tenants in tail, and 
 husbands and wives, 709 
 compulsory, 706 
 modes of effecting, 707 
 mode of division, 709 
 implied condition, 710 
 deed required, 710 
 by joint tenants, 238 
 by coparceners, 241 
 by tenants in common, 247 
 rent for owelty or equality, 243 
 eviction of share, 710 
 
 PARTI^ERSHIP, 
 
 property purchased by a, 3, 233, 1207 
 release of money, 719 
 
 PEDIGREE, 
 
 falsifying, 603, n. (e) 
 
 PEERAGE, 
 
 condition requiring acquisition of, 79 
 PENALTY, 
 
 ofa bond, 790, 793 
 
 PENDENTE LITE, 
 
 assignment, 857—861 
 
 PENSION, 
 
 assignment of, 857 
 
 PER 
 
 coming in, in the, 533 
 
 PER CAPITA, 
 
 where legatees take, 1059 — 60 
 
 PER STIRPES, 
 
 where legatees take, 1059 — 60 
 
 PERPETUITIES, 
 
 rule against, 338 
 
 in the case of powers, 341, 354 
 charities, 284 
 other objects, 1067 
 
 PERSONAL PROPERTY. See Chattels. 
 
 when treated as realty, 3 
 
 when rent is, 21 
 
 in joint tenancy or common, not in co- 
 parcenary, 229 
 
 uses of, arc trusts, 265 
 
 the primary fund for payment of debts 
 and legacies, 514 
 
 PEWS, 56, n. («) 
 
 PIN MONEY, 1131 
 
 PITS, 
 
 waste in, 1189 
 
 PLEDGE, 
 
 mortgage distinguished from a, 416 
 
 PLOUGHBOTE, 49 
 
 POLICIES, 
 
 not within the Mortmain Act, 298 
 covenant to keep on foot, 664 
 assignment of, 865 
 
 PORTIONS 
 
 defined, 1161 
 out of what payable, 516 
 raising, 1162 
 interest, 1162 
 satisfaction of, 1217 
 
 POSSESSION, 
 
 distinguished from ownership of land, 
 143—6 
 
 different kinds of, 248 
 
 of tenant for years, 213 — 14 
 
 adverse, 343, 546 
 
 postponement of, after vesting, 340 
 
 of one coparcener, joint tenant, or 
 tenant in common was the posses- 
 sion of the other, but it is not now, 
 
 548, 556 
 
 entry not to be deemed, 555 
 
 of younger brother or other relative, 
 
 549, 556 
 
 when delivery of necessary, 732—3
 
 INDEX. 
 
 1257 
 
 POSSIBILITY. See Contingent Inte- 
 HESTs— Executory Interests. 
 meaning- of a, 343 
 bare or mere, 343 
 on a possibility, 103 
 of reverter, 322, 332, 343 
 not releasable, 718 
 assignments of possibilities, 860 — 4 
 
 POST, 
 
 coming in, in the, 533 
 
 POSTHUMOUS CHILD, 
 
 rights of, 328, 473 
 
 POST-OBIT BONDS, &c., 828 
 
 POUR AT] TEE VIE, ESTATES, 
 not strictl.y entailable, 171 
 devise of, 988 
 occnpancy of, 535 — 7 
 
 POWERS. Sec Appointment — Leases 
 UNDER Powers. 
 defined, 345 
 
 different kinds of powers, 345 
 common law powers, 345 
 statutory powers, 345 
 powers hj way of use, 345 
 powers of attorney, 345. Sec At- 
 torney. 
 powers of appointment, 346 
 powers of revocation, 346 
 connected or unconnected with an 
 
 interest, 346 
 relating to the land and collateral, 
 
 347 
 powers appendant, appurtenant, 
 and collateral, or in gross, 347 
 naked powers, 347 
 general and particular powers, 347 
 in the nature of a trust, or containing 
 
 a gift by implication, 348 
 how an estate passes in the case of an 
 
 appointment, 345 
 to whom powers may be given or re- 
 served, 346 
 power of disposition by will not con- 
 stituting a power of appointment, 
 348 
 creation of powers, 349 
 
 indication of intention sufficient, 
 
 349 
 forms required, 349 
 Avhere a consideration is neces- 
 sary, 349 
 a commensurate seisin required, 
 
 350 
 the land should be conveyed to 
 the releasee, &c., and not to his 
 use, 350 
 
 POWERS {continued). 
 creation of powers, 
 
 bargains and sales do not admit 
 of general powers, 682 
 to jointure, 198 
 to appoint to children, 350 
 
 to younger children, 350 
 
 to children subject to a condi- 
 tional limitation, 350 
 
 power to charge portions for 
 younger children, 351 
 
 implied gift to surviving children, 
 subject to a power, 351 
 
 what interests are authorised, 350 
 
 power to raise portions not avail- 
 able until they are wanted, 351 
 
 whether an exclusive appointment 
 is authorised, 351 
 
 rule against pei-petuities, 338 
 to appoint to issue, 361 
 to appoint to relations, 352 
 shares in default of appointment, 
 
 implied gift in defaidt of appoint- 
 ment, 352 
 
 appointees entitled to share in the 
 gift in default of appointment, 
 353 
 
 shares in default of appointment 
 vest, 353 
 to sell, mortgage, or charge, 
 
 for payment of debts, legacies, 
 &c., 353, 367—9 
 
 direction or power to raise money 
 out of rents, 353 
 
 unlimited power to charge, 354 
 
 effect of a power to grant, 354 
 
 power to " raise a sum," 354 
 
 power to mortgage does not autho- 
 rise sale, 354 
 
 whether a power to mortgage or 
 sell authorises a mortgage with 
 power of sale, 354 
 
 where a power to sell authorises a 
 mortgage, 354 
 
 where there is a power to charge 
 with interest, 354 
 
 implied power of sale or mortgage, 
 367 
 
 as to perpetuities, 354 
 
 where power of sale negatives 
 power to buy, 355 
 
 not exercisable by trustees ap- 
 pointed by the Court, 355 
 
 Bale after many years, 356 
 
 under the stat. 23 & 24 Vict. 
 
 c. 145, p. 389—391, 393, 1095 
 
 —1101 
 
 to insure or appoint a receiver under 
 
 the Stat. 23 & 24 Vict. c. 145, p. 389 
 
 —393
 
 1258 
 
 INDEX. 
 
 POWERS {conUnuecl). 
 
 to exchange under same statute, 393, 
 
 1095—1101 
 of revocation, 356 
 
 either totally or partially, 356 
 by a new appointment, 356 
 implied in power to appoint, 356 
 implied in power of sale, 356 
 implies a power to appoint, 356 
 resei'ved on an appointment, 357 
 at different times, 357 
 necessity for reserving, 357, 808 — 9 
 effect of the exercise of, 357 
 for what purposes intended, 811 
 vested in a bankrupt, 577 
 exchanges under, 705 
 release of, 718 
 execution of by married women, 1112, 
 
 1115 
 extinction of, 
 
 by execution, 357 
 by death of the person whose con- 
 sent is required, 358 
 of collateral powers, 358 
 of powers appendant by total 
 alienation of the estate or inte- 
 rest, 358 
 of powers in gross, by conveyance, 
 
 359 
 by release, 360 
 by failure of object, 360 
 suspended, curtailed, or qualified by 
 
 partial alienation, 358 
 prevention of exercise of, by contract, 
 
 360 
 merger of, 360 
 
 limitation for life, with power of ap- 
 pointment, 361 
 delegation of, 362 
 perpetuities, 361 
 
 PEACTICE, 
 
 condition or agreement not to prac- 
 tise, 866 
 
 PRil^CIPE, 946 
 
 recovery without a proper tenant to 
 
 the, 947 
 observations as to the tenant to the, 
 
 956—8 
 
 PREMISES, 
 
 signification of the word, 630 
 
 PRESCRIPTION, 
 
 defined, 540 
 
 distinguished from custom, 540 
 must be certain and reasonable, 540 
 what may be claimed by, 540 
 in whom a prescription in a que estate 
 must be laid, 541 
 
 PEESCRIPTION {continued). 
 rights of common, 542 
 rights of way, 542 
 use of light, 543 
 lost, 545 
 
 PRESENTATION, 
 
 next presentation is a chattel, 35 
 
 distinguished from a right of nomina- 
 tion, 32 
 
 how made, 34 
 
 revoked or varied, 34 
 
 grant of next or any number, 35 
 
 reservation of the presentation for life, 
 36 
 
 devolution of the right of, 36 
 
 by joint tenants, 37 
 
 by coparceners, 37 
 
 by tenants in common, 37 
 
 by trustees and mortgagees, 32 
 
 lapse of right of, 568 
 
 release of, 719 
 
 devise of, 989 
 
 PRESENTMENT, 
 
 of surrender, 962 
 
 PRETENDED TITLES, 
 
 sale of, 858—9 
 
 PRINCIPAL, 
 
 release of, 722 
 
 PRISONER, 
 
 contracts by a, 856 
 
 PRIVIES, 
 
 in blood and estate, 916 
 
 in right and representation, 75 
 
 and assignees in law, 76 
 
 PRIZE MONEY, 
 
 assignment of, 857 
 
 PROBATE 
 
 of will, 977, 1071 
 
 PROFITS, 
 
 a prendre, 5 
 claim to, 5, 541 
 grant of, 644 
 release of, 718 
 
 PROMISES, 
 
 release of, 719 
 
 PROPERTY, 
 subjects of, 1 
 definition of, 1 
 
 PROPERTY TAX, 
 
 annuity subject to, 998 
 
 PROSTITUTION, 
 
 bond given as the price of prostitution 
 or to a prostitute, 829
 
 liTDEX. 
 
 1259 
 
 PEOTECTION. 
 
 order of protection of property of a 
 wife deserted, 1117—18, 1119—20 
 
 PKOTECTOR OF A SETTLEMENT, 
 general rule where none is appointed, 
 
 777 
 in the case of part owners, married 
 womeu, or an estate coniirmed, or 
 restored, or disposed of, or created 
 out of a remainder or reversion be- 
 fore Dec. 31st, 1833, pp. 777—8 
 persons not to be protectors, 778 
 wlierc a bare trustee is to be, 778 
 power to appoint, 779 — 80 
 wlicre the Lord Chancellor or the 
 
 Court of Chancery is to be, 779 
 consent, 
 
 how far requu-ed, 779 
 
 subject to no control, 779 
 
 how given, 780 
 
 how construed, 780 
 
 enrolment of, 780 
 
 not revocable, 780 
 
 of a married woman, 780 
 
 of the Lord Chancellor or Court 
 
 of Chancery, 781 
 in the case of copyholds, 781 
 in the case of bankrupts' estates, 
 783—5 
 
 "PROVIDED," 
 
 importing a condition precedent, 320 
 importing a condition subsequent, 59, 
 
 320 
 importing a special or collateral limi- 
 tation, 320 
 
 PUBLICATION 
 
 of wills, 974, 982 
 
 PURCHASE. Bee Vendor and Pur- 
 chaser. 
 in another's name, 274 
 covenant or trust to purchase land, 278 
 of a charge, 495 
 title by, 462 
 
 PURCHASE MONEY, 
 
 application of, 612 
 
 PURCHASER. See Vendor and Pur- 
 chaser. 
 different senses of the word, 462 — 3 
 who is the, in case of descent of an 
 estate in fee simple, 478, or fee tail, 
 480—1, 487 
 
 QUALIFICATION, 
 
 gift to persons possessing a certain 
 qualification, or sustaining a certain 
 character, 65 
 
 QUAREELS, 
 
 release of, 720 
 
 QUASI REMAINDERS, 324 
 
 QUEEN ANNE'S BOUNTY, 
 
 devises in favour of, exempted from 
 tlie Mortmain Act, 303 
 
 QUIETUS, 500 
 
 RATES, 
 
 money secured on, witliin the Mort- 
 main Act, 292 
 
 BEADING 
 
 a deed, 876 
 
 REAL PROPERTY, 
 defined, 1 
 
 peculiar kinds of, 2 
 realty at law, but personalty in equity, 
 
 and vice versa, 3 
 of a partnership deemed personalty, 3 
 when rent is, 21 
 descends to the heir, 469 
 
 RECEIPT, 
 
 power to give receipts, 615, 1101 
 how acknowledged, 667 
 effect of different modes of acknow- 
 ledgment, 668 
 indorsed, 667 
 
 RECEIVER, 380, 389, 391—3 
 
 RECITALS, 
 
 nature and uses of, 635 
 
 effects of a recital on the construction, 
 
 635 
 not evidence against strangers, 635 
 false, 635 
 omission of, 636 
 general words of release restrained by, 
 
 635, 715 
 when working an estoppel, 668, 902 — 3 
 of payment of purchase moneys, 667 
 
 — S 
 
 RECOGNISANCE. See Registration. 
 defined, 420 
 disused, 420 
 defeasance of, 738 
 registration of, 497 
 merger, 1193 
 
 RECORD, 
 
 alienation by matter of, 907 
 
 RECOVERY. Sec Fines and Recove-^ 
 EiES Act, 
 defined, 944 
 mode of suffering, 944 
 abolition of, 945 
 in unauthorised courts, 945
 
 1260 
 
 INDEX. 
 
 EECOVERY {continued). 
 
 misnomer, misdescription, or omission 
 in a recovery, 945 
 
 non-enrolment of tlie deed making tlie 
 tenant to tlie writ, 945 
 
 omission to make the tenant to the 
 writ, 945 
 
 in Wales and Cliesliirc, 945 
 
 right to suffer was incident to an es- 
 tate tail, 99 
 
 for conveyance of eqiiitable estate, 271 
 
 what were not barred by a, 953 
 
 equitable, 957 
 
 efficacy varies with circumstances, 945 
 
 modes of operation, 945 
 
 I. By way of conclusion or estop- 
 pel, 946 
 
 II. As an ordinary conveyance, 
 946 
 
 III. As an extinguishment of a 
 right of entry or action, 947 
 
 IV. As an extinguishment of a 
 power appendant or in gross, 
 360, 948 
 
 V. As a revocation of a devise, 
 948 
 
 VI. As a conveyance of the estate 
 of a married woman, or an 
 extinguishment of her dower, 
 948 
 
 VII. As a forfeiture, 567, 949 
 
 VIII. As a discontinuance, 950 
 
 IX. As an instantaneous bar of 
 contingent remainders, 950 
 
 X. As an instantaneous bar of an 
 estate tail, and of the remain- 
 ders and reversion expectant 
 thereon, &c., and a creation of 
 a fee out of the estate tail, 951 
 
 by a tenant in fee, 946, 948 
 
 by a tenant in tail. See Tenant in 
 Tail. 
 
 by a tenant in tail after possibility of 
 issue extinct, 567, 949, 953 
 
 by an expectant heir in tail, 951 
 
 by a tenant by the curtesy, 567 
 
 by a tenant for life, 360, 567, 949 
 
 by a third person, with voucher over 
 of the particular tenant, 949 
 
 by a tenant for life and an ulterior re- 
 mainderman in tail, 359, 953 — 4 
 
 by a spiritual person, 947 
 
 by a tenant by the curtesy, 949 
 
 by a husband, 950, 954—5 
 
 by a married woman, 201, 203, 946, 
 948 
 
 by a woman of a marital estate, 949 
 
 by a devisor, 948 
 
 by a joint tenant for life, with a re- 
 mainder in tail, 954 
 
 EECOVERY {continued). 
 
 by a person having a right of entry or 
 
 action, 947 
 by a donee of a power appendant or in 
 
 gross, 948 
 by a mortgagor, 404 
 distinction between joint tenants and 
 
 tenants by entireties as regards 
 
 power of barring by recovery, 954 
 by married women, 1112 
 by an infant, 1158 
 deeds to lead or declare uses of, 747 
 
 EECTOEY, 
 
 of what consisting, 5 
 
 lay in livery, 5 
 
 distinguished from advowson of, 5 
 
 may be mortgaged, 375 
 
 what passes by the term, 644 
 
 EEGISTEATION 
 
 of judgments, statutes, recognisances, 
 decrees, rules, orders, crown debts, 
 lites pendcntes, life annuities, and 
 rcntcharges, 437—452, 497 
 
 of removed judgments, &c., 448 
 
 of orders of the Court of Bankruptcy, 
 448 
 
 of certificates of assignees in bank- 
 ruptcy, 583 
 
 object of the Eegister Acts, 852 — 3 
 
 is not notice, 407, 854 
 
 in Yorkshire and Middlesex, 449, 879 
 
 in the Bedford Level, 881 
 
 of bills of sale, 881 
 
 of wills, 977 
 
 RELATIONS, 
 
 bequests to, 1013 
 
 EELEASE, 
 
 defined, 711 
 
 different kinds of releases in deed at 
 common law, 711 
 by way of mitter Testate, 712 
 by way of mitter Ic droit, 712 
 by way of extingviishment, 712 
 by way of enlargement, 712 
 statutory, 745 
 in law, 715 
 
 to a tenant by sufferance, 226 
 to one of two or more joint-tenants, 
 
 713 
 to a person having an estate by sta- 
 tute merchant, statute staple, or 
 elegit, 714 
 to a lessee, 713—717 
 to an under lessee, 713 — 714 
 to an assignee of a lessee, 713 
 to a tenant at will, 714
 
 INDEX. 
 
 12G1 
 
 EELEASE {continued). 
 
 to or by a person entitled to an intcr- 
 
 esse termini, 638, 713, 714, 717 
 to one of several co-debtors or joint 
 
 covenantors, 715 
 joint release to those against whom 
 there are several causes of action, 
 716 
 to a disseisor, 721 
 to a disseisee, 714 
 to one trustee, 716 
 
 to the owner of a particular estate or 
 to a remainderman or reversioner, 
 714—716 
 by one obligee or plaintiif, 719 
 by a husband, 1130 
 by tenant in tail, 716 
 by one joint tenant to another, 235, 
 
 712 
 by one coparcener to another, 712 
 by a conusee of a statute, 721 
 by an heir of a disseisee, 721 
 of right of action cannot be for a time, 
 
 712, 716 
 of breach of trust, 716 
 by enlargement, may be for life, 717 
 third person not entitled to benefit of, 
 
 717 
 things released, 716—717 
 
 part of land which is subject to a 
 rent charge, 717, or judgment, 
 456 
 copyhold, 125, 963 
 covenant to do an act, 717 
 debts, legacies, and other duties, 
 
 717 
 interesse termini, 717 
 conditions, 116, 717 
 tenures, seigniories, services, rents, 
 commons, and other profits, 52, 
 125, 712,718 
 contingent and other executory 
 interests, possibilities, and ex- 
 pectancies, 718, 860, 863 
 powers, 718 
 
 rights and titles of entry and ac- 
 tion, 718, 858—861 
 money owing to a wife or partner, 
 
 719 
 next presentation, 719 
 obligation or cause of action, 
 719 
 when severiug a joint tenancy, 237 
 no uses on a release of right, 256 
 habendum in a release of right, 647 
 construction of releases of, 719 
 rent, 719 
 covenants, 719 
 
 promises and assumpsits, 719 
 debts or duties, 720, 722 
 
 EELEASE {continued). 
 
 construction of releases of, 
 
 quarrels, controversies, or debates, 
 
 720 
 actions, 720 
 suits, 720 
 right, 720 
 title, 721 
 demands, 721 
 claims, 721 
 the principal, 722 
 judgments, 722 
 general words restrained by recital, 
 
 715 
 operative words, 715 
 seal, 722 
 favoured, 723 
 upon condition or on a future time or 
 
 event, 722 
 partial, 722 
 of a debt, 722 
 relief against, 723 
 
 operating as a covenant to stand seised, 
 897—8 
 RELIEF, 118 
 
 EEMAINDEES AND QUASI EE- 
 MAINDEES, 
 
 lax sense of the term remainder, 321 
 properly so called, 321 
 remainder not limited alter a fee, 322 
 freehold after a teim, 322 
 cross remainders, 323 
 quasi remainders in personal property, 
 324 
 cannot be limited as a legal in- 
 terest by deed, 324 
 limitation over of consumable articles, 
 
 325 
 vested, 325 
 contingent, 325 
 
 four kinds of, 326 
 instances where limitations to the 
 heirs or heirs of the body do not 
 create, 327 
 time for vesting of, 327 
 sui^port of, 328 
 destruction of, 328 
 statutes 7 & 8 Vict. c. 76, aiid 
 8 & 9 Vict. c. 106, as to remain- 
 ders, 328—9 
 after an estate tail, 326 
 usual limitation to trustees to preserve, 
 
 327 
 a limitation construed as a remainder 
 rather than as an executory limita- 
 tion not by way of remainder, 336 
 reversion will pass by the term, 645 
 creation or transfer of, or of any estate 
 out of them, 678
 
 1262 
 
 INDEX. 
 
 EEMAINDERS AND QUASI EEMAIN- 
 DEES {continued). 
 remainders conveyed by lease and re- 
 lease, 744 ; not by feoffment, 675 
 remainders lie in grant, 5 
 curtesy or dower of, 185, 192 
 where barred by a fine or not, 925, 
 
 927, 933, 940—1 
 "wliere barred by a recovery or not, 946, 
 951—2, 953—4, 955 
 
 REMAmDERMEN, 
 
 bargains ivitli, 826 
 
 when remaindermen will not have the 
 benefit of covenants, 663 
 
 REMOTENESS. See Pekpetuity. 
 
 RENEWAL 
 
 of copyholds, 123 
 
 charges of, 219 
 
 of lease by a mortgagee or person hav- 
 ing a limited interest, 279 
 
 underleases need not be surrendered 
 before, 696 
 
 where persons are out of jurisdiction, 
 696 
 
 fund for renewal, 697 
 
 discretion as to, 696 
 
 forfeited, 697 
 
 covenant for, 697 
 
 RENTS. See Rentcharge— Reservation. 
 defined, 17 
 rent-service, 17 
 rcntcharge, 18 
 rent-seek, 18 
 
 remedy by distress for, IS 
 rents of assize, 19 
 chief rents, 19 
 quit rents, 19 
 rack rent, 19 
 fee farm rent, 19 
 to whom reserved, 19 
 out of what reserved, 21 
 seisin of, 21 
 disseisin of, 546 
 when real and when personal property, 
 
 21 
 when rent will go to the heir, and 
 
 when to the executor, and when to 
 
 neither, 653 
 estates in, 22 
 
 to commence in futuro, 23 
 cesser of, for a time, 23 
 cesser of rent-service, 25 
 apportionment of, 25 — 30 
 arrears of, 30 
 grant of, by tenants in common or 
 
 persons seised in severalty, 24 
 when liable to duty or tax, 24 
 
 RENTS {continued). 
 
 when necessary on a lease, 692 
 obligation to pay rent, notwithstanding 
 
 fire, 665 
 release of, 718, 719 
 defeasance of, 738 
 may be created by a covenant to stand 
 
 seised, 742 — 3 
 in the case of leases under powers, 
 
 770—1 
 how reserved, 652 
 a service incident to freehold tenure, 
 
 118 
 duration of an interest for raising 
 
 arrears of, 227 
 devise of, 1038 
 trust to pay rents to a person until 
 
 another comes of age, 218 
 
 RENTCHARGE 
 
 defined, 17 
 
 how secured, 18 
 
 against common right, 19 
 
 how created, 20 
 
 gi'anted by tenant for life or years, 
 
 596—7 
 may be conveyed to uses, 20 
 for jointure, 199 
 apportionment of, 25 — 30 
 cesser of, 25, 30, 596—7 
 priority of, 31 
 release, 26, 719 
 usurious purchase of, 871 
 registration of, 15 — 17 
 
 REPAIRS, 
 
 neglect to repair, not " an act done or 
 
 caused to be done," 116 
 notwithstanding accident, 665 
 obligation of devisee and executors of 
 
 assignee to do, 695 
 
 REPUGNANCY 
 
 in a deed, 895 
 in a will, 994 
 
 RESERVATION. See Rent. 
 defined, 650 
 to a stranger, 651 
 subject of, 651 
 wdiat are exceptions, and what arc 
 
 reservations, 651 
 modes of reserving, 652 
 
 RESIGNATION OF BENEFICE, 
 
 engagements as to, 870 
 
 REVERSION, 
 
 defined, 330 
 
 vested, 330 
 
 an incorporeal hereditament, 4, 678
 
 INDEX. 
 
 1263 
 
 REVERSION (continued). 
 
 no reversion on a qualified fee, 332 
 forming part of a particular estate, 332 
 on an estate for years, 332 
 rent incident to, 332 
 when lying in liyerj', 5 
 curtesy or dower of, 185, 192 
 reversion clause, 638 
 a remainder will pass by the term, 645 
 passes by the grant of the land, 645 
 conveyed by grant, 678 
 conveyed by lease and release, 744 
 passing by general words, 1041 — 2 
 will not merge, 714 
 where barred by a fine or not, 927, 933 
 where barred by recovery or not, 946, 
 951—2, 953—4, 955 
 
 EEVERSIONARY PROPEETY. See 
 
 Reversion. 
 of married Avomen, 1124 
 necessity for conversion of, 1199 
 
 REVERSIONERS, 
 
 bargains with, 826 
 
 REVOCATION 
 
 of authority to sell or purchase, 61 S 
 of conveyances in trust for creditors, 
 
 812—813 
 power of revocation vitiating a deed, 
 
 850 
 of devises and bequests under the old 
 
 law, 1020 
 
 1. Express, 1021 
 
 by a subsequent will, 1021 
 by a codicil, 1022 
 by a writing, 1023 
 hj burning, cancelling, tearing, or 
 obliterating, 1023 
 
 2. Implied, 1024 
 
 by marriage and birth of a child, 
 
 1024 
 by alienation or disposition of the 
 
 estate, 921, 948, 1024, 1046 
 by bankruptcy, 1029 
 by republication of a former will, 
 1029 
 of devises and bequests under the stat. 
 1 Vict. c. 26, p. 1029 
 
 RIGHT 
 
 "put to a right," 551 
 
 release of, 720 
 
 conveyance by lease and release used 
 
 by persons having only a, 744 
 of action not released for a time, 716 
 
 ROMAN CATHOLICS, 
 
 bequest for Roman Catholic schools, 
 
 282 
 disabilities of, 1181 
 
 ROYAL GRANTS, 909 
 
 RULES OF COURT 
 
 to have effect of judgments, 436 
 registration of, 437 
 
 SAILORS, 
 
 bargains with, 828 
 
 SAINT GEORGE'S HOSPITAL, 
 
 gifts to, 303 
 
 SALE. See Powers — Vendor and Pur- 
 chaser. 
 
 mortgage by way of trust for, 373, 
 403—4 
 
 of mortgaged estate, 387 
 
 under decree for payment of debts, 
 506 
 
 of settled estates, 597 
 
 SATISFACTION 
 defined, 1215 
 
 distmguished from performance, 1215 
 where it arises, 
 
 portions secured by settlement, 
 
 1215 
 portions left by will, 1215 
 legacies to creditors, 1218 
 legacies to debtors, 1219 
 annuities, 1220 
 covenant to settle lands, 1220 
 covenant that a wife or relative 
 shall receive a gross sum on 
 death of covenantor, 666 
 maybe rebutted, 1219 
 
 SCINTILLA JURIS, 255 
 
 SEALING 
 
 a deed, 877 
 
 SEALS, 
 
 destroying, 905 
 
 SECURITIES 
 
 in another's name, 274 
 
 SEDUCTION, 
 
 bond given by a seducer, 829 
 
 SEISIN. See Livery. 
 meaning of, 146 
 constructive or in law, 146, 185 
 required to give a title to an estate by 
 
 curtesy, 184 — 5 
 lessee for years has no, 213 
 liow joint tenants are seised, 234 
 how tenants by entireties are seised, 
 
 239 
 how tenants in common are seised, 246 
 how coparceners are seised, 241
 
 1264 
 
 INDEX. 
 
 SEISIN {continued). 
 
 where necessary to constitute a root 
 
 whence a descent is to bo traced, 
 
 470—2, 480, 485-6 
 actual seisin, how acquired, 471 
 of a remainder, 472 
 of a rent, 21 
 necessary under the old law of devise, 
 
 985 
 not necessary under the new law, 987 
 
 —9 
 heir not seised of the part assigned to 
 
 the widow for dower, 475 
 
 SEPARATE USE. See Mabried Women. 
 appointment for, 758 — 9 
 
 SEPAEATION, 
 
 conditions as to, 96 
 deeds of, 1151 
 
 SERJEANTY, 
 
 grand, 118 
 lietit, 118 
 
 SERVANTS, 
 
 gifts to, 1017 
 
 SERVICES, 969 
 
 incident to freehold tenure, 118 
 incident to copyhold tenure, 969 
 release of, 718 
 
 SETTLED ESTATES, 
 
 sale and alienation of, 597 
 
 leases of, 689 
 
 SETTLEMENT. See Marriage Settle- 
 ment. 
 wife's equity to a, 1144 
 voluntary, 822—5, 838—850 
 
 SHARES. See Mortmain. 
 
 construction of the word, 645, 998 
 necessity for conversion of, 1199 
 
 SHELLEY'S CASE, RULE IN, 160 
 
 how inheritance is executed in the 
 
 ancestor, 161 
 reasons of, 161 
 in legal estates and trusts executed, 
 
 162 
 in trusts executory, 163 
 
 SHIP, 
 
 mortgage of a, 418 
 transfer of a, 731 
 
 SIGNING 
 
 deeds, 876 
 
 wills, 971, 978—981 
 
 SIMONY, 867 
 
 SOCAGE 
 
 tenure, 117 
 
 SOLICITOR 
 
 lien of, 370 
 
 concealment of deeds, &c., or falsifying 
 
 pedigree, 603, n. (c) 
 duty of, as to unusual covenants for 
 
 title, 800 
 transactions between solicitor and 
 
 client, 832, 1017 
 unable to purchase when their clients 
 
 are, 835 — 6 
 chai'ges by, when trustee, 1092 
 
 SON, 
 
 where a word of limitation, 158 — 9 
 
 SPRINGING USE OR INTEREST, 333 
 
 STAMPS, 875 
 
 STATUTES. See Act, private, 
 title, 908 
 
 commencement of operation, 908 
 application of, to copyholds, 124 
 
 STATUTES, LIST OF (a) :— 
 20 Hen. 3, c. 2 (emblements), 194 
 
 — 0. 4, Stat, of Merton (inclosure), 
 
 51 
 6 Edw. 1, c. 7 (alienation by tenant in 
 
 dower), 567 
 13 Edw. 1, c. 1, Stat, of Westminster 2nd 
 
 ( De donis conditionalibus. 
 
 Entails), 156, 420, n. (a) 
 
 — c. 34, Stat, of Westminster 2nd 
 
 (loss of dower by adultery), 
 204 
 
 — c. 18 (elegit), 421 
 
 35 Edw. 1 (waste in churchyard), 1191 
 31 Edw. 3, c. 11 (administrators), 1070 
 1 Hen. 4, c. 6 (royal grants), 910 
 5 Hen. 4, c. 14 (inrolment of proceedings, 
 
 on fines), 912 
 8 Hen. 5 (alien women), 1179 
 
 I Rich. 3, c. 7 (proclamation of fines), 912 
 
 3 Hen. 7, c. 4 (deeds of gift of goods, in 
 
 trust for the use of the donor), 
 838 
 
 4 Hen. 7, c. 24 (proclamation of fines), 912, 
 
 922 
 
 II Hen. 7, c. 20 (alienation of lands of de- 
 
 ceased husband), 567 
 
 (a) Most of the references under this title, to the 
 Later Acts, are confined to cases in wliich the enact- 
 ments are given verbatim. As to many of the pas- 
 sages in which enactments are merely adverted to, 
 or in whicii the effect of them is given, the reader is 
 referred to tlie titles in this Index which express 
 the subjects of those enactments.
 
 INDEX. 
 
 12G5 
 
 STATUTES, LIST OF (continued). 
 21 Hen. 8, c. 4 (power of sale by executors), 
 1078 
 
 — c. 5 (administrators), 1070 
 23 Hen. 8, c. (5 (recoacnisances), 420 
 
 26 Hen. 8, c. 13 (forfeiture), 563 
 
 27 Hen. 8, c. 10 (uses), 251 
 
 s. 6 (jointure in bar of dower), 197 
 s. 7 (eviction of jointress), 200 
 
 — c. 16 ( Stat, of lurolment), 682 
 
 32 Hen. 8, c. 9 (pretended titles), S60 
 
 — c. 16, s. 23 (leases to aliens), 1176 
 
 — c. 23 (leases by husband and wife 
 
 and tenant in tail), 687 
 s. 6 (power of husband over wife's 
 land), 1124 
 
 — c. 34 (breach of conditions and 
 
 covenants), 75, 771 
 
 — c. 37 (aiTears of rent due to wife 
 
 before coverture), 112G 
 
 33 Hen. 8, c. 20 (forfeiture), 563 
 
 — c. 39 (Crown debts), 496, 497, 509, 
 
 790 
 
 34 Hen. 8, c. 22 (customary conveyances), 
 
 204 
 
 5 & 6 Edw. 6, c. 11 (loss of dower by trea- 
 son or felony), 205 
 
 5 Eliz. c. 26 (lurolment in Lancaster, 
 Chester and Durham), 684 
 
 13 Eliz. c. 4 (Crown debts), 496, 497 
 
 — 0. 5, s. 1, 5 (voluntary deeds void 
 
 as against creditors), 838, 839 
 
 — c. 20 (charges on benefices), 458 
 23 Eliz. c. 3 (inrolment of proceedings on 
 
 fines), 912 
 27 Eliz. c. 4, s. 1, 4 (voluntary deeds void 
 
 as against purchasers), 845, 846 
 s. 5, 6 (deeds void as subject to 
 
 a power of revocation), 850, 
 
 851 
 s. 7, 8 (registration of statutes and 
 
 recognisances), 421 
 
 29 Eliz. c. 5 (voluntary deeds void as against 
 
 creditors), 838 
 
 30 Eliz.c. IS (voluntary deeds void as against 
 
 purchasers), 845 
 s. 3 (deeds void as subject to a 
 power of revocation), 850 
 
 31 Eliz. c. 2 (proclamation of fines), 912, 
 
 926 
 
 — c. 6, s. 5 (simony), 867 
 43 Eliz. c. 4 (charitable uses), 281 
 
 21 Jac. 1, c. 16 (Statute of Limitations), 
 
 493, 933 
 3 Car. 1, c. 4, s. 2 (charges on benefices), 
 
 458 
 
 12 Car. 2, c. 24, s. 8, 9 (appointment of 
 
 guardian), 1156 
 
 13 & 14 Car. 2, c. 4 (charges ou benefices), 
 
 458 
 
 STATUTES, LIST OF {continued). 
 
 15 Car. 2, c. 17, s. 8 (registration of deeds 
 
 in the Bedford Level), 881 
 22 & 23 Car. 2, c. 10 (distribution of intes- 
 tates' effects), 527 
 29 Car. 2, c. 3 (Statute of Frauds), 243, 
 247 
 
 s, 1 (a writing necessary in the crea- 
 tion of interests de novo), 621 
 
 s. 2 (exceptions), 621 
 
 s. 3 (a writing necessary to the 
 transfer of an interest), 622 
 
 s. 4 (agreements to be in writing), 
 622 
 
 s. 5 (devises), 973 
 
 s. 6 (revocation of wills), 1020 
 
 s. 7, 8 (declaration or creation of 
 trust), 794 
 
 s. 9 (grants and assignments of 
 trusts), 731—2 
 
 s. 10 (judgments), 432 
 
 s. 12 (estates pur autre vie), 536 
 
 s. 18 (recognisances), 421 
 
 s. 22 (revocation), 1020 
 
 — c. 31, s. 25 (distribution of intes- 
 
 tates' effects), 527 
 
 1 Jac. 2, c. 17 (distribution of intestates' 
 
 effects), 529, 530 
 4& 5 Will. 3, c. 16 (concealment of incum- 
 brances), 398 
 
 — c. 20, s. 3 (registration of judg- 
 
 ments), 437 
 
 6 & 7 Will. 3, c. 14 (registration), 437 
 
 7 & 8 Will. 3, c. 36 (same), 437 
 
 — c. 37 (mortmain), 567 
 
 10 & 11 Will. 3, c. 16 (posthumous chil- 
 
 dren), 328 
 
 11 & 12 Will. 3, c. 4 (Eoman Catholics), 
 
 1181 
 
 — c. 6 (descent through an alien), 
 
 1180 
 
 2 & 3 Anne, c. 4 (registration of deeds and 
 
 wills in Yorkshire), 879, 977 
 4 Aniie, c. 16, s. 12 (payment of principal, 
 interest, and costs), 793 
 s. 15 (deeds to declare uses), 748 
 
 4 & 5 Anne, c. 16, s. 9, 10 (attornment), 
 
 596 
 s. 19 (limitations), 493 
 
 5 Anne, e. 18 (registration in Yorkshire), 
 
 449, 684, 879 
 
 6 Anne, c. 18 (protection of cestuis que vie), 
 
 181 
 
 — c. 31, s. 7 (accidental fire), 1189 
 
 — c. 35 (registration in Yorkshire), 
 
 449, 684, 879, 977 
 s. 30, 34 (words " grant, bargain, 
 and sell "), 656 
 
 7 Anne, c, 18, s. 2 (presentation by joint 
 
 tenants, &c.), 37
 
 1266 
 
 INDEX. 
 
 STATUTES, LIST OF {continued). 
 
 7 Anne, c. 20 (registration in Middlesex), 
 
 449, 879, 977 
 
 — c. '21, s. 10 (corruption of blood), 
 
 468 
 12 Anne, st. 2, c. 12, s. 2 (simony), 868 
 
 — st. 2, c. 14, s. 1 (Roman Catholics), 
 
 1182 
 
 — c. 16 (usury), 870 
 
 3 Geo. 1, c. 18 (Roman Catholics), 1181 
 
 4 Geo. 2, c. 28, s. 1 (holding over after re- 
 
 ceiving notice to quit), 218 
 s. 6 (renewal of leases), 696 
 
 8 Geo. 2, c. 6 (registration in Yorkshire), 
 
 449, 684, 879, 977 
 s. 35 (words " grant, bargain, and 
 sell "), 656 
 
 9 Geo. 2, c. 36 (title and preamble of 
 
 Mortmain Act), 285 
 s. 1 — 3 (mortmain), 285 — 7 
 s. 4, 6 (exemptions), 295 
 11 Geo. 2, c. 17, s. 5 (Roman Catholics), 
 
 37, 1181 
 
 — c. 19, s. 15 (apportionment), 27 
 
 s. 18 (holding over after giving no- 
 tice to quit), 218 
 14 Geo. 2, c. 20, s. 6 (recovery), 958 
 
 s. 9 (estates pvir autre vie), 536 
 25 Geo. 2, c. 6, s. 1, 2 (witnesses to a will), 
 975 
 
 — c. 39 (descent through an alien), 
 
 1180 
 29 Geo. 2, e. 36 (inclosure for planting), 51 
 31 Geo. 2, c. 41 (inclosure for planting), 
 
 51 
 
 5 Geo. 3,c. 17 (rent out of incorporeal he- 
 
 reditaments), 21 
 
 17 Geo. 3, c. 26, s. 6 (contracts for annui- 
 
 ties), 1157 
 
 18 Geo. 3, c. 60 (Roman Catholics), 1181 
 25 Geo. 3, c. 35 (Crown debtors), 682 
 
 31 Geo. 3, c. 32 (Roman Catholics), 1181 
 33 Geo. 3, c. 13 (commencement of the ope- 
 ration of statutes), 908 
 
 36 Geo. 3, c. 52, s. 31 (payment of legacy 
 
 to an infant), 1162 
 
 37 Geo. 3, c. 136, s. 2 (stamps), 875 
 
 38 Geo. 3, c. 87, s. 6 (age of executor), 
 
 1069 
 
 39 Geo. 3, c. 93 (corruption of blood), 468 
 39 & 40 Geo. 3, c. 88, s. 12 (escheat), 534, 
 
 n-(/). 
 
 — c. 98, s. 1 (accumulation), 272 
 
 41 Geo. 3, c. 109 (Inclosure Consolidation 
 
 Act), 51 
 
 42 Geo. 3, c. 116, s. 52, 154 (land-tax), 19, 
 
 173 
 
 43 Geo. 3, c. 30 (Roman Catholics), 1181 
 
 — c. 84, s. 10 (charges on benefices"), 
 
 458 
 
 STATUTES, LIST OP {continued). 
 
 43 Geo. 3, c. 107 (exemptions from Mort- 
 
 main Act), 303 
 
 44 Geo. 3, c. 98, s. 24 (stamping after exe- 
 
 cution), 875 
 47 Geo. 3, sess. 2, c, 24 (escheat), 534, 
 n. (/). 
 
 53 Geo. 3, c. 141, s. 2, 8, 10 (annuities), 
 
 15, 16,1157 
 
 54 Geo. 3, c. 145 (corruption of blood), 468 
 
 (forfeiture), 564 
 
 — c. 168 (attestation of appoint- 
 
 ments), 753 
 
 55 Geo. 3, c. 184 (stamps), 875 
 
 — c. 192 (sun-ender to the use of a 
 
 will), 1044—6 
 57 Geo. 3, c. 99, s. 1 (charges on benefices), 
 
 458 
 59 Geo. 3, c. 94 (escheat), 534, n. (/) 
 3 Geo. 4, c. 92 (inrolment of annuities), 
 
 16 
 
 5 Geo. 4, c. 84, s. 26 (property of felons), 
 
 565 
 
 6 Geo. 4, c. 17 (escheat), 534, n. (/) 
 
 7 Geo. 4, c. 75 (inrolment of annuities), 16 
 
 9 Geo. 4, c. 31, s. 2 (petit treason), 205 
 
 — c. 83, s. 24 (New South Wales), 
 
 296 
 
 — c. 85 (Mortmain), 288, 289, 305 
 
 — c. 94, s. 1 (resignation of bene- 
 
 fices), 870 
 
 10 Geo. 4, c. 7, s. 23 (Roman Catholics), 
 
 1181 
 
 — c. 25, s. 37 (Greenwich Hospital), 
 
 303 
 
 11 Geo. 4 & 1 AVill. 4, c. 47 (debts), 504 
 
 s. 1 — 6, 8 (devises made void as 
 against covenantees or obligees, 
 &c., of the devisor), 504 
 
 s. 11 (conveyance by infant under 
 decree for sale for payment of 
 debts), 506 
 
 s. 12 (conveyance by persons having 
 a limited interest, &c., under a 
 decree for sale for payment of 
 debts), 507 
 
 — c. 65, s. 3 — 5, 6, 8, 9 (admittance 
 
 of persons under disability), 
 965 
 s. 11 (common recovery of copyholds 
 of married women), 1116 
 1 Will. 4, c. 40, .s. 1, 2 (right of executors 
 to undisposed-of residue), 1078 
 -9 
 
 — c. 46, s. 1 — 3 (illusory appoint- 
 
 ments), 760—1 
 
 — c. 65, s. 3 — 8 (admittance to copy- 
 
 holds), 1158 
 s. 12, 14, 15, 16, 20 (leases to mar- 
 ried women), 1113
 
 IXDEX. 
 
 12G7 
 
 STA'J'UTES, LIST OF (nnithiuaJ). 
 
 1 Will. 4, c. 65, s. 12 and 15 (infants smrcu- 
 
 dcring- leases and hiking new 
 
 ones), 1158 
 s. 17 (granting leases of estates of 
 
 infants), 11 58 
 s. 18 (renewal of leases), 696 
 s. 16, 20 (leases by married women), 
 
 1113 
 s. 16, 18, 20, 21 (infant accepting 
 
 surrenders of leases and grant- 
 ing new ones), 1158 
 s. 26 (agreements on behalf of in- 
 
 fixnts), 1159 
 
 2 & 3 Will, i, c. 71 (shortening time for 
 
 prescription), 542 
 
 s. 1, 4 (rights of common and other 
 profits ;i prendre), 542, 543 
 
 s. 2, 4 (rights of way and other ease- 
 ments), 542—3 
 
 s. 3, 4 (light), 543 
 — c. 115 (Roman Catholic charities), 
 282 
 
 3 & 4 Will. 4, e. 27 (Statute of Limita- 
 
 tions), 552 
 
 s. 1 (interpretation clause), 552 
 
 s. 2 (general rule as to recovery of 
 land or rent), 552 
 
 s. 3 (when right shall be deemed to 
 have accrued), 553 
 
 s. 4, 5 (when a remainderman or 
 reversioner shall have a new 
 right), 554 
 
 s. 6 (accruer of riglit to an adminis- 
 trator), 554 
 
 s. 7 (accruer of right in case of a 
 tenancy at will), 555 
 
 s. 8 (accruer of right in case of a 
 tenancy from year to year, or 
 for some other period without a 
 lease), 555 
 
 s. 9 (accruer of right in case of rent 
 wrongfully received), 555 
 
 s. 10 (mere entry not to be deemed 
 possession), 555 
 
 s. 11 (continual claim), 556 
 
 s. 12 (possession of one coparcener, 
 joint tenant, or tenant in com- 
 mon), 556 
 
 s. 13 (possession of a younger bro- 
 ther or other relative), 556 
 
 s. 14 (aclcnowledgement in writing 
 to the person entitled or his 
 agent), 556 
 
 s. 15 (case of possession not being 
 adverse at the time of tlie Act), 
 556 
 
 s. 16 — 19 (disabilities), 556 
 
 s. 20 (when the right to an estate iu 
 l)ossession is barred, the other 
 
 STATUTES, LIST OF {f<>„t!,iiic(l). 
 
 rights of the same person shall 
 be barred), 556 
 3 & 4 Will. 4, c. 27, s. 21 (bar to a feiiar.t 
 in tail, a bar to those whom he 
 might have barred), 55 7 
 
 6. 22 (possession adverse to tenant 
 in tail, adverse to persons he 
 might have barred), 557 
 
 s. 23 (other eases where estates to 
 take effect after or in defeasance 
 of estate tail shall be barred), 
 557 
 
 s. 24 (suits in equity), 557 
 
 g. 25 (accruer of riglit in eds:s of 
 express trust), 557 
 
 s. 26 (accruer of right in cases of 
 fraud), 558 
 
 s. 27 (jurisdiction of equity to refuse 
 relief), 558 
 
 s. 28 (barring mortgagor), 558 
 
 s. 29 (bar to ecclesiastical or eleemo- 
 synary corporation sole iu re- 
 gard to land or rent), 558 
 
 s. 30, 31, 33 (bar to right of presen- 
 tation or advowson), 558 
 
 s. 34 (extinction of the right as well 
 as the remedy), 558 
 
 s. 35 (receipt of rent to be deemed a 
 receipt of profits), 558 
 
 s. 36 (abolition of real and mixed 
 actions), 559 
 
 s. 39 (no descent cast, discontinu- 
 ance, or warranty, to defeat a 
 right of entry or action), 559 
 
 s. 40 (bar to money charged upon or 
 payable out of land, and to 
 legacies), 559 
 
 s. 41 (arrears of dower), 194 
 
 s. 42 (arrears of rent and interest), 
 30, 378 
 
 — c. 42, s. 3 (time for bringing action 
 
 or suit), 379, 494 
 
 — c. 74 (Fines and Recoveries Act), 
 s. 2 (abolition of fines and re- 
 coveries"), 913, 945 
 
 s. 3 (assurances bj' persons liable 
 after the 31st Dec. 1833, to levy 
 a fine or sutler a recovery), 
 775 
 
 s. 4 — 6 (fine or recovery of lands in 
 ancient demesne), 963 — 4 
 
 s. 5 (fine or recoveries in unautho- 
 rised court), 913, 945 
 
 s. 7 (errors in fines rectified), 913 
 
 s. 8 (misnomer, misdescription, or 
 omission in recoveries), 945 
 
 s. 10 (uon-enrohnent of the deed 
 making the tenant to the writ 
 for suffering a recovery), 945
 
 1268 
 
 INDEX. 
 
 STATUTES, LIST OF {coiillnned). 
 3 & 4 Will. 4, c. 74, s. 11 (omission to make 
 the tenant to the writ), 945 
 
 s. 14 (-.varranty), 172 
 
 s. 15 (power of disposition of en- 
 tailed land), 776 
 
 s. 16 (exception in the case of a 
 tenant in tail ex provisione 
 viri), 776 
 
 s. 18 (exception in the case of ten- 
 ants in tail restrained from 
 barring their estates tail and 
 tenants in tail after possibility 
 of issue extinct), 776 
 
 s. 19 (power to enlarge base fees), 
 777 
 
 s. 20 (expectancies of issue in tail), 
 776 
 
 s. 21 (disposition by a tenant in tail 
 for a limited purpose), 777 
 
 s. 22 (protector ■\vlicre none ap- 
 pointed), 777 
 
 s. 23 (protector in case of part- 
 owners), 777 
 
 s. 24 (protector in the case of a 
 married woman), 778 
 
 s. 26, 27, 28 (persons who are not to 
 be protectors), 778, and Ad- 
 denda 
 
 s. 29, 30 (protector in the case of an 
 estate disposed of, or created 
 out of a remainder or a rever- 
 sion before Dec. 31, 1833), 778 
 
 s. 32 (power to appoint protector), 
 778 
 
 8. 33 (where the Lord Chancellor or 
 the Court of Chancery is to be 
 the protector), 779 
 
 s. 34, 35 (how far protector's con- 
 sent is required), 779 
 
 s. 36, 37 (protector to have absolute 
 discretion), 779 
 
 s. 38 (confirmation of a voidable 
 estate by a subsequent disposi- 
 tion), 779 
 
 s. 39 (enlargement of a base fee by 
 union with the remainder or re- 
 version), 780 
 
 s. 40 (mode of assurance by a tenant 
 in tail), 780 
 
 s. 41 (enrolment thereof), 780 
 
 s. 42 (protector's consent, how 
 given), 780 
 
 s. 43 (consent by a distinct deed, 
 how construed), 780 
 
 s. 44 (consent not revocable), 780 
 
 s. 45 (consent of a married Avoman as 
 protector), 780 
 
 s. 46 (enrolment of consent by a 
 distinct deed), 780 
 
 STATUTES, LIST OF {continued). 
 3 & 4 Will 4, c. 74, s. 47 (exclusion of the 
 aid of a Court of Equity), 780 
 
 s. 48, 49 (consent of the Lord Chan- 
 cellor or Court of Chancery), 
 781 
 
 s. 50 (application of previous clauses 
 to copyholds, with exceptions), 
 781 
 
 s. 51 (protector's consent by deed), 
 781 
 
 s. 52 (protector's consent when not 
 by deed), 782 
 
 e. 53 (equitable estates tail in copy- 
 holds), 782 
 
 s. 54 (enrolment except on court 
 rolls, not necessary), 783 
 
 s. .56 (power of commissioners to 
 dispose of entailed lands), 783 
 
 s. 57 (power of commissioners to dis- 
 pose of land wherein the bank- 
 rupt has a base fee), 783 
 
 s. 58 (protector's consent), 784 
 
 s. 59 (enrolment of deed of disposi- 
 tion and consent), 784 
 
 s. 60, 61 (enlargement of base fees in 
 the event of there being no pro- 
 tector), 784 
 
 s. 62 (confirmation of voidable es- 
 tates by a subsequent disposi- 
 tion), 784 
 
 s. 63 (acts of a bankrupt in regard 
 to his estate tail void against a 
 disposition by the commis- 
 sioner), 784 
 
 s. G4 (power reserved to the bank- 
 rupt himself by the statute), 785 
 
 s. 65 (disposition after the bank- 
 rupt's decease), 785 
 
 s. 66 (disposition of copyholds to 
 operate as a suiTcnder), 785 
 
 s. 67 (rents, covenants, and condi- 
 tions), 785 
 
 s. 71 (disposition in the case of mo- 
 ney subject to be invested in 
 land which is to be entailed), 
 785 
 
 s. 74 (commencement .of operation 
 of an inrolled deed), 780 
 
 s. 77, 78 (power of disposition con- 
 ferred on married women by th.e 
 Act), 786 
 
 s. 79 (acknowledgment of disposi 
 tion), 786 
 
 s. 80—85, 87—89 (forms to be ob- 
 served on acknowledgments), 
 786 
 
 s. 86 (relation of deed), 787 
 
 s. 90 (equitable interests in copy- 
 holds), 787
 
 INDEX. 
 
 1269 
 
 STATUTES, LIST OF {continued). 
 
 3 & 4 Will. 4, c. 74, s. 91 (dispensation 
 
 Avith the husband's concurrence 
 in certain cases), 787 
 
 — c. 87 (defects in awards), 51 
 
 — c. 104 (real estate to be assets for 
 
 payment of debts), 504, 524 
 
 — c. 105 (DoAvcr Act), 207 
 
 s. 1 (interpretation clause), 208, n. (s) 
 s. 2 (dower of equitable estates), 
 
 190 
 s. 3 (right of entry or action), 191 
 s. 4 (dower barred by alienation), 
 
 208 
 s. 5 (dower affected by charges, &c.), 
 
 209 
 s. fi, 7 (dower barred by declara- 
 tion), 208 
 s. 8 (dower subject to conditions, 
 
 &c.), 209 
 s. 9, 10 (testamentary disposition in 
 
 bar of dower), 208 
 s. 11 (agreement not to bar dower), 
 
 209 
 s. 13 (dower ad ostium ecclesiae and 
 
 ex assensu patris), 190 
 s. 14 (saving clause), 209 
 
 — c. 106 (Inheritance Act). 
 
 s. 1 (interpretation clause), 479 
 
 s. 2 (from whom descent is to be 
 traced), 480 
 
 s. 3 (devise to heir of testator. Li- 
 mitation to the grantor or his 
 heirs), 473, n. {d\ 481 
 
 s. 4 (limitation to the heir or heirs 
 of the body of a person's an- 
 cestor), 481 
 
 s. 7 (what line is to be preferred), 
 484 
 
 s. 8 (preference of mother of more 
 remote male ancestor and her 
 descendants), 485 
 
 s. 9 (half blood), 485 
 
 s. 10 (corruption of blood), 468 
 
 4 & 5 Will. 4, c. 22, s. 1, 2, 3 (apportion- 
 
 ment), 27—9 
 
 — c. 23, s. 2 (exemption from es- 
 
 cheat), 533 
 
 — c. 29, s. 1, 2, 5, G (power to lend 
 
 money on real securities in Ire- 
 land), 1090 
 G & 7 Will. 4, c. 71 (commutation of tithes), 
 30, 40, 44, 46 
 
 s. 71 (merger of tithes or tithe rent- 
 charges), 40, 44 
 
 s. 86 (apportionment of rent-charges 
 under Tithe Act), 30 
 
 — c. 115 (inclosurc), 51 
 
 7 Will. 4 & 1 Vict. c. 28 (recovery of land 
 mortgaged), 554 
 
 STATUTES, LIST OF (continncd). 
 
 7 Will 4 & 1 Vict. c. 69 (commutation of 
 
 tithes), 40 
 1 Vict. c. 26 (Wills Act), 978—9 
 
 s. 1 (interpretation clause). Sec Ad- 
 denda. 
 s. 2 (repeal of certain Acts), 1044 
 s. 3 (general power of disposition), 
 
 966—7, 937 
 s. 4, 5 (devises of copyholds and cus- 
 tomary estates), 1044, 1047 
 .0. 3, 6, 34 (estates pur autre vie), 537 
 s. 7 (age of testators), 1156, 1161 
 s. 8 (wills of married women), 1114 
 s. 9 (signature and attestation to 
 
 wills), 978, 981 
 s. 10 (appointments), 349, 749, 752 
 s. 11, 12 (soldiers' and sailors' wills), 
 
 979 
 s. 13 (pul)lication), 982 
 .s. 14 (incompetency of attesting wit- 
 ness), 982 
 s. 15 (gifts to attesting witness), 982 
 s. 16 (creditor attesting to be ad- 
 mitted a witness), 982 
 s. 17 (executor to be admitted a 
 
 witness), 982 
 s. 18, 19, 20, 23 (revocation of wills), 
 
 1029—30 
 s. 21 (alterations in wills), 982 
 s. 22 (revival of will), 1036 
 s. 24 (at what time a will speaks), 
 
 995 
 s. 25 (residuary devise), 1037 
 s. 26 (general devise to include 
 copyholds and leaseholds), 1040 
 s. 27 (general gift to include pro- 
 perty subject to the general 
 power), 763 
 p. 28 (devise without words of limi- 
 tation), 22, 151—2 
 s. 29 (want or failure of issue), 169 
 s. 30, 31 (devise to trustees or exe- 
 cutors), 152 
 s. 32, 33 (lapse), 1033—4 
 s. 34 (cases to which Act is not to 
 extend), 978, n. (?•) 
 1 & 2 Vict. c. 64, s. 1 — 4 (merger of tithes), 
 41, 42, 44 
 
 — e. 106 (mortgage of benefice), 375 
 
 — c. 110, s. 11 (extension of creditor's 
 
 remedy), 422, 453 
 s. 13 (judgment to be a charge), 425, 
 
 433, 505, 509 
 s. 14 (charging orders), 433 
 s. 17 (interest on judgment debts), 
 
 435 
 s. 18 (decrees, &e. of Courts of 
 
 ecpiity, &c. to have cflcct of 
 
 judgments), 436 
 
 X X 2
 
 1270 
 
 INDEX. 
 
 STATUTES, LIST OF {continued). 
 
 1 & 2 Vict. c. 110, s. 19 (registration of 
 
 judgments, &c.), 437, 438 
 s. 21 judgments of palatinate couvts), 
 
 448 
 s. 22 (removal of judgments into 
 
 superior Courts), 448 
 
 2 Vict. c. 11, s. 1 — 5 (registration of judg- 
 
 ments, &c.), 438, 440, 441 
 s. 7 (registration of lis ixnclens), 446 
 s. 9, 10, 11 (Crown debts), 497, 500, 
 
 501 
 
 2 & 3 Vict. c. 60, s. 1, 2 (sale or mortgage 
 
 for payment of debts\ 507 
 
 — c. 62 (commutation of tithes), 40 
 
 s. 1 (preservation of charges on 
 
 tithes merged), 44 
 s. 2, 4 (apportionment of charges on 
 
 tithes merged and not merged), 
 
 44, 45 
 s. 6 (merger of tithes of glebe), 46 
 s. 19 (commutation of tithes), 40 
 
 3 & 4 Vict. c. 15 (commutation of tithes), 40 
 
 — c. 31 (inclosure), 51 
 
 — c. 82, s. I (judgment debtors), 434 
 s. 2 (registration of judgments, &c.), 
 
 450 
 
 4 Vict. c. 21, s. 2 (lease for a year), 743—4 
 
 4 & 5 Vict. c. 35, s. 13, &c. (eommutation 
 
 of manorial rights), 128, 137 
 
 s. 50 (apportionment of rent-charges 
 under C!opyliold Act), 30 
 
 s. 56, 57 (voluntary enfranchise- 
 ment), 128 
 
 s. 64 (title to lands voluntarily en- 
 franchised), 128 
 
 s. 68, 69 (charge of expenses of vo- 
 luntary enfranchisement"), 128 
 
 s. 70 — 72 (charge of consideration 
 for voluntary enfranchisement), 
 128 
 
 s. 79, 80 (cesser of customs as to de- 
 scent, dower, freebench, and 
 curtesy), 128, 129 
 
 s. 81 (effects of voluntary enfran- 
 chisement), 129 
 
 s. 82 (rights not affected by volun- 
 tary enfranchisement), 130 
 
 s. 85 (partition of copyholds), 707 
 
 s. 87, 88, 91 (grants and admit- 
 tances), 964 — 5 
 
 s. 90 (presentment), 962 
 
 5 Vict. sess. 2, c. 32, (neglect and omis- 
 
 sions as to fines in Wales and 
 Cheshire), 914 
 s. 3 (certain recoveries in Wales 
 and Cheshire made valid), 945 
 
 5 & 6 Vict. c. 54 (commutation of tithes), 
 
 40 
 
 6 & 7 Vict. c. 23, s. 1 — 3 (consideration for 
 
 STATUTES, LIST OF (continitcd). 
 
 voluntary commutation or en- 
 franchisement), 130 
 
 6 & 7 Vict. c. 37, s. 22 (gifts to Ecclesiastical 
 
 Commissioners), 303 
 
 7 & 8 Vict. c. 55, s. 5 (consideration for 
 
 voluntary commutation or en- 
 franchisement), 131 
 
 — c. 66, s. 3—5 (aliens), 1177 
 
 — c. 76 (Act to simplify transfer of 
 
 property), 628 
 
 s. 2 (livery), 5, 672 
 
 (enrolment), 684, 746 
 (lease for a year), 746 
 
 s. 3 (exchange, partition, and assign- 
 ment to be by deed), 595, 703, 
 710, 732 
 
 s. 4 (leases and surrenders to be by 
 deed), 595, 700, 729 
 
 s. 5 (assignments of future interests 
 and rights of entry), 861 
 
 s. 6 (word "grant"), 655 
 
 s. 6 (Avord "exchange"), 705 
 
 s. 7 (operation of feoffment), 675, 
 676 
 
 s. 8 (contingent remainders), 328 
 
 s. 9 (reconveyance of mortgaged es- 
 tate), 411 
 
 s. 10 (power to give receipts), 1101 
 
 s. 11 (indenting), 628 
 
 (parties to deeds), 632 
 
 s. 12 (remedies for rents and cove- 
 nants where reversion is mer- 
 ged), 597, 700--1 
 
 8 & 9 Vict. c. 59, s. 2 (Jewish charities), 
 
 282, n. (n) 
 
 — c. 106 (Act to amend law of real 
 
 property), 411 
 s. 1 (repeal of 7 & 8 Vict. c. 76, s. 8), 
 
 684, 1101 
 s. 2 (hereditaments to lie in livery), 
 
 5, 672, 746 
 s. 3 (leases to be by deed), 595, 700 
 (sun-ender to be by deed), 595, 
 675, 700, 729 
 s. 3 (partition to be by deed), 711 
 s. 3 (assignments to be by deed), 
 732 
 (exchange to be by 
 
 deed), 703 
 (feoffment to be by 
 deed), 671 
 .s. 4 (operation of a feoffment), 655 
 (condition in law on a partition), 
 
 710 
 (condition in law on exchange), 
 
 705 
 (Avord "give " or "grant"), 655 
 s. 5 (indenting), 115, 628 
 (parties to deeds), 654
 
 INDEX. 
 
 1271 
 
 STATUTES, LIST OF (conlnntcd). 
 S & 9 Viet. c. 106, s. (3 (assignments of fu- 
 ture interests, possibilities, and 
 riglits of entry), 8G1 
 s. 7 (disclaimer by married women), 
 
 1113 
 s. S (contingent remainders), 329 
 s. 9 (merger of reversion), 597, 701 
 
 — c. 112, s. 1, 2, 3 (satisfied terms), 
 
 222—3 
 
 — e. 118 (inclosure, exchange, parti- 
 
 tion), 51 
 
 — c. 119 (concise conveyances), 670, 
 
 787 
 
 — c. 124 (concise leases), 670, 788 
 
 9 & 10 Vict. c. 70 (inclosure), 51 
 
 — c. 73 (commutation of tithes), 40 
 
 s. 1 — 11 (redemption of tithe rent- 
 charges), 46 
 
 s. 18, 19, 20 (merger of tithes), 
 42—44 
 
 10 & 11 Vict. c. 96, s. 1 (payment or trans- 
 
 fer into Court of Chancery), 
 1107 
 
 — c. 104 (commutation of tithes), 40 
 
 — c. 119 (inclosure), 51 
 
 11 & 12 Vict. c. 70 (proclamations on fines), 
 
 913 
 
 — c. 87 (conveyance under decree for 
 
 sale for payment of debts), 508 
 
 — c. 99 (inclosure), 51 
 
 12 & 13 Vict, c, 26 (defective leases), 772 
 
 —4 
 
 — c. 7 4 (payment or transfer into Court 
 
 of Chancery), 1108 
 
 — c. 83 (inclosure), 51 
 
 — c. 89 (certificate of Lords of the 
 
 Treasury), 501 
 
 — c. 1 06 (Bankrupt Law Consolidation 
 
 Act), 573 
 
 s. 48 (orders in Chancery and bank- 
 ruptcy), 436 
 
 s. 125 (goods in possession, &c. of 
 bankrupt), 577 
 
 s. 126 (alienations by traders in in- 
 solvent circumstances), 579 
 
 s. 133, 134 (transactions not affected 
 by bankruptcy), 580, 581 
 
 s. 141 (personal estate to vest in 
 assignees), 576 
 
 s. 142 (real estate to vest in as- 
 signees), 573 
 
 s. 143 (registration), 583 
 
 s. 145 (assignees accepting or declin- 
 ing, or not electing either to ac- 
 cept or decline, any land subject 
 to a perpetual yearly rent or 
 any lease), 575 
 
 s. 1 46 (assignees not electing to cither 
 abide by or abandon anv agrec- 
 
 STATUTES, LIST OP {continued). 
 
 ment for purchase of real es- 
 tate), 576 
 
 12 & 13 Vict. c. 106, s. 147 (powers for 
 
 bankrupt's benefit may be exe- 
 cuted by assignees), 577 
 
 s. 148 (ordering bankrupt to join in 
 conveyances), 583 
 
 s. 149 (estates granted by a bankrupt 
 subject to a condition or proviso 
 for redemption), 576 
 
 — c. 110 (defective leases), 774 
 
 13 Vict. c. 17 (defective leases), 774 
 
 13 & 14 Vict. c. 60 (Trustee Act, 1850), 
 
 708, 1103. Bee Trustees. 
 
 — c. 97 (stamps), 875 
 
 s. 6 (duty payable in respect of a 
 lease for a year), 747 
 
 s. 12 (penalty for stamping after exe- 
 cution of instrument), 875 
 
 14 & 15 Vict. c. 25, s. 1 (extension of occu- 
 
 pancy in lieu of emblements), 
 176, 219 
 
 — c. 53 (commutation of tithes), 40 
 
 — c. 83, s. 7 (jurisdiction in bank- 
 
 ruptcy), 436 
 
 — c. 97, s. 8, 24 (gifts to Ecclesiastical 
 
 Commissioners), 303 
 
 15 Vict. c. 24 (signatures to will), 978, 
 
 979 
 15 & 16 Vict. c. 51, s. 1 (compulsory en- 
 franchisement), 131 
 s. 7, 9 (compensation for compulsory 
 
 enfranchisement), 132 — 3 
 s. 10 (priority of charge of compensa- 
 tion for compulsory enfranchise- 
 ment), 133 
 s. 11 (deed of enfranchisement), 134 
 s. 12 (certificate of charge), 134 
 s. 13 (transfer of charge), 134 
 s. 25, 26 (enfranchisement avoided 
 
 by offer to purchase), 134 
 s. 27 (compulsory enfranchisement 
 
 of customary freeholds), 135 
 s. 31, 32 (charge of expenses), 135 
 s. 34 (cesser of customs as to descent, 
 dower, freebencli, and curtesy), 
 135 
 s. 36 (power to sell rent-charge), 136 
 s. 37, 38 (redemption of rent-charge), 
 
 136 
 s. 45 (saving of commonable rights), 
 
 53, 136 
 s. 48 (what rights not affected by 
 compulsory enfranchisement), 
 137 
 s. 53 (Act to be deemed part of pre- 
 vious Copyhold Acts), 137 
 ■ — c. 55 (extension of Trustee Act, 
 1850), 1104
 
 1272 
 
 INDEX. 
 
 STATUTES, LIST OF (continued). 
 15 & IG Vict. c. 76, s. 219, 220 (redemption 
 of mortgage at law), 37G 
 
 — c. 79 (inclosure), 51 
 
 — c. 80, s. 48 (sale of mortgaged 
 
 estate), 386 
 10 & 17 Vict. c. 51 (succession duty), 492, 
 n. («). 
 c. 57 (enfranchisement of copy- 
 holds), 138 
 
 — c. 70 (Lunacy Regulation Act, 
 
 1853), 965, '1174 
 
 — c. 107, s. 196, 197 (obligations to 
 
 the Crown), 501—2 
 
 — c. 124 (commutation of tithes), 40 
 
 — c. 137 (charitable trusts), 279, n. (y) 
 
 17 & 18 Vict. c. 36 (registration of bills of 
 
 sale), 684, 881 
 
 — c. 75 (acknowledgments of married 
 
 women taken by persons inte- 
 rested), 786 
 
 — c. 90 (inrolment of annuities — 
 
 usuiy), 16, 871 
 
 — c. 97 (inclosure), 51 
 
 — c. 113 (payment of mortgage debts), 
 
 518, 521, 522, 1027 
 IS Vict. c. 13 (amendment of Lvmacy Regu- 
 lation Act, 1852), 1175 
 
 — c. 15 (protection of purchasers, 
 
 mortgagees, and creditors, 15, 
 412 
 
 18 & 19 Vict. c. 43 (marriage settlements), 
 
 1159 
 
 — e. 124 (charities), 279 
 
 19 & 20 Vict. 0. 94 (customary distribu- 
 
 tion), 532 
 ~ c. 97, s. 9, 10, 12 (limitations), 
 493—4 
 
 — c. 120 (leases and sales of settled 
 
 estates), 597, 598, 1159 
 
 20 & 21 Vict. c. 31 (inclosure), 51 
 
 — c. 57 (reversionary interests and 
 
 powers of married women), 1128 
 
 — c. 77 (probate), 1071—2, 1082 
 
 — c. 85, s. 21, 25, 26 (married women 
 
 deserted or separated), 1117 — 
 1119, 1120 
 
 21 & 22 Vict. c. 77 (leases and sales of 
 
 settled estates), 597, 690 
 
 — c. 94 (the Copyhold Act, 1858), 
 
 s. 6, 131 
 
 s. 21, 25 (charge of consideration 
 money), 138 
 
 s. 22 (charge of value of land given 
 as enfranchisement considera- 
 tion), 138 
 
 s. 23 (power to lord to charge land 
 purchased), 138 
 
 s. 24—27 (charge of expenses), 138 
 —9 
 
 STATUTES, LIST OF (ronthmed). 
 
 21 & 22 Vict. c. 94, s. 28, 29, 30 (certifi- 
 
 cates of charge), 139, 140 
 s. 31 (lord's charge to be appurte- 
 nant to the manor), 140 
 s. 33 (priority of charge), 141 
 s. 34 (charge not to merge), 141 
 g. 35 (recovery of sums charged), 141 
 8. 35 (land charged with enfranchise- 
 ment consideration as the mort- 
 gage in fee), 141 
 s. 52 (construction of Act), 142 
 
 — c. 95, s. 16 (probate), 1083 
 
 — c. 108 (order of pi-otcctiou and 
 
 decree for separation), 1119 — 21 
 
 22 & 23 Vict. c. 35 (Law of Property and 
 
 Trustees' Relief), 
 s. 1, 2 (licence to assign, &c.), 72 — 3 
 s. 3 (benefit of conditions or powers 
 
 of re-entry), 76 
 s. 4 — 9 (insurance), 653, n.{h). 
 s. 10 (release from a rent-charge), 26 
 s. 11 (release from a judgment), 456 
 s. 12 (appointments), 756 
 s. 13 (payment' by mistake), 612, 
 
 n.ih) 
 s. 14 — 18 (raising money by sale or 
 
 mortgage), 367 — 9 
 s. 19, 20 (descent), 480-1 
 s. 21 (assignment), 737 
 s. 22 (judgments), 498 
 s. 23 (po-nerto give receipts), 615 
 s. 24 (fraud of vendor or mortgagor), 
 
 603, n. (e) 
 s. 25 (interpretation clause). Ad- 
 denda 
 s. 26 payments or acts under a power 
 
 of attorney), 362 
 s. 27, 28 (liability of executors), 659 
 
 —60 
 s. 31 (trustees' indemnity and re- 
 
 imbiu-sement), 1091 
 s. 32 (investment), 1086 
 
 — c. 43 (inclosure), 51 
 
 — e. 61, s. 5 (married women di- 
 
 vorced), 1155 
 
 23 & 24 Vict. c. 15 (stamps), 875 
 
 — c. 38, s. 1 — 5 (judgments, &c.), 
 
 438, 439, 443—4, 448 
 s. 6 (waiver of covenant or condition), 
 
 73 
 s. 7 (scintilla juris), 255 
 s. 8 (fraud), 603, u. (c) 
 s. 12 (investment), 1086 
 s. 13 (property of intestates), 560 
 
 — c. 93 (tithes), 40, 46 
 
 — c. Ill (stamps), 875 
 
 — c. 115, s. 1 (bonds to the Crown), 
 
 502 
 8. 2 (judgments), 456
 
 INDEX. 
 
 1273 
 
 STATUTES, LIST OF (continued). 
 
 23 & 2i Vict. c. 134, 136 (charities), 279, 
 
 n. iy) 
 
 — c. 145, s. 1—10, 31—34 (powers of 
 
 sale, exchange, and renewal of 
 
 leases), 1095—1101 
 s. 11—24 (powers to sell, insure, and 
 
 appoint receivers), 389, 393 
 s. 25 (investment), 1087 
 s. 26 (maintenance), 1168 
 s. 27 (new trustees), 1105 
 s, 29 (power to give receipts), 615, 
 
 1101 
 s. 30 (powers of executors), 1082 
 
 24 Vict. c. 9 (charities), 305 
 
 24 & 25 Vict. c. 114 (domicile), 983 
 
 -^ c. 134, s. 114, 115 (bankrupts^, 
 574 
 s. 185-7, 192, 194, 196, 197, 200 
 (deeds of arrangement and com- 
 position), 814—818 
 
 25 & 26 Vict. c. 17 (charities), 309 
 
 — c. 53 (transfer of land), 561, 788 
 
 — c. 63, s. 3 (ships), 418 
 
 — c. 67 (declaration of title), 561 
 
 — c. 86, s. 1 — 15 (insane persons"), 
 
 1175 
 
 — c. 108 (minerals), 702, n. (c), 706, 
 
 n. (t), 1109 
 
 26 & 27 Vict. c. 106 (charities), 311 
 
 27 Vict. c. 13 (charities), 311 
 
 27 & 28 Vict. c. 45 (settled estates), 597, 
 
 690 
 
 — c. 112 (judgments), 429, 444, 453 
 
 —4 
 
 28 & 29 Vict. c. 72 (wills of seamen), 979 
 
 29 & 30 Vict. c. 57 (charities), 312 
 
 — c. 96, s. 1—5, (registration), 884 
 
 —5 
 
 30 & 31 Vict. c. 47 (registration), 447 
 
 — c. 69 (debts), 519 
 
 — c. 132 (investment of trust funds), 
 
 1086—7 
 
 31 Vict. c. 4, s. 1—3 (reversionary interest), 
 
 828 
 
 31 & 32 Vict. c. 40 (partition), 708 
 
 — c. 44, s. 1, 2 (charities), 304—5 
 s. 3 (enrolment), 314 
 
 — c. 54 (judgments and decreets), 
 
 457 
 
 32 & 33 Vict. c. 71 (Banla-uptcy Act, 
 
 1869), 585 
 
 STATUTE MEECHANT OR STAPLE. 
 See Eegistration. 
 estate by, is a chattel, 228 
 defeasance of, 738 
 merger of estate by, 1193 
 
 STATUTE MEECHANT, 
 
 defined, 420 
 
 STATUTE MERCHANT {(•mitlnucd). 
 disused, 421 
 extinction of, 454 
 
 STATUTE STAPLE, 
 defined, 420 
 disused, 421 
 extinction of, 454 
 
 STOCK, 
 
 purchase or transfer of, in another's 
 
 name, 274 
 the subject or security for a loan, 416 
 contract for transfer of, 416 
 
 SUBPUECHASE, 
 
 where the original contract is disputed, 
 
 859 
 
 SUCCESSION 
 
 of corporate property, 491 
 
 SUCCESSION DUTY, 491 
 
 SUFFERANCE, 
 interest by, 226 
 
 SUICIDE, 
 
 forfeiture for, 565 
 
 SUITS, 
 
 release of, 720 
 
 SUPERSTITIOUS USES, 
 bequest for, 283, n. 
 
 SUEEENDEE 
 
 defined, 726 
 
 express or in deed, or implied or in 
 law, 726 
 
 presumed, 223 
 
 operative words, 726 
 
 what may be surrendered, 726 
 
 requisites, 726 
 
 on condition, 729 
 
 of an interesse termini, 729 
 
 to one joint tenant, 235, 729 
 
 no uses on a surrender, 256 
 
 severing a joint tenancy, 237 
 
 where it does not aflect interests cre- 
 ated by the sun-enderor, 596—7 
 
 in law of a lease, 729 — 30 
 
 operating as a grant, release, &c., 898 
 
 feoffment operating as a, 898 
 
 habendum in, 648 
 
 SUEEENDEE OF COPYHOLDS, 
 defined, 962 
 alienation by, 962 
 mode of surrender, 964 
 w'ords of limitation in a surrender, 966 
 construction of, 966 
 to the use of a wiU, 1043—4 
 of married women, 1114
 
 1274 
 
 INDEX. 
 
 SURVIVOR. See Survivorship. 
 
 where he takes a contingent remaindcv, 
 2.30—1 
 SURVIVORSHIP. See Joint Tenaxcy. 
 230, 246—7, 999 
 necessity ibv surviving i)arent.-=, 3-38 
 
 TACKING, 381, 417 
 
 TAXES, 
 
 clear of taxes, 664, 998 
 parish collector of, 499 
 
 TENANCY IN COMMON. See Tenant 
 IN Common. 
 defined, 245 
 liow ci-eated, 245 
 ■\vliat iniity necessary, 246 
 no entirety of interest, 246 
 cnrtcsy and dower, 247 
 of advowson, 35 
 of tithes, .39—40 
 dissohition of, 247 
 partition, 247 
 
 TENANT, 
 
 meaning of, 117 
 
 TENANT EOR LIFE. See Life. 
 TENANTS IN COMMON. Sec Tenancy 
 
 IN COIIMON. 
 
 liability to extent, 431 
 
 possession of one was the possession of 
 
 the other, 548 
 where one is incapable of taking, G33 
 leases by, 690 
 gi-ant of rent by, 23 
 presentation by, 37 
 lapse of shares of, 1031 
 livery of or to, C73 
 confirmation of estate of one, 724 — 5 
 disagreement by one, 873 
 
 TENANT IN TAIL. See Fee-Tail. 
 Fiiic 
 
 by a tenant in tail in possession, with 
 
 proclamations, 922, 933 
 witliout proclamations, 92.'», 920, 931 
 by a tenant in tail in remainder or re- 
 
 ' version, 924—5, 935 
 by a tenant in tail disseised, 923 
 by a tenant in tail after creating a 
 
 derivative life estate in possession, 
 
 934 
 by a tenant in tail after assigning dower, 
 
 935 
 by a tenant in tail wlio had made a 
 
 lease not warranted by the statute, 
 
 or confessed a judgment, or incum- 
 
 l)cred his estate. 919 
 
 TENANT IN TAIL (contnnieil). 
 
 by a tenant in tail after a fine by his 
 
 issue, 923 
 by an equitable tenant in tail, 924 
 by a tenant in tail by the gift of the 
 
 Crown for services, 924, 933 
 by a woman tenant in tail of land 
 given by lier liusband or his ances- 
 tors, 949 
 by the tenant in tail of an incorporeal 
 
 hereditament, 927—8, 941 
 by a mortgagor or a mortgagee, 941 — 2 
 by the tenant in tail of a rent, 925, 
 
 928 
 by one who had but a contingent 
 
 interest in tail, 923 
 by a grantee of a tenant in tail, 929 
 by a stranger to a tenant in tail, 925 
 Recovery 
 
 by a tenant in tail operating by 
 
 estoppel, 946 
 by a tenant in tail without a proper 
 tenant to the prrecipe, or without a 
 voucher, 946 
 by a tenant in tail in possession, 951 
 ])y a tenant in tail in remainder, 952 
 bv a donee of a contingent interest in 
 
 'tail, 951 
 by a tenant in tail after a voidable 
 
 conveyance or settlement, 947 
 by a tenant for life, and an ulterior 
 
 remainderman in tail, 952 
 by a tenant for life, with a remote re- 
 mainder in tail, 949 
 by a joint tenant for life, with a re- 
 mainder in tad, 954 
 b}' a tenant in tail where the reversion 
 
 was in the Crown, 955 
 by an equitable tenant in tail, 957 
 
 TENANT IN TAIL AFTER POSSI- 
 BILITY OF ISSUE EXTINCT, 
 alienation by, 567, 726 
 
 TENANT-RIGHT ESTATES, 123 
 
 TENEMENT, 
 
 meaning of word, 2, 117 
 
 TENURE 
 
 explained, 117 
 release of, 718 
 
 TERM FOR YEARS. See Years, Es- 
 
 T.VTE FOR. 
 
 meaning of word "term," 215 
 is a chattel, 2 
 
 for what used in former day.s, 2 
 distinguished from a freehold interest, 
 145
 
 INDEX. 
 
 127i 
 
 TKRM FOR YEAKS {conUnued). 
 
 use made thereof for protection against 
 
 estates, charges, and incumbrances, 
 
 220 
 dower prevented by, 201 
 set aside, 200, 222 
 attendant, 220—4 
 in gross, 220 — 2 
 satisfied, 220—4 
 Stat. 8 & 9 Vict. c. 112, as to satisfied 
 
 tenns, 222 
 presumed surrender, 223 
 in copyholds, 224 
 uses of, are not executed, 265 
 uses of land for a term are executed, 
 
 265 
 limitation over, after a, 322 
 grant of term for life, i-emainder over, 
 
 324 
 grant of residue of, after death of ter- 
 mor, 691 
 confirmation of part of, 725 
 assignment from a future time, 735 — 6 
 defeasance of, 738 
 revocation of a bequest of term by its 
 
 becoming attendant, 989 
 merger of, 1193 
 charges of renewal of, 219 
 liable for debts, 503 
 within the Mortmain Act, 292 
 effect of judgment on, 425, 426, 427 
 covenants on sale of, 801 
 effect of fine or recovery on, 939 — 940, 
 
 954. Sec Fine and Recovery. 
 
 TESTAMENT, 970. See Will. 
 TESTATORS. See Will. 
 
 agi'cement to influence, 865 
 THELLUSSON ACT, 272 
 THINGS, 
 
 division of, 1 
 
 real, 1 
 
 personal, 2 
 
 lying in livery and in grant, 5 
 
 TIMBER. See Waste. 
 defined, 1185 
 on land leased, 691 — 2 
 M'aste in regard to, 1185, 1191, and 
 
 Addenda to that page 
 where the Court of Chancery will per- 
 mit timber to be felled, 1187 
 
 TITHES 
 
 defined, 38 
 
 their several kinds, 38 
 
 to whom due, 38 
 
 portions of, 38 
 
 lay impropriations, 39 
 
 origin thereof, 39 
 
 estates in tithe? in lay lands, 39 
 
 TITHES (continued). 
 la}' impropriations, 
 
 alienation of tithes in lay hands, 39 
 other incidents to them, 39 
 title to them, 39 
 lying in livery, 5 
 cannot be granted by owner of advow- 
 
 son, 36 
 commutation, 40 
 merger of tithes or tithe rent-charges, 
 
 40 
 preservation of charges on tithes 
 
 merged, 41 
 apportionment of charges on tithes 
 
 merged or not merged, 44 
 redemption of tithe rent-charges, 46 
 jurisdiction of the tithe commutation 
 
 eommissiouers, 46 
 may be mortgaged, 375 
 title to, 603 
 by whom payable, 692 
 
 TITLE. See Vendor and Purchaser. 
 modes of obtaining unimpeachable 
 
 title under new statutes, 561 
 defined, 462 
 
 by descent and by purchase, 462 
 specific kinds of titles, 463 
 release of, 721 
 
 TOLLS, 
 
 right to receive, 54 
 of a lighthouse are real property, 2 
 money secured on, witiiin the Mort- 
 main Act, 292 
 
 TOMBS, 
 
 bequest for keeping up, 1067 
 
 TRADE, 
 
 restraint of, 97, 654, 866, and Ad- 
 denda to p. 654 
 
 condition against carrying on certain 
 trades, 97 
 
 sale of trade secret, 97 
 
 use of a trade mark, 619 
 
 TRANSFER OF LAND ACT, 501 
 
 TREASON, 
 
 forfeiture for, 563 — 5 
 
 TREASURE-TROVE, 54 
 
 TREES, 
 
 sold by a tenant in tail, 1 73 
 gi-ant of, 639, 644 
 waste in regard to, 1185 
 
 TRUSTS. See Uses. 
 
 definition of an equitable estate, and 
 
 of an equitable interest, 200 
 meaning of the term " trust " and 
 
 " trust estate," 200 
 different kinds, 261
 
 1276 
 
 INDEX. 
 
 TEUSTS iconllmted). 
 
 express priyatc, 2G1 
 
 definition of an express Irust, 2G1 
 
 executed and executory, 201, 209 
 
 constriictive, 
 defined, 278 
 
 under a covenant or agreement to 
 convey, transfer, or pay money 
 or other property, 278 
 on a fi-audulent conveyance, 279 
 of a lease renewed, 279 
 
 express uses unexecuted by tlie sta- 
 tute are trusts, 262 
 
 wliat uses are not executed, 262 — 266 
 
 uses on uses are trusts, 262 
 
 uses •\vliich could not be executed 
 consistently with the intention, are 
 trusts, 264 
 
 uses of chattels are trusts, 265 
 
 uses of copyholds, 266 
 
 what words will create, 266 
 
 governed by the same rules as legal 
 estates, 269 
 
 exceptions, 269 
 
 conveyance of equitable estates, 271 
 
 declaration of, 271, 793 
 
 for accumulation, 272 
 
 implied or resulting, 273 
 
 conveyance, assignment, transfer, or 
 security in another's name, 273 — 5 
 
 where trusts fail or the property is 
 unexhausted hx the trust, 270 
 
 where there is no consideration, use, 
 or trust, 277 
 
 where a particular interest only is 
 limited, 277 
 
 iise of a rent upon a use, 20 
 
 trust estates passing under a general 
 devise, 1040—1 
 
 forfeiture of trust estates, 566 
 
 enforced in favour of volunteers, 757, 
 823 
 
 void trusts engrafted on an appoint- 
 ment , 758 
 
 TRUSTEES, 
 
 Avho may be, 1084 
 
 etiuity never wants a trustee, 1084 
 
 devolution or delegation of a trust, 1084 
 
 investment bj', 1086—90 
 
 must join in conveyances and receipts, 
 1091 
 
 notice to, 733, 735 
 
 responsibility, 1091 
 
 protected in acting under powers of 
 attorney, 362 
 
 every trust instrument to be deemed 
 to contain indemnity and reimburse- 
 ment clauses, 1091 
 
 remuneration, 1092 
 
 TRUSTEES (continued). 
 expenses, 1093 
 liencfit to, 834—5, 1092 
 legacy to, 1015 
 
 wrongful conversion, cliarge, or aliena- 
 tion by, 1094 
 as to receipts of trustees being effec- 
 tual discharges, 1101 
 convej-ance of legal estate to cestui que 
 
 trust, 1102 
 renunciation of trust, 873, 1102 
 provisions of stat. 13 & 14 Viet. c. 60, 
 15 & 16 Viet. c. 55, and 23 & 
 24 Vict. c. 145, as to trustees 
 of unsound mind, 1103 
 who arc infants, 1103 
 out of jurisdiction, 1103 
 who cannot be found, 1103 
 where it is uncertain wlio was 
 
 the survivor, 1103 
 where it is uncertain whether 
 
 living or dead, 1103 — 4 
 where a trustee dies without an 
 heir, or it is not known who ia 
 his heir or devisee, 1103 
 unborn, 1103 
 who neglect or refuse to transfer 
 
 or receive income or sue, 1104 
 who refuse or neglect to convey 
 
 or release, 1104 
 convicted of felony, 1105 
 power to appoint a person to 
 convey, assign, release, dispose 
 of, or transfer, 1104 
 cfl'ect of a vesting order as to 
 stock or choses in action, 1104 
 effect of an order as to copyholds 
 
 or customary lands, 1104 
 certain persons deemed trustees, 
 
 1104 
 general power to appoint and 
 
 vest, 1104—5 
 vesting order in the case of lands 
 
 directed to be sold, 1104 
 vesting orders to be stamped, 1105 
 principles of the Court in selecting 
 
 ncv,- trustees, 1105 
 vacancy before testator's death, 1107 
 increase in number, 1107 
 appointment of trustees whom the tes- 
 tator has excluded, 1107 
 payment or trfinsfer of trust funds into 
 
 the Court of Chancery, 1107 
 when they take a fee, 150 
 when they take the legal estate, 264 
 usual limitation to preserve contingent 
 
 remainders, 327 
 lien of, 371 
 sale by, 618, 625 
 purchases by, 834 — 5
 
 INDEX. 
 
 1277 
 
 TPtUSTEES {continued). 
 
 duty of, in exercising a power, 705 
 covenant by, 798 
 
 statutory power to sell or morlcjage, 
 367 
 
 UNCEETAINTY 
 
 in a deed, 872, 894 
 in a \yill, 995— G 
 
 UNDERLEASE 
 
 by a person entitled to iuteresse ter- 
 mini, 216 
 
 distinguished from a lease, 685 
 
 obligation of covenants on uuderlessee 
 and persons claiming under him, 
 662, 699 
 
 from a future time, 735 — 6 
 
 amounting to an usurious contract, 
 870 
 
 UNDERWOOD 
 
 granted by copy, 122 
 
 UNSOUND MIND. See Lunatics. 
 
 " UNTIL" 
 
 denoting a special limitation, 64 
 
 " UPON," 
 
 whether expressive of contingency, 
 318 
 
 USES. See Trost-s. 
 meaning of, 249 
 origin of, 249 
 evils incident to, 250 
 Statute of Uses and its operation, 251 
 —253 
 
 in the case of rents, 20 
 where word "use" or "trust" not 
 
 necessar}', 252 
 seisin to serve, 255 
 
 no use on a release of right or surren- 
 der, 256 
 on a bargain and sale, or covenant to 
 stand seised, or appointment, 256, 
 262, 76,5—6 
 who may be seised to, 256 
 who may be cestui que use, 256 
 when a person takes by the common 
 law, and when by the Statute of 
 Uses, 257 
 of what an use maybe limited, 257 
 limited by will, 257 
 resulting, 258 
 
 deeds to lead and declare uses, 
 nature of, 747 
 of fines or recoveries, 748 
 variance between fine or recovery 
 and, 748 
 
 USES (rontinitecl). 
 
 deeds to lead and declare uses. 
 
 measure of right of declaring 
 
 uses, 749 
 deeds of revocation, 749 
 
 USURY, 8 70- -2 
 
 VENDOR AND PURCHASER. See 
 
 Conditions of Sale — Feaud. 
 vendor's title, 599 
 length of, 599 
 kind of title required, 600 
 
 implied agreement to make a 
 title to all the vendor's in- 
 terest, 600 
 doubtful title, 601 
 title under indemnity, 601 
 equitable title, 601 
 " freehold," 601 
 title depending on destruc- 
 tion of contingent remain- 
 ders, or on the Statute of 
 Limitations, 601 
 incomplete title, 601 
 compensation, 601 
 lessor's title, 602 
 title to lands allotted, 602 
 title to lands taken in ex- 
 change, 602 
 title to enfranchised land, 
 
 602 
 title to property derived from 
 
 the Crown, 602 
 title to tithes, 603 
 under a power, 600 
 under a post-nuptial settlement, 
 
 600 
 defects in, 60-3, 609 
 investigation of title by vendor to 
 determine on what conditions 
 to sell, 605 
 waiving objections, 604 
 description of the property, 606 
 application of purchase-money, 612 
 power to give receipts, 615 
 mistaken paj'ment to a tenant for life 
 
 or other party, 612, n. {h}. 
 vendor's lien, 519, 615 
 proviso as to penalty for breach of 
 
 agreement, 611 
 sale of an estate for an annuity, 618, 
 
 625 
 sale by trustees and others, not being 
 
 owners, 618 
 purchase by a tenant for life, 836 
 indemnity to a vendor, 618 
 conveyance to one purchaser, 618 
 resale of estate sold by the Court of 
 Chancery, 618
 
 1278 
 
 INDEX. 
 
 VENDOR AND PURCHASER {con- 
 tinued). 
 revocation of authority to sell or pui'- 
 
 chase, 618 
 sale of good-will, 619 
 sale of interest under a disputed con- 
 tract, 859 
 right to dividends on a sale of life in- 
 terest in stock, 620 
 purchase contract regarded as per- 
 formed in regard to consequences. 
 623 
 vendor's right to interest and pur- 
 chaser's right to the profits, 623 
 where vendor must pay interest, 62i 
 risk, 62-1 
 
 searching for incumbrances, 854 
 devise, sale, or charge before convey- 
 ance, 625 
 right of heir to have estate purchased 
 out of ancestor's personal estate, 625 
 cesser of the estate or thing before 
 
 conveyance, 625 — 6 
 purchase by two persons, 232 
 purchase in another's name, 274, 620, 
 
 834 
 eviction, 800 
 
 purchase, with right of repurchase, 374 
 agreement for purchase by mortgagee, 
 
 390 
 sales and purchases 
 
 by married women, 1115 
 by infants, 1157 
 by lunatics, 1172 
 by solicitors, 832 
 by agents, 834 — 6 
 by aliens, 1176 
 by Roman Catholics, 1181 
 by persons who have acquired 
 knowledge of the property from 
 their employment as trustees, 
 mortgagees, executors, agents, 
 commissioners of bankrupts, as- 
 signees, &c., 834 — 6 
 abandoning agreement for purchase by 
 bankrupt, 576 
 
 VESTED INTERESTS, 317, et seq. See 
 
 Executory Interests. 
 present, 317 
 future, 317 
 
 vested in possession, 318 
 vested in right or interest, 318 
 vested rather than contingent, 337 
 postponement of the enjoyment till 
 
 after the period of vesting, 340 
 
 VESTING ORDER. See Bankruptcy- 
 Insolvency. 
 under stat. 13 & 14 Vict. c. 60, and 15 
 & 16 Vict. c. 55, p. 1103—5 
 
 VICARAGE, 
 
 what passes by the term, 644 
 
 VOID AND VOIDxVBLE DEEDS AND 
 CONTRACTS, 
 absence or failure of the consideration, 
 
 821 
 inadequacy of the consideration, 825 
 unlawfulness of the consideration, 
 
 829 
 deeds and contracts invalid on account 
 of constructive fraud practised 
 by persons standing in a confi- 
 dential relation to the parties 
 sought to be bound by such 
 deeds or contracts, 830, as by 
 parents, 830 
 guardians, 831 
 
 quasi guardians, advisers, minis- 
 ters, &c, 831 
 solicitors, 832 
 doctors, 834 
 agents, 834 
 
 trustees or other persons who have 
 
 acquired a knowledge of the 
 
 property, 834 
 
 deeds invalid on account of fraud on 
 
 third pei'sons, 837 
 
 clandestine marriage contracts, 
 
 837 
 fraud on marriages, 837 
 deeds of gift of goods in trust for 
 
 the use of the donor, 838 
 deeds void under the stat. 13 Eliz. 
 
 c. 5, p. 416,838 
 deeds void by reason of the pos- 
 session under them being re- 
 tained, 842 
 voluntary deeds void under the 
 stat. 27 Eliz. c. 4, s. 1, 4, p. 416, 
 845—852 
 deeds void under the stat. 27 Eliz. 
 c. 4, s. 5, as subject to a power 
 of revocation, 850 
 mortgage or conveyance, with no- 
 tice of another's title, 852 
 secret deed calculated to defraud 
 purchasers or incumbrancers, 
 856 
 contracts, agreements, or covenants, 
 which are against public policy, 
 856 
 where persons are not free agents, 
 
 856 
 assignments by persons liolding 
 offices under Government, or by 
 fellows of colleges, 856 — 7 
 agreements between appointor and 
 appointee of an office as to fees, 
 857
 
 INDEX. 
 
 1270 
 
 VOID AND VOIDABLE DEEDS AND 
 CONTEACTS {continued). 
 
 contracts, agreements, or covenants, 
 which are against public policy 
 {continued). 
 
 assignments involving champerty, 
 maintenance, or buying of pre- 
 tended titles, 857 — 8 
 
 assignments of mere naked rights 
 to litigate, 858—9 
 
 assignments of things in action, 
 rights of entry, possibilities, 
 and executory interests, 860 
 
 assignments of things not belong- 
 ing to the assignor at the time, 
 86i 
 
 marriage brocage contracts, 865 
 
 agreements to influence testators, 
 865 
 
 contracts to facilitate marriages, 
 865 
 
 contracts in restraint of marriage 
 or trade, 866 
 
 suppression of criminal proceed- 
 ings, 867 
 
 withdrawal from a suit for divorce, 
 867 
 
 simoniacal contracts, 867 
 
 assignments in fraud of creditors, 
 838—8-15 
 
 agreements to convey property, 
 if devised, 870 
 
 usurious contracts, 870 
 
 contract to effectuate an immoral 
 purpose, 872 
 
 contracts by husband to transfer 
 to the wife his riglits and duties 
 as regards his children, 1122 
 
 deeds void for uncertainty, 872 
 
 VOLUNTARY DEED>S, 
 
 revocableness of, 821 
 
 enforcing, 823 
 
 void as against creditors under the 
 
 Stat. 13 Eliz. c. 5, p. 838 
 void as against purchasers under the 
 
 Stat. 27 Eliz. c. 4, s. 1, 4, p. 845— 
 
 852 
 
 VOLUNTEERS, 807, 821—5. See Volun- 
 tary Deeds. 
 
 WAIFS, 54 
 
 AVAIVER 
 
 of benefit of a covenant or condition, 
 73 
 
 "WARD. See Infant. 
 
 settlement on a ward of Court, 810 
 transactions between guardians and 
 wards, 831—2 
 
 WARRANT or ATTORNEY 
 
 to confess judgment, 422 
 
 AVARRANTY 
 
 barring estate tail, 172 
 abolished, 172 
 
 WAUREN, 53—4 
 
 WASTE 
 
 defined, 11S5 
 
 different kinds of voluntary waste, 1185 
 in trees and hedges, 1185 
 in houses, 1188 
 
 as regards mines and pits, 1189 
 changing the course of husbandry, 1189 
 destruction of heir-looms, 1190 
 destruction of game, &c., 1190 
 who may and who may not commit, 
 1190 
 
 tenants in tail, 1190 
 
 tenants for life, 1190 
 
 ecclesiastical persons, 1190 
 
 tenants for years, 1187—8, 1191 
 
 tenants at will, 1191 
 
 lord or tenants of a manor, 1191 
 
 mortgagee, 376 
 
 mortgagor, 399 
 exemption from impeachment for, 1186 
 —1191 
 
 WASTE LAND, 
 
 ownership of, 122 
 granting portions of, 122 
 
 WATER, 
 
 right to running water, 56, n. {x) 
 grant of a piece of, 644 — 5 
 claim by prescription, 542 — 5 
 
 WATER-COURSE, 
 
 claim to, by prescription, 542 — 4 
 
 WAYS 
 
 defined, 55 
 
 different kinds of, 55 
 
 how they arise, 55 
 
 not created by bargain and sale, 56 
 
 extinction of, 56 
 
 devestment of, 56 
 
 claim to, by prescription, 542 — 5 
 
 passing by a grant of land, 638—9 
 
 WIDOW. Sec Dower — Jointure. 
 
 right of, under the Stat, of Distribu- 
 tion, or the customs of London and 
 York, 527, 530, 1154 
 
 WIFE. Bee Married Women. 
 
 devise to a wife to maintain children, 
 228
 
 1280 
 
 INDEX. 
 
 WILL, ESTATE AT, 
 
 defined, 22i 
 creation of, 22 i 
 dctcrmiiiiition of, 224 
 rent and emblements, 225 
 not assignable, 226 
 seldom arises, 226 
 is at will of both parties, 224 
 waste by tenant at will, 1191 
 
 WILL. See Bequest— Devise. 
 defined, 970 
 who may make, 972 
 of drunkards, 972 
 
 persons under duress, 972 
 soldiers and sailors, 979 
 of testators domiciled abroad, 983 
 married women, 1113 
 infants, 1161 
 insane persons, 1173 
 requisite forms 
 
 requisite forms before 1 Vict. c. 26, 
 
 p. 973 
 altei'ations as to the forms by 
 1 Vict. c. 26, and the provisions 
 of 15 Vict. e. 24, and 24 & 25 
 Vict. c. 114, p. 755, 978 
 signing, 973, 978—981 
 publication, 974, 982 
 attestation, 755, 973—976, 978-982 
 appointment by, 755, 971 
 written or verbal, 973 
 in the form of a deed, 977 
 registration of, 977 
 enrolment of, 977 
 probate of, 977 
 mistakes in, 972 
 essential that testator should know 
 
 contents, 972 
 no relief against defective execution of, 
 
 978 
 alteration in, 982—3 
 what may be devised or bequeathed, 
 hope of succession, 985 
 contingent and other future inte- 
 rests, 985, 988 
 rights of entry, 985, 988 
 property of which the testator was 
 
 not seised, 986, 988 
 title by mere possession, 986 
 interest of grantor under a void- 
 able conveyance, 986 
 estate of mortgagee, 986 
 equity of redemption, 986 
 after-acquired property, 986, 988 
 customary freeholds and copy- 
 holds, 966, 987—8 
 estates pur autre vie, 988 
 terms, 976, 987, 989 
 crops, 989 
 
 AVILL (mi dinned). 
 
 wliat may be devised or bequeathed, 
 general disposing power under 
 
 1 Vict. c. 26, s. 3, p. 988 
 advowsons and presentations, 989 
 devisees and legatees, 1002 
 
 sustaining a certain character, 
 
 1002 
 error or defect in a name or de- 
 scription, 1002 
 devises and bequests to 
 
 parent and children, 1004 
 children, 1005 
 
 issue or offspring, 1007, 1008 
 direction that shares of daugh- 
 ters be settled upon them- 
 selves strictly, 1007 
 heirs or descendants, 1008 
 a person and his heirs, or the 
 
 heirs of a person, 1011 
 cousins, 1012 
 nephews and nieces, 1012 
 relations or a family, 1012 
 next of kin, 1013 
 persons claiming under the 
 Statute of Distributions, 
 1013 
 executors, 1015 
 trustees, 1015 
 representatives, 1015 
 the parish or parish church, 
 
 1017 
 the Chancellor of the Exche- 
 quer, 282 
 lloman Catholic priests, 
 
 chapels, and schools, 283 
 a bankrupt, 1017 
 servants, 1017 
 implied devises and bequests, 1018 
 revocation of devises and bequests, 
 1020. See Kevocation. 
 under the old law, 1020 
 under the stat. 1 Vict. c. 26, p. 
 1029 
 lapse of devises and bequests, 1030 
 republication of, 1034 
 revival of revoked will, 1036 
 condition not to dispute, 103 
 general rules of construction of, 989. 
 
 See Construction. 
 at what time a will speaks, 905 
 
 WITNESSES 
 to deeds, 978 
 to wills, 975, 979-982 
 
 WOOL, 
 
 assignment of, (JH, 864
 
 INDEX. 
 
 1281 
 
 WORDS. Sec Construction, &c. 
 general and special, 894 
 rejected or supplied, 895, 993 
 transposition of, 894, 994 
 construction of certain expressions {not 
 
 alphabet icalli/ arranged) : 
 "my unsettled real estate," 1042 
 " persons entitled under the Sta- 
 tute of Distributions," 1014 
 'Mvho have issue," 1000 
 "may be born," 1005 
 " next surviving son, daughtei", or 
 
 child," 1007 
 " all lands or goods," 642 
 lands "purchased," 1042 
 " on condition," 59 
 " subject to the performance of the 
 
 covenants," 1001 
 "subject to the mortgage," 517 
 "claiming under," 664 
 dying "unmarried" or "without 
 
 being married," 999 
 " subject to the incumbrances," 
 
 1001 
 " upon the security of the funds 
 
 of any company," 1088 
 "clear of taxes,"' &c,, 24, 664 
 "first male heir of the branch of 
 
 his family," 1009 
 " in (he character of the then male 
 
 heir of the bod}-," 1011 
 " all other chattel property," 1057 
 construction of certain words {alpha- 
 
 hetically arraru/ed) : 
 "and" construed "or," 893 
 "as soon as," 318, 321 
 "at," 318 
 "attaining his twenty-fifth year," 
 
 999 
 " begotten," and "to be begotten," 
 
 158, 899, 1005 
 "cliattels," 1055—6 
 "child," 158—9, 1170—1 
 "children," 1006, 1170-1 
 " clear," 24—5, 664, 998 
 "common," 645 
 "controversies," 720 
 " cottage," 643 
 " cousins," 1012 
 "daughter," 1170—1 
 " debentures," 1055 
 " deductions," 998 
 "descendants," 464, n. (l) 
 "devolve," 1001 
 " die without leaving children," 
 
 1000 
 " during," 64 — 5 
 "educated abroad," 69 
 " education," 1167 
 "cficcts," 1055— G 
 
 WORDS {continued). 
 
 construction of certain words : 
 
 " eldest male lineal descendant," 
 1010 
 
 "eldest child, son, or daughter," 
 1006—7 
 
 " entitled," 1004 
 
 "estate," 149, 1038 
 
 "at cffitera," 1057 
 
 "family," 268, 1013 
 
 "farm," 642 
 
 " first cousin, or cousin german," 
 1012 
 
 " for," 825 
 
 " foreign stock or fund," 1053 
 
 " from and after," 318, 321 
 
 " from a certain day," 899 
 
 " furniture," 1057 
 
 "fixed furniture," 1057 
 
 " household furniture," 1058 
 
 "goods," 1058 
 
 "government stock or fund," 
 1053 
 
 " heirs." See Heir or Heirs. 
 "heirs male," 1008 
 " heirs male " or " female " in 
 a deed, 157- -8, 900 ; or in 
 a will, 159, 1009, 1011 
 " right heirs," 1009 
 "then male heir," 1011 
 "next heir," 1009 
 
 "house," 639, 642—3 
 
 " household efiects," 1058 
 
 " Iiousehold goods," 1058 
 
 "if," 64, 320, 321 
 
 " in case," 320, 321 
 
 " insolvency," 900 
 
 " interest," 998 
 
 "issue," 165, 1007—8, 1171 
 
 "is^ue in tail male," 159 
 
 " issue male," 1008 
 
 " legacies," 1002 
 
 " life annuity," 606 
 
 " linen," 1058 
 
 " living," 1042 
 
 " London," 893, 900, 1002 
 
 "maintenance," nrj6 — 7 
 
 " maintenance, education, and 
 bringing up," 1166 — 7 
 
 " male descendants," 1010 
 
 " manor," 643 
 
 " messuage," 642 
 
 " minerals," 901 
 
 "mines," 901 
 
 " moiety," 149 
 
 "money," 1051, 1055, and Ad- 
 denda to that page 
 " due," 1053 
 "ready," 1053 
 "in the funds," 1054
 
 1282 
 
 INDEX. 
 
 WORDS {continued). 
 
 , construction of certain words : 
 
 "month," 67, 901 
 
 "ray," 1049 
 
 " nearest of kin in the male line," 
 1011 
 
 "nephews and nieces," 1012 
 
 "next of kin," 337 
 
 " next of kin of my own family," 
 1013 
 
 " next legal representatives," 1015 
 
 " oflTspring," 1008 
 
 " or," construed " and," 893 
 
 "parliamentary stock or fund," 
 1053 
 
 "part," 149, 998 
 
 " pecuniary legacies," 1049, 1053 
 
 " personal estate," 1055 — G 
 " plant and goodwill," 1058 
 " pool," 645 
 " portion," 901, 998 
 " produce," 608—9 
 "profits," 644 
 "promises," 719 
 "property," 149, 1055—6 
 " provided," 59, 320 
 " public-house," 665 
 "quarries," 901 
 
 " railway stock or shares," 1053 
 " real estate," 1040 
 " rectory," 644 
 "relations," 1012 
 " remainder," 149, 645 
 " representatives," " legal repre- 
 sentatives," " next legal repre- 
 sentatives," " legal personal re- 
 presentatives," 1015 
 " reversion," 149, 645 
 "securities for money," 1041, 
 1055, and Addenda to that page 
 "servant in my domestic estab- 
 lishment," 1018 
 " same," 894 
 "shares," 149, 645, 998 
 " so long as," 64 — 5 
 " so that," 59 
 "son," 158, 1170—1 
 "support," 1167 
 "survivors," or "survivor," 999 
 " taxes," 998 
 " term," 1051 
 
 WOlfDS {conCuiucJ). 
 
 construction of certain woid,- : 
 "then," 321 
 "things," 1056 
 " thirds," 901 
 "till," 64—5 
 "toft," 644 
 
 "undivided quarter," 149 
 "until," 64—5 
 " upon," 318 
 "usual covenants," 771 
 " usually demised," 768 
 "vested in securities," 1055 
 "warren," 645 
 " water," 644 
 "when," 318, 321 
 " whilst," 65 
 "younger children," 350, 1006 
 
 WRECKS, 54 
 
 YEAR, DAY, AND WASTE, 564 
 
 YEAR TO YEAR. 
 
 tenancy from, 216, 226 
 
 YEARS, ESTATE FOR. See Term. 
 nature of, 213 
 at the common law, 213 
 under the Statute of Uses, 214 
 beginning and end of, 214 
 tenancy from year to year, 216, 226 
 devolves to the executor, 218 
 trust to pav rents till another comes of 
 
 age, 218 
 holding over, 218 
 
 charges of renewal of leaseholds, 219 
 estovers, 219 
 emblements, 219 
 
 long terms for special purposes, 219 
 attendant terras, 220 
 use made of long satisfied terms, 220 
 determinable on the dropping of a life, 
 
 175 
 mortgage of, 402 
 tortious alienation by a tenant for 
 
 years, 568 
 surrender of, 726 
 
 repair of leasehold bequeathed, 1001 
 passing under a general devise, 1040 
 waste by tenant for years, 1188, 1191 
 
 LONDON' 
 STEVEKS AND RICHArDSON, TRINTER?, 5, GREAT QUEEN STREET, LINCOLN'S INN FIELI'.S, W.C. 
 
 ^
 
 l/' 
 
 ^ 
 
 0^^
 
 %oi\mi^'^ 
 
 
 
 
 ^\WEllNIVERS'/4 ^lOSANCHfj; 
 
 ^^iunNvyii^"^ ^y/mm 
 
 ki. 
 
 < 
 
 so 
 
 i-i\im^BS//i 
 
 O 
 
 
 ^lUtiK/ 
 
 •'JlJJHV 
 
 ^/sii3AiNft3WV^ \om3i^'^ \oi\mi^ 
 
 
 ^10SANCEI% 
 
 ^ . -< 
 
 V/rMjAiun.iUV^ 
 
 A.OFCAIIFO% A-OfCAllFOftj 
 
 
 
 •< 
 
 55 
 
 
 -j^StUBRAfiYa^, -^^^lllBRARYQr^ 
 
 \\\£UNIVER% 
 
 ^lOSANCflfj 
 
 
 "^i^liONVSOl^ 
 
 
 ^OfCAllFOi?^ ^OFCAllFOff^ ^^V\E•UNIVER% ^lOSANCfl^ 
 
 
 ^XiTJDNVSOl^ 
 
 ■^/sa3AiNn3\< 
 
 
 .^\^E^)NlVERy/A 
 
 ^lOSANCflf% 
 
 ^Quawsov^^ '^/sajAiNflmv' 
 
 AWEUUIVEBS'/a 
 
 ^lOSA^CElfj"^ 
 o 
 
 %iinNV<;n\'^ 
 
 %«iAiMniv\v 
 
 A^iUBRARY(9/- 
 
 ^-OFCAllFOff^ 
 
 ^>MIIBRARY6 
 
 ^^OFCAIIFOR 
 

 
 ^(«/ojnvDjo>^ ^«!/ojnv3jo^ <rii«Nvsoi^ %a3AiNniwv^ 
 
 .A;OfCAllFO% 
 
 y, ^OFCAtlF0% 
 
 ^<?A8vnan"iV^ ^'^AHVJigiH^;'^ 
 
 
 o 
 
 o 
 
 ■^/Sa^AINIl 3Wv 
 
 
 AWEUNIVERS//V 
 
 
 ^.!/ojnv3jo'^ ^^m\m\^^ 
 
 ^ 
 
 5^ c^ 'o 
 
 ^lOSANCrifj> 
 o 
 
 ?<f7ij:)Nv«)i>^ %«uiNrtiuv^ 
 
 ^OFfAllFO/?^^ ^OFCAllFOff^ 
 
 
 >&AHVHaiH^ 
 
 ^ %«■■■■■■ 
 
 ^lUBRARYY?/^ 
 
 %JllV3iO^ 
 
 -v^lllBRARYG<- 
 
 ^itfOJIWDJO'^ 
 
 \WtUNIV[KS/A 
 
 "^JliflWNVSOl^ 
 
 vvlOSANCFlfj>. 
 
 o 
 
 %a3AiNn-3UV 
 
 *V:OFCAllFOff^ 
 
 ^^,OFCAIIFO% 
 
 
 AWEUNIVER^//, 
 
 ^lOSANCElfj^ 
 
 Or ■■' ^^ 
 
 O 
 
 >t?AavH3ni^ <rii3wsoi^ ^AajAiNa-jwv 
 
 4?^' 
 
 \\\fc UMIVERS-//; 
 
 <fil30NVS01^ 
 
 ^10SANCEI^;> 
 
 ■^/iajAINIlJViV 
 
 ^iUBRARY^/:^ ^>MllBRARYac. 
 
 ^«!/ojiiv}jo^ ^-tfojnvjjo^^ 
 
 
 ^^WElj^JlVER5/4 
 
 '<r?n'iHVQm-"^ 
 
 vVclOSAKCElfjv. 
 o 
 
 6 
 V/CMUi>jn.3UV^ 
 
 ^•OFCAllFO/?^ 
 
 ^OFCAIIFO% 
 
 
 awei 
 
 >-