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 i 2 
 
OJornpll Slam Btl^xxal Sjibtaty 
 
WITH THE PUBLISHERS' COMPLIMENTS. 
 
GENEEAL VIEW 
 
 LAW OF PROPERTY. 
 
 BY 
 
 J. ANDREW STRAHAN, M.A., LL.B., 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW, 
 
 Reader of Equity in the Inns of Court ; sometime Examiner in Equity 
 
 and the Law of Property ^ University of London ; 
 
 Author of " -A. Concise Introduction to Convey ancing^^^ *' The Law of Willsy'*^ ^c., c 
 
 Joint Author of Strahan ^- Kenrick's ^'Digest of Equity," TJnderhill ^' Strahan^s 
 
 " Interpretation of With and Settlements. ''' 
 
 ASSISTED BY 
 
 J. SINCLAIR BAXTER, B.A., LL.B. (Lond.), 
 
 OF THE MIDDLE TEMPLE AND NORTH-EAST CIRCUIT (IRELAND), BARRIBTEE-AT-LAW, 
 
 Eegius Professor of English Laio, Queen's College, Belfast, and Regius Professor 
 of Laws in the University of Dublin. 
 
 FIFTH EDITION, 
 
 LONDON : 
 
 STEVENS AND SONS, LIMITED, 
 
 119 & 120, OHANCEEY LANE, 
 
 gata |litbH0h:cr0. 
 
 1908. 
 
The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021641927 
 
TO 
 
 E. A. M^CALL, Esq., LL.D., 
 
 ONE OF HIS majesty's COUNSEL, 
 AND A MASTER OP THE BENCH OF THE MIDDLE TEMPLE, 
 
 %idth '§001 
 
 IS DEDICATED 
 
 AS 
 
 A MARK OF THE AUTHOk's 
 
 FRIENDSHIP AND ESTEEM. 
 
PREFACE 
 
 TO THE FIFTH EDITION. 
 
 In this Edition all decisions of importance to 
 students reported up to March, 1908, have been 
 noted, and the leading Statutes have been 
 referred to throughout by their short titles. One 
 or two small errors and misprints have been 
 corrected. The Author has again to thank many 
 readers, known and unknown to him, for drawing 
 his attention to these. 
 
 Professor Sinclair Baxter is once more 
 responsible for Appendices A to E, and for the 
 statements as to Irish Law appearing in the 
 text. 
 
 1, New Square, Lincoln's Inn, W.O. 
 23rd March, 1908. 
 
( vii ) 
 
 EXTRACT FROM PREFACE 
 
 TO THE FIRST EDITION. 
 
 In the following pages the author has attempted to state 
 clearly and very concisely the main principles of the Law 
 of Property. 
 
 Hitherto, most writers, in dealing with this subject, 
 have treated separately of realty and personalty. The 
 author has ventured to depart from this practice. Recent 
 legislation has, it seems to him, so greatly approximated 
 the law of realty to the law of personalty, that they may 
 now be profitably considered together. The principles of 
 both are to a large extent the same : where they differ, 
 he believes that by contrasting them they may be made 
 to illustrate each other. 
 
 Considerable ey.perience as a law tutor has shown him 
 that the prime object of a first book for students should 
 be not so much to teach the reader the law as to enable 
 him to learn it for himself. To accomplish this, the 
 subject-matter must be arranged logically and systemati- 
 cally, and the general principles underlying its many 
 details brought clearly and conspicuously out. This he 
 has endeavoured to the best of his ability to do. He is 
 quite aware of the dangers of attempting to arrange 
 logically a body of law which, if it ever was so, has long 
 ceased to be systematic, and to generalise where every 
 general principle has been limited and restricted by 
 special custom, judicial decision, or legislative enactment. 
 
vill EXTRACT FROM PREi*ACE TO THE FIRST EDlflOJi. 
 
 He cannot hope to have done this without being, guilty 
 of some oversights, and having perpetrated some blunders. 
 He trusts, however, that the difEculty of the task will 
 induce his readers to look on these with a merciful eye. 
 
 Before concluding, he must take the opportunity to 
 thank his friend and former pupil, Mr. J. Sinclair 
 Baxter, LL.B., for help extending over the greater part 
 of the Work, and more especially as to Appendices A. 
 toD. 
 
 1, Plowden Buildings, Temple, 
 11th Septemher, 1895. 
 
( ix ) 
 
 TABLE OF CONTENTS. 
 
 PAGE 
 
 Preface to Fifth Edition . . . . .... v 
 
 Preface to First Edition . . . . vii 
 
 Table of Cases . . . . . . . . xv 
 
 Table op Statutes . . . . . . xxiii 
 
 Table of Abbreviations . . . . .... xxix 
 
 Pt. I.- — ^OWNEESHIP AND ThINGS OwNED 
 
 Meanings of " Property " . . 
 Eiglit of Ownership 
 Nature of Eight 
 Subject-matter of Eight 
 
 Divisions of Things Owned 
 
 Q?echnical Divisions 
 
 Natural Divisions 
 Absolute Ownership, Characteristics : — 
 
 Indefinite in User. . 
 
 Unrestricted in Disposition 
 
 Unlimited in Duration 
 Partial Ownership 
 Interests in Things Owned 
 Arrangement of Work 
 
 1 
 2 
 2 
 3 
 5 
 6 
 11 
 
 11 
 12 
 12 
 13 
 14 
 15 
 
 Pt. II. — ^KiNDs OF Interests in Things Owned. 
 
 Sources of English Law 
 
 Else of Equity 
 
 Ownership of Land and Goods 
 
 Tenure of Land 
 
 Estates in Land . . 
 
 Title Deeds and Heirlooms 
 
 16 
 18 
 18 
 19 
 20 
 21 
 
TABLE OF CONTENTS. 
 
 Sect. I. — Interests in Land 
 
 Sub-sect. (1). — Freehold Interests 
 (a.) Estates in Fee Simple . . 
 {b.) Estates in Fee Tail 
 (c.) Estates for Life 
 
 A. Settlements of Freeliolds 
 Sub-sect. (2). — Chattel Interests. . 
 
 (a.) Tenancy for Time Certain . . 
 
 [b.) Tenancy at Will 
 
 (c.) Tenancy by Sufferance 
 
 B. Settlements of Chattel Interests 
 
 Sect. II. — Inteeests in Goods . . 
 (a.) At Law 
 (A.) In Equity 
 
 C. Settlements of Goods 
 
 PAGE 
 
 22 
 
 32 
 
 35 
 
 46 
 
 56 
 
 67 
 
 78 
 
 82 
 
 101 
 
 102 
 
 102 
 
 105 
 105 
 106 
 108 
 
 Pt. III. — Modes of Holding Interests 
 
 Modes of Holding Interests . . . . . . 
 
 Sect. I. — In Trust Ownership 
 Sect. II. — In Concurrent Ownership 
 Sub-sect. (1). — Joint Tenancy 
 
 (2). — Coparcenary 
 
 (3). — Tenancy in Common . . 
 
 (4). — Tenancy by Entireties 
 
 Sect. III. — In Future Ownership . . 
 
 Sub-sect. (1). — Future Ou-nership at Common Law 
 (2). — Future Oivnership in Equity 
 (3). — Future Ownership by Statute 
 (4). — Powers 
 (5). — Perpetuities and Accumulations 
 
 Sect. IV. — In Conditional Ownership . . 
 Sub-sect. (1). — Mortgages of Land 
 
 Part A, — Mortgages by Deed . . 
 B. — Mortgages by Deposit 
 Sub-sect. (2). — Mortgages of Goods . . 
 
 112 
 113 
 125 
 126 
 137 
 139 
 141 
 
 143 
 143 
 162 
 166 
 173 
 183 
 
 191 
 201 
 202 
 219 
 222 
 
TABLE OP CONTENTS. XI 
 
 Ft. IV. — Modes op Acquiring Interests. 
 
 PAOE 
 
 Title . . . . . . . . .... 227 
 
 Sect. I. — Title by Oeiginal Acquisition of Ownership 
 Sect. II. — Title by Teansfee of Ownership 
 Sub-sect. (1). — Transfer by Act of Owner . . 
 Part A. — Alienation inter vivos . . 
 I. — Alienation of Land 
 II. — Alienation of Goods 
 Part B. — Alienations mortis causa 
 I. — Donationes mortis causa 
 II. — Alienation by Will 
 Sub-sect. (2). — Transfer by Operation of Law . . 
 Part A. — Devolution inter vivos 
 Part B. — Devolution mortis causd 
 
 228 
 231 
 231 
 233 
 236 
 258 
 266 
 267 
 268 
 295 
 296 
 307 
 
 Ft. V. — Rights over Things owned by 
 
 Others. 
 
 Corporeal and Incorporeal Property . . 
 
 .. 323 
 
 Sect. I. — Eights over Land owned by Others 
 
 
 . 324 
 
 Eights to Definite Use . . 
 
 
 . 325 
 
 Eights of Support 
 
 
 . 326 
 
 Eights of Way 
 
 
 . 326 
 
 Eights to Water 
 
 
 . 326 
 
 Eights to Light and Air 
 
 
 . 326 
 
 Eights to Share Profits 
 
 
 . 329 
 
 Seignories 
 
 
 . 329 
 
 Profits d prendre 
 
 
 . 330 
 
 Franchises 
 
 
 . 332 
 
 Eents and Annuities charged on Land 
 
 
 . 333 
 
 Tithes . . 
 
 
 . 334 
 
 Eights, Oflices, &c. connected with Land 
 
 
 . 335 
 
 Advowsons 
 
 
 . 335 
 
 Ancient Offices 
 
 
 . 337 
 
 Titles of Honour . . 
 
 
 . 337 
 
 Sect. II.— Rights over Goods owned by Others 
 
 
 . 338 
 
 Trover 
 
 
 . 338 
 
 Bailment 
 
 
 . 339 
 
 Lien 
 
 
 . 341 
 
Xll 
 
 TABLE OP CONTENTS. 
 
 Pt. VI. — Peoprietary Rights not over Things. 
 
 
 
 PAfiE 
 
 Proprietary Eights not over Things . . 
 
 . 343 
 
 Choses in Action 
 
 
 . 344 
 
 Annuities not charged on 
 
 Land 
 
 . 350 
 
 Personal Annuities 
 
 ' . . . . . 
 
 . 350 
 
 Consolidated Bank Annuities 
 
 . 351 
 
 Interests in Corporations 
 
 
 . 352 
 
 Shares 
 
 
 . 357 
 
 Stock . . 
 
 
 . 357 
 
 Debentures . . 
 
 
 . 358 
 
 Monopolies 
 
 
 . 360 
 
 Patents 
 
 
 . 360 
 
 Copyright 
 
 
 . 363 
 
 Eight to Perform 
 
 
 . 365 
 
 Trade Marks 
 
 
 . 366 
 
 Trade Names . . 
 
 
 . 366 
 
 Pt. VII. — Persons under Disabilities as to 
 Property. 
 
 Disabilities and Persons 
 Sect. I. — Natueal Persons 
 
 Specific Disabilities 
 
 General Disabilities 
 Sect. II. — Abtificial Persons 
 
 Corporations . . 
 
 Charities 
 
 368 
 369 
 370 
 373 
 382 
 382 
 384 
 
TABLE OF CONTENTS. Xlll 
 
 APPENDICES. 
 
 PAGE 
 
 A. — Copyholds . . . . . . , . . . 389 
 
 B. — Irish Land Acts . . . . . .... 396 
 
 C. — Irish Land Purchase . . . . . . . . 406 
 
 D. — Eegistration OF Deeds AND Title (Ireland) . . .. 412 
 
 E. — Ships . . . . . . . . . . 417 
 
 F. — Table of Limitations . . .... 420 
 
 INDEX. 
 
( XV ) 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Abbiaa v. Bumey 161 
 
 Abbott, In re, Peacock v. 
 
 Frigout 188 
 
 Abbott V. Middleton 282 
 
 Abbott & Co. I . Wolsey .... 263 
 
 Adams v. Dunseath. .400, 402, 403 
 
 Adams v. Dunseath, No. '1 . . 404 
 
 Agra Bank v. Barry 221 
 
 Alien V. Allen 60 
 
 Ames, In re 76 
 
 Anderson ». Anderson 280 
 
 Anderson v. Pignet 86 
 
 Andrew v. Bridgman 92 
 
 Angus V. Dalton 328 
 
 Anstie, In the goods of 277 
 
 Appleby, In re, Walker v. 
 
 Lever 185 
 
 Armory v. Delamirie . . 303, 338, 341 
 Ashforth's Trusts, In re, Ash- 
 forth V. Sibley 149 
 
 Astley V. Micklethwait 166 
 
 Atkinson v. Morris ...... 281, 282 
 
 Att. - Gen. «). Fletcher 135 
 
 Att.-Gen. V. OdeU 255 
 
 Att.-Gen. v. Tod Heatley 20 
 
 Backhouse v. Bonomi 326 
 
 Baker, In re 137 
 
 Baker ti. Ambrose 224 
 
 Baker v. Sebright 64 
 
 Bankes ». Small 60 
 
 Barden, Jane, In re the goods of 273 
 
 Barnes v. Dowling 63 
 
 Baroness Llanover, In re .... 190 
 
 Barrow v. Isaacs 91 
 
 Bass V. Gregory 328 
 
 Battison v. Hobson 217 
 
 Bayley v. Conyngham 398 
 
 Baynes & Co. v. Lloyd & Sons 248 
 
 Beardman v. Wilson 250 
 
 PAGE 
 
 Beavan v. McDonnell 378 
 
 Beddington r. Bauman . . 180, 267 
 
 Bell r. Fothergill 281 
 
 Bell V. Holtby 51 
 
 Berwick & Co. v. Price 216 
 
 Betty, In re, Betty e. Att.- 
 
 Geu 104 
 
 Beyfus f. Lawley 180 
 
 Blackburn u. Hope-Edwards. . 40 
 
 Blackmau v. Fysh 146 
 
 Blades v. Higgs 5 
 
 Blundell, In re 372 
 
 Blunt's Trusts, In re, Wigan 
 
 V. Clinch 37, 186 
 
 Bodger v. Bodger 220 
 
 Bogue ['. Houlston 364 
 
 Bolton [. School Board for 
 
 London 237 
 
 Borland's Trustee v. Steel 
 
 Brothers, Ltd 81 
 
 Borthwick v. Evening Post . . 366 
 
 Bovill ». Endle 214 
 
 Bowen, In re, Lloyd Phillips 
 
 V. Davis 186 
 
 Bower-Barff Patent, In re. . . . 363 
 Bowlby, III re, Bowlby v. 
 
 Bowlby 290 
 
 Boyd, In re, Kelly v. Boyd .. 180 
 
 Boyd V. Boyd 319 
 
 Boyle f. Richardson 400 
 
 Brace, In re, Welch v. Colt . . 183 
 Brace v. Duchess of Marl- 
 borough 216 
 
 Bracken, //( re, Doughty v. 
 
 Townson 293 
 
 Bradford, Mayor of v. Pickles. 
 
 5,326 
 Brandts, Sons & Co. v. Dunlop 
 
 Rubber Co 349 
 
 Bridger, In re 386 
 
 Broad, /« cf, Smith f. Draeger 179 
 
 Brooke, In n 161 
 
 Brooke v. Kavanagh 61, 62 
 
XVI 
 
 TABLE OF CASES. 
 
 PAOE 
 
 Brown v. Peto 204 
 
 Burgess v. Wheate 116, 124 
 
 Burke's Estate, In re 413 
 
 Buruaby v. Equitable Rever- 
 sion Interest Society 135 
 
 Burnett v. Lynch 248 
 
 Buxton V. James 364 
 
 Byron's Settlement, In re, 
 
 Williams r. Mitchell 175 
 
 Cadell ®. Palmer 185 
 
 Cahn and Mayer v. Pookett's 
 Bristol Channel Steam 
 
 Packet Go 259 
 
 Cain V. Moon 267 
 
 Calvin's Case 380 
 
 Calye's Case 340 
 
 Catdtal and Counties Bank v. 
 
 Rhodes 255 
 
 Cardross's Settlement, In re . . 374 
 
 Carter v. Wake 223 
 
 Carter and Kenderdine's Con- 
 tract, In re 301 
 
 Cartwright, In re 63, 92 
 
 Casborne v. Scarfe 204 
 
 Castlemaine, Lord v. Lord 
 
 Craven 61 
 
 Castle Raby Case 64 
 
 Chandler v. Bradley 76 
 
 Charity Commissioners r. 
 
 Walsh 387 
 
 Charlton v. Charlton 181 
 
 Charter v. Charter 283 
 
 Charter v. Watson 213 
 
 Chawner's Settled Estates, 
 
 In re 76 
 
 Chaytor, In re 62 
 
 Chisholm's Settlement, In 7'e, 
 Hemphill v. Hemphill. . 181, 371 
 
 Cholmondeley v. Clinton 203 
 
 Christie v. Gosling 165 
 
 Christ's Hospital v. Grainger . . 1 86 
 
 Chute ». Busteed 42 
 
 Clayton and Barclay's Con- 
 tract, III re 381 
 
 Clitheroe, In re 71 
 
 Cochrane v. Cochrane 190 
 
 Cochrane v. Moore 260 
 
 Cogan V. Cogan 146 
 
 Coggs V. Barnard 340 
 
 Coheo, In re 301 
 
 Cohen's Kxecutors, In re .... 293 
 
 Cohen ». Mitchell 34 9, 381 
 
 Cole V. Sewell 149 
 
 PAOE 
 
 Coleridge, In re Lord 77 
 
 Collier v. McBean 153 
 
 Colls V. Home and Colonial 
 
 Stores, Ltd 329 
 
 Commissioners of Income Tax 
 
 V. Pemsel 186 
 
 Compton V. Bloxham 283 
 
 Cook's Mortgage, In re 136 
 
 Cooper V. France 316 
 
 Cooper V. Macdonald 371 
 
 Coupe Company f. Maddick. . 340 
 Courtier, In re, Coles v. Cour- 
 tier 104 
 
 Cox V. Hoare 263 
 
 Goxen V. Rowland 180 
 
 Cundy v. Lindsay 259 
 
 Cnrneen v. Tottenham 402 
 
 Dalev. Hall 340 
 
 Daraerell v. Protheroe 392 
 
 Danson, In re, Bell v. Danson 190 
 
 Dashwood v. Magniao 63 
 
 Davies, In re, Davies v. Davies 180 
 
 Davies v. Davies 92 
 
 Dawkins v. Lord Penrhyn . . 304 
 
 Day V. Kelland 208 
 
 Dayrell, He, Hastie v. DayreU 
 
 22, 110 
 
 Dean, In re 184 
 
 Dean v. Dean 171, 174 
 
 Delacherois r. Delacherois . . 39 
 
 De Lusi's Trusts, He 180 
 
 Deverges v. Sandeman, Clark 
 
 & Co 223 
 
 Dick V. Yates 365 
 
 DiUon V. Dillon 60 
 
 Doe V. Davies 203 
 
 Doe d. Freestone v. Parratt . . 142 
 
 Doe V. Hellier 392 
 
 Doe V. Luxton 59 
 
 Doe V. Redfern 39 
 
 Doherty v. Allman 64 
 
 Dougal r. McCarthy 101 
 
 Dowse ('. Gorton and Others. . 294 
 
 Drew V. Nunn 373 
 
 Drinkwater v. Ratcliffe 133 
 
 Drybutter r. Bartholomew . , 357 
 
 Dudson's Contract, In re ... . 51 
 
 Dugdale v. Dugdale 196 
 
 Duke of Cleveland's Settled 
 
 Estates, In re 288 
 
 Duugannou i\ Smith 185 
 
 Dymond v. Croft 209 
 
TABLE OF CASES. 
 
 xvn 
 
 PAGE 
 
 Eager v. Eumival 287 
 
 Eardley v. Granville 391 
 
 Earl of Bedford's Case 81 
 
 Earl of Stafford v. Buckley . . 351 
 
 Earle v. Kingscote 376 
 
 Ecroyd v. Coulthard 230, 332 
 
 Edmonds v. Blaina Furnaces 
 
 Co 358 
 
 Egerton v. Brownlow 282 
 
 Egmont's (Earl) Settled Es- 
 tates, In re 76 
 
 Elias V. Snowdon Slate Qaar- 
 
 ries Co 62 
 
 Elibank (Lady) v. Montolieu. . 376 
 
 EUiot, /« )-e, Kelly J!. Elliot . . 194 
 
 Elliott 41. Bishop 93 
 
 Ehves V. Mawe 91 
 
 Ethel and Mitchell's and But- 
 ler's Contract, In re 35 
 
 Evans r. Evans 162 
 
 Eyre, Re 181 
 
 Eyre v. McDowell 200 
 
 Farrar «). Parrar's, Ltd 211 
 
 Fenner v. Blake 88 
 
 Ferrand v. Yorkshire Banking 
 
 Co 221 
 
 Ferrans v. O'Brien 5 
 
 Finch and Chew' s Contract, Se. 187 
 Fish, In re, Ingham v. Eay- 
 
 ner 283, 380 
 
 Fitzgerald's Trustee v. Mel- 
 
 lersh 220 
 
 Fitzgerald v. Firbank 332 
 
 Fitzgerald v. Fitzgerald 332 
 
 Fitzsimons v. Clive 400 
 
 EleetTvood, /n re 387 
 
 Fletcher v. Ashbumer Ill 
 
 Flight V. Thomas 329 
 
 Flood, In re , . 413 
 
 Foley V. Gallagher 398 
 
 Fraser, Re, Lowther v. Praser . 
 
 7, 333 
 
 Freeman v. Laing 216 
 
 Freeman ». Pope 233 
 
 Freke ii. Lord Carbery . . 190, 278 
 Freman, In re, Dimond v. 
 
 Newbum 63 
 
 FuUerton r. Provincial Bank . . 
 
 217, 413 
 Fury V. Smith 412 
 
 S. 
 
 PAGE 
 
 Ganly v. Ledwidge 258 
 
 Garland v. Mead 393 
 
 Garth v. Cotton 64 
 
 Gaskell and "Walter's Contract, 
 
 In re 51 
 
 Gavelkind, Case of 396 
 
 Gilbert, In the goods of 281 
 
 Gilbeyt). Rush 74 
 
 Giles V. Warren 281 
 
 Gillman v. Murphy 398 
 
 Goodlock t). Cousins 297 
 
 Gough «. Wood 203 
 
 Government Stock, &c. Invest- 
 ment Co. V. Manila Railway 
 
 Co 359 
 
 Grant v. Ellis 305 
 
 Grassi, In re, Stubberfield v. 
 
 Grassi 279 
 
 Gray v. Bonsall 91 
 
 Greaves v. Tofield 333 
 
 Greene v. Kirkwood 194 
 
 Greenwell v. Low Beechburu 
 
 Colliery Co 328 
 
 Greenwood, In re, Goodhart t). 
 
 Greenwood 194 
 
 Greer, In re 221 
 
 Gregson's Trusts 283 
 
 Grenfellr. Dean of Windsor.. 371 
 
 Groos, In the estate of 279 
 
 Grymes 1). Boweren 94 
 
 Hale I). Hale 185 
 
 Hall V. Lichfield Brewery Co. . 328 
 
 Hallen ». Runder 93 
 
 Hampshire i\ Wickens 249 
 
 Hargreave i<. Spink 258 
 
 Harris, Inre, Fitzroy !). Harris 195 
 
 Hart V. Windsor 248 
 
 Harvey, In re, Harvey v. 
 
 Harvey 123 
 
 Hasluck V. Clarke 46 
 
 Hay, Re, Kerr v. Stinnear . . 2S0 
 
 Healy 0. Donnery 178 
 
 Hearle v. Greenbank 374 
 
 Heath, In re. Heath v. Wid- 
 geon 313 
 
 Heathcote, In re, Heathoote v. 
 
 Trench 189 
 
 Henderson v. Astwood . .206, 212 
 Hewitt, /;; re, Hewittu. Hallett 13i 
 Heydon's Case 391 
 
 b 
 
xvm 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Hey wood, In re, Parkingfcon v. 
 
 Hey wood iS 
 
 Hill (Viscount) v. BuUock .... 96 
 
 Hillji. Hickin 136 
 
 Hills V. Hills 268 
 
 Hindson v. AsWej 230 
 
 Hodgkiuson, In re the goods of. 281 
 Holland, In re, Brettell v. 
 
 Holland 131 
 
 Holland, In re, Gregg ». 
 
 Holland 233 
 
 Homer, In re, Eagleton v. 
 
 Homer 380 
 
 Honywood v. Honywood .... 62 
 Hood-Barrs v. Heriot(No. 1).. 371 
 Hood-Barrs J). Heriot (No. 2).. 372 
 
 Howard v. Gwynn 393 
 
 Howitt V . Earl of Harrington. . 29 
 
 Hudson V. Henland 236 
 
 Hughes V. Britannia Perma- 
 nent Building Society .... 218 
 Hughes and London & North 
 
 Western Rail. Co., /» )•? .. 51 
 Hulse, In re, Beattiei). Hulse . 95 
 Hume, In re, Forbes i;. Hume . 387 
 Hunt's Settled Estates, In re.. 76 
 Hunt, In re, Bulteel v. Lawdes- 
 
 hayne 77 
 
 Hurley v. Hanrahan 398 
 
 Imray v. Oakshette 91 
 
 Ind, Coope & Co. v. Emmer- 
 
 son 17 
 
 Ingle 'V. Vaughan-Jenkins . . 89 
 
 Inman, Re, Inman v. Inman. . 59 
 
 Irons v. Smallpiece 260 
 
 Jackson, In re 134 
 
 Jacob, In re, Mortimer v. 
 
 Mortimer 176 
 
 Jagger f. Jagger 189 
 
 Jenkins v. Piice 92 
 
 Jenner v. Turner 194 
 
 Job V. Potton 136 
 
 Johnson, In re, Sandy v. 
 
 ReiUy 267 
 
 Johnson v. Courtney 402 
 
 Jones, In re 73 
 
 PA8E 
 Jones, In re, Farringdon v. 
 
 Forrester 1^6 
 
 Jones V. Biernstein 99 
 
 Jones 1'. Gibbon 413 
 
 Jones V. Lavington 248 
 
 Jupp, Ite, Jupp V. Buckwell. . 142 
 
 Kennard f. Futvoye 222 
 
 Kennedy r. De Traffiord 211 
 
 Kenworthy v. Ward 127 
 
 Key V. Key 282 
 
 Kilpin V. Ratley 261 
 
 Kinnaird v. TroUope 212 
 
 Kirk V. Murphy 378 
 
 Kirkham v. Attenborough . . 264 
 
 Lacey, In re, Howard r. Light- 
 foot 213 
 
 Lake v. Craddock 134 
 
 Ijake i>. Gibson 130 
 
 Lambourn v. McLellan 94 
 
 Lampet's Case 169 
 
 Lancefield v. Iggulden 290 
 
 Lauder and Bay ley's Contract, 
 
 In re 249 
 
 Latonche v. Dunsany 217 
 
 LaTell V. Richings 99 
 
 Lawrence and BuUen v. Aflalo 365 
 
 Lawton v. Lawton 94, 95 
 
 Lechmere and Lloyd, iJc. . 170, 171 
 
 Leigh V. Diekeson 135 
 
 Leigh V. Taylor 96 
 
 Lemaitre v. Davis 328 
 
 Le Neve ». Le Neve 413 
 
 Leng, In re. Tarn r. Emmerson 4o 
 
 Lester v. Foxcroft 247 
 
 Lewis r. Baker 88 
 
 Littledale !'. Liverpool College 303 
 Lloyd, In re, Lloyd v. Lloyd. . 212 
 
 Lloyd V. Tench 321 
 
 London Joint Stock Bank v. 
 
 Simmons 347 
 
 Lord Battersea v. Com. of 
 
 Sewers for London 329 
 
 Lord Southampton v. Marquis 
 
 of Hertford 190 
 
 Loughrau v. Loughran 210 
 
 Loveridge, In re, Pearce v. 
 
 Marsh 205 
 
 Lowe V. Dorling and Son .... 98 
 Lumley, In re, Ex parte Hood- 
 Barrs 371, 377 
 
 Lunham's Estate 42 
 
TABLE OF CASES. 
 
 XIX 
 
 PAGE 
 
 Maomillan & Co. ». Dent 364 
 
 MoCallum, In re, MoCallum v. 
 
 MoCallum 306 
 
 M'Oartuey v. Londonderry 
 
 Eail. Co 326 
 
 M'Elroy v. Brooke 399 
 
 McEvoy t). MoEvoy 404 
 
 McFadden v. Jones 123 
 
 McNaul's Estate, In re 43 
 
 Mairs v. Lecky 404 
 
 Market Overt, Case of 258 
 
 Markey v. Lord Gosford 397 
 
 Marsh'iJ. Lee 216 
 
 Marshall v. Shrewsbury 220 
 
 Marshall v. Taylor 303 
 
 Marshfield, In re, Marshfield 
 
 f. Hutchins 212 
 
 Mary Portington's Case 49 
 
 Maskell and G-oldfinoh's Con- 
 tract, In re 374 
 
 Matson, In re, James v. Dick- 
 inson 316 
 
 Mayhetr ». Maxwell 365 
 
 Mayo, In re, Chester v. Keirl . 380 
 Mead, In re, Austin v. Mead.. 268 
 
 Mears «. Callender 95 
 
 Merttena v. Hill 26 
 
 Mervin, In re, Mervini). Cross- 
 man 185, 285 
 
 Meux V. Cobley 64 
 
 Midgey v. Midgey 294 
 
 Miles V. Harford 282 
 
 MiUff. Hill 413 
 
 Miller v. Dell 304 
 
 Miller v. Race 260 
 
 MinshuU v. Lloyd 93 
 
 Minter v. Carr 218 
 
 Mogridge V. Clapp 76 
 
 Moore, In re, Prior v. Moore . . 184 
 Moore, In re, Moore v. Bigg. . 74 
 
 Morgan v. Davies 84 
 
 Morgan v. Harrison 101 
 
 Moiiey V. Rem oldson 269 
 
 Morrioe v. Aylraer 358 
 
 Moule V. Garrett 103 
 
 Moyce v. Newington 258 
 
 Muller V. Trafford 82 
 
 Mulliner v. Florence 342 
 
 Mundy and Roper's Contract, 
 
 In re 73 
 
 Mustapha v. Wedlake 267 
 
 i V. Washbrook 107 
 
 PAOB 
 Natt, In re, "Walker v. Gam- 
 mage 321 
 
 Nesbitt and Pott's Contract, 
 
 In re 303 
 
 New Land Development Asso- 
 ciation and Gray, In re ... . 381 
 
 Newbold ». Roadknight 290 
 
 Nichols V. Hawkes 334 
 
 NickeUs v. Atherstone 87 
 
 Northern Counties of England 
 
 Insur. Co. «. Whipp 221 
 
 Norton, In re, Norton v. Norton 133 
 
 Norton v. Davison 262 
 
 Nottage, In re, Jones v. Palmer 186 
 Nourse, In re, Hampton v. 
 
 Nourse 195 
 
 Noyes v. Pollock 206 
 
 Nutt t). Easton 211 
 
 OAbW, Ex parte 199 
 
 O'Hanlon v. Logue 387 
 
 O'Kane ». Burns 403 
 
 Owen's Estate, Ee 415 
 
 Oxendon v. Opmpton 379 
 
 Palmer v. Rich 134 
 
 Papillon V. Voice 109 
 
 Parker v. TasweU 247 
 
 Parry and Hopkin, Re Arbi- 
 tration between 92, 103, 104 
 
 Pawley and London & Provin- 
 cial Bank, 7n re 291,293 
 
 Peacock v. Eastland 50 
 
 Pelham- Clinton v. Duke of 
 
 Newcastle 152 
 
 Pelton Brothers v. Harrison . , 371 
 
 Pemberton v. Barnes 271 
 
 Pepin V. Briiyere 279 
 
 Perceval v. Perceval 149 
 
 Percy, In re 106 
 
 Perham v. Kempster 221 
 
 Perkins ». Sewell 49 
 
 Perring & Co. «. Emerson. ... 97 
 
 Perrins ». Bellamy 121 
 
 Philpott V. Kelly 304 
 
 Pigg «. Oaley 25 
 
 Pirie v. Kintore (Earl) 332 
 
 Pix, In re, Plomley». Stileman 314 
 
 Plant V. Bourne 236 
 
 Pledge V. White 218 
 
 b2 
 
XX 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Pooock and Prankerd's Con- 
 tract, In re 69 
 
 Pollard's Settlement, In re . . 372 
 Pollock, In re, Pollook v. Pol- 
 
 look 73 
 
 Poole and Clarke's Contract, 
 
 In re 251 
 
 Pope, In re, Sharp v. Marshall 190 
 
 Pople, In re 60 
 
 Pulling V. Great Eastern Rail- 
 way Co 350 
 
 Pulman v. Meadows 293 
 
 Quarm i>. Quarm 1 30 
 
 Queen i". Halifax County Court 
 Judge 36] 
 
 n., Inre 379 
 
 RadcHffe, In re, Eadoliffe v. 
 
 Bewes 88 
 
 Eandall v. Russell 107 
 
 Rattenbury, Iri re, Ray v. 
 
 Grant 290 
 
 Rawlinson r. Trent 260 
 
 Raybould, In re, Raybould v. 
 
 Turner 294 
 
 Reade, In the goods of 281 
 
 Eeddaway v. Banham 367 
 
 Reeve v. Lisle 214 
 
 Reeves v. Long 148 
 
 Regina v. White 5 
 
 Reid V. Reid 377 
 
 Rex V. Inhabitants of Ring- 
 stead 58 
 
 Rex V. Kemp 81 
 
 Rice V. Noakes 198 
 
 Richardson, In re. Parry v. 
 
 Holmes 150 
 
 Rigg V. Earl of Lonsdale .... 4 
 Riggs, In re. Ex -parte Lovell . . 90 
 
 Ripley v. Macnaghten 403 
 
 Ripley v. Waterworth 59 
 
 Robbins «. Whyte 204 
 
 Robinson v. Gumming 261 
 
 Robinson v. Gittard 49 
 
 Rochefoucauld v. Boustead . . 123 
 
 Roddy J). Fitzgerald 162 
 
 Rogers v. Rice 90 
 
 Roebuck v. Chadebet 133 
 
 Rudge r. Eiohens 209 
 
 PAOE 
 
 Russel V. Russel 219 
 
 Rymer v. Mollroy 325 
 
 Salmon, In re. Ex parte 
 
 Trustee 218 
 
 Salt V. Marquess of North- 
 ampton 198 
 
 Samson, Robbins and Alexan- 
 der, In re 45, 293 
 
 Samuel r. Jarrah Timber and 
 Wood Paving Corporation, 
 
 Ltd 198 
 
 Saunders v. Shafto 182 
 
 Savil Bros., Ltd. v. Bethell . . 161 
 Saxlehner v. ApoUinaris Co. . . 367 
 
 Scobie V. CoUins 203 
 
 Scott and Alvarez's Contract, 
 
 In re 237 
 
 Scott, In re, Scott f . Hanbury 176 
 
 Scott v. Morley 378 
 
 Segelcke, In re, Ziegler v. 
 
 Niool 269 
 
 Seroka ». Kattenberg 375 
 
 Seymour v. Quirke 250 
 
 Sharland, In re 180 
 
 Sharp's Case 241 
 
 Shelley's Case 149—153 
 
 Sheward, In re, Shevrard v. 
 
 Brown 196 
 
 Shewin v. Vanderhorst 294 
 
 Sidebotham v. Holland 84 
 
 Simmons v. Underwood 84 
 
 Simpson v. Godmanchester 
 
 Corporation 328 
 
 Simpson v. Hartopp 98 
 
 Sir Moyle Finch's Case 8, 122 
 
 Skinner v. CJpshaw 341 
 
 Slater, In re 289 
 
 Smallwood ». Sheppards .... 81 
 
 Smith V. Adkins 179 
 
 Smith V. Anderson 353 
 
 Smith v. Smith 214 
 
 Smith V. Tebbett , 378 
 
 Snow V. Boycott 89 
 
 Solicitor to the Treasury v. 
 
 Lewis 267 
 
 Somerset. In re, Somerset v. 
 
 Earl Poulett 120 
 
 Somerville, In re, and Turner's 
 
 Contract 394 
 
 Somes, In re, Smith v. Somes . 181 
 
 Spencer's Case 250 
 
 Springfield, Jn re, Chamber- 
 lain r. Springfield 58 
 
 Stafford v. Selhy 222 
 
TABLE OF CASES. 
 
 XXI 
 
 PAGE 
 
 Stanford, Ex parte 225 
 
 Stanton v. Lambert 3U 
 
 Steele, In the goods of 28U 
 
 Stephens, In re, Kilby v. Betts 189 
 
 Stevens, In re 60 
 
 Stevena v. King 286 
 
 Stevens v. Theatres, Ltd. .209, 211 
 
 Streatley, In the goods of 277 
 
 Strickland v. Strickland 316 
 
 Stucley, In re, Stucley v. Keke- 
 
 wieh 265,341 
 
 Sutherland, Duoheas of v. Duke 
 
 of Sutherland 74, 76 
 
 Sutton's Hospital 382 
 
 Sutton V. Buck 340 
 
 Sutton V. Sutton 213 
 
 Swain v, Ayrea 247 
 
 SwanleyCoal Co. ». Denton. .22, 201 
 
 Sweet, In the goods of 278 
 
 Sweet V. Beming 365 
 
 Symea v. Symea 149, 161 
 
 Tadman v. Henman 98 
 
 Taltarum's Case 49 
 
 Tarn r. Turner 213 
 
 Tasker v. Tasker 295 
 
 Taylor i>. AUhaueen 177 
 
 Taylor v. London and County 
 
 Bank 215 
 
 Taylor v. Meads 179 
 
 Taylor v. Russell 221 
 
 Taylor v. Taylor 319 
 
 Tennison v. Sweeny 217 
 
 Thomas v. Kelly 224 
 
 Thompson v. Hickman 305 
 
 Thome v. Heard & Marsh . . . 120, 
 212 
 
 Thornley v. Thornley 141, 142 
 
 Threlkeld n. Smith 5 
 
 Toomer ». Sobinska 281 
 
 Torish v. Orr and Smith .... 416 
 
 Tottenham Estate, Re 415 
 
 Trades Auxiliary v. Middles- 
 brough, &o. Trade Prot. 
 
 Ass 365 
 
 Tringham, In re, Tringham v. 
 
 Greenhill 35 
 
 Trustees of HoUis' Hospital 
 
 and Hague's Contract, In re 37 
 Turner, In re, Barker v. 
 
 Ivimey 121 
 
 Turney, In re, Turney v. Tur- 
 
 ney 185 
 
 Twigg, In re, Twigg V. Black 313 
 
 PAOE 
 Tyler, In re, Tyler v. Tyler . . 186 
 Tyrrell's Case 116 
 
 University College of N. Walea 
 and University of Wales v. 
 Taylor 276 
 
 Valpy, In re, Valpy v. Valpy . 205 
 
 Van Grutten v. Foxwell .... 152 
 
 Vane v. Lord Barnard 61 
 
 Veal V. Veal 267 
 
 Verschoyle v. Perkina 41 
 
 Wales V. Carr 213 
 
 Walker, Lire 379 
 
 Walkers. Linom 221 
 
 WaUis, In re, and Grout's 
 
 Contract 237 
 
 Wallis V. Hands 79, 87, 246 
 
 Walsh ». Lonsdale 247 
 
 Walter v. Howe 364 
 
 Walter v. Lane 364 
 
 Wardens of Cholmeley School 
 
 r. Sewell .• 91 
 
 Webb, In the goods of 277 
 
 Webb, Hale & Co. ti. Alexandra 
 
 Waters 347 
 
 Weekes' Settlement, In re .. 164, 178 
 Weld-Blundell v. Wolseley . . 64 
 
 Weldon v. Neal 377 
 
 Wenham, In re. Hunt v. Wen- 
 ham 294 
 
 West ■!). Williams 216 
 
 West Ham Central Charity 
 Board v. East Lond. Water- 
 works Company 64 
 
 West London Commercial 
 Bank v. Reliance Permanent 
 
 Building Society 212 
 
 Western ». Bailey 26 
 
 Westminster's (Marquis of) 
 
 Case 47 
 
 Wharton v. Masterman 189 
 
 Wheeler's Trusts, In re, Briggs 
 
 V. Ryan 371 
 
 Whitby V. Mitchell 149 
 
 Whitby V. Vou Luedecke .... 187 
 White (J.) & Sons c. J. & M. 
 White 326 
 
XXll 
 
 TABLE OF CASES. 
 
 PAGE 
 
 White V. Metcalf 208 
 
 Whiteley v. Edwards 371 
 
 "Whiting's Settlement, In re. . 194 
 Whitmore-Searle v. Whitmore- 
 
 Searle SO 
 
 Wigram v. Buckley 23;"j 
 
 Wilks, In re, Child v. Bulmer. 133, 
 135 
 
 Williams v. Hunt 209 
 
 Williams f. Morgan 210 
 
 Williams D. Owen 199 
 
 Williams v. Williams i 
 
 Williams v. Williams 53 
 
 Williams and the Duchets of 
 
 Newcastle's Contract 21 
 
 Willion V. Berkeley 36 
 
 Willowes' Case 392 
 
 Wilmer's Trusts, In re, Moore 
 
 V. Wingfleld 184 
 
 Wilton, i'c 379 
 
 Wood, In re, Att.-Gen. v. 
 
 Anderson 310 
 
 PAGE 
 
 Woodhouse v. Walker 63 
 
 Worthing Corporation v. 
 
 Heather «2 
 
 Wrightson, In re 167 
 
 Wrightson, Iie,Bealie - Wright- 
 sou V. Thomas 161, 171 
 
 Wyatt V. Berry 277 
 
 Yates V. Aston 213 
 
 York V. Stone 134 
 
 Yorkshire Woolcomhers' Asso- 
 ciation, Limited, In re .... 359 
 Youman's Will, In re 151 
 
 Zetland (Earl of) r. Lord Ad- 
 vocate 
 
 34 
 
XXIU 
 
 TABLE OF STATUTES. 
 
 PAGE 
 
 9 Hen. 3, c. 18 (Magna Charta : Devolution of Goods) 270 
 
 0. 32 (Subinfeudation) 38 
 
 20 Hen. 3, c. 4 (Statute of Merton : Common) 331 
 
 62 Hen. 3, cc. 1—21 (Statutes of Marlbridge) 61, 95 
 
 1 Edw. 1, u. 12 (Fines on Alienation) 39 
 
 3 Edw. 1, u. 39 (Westminster 1st : Prescription) 327 
 
 6 Edw. 1, u. 5 (Statute of Gloucester) 6 L, 64 
 
 13 Edw. 1, u. 1 ("Westminster 2od : Do Bonis Conditionalibus) 31,46 
 
 u. 18 ("Westminster 2nd : Elegit) 43 
 
 u. 22 (Waste) 136 
 
 18 Edw. 1, i;. 1 (Quia Eiiiptores) 25, 39, 40 
 
 28 Edw. 1, at. 1 (4) (Statute of "Wards and Reliefs) 25 
 
 4 Edw. 3, u. 7 (Injuries to Personal Estate) 350 
 
 4 Hen. 7, u. 24 (Fines) 48 
 
 15 Hen. 7, c. 2 (Assignments of Debts) 346 
 
 4 Hen. 8, c. 24 (Statute of Fines) 48 
 
 21 Hen. 8, u. 15 (Leaseholds : Remedy) 79 
 
 26 Hen. 8, u. 13 (Fees Tail : Forfeiture : Treason) 47, 308 
 
 ■n Hen. 8, e. 10 (Statute of Uses) 79, 115, 168, 239, 311 
 
 c. 16 (Statute of Em-olments) 243, 245 
 
 c. 28 (Tithes) 334 
 
 31 Hen. 8, c. 1 (Partition) 132 
 
 c. 13 (Tithes) 334 
 
 32 Hen. 8, c. 1 (Statute of "Wills) 43, 168, 271 
 
 c. 7 (Tithes) 335 
 
 c. 16, 8. 23 (Aliens) 309 
 
 c. 28 (Leases) 54 
 
 c. 32 (Partition) 132 
 
 c. 36 (Statute of Fines) 48, 49 
 
 33 Hen. 8, c. 39 (Crown Debts) 53, 55 
 
 34 & 35 Hen. 8, o 5 ("Wills) 43, 168, 271 
 
 c. 20 (Recoveries) 49 
 
 2 & 3 Ph. & Mary, u. 7 (Sale of Horses) 258 
 
 13 Eliz. u. 5 (Conveyances to defeat Creditors) 232 
 
 14 Eliz. o. 8 (Recoveries) 53 
 
 27 Eliz. c. 4 (Conveyances to defraud Creditors) 232 
 
 31 Eliz. c. fi (Simony) ' 336 
 
 u. 12 (rfale of Horses) 258 
 
XXIV TABLE OF STATUTES, 
 
 SAGE 
 
 43 Eliz. 0. 4 (Charities) 384 
 
 21 Jao. l,u. 3 (Monopolies) 381, 420 
 
 u. 16 (Statute of Limitations) 304 
 
 10 Car. 1, sess. 2, c. 6 {Irish) (Statute of Limitations (Ireland) ) 304 
 
 aess. 3, c. 1 (IrisJi) (Charities) 384 
 
 12 Car. 2. u. 24 (Abolition of Military Tenure) . .25, 28, 29, 43, 271, 374 
 
 22 & 23 Car. 2, c. 10 (Statute of Distribution) 312, 315—322 
 
 29 Car. 2, u. 3 (Statute of Frauds) . .69, 123, 236, 241, 246, 247, 262, 337 
 
 1 Jao. 2, k:. 17, s. 7 (Distributions : "Widow's Share) 312 
 
 2 Will. & Mary, sess. 1, u. 5 (Distress : Corn) 97, 98 
 
 4 & 5 Will. & Mary, c. 16 (Clandestine Mortgages) 205, 222 
 
 7 WUl. 3, u. 13 {Irish) (Irish Statute of Frauds) 59 
 
 10 & 11 Will. 3, c. 16 (Posthumous Children) 148 
 
 3 & 4 Anne, u. 9 (Promissory Notes) 347 
 
 4 Anne, i;. 16, s. 27 (Account) 136 
 
 6 Anne, c. 2 {Irish) (Irish Registry Act) 217,412 
 
 0. 18 (Estates J9(W' autre vie) 60 
 
 7 Anne, c. 18 (Benefice : Partition) 337 
 
 c. 25 (Promissory Notes) 347 
 
 8 Anne, c. 14 (Distress) 97 
 
 12 Anne, st. 2, c. 12 (A-dvowsons) 336 
 
 4 Geo. 2, c. 28 (Kent Seek, &c.) 40, 102 
 
 8 Geo. 2, c. 13 (Copyright : Engravings and Prints) 363 
 
 9 Geo. 2, c. 36 (Mortmain Act : Charities) 375 
 
 11 Geo. 2, e. 19 (Landlord and Tenant, &c.) 65, 98, 102 
 
 14 Geo. 2, u. 20 (Estates pur autre vie : Executors) 59 
 
 7 Geo. 3, u. 38 (Copyright : Engravings and Prints) 364 
 
 9 Geo. 3, u. 17 {Nullum Tempus Act : Prescription) 420 
 
 11 Geo. 3, c. 17, s. 6 (Advowsous : Papist Patrons) 336 
 
 17 Geo. 3, u. 57 (Copyright : Engravings and Prints) 363 
 
 26 Geo. 3, c. 43 {Irish) (Pawnbrokers Act) 223 
 
 38 Geo. 3, u. 71 (Copyright : Sculpture) 364 
 
 39 & 40 Geo. 3, c. 16 (Thellusson Act : Aocumnlatious) 189 
 
 54 Geo. 3, u. 71 (Copyright : Sculpture) 364 
 
 65 Geo. 3, ^. 192 (Copyholds) 393 
 
 9 Geo. 4, u. 14 (Lord Tenterden's Act) 262 
 
 11 Geo. 4 & 1 Will. 4, c. 46 (Illusory Appointments) 178 
 
 c. 47, H. 11 (Conveyances by Infants) 374 
 
 c. 68 (Carriers Act) 340 
 
 1 Will. 4, c. 32 (Game) 1 
 
 2 & 3 WUl. 4,0. 71 (Prescription : Easements, &c.) 327—329 
 
 3 & 4 Will. 4, o. 15 (Dramatic : Right to Perform) 365 
 
 c. 27 (Limitations : Real Property) 64, 209, 213, 420 
 
 c. 42 (Limitations : Torts, Bonds, &o.) . . 304 — 307, 350, 420 
 u. 74 (Abolition of Fines and Recoveries) . .48, 49, 51, 52, 
 
 54, 55, 67, 376 
 
TABLE OF STATUTES. XXV 
 
 PAGE 
 
 3 & 4 Will. 4, c. 104 (Payment of Debts : Land) 45, 176 
 
 c. 105 (Do-wer Act) 312, 392 
 
 ^. 106 (Inheritance Act) 33, 153, 314, 318, 321 
 
 4 & "Will. 4, u. 92 (Irish Act for Abolition of Pines and Recoveries) 49 
 7 Will. 4 & 1 Vict. u. 26 (Wills Act) 57, 69, 103, 123, 159, 176, 179, 
 
 183, 270—288, 334, 373 
 
 1 & 2 Vict. c. no (Payment of Debts: Real Property) . .43, 53, 55, 176, 
 
 349, 352 
 
 2 & 3 Vict. c. 11, s. 7 {Lis pendens) 235 
 
 3 & 4 Vict. 0. 28, s. 1 (Charging Order) 352, 358 
 
 c. 113, s. 42 (Spiritual Patronage) 336 
 
 4 & 5 Vict. c. 21 (Con^-eyancing) 244 
 
 6 & 6 Vict. 0. 38 (Law of Copyright, 1842) 363—365, 420 
 
 7 & 8 Vict. u. 12 (International Copyright) 364 
 
 c. 66 (Aliens) 309 
 
 c. 97 (Charities : Ireland) 387, 413 
 
 8 & 9 Vict. c. 16 (Companies Clauses Act, 1845) 354 
 
 0. 106 (Real Property Act, 1845) . .10, 66, 88, 103, 132, 139, 
 155, 159, 160, 240, 242, 243, 244, 245 
 
 c. 112 (Satisfied Terms) 86 
 
 c. 118 (Inolosnre Act) 332 
 
 9 & 10 Vict c. 93 (Lord Campbell's Act) 350 
 
 c. 95 (The County Coui-ts Act, 1846) 99 
 
 11 & 12 Vict. 0. 29 (Game) 4 
 
 c. 36, s. 41 (Accumulations : Scotland) 189 
 
 12 & 13 Vict. c. 105 (Renewable Leaseholds : Ireland) 41 
 
 13 & 14 Vict. u. 29 (Registration of Judgments) 200, 412, 413 
 
 u. 60 (Trustees, &o.) 207, 309 
 
 14 & 15 Vict. u. 25 (Emblements : Extension of Tenancy) 65, 92 
 
 15 & 16 Vict. c. 12 (Copyright : Engravings and Prints) 364 
 
 c. 24 (Wills Act : Amendment) 277 
 
 c. 76 (Common Law Procedure Act, 1852) 90, 203 
 
 16 & 17 Vict. c. 113, ss. 20—23 (Irish Common Law Procedure: 
 
 Limitations) 304 
 
 1 7 & 18 Vi. t. c. 31 (Railway and Canal Traffic Act) 340 
 
 c. 113 (Land Charges) 205 
 
 18 & 19 Vict. 0. 15 (Enrolment of Annuities) 333 
 
 c. 43 (Infants' Settlements) 176, 374 
 
 c. Ill (Bills of Lading Act, 1855) 266, 347 
 
 20 &21 Vict. c. 60 (Irish Bankruptcy Act, 1857) 297—303 
 
 u. 77 (Court of Probate Act) 273, 313 
 
 0. 79 (Probate, Ireland) 274 
 
 21 & 22 Vict. 0. 56 (Confirmations, Scotland) 274 
 
 u. 72 (Sale and Transfer of Land (Ireland)) 220, 414 
 
 u. 96 (Court of Probate : Amendment Act) 274 
 
 22 & 23 Vict. c. 35 (Law of Property) ... .89, 90, 179, 222, 293, 314, 316 
 
XXVI TABLE OF STATUTES. 
 
 PAGE 
 
 23 & 2i Vict. 0. 38 (Law of Property) 89, 222 
 
 0. 127 (Solicitors) 342 
 
 c. 154 (Landlord and Tenant (Ireland) Act, 1860) 42, 
 
 88, 92, 250, 251, 397—319 
 
 24 & 25 Vict. c. 90, s. 80 (Trustee : Criminal Liability) 120, 121 
 
 0. 1 14 (Foreign Wills Act) 278, 279 
 
 c. 121 (Domicile) 279 
 
 25 & 26 Vict. 0. 68 (Copyright : Pictures and Photographs) 364 
 
 c. 89 (Companies Act, 1862) 364—358 
 
 26 & 27 Vict. 0.41 (Innkeepers Act) 3 10 
 
 c. 92 (Railways) 340 
 
 c. 118 (Companies Clauses Act, 1863) 359 
 
 27 & 28 Vict. c. 96 (Personal Torts) 350 
 
 c. 112 (Judgraeuta and Land) 43 
 
 28 & 29 Vict. c. 72 (Navy and Marines' Wills) 276 
 
 c. 88 (Record of Title (Ireland) Act, 1865) 414 
 
 u. 122 (Simony) 336 
 
 30 & 31 Vict. c. 47, s. 2 {Lis pendens) 235 
 
 c. 69 (Land Charges) 205 
 
 c. 131 (Companies Act, 1867) 355 
 
 c. 144 (Assurance Assignments : Life) 348 
 
 31 & 32 Vict. 0. 40 (Partition) 132, 133 
 
 c. 54 (Judgment Extension Act, 1868) 44 
 
 c. 86 (Assurance Assignments : Marine) 348 
 
 32 & 33 Vict. c. 46 (Specialty Debts) 45 
 
 c. 62 (Debtors Act, 1869) 378 
 
 33 & 34 Vict. c. 14 (Naturalization Act, 1870) 380 
 
 0. 23 (Forfeiture : Treason and Felony) . .51, 308, 309, 381 
 
 c. 35 (Apportionment Act, 1870) 66, 109 
 
 0. 46 (Landlord and Tenant (Ireland) Act, 1870).. 399, 40ii 
 
 c. 7 1 (National Debt Act) 35 1 
 
 c. 93 (Married Women's Property Act, 1870) 376 
 
 34 & 35 Viot. c. 22 (Lunacy Act (Ireland) ) 379 
 
 u. 79 (Lodgers' Goods) 98 
 
 35 & 36 Vict. c. 68 (Irish Bankraptoy : Amendment Act) 297 — 303 
 
 u. 93 (Pawnbrokers Act (England) ) 223 
 
 36 & 37 Vict. c. 48 (Railways) 340 
 
 0. 66 (Judicature Act, 1873) . . 17, 64, 89, 107, 136, 203, 348 
 
 37 & 38 Viot. c. 37 (Appointments) 178 
 
 c. 67 ( Real Property Limitation Act, 1874) ...62,304 — 307 
 
 c. 62 (Infants' Relief Act) 373 
 
 c. 78 (Vendor and Purchaser Act, 1874) 21, 237 
 
 38 & 39 Vict. c. 77 (Judicature Act, 1876) 45 
 
 0. 87 (Land Transfer Act, 1875) ...200, 217, 219, 261—257 
 
 39 & 40 Vict. u. 17 (Partition) 132, 133 
 
 c. 29 (G-ame) 4 
 
 c. 56 (Inolosure Act) 332 
 
 c. 63 (Notice to Quit (Ireland) Act, 1876) 84 
 
 40 & 41 Vict. c. 18 (Settled Estates Act, 1877) 67 
 
 c. 33 (Contingent Remainders Act, 1877) 161, 171 
 
 0. 34 (Land Charges) 205 
 
 c. 67 (Judicature Act (Ireland) ) 203 
 
TABLE OF STATUTES. XXVll 
 
 PAQE 
 
 41 & 42 Viot. c. 31 (BiUi of Sale Act, 1878) 224—226 
 
 c. 38 (Innkeepers Act, 1878) 342 
 
 42 & 43 Viot. c. 50 (Bills of Sale (Ireland) Act, 1879) 224-226 
 
 44 & 45 Viot. c. 41 (Cunveyancing- Act, 1881). .29, 34, 40, 85, 86, 89, 90, 
 
 124, 200, 203, 204, 206, 207, 208, 210, 211, 
 
 214, 218, 220, 238, 251, 292, 309, 325, 375 
 
 c. 49 (Land Law (Ireland) Act, 1881) 400—404 
 
 45 Vict. c. 15 (Inclosure) 332 
 
 45 & 46 Vict. c. 38 (Settled Land Act, 1882) . . 55, 67, 68—77, 104, 332, 
 
 370, 376, 379, 393 
 
 0. 39 (Oonveyancinar Act, 1882) 86, 376 
 
 o. 40 (Copyright : Musical Composition) ,. . . 30-i 
 
 .-..43 (Bills of Sale Act, 1882) 224—226 
 
 c. 61 (Bills of Exchange Acr, 1882) 346, 347 
 
 c. 75 (Married Women's Property Act, 1882) 133, 142, 
 
 176, 310, 311, 371, 377, 378 
 
 46 & 47 Viot. 0. 52 (Banki-iiptcy Act, 1883) 45, 52, 53, 176, 
 
 297—303, 345 
 c. 67 (Patents, Designs, and Trade Marks Act, 1883) 
 
 361—363, 364 
 
 c. 61 (Agricultural Holdings Act, 1883) y4, 95, 98 
 
 0. 71 (Bills of Sale (Ireland) Act, 1883) 224—226 
 
 47 & 48 Vict. o. 18 (Settled Land Act, 1884) 68—77 
 
 0. 64 (Yorkshire Registry Act) 217 
 
 0. 71 (Intestates' Estates Act, 1884) 124, 309, 333 
 
 48 & 49 Vict. c. 63 (Patents, &c. Act : Amendment) 361 
 
 c. 73 (Land Purchase (Ireland) Act, 1886) 406 
 
 49 & 60 Viot. c. 33, s. 8 (Copyright) 304 
 
 50 & 61 Viot. c. 30 (Settled Land Act, 1887) 77 
 
 0. 33 (Land Law (Ireland) Act, 1887) 397, 404 
 
 0. 66 (Bankruptcy Act, 1887) 297 
 
 51 & 62 Vict. 0. 2 (National Debt Act, 1888) 351 
 
 c. 13 (Land Law (Ireland) Act, 1888) 251, 398 
 
 c. 17 (Copyright : Musical Composition, 1888) 366 
 
 c. 21 (Law of Distress Amendment Act, 1888) 99 
 
 c. 42 (Mortmain and Charitable Uses Act, 1888) . .383— 387 
 
 c. 43 (County Courts Act, 1888) 99 
 
 c. 47 (Law of Distress (Ireland) Act, 1888) 99 
 
 0. 50 (Patents, &c. Act ; Amendment) 361 
 
 c. 61 (Lands Charges Registration) 43 
 
 c. 59 (Trustee Act, 1888) 120, 212 
 
 c. 62 (Bankruptcy : Preferential Payments) 297 
 
 52 & 53 Viot. c. 30 (Board of Agriculture Act, 1889) 332 
 
 52 & 53 Viot. o. 36 (Settled Land Act, 1889) 68—75 
 
 c. 45 (Factors Act, 1889) . . . ' 253 
 
 63 Viot. c. 5 (Lunacy Act, 1890) , 379, 380 
 
 53 & 54 Vict. c. 29 (Intestates' Estates Act, 1890) 312 
 
 c. 39 (Partnership Act, 1890) 130 
 
 c. 63 (Companies Winding-up Act, 1890) 367 
 
 0. 69 (Settled Land Act, 1890) 74—77 
 
 0. 71 (Bankruptcy Act, 1890) 45, 297 
 
 54 Vict. 0. 8 (Tithe Act, 1891) 334 
 
XXvm TABLE OF STATUTES. 
 
 PAGE 
 
 54 & 55 Viot. 0. 10 (Middlesex Eegiatry Aot, 1891) 217 
 
 c. 39 (Stamp Act, 1891) 245 
 
 c. 48 (Land Purchase Act, 1891 406 
 
 c. 57 (Redemption of Rent (Ireland) Act, 1891 404 
 
 0. 66 (Lunac/ Act, 1891) 379 
 
 c. 66 (Registration of Title (Ireland) Act. 1891) . .415, 416 
 
 c. 73 (Mortmain and Charitable Uses Act, 1891) 384 
 
 55 Vict. 0. 6 (Colonial Probates Act, 1892) 274 
 
 c. 11 (Mortmain and Charitable Uses Act, 1892) 384 
 
 55 & 56 Vict. c. 13 (Conveyancing Act, 1892) 91 
 
 c. 58 (Accumulations Act, 1892) 190 
 
 56 & 57 Vict. c. 21 (Voluntary Conveyances Act, 1893) 232 
 
 0. 36 (Law of Distress (Ireland) Aot, 1893) 99 
 
 c. 53 (Trustee Aot) 119, 313 
 
 c. 57 (Commons Amendment Aot, 1893) 332 
 
 c. 63 (Married Women's Property Act, 1893) 378 
 
 c. 71 (Sale of Goods Act, 1893) ..258, 259, 260, 261—266 
 
 297 
 
 57 Vict. 0. 10 (Trustee Act, 1894) 119 
 
 57 & 58 Viot. o. 46 (Copyhold Aot, 1894) 27, 207, 392—395 
 
 c. 60 (Merchant Shipping Act, 1894) 200, 276, 381, 
 
 417^19 
 
 58 & 59 Vict. u. 24 (Law of Distress Amendment Act, 1895) 99 
 
 u. -25 (Mortgagees' Legal Costs Act, 1895) 208 
 
 u. 27 (Market Gardeners' Compensation Act, 1895) . . 95 
 
 59 & 60 Viot. o. 35 (Judicial Trustees Act, 1896) 118, 121, 212 
 
 u. 47 (Land (Ireland) Act, 1896) 397, 400 
 
 60 Vict. IS. 15 (Navy and Marines (Wills) Act, 1897) 276 
 
 60 & 61 Vict. u. 66 (Land Transfer Act, 1897) .... 20, 46, 12*, 176, 200, 
 
 219, 251-257, 269, 272, 273, 274, 276, 291, 293, 295, 
 
 303, 313, 314 
 
 62 & 63 Vict. c. 20 (Bodies Corporate (Joint Tenancy) Act, 1899) . . 128 
 
 63 & 64 Vict. c. 26 (Land Charges Act, 1900) 43 
 
 c. 48 (Companies Act, 1900) 355, 360 
 
 c. 50 (Agricultural Holdings Act, 1900) 95 
 
 3Edw. 7, c. 37 (Irish Land Act, 1903) 406—411, 416 
 
 4 Edw. 7, c. 34 (Irish Land Act, 1904) 410 
 
 5 Edw. 7, 0. 15 (Trade Marks Aot, 1905) 366 
 
 6 Edw. 7, c. 54 (Town Tenants (Ireland) Act, 1906) 400 
 
 6 & 7 Edw. 7, c. 55 (Public Trustee Act, 1906) 119 
 
 7 Edw. 7, 0. 18 (Married Women's Property Act, 1907) 377, 378 
 
 c. 24 (Limited Partnerships Aot, 1907) 131 
 
 0. 50 (Companies Aot, 1907) 359 
 
xxix ) 
 
 TABLE OF ABBREVIATIONS. 
 
 -♦- 
 
 (REPORTS.) 
 
 A. & E Adolplius and Ellis's Reports ( Common Law, 
 
 1841 to 18.52). 
 
 A. C Law Reports, House of Lords Cases {since 
 
 1890, distinguished hy the year). 
 App. Cas Law Reports, House of Lords Cases (1875 to 
 
 1890). 
 Atk Atkyn's Reports (Chancery, 1736 to 17S4). 
 
 Ball & B Ball and Beatty's Reports. Irish (Chancery, 
 
 1807 to 1814). 
 
 B. & A Barnewall and Alderson's Reports (Common 
 
 Law, 1830 to 1834). 
 
 Beav Beavan's Reports (Chancery, 1838 to 1866). 
 
 Bac. Abr Bacon's Abridgment. 
 
 Bligh, N. S Bligh's Reports, New Series (House of Lords 
 
 Gases, 1827 to 1837). 
 
 Bro. C. C Brown's Chancery Cases (1778 to 1794). 
 
 Burr Burrow's Reports (Common Laic, 1756 to 1772). 
 
 Ch Law Reports, Chancery (since 1890, distin- 
 guished by the year). 
 
 Ch. App Law Reports, Chancery Appeals (1865 to 
 
 Wlh). 
 
 Ch. D Law Reports, Chancery Division (1875 to 
 
 1S9U). 
 
 C. P. Coop. temp. Cott. ..Cooper's Chancery Reports in the time of 
 
 Lord Cottenham (1846 to 1848). 
 
 CoU Collyer's Reports [Chancery, 1814 <o 1846). 
 
 Cox Cox's Reports (Chancery, 1744 to 1797). 
 
 Dears Dearsley'a Crown Cases Reserved (1852 to 
 
 1856). 
 
 De G-. M. & G De Gex, Macnaghten and Gordon's Reports 
 
 (Chancery, 18S1 to 1857). 
 
 De G. & Sm De Gex and Smale's Reports (Chancery, 1846 
 
 to 1862). 
 
 Dr. & War Drury and Warren's Reports, Irish (Chancery, 
 
 1841 to 1843). 
 Dyer Dyer's Reports 'Ca^nmon Law, 1513 to 1582). 
 
XXX TABLE OF ABBREVIATIONS. 
 
 East East's Eeports [Common Law, 1800 to 1812). 
 
 Eden Eden's Eeports (Chancery, 1757 to 1766). 
 
 E. & B Ellis and Blackburn's Eeports (Common Law, 
 
 1852 <o 1857). 
 Eq. Gas. Abr Equity Cases Abridged (1667 to 1744). 
 
 Giff Gifford's Eeports (Chancery, 1S57 to 1866). 
 
 Ha Hare's Eeports (Chancery, 1841 to 1853). 
 
 Hem. & M Hemming and M.iWei- (ahunen-y, 1862 to 1865). 
 
 H. & B Hudson and Brooke's Eeports, Irish (Cminnon 
 
 Law, 1%-11 tn 1831). 
 H. L. C Clarke's House of Lords Cases (1847 i!o 1866). 
 
 Ir. Eq Irish Equity Eeports (1838 to 1850). 
 
 Ir. Ch Irish Chancery Reports (1850 to 1866). 
 
 Ir. C. L. E Irish Common Law Eeports (1849 to 1866). 
 
 Ir. E. Eq Irish Eeports, Eqviity Cases (1867 ^ 1878). 
 
 Ir. E. C. L Irish Reports, Common Law Cases (18C7 to 
 
 1878). 
 Ir. E Irish Eeports [Common Law and Equity, since 
 
 1893, dieting iiisJted by the year). 
 Ir. L. T. R Irish Law Times Eeports (all Courts). 
 
 Jur Jurist Reports (all Courts, 1837 to 1866). 
 
 L. J. Ch Law Journal, Chancery Cases [since 1852). 
 
 L. J. Ex. or C. P Law Journal, Exchequer or Common Pleas 
 
 Cases (1862 to 187-5). 
 L. J. Q. B Law Journal, Queen's Bench Cases (since 
 
 1852). 
 L. R. Ir Law Eeports, Ireland [Chancery and Common 
 
 Law. ISOU to 1875). 
 
 L. E. C. P Law Reports, Common Pleas Cases (1866 to 
 
 1875). 
 
 L. R Ex Law Reports, Exchequer Cases (1866 to 1875). 
 
 L. E. Q. B Law Eeports, Queen's Bench C;ises (1866 to 
 
 1875), 
 
 L. E. Eq Law Eeports, Equity Cases (1866 to 1875). 
 
 L. E. P. & M Law Eeports, Probate and Matrimonial 
 
 Cases (1866(0 1875). 
 L. T Law Times Eeports (all Courts, sii.ec 1859). 
 
 M. & C Myhie and Craig's Reports (Chancer n, 1836 to 
 
 1840). 
 
 M. & M Moody and Malkin's Reports [Common Laic 
 
 1826 to 1830,. 
 
 M. & W Mecson and Wilsby's Eeports (Common Lair 
 
 1836(10 1847). 
 
TABLE OF ABBREVIATIONS. XXXI 
 
 Mac. & 6 Maunaghten and Gordon's Reports (Chancery, 
 
 1849 to IS.il). 
 
 MacD MacDevitt's Land Cases, Irish. 
 
 Meriv Merivale's Reports (Chancery^ 1815 to 1817). 
 
 P Law Deports, Probate Cases {sinee 1890, dis- 
 
 tutgnitilted hy the year). 
 
 P. Wms Peere Williams' Reports [Chancery, 1695 to 
 
 . 1735). 
 
 Ph Phillip.s' Reports [Chancery, 1841 to 1849). 
 
 Plow Plowdea's Reports [Cotmnon Law, 155U to 
 
 1580). 
 
 Q. B Law Reports, Queen's Bench Cases [bince 
 
 1890, d'liitwgnitihed by the year), 
 
 Q. B Adolphus and Ellis's Queen's Bench Reports 
 
 (1841 to 1852). 
 
 Q. B. D Law Reports, Queen's Bench Division (1875 
 
 to 1890). 
 
 R. & My Russell and Mylne's Reports [Chancery, 1826 
 
 to 1829). 
 Raym Lord Raymond's Reports [Common Law, 1694 
 
 to ITii). 
 
 Rep Coke's Reports [Common Law, 1579 to 1616). 
 
 Rev. St. Revised Statutes. 
 
 Salk Salkeld's Reports ( Common Law, 1689 to 
 
 1711). 
 
 Sch. & L Schoales and Lefroy's Reports, Irish [Chan- 
 cery, 1802 to 1806). 
 
 Sim Simon's Reports [Chancery, 1826 to 1849). 
 
 Sm. L. Smith's Leading Cases [Cummin Laic). 
 
 Strange Strange's Reports [Common Law, 1716 to 
 
 1746). 
 
 T. R Durnford and East's Term Reports [Common 
 
 Late, 17a5 to 1800). 
 
 Taunt Taunton's Reports, [Common Law, 1807 to 
 
 1819). 
 
 Vent Ventris's Reports [Com.mon Law, 1668 to 
 
 1691). 
 
 Vern Vernon's Reports [Chancery, 1680 to 1719). 
 
 Ves. Sen Vesey Senioi's Reports [Chancery, 1747 to 
 
 1755). 
 
 Ves Vesey Junior's Reports [(Jliancery, 1789 to 
 
 1816). 
 
 Ves. & B Vesey and Beames' Reports (1812 to 1814). 
 
 W. & T White and Tudor's Leading Cases [Chai.cery). 
 
 W. N Weekly Notes [all Courts, since 1866). 
 
 W. R Weekly Reporter [all Courts, since 1852). 
 
 Wils Wilson's Reports [Common Lair, 1742 to 
 
 1769). 
 
XXXU TABLE OF ABBREVIATIONS. 
 
 (TEXT BOOKS.) 
 
 Bl. Com Blaokatone's Commentaries (by E. Ohristian, 
 
 15th edit., 1809). 
 
 Bro. Abr Brooke's Abridgment (1576). 
 
 Challis Challis on Real Property I2nd edit., 1892). 
 
 Co. Litt Coke on Littleton (by Hargrave and Butler, 
 
 being Part I. of Oolce's Institutes of the 
 Laws of England, lltJi edit., 1817). 
 
 Digby's Eeal Pro Digby's History of the Law of Heal Pro- 
 perty (Srd edit., 1884). 
 
 Far. Pow Farwell on Powers ('2nd edit., 1893). 
 
 Gilb. Ten Gilbert's Law of Tenures (by C. TFat/cim, 
 
 5th edit., 1824). 
 
 Hawk. P. C Hawkins on Pleas of the Crown (by J. Cur- 
 
 icood, 8th edit., 1824). 
 
 Hood & Challis Hood and Challis on the Conveyancing and 
 
 Settled Land Acts (5th edit., 1898). 
 
 Inst Coke's Institutes of the Laws of England 
 
 (Farts II., III., and I v., 1817). 
 
 Key & El Key and Elphinstone's Precedents in Con- 
 veyancing (6i/j «(iii<. , 1901). 
 
 Litt Littleton's Tenures (Translation by Coke, 
 
 supra). 
 
 P.&M.Hist.ofEng. Law..PoUock and ]Maitland's History of English 
 Law (1895). 
 
 P. & W. on Possession . . . .Pollock anl Wright on Possession. 
 
 Prest. Abst Preston on Abstracts of Title (2nd edit., 
 
 1824). 
 
 Prest. Est Preston on Estates (1820). 
 
 Eob. Gav Robinson on Gavelkind (Zrd edit., 1829). 
 
 RoUe Abr RoUe's Abridgment. 
 
 R. S. C Rules of the Supreme Court. 
 
 Shep. Touch Sheppard's Touchstone of Common Assur- 
 ances (by Atherley, Sth edit., 1826). 
 
 Spence, Eq. Jur The Equitable Jurisdiction of the Court of 
 
 Chancery (by George Spence, 1846). 
 
 Strahan's Convey A Concise Introduction to Conveyancing (bi/ 
 
 J. Andrew Strahan, 1900). 
 
 Strahan's Eq A Digest of Equity (by J. Andrew Strahan 
 
 and (?. £. Eenrick, 2nd edit., 1908). 
 
 Strahan's Wills The Law of Wills (by J. Andrew Strahan, 
 
 1908). 
 
 Stubbs' Con. Hist Stubbs' Constitutional History of England 
 
 (1863). 
 Sug.Pow A Practical Treatise on Powers (by E. Sngdi'n 
 
 (Lord St. Leonards), Sth edit., 1861). 
 Theobald on Wills A Concise Treatise on the Law of Wills (by 
 
 S. S. Theobald, K.C., 6th edit., 1905). 
 Under. & Stra. on Wills . .Principles of the Interpretation of Wills and 
 
 Settlements (by A. Vndrrhill and J. Andrew 
 
 Strahan, 2nd edit., 1906). 
 Vin. Abr Viner's Abridgment. 
 
A GENERAL VIEW 
 
 LAW OF PROPERTY. 
 
 Part I. 
 OWNERSHIP AND THINGS OWNED. 
 
 PAQB 
 
 Meanings of ' ' Property " 1 
 
 Right of Ownership 2 
 
 Nature of Right 2 
 
 Subject-matter of Right 3 
 
 Divisions of Things Owned 5 
 
 Technical Divisions 6 
 
 Natural Divisions 11 
 
 Extent of Right: — 
 
 Indefinite in User 11 
 
 Unrestricted in Disposition 12 
 
 Unlimited in Duration 12 
 
 Partial Ownership 13 
 
 Interests in Things Owned 14 
 
 Arrangement of Work 15 
 
 Meaning^s of " Property." — " ProjDerty " is a word of many 
 meanings. Austin, in his " Lectures on Jurisprudence " 
 (Lecture XLVII.), enumerates some eleven senses in 
 which it is more or less commonly used. With most of 
 these we are not at present concerned. It is sufficient 
 for our purpose to refer to two of them, as by the 
 failure clearly to distinguish between these much con- 
 fusion may be introduced into an exposition of the law 
 of property. 
 
 s. B 
 
2 OWNERSHIP AND THINGS OWNKD. 
 
 The term " property," then, is commonly used to signify 
 the right of ozviiership in a thing. That is what we mean 
 by it when we say that the property in certain lands is in 
 a certain person. On the other hand, it is also commonly 
 used to signify the thing over which a right of ownership 
 subsists. That is what we mean by it when we say that 
 certain lands are a certain person's property. As far as 
 the law is concerned, it matters little in which of these 
 senses the term is used, but it matters a great deal that it 
 should always be clear in which sense it is being used. 
 To prevent any ambiguity we will hereafter always use it 
 in the former sense, that is, as meaning the right of 
 ownership and not the thing owned, unless in cases when 
 the context will clearly show that the latter meaning is 
 intended. 
 
 Right of Ownership. — The question then arises, what 
 is meant by the right of ownership ? No satisfactory 
 definition of the term exists, but perhaps the best 
 description is that given by Austin. He describes the 
 right of ownership, or dominium, as a right availing 
 against the world " over a determinate thing, indefinite 
 in point of user, unrestricted in point of disposition, 
 and unlimited in point of duration." (Austin, Lecture 
 XLVII.) 
 
 If we examine this description part by part we shall 
 have clearer notions both as to the legal and as to the 
 popular meaning of the term " property." 
 
 Nature of Right. — Legal rights, that is, rights which 
 will be protected and enforced by the law courts, are 
 divided primarily into rights availing against a particular 
 person or particular persons (or jura in personam) and 
 rights availing against the whole world (or jura in rem). 
 Now ownership is a right availing against the whole world. 
 If a person agrees for a certain payment to build a house 
 for me, I have a right against that person, and that person 
 
SUBJECT-MATTER OF RIGHT. 3 
 
 only, to have the house built or to be compensated in case 
 of default on his part. That is a right arising out of con- 
 tract, and is availing only against the particular person 
 with whom I contracted. If a person publishes a libel 
 upon me I have a right against that person, and that 
 person only, to recover damages from him for publishing 
 such libel. That is a right arising out of a wrong or tort, 
 and is availing only against the person who committed the 
 tort. But if I own land I have a right not merely against 
 the person from whom I bought it, but against the world 
 at large, to enjoy that land absolutely and exclusively 
 without interference from anyone. The right of owner- 
 ship is then a, jus in rem. 
 
 Subject-matter of Right. — The next point to be noted in 
 this description of the right of ownership is that it must 
 subsist over a thing ; and the thing it subsists over must 
 be a determinate thing, that is, an actually existing 
 physical object. Thus we can own a piece of land or a 
 sum of money ; that is, we can have it in our exclusive 
 possession and control, to do with it as we like, dispose of 
 it to whom we like, and keep it as long as we like. We 
 cannot in this sense own a debt, or a patent, or a copy- 
 right, all of which are mere creations of the law, without 
 any physical embodiments over which physical power can 
 be exercised. Accordingly, strictly speaking, such rights 
 are not property at all according to Austin, and in this 
 work we will not treat them as such. As, however, most 
 of them are also jura in rem and of pecuniary value, and 
 otherwise come within the popular conception of proprietary 
 rights, it is usual, and on the whole convenient, to deal 
 with rights of this kind in treatises on the law of property. 
 We will, therefore, after we have disposed of the ownership 
 of physical objects, devote a chapter to their consideration. 
 [See Part VI.) 
 
 Physical objects alone, then, are, strictly speaking, sub- 
 jects of ownership. But all physical objects cannot be 
 
 b2 
 
4 OWNERSHIP AND THINGS OWNED. 
 
 owned. For example, there cannot by English law be any 
 property in a human body, living or dead, though the 
 executors of a dead testator are entitled to possession of 
 his body for the purpose of burial. ( Wilhams v. Williams, 
 20 Ch. D. 659.) With this exception, however, it may be 
 said generally that any material thing of which physical 
 possession can be taken, may be owned. 
 
 Material things, however, of which physical possession 
 has been taken by no one, are the property of no one {res 
 nullius) . Thus, wild birds, wild beasts, fish in rivers or in 
 the sea, belong to nobody until they are captured, when 
 they become, as a rule, the property of the captor. {See 
 infra, p. 229.) As long as he keeps possession of them his 
 property in them continues ; but should they escape com- 
 pletely out of his possession they are again res imlUus, and 
 will become the property of the first person who recaptures 
 them. Domestic animals do not, of course, come within 
 this rule, the property of their owner in them being as com- 
 plete and permanent as in land or other goods ; but what 
 at first sight appears to constitute an exception to the rule 
 occurs in the case of animals which, though strictly speak- 
 ing not domestic nor in captivity, yet nevertheless have 
 what is called an animus revertendi, such, for example, as 
 pigeons attached to a dovecot ; as long as such pigeons 
 habitually return to the dovecot the law regards them as 
 the property of the owner of the dovecot. This, however, 
 is rather an extension of the notion of possession than of 
 the doctrine of property. And a partial exception has 
 been created by the Game Laws (1 & 2 Will. IV. c. 32 ; 
 11 & 12 Vict. c. 29 ; 39 & -10 Vict. c. 29), which seem to 
 give to the occupier of laud a certain transient property in 
 the game on the land as long as it remains upon it. {See 
 Riyg v. Earl of Lonsdale, 1 H. & N. 923.) Independently 
 of the Game Laws, the occupier of land seems to be 
 entitled to all wild animals actually killed or captured, 
 whether by himself or a stranger, on his own land, though 
 it is doubtful if this be so when the wild animal was 
 
DIVISIONS OF THINGS OWNED. 5 
 
 started on another's land and pursued to and taken upon 
 his. {But see Blades v. Higgs, 11 H. of L. 621, and 2 
 Bl. Com. 419. As to deer, see Threlkeld v. Smith, (1901) 
 2 a B. 531.) 
 
 "Whether there can be any property, strictly speakiug, 
 in water, has been doubted. (2 Bl. Com. 18.) Eecent 
 decisions seem to have dissipated that doubt. In the 
 words of Lord Halsbury, L. C, in Mayor, ^c. of Bradford 
 V. Pickles ((1895) A. C. 587, at p. 593), "you may have a 
 property in the water when it is collected and appropriated 
 and reduced into possession." But, as Blaokstone says, 
 water is " a moveable, wandering thing," and if it escapes 
 out of your possession no action will lie for its recovery. 
 (2 Bl. Com. 18.) Moreover, the fact that water flows 
 over your land, or percolates through it, does not put it in 
 your possession so as to give you a property in it, but 
 merely entitles you to the free use of it as long as it is on 
 your land. [8ee infra, p. 326.) Water, however, confined 
 in a pond or reservoir upon your land, or, it is submitted, 
 water lying in a well or in the strata of your land, is as 
 long as it remains on or in your land your property, 
 though, as it is regarded as parcel of the land, it may not 
 be the subject of larceny at common law, which it would 
 be if separated from the land and confined in cisterns 
 or pipes. [Fcrrens v. O'Brien, 11 Q,. B. D. 21; and see 
 2 Bl. Com. 394.) 
 
 Other " moveable, wandering things," such as gases 
 or electricity, seem to be subject to the same rule as water. 
 As long as they are in the physical possession of the owner 
 he has a property in them. {Reg. v. White, Dears. 203.) 
 But once they completely escape from his possession, they 
 become res nullius. (P. & W. on Possession, p. 232.) 
 
 Divisions of Things Owned. — Physical objects which are 
 subject to ownership may be divided in two ways. They 
 may be divided according to their legal characteristics, or 
 they may be divided according to their natural charac- 
 
6 OWNERSHIP AND THINGS OWNED. 
 
 teristics. In the former case, the classes of things resulting 
 will be classes peculiar to the legal system under which 
 the division is made. In the latter case, the classes will be 
 independent of any legal system, as the principle of 
 division is the inherent quality of the things themselves. 
 In other words, the actual division in the former case is 
 between different kinds of ownership, while in the latter 
 case it is truly between different kinds of things owned ; 
 or, to put it more shortly, the former is a technical, the 
 latter a natural, division of things owned. 
 
 Technical Divisions of English Law. — One of the earliest 
 classifications of things owned recognized by English law 
 was that into lands, tenements, and he.reditament'i on the one 
 hand, and yoocU and chattels on the other. By lands were 
 meant not merely the soil, but everything built upon it (as 
 houses), and everything growing upon it (as trees), and 
 everything beneath to the very centre (as minerals) . (Co. 
 Litt, 4 a.) As the maxim says, Ctijus est solum, ejus est 
 usque ael eudum, et usque ad inferos. Tenements meant any- 
 thing that could be held by common law tenure. We 
 shall see later on that it is a fundamental principle of 
 English law that all land belongs to the Crown, and 
 stibjeots can only hold it as tenant's, while a subject's 
 ownership in goods is absolute. Hereditaments meant 
 things which, on the death of the owner intestate, went to 
 his heir — not to his administrators — by hereditary suc- 
 cession, and not by special occupancy. (Co Litt. 6 a ; 
 infra, p. 59.) It will be noted that the terms tenements 
 and hereditaments, as thus used, referred rather to the 
 nature of the owners' rights than to the nature of the 
 thing over which they subsisted. All things not lands, 
 tenements, or hereditaments, were ejoods and c/iattels. 
 This division, as we shall see, is still of much practical 
 importance.' 
 
 ' The terms " tenements " and " hereditaments " are still in regular 
 use in conveyancing, but the reader is not to imagine when he 
 
TECHNICAL DIVISIONS OF THINGS. 7 
 
 Out of this earlier classification of things owned rose the 
 later classification which now obtains — that into Things 
 Real, or Realty, and Things Rprsonal, or Personalty. It 
 arose in this way. For the wrongful taking of land a real 
 action lay ; that is, an action in which the thing itself [res) 
 could be recovered. For the wrongful taking of goods, on 
 the other hand, only a personal action lay ; that is, an 
 action in which the sole remedy was by way of damages 
 against the person of the wrongdoer. The reason of this 
 difference of remedy was in the difference in the nature of 
 the things themselves, land (unlike goods) being incapable 
 of being so dealt with as to be destroyed, taken out of the 
 jurisdiction of the Court, or otherwise rendered irrecover- 
 able. Lawyers, however, took not the reason of the remedy 
 but the remedy itself as the principle on which to divide 
 things owned. And when new interests in land grew up, 
 for the wrongful taking of which the law gave only a per- 
 sonal action, it ranked land, as far as these new interests in it 
 were concerned, as personalty, and attached to its owner- 
 ship the characteristics of ownership of goods. Of course, 
 no doctrine of lawyers could change the essential nature of 
 the thing, and the law as to goods was necessarily con- 
 siderably altered when it came to be applied to land. 
 Lawyers recognized this alteration by calling interests in 
 land for which no real action lay not simply chattels, but 
 chattels real} that is, goods partaking of the nature of land. 
 Sometimes they are treated as if they were a class of things 
 by themselves, as in the classification " Realty, Personalty, 
 and Mixed." 
 
 encounters them in a deed that they have always there the mean- 
 ing given to them in the text. Conveyancers use them in a very 
 lax way. Thus, tenement is constantly used as equivalent to 
 messuage or house ; and not merely life estates, but chattels real 
 are often described as hereditaments, which neither of them properly 
 are. As for the word "land" or "lands," though prinid fucie it 
 always has the meaning above given it, yet if the context shows it 
 was intended to bear a different meaning the Court will read it in 
 that sense. 
 
 ' For meaning of chattels real, see Re Fraser, (1904) 1 Ch. 111. 
 
8 OWNERSHIP AND THINGS OWNKU. 
 
 The whole system of real actions has disappeared (Real 
 Property Limitation Act, 1833, s. .:i5 ; Fines and Ee- 
 covories Act, 1833; see infra, p. 49), and now the thing 
 itself can be recovered in an action, even though it be 
 a chattel real, and sometimes even though it be pure 
 personalty. But the old classification of things owned 
 into realty and personalty still maintains itself throughout 
 English law.' 
 
 The classification, like other technical classifications, is 
 one rather of kinds of ownership than of kinds of things. 
 Real ownership and personal ownership have of late 
 approximated greatly, chiefly by realty assuming legal 
 attributes formerly characteristic of personalty. The 
 primary difference now, from a public point of view, lies 
 in the modes of devolution on the death of the owner, and 
 from a lawyer's point of view, in the modes of convey- 
 ing from one owner to another, and of parcelling out the 
 ownership amoug successive persons — limiting the property 
 as it is called. These will be explained later on. 
 
 ' It is to be remembered that when cbattels real first came into 
 existence they were in many respects mere personal contracts with 
 the freeholder for the use of his land, and were therefore more 
 akin to legal choses in action than legal interests in the land. The 
 early lawyers then were quite right in treating them us personalty. 
 When by force of statute they gradually became indefeasible inte- 
 rests in the land, their characteristics, it may be said, were already 
 fixed. It mav be suggested, however, that motives of convenience 
 had some influence with the later lawyers in determining them 
 still to regard chattels real as personalty. As personalty they 
 could be assigned without livery of seisin, could be freely bequeathed, 
 and were liable for their owner's debts, conveniences they would 
 have largely lost if they had been treated as realty. It is interest- 
 ing to contrast their history with that of beneficial interests arising 
 under trusts, which came into existence after chattels real had 
 become indefeasible legal interests in land. These at first were 
 regarded as equitable choses in action. (.Sec Sir MoyJe Finch's Case, 
 4 Inst. 86.) That did not prevent the Court from subsequently 
 turning them into equitable realty, with most of the incidents of 
 the legal estate in the land in which they subsisted; but then 
 equity had already relieved them of those ancient characteristics 
 as to conveyance, &c., which had been found by the later lawyers so 
 inconvenient in the case of legal realty. Compare on this point the 
 reasons given by Maine why Roman lawyers added all new forms 
 of property to the res nee mancipi, and not to the res mancipi. 
 (Ancient Law, 273 et seq.) 
 
TECHNICAL DIVISIONS OF THINGS. 9 
 
 As to the things which are suhject to each of these kinds 
 of ownership, we are concerned now only with physical 
 objects, and of these land alone is suhject to real owner- 
 ship. Land here is used in the legal significance already 
 explained. Personal ownership, on the other hand, attaches 
 to chattels real and to all ownahle things which are not 
 land, nor connected with land, such as money, cattle, 
 furniture, hooks, clothes, &c. Even some things connected 
 with land are for practical purposes personalty while they 
 are still connected with it, as growing crops {see " Emble- 
 ments" pp. 65, 92, infra) and trade machinery {see " Fix- 
 tures," pp. 66, 92, infra) ; and other things remain realty 
 as long as they are actually connected with land, becoming 
 personalty as soon as they are severed fi'om it, as trees or 
 minerals or buildings. Grame and wild animals (animals 
 ferce naturce), while uncaptured, are not, strictly speaking-, 
 owned at all — as has been explained already — but the 
 right to capture them on the land goes with the legal 
 possession of the land, unless parted therefrom by agree- 
 ment or franchise {see infra, p. 332). When captured they 
 are personalty. 
 
 Another technical classification of things owned which 
 is recognized in English law is the division into things 
 corporeal and things in<orporeal. Originally this division 
 was confined to hereditaments, and arose out of the ancient 
 system of conveyancing. By a corporeal hereditament 
 was meant a hereditament which could be transferred inter 
 vivos only by livery of seisin or actual delivery of the 
 possession of the thing {see infra, p. 241) ; by an incor- 
 poreal hereditament, a hereditament which might be trans- 
 ferred inter vivos by a deed of grant. {See infra, p. 240.) 
 Thus, a future interest in land — that is, one which does 
 not entitle its owner to the possession of the land till an 
 existing interest has come to an end {see infra, p. 143) — 
 was an incorporeal hereditament, because, since its owner 
 was not entitled at the time of the transfer to the posses- 
 sion of the land, if he was to be permitted to transfer the 
 
10 OWNERSHIP AND THINGS OWNED. 
 
 land at all, he must be allowed to transfer it without giving 
 that possession which was not his to give. And all those 
 detached rights over land belonging to another, such as 
 rights to graze cattle on another's field, or to take fish in 
 another's water, or to receive rent or tithes issuing out of 
 another's land (see infra, p. 329 ef sef^.), carrying with them 
 no right to the possession of the, land itself, were also incor- 
 poreal hereditaments, and transferable inter vivos by grant. 
 So, too, were those hereditaments which are merely rights 
 in gross and are not connected with land or any other 
 physical object, such as annuities and shares in ancient 
 corporations. {See infra, pp. 350, 357.) These, since they 
 have no physical existence, could not be transferred by 
 delivery of possession. 
 
 The rule of the common law, which rendered livery of 
 seisin the only valid mode of transfer of corporeal heredita- 
 ments, was long ago evaded, as we shall shortly see, and 
 now it has been superseded by the Real Property Act, 1845 ; 
 but the division between things corporeal and things incor- 
 poreal, though it has ceased to have any considerable im- 
 portance, even as regards hereditaments, has not merely 
 been preserved, but has by many writers been extended to 
 goods and chattels. It is now used for the purpose of dis- 
 tinguishing between tangible things, such as lands and 
 goods — that is, physical objects, — and certain rights over 
 lands, such as rights of grazing cattle on another's land 
 [supra), and rights which apply to no physical objects what- 
 ever, but are the mere creatures of the law, such as annuities 
 (sup)ra), debts {infra, p. 348), patent rights, copyrights, and 
 such like rights [sec infra, p. 360 et seq.), which, strictly 
 speaking, are not property at all, but merely proprietary 
 rights in the looser sense of those words. [See supra, p. 3.) 
 Used in this sense, the term "things incorporeal" may be, 
 to some extent, convenient ; but its convenience, at any 
 rate in an elementary book, is more than counterbalanced 
 by the fact that it confuses things which are physical 
 objects with what are merely rights either over physical 
 
OWNERSHIP : INDEFINITE IN POINT OF USEE. 11 
 
 objects, or rights which refer to no physical objects, but to 
 mere acts or conduct of individuals. In this work this 
 division of things will not, accordingly, be used as the 
 basis of any arrangement of the subject-matter. 
 
 Natural Divisions of Things Owned. — The most obvious 
 and far-reaching classification of things owned is into 
 Immoveables and Moveables. As we have seen, this is the 
 classification which lie.s at the base of that into lands, 
 tenements, and hereditaments, and goods and chattels, and 
 of that into things real and things personal. It is one 
 arising out of essential differences in the nature of the 
 things themselves — differences which must affect the 
 character of the ownership of each, and which the law 
 cannot, even if it wishes, altogether disregard, as we have 
 seen in the case of chattels real. 
 
 Immoveables are incapable of being taken beyond the 
 jurisdiction of the Court, and though they may be 
 damaged they are in their essence imperishable. Such 
 being the case, it is obvious that the rights and the 
 remedies of their owner must differ largely from those 
 of the owner of a thing which is both moveable and 
 destructible. 
 
 Whenever, henceforth, it is necessary to classify or 
 distinguish kinds of things owned, we will adopt this 
 division into things immoveable and things moveable, or, 
 more shortly, into land and goods, treating the division 
 into things real and things personal as what it really is — 
 not primarily a classification of things owned, but a classi- 
 fication of rights of ownership, which, though originally 
 based on the inherent differences in the nature of things 
 owned, no longer follows the lines of those differences. 
 
 Ownership : Indefinite in Point of User. — According to 
 the dictum of Austin which has been cited, the first 
 characteristic of the right of ownership, whether over land 
 or goods, is that it entitles the owner to use the thing 
 
12 OWNERSHIP AND THINGS OWNED. 
 
 owned in such a variety of ways that it is impossible to 
 define them. This right of user, it is to be observed, is 
 not unlimited ; it is only indefinite ; incapable, that is, of 
 being exhaustively summed up. In English law, it is 
 usually negatively described as the right to use your land 
 and goods in all ways, save such as would injure those 
 of another person. {Sic utere tuo id alienutn non hedas.) 
 Thus, the owner of a close of land may farm it, let it lie 
 fallow, build upon it, take the soil off it, or the minerals 
 or clay out of it, live upon it, ride or walk over it, or use 
 it in any of a hundred other ways just as he may feel 
 inclined. But he cannot dig a hole on the confines of it so 
 deep as to cause the soil of his neighbour's land to fall into 
 it (see infra, p. 326), nor can he carry on a noisome trade 
 or do any other act upon it which will be a nuisance to his 
 neighbour. Acts of ownership such as these would be so 
 using his land as to injure the right of his neighbour to 
 the full enjoyment of his. 
 
 Ownership : Unrestricted in Point of Disposition. — The 
 
 second characteristic of ownership, according to Austin, is 
 that the owner's right to dispose of the thing owned is 
 unrestricted. This is what is called in law the power of 
 alienation. Formerly, in English law, this power was 
 restricted as to some kinds of things, and more particu- 
 larly as to interests in land, both in respect of alienation 
 inter vivos and alienation by will. But the leaning of the 
 Courts and the tendency of legislation has been towards 
 freeing the right to alienate from all restriction, and now 
 it may be said generally that anj^ person not under dis- 
 ability may dispose freely of any thing or any interest in 
 a thing to which he is entitled. {See infra, p. 369.) 
 
 Ownership ; Unlimited in Point of Duration. — The third 
 characteristic, according to Austin, of the right of owner- 
 ship is that it is unlimited in point of duration. This 
 means not that the right exists for ever, but that it is 
 
PARTIAL OWNERSHIP. 13 
 
 capable of existing as long as the thing owned exists. 
 Ownership in perishable articles, like fruit or flowers, is 
 just as complete as it is in articles that may last for ever, 
 like gems or land, provided that in neither case is there a 
 limit of time flxed at which the right must expire, whether 
 the thing is then in existence or not. If such a limit be 
 fixed, the ownership is only temporary and incomplete. 
 
 Partial Ownership. — Ownership, then, is a right of un- 
 limited duration to use the thing owned in an indefinite 
 number of ways and to dispose of it freely. But, as has 
 already been indicated, in many cases some of these 
 characteristics! of ownership may be absent or qualified. 
 Then the ownership is not complete or absolute, but in- 
 complete or partial. 
 
 Incomplete or partial ownership may arise in either of 
 two ways. The rights of a particular owner or of a 
 particular class of owners may be cut down by positive law. 
 We have examples of that in the case of infants' property 
 and estates settled by Parliament to accompany titles. In 
 these instances the power of disposition has been taken 
 away from the owner ; in the first case temporarily ; in the 
 second, permanently. Restrictions such as these, however, 
 since they usually arise out of the personal status of the 
 owner, are not regarded so much as restrictions on his 
 ownership as incapacities on his part to enjoy full owner- 
 ship. {See Part VII.) 
 
 The second, and more important, way in which partial 
 ownership arises is through the division of the full owner- 
 ship among various persons. For example, the right of 
 user may be divided between two or more persons, while 
 all the other rights of ownership are rested in one of them. 
 Thus, in the case of a right of way {infra, p. 326), one 
 person is entitled to use the land to walk upon, while 
 another is entitled to all the remainder of the ownership 
 in it. Again, one person may be entitled to have his 
 house supported by the soil or house belonging to another 
 
14 OWNERSHIP AND THINGS OWNED. 
 
 person. {Infra, p. 326.) In both these cases the user of 
 the soil or house is divided between these two persons. 
 Again, the right of disposition may be divided between 
 two or more persons, while all the other rights of owner- 
 ship are vested in one of them. Thus, it is frequently- 
 provided in marriage settlements that the appointment (or 
 disposition) of the settled funds of the wife during the 
 continuance of the marriage (or coverture, as it is techni- 
 cally called) shall 'be made by the wife and husband 
 jointly. Here the right of disposition over the wife's 
 property is divided between her and the husband. 
 
 Again, ownership may be divided among several persons 
 as to duration : one may be entitled to the thing owned 
 for life or for a number of years, and another may be 
 entitled to it on the death of the first person or on the 
 expiration of his term of years. This is incomparably the 
 most common mode of dividing ownership, and also the 
 most important, since limiting one person's right to a 
 thing in point of time imposes on him a limit as to user 
 and as to disposition also. If a man's ownership of any- 
 thing is merely temporary, he Tnust, on equitable principles, 
 be restrained from using the thing in such a way as to 
 damage the next owner of it, and he must not di^^pose (at 
 any rate for his own benefit) of any greater right to the 
 thing than he himself possesses. 
 
 Interest in Things Owned. — It is not usual to regard a 
 person having merely a share in the right of user or of 
 disposition of a thing as having any share in its ownership. 
 The share he possesses is so small compared to the whole 
 right that it would only lead to confusion to rank him 
 beside the person entitled to the remainder of the owner- 
 ship. It is usual to regard the latter as the sole owner 
 and the former as entitled merely to a right over a thing- 
 belonging to the other — a. jus in re alicna, as civilians call 
 it. This is so, even in the case of a person having the 
 absolute right of disposition (or, as it is called, a general 
 
ARRANGEMENT OF THE WORK. 16 
 
 power of appointment) over a thing, without the other 
 rights of an owner, though such an authority enables him 
 to turn himself or anyone else into owner at any time, 
 and therefore is equivalent to potential ownership (^). 
 
 When the ownership is divided as to duration, all the 
 persons between whom the whole ownership is parcelled 
 out are regarded as owners. Each of them has what is 
 called an iiitered in the thing owned, while all together 
 they have the interest or the whole interest in it. 
 
 Arrangement of the Work. — In the following pages we 
 will consider, firstly, What interests can, according to 
 English law, subsist in things owned ; secondly. How 
 these interests can be held ; and thirdly, How they can be 
 acquired and disposed of. After that we will consider 
 those rights in things owned by others to which we have 
 already referred, and those rights which are commonly 
 considered property, but which, as they do not subsist over 
 physical objects, are not property in the strict sense of the 
 term. Finally, we will discuss the disabilities which the 
 law imposes upon certain persons in relation to ownership 
 and proprietary rights. 
 
 ' Though teohnioally the donee of a general power of appoint- 
 ment is never considered the owner of the property over whioh the 
 power subsists, yet for practical purposes he is often treated as 
 owner. For instances of this, se.6 infra, pp. lib, 176. 
 
( 16 
 
 Pakt II. 
 KINDS OF INTERESTS IN THINGS OWNED. 
 
 — ♦ — 
 
 PAOK 
 
 Sources of English Law 16 
 
 Rise of Equity 18 
 
 Ownership of Land and Goods 18 
 
 Tenure of Land 19 
 
 Estates in Land 20 
 
 Title Deeds and Heirlooms 21 
 
 Section I. — Inteeests in Land 22 
 
 Sub-section (1). — Freehold Interests 32 
 
 {a.) Estates in Fee Simple 35 
 
 {h.) Estates in Pee Tail 46 
 
 (e.) Estates for Life 56 
 
 A. Settlements of Freeholds 67 
 
 Sub-section (2). — Chattel Interests 78 
 
 («.) Tenancy for Time Certain 82 
 
 (4.) Tenancy at Will 101 
 
 (c.) Tenancy by Sufferance 102 
 
 B. Settlements of Chattel Interests 102 
 
 Section II. — Intebests in Goods 105 
 
 (a.) At Law 106 
 
 {«.) In Equity lOg 
 
 C. Settlements of Goods 108 
 
 Sources of English Law. — English jizrisprudence — by 
 which we mean the whole system of justice administered 
 by the King's Courts — is derived from three sources. The 
 first of these is what is called common law — that is, the 
 ancient law and customs of the realm which are presumed 
 to have existed from time immemorial. AH the new law 
 created by the decisions of judges of the common law 
 Courts is, in theory, only new applications of the orio-inal 
 principles of the common law. The second source is 
 
SOURCES OP ENGLISH LAW. 17 
 
 equity. Unlike the oommon law, equity avowedly arises 
 out of the decisions of the judges of the Court of Chancery 
 in times past. At the present time, as in the case of the 
 oommon law, all the new law created by decisions of 
 Chancery judges is, in theory, assumed to he merely new 
 applications of the principles laid down by their prede- 
 cessors long ago. The third source of law is Acts of 
 Parliament. As these have never been administered by 
 distinct Courts, as common law and equity long were, and 
 to a certain extent still are, administered, and as, more- 
 over, they constitute in no sense a system of law proceeding 
 on general principles, which oommon law and equity both 
 largely are, it is neither customary nor convenient to treat 
 of them separately from the two systems which they are 
 intended to alter and amend. 
 
 The authority of the common law arises from the 
 assumption that it always has been the law ; that of equity 
 from its presumed ethical superiority to the common law 
 (from which superiority it derives its name) ; and that of 
 Acts of Parliament from their being enacted as law by an 
 authority entitled to legislate. 
 
 Formerly, equity and the common law were quite sepa- 
 rately administered by distinct Courts. Mere equitable 
 rights were not recognized in the common law Courts ; and 
 the Chancery Courts constantly issued injunctions to pre- 
 vent litigants asserting their legal rights, when these were 
 opposed to equity, in the common law Courts. Now, by 
 the Judicature Act, 1873, the administration of law and 
 equity is fused to this extent — that while all the Superior 
 Courts have jurisdiction both in law and equity, yet 
 actions founded purely on equitable rights should still be 
 brought in the Chancery Division, and the Courts of 
 Common Law (or, as they are now called, Courts of the 
 King's Bench Division) are to recognize equitable defences 
 or rights when they come incidentally before them in a 
 lawsuit. (See Ind, Coope S^ Co. v. Emmerson (1887), 12 
 App. Cas. 300.) 
 
 s. c 
 
18 KINDS OF INTERESTS IN THINGS OWNED. 
 
 Else of Eiiuity.— Originally the Aula Eegh'i, or King in 
 Council, was the supreme law Court of the realm. Besides 
 administering the common law, however, the Aula Regis 
 had a vague jurisdiction to suspend or amend or supplement 
 it in cases where it denied a remedy to a person injured, or 
 where its application would result in palpable injustice. 
 When the common law Courts grew out of the Aula Regis, 
 this jurisdiction remained in the King, and it became 
 customary to petition him where the common law Com'ts 
 could not or would not do justice. In dealing with these 
 petitions, the King was from the first assisted by his Chan- 
 cellor. In Edward I.'s time it was directed by proclama- 
 tion that all such petitions were to be presented through 
 the Chancellor, and a proclamation of Edward III. defi- 
 nitely refers " all matters of grace " to the decision of the 
 Chancellor. That great official was at this time always an 
 ecclesiastic, and, as an ecclesiastic, he was usually more 
 familiar with Canon and Roman than with English law. 
 As might be expected, then, he favoured the supersession 
 of all common law rules which tended to the disadvantage 
 of the Church, and he inclined to regard the doctrines of 
 Roman law, when these difilered from those of Enghsh 
 law, as superior to the latter in wisdom and equity. These 
 two leanings gave rise to most of the differences in prin- 
 ciple and in procedure which originally, at any rate, 
 distinguished equity from the common law. 
 
 Ownership of Land and Goods. — The doctrines of the 
 ancient common law of England as to property real and 
 personal have been greatly altered by the operation of 
 equity and the force of statute. Nevertheless, if we want 
 thoroughly to understand the law as it now is, we must 
 first learn what it was before these two agencies brought 
 it to its present shape. The ancient common law is still 
 the foundation on which the whole superstructure since 
 raised by the Chancellors and Parliament has been built, 
 and that superstructure was compelled to follow the lines 
 of the foundation on which it rests. 
 
OWNERSHIP OP LAND AND GOODS. 19 
 
 Now the most characteristic distinctions between property 
 in land and property in goods at common law are these : 
 (1) At common law the ownership of land is never 
 absolute, while the ownership of goods is never anything 
 but absolute. (2) At common law the whole ownership 
 which the law permits over land may be divided among 
 several persons entitled in succession ; while the absolute 
 ownership of goods cannot be cut up into successive 
 interests. 
 
 Tenure of Land. — By the theory of English Law, the King 
 is " sovereigne lord or lord paramount, either mediate or 
 immediate, of all and every parcell of land within the 
 realme." (Co. Litt. 65 a.) In other words, however great 
 the interest of any English subject in any parcel of 
 English land may be, he is still regarded not as an absolute 
 owner but as merely a tenant holding his land under the 
 Crown or from someone who holds under the Crown, 
 in which the ultimate ownership of the land resides. 
 There is no such ultimate ownership residing in the 
 Crown as regards goods. This is commonly summed 
 up by saying that land is, and goods are not, the subject 
 of tenure. 
 
 At one time this doctrine of tenure was a matter of 
 vast practical importance. It imposed obligations oa the 
 owner of an interest in land so heavy as to constitute 
 it a real diminution of the right of ownership. These 
 obligations have been almost entirely abolished, and the 
 ultimate interest theoretically residing in the Crown is 
 now only the ghost of a real interest long since passed 
 away. But the former existence of these obligations and 
 of this interest has deeply influenced the conception of 
 ownership of land. Ownership of goods is regarded 
 purely as a right ; ownership of lands is still regarded 
 as a duty as well as a right. Being a duty, the law 
 has been most careful to see that there is always some- 
 one in existence to discharge it. (Gilb. Tenures, p. 18.) 
 
 c2 
 
20 KINDS OF INTERESTS IN THINGS OWNED. 
 
 This, as we shall find, has profoundly affected the whole 
 system of conveyancing. It has also caused the law 
 to impose ownership of land on persons not desiring 
 it. On the death intestate of an owner of goods, his 
 next of kin are under no obligation to take over the 
 ownership of his goods. On the death intestate of an 
 owner of land, the ownership of it vests in his heir-at-law, 
 whether the latter wishes it or not.^ And it has imposed 
 on the owner of land the necessity of remaining owner of 
 it until another person has been found to undertake that 
 duty. The owner of goods can abandon them by any act 
 which shows he desires to remain owner no longer, as by 
 throwing them away. But the owner of land must retain 
 the ownership till someone else acquires it. [Attonieij- 
 GvnemlY. Tod Heath, j, (1897) 1 Oh. 560.) 
 
 Estates in Land. — Not merely can there be nothing but 
 fiartial or incomplete ownership in land, but there can 
 subsist at one and the same time a multitude of partial 
 interests in the same plot of land vested in or belonging to 
 as many different persons, who will be entitled in succes- 
 sion to the possession and profits of the land. At common 
 law there can be no such successive interests in goods. 
 This is commonly i-ummed up by saying that land is not 
 merely the subject of tenure, but the subject of estates ; 
 goods are the subject of neither. 
 
 Land being in its nature indestructible, the ownership 
 of it must have certainty of duration. The law therefore 
 allowed it to be divided according to duration. But goods 
 
 ' It is difficult to say how far this doctrine has been afiected by- 
 sect. 1 of the Land Transfer Act, 1897 (60 & 61 Vict. c. 65), which 
 provides that freehold land shall, on the owner's death, vest in the 
 deceased's personal representatives. Probabljr, however, it is im- 
 pliedly repealed, especially as by sect. 3 the heir has no title to the 
 land until the administrator cotnvi/s it to him, and it is a, general 
 rule that you cannot convey property to any person against his 
 will, though it might be contended that this rule does not apply 
 where the grantee is under a legal duty to accept the grant. 
 
OWNERSHIP OF LAND AND GOODS. 21 
 
 are in their nature destructible, and therefore the ownership 
 of them can have no certainty of duration. The law accord- 
 ingly did not permit it to be divided according to duration. 
 The ownership of goods might be divided as far as their use 
 was concerned, as, for example, a horse belonging to one 
 person might be hired by another. {See infra, pp. 105, 339.) 
 But at common law a horse could not be given to one 
 person for a year, and at the end of that year to another 
 person absolutely. We shall see, however, how equity 
 has, to a large extent, practically reversed the common 
 law, and while theoretically leaving the doctrines of the 
 latter untouched has allowed successive interests in goods 
 to be created freely. 
 
 Title Deeds and Heirlooms. — Owing to the existence of 
 limited interests in land, mere possession is not on a sale 
 of land regarded (as it is in the case of a sale of goods) as 
 sufficient evidence that the vendor is entitled to the land 
 absolutely. {See infra, p. 234.) Accordingly it is cus- 
 tomary to preserve all the documents by which the owner- 
 ship of land has been transferred from one person to 
 another, in order to be able to prove, when nei;essary, the 
 mode by which it became vested in its owner and the 
 extent of his interest. These documents are called the 
 title deeds to the land. 
 
 Title deeds to land (as far as ownership in them is recog- 
 nized) are exceptions to the common law rule that no 
 partial interests can subsist in chattels. Title deeds are 
 looked upon by the law as " the sinews of the land." (Co. 
 Litt. 6 a.) They pass with the ownership of the land 
 (Yendor and Purchaser Act, 1874, s. 2, r. 5 ; Williainh and 
 Duchess of Newcastle's Contract, (1897) 2 Ch. 144), and 
 where partial interests subsist in the land they equally 
 subsist in the title deeds. ^ 
 
 ' Title deeds may be treated as chattels personal apart from the 
 land to whioli they refer. Thus they may he given under a bill of 
 
22 KINDS OF INTERRST.S IN THINGS OWNED. 
 
 Again, heirlooms are at common law goods in which 
 partial interests may subsist. By heirlooms are meant 
 chattels which, by special custom, go with the land or with 
 a freehold office. " In some places," as Coke says (Co. 
 Litt. 18 b), " chattels as heirlooms (as the best bed, table, 
 pot, can, cart, and other dead chattels moveable) may go 
 to the heire." Where this is the custom the same limited 
 interests may subsist in the heirlooms as subsist in the land 
 to which they are appendant. But heirlooms by special 
 custom are now very rarely met with, and consist usually 
 of such thiugB as coat armour and tombstones. The most 
 notable example of them is Crown jewels, which, by a 
 special custom affecting the Crown, are held by each 
 sovereign only for the term of his life. What are popularly 
 known as heirlooms are jewels, pictures, or plati^, settled 
 in trust to accompany land. {See Re JJayrell, Hastie v. 
 Daijrell (1904) 2 Ch. 496 ; and infra,}}. 110.) The limited 
 interests thus created in these are merely interests in 
 equity. At common law the whole ownership in them is 
 vested in the trustees of the settlement. 
 
 Section I. 
 INTERESTS IN LAND. 
 
 PAGE 
 
 Origin of Tenure 22 
 
 Kind.s of Tenure 24 
 
 Free and Customary Tenures . . 27 
 
 Free Sooaffe 28 
 
 PAGE 
 
 Incidents <if Free Tenure .... 29 
 
 Interests of Free Tcnm-e .... 30 
 
 Sub-sect. 1. Freehold Interest.-.. 32 
 
 Sub -sect. 2. Chattel Interests . . 78 
 
 Origin of Tenure. — It would appear that, in Anglo-Saxon 
 times, absolute or, as it is technically called, allodial owner- 
 ship by individuals, or by groups of individuals, was the 
 
 sale [see infra, p. 224) as a security for a loan without in any way 
 aifeoting the ownership of the land. {Swanky Cual Co. y. Dniti.n 
 (1907) 2 K. B. 873.) Such a security is to be distinguished from a 
 mortgage by deposit of title deeds, which gives the lender an 
 equitable charge upon the land itsulf. (.SVc infra, p. 219.) 
 
INTERESTS IN LAND. 23 
 
 usual (though not the only) kind of ownership of land in 
 England. Upon the Norman Conquest, however, much 
 land was forfeited to the Crown, and William in granting 
 this and other Crown lands among his followers ohserved 
 the custom which had grown up among the Teutonic 
 tribes, who had lately overrun "Western Europe. That 
 custom was not to give the land absolutely, but to give it 
 as a fief or feud — that is, to permit the follower to hold the 
 land in return for services which he undertook to render to 
 the King. William parcelled out most of the forfeited 
 lands in this fashion among his barons and knights. They 
 in their turn, with the consent of the Crown, parcelled out 
 most of the lands so granted to them among their followers 
 on condition that such followers should render them 
 certain services. And the followers might pursue the same 
 practice, and so on ad ivfinituin. This process was called 
 "subinfeudation." In each case the person making the 
 grant (grantor) was the " lord " of the person to whom the 
 grant was made (grantee), and the latter was the "tenant" 
 (or person holding) of the lord. The King was lord para- 
 mount. Those who held directly from him were tenants 
 in capife. The tenant in capite was the immediate lord of 
 those who held from him and tln^ superior lord of those 
 who held from his tenants. The lords between the Crown 
 and the actual tenant of the land were called " mesne " 
 lords. Each class owed services to their immediate lords, 
 and the tenants in capite owed service to the Crown. This 
 system of tenures is what is known as the feudal system 
 of land ownership. 
 
 At first, this system applied only to the land vested in 
 the Crown at the Conquest and granted out by the King. 
 But gradually it was extended by the Courts to all the 
 land in the realm, until now it has become an axiom of 
 English law that all English land owned by a subject is 
 held mediately or immediately from the Crown. Allodial 
 ownership can be in the King alone. (2 Bl. Com. I(i4.) 
 The same doctrine applies to land in Ireland ; but some 
 
24 KINDS OF INTERESTS IN THINGS OWNED. 
 
 doubt exists whether allodial lands in the hands of a sub- 
 ject may not still exist in Scotland. Indeed, it has been 
 affirmed that manses and glebes throughout Scotland are 
 subjects of allodial ownership, and that the feudal system 
 of tenure has never been introduced at all into the Orkneys. 
 (Hargrave's note, Co. Litt. 66 a.) 
 
 Kinds of Tenure. — The land confiscated by the Con- 
 queror and the early Plantagenets was almost entirely 
 agricultural land, and this land was granted by them to 
 their followers in two forms. To their greater barons it 
 was granted in honours, to the lesser barons in manors. 
 An honour consisted of a number of manors which by 
 ancient usage were held as one estate by a great officer of 
 the kingdom, who exercised over it not merely proprietary 
 but political powers, and who derived his title from it ; 
 hence the expression " title of honour." A manor, on the 
 other hand, was what might be called the agricultural unit 
 of that age. It consisted of a tract of land with a com- 
 munity upon it organised for its cultivation and for 
 rendering the necessary military and other services. This 
 community was composed of two classes — freemen and 
 serfs attached to the soil or villeins regnrdant, as they 
 were called in Norman French. The freemen, of whom 
 the lord or grantee of the manor was the chief, were the 
 rulers of the manor. They met together in the Coui-t 
 Baron of the Manor, where all dealings with the land of 
 the manor were carried out and duly recorded in the books 
 or roll of the manor. The other freemen of the manor 
 were the tenants of the lord, but subject to the services 
 they owed him they were his equals in law — judges of the 
 court baron, as they were called. [Sec Appendix A.) 
 
 The two great classes, then, of the agricultural popula- 
 tion were, roughly speaking, freemen and serfs or villeins. 
 Tenures followed this division. " Free " or " frank " 
 tenure was the tenure of the freeman who enjoyed equal 
 legal rights with his lord. "Base" or "villeia" tenure 
 
INTERESTS IN LAND, 25 
 
 was the tenure of the serf who had no legal rights as 
 against his lord. So completely was this difference of 
 tenure hased upon difference of status, that a grant to a 
 serf by his lord of a holding in free tenure enfranchised 
 the slave.i (Co. Litt. 138 a.) 
 
 Free tenure was divided into three classes according to 
 the services incident to them : -—Tenure in chivalry (such 
 as knight-service and grand serjeanty), where the services 
 were chiefly military and personal ; Tenure in socage (such 
 as free or common socage and petit serjeanty), where the 
 services usually were fixed payments ; and Tenure spiritual 
 (such as frankalmoigne), where the services were religious. 
 It is not worth our while to go further into the differences 
 between these, since they are now matters of only anti- 
 quarian interest. By the Act for the Abolition of Military 
 Tenm-es, 1660, which operated from 24 Feb. 1646 (new 
 style), the date of a resolution passed by the Long 
 Parliament for the same purpose, all free lay tenures are 
 turned into free or common socage, and the incidents of 
 tenure in chivalry and tenancy in copite in socage — which 
 were of a very bm'densome description — are abolished, save 
 only the honorary services in grand serjeanty, and socage 
 relief, which by the Statute of "Wards and Rehefs (28 Ed. I. 
 st. 1 (4), A.D. 1300) was fixed at a payment of one year's 
 quit rent on the death of an owner in socage. And as to 
 tenure spiritual, sioce the statute Quia Emptores, 1290 
 (see infra, p. 39), it can only be created by the Crown. 
 
 Yillein tenure at first was scarcely a legal tenure at all, 
 since it conferred no legal rights upon the tenant as against 
 the lord. It arose out of the practice of lords of manors 
 {see Appendix A.) of permitting villeins regardant of the 
 manor to occupy certain lands in consideration of whatever 
 services the lord chose to call upon them to render. The 
 villein's sole title consisted of an entry to that effect upon 
 
 ' The last claim of villenage heard in Court was in 15 Jao. I. 
 (1618). {Pigg v. Oaky, Noy, 27.) 
 
26 KINDS OF INTERESTS IN THINGS OWNED. 
 
 the roll of the manor, and for a long time this entry only 
 created a tenancy at the will of the lord. The villein, 
 however, was rarely disturbed in his possession. Not only 
 so, hut it became customary for the lord to continue the 
 tenancy from father to son and to demand fi-om each 
 holder only the same services. Gradually the Courts took 
 cognizance of this custom, and from being a favour it 
 became a right. The tenant then ceased to be called a 
 tenant at will and became a copyholder — a tenant holding 
 by copy of court roU of the manor, and owning, subject to 
 certain fixed services rendered to the lord, a hereditary 
 interest in the land granted. When this change had taken 
 place villein tenure may be said to have become customary 
 tenure. A copyholder's estate, however, is still a tenancy 
 at will, except so far as it has been increased and made 
 better by custom. {Per Rigby, L. J., Western v. BaUeij, 
 (1.^97) 1 Q. B. 86, at p. 91.) 
 
 Customary tenure is of two kinds, copyhold by custom 
 of the manor and copyhold by custom of ancient demesne, 
 sometimes called customary freehold. ^ The chief distinc- 
 
 ' This, ■whioli has hitherto been the more generally accepted 
 view, is dissented from by Cozens-Hardy, J., in the recent case of 
 Merttens v. Hill, (1901) 1 Oh. 842. He there holds that a tenant 
 of a manor of ancient demesne is a free tenant having the freehold 
 of his land in him, and that the Court of Ancient Demesne corre- 
 sponds not to the ordinary customary court — that is, the copy- 
 holders' court — of the ordinary manor, but to the Court Baron, or 
 free tenants' court. There are, as in other manors, copyhold 
 tenants, but the copyholders in a manor of ancient demesne ai-e 
 not, he points out, tenants of the manor, but tenants of the lord, 
 and form the customary court of the manor. It is not clear from 
 the judgment whether his lordship is speaking of what are called 
 customary freeholders generally, or only of those in the manor of 
 Eothley, Leicestershire. It is quite possible, of course, that the 
 customary freeholders in that manor are real freeholders (if they 
 can transfer their estates otherwise than by entry on the court roll 
 of the manor, as his lordship finds they can, they undoubtedly are), 
 while generally speaking tenants in manors of ancient demesne are 
 not. In view of this, and of the high authority of Blackstone (1 Bl. 
 Law Tracts, 108, 121), which was subsequently adopted by the 
 Legislature (31 Geo. II. o. 14), in support of the view in the text, 
 I have permitted the latter to remain unchanged. The question is 
 
INTERESTS IN LAND. 27 
 
 tion between these is, that in the former the owner of the 
 copyhold interest is expressed to hold it at the will of the 
 lord of the manor, while in the latter these words are 
 omitted. A further distinction is that the latter only 
 occurs in lands which are stated in the Domesday Book 
 to have been at the time of Edward the Confessor or 
 William the Conqueror vested in the Crown as a provision 
 for the support of its dignity. Of these then may be truly 
 said what Lord Coke says of copyholds generally, that 
 though meanly descended they come of an ancient house. 
 (The Compleat Copyholder, s. 32.) 
 
 Free and Customary Tenures.— Customary tenure does 
 not subsist between the customary tenant and the Crown, 
 but between the customary tenant and the lord of the 
 manor who is himself the free tenant under the Crown. 
 Customary tenure is thus a derivative or subordinate 
 tenure. Free tenure applies to all the lands of the realm ; 
 but as to some lands a secondary tenure applies as between 
 the free tenant and the actual holder of the lands, which 
 tenure the Courts recognize us established not by the 
 common law, strictly speaking, but by custom. And 
 free tenure being the proper common law tenure, in all 
 cases where there is doubt whether the tenure is free or 
 customary, the law presumes it to be free till the contrary 
 is shown. 
 
 The chief characteristics of customary tenure are, 
 Firstly, The tenant who becomes entitled either by pur- 
 chase or descent from the previous tenant has no legal 
 interest in the land till he is admitted by the lord of the 
 manor. Secondly, Upon admission, he is liable to certain 
 customary payments to the lord. Thirdly, Save in manors 
 where there is a custom to the contrary, the timber upon 
 
 not altogether an academic one, as Challis points out (Oh. on Eeal 
 Prop. p. 31), and as this case itseli shows. 
 
28 KINDS OF INTERESTS OF THINGS OWNED. 
 
 and the minerals in the land heloug to the lord. Subject 
 to these qualifications, customary ownership corresponds 
 pretty generally to free ownership. 
 
 The importance of customary tenure has of late greatly 
 declined owing to the enfranchising Acts now consolidated 
 in the Copj^hold Act, 1894, which have enabled copy- 
 holders to turn their tenure into free socage by buying out 
 the interest of the lord of the manor. "What we now say 
 will apply only to lands in fi-ee tenure, unless copyholds 
 are expressly included. A more particular description of 
 customary tenure is given in Appendix A. 
 
 Free Socage. — All the land in the realm not vested in 
 the Crown is, as we have seen, now held in socage tenure. 
 Land so held, if the tenant has a heritable interest at 
 common law in it, descends, on his death intestate, to the 
 common law heir. This is the rule, but exceptions to it 
 are made by local custom. Thus, by the custom of Kent, 
 gacelkind lands descend, when there are more than one son, 
 not to the eldest son exclusively (who is the common law 
 heir), but to all the sons in equal portions (who together 
 constitute the customary heu-). (Eob. Gravel. 112.) The 
 custom of Kent attaches other incidents to gavelkind 
 lands which will be mentioned in their place, and though 
 several private disgavelling Acts have been passed, the pre- 
 sumption of law still is that all lands in Kent are gavel- 
 Mnd till the contrary is shown. (Kob. Grav. 54.) Again, 
 by the custom of certain ancient boroughs, land within 
 them descends not to the eldest but to the youngest son. 
 This custom is called borough-enghsh, and is usually 
 annexed to lands in burgage tenure, a special kind of 
 socage which (like tenure in petit serjeanty) seems, in 
 spite of the Military Tenures Act, 1 660, to be still recog- 
 nized by the law. As a rule, however, these differences 
 in descent and in other matters occasionally do not 
 indicate a separate tenure, but are merely peculiar in- 
 
INTEREKTS IN LAND. 29 
 
 cidents attached by custom to land, subject otherwise to 
 the general tenure of free socage. ^ 
 
 Incidents of Free Tenure. — As between tenants in fee 
 simple and the Crown, most of the incidents of free tenure 
 were abolished by the Military Tenures Act, lfi60. The 
 most important now remaining is escheat, that is, the 
 reverter to the Crown as lord paramount of land held by 
 a tenant in fee simple under it. This now usually arises 
 through the death of the tenant without heirs and without 
 a will. [See infra, p. 307.) 
 
 As between tenants in fee simple and tenants holding 
 under them in fee simple — a relationship now not often 
 met with — besides escheat, a, quit rent^ (which now is 
 usually of small value owing to the change in the value of 
 money, and which may, by sect. 45 of the Conveyancing 
 Act, 1881, be compulsorily redeemed by the tenant),. socage 
 relief of one year's quit rent payable on the death of the 
 tenant and, if the land be parcel of a manor, rights of 
 common on the waste of the manor are also usually incident. 
 As between tenants in fee simple and tenants holding 
 smaller interests under them there is no escheat, since the 
 lord enters on the land as of his old estate on the deter- 
 mination, or end, of the smaller interest. What the other 
 incidents of these smaller interests are, we shall see when 
 we come to consider such interests. 
 
 Wherever there is tenure, fecdt// — i.e., an oath of loyalty 
 
 ' The difference between incidents arising from tenure and inci- 
 dents attached by custom is this : the former change with the 
 tenure, the latter do not — the maxim being that custom runs, not 
 with the tenure, but with the land. Thus copyholds when enfran- 
 chised (see Appendix A.) become freeholds, and all the incidents 
 peculiar to copyhold change simultaneously. But any peculiarity 
 of descent attached to lands of a particular manor by local custom 
 survives the change in tenure, and continues to regulate the descent 
 of the freehold. ^Eob. Gav. 80.) 
 
 ' Quit rents, whether freehold or copyhold, are barred by non- 
 payment or acknowledgment for twelve years like ordinary rent- 
 charges. {Howitt V. Earl of Harington, (1893") 2 Oh. 497.) 
 
30 KINUH OF INTEEKSTS IN THINGS OWNED. 
 
 to the lord — is inoideut ; but it now is never demanded. 
 Homage was abolished by the Military Tenures Act, 1660. 
 
 Interests of Free Tenure. — Free tenure was, as we have 
 seen, the tenure of freemen. As such, the conditions of 
 the tenure had to be such as, according to the notions of 
 the time, a freeman might honourably submit to. The 
 services due under it could not be servile and uncertain in 
 their nature, and interests given in it could not be held at 
 the mere will and pleasure of the lord. The smallest 
 interest that was considered suitable to the status of a free- 
 man was an estate certain for life. This accordingly was 
 and is the least interest that can be held in free tenure. 
 Of course, there was no objection t'.) a freeman accepting a 
 larger estate. Accordingly, grants not merely to continue 
 during his own life, but to continue as long as he had heirs, 
 could be made in free tenure. These latter were called 
 estates in fee. Estates for life and estates in fee were at 
 first the only interests that could be held in free tenure. 
 
 Estates in fee were of various kinds, of which the most 
 important were estates in fee simple and estates in fee 
 conditional. The former were estates limited to continue 
 so long as the original grantees had heirs of any kind {i.e., 
 blood relations) ; the latter only so long as the original 
 grantees had direct descendants to inherit them. On failure 
 of descendants, conditional fees reverted to the grantor or 
 his heirs. As long as fees were inalienable [i.e., could not 
 be transferred) such estates ran their natural course ; but 
 when the right to alienate became one of their legal inci- 
 dents, the reverter to the lord became liable to defeat. The 
 Coiirts then held that a fee conditional was a fee the con- 
 dition of which was the birth to the grantee of a child who 
 could inherit it, and that on the birth of such a child, 
 this condition was fulfilled to the extent, at any rate, of 
 enabling the grantee to alienate the estate free from the con- 
 dition, that is, to alienate it in fee simple, and also to make 
 it forfeitable in fee simple to the Crown on the tenant's 
 
INTERESTS IN LAND. 31 
 
 oonviotion of treason. (Oo. Litt. 19 a.) The effect of such 
 an alienation or forfeiture was to defeat the reverter to the 
 lord for ever. 
 
 To prevent this extinguishment of a valuable right, 
 the great lords, of whom a large part of the land of the 
 realm was held, passed the statute l)e Bonis CondiUonaUhns 
 (13 Edw. I. 0. 1, A.i). 1285), so called from the words 
 with which it begins. This enacted that the condition of 
 the grant in the case of a conditional fee should henceforth 
 be strictly observed. Conditional fees in land were on 
 this held inalienable, and from being owners of the full fee 
 subject to a condition, tenants in fee conditional now 
 became practically only life tenants, with life estates to the 
 heirs of their body in succession. With this change in 
 their character, a change took place in the name given to 
 conditional fees. Henceforth they were called not condi- 
 tional fees, but fees in tail or fees tail (from tailkr, to cut) , 
 in allusion to the fact that the full inheritance had been 
 out down into a mutilated or truncated one. (2 Bl. Com. 
 112.) 
 
 There were now — and there have continued to be ever 
 since — three estates in land of free tenure ; two at common 
 law {fee simple and life estate), and one statutory {fee tail). 
 These, when they are held in free tenure, are commonly 
 called freehold interests.' 
 
 ' Precisely similar interests subsist in copyliolds. {See Ap- 
 pendix A.) 
 
32 
 
 KINDS OF INTERESTS IN THINGS OWNED. 
 
 StIB-SECTION 1. 
 FREEEOLD INTERESTS. 
 
 PAQE 
 
 Heirs 32 
 
 Kinds of Heirs 32 
 
 Heritable Estates 33 
 
 Words of Inheritance 34 
 
 PAOE 
 (a.) Estates in Pee Simple . . 35 
 
 (b.) Estates in iee Tail 46 
 
 (c.) Estates for Life 56 
 
 A. Settlemeots of Ereeholds . . 67 
 
 Heirs.— Of freehold interests in land, two, as we have 
 seen, are heritable interests, and one is not. A heritable 
 interest is merely an interest the duration or extent of 
 which is marked out (or limited, as the technical expres- 
 sion is) by reference to the kind or class of heirs of the 
 tenant who may succeed to it in ease nothing happens to 
 prevent its descent to them. It is important to remember, 
 however, that though the estate is granted to the tenant 
 and his heirs, the heirs take nothing under the grant. 
 The words are merely ivords of liniitation, that is, words 
 used to indicate the extent of the estate the tenant takes 
 — whether it is a fee tail or a fee simple. {See infra, 
 p. 35.) 
 
 Kinds of Heirs. — The word heirs, when used in con- 
 nection with the limitation of estates, is, roughly speaking, 
 equivalent to blood relations. And heirs are divided 
 according to their relationship to the person whose heirs 
 they are. The primary division is between blood relations 
 generally and descendants. The former are called heirs 
 simply, or heirs general, the latter heirs of the body. 
 Then heirs of the body are distinguished according as they 
 are descendants generally, or descendants of a particular 
 sex, or by a particular marriage. The first class are heirs 
 general of the body, the second heirs male or heirs female of 
 the body, the last heirs of the body by his xtife A. or bii her 
 husband B., or heirs of their bodies begotten between them. 
 
FREEHOLD INTERESTS IN LAND. 33 
 
 The last class, again, may be distinguished according to 
 their sex. When heirs of the body are divided according 
 to sex, those only are included who are not merely of that 
 given sex, but vsrho are also descended through that sex 
 from the person whose heirs of the body they are. (Litt. 
 s. 24 ; Co. Litt. 25 a.) Thus, heirs male of the body 
 include only sons, the sons of sons, the sons of sons' sons, 
 and so on. The son of a daughter is not the heir male of 
 the body of his grandfather. It may be noted that the 
 law does not permit heirs general to be divided according 
 to sex, but only heirs of the body. (Litt. s. 31 ; Co. 
 Litt. 27 a.) 
 
 All the kinds of relationship mentioned here must be 
 legitimate relationship. Merely natural relationship is 
 not recognized in law, at any rate for purposes of inherit- 
 ance. That is why it is called natural (as opposed to legal) 
 relationship. A bastard is in law nuUius films, the son of 
 nobody. He has no relatives save his own descendants, 
 and he can never claim as heir except as to them.^ 
 
 Another point may just be mentioned. When it is 
 said the heirs or heirs in tail in a grant include the classes 
 of relatives mentioned, it is not meant that if the estate 
 is allowed to descend the class in question will take it 
 among them. The person who will take it — the heir-at- 
 law, or heir of the body, as he is called — will be ascertained 
 on the death of the owner by means of the canons of 
 descent. [See infra, p. 313.) All that is meant is that 
 the estate will not fail for want of heirs as long as any of 
 that class exists, or at any rate can be ascertained to exist. 
 
 Heritable Estates. — Heritable estates or fees being 
 estates limited to the grantees and their heirs, they are 
 divided just as heirs are divided. The primary division is 
 
 ' Under the old law of descent a bastard could not be heir even 
 of own issue, as the rule then was that inheritances could not 
 ascend lineally. This was altered by the Inheritance Act, 1883, s. 6. 
 
 S. D 
 
34 KINDS OF INTERESTS IN THINGS OWNED. 
 
 into fee simple estates, i.e., estates limited to the grantee 
 and his heirs general (that is, without qualification), and 
 fee tail estates, i.e., estates limited to a man and the heirs 
 of his body. Again, there are as many kinds of fee tail 
 estates as there are kinds of heirs of the body. There are 
 estates in tail general — " to A. and the heirs of his body "; 
 in. tail male — " to A. and the heirs male of his body"; 
 in tail female — " to A. and the heirs female of his body " -^ 
 in tail special — " to A. and the heirs of his body by his 
 -wife B.," or " to A. and his wife B. and the heirs of their 
 bodies between them begotten " ; in male tail special — 
 " to A. and the heirs male of his body by his wife B." ; 
 and in female tail special — " to A. and the heii's female of 
 his body by his wife B.," &c. 
 
 Words of Inheritance. — These words heirs and heirs of 
 the hody are the apt words for creating an estate of 
 inheritance, and formerly in grants by deed, though not in 
 gifts by will, an estate of inheritance could not be trans- 
 ferred without them. To this day a grant by deed to A. 
 without more will give A. only a life estate. But by 
 section 61 of the Conveyancing Act, 1881 (44 & 45 Vict. 
 c. 41), the words heirs or heirs of the body are no longer 
 absolutely necessary. The estate intended to be conveyed 
 may now be described as an estate '\D.fee simple or in tail, 
 as the case may be. These words are, however, only 
 alternative technical words in lieu of the words " and his 
 heirs" or "and the heirs of his body," and are fully as 
 technical as the older expressions. Thus it has been held 
 that a conveyance to A. " in fee " — not in " fee simple " — 
 will not be good to carry to A. an estate of inheritance. 
 
 ' Limitations in tail female are for obvious reasons so rare in 
 practice that some very learned writers have doubted whether they 
 are legal. [Site Co. Litt. 25 a, note 1.) But this doubt seems to be 
 unfounded, [fitc per Lord Blackburn, Earl of Zetland v. Lord 
 Advocate, 3 App. Cas. 505, at p. 523.) 
 
FREEHOLD INTERESTS IN LAND : FEES SIMPLE. 35 
 
 {In re Ethel and Mitchells and Butler's Contract, (1901) 
 1 Oh. Mo.y 
 
 In grants in spiritual tenure a fee simple can be con- 
 veyed without words of inheritance, and such is the case 
 in grants to corporations aggregate in all cases. {8ee 
 Part VII.) But in grants to corporations sole the words 
 Ms successors must take the place of his heirs, save in the 
 case of grants to the sovereign, when no words of succes- 
 sion are necessary. (2 Bl. Com. 108 ; Under. & Stra. on 
 Wills, p. 197.) 
 
 (a.) Estates in Fee Simple. 
 
 PAOB 
 
 Estates in Fee Simple 35 
 
 No Reversion on Fees Simple . 36 
 
 Determinable Fees 36 
 
 DeterminaWe Fees and Sub- 
 sequent Limitations 37 
 
 PAGE 
 
 Lordship over Fees Simple . . 38 
 
 Fee Farm Grants 39 
 
 Fee Farm Grants in Ireland . . 40 
 
 Alienation of Fees Simple .... 43 
 
 Liability for Debts 43 
 
 Estates in Fee Simple. — An estate in fee simple is the 
 largest interest in land which can be owned by any 
 subject. When it is in possession — that is, when there 
 is no smaller freehold interest preceding it, or when its 
 owner is not deprived of the use of the land by the sub- 
 sistence therein of a chattel interest belonging to somebody 
 else — ^it amounts, for all practical purposes, to absolute 
 ownership. Its owner can use the land as he likes, and 
 dispose of the right to use it as he likes, and the right is 
 unlimited in duration ; or, in the ordinary phrase, the 
 owner holds the land " to himself, his heirs and assigns 
 for ever." The only limitation of the ownership lies 
 
 ' These common law rules of limitation do not apply to equitable 
 estates. A fee simple, or a fee tail, may be created by deed or 
 ■writing in the equitable estate in land by any words which indicate 
 clearly that it was the intention of the grantor to grant such 
 estate. (See In re Tringham, Trinf/hamv. Greenhill, (1904)2 Ch. 
 487 ; cf. the rule applicable to devises : Strahan's Law of Wills, 
 p. 18.) 
 
 d2 
 
36 KINDS OP INTERESTS IN THINGS OWNED. 
 
 usually in the lordship residing in the Crown, which, as 
 we have already seen, is now of a very shadowy and 
 unsubstantial character. 
 
 No Reversion on Fees Simple. — Though other smaller 
 freehold interests may precede an estate in fee simple, no 
 interest of any kind can at common law follow it. ( WtUwn 
 V. Berkeley, Plowd. 223.) In other words there can be no 
 reversion (see infra, p. 154) on a fee simple. This character- 
 istic results from a fee simple estate being regarded by the 
 law as an estate to last for ever, and it is a characteristic 
 peculiar to fees simple. All other interests in land, free- 
 hold or chattel, are in their nature terminable, and there- 
 fore any number of them cannot absorb the full ownership, 
 which is everlasting, at any rate in contemplation of law. 
 Accordingly, however many smaller estates may be limited 
 in a parcel of land, there must still be a reversion over and 
 above them all, and that reversion must be a fee simple, . 
 which is the only estate which is everlasting, and which is 
 able, therefore, to absorb the whole ownership. 
 
 Determinable Fees. — At one time, however, it was 
 possible at common law to qualify fees simple, so that 
 while there was no reversion on them — that is, no estate to 
 follow them— there might nevertheless be a possibility of 
 reverter — that is, a chance of theii' returning to the grantor. 
 Thus, an estate might be granted to " A. and his heirs, 
 lords of the Manor of Dale." (Co. Litt. 27 a ; 2 Bl. Com! 
 109.) Here the limitation to "A. and his heirs" creates' 
 a fee simple. The collateral limitation, "lords of the 
 Manor of Dale," restricted the enjoyment of the grant by 
 A. and his heirs to the period they continue to be lords of 
 that manor. When they ceased to be such lords, the fee 
 simple determined, and the lands reverted to the grantor 
 or his heirs. This was called a fee determinahle. Here 
 the owner had all the rights of an owner in fee simple 
 absolute. He could use the land as he liked, and dispose 
 
FREEHOLD INTERESTS IN LAND : FEES SIMPLE. 37 
 
 of it as he liked, subject always to tlie condition that it 
 should determine on his or his heirs ceasing to be lords of 
 the Manor of Dale— an event which, of course, might never 
 happen. 
 
 For a long time it was a moot point whether a condition 
 such as this — a condition, that is, which might continue 
 annexed to the fee simple for ever — could still be attached 
 to an estate in fee simple. Lately the question came before 
 the Court, when it was held that a condition upon the 
 fulfilment of which no limitation as to time was placed 
 was bad, as being contrary to the rule against perpetuities. 
 [In re Trustees of Sollis' Hospital and Hague's Contract, 
 (1899) 2 Ch. 540; cf. Re Blimth Trusts, WiganY. Clinch, 
 (1904) 2 Ch. 767 ; and see infra, p. 183.) Accordingly a 
 fee simple granted subject to a perpetual or common law 
 condition, as it is called, is now no longer a determinable 
 fee but an ordinary fee simple, since the condition is void 
 and of no effect. 
 
 Determinable Fees and Subsequent Limitations. — While 
 fees simple can be no longer made subject to common law 
 conditions, still determinable fees may yet be granted pro- 
 vided the determinary event is one which, if it occur at all, 
 must by the terms of the grant occur during a life or lives 
 in being at the date of the grant or within twenty- one 
 years after the dropping of these lives. A determinable 
 fee of this kind is, however, created on principles established 
 by the Court of Chancery, and when so created it differs 
 from a common law determinable fee in this respect : that 
 though there is no reversion upon it, yet nevertheless future 
 estates may be limited to arise on its determination in sub- 
 stitution for it. [See infra, pp. 164, 167.) No limitation 
 could follow a determinable fee at common law. 
 
 The event which is to determine a determinable fee must 
 be an event which may never happen. If it be an event 
 which must happen some time or other, then the estate is 
 not one which, in contemplation of law, can last for ever. 
 
38 KINDS OF INTERESTS IN THINGS OWNED. 
 
 and therefore it cannot be a fee simple of any sort. Thus 
 an estate limited to A. and his heirs until A. shall marry 
 is a good determinable fee, since A. may never marry, and 
 then his fee will never determine ; but an estate limited to 
 A. and his heirs until the year 2009 is not a freehold 
 interest at all, but merely a lease for a hundred years. ^ 
 
 Lordship over Fees Simple. — No reversion, as we have 
 seen, can subsist over an estate in fee simple ; neither, as a 
 rule, can any lordship save that residing in the Crown. At 
 one time this was different. When fees simple first became 
 alienable, the rule was that if a tenant transferred by a 
 single conveyance all the lands he held under any grant, 
 the transfer might so operate that the new tenant held the 
 lands from the lord of whom the old tenant held, and on 
 the same services as the old tenant, who thereupon ceased 
 to have any interest in the land. If, on the other hand, the 
 old tenant transferred part of the land only, or transferred 
 it all in parcels, then the new tenant or tenants must have 
 held not of the lord of the old tenant but of the old tenant 
 himself, who thereupon became a mesne lord seised of the 
 land in service^ (as the technical expression was), while his 
 lord became the superior lord of the new tenants. This 
 arose from the doctrine that services reserved on a grant 
 could not be divided. This practice of mbinfeudation, as it 
 was called, worked, in some way or other not very clear now 
 
 ' It may be well to point out tlie difference between a deter- 
 minable and a base fee at common law. A determinable fee is 
 (as appears above) a fee descendible to tbe beirs general on wbicb 
 tbere is no reversion, but merely a possibility of reverter. (Plowd. 
 557.) A base fee is a fee descendible to the heirs general on which 
 there is a reversion in fee simple. Determinable fee arises by 
 original limitation. Base fees arise through the transfer of estates 
 in tee tail. {Seep. 48, infru.) For a list of base fees, see ChaUis 
 on Eeal Property, Chap. '22. Blaokstone uses the term base fee to 
 describe what is called above a fee determinable. (2 Bl. Com. 108.) 
 
 ^ When a freeholder was in actual possession of the land he 
 was said to be seised of it iii his demesne. [See P. & M. Hist. Eug. 
 Law, Vol. I. pp. 211, 219.) 
 
FREEHOLD INTERESTS IN LAND : FEES SIMPLE. 39 
 
 — since the superior lord could, notwithstanding the subin- 
 feudation, distrain on the whole land for the services due to 
 him by the tenant seised in service (2 Inst. 65) — to the pre- 
 judice of the superior lord ; and in consequence, after some 
 ineffectual attempts to check it (see 9 Hen. III. c. 32), an 
 Act of Parliament was passed to stop subinfeudation alto- 
 gether. This Act was the statute Quia Emptores (18 Ed. I. 
 e. 1, A.D. 1290), so called, like the statute De Bonis Condi- 
 tionalibus, from the words with which it begins. It enacted 
 that while every tenant in fee simple might freely alienate 
 his land in fee simple, either in whole or in part, yet the 
 new tenant or tenants should not hold of him as their lord, 
 but from his lord by the same services by which he had 
 held, which services, where the land was alienated partially 
 or in parcels, were to be divided. This has continued to be 
 the law ever since, and, consequently, any private lordship 
 over lands in fee simple now subsisting must have been 
 created either before the passing of this statute (a.d. 1290) 
 or under some royal charter (affirmed by Act of Parlia- 
 ment) granted since that date. [Dehcherois v. Delacherois, 
 11 H. L. C. 62. )i In the absence of evidence to prove a 
 private lordship — which evidence is rarely forthcoming 
 now— the lordship is presumed to reside in the Crown. 
 {Doe V. Redfern, 12 East, 96.) 
 
 The statute Quia Emptores did not apply to tenants in 
 capite. These could not alienate without the consent of 
 the Crown, and the Crown exacted a fine or fee for such 
 consent. (1 Edw. III. c. 12.) Fines on alienation were, 
 like other feudal exactions, abolished by the Military 
 Tenures Act, 1660. 
 
 Fee Farm Grants. — The relation of lord and tenant is 
 what is meant by tenure. The effect, therefore, of the 
 
 ' It is doubtful -whetlier the Crown cannot grant by charter, 
 •without the sanction of Parliament, authority to a subject to create 
 a manor or private lordship. (See Co. Litt. 98 b.) 
 
40 KINDS OF INTERESTS IN THINGS OWNED. 
 
 statute Quia Emptores was to abolish heaceforth tenure as 
 between the grantor and grantee of estates in fee simple 
 where the grantor was a subject. Rent is an incident of 
 tenure— a service resulting from the relation of lord and 
 tenant. Accordingly, after the statute Quia Emptores, no 
 rent properly so called — that is, rent service, for which the 
 common law gave a right to distrain (see infra, jj. 96) on 
 the land subject to it — could be reserved by the grantor on 
 a grant in fee simple. When a rent was reserved it was 
 only a rent seek, or dry rent — so called because the common 
 law gave no remedy by distress for recovering it. To 
 secure its payment a power of distress had to be specially 
 given to the owner in the instrument reserving the rent. 
 When such a power was given the rent was called not a 
 rent seek, but a rent charge. 
 
 As grants in fee simple, in which part of the considera- 
 tion — -or payment — for the land took the form of a rent 
 reserved to the grantor, became more usual, this state of 
 the law caused iu convenience, and in George II. 's time an 
 Act (4 Geo. II. 0. 28) was passed making a power of distress 
 incident to a rent seek. And now, by sect. 4-i of the 
 Conveyancing Act of 1881, as far as rents created after 
 1st January, 1882, are concerned, the owner or grantee of 
 a rent charged on a fee simple has the following remedies 
 against the land subject to it : (a) if unpaid for twenty- 
 one days after becoming due, distress ; (b) if unpaid for 
 forty days, entry and possession till payment of arrears ; 
 (c) if unpaid for forty days, power to demise to a trustee 
 for a term of years on trust to raise the arrears and costs 
 by way of mortgage, sale, or demise of such term. [See 
 Blackburne v. Hope-Edivards, (1901) 1 Oh. 419.) 
 
 Grants in fee simple with a rent reserved to the grantor 
 are now called fee farm grants. They are very common in 
 Manchester and throughout the greater part of Lancashire, 
 where they constitute the favourite form of building lease. 
 
 Fee Farm Grants in Ireland. — Fee farm grants are also 
 
FREEHOLD INTERESTS IN LAND : FEES SIMPLE. 41 
 
 very common in Ireland. In that country, however, such 
 grants do for the most part give rise to the relationship of 
 landlord and tenant betvfeen the grantor and grantee, and 
 consequently entitle the grantor to the ordinary landlord's 
 remedies (particularly distress and ejectment) for the 
 recovery of the rent reserved by the grant. There are 
 three classes of cases in which the grant will give rise to 
 such relationship : — 
 
 (1) Many patents from the Crown, during the sixteenth 
 and seventeenth centuries, giving lands to persons to hold 
 as tenants in fee simple from the Crown, contained a 
 Hcence empowering such persons to make sub-grants in 
 fee, notwithstanding the statute of Quia Emjitores Fee 
 farm grants made by persons having such a licence would 
 then, apparently, notwithstanding the statute, create a 
 tenure between the grantee and grantor. ( Verschoyle v. 
 Perkins, 13 Ir. Eq. E. 72.) 
 
 (2) A very common form of lease in Ireland, during 
 the later part of the eighteenth and earlier part of the 
 nineteenth century, was a lease for the lives of specified 
 persons, in which there was often contained a covenant 
 by the lessor for perpetual renewal — i.e., a covenant that, 
 so often as any of the lives dropped, he would at the 
 request of the lessee and on certain payments being made 
 by him, insert a new life in substitution. Such leases, 
 although of course involving tenure between lessor and 
 lessee, gave rise to a freehold interest, and an interest 
 which was virtually perpetual, if there were such a cove- 
 nant for renewal as has just been described. In 1849, a 
 statute called the Renewable Leasehold Conversion Act 
 (12 & 13 Vict. c. 105), enabled either party to such a 
 renewable lease to obtain a fee farm grant in substitution 
 therefor; and sects. 20 and 21 gave to the grantor in such a 
 grant all the remedies, including distress and ejectment, 
 for the recovery of the rent reserved therein, which were 
 applicable to the recovery of a rent-service reserved in a 
 common law lease. The result is that any fee farm grant 
 
42 KINDS OF INTERESTS IN THINGS OWNED. 
 
 made since 1849, if it is what is commonly called a 
 conversion grant, does practically create the relationship 
 of landlord and tenant between the parties, so far as the 
 remedies for the rent are concerned. 
 
 (y) Any fee farm grant made since 1st January, 1861, 
 does, by virtue of sect. 3 of the Landlord and Tenant 
 (Ireland) Act, 1860, create the relationship of landlord 
 and tenant between the parties thereto. The words o£ 
 that section, declaring that the relation " shall be deemed 
 to subsist in all cases in which there shall be an agreement 
 by one party to hold land from or under another in con- 
 sideration of any rent," are wide enough to include fee 
 farm grants. The section, however, is not retrospective 
 {Chute V. Busteed, 16 Ir. 0. L. E. 222), nor does it apply 
 to grants made under the Renewable Leasehold Conver- 
 sion Act, nor to renewals made after 18til in pursuance of 
 covenants for renewal in leases made before that date. 
 The tenant under a fee farm grant (unlike the lessee in a 
 renewable lease) is not impeachable for waste, except 
 fraudulent or malicious waste. (Sect. 25.) 
 
 A lease for lives renewable for ever, if made for the 
 first time since the passing of the Renewable Leasehold 
 Conversion Act, is by sect. 37 of that Act to operate as 
 a fee farm grant, and any reservation of fines on renewal 
 is to be deemed void. The tenant in fee farm has, like 
 the tenant in fee simple, a power of free alienation, and 
 any covenant in a fee farm grant restraining alienation 
 is void as being " repugnant to the nature of the estate." 
 {Lunham's Estate, Ir. R. 6 Eq. 170.) This, however, does 
 not apply to the case of a tenant holding under a fee farm 
 conversion grant ;i for it has been decided that the effect 
 of the express words of the Renewable Leasehold Conver- 
 sion Act is to validate the incorporation in such a grant 
 
 1 And see sect. 70 of 3 Bdw. VII, o. 17, making all covenants in 
 any lease or fee farm grant prohibiting alienation void for the pur- 
 pose of a sale under the Laud Purchase Acts. 
 
FREEHOLD INTERESTS IN L,iND : FEES SIMPLE. 4S 
 
 of provisions in the renewable lease making an increased 
 penal rent payable on alienation to persons outside a 
 certain class. {In re McNaid's Edate, (19u2) 1 Ir. R. 
 114.) 
 
 Alienation of Fees Simple. — The power or right of 
 voluntary and free alienation inter vivos has, ever since 
 the statute Quia Emjitores, been an inseparable incident 
 of an estate in fee simple. The right of alienation by 
 will was, as we shall see, first recognized by statutes in 
 Henry VIII. 's reign (32 Hen. VIII. c. 1, and 34 & 35 
 Hen. VIII. c. 5 ; see p. 168, infra), and fully acquired 
 through the Military Tenures Act, 1660, already re- 
 feri'ed to. 
 
 Liability of Fees Simple for Debts. — The liability of a fee 
 simple estate to be taken from its owner and used for the 
 payment of his debts did not attach fully to fees simple 
 till a comparatively recent date. 
 
 The estate was, so early as Edward I.'s time, made par- 
 tially liable for its owner's debts for which judgment had 
 been obtained dm-ing his lifetime. By the Statute of 
 Westminster the Second (13 Edw. I. c. 18), a creditor 
 could, under a writ of elegit, obtain possession of a half of 
 the debtor's lands, and could retain them till the judgment 
 debt was paid, or was realized out of the rents and profits. 
 The statute applied only to judgments of the Courts of 
 Common Law, as opposed to Courts of Equity ; but now 
 by Judgments Act, 1838, s. 11, the writ of elegit is extended 
 to all the debtor's lands and to all judgments of the 
 Supreme Court. And, by sect. 4, once the land has been 
 actually delivered in execution the creditor may obtain an 
 order for its sale. Judgments of inferior courts, to be 
 made effectual against land, must be removed to the 
 Supreme Court. 
 
 Formerly judgments attached as an incumbrance upon 
 lands ; but now, by Judgments Act, 1864, s. 1, no judg- 
 
44 KINDS OF INTERESTS IN THINGS OWNED. 
 
 ment entered after the passing of that Act — 29th July, 
 1864 — is to affect land until it is actually delivered in 
 execution by virtue of a writ or other lawful authority. 
 By sect. 5 of the Land Charges Eegistration and Searches 
 Act, 1888, every writ or order affecting land is, upon its 
 issue, to be registered at the Office of Land Eegistry in 
 the name of the person whose land is affected by it, 
 which registration is to lapse if not renewed every five 
 years. And by sect. 6 of the same Act, every such writ 
 or order, and every delivery in execution or other proceed- 
 ings taken in pursuance of any such writ or order or in 
 obedience thereto, shall be void as against a purchaser for 
 value of the land, unless the writ or order is for the time 
 being registered under sect. 5. Lastly, by the Land 
 Charges Act, 1900, a judgment, whether obtained before 
 or after the commencement of the Act (1st July, 1901), 
 shall not operate as a charge on land, or any interest in 
 land, or on the unpaid purchase-money for any land, 
 unless or until a writ or order for the purpose of enforcing 
 it is registered under the Land Charges Registration Act, 
 1888. And by sect. 6 Crown Debts, which under the 
 earlier Acts were charges upon the land without registra- 
 tion, require now to be registered like ordinary judgment 
 debts. By the Judgments Extension Act, 1868, judg- 
 ments obtained in the Supreme Court, and in the superior 
 Courts in Ireland and Scotland, are made respectively 
 effectual in other parts of the United Kingdom. 
 
 A debtor's land has always, since bankruptcy was re- 
 cognized by the law, been liable for the payment of his 
 debts on his bankruptcy. On that event his lands (like 
 his goods) vest in his trustee in bankruptcy, who realizes 
 them and distributes the proceeds among the creditors. 
 And a very convenient mode of enforcing judgment 
 against a debtor who possesses land is to take proceedings 
 against him in bankruptcy — especially if you know he is 
 undoubtedly solvent. 
 
 So much for the liability of fees simple for the debts of 
 
FREEHOLD INTERESTS IN LAND : FEES SIMPLE. 45 
 
 their owner during his life. If, however, judgment were not 
 recovered during his life, then, until recently, the fee simple 
 lands of a dehtor were liable in the hands of his heir or 
 devisee only for debts due to the Crown, and debts due to 
 private persons by bond, in which his heirs were expressly 
 bound. These latter were called specialty debts, and the 
 land liable to tbem was called legal assets for their pay- 
 ment. If the debtor devised his land for the payment of 
 his debts, it was called equitable assets, and was divided 
 equally between all his creditors. After various modifica- 
 tions of this rule, at last, by 3 & 4 Will. IV. c. 104, land 
 was made assets for the payment of all the debts of a 
 deceased owner, though specialty debts were still to be 
 paid before ordinary debts. By Hinde Palmer's Act, 
 1869, the priority of specialty creditors is abolished as to 
 all persons dying on or after 1st January, 1870. {In re 
 Samson, Robbing v. Alexander, (1906) 2 Oh. 584.) Then, 
 by the Judicature Act, 1875, s. 10, in the administration 
 by the Court of the assets of any person who may die 
 after the commencement of the Act, and whose estate may 
 prove to .be insufficient for the payment in full of his 
 debts and liabilities, the same rules are to prevail as to the 
 respective rights of secured and unsecured creditors, and 
 as to debts and liabilities provable, as may be in force for 
 the time being under the law of bankruptcy with respect 
 to the estates of persons adjudged bankrupt. (Jw re Leng, 
 Tarn Y.Emmerson, (1895) 1 Ch. 652; /« reBeyiooocl,Farling- 
 ton V. Heywood, (1897) 2 Ch. 593.) It will be observed that 
 when the administration is by the Chancery Division of the 
 High Court the rules of bankruptcy apply only as regards 
 rights of secured and unsecured creditors, and as to debts 
 and liabilities provable ; but under sect. 125 of the Bank- 
 ruptcy Aot, 1883, where the estate is insolvent, a creditor 
 may present a petition to the Court of Bankruptcy, or 
 without such petition (sect. 2, Bankruptcy Act, 1890) 
 the Chancery Division, where it is administering the estate, 
 may transfer the administration to the Court of Bank- 
 
46 KINDS OF INTERESTS IN THINGS OWNED. 
 
 ruptoy, and in either case the estate will be wound up as 
 if the deceased were alive and adjudicated bankrupt. {See 
 infra, p. 297.) The only differences are (1) that proper 
 funeral and testamentary expenses will be paid in priority 
 to all other debts, and (2) that the bankruptcy rules as to 
 property within the bankrupt's order and disposition, 
 fraudulent preferences and voluntary settlements, do not 
 apply. {Hasluck v. Clarke, (1899) 1 Q. B. 699.) FinaUy, 
 by sect. 2 (3) of the Land Transfer Act, 1897, in the 
 administration of the assets of a person dying after the 
 commencement of that Act (1st January, 1898), his real 
 estate shall vest in his personal representatives and be 
 administered in the same manner, subject to the same 
 liabilities for debt, cost and expenses, and with the same 
 incidents, as if it were personal estate. 
 
 (b.) Estates in Fee Tail 
 
 PAUB I PAGE 
 
 Estates in Eee Tail 46 : An XJnbarrable Fee Tail 52 
 
 Alienation of Fees Tail by Liability of Fees Tail for Debts 53 
 
 Action 48 Fees Tail not Devisable 54 
 
 Alienation of Fees Tail by Tenant in Tail's Leasing 
 
 Deed 49 Powers S4 
 
 Operation of Disentailing Deeds 50 Position of Tenant in Tail. ... 55 
 
 Estates in Fee Tail. — ^Estates in fee tail, as we have seen, 
 arose out of the old conditional fees. (Supra, 2}- 'dO.) The 
 object of the statute Be Bonis Conditionalihus was simply 
 to preserve to the lord his chance of getting back the land 
 on the natural determination of the conditional fee granted 
 by him. The effect was, however, much more extensive. 
 In the first place, by making the estate necessarily come to 
 an end on failure of the heirs of the body of the grantee, 
 the statute, as the Courts held, had reduced it to a smaller 
 estate than the old conditional fee, which was merely a fee 
 simple subject to a condition, Accordingly, instead of a 
 
FREEHOLD INTERESTS IN LAND : FEES TAIL. 47 
 
 possibility of reverter, which was all that remained in the 
 grantor after granting a conditional fee {Marquis of Went- 
 minster's Case, 3 Rep. at p. 36), there remained in the 
 grantor of a fee tail a reversion in fee simple which could 
 be limited out in estates to come into enjoyment on the 
 determination of the fee tail.^ In the second place, by 
 making it impossible for the grantee to bar his issue as it 
 is called — that is, to prevent the heii' of his body from 
 becoming entitled to claim the estate on his death — the 
 statute practically changed the grantee's interest from a 
 iee into a life estate.^ It is true, if a tenant in tail 
 alienated his estate, the grantee did not take merely a life 
 interest : he took a base fee — that is, an estate to him and 
 his heirs which must determine when the heirs of the body 
 •of the alienating tenant in tail failed. But that base fee 
 oould, at any time after the decease of such tenant in tail, 
 be put an end to by the entry of the heir of his body, i.e., 
 by the heir in tail taking or obtaining by an action posses- 
 sion of the land. And although, as we shall see, a tenant 
 in tail can, by observing certain forms, now bar his issue 
 and also the reversion of the grantor, and turn his estate 
 into a fee simple (or, as the phrase is, par the entail) ; yet if 
 these forms are not observed his conveyance will still only 
 transfer a base fee determinable after his decease by entry 
 of his heir of the body. 
 
 ' The statute De Bonis applies only to tenements. Accordingly, 
 limitations to the grantee and the heirs of his body of hereditaments 
 which are not tenements — such as annuities not connected with 
 land — create conditional fees still. And similar limitations of copy- 
 holds in manors where there is no custom to entail also do so. 
 In both these cases the grantee, on the birth of heritable issue, is 
 entitled to convey his interest in fee simple. And there is no 
 reversion, but merely a possibility of reverter, in the grantor. 
 
 ^ An estate in fee tail was not liable to forfeiture on the convic- 
 tion of the tenant in tail of treason, being in this respect different 
 again from the old conditional fee, which was liable to forfeiture as 
 soon as the tenant had issue born who oould inherit. [See supra, 
 j>. 30.) Fees tail were made liable to forfeiture for treason bv 
 26 Hen. VIII. c. 13. 
 
48 KINDS OF INTERESTS IN THINGS OWNED. 
 
 Alienation of Fees Tail by Action. — The statute De Bonis 
 Conditionalibm having produced results not anticipated 
 and not desirable, many attempts were made in Parliament 
 to repeal it, but these all failed through the opposition of 
 the great lords. What, however. Parliament would not 
 sanction, the Courts accomplished by means of collusive 
 actions.! These were of two kinds. The minor kind was 
 what was called a fine levied with proclamations — a pro- 
 ceeding expressly recognized by Parliament in the Statutes 
 of Fines, 1488 and 1540. This was a collusive action, 
 which was settled with the consent of the Court in 
 favour of the demandant,^ who was the grantee to whom 
 the estate was to be transferred. The second and more 
 effectual kind was what was called a common recovery. 
 This was a collusive action carried fully through to 
 judgment for the demandant. 
 
 The old learning with regard to fines and recoveries is 
 not of sufficient importance now to justify its introduction 
 in an elementary work. It will be sufficient for oiir pur- 
 poses to point out two differences between the two processes, 
 as these constitute the basis of the law at present. In the 
 first place, a fine could be levied by any tenant in tail 
 whether his estate was in possession or was preceded by 
 a life estate in possession, that is was what is called a fee 
 tail in remainder or reversion [see infra, p. 153). A recovery, 
 on the other hand, could be suffered only either by a tenant 
 in tail in possession, or by a tenant in tail in remainder or 
 reversion with the consent of the owner of the preceding 
 life estate. Secondly, unless the tenant in tail owned the 
 fee simple in remainder on the fee tail,^ a fine barred only 
 
 1 As to a third mode of barring entails, namely, by warranty, 
 see Strahan's Convey. , p. 72, n. Barring by warranty was abolisbed 
 by sect. 14 of the Pines and Eeooveries Act, 1833. 
 
 ^ In real actions the proper description of the parties was deman- 
 dant and tenant. Eeal actions are now abolished, and so the terms 
 plaintiff and defendant, which formerly applied to parties in per- 
 sonal actions only, apply in all common law actions. 
 
 3 A fine operated to bar the privies and heirs of the tenant levy- 
 
FREEHOLD INTERESTS IN LAND : FEES TAIL. 49 
 
 the issue of the tenant in tail who levied it, creating there- 
 fore merely a base fee. A recovery, on the other hand, 
 barred not only the issue of the tenant in tail who suffered 
 it, but also all other interests following the estate tail, 
 creating therefore a fee simple. But neither a fine nor a 
 recovery barred the reversion when that was in the Grown 
 (as to fines, 32 Hen. VIII. c. 3B, s. 36 ; as to recoveries, 
 34 & 35 Hen. VIII. c. 20), where the estate tail was 
 granted by the Crown for services rendered to it. [Perkins 
 V. Sewell, I Bla. 654 ; RoUmon v. Giffard, (1 903) 1 Oh. 865.) 
 The legaKty of alienation by common recovery seems 
 to have been first judicially admitted in Taltarum's Case, 
 A.D. 1473 (M. 12 Ed. IV. pi. 25 f., 19a). In Mary Porting- 
 ton's Case (10 Eep. 35) it was held that a condition 
 of forfeiture {see infra, p. 89) of an estate tail upon the 
 tenant's doing or concurring in any proceeding to break 
 the entail was bad. Since then the liability to be barred 
 has always been considered to be an inseparable incident 
 of estates in fee tail. 
 
 Alienation, of Fees Tail by Deed. — The whole system of 
 fines and recoveries was swept away in 1833 by the Fines 
 and Eecoveries Act. (3 & 4 Will. IV. c. 74 ; Irish Act, 
 4 & 5 Will. IV. c. 92.) Under that statute a tenant in 
 tail, whether his estate is " in possession, remainder, con- 
 tingency or otherwise," can alienate it or any lesser estate'- 
 by a deed executed by the tenant in tail and enrolled 
 within six months of its execution (sect. 15 ; Irish Act, 
 sect. 12) in the Central Office of the Supreme Court. 
 (E. S. C. Ord. LXI. r. 9.) This disentailing assurance is 
 simply an ordinary deed of grant, except that it declares 
 
 ing it — i.e., all parties claiming through, him either by assignment 
 or descent. If he owned not merely the fee tail, but also the fee 
 simple in remainder on it, the whole ownership of the land was in 
 him, and nobody could claim any interest in it except as his privies 
 or heirs. (See Co. Litt. 121 a (note).) 
 ' He can also mortgage it by deed enrolled. (Sect. 21.) 
 
50 KINDS OF INTERESTS IN THINGS OWNED. 
 
 the grant to be made " discharged from all estates in tail 
 of the grantor at law or in equity." {See Key & El., 
 Vol. I., p. 632.) If the assurance fails to take effect, as, 
 for instance, by the grantee (where the grant is to his own 
 use) disclaiming, i.e., declining to accept the estate, the 
 assurance is void, and the fee tail remains unaffected by 
 it. {Peacock Y. Eastland, L. E. 10 Eq. 17.) And further, 
 the statute applies only to deeds actually executed, not 
 to contracts to execute deeds. Accordingly if a tenaijt in 
 tail contracts to disentail and sell his land, and dies before 
 the deed is executed, the contract becomes void. {Bankes 
 V. Small, 36 Ch. D. 716.) It would seem, however, that 
 if he executes the disentailing assurance before his death 
 it may be enrolled, and even the consent of the protector 
 may be given by re-executing the assurance, after the 
 death, provided it is within the six months from execution 
 allowed by the Act. {Whitmore- Searle v. Whitmore- 
 Searle, (1907) 2 Ch. 332.) 
 
 When the tenant in tail does not wish to sell the settled 
 land, but wants merely to change his estate in them from 
 a fee tail into a fee simple, he grants the lands to another 
 person and his heirs " discharged from all estates in tail of 
 the grantor in law or equity" to the use of the grantor and 
 his heirs. The effect of such a conveyance is {seep. 167), 
 that the grantee takes no estate in the lands granted, but 
 merely acts as a medium or " conduit pipe " to return 
 them to the grantor in fee simple. 
 
 Operation of Disentailing Deeds. — Two differences have 
 been pointed out between fines and recoveries. Both of 
 these are substantially embodied in the new law as to 
 disentailing deeds. Under it, a tenant m tail in posses- 
 sion, or a tenant in tail not in possession but entitled 
 to the reversion or remainder expectant on his fee tail 
 can, at his own will, bar both his issue and all succeed- 
 ing interests, and so turn his estate into a fee simple. 
 (Sect. 34.) On ^he other hand, a tenant in tail neither in 
 
FREEHOLD INTERESTS IN LAND : FEES TAIL. 51 
 
 possession nor entitled to the reversion on his fee tail, can, 
 at his own will, bar only his own issue, and so create a base 
 fee, i.e., a fee to the grantee and his heirs general, which 
 will determine as soon as the grantor and the heirs of his 
 body fail. If he desires to turn his estate into a fee simple, 
 he must obtain the consent of the " protector of the settle- 
 ment." (Sects. 40, 42.) The office of protector of the 
 settlement may be vested in any number of persons not 
 exceeding three appointed to be protectors by the instru- 
 ment creating the estate tail. If two or more persons are 
 so appointed, then on the death of one the office survives 
 to the other or others. {Bell v. Roltbi/, L. E. 15 Eq. 179.) 
 If no protector be appointed by the instrument, then the 
 office belongs to the owner of the first estate of freehold in 
 possession in the land under the same settlement as the 
 fee tail, provided that the owner is not merely a tenant 
 holding at a rent, or a trustee or a tenant in dower, or is 
 not expressly excluded by the grantor. (Sect. 22.) ^ In 
 the last case, if no protector is appointed, and in all cases 
 if the protector is convicted of treason or felony,^ or cannot 
 be ascertained, the Court of Chancery is protector ; or if 
 the protector is a lunatic, the Court in Lunacy acts in his 
 stead. (Sect. 3--i.) If a protector or protectors are ap- 
 pointed, but die or disclaim the office, the owner of the 
 first freehold in possession becomes protector. (Sect. 32.) 
 The office of jDrotector is personal, and therefore it con- 
 tinues even though the protector has alienated the life 
 estate which made him protector. (Sect. 22.) 
 
 ^ When the legal estate is held in trust, the cestui que trust of the 
 first equitable freehold is protector. {In re Dudson's Contract, 8 
 Oh. D. 628.) Now a married woman is entitled to be protector 
 (iSIarriedWomen'sPropertj'Act, 1907, s. 3). But the heir taking the 
 first freehold by descent is not the protector, even where he is en- 
 titled to the rents and profits of the settled land. [Iii, re Hughes 
 and London & Noith Western Railway, (1906) 2 Ch, 6+2.) 
 
 - Where the tenant in tail is a convicted felon he, and not his 
 administrator, under the Forfeiture Act, 1870, is entitled to bar 
 the entail. {In re (Jaskell and Walter's Contract, (1906) 2 Ch. 1.) 
 
 b2 
 
62 KINDS OF INTERESTS IN THINGS OWNED. 
 
 As we have seen, a tenant in tail who alienates without 
 observing the requirements of the statute, as, for instance, 
 if he does not enrol the disentailing assurance within six 
 months of its execution (sect. 41), and a tenant in tail who 
 alienates even observing such requirements, but without 
 the consent of the protector, where the consent of the 
 protector is made necessary to bar the remainder, conveys 
 only a base fee in the settled lands. This base fee, how- 
 ever, wiU, where the deed was not enrolled, become a fee 
 simple, if the grantee of it is or becomes the owner of the 
 reversion in fee simple immediately following tlie base fee, 
 and, where the consent was not given, the base fee can 
 subsequently be enlarged into a fee simple by the original 
 tenant in tail with the consent of the protector (sects. 35 
 and 39), or, if the tenant in tail be bankrupt, by the judge 
 in bankruptcy with similar consent if there be any pro- 
 tector. {See Bankruptcy Act, 1883, s. 56 (5).) And by 
 the Eeal Property Limitation Act, 1874, s. H, when a 
 person is in possession of a base fee for twelve years after 
 the original tenant in tail might have barred the remain- 
 ders without the consent of anyone, the base fee is to 
 become a fee simple. 
 
 Finally, the provisions by which a tenant in tail was 
 prohibited from barring the reversion by fine or recovery 
 when the estate tail had been granted by the Crown for 
 services to it, and the reversion was in the Crown, apply 
 equally to barring by a deed under the Act. (Sect. 18.) 
 
 An Unbarrable Fee Tail. — When land is conveyed in 
 special tail on the death without issue of the party on 
 whose body the heirs were to be begotten, all possibility of 
 issue capable of inheriting the estate is gone.' The tenant 
 
 ' Ex. gr., limitations to A. and the heirs of his body Tdj' his wife 
 B. B. dies without having any childi-en by A. Obviously A. cannot 
 have issue capable of inheriting under the limitation. But nothing 
 except the death of the person on whose body the heirs were to be 
 begotten can create a tenancy in tail after possibility of issue. A 
 divorce, for instance, would, it seems, merely make a tenant in 
 
FREEHOLD INTERESTS IN LAND : FEES TAIL. 53 
 
 in tail then is called " tenant in tail after possibility of 
 issue extinct," or more shortly, "tenant in tail after 
 possibility," and such a tenant in tail is unable to bar the 
 entail.i (Fines and Eecoveries Act, 1833, s. 18.) He is 
 regarded for most purposes merely as a tenant for life, 
 save that he is not liable for waste. {See Williams v. 
 Williams, 15 Ves. 419, and^. 61, infra.) It would seem, 
 however, that when he commits waste by cutting down 
 timber, the property in the timber so out down is not in 
 him, but in the first person entitled to an estate of inheri- 
 tance in the land. (2 Bl. Com. 125.) And if he assigns 
 his estate his assignee is merely a tenant pur autre vie and 
 liable for waste. (Co. Litt. 28 a, infra, p. 58.) 
 
 Liability of Fees Tail for Debts. — During the life of the 
 owner estates in fee tail can be taken under a writ of elegit 
 for debts or damages for which judgment against him has 
 been recovered ; and if he becomes bankrupt, his trustee 
 in bankruptcy can bar the entail for the benefit of the 
 bankrupt's creditors. (Bankruptcy Act, 1883, s. 56, 
 sub-s. 5.) 
 
 On the death of the owner, however, the fee tail, unlike 
 a fee simple, is not assets by descent in the hands of the 
 heir of the body. Formerly, indeed, it was liable for none 
 of its former owner's debts, save such as were owing to the 
 Crown. (This liability arose under 33 Hen. VIII. c. 39, 
 s. 75.) Now, by Judgments Act, 1838, ss. 11, 13, 18, 
 and 19, it is also liable, both as against the heir of the 
 body and the remainderman, for all debts of the deceased 
 owner for which judgment, decree, order, or rule exists. 
 
 special tail an ordinary Life tenant. (2 Bl. 125; Co. Litt. 28 a.) 
 And tlie great age of either of the parties could not affect the 
 nature of the estate of the tenant in special tail, since the law fixes 
 no limit of age when a person — male or female — is presumed to be 
 incapable of having issue. 
 
 ' By 14 Eliz. c. 8, he could suffer a recovery without vouching 
 (as other life tenants had to do) the tenant in remainder. (2 Bl. 
 Com. 362.) 
 
54 KINDS OF INTERESTS IN THINGS OWNED. 
 
 provided such judgment debts have, during the life of the 
 debtor, been dealt with so as to make them actual charges 
 on the land under recent legislation. As to debts, how- 
 ever, which are neither Crown debts nor have been made 
 charges upon the land during the life of the tenant in 
 tail, the old rule prevails, that a fee tail, though during 
 the life of the owner an estate of inheritance, yet, on 
 his death, is regarded as a life estate with remainder to 
 the heir of his body. Accordingly, it is not liable for the 
 debts of the deceased owner in the hands of the heir of 
 the body. 
 
 Pees Tail not devisable. — Although a tenant in tail is 
 able during life to bar his own issue or even to turn his 
 estate into a fee simple, he can do neither of these by his 
 will. If at the time of his death the estate is still an 
 estate in tail, it will descend to the heir of his body 
 independent of any disposition of it made in his will. 
 Neither can he by his will charge it with the payment of 
 any particular debt or with his debts generally. His will, 
 in short, cannot in any way affect the right of the heir 
 of the body to the estate which, on his ancestor's death, 
 becomes vested in him immediately. 
 
 Tenant in Tail's Leasing Powers.— At common law, all 
 leases granted by a tenant in tail, for whatever term they 
 might be expressed to be, failed or became voidable on the 
 death of the tenant in tail. Powers of granting leases for 
 a limited number of years which would be good against 
 the tenant in tail's issue, and afterwards, as against both 
 his issue and the reversioner, were given by statute. 
 (32 Hen. VIII. o. 28 ; Fines and Eecoveries Act, 18;:!3, 
 s. 41.) And now all tenants in tail in possession (which 
 includes tenants after possibility) are, for the purposes of 
 the Acts, to be considered tenants for life within the 
 Settled Land Acts, 1882—1890 {see infra, p. 70), and to 
 
FREEHOLD INTERESTS IN LAND : FEES TAIL. 55 
 
 possess all the powers of leasing therein given to the 
 tenant for life. 
 
 Position of Tenant in Tail. — The position of the tenant 
 in tail may then be summed up thus : — 
 
 [a) During his life he cannot alienate the estate or bar 
 the entail, except by a certain formal proceeding 
 prescribed by the Fines and Eecoveries Act, 1833 : 
 
 {b) He cannot, by his will, devise his estate : 
 
 (c) During his life his estate is liable for his debts 
 (Judgments Act, 1838, ss. 11, 13, 18, 19) : 
 
 (c/) On his death his estate descends to the heir of his 
 body free from all his debts, save those due to 
 the Crown (33 Hen. VIII. c. 39, s. 76), and 
 those which have been made during his life 
 charges on the land {see supra, p. 54) : 
 
 (e) For purposes of sale, leasing, &c., he has all the 
 power of a life tenant under the Settled Land 
 Act, 1882, s. 58, sub-s. 1 (i). 
 
 Subject to the limitations hero indicated, the tenant in 
 tail in possession is practically complete owner of the land. 
 He can use the land as he likes without liability to anyone. 
 He can pull down any houses or other buildings upon it ; 
 he can cut any timber or ornamental trees growing on it ; 
 he can take any minerals in it — in short, he can commit 
 whatever icaste he chooses. 
 
56 KINDS OF INTERESTS IN THINGS OWNED. 
 
 (c.) Edates/or Life. 
 
 PAGE 
 
 Estates for Life 56 
 
 Origin of Life Estates 57 
 
 Kinds of Life Estates 58 
 
 Estates pur autre vie 58 
 
 PAGE 
 
 Incidents of Life Estates .... 61 
 
 "Waste 61. 
 
 Emblements 65 
 
 Eixtiu-es 66 
 
 Alienation 66 
 
 Leases and Estates for Life . . 66 
 
 Estates for Life. — The third and non-heritable kind of 
 freehold interests is, as we have seen, estates for life or 
 for lives. (For brevity we wiU speak of them throughout 
 as estates for life or life estates.) An estate for life is 
 simply an estate which is to continue until the death of 
 some person or some one of several persons. A condition 
 may be attached to it which may, in the result, determine 
 it before the death of the person in question. It is then 
 called "an estate for life determinable." (Co. Litt. 42 a.) 
 The event which is to determine it must be one which, at 
 the inception of the estate, was not certain to happen 
 within any given time. If it is an event which is sure 
 to happen at or before some fixed time, although, in the 
 result, it may not be before the death of the person for 
 whose life the estate is held, then the estate subject to it 
 is not an estate of freehold. Thus, a grant to a widow 
 during her widowhood is a good life estate. Though the 
 marriage of the widow will determine the estate before her 
 death, yet it is not certain that she will ever re-marry. 
 But a grant for a hundred years, if the grantee shall so 
 long live, is merely an estate for years liable to determine 
 on the death of the grantee. The event here— the elapse 
 of the hundred years — is certain to happen, and so a period 
 is fixed beyond which the estate cannot extend. This is 
 inconsistent with the nature of a freehold interest. It 
 may be improbable that the person for whose life the estate 
 is held may live a hundred years, but the law takes no 
 
FREEHOLD INTERESTS IN LAND : LIFE ESTATES. 57 
 
 account of probabilities or improbabilities in this connec- 
 tion. Besides, in law, no limit is fixed for the possible 
 duration of human life. {Of. Determinable fees, supra, 
 p. 37.) 
 
 Origin of Life Estates. — Estates for life may arise either 
 by direct limitation or by operation of law.^ Direct limita- 
 tion may be either express or implied, or in the case of 
 wills, by necessary implication. Thus, a limitation " to 
 A. for his life," "to B. for the life of A.," "to C. for the 
 joint lives of B. and A.," or " to D. for the life of C, B., 
 or A., whichever may last longest," is express. On the 
 other hand, a limitation in a deed — it is otherwise in 
 a will — " to A." without more is an implied limitation 
 to A. for his own life. And a limitation to "A. for 
 the term of life" — without mentioning whose life — is an 
 implied limitation to A. for his own life, provided the 
 grantor can grant such an estate (an estate for the life of 
 the grantee being esteemed the best kind of life estate) ;^ 
 but if the grantor cannot grant an estate for the grantee's 
 life, then it is an estate for the grantor's life if he can 
 grant that. The latter would be the case if the grantor 
 himself were only a life tenant. 
 
 Under wiUs — but not under deeds — a life estate may be 
 limited by necessary implication in this way. If an 
 ancestor by his will leaves a fee simple to his heir on the 
 death of some other person, it is held that he must have 
 intended to give that other person a life estate, since in no 
 other way can effect be given to the postponement of the 
 
 1 Blackstone calls those arising by direct limitation conventional, 
 and those arising by implication, legal estates. 
 
 2 The general rule as to grants is that the grant should be con- 
 strued most strongly against the grantor, save the grantor is the 
 King. (2 Bl. 12L) This rule, however, has never been applied to 
 grants of freehold where no estate is expressly limited, otherwise a 
 grant to A. sirnxjUcHer would carry all the estate the grantor was 
 entitled to convey. By sect. 28 of the Wills Act, 18.37 (see infra, 
 p. 287), such words in a will have now that operation. 
 
58 KINDS OP INTERESTS IN THINGS OWNED. 
 
 heir's enjoyment of the land. {Rex v. Inhabitants of 
 Bingstead, 9 B. & 0. 21«.)' 
 
 Life estates arising by operation of law are such estates 
 as estates by the curtesy {infra, p. 310), estates in dower 
 {infra, p. 311), and the life estate which descends to an 
 heir-at-law when by the will of his ancestor land in fee 
 simple is devised to some one from the death of the heir- 
 at-law or another, and the immediate freehold is undis- 
 posed of by the will, ex. gr., "to A. in fee simple from the 
 death of my eldest son, B."; here, if no gift is made of 
 the land during B.'s life, B. takes it as heir to the testator. 
 This is the converse of the gift by will of a life estate by 
 necessary implication. 
 
 Kinds of Life Estates. — Life estates are primarily divided 
 according as the life for which they are held is the life of 
 the grantee or the life of some one else. If they are held 
 for the life of the grantee they are ordinary life estates ; 
 if they are held for the life of some one else they are 
 estates pur autre vie. Sometimes an estate may belong in 
 a way to both classes. Thus, a grantee may hold an estate 
 for his own life and the life of another, or whichever may 
 last determine. Here, as long as both the grantee and the 
 other person live, the natm'e of the estate is indeterminate. 
 On the death of the grantee first it becomes an estate 
 p>ir autre vie. On the death of the other person first 
 the estate becomes an ordinary life estate. The person 
 for whose life an estate pur autre vie is held is called the 
 cestui que vie. 
 
 Estates pur autre vie. — Estates pur autre vie (which, as 
 we have seen, may be for the life of another person than 
 the owner, or for the joint lives of several other persons. 
 
 ' The same rule applies wlien the gift is of personalty to the 
 testator's next of kin on the death of a certain person. (.See In re 
 Springfield, Ghamberlain v. Springfield, (1894) 3 Oh. 603.) 
 
FREEHOLD INTERESTS IN LAND : LIFE ESTATES. 59 
 
 or for the life of the survivor of several other persons) arise 
 either hy express limitation, or by the alienation of his 
 life estate by an ordinary tenant for life, in which case the 
 new tenant holds for the life of the old one. They differ 
 from ordinary life estates chiefly in this, that they may 
 survive the tenant. This, as life estates are not hereditary, 
 and were not originally devisable, used to lead to a peculiar 
 state of things. Whether on the death of the tenant 
 before the re.^fm que vie the estate had an owner at all or 
 not depended on how the estate was limited. If it were 
 limited to the tenant and his heirs, the heir entered not as 
 heir {RipJei/ v. Waterworth, 7 Ves. 425), but as special 
 occupani, that is, as the person to whom the estate was 
 given after his ancestor. If it were limited to the tenant 
 simply, then it was regarded as res nullins, and the first 
 person who entered upon it after the deceased tenant's 
 death was entitled to hold it, or, if anyone was at the 
 owner's death in actual occupation of it, it vested in him 
 as general' occupant. (See lie Inmnn, Inman v. Ininan, 
 (1903) 1 Oh. 241.) In neither case was it liable for the 
 deceased tenant's debts. {Doe v. Luxton, 6 T. R. 289, at 
 p. 291.) To make it liable for the payment of his debts, 
 and at the same time to do away with any uncertainty as 
 to whom it should go to on the owner's decease, sect. 12 
 of the Statute of Frauds, 1677 (Irish Act, 7 Will. III. 
 c. 13), provided that every estate pur autre vie should be 
 subject to the deceased tenant's will ; and if it were 
 allowed to go to the heir as special occupant it should be 
 liable in his hands as if it were fee simple for the late 
 tenant's debts, and if the tenant died intestate as to it, and 
 there was no special occupant, it should go as assets to the 
 tenant's executors or administrators. A later statute (14 
 Greo. II. c. 20, s. 9) further enacted that executors or 
 administrators should apply ^Jwr autre vie estates coming 
 to them under the Statute of Frauds as if they were 
 personalty. {See Part IV.) These enactments are both 
 repealed and re-enacted by the Wills Act, 1837, ss. 2, 3, 
 
60 KINDS OF INTERESTS IN THINGS OWNED. 
 
 and 6, and extended to pur autre lie estates in copyholds, 
 and incorporeal hereditaments. 
 
 Estates pur autre rie may in a manner be entailed, that 
 is, they may be limited to the grantee and the heirs of his 
 body. When so limited, the heirs of the body will take 
 as special occupants in succession during the continuance 
 of the estate pur autre vie. This is called a quasi-entail. 
 It appears that these quasi-entails can be barred, save as 
 to quasi-remainders on them by will. [Dillon v. Dillon, 1 
 BaU. & B. 77.) A tenant in quasi-entail in possession 
 can, by ordinary deed without enrolment, bar both issue 
 and quasi-remainders, but if he be not in possession he 
 can bar the quasi-remaiuders only with the assent of the 
 tenant in possession. {Allen v. Allen, 2 Dr. & War. 307, 
 324, and 332.) 
 
 As the existence of an estate piir autre vie depends upon 
 the life of the cestui que vie, it is important to the person 
 entitled to the land on the determination of the Q&t&ie pur 
 autre vie, that he should be able to prevent any conceal- 
 ment of the death of the cestui que vie. To enable him to 
 do this it is provided by 6 Anne, c. 18, that once in every 
 year on affidavit by the person next entitled after an 
 estate pur autre vie that he has reason to believe the cestui 
 que vie is dead, and that his death is concealed, the 
 Chancellor shall order the production of the cestui que vie, 
 and if this order be not complied with the cestui que vie 
 will be taken as dead, and the person next entitled may 
 enter and take the profits of the land until the cestui que 
 vie be actually shown to be living. Moreover, any tenant 
 pur autre vie holding over after the determination of his 
 estate without the express consent of the person next 
 entitled, is declared to be a trespasser. (Sect. 5.) This 
 Act applies not merely to strict estates 2nir autre vie, but 
 to all interests determinable on death whether, strictly 
 speaking, estates ^«<;' autre vie or not. [In re Stevens, 31 
 Ch. D. 320 ; and In re Pople, 40 Oh. D. 589.) 
 
FREEHOLD INTERESTS IN LAND : LIFE ESTATES. 61 
 
 Incidents of Life Tenancy.— In practice the incidents of 
 life tenancies are usually regulated by the terms of the 
 iijstruiuents creating the estate. This being so, they vary 
 of course with the views of the grantors. But occasionally 
 the instrument creating a life tenancy is silent as to 
 incidents. In that case they are settled by the genei'al 
 law. Shortly, these legal incidents are liability for waste, 
 right to emblements, right to fixtures, and subjection to 
 alienation, voluntary and involuntary. 
 
 Waste. — -There are three kinds of waste recognized by 
 the law. The first is vohmtari/ or common law waste ; the 
 second is permissive or conventional waste ; the third is 
 equitable or unconscionable waste. 
 
 Voluntary waste arises when the life tenant uses the 
 land so as to alter its nature (as, for instance, by building 
 houses on agricultural land : Brooke v. Kavanagh, 23 L. R. 
 Ir. 97), or so as to make the land less valuable to the 
 person entitled to it on the determination of his life 
 estate (as, for instance, by pulling down houses already 
 on the land : Lord Castlemnine v. Lord Craven, 22 Vin. 
 Abr. 523, tit. Waste). I have called voluntary waste 
 common law waste because, when the instrument creating 
 the life estate is silent on the point, this kind of waste is 
 forbidden (and it is the only kind forbidden) by the 
 common law.^ 
 
 The chief acts which are held to be acts of voluntary 
 waste are : — 
 
 (a) Pulling down buildings on the land ( Vane v. Lord 
 Barnard, commonly called the Babj/ Castle Case, 
 
 ' It is, perhaps, scarcely accurate to call voluntary waste common 
 law waste so far as ordiiiary life estates are concerned, since the 
 common law imposed it only on life estates arising by operation of 
 law. {Supra, p. 58.) The tenant of a life estate arising by limita- 
 tion was not liable at common law for waste. He was made liable 
 bv the Statutes of Marlbridge (52 Hen. III. co. 1—21) and of 
 Gloucester (6 Edw. I. u. 5). {See Oo. Litt. 231 a.) 
 
62 KINDS OF INTERESTS IN THINGS OWNED. 
 
 2 Vern. 7;i8), or erecting new buildings on it 
 which will change the nature of the property, 
 ex. gr., building houses on agricultural land. 
 {Brooke v. Kamnagh, 23 L. R. Ir. 97.) 
 ib) Breaking up ancient meadow land, destroying 
 hedges, removing drains or otherwise altering 
 injuriously the character of the land. 
 (c) Opening mines and raising minerals on the land. 
 
 Mines open when the estate for life was 
 
 created may be worked without committing 
 
 waste, provided they are worked for the same 
 
 jDurposes only as those for which they previously 
 
 were worked. [Elias v. Snowdon Slate Quarries 
 
 Co., 4 App. Gas. 454 ; and see In re Chaytor, 
 
 (1900) 2 Ch. 804.) 
 
 {d) Cutting down timber growing on the land. 
 
 What is timber depends on the general law and on local 
 
 custom. By the general law oak, ash, and elm are 
 
 timber provided they are at least twenty years old, and 
 
 are not so old as to be rotten. By local custom other 
 
 trees besides — such as beech — may be made timber, and 
 
 at the same time the test as to when a tree becomes 
 
 timber may be varied. Thus, for example, an oak by 
 
 local custom may not be timber until it is twenty-four 
 
 years old, or until it has a girth of a given measurement. 
 
 Besides timber, a tenant for life cannot cut ornamental 
 
 trees which are not timber, stools of undergrowth, trees 
 
 planted to protect banks or timber trees under age, unless 
 
 for purposes of management. {Souywood v. Honywood, 
 
 L. R. 18 Eq. 306.) 
 
 This rule as to cutting timber is subject to two excep- 
 tions. In the first place a tenant for life is entitled to 
 estovers (from estoff'cr, io furnish : 2 Bl. Com. 35) — that is, 
 he is entitled to take so much of the timber growing on 
 the land as is necessary for the proper use and enjoyment 
 of the land. Estovers consist of housebote {which includes 
 firebote), haybote and ploughbote. (Co. Litt. 41 b, and 
 
FREEHOLD INTERESTS IN LAND : LIFE ESTATES. 63 
 
 •53 b.) In the second place, in the case of timber estates, 
 that is, land used merely for the purpose of growing 
 timber trees, tbe tenant for life may cut and sell for his 
 own benefit the yearly increase of the timber in a proper 
 and husbandlike manner without committing waste. 
 {DasfiwoodY. Magniac, (1891) 3 Ch. 306.) 
 
 Pennissire waste arises when the life tenant, being for- 
 bidden by the instrument conferring the life estate upon 
 Mm to do so, permits the buildings or other works upon 
 the land to get into a state of disrepair. It is called per- 
 missive because it is due, not to the act of the tenant but to 
 bis failure to act. I have called it conventional because it 
 is not imposed ujDon the tenant by the law ; it is imposed 
 upon him only by his acceptance of the estate subject to 
 the condition to keep the works on the land in repair. 
 {In re Cartiiright, 41 Oh. D. 532, discussing Woodhouse v. 
 Walker, 5 Q. B. D. 404 ; Barnes v. Doidiny, 44 L. T. 809; 
 In re Frernan, Dimond v. Newburn, (1898) 1 Oh. 28.) The 
 extent of the obligation to keep in repair depends on the 
 words of the instrument, but where these are general the 
 Court will not hold that any repairs of an unusual and 
 expensive character — such as the cleansing of an artificial 
 lake — come within them. (See Dashwood v. Magniac, 
 supra.) 
 
 Equitable waste arises when the life tenant is by the in- 
 strument conferring the life estate upon him not merely 
 made not liable for permissive waste but is expressly 
 declared not to be liable for voluntary waste, and he takes 
 advantage of this declaration to do acts destructive of the 
 property. It is called equitable waste because it was 
 regarded only in equity as waste : the common law held 
 that a tenant who by the instrument was made not liable — 
 or impeachable, as the term is — for waste could commit 
 what waste he liked. The Oourt of Chancery, while 
 recogniziDg his right to commit waste, would not permit 
 him to make an unconscientious use of such right. That 
 is why I have called equitable waste unconscionable waste. 
 
64 KINDS OF INTERESTS IN THINGS OWNED, 
 
 It would not permit him, for instance, to dismantle the 
 mansion house of the estate {Castle Raby Case, 2 Vern. 
 738), or cut timber planted for ornamental purposes {see 
 Weld BlundellY. Wolseley, (1903) 2 Oh. 664), save under 
 the supervision of the Court, or do any other act of spolia- 
 tion. {Baker v. Sebright, 13 Oh. D. 183 ; Garth v. Cotton, 
 1 W. & T. 750 ; and 1 Ves. 524, 546.) The Judicature 
 Act, 1873, s. 25, sub-s. 3, which fused the administration 
 of law and equity, expressly enacts that an estate for life, 
 without impeachment of waste, will give no legal right 
 to commit equitable waste. Of course, the instrument 
 creating the life estate may confer on the life tenant the 
 right to commit equitable waste, but an intention to confer 
 this right must clearly appear before the Court will 
 acknowledge it. 
 
 Under the Statute of Gloucester (6 Bdw. I. c. 5) the 
 commission of an act of voluntary waste was a cause of 
 forfeiture of the life tenant's estate. The old writ of 
 waste by which the forfeiture was enforced was, however, 
 abolished by Real Property Limitation Act, 1833, s. 36,. 
 and now the remedy for all kinds of waste is by way of 
 damages and injunction. The latter is the equitable and 
 the more effectual remedy, but, like other equitable 
 remedies, it is always in the discretion of the Court to 
 grant it. Sometimes it is refused when the act complained 
 of is nominally waste, but is really for the benefit of the 
 property — is what is called meliorating waste. {Doherty v. 
 Allman, 3 App. Cas. 709 ; Meux v. Cobley, (1892) 2 Oh. 
 253.) In such case the plaintiff is left to his legal remedy 
 in damages, and since he can prove no damage he is prac- 
 tically without remedy. But before the Court refuses to 
 restrain acts that are admittedly waste, it must be made 
 clear that they are altogether for the benefit of the inheri- 
 tance; if in some respects they may be for its benefit 
 while in others they are to its disadvantage, the Court will 
 restrain them. ( West Ham Central Charity Board v. East 
 London Waterworks Co., (1901) 1 Oh. 624.) 
 
FREEHOLD INTERESTS IN LAND : LIFE ESTATES. 65 
 
 Emblements. — By emblements are meant, shortly, the 
 year's crops — -fructuH industriales — and the right to emble- 
 ments is the right of the tenant pur autre vie, or, in the 
 case of an ordinary life tenancy, of the tenant's executors 
 or administrators, on the determination of the life estate 
 between seed time and harvest to have the current year's 
 crops. For the purpose of taking the crops, the tenant or 
 his representatives are entitled, at harvest time, to enter 
 upon the land. This right does not exist, as far as the 
 life tenant is concerned, when the estate is determined by 
 the tenant's own act : for example, when an estate to a 
 widow during her widowhood is ended by her re- 
 marriage. 
 
 The right belongs to the sub-tenants of the life tenant 
 in all cases, even in those where the life estate, on which 
 the sub-tenancies depend, is determined by the voluntary 
 act of the life tenant, (1 EoUe, Abr. 727.) It has been 
 enacted, however (Emblements Act, 1851, s. 1), that 
 tenants holding at a rack rent (which means at the full 
 value of the land) under a tenant for life or for any other 
 uncertain interest, instead of being entitled to emblements 
 shall continue to hold on the same terms to the end of the 
 current year of their tenancy. 
 
 Rents are now regarded as accruing from day to day, 
 and on the determination of a life estate between two rent 
 days, the rent for the current quarter, payable by sub- 
 tenants, is apportioned on that basis between the tenant 
 for life and his representatives, and the remainderman or 
 reversioner. (Apportionment Act, 1870, ss. 2 and 7.) 
 Formerly, in such a case no one could recover the rent for 
 the period between the last quarter day and the death of 
 the life tenant, as at common law none was due to the life 
 tenant or his representatives as the sub-tenancy determined 
 before quarter day — when the rent was payable — and none 
 was due to the reversioner as there was no tenancy under 
 him. This was first altered by 11 Geo. II. c. 19, s. 15, 
 which gave the executors or administrators of a deceased 
 
 s. F 
 
66 KINDS OF INTERESTS IN THINGS OWNED. 
 
 tenant for life a right to claim a proportionate part of the 
 rent where the life tenant died before quarter day. 
 
 Fixtures. — On the determination of a life estate, the life 
 tenant or his personal representatives are entitled to remove 
 from the estate all fixtures attached to the land by the life 
 tenant. What are fixtures will be considered in the chapter 
 dealing with tenancies for a time certain, in connection 
 with which questions in respect of them most frequently 
 arise. {See infra, p. 92.) 
 
 Alienation. — Estates for life, like tenancies for a time 
 certain, may be made by the instrument creating them 
 forfeitable on any attempt to aKenate them, but if there 
 is no such provision in that instrument they are by law 
 freely alienable by the owner during his life, and, as 
 we have seen, when they survive him, they are subject 
 to his will. Of course (independent of the Settled Land 
 Acts {see infra, p. 70) ), he can alienate only the interest 
 he owns, and the estate alienated will come to an end 
 in the hands of the vendee or purchaser precisely at 
 same time as it would have determined had the grantee 
 retained it. Formerly, if a tenant for life attempted to 
 transfer the fee by feoffment {see p. 241, infra), this was 
 held a tortious (or wrongful) conveyance, and was a ground 
 of forfeiture of the estate. The Real Property Act, 1845, 
 s. 4, provides that a feoffment made after 1st October, 
 1845, shall not have any tortious operation. 
 
 Not merely is an estate for life alienable at the will of 
 the owner, but it is also liable for his debts both during 
 his life and (as we have seen) when it survives him after 
 his death. {Sitpra, p. 59.) 
 
 Leases and Estates for Life. — The common law recognizes 
 no differences between estates for life where the tenant 
 holds the land for his own benefit, and estates, or more 
 strictly, leases for life, where the tenant holds the land at 
 
FREEHOLD INTERESTS IN LAND : SETTLEMENTS. 67 
 
 a rent which, usually is its full, and may be more than its 
 full value. Such a distinction, however, has long been 
 recognized by the legislature, and, in many statutes, rights 
 are conferred on the former class which are denied to the 
 latter. We saw one instance of that in the Fines and 
 [Recoveries Act, 1833, under which the office of protector 
 vests not in the first tenant holding a freehold interest, 
 but the first tenant holding a freehold interest for his own 
 benefit. The same distinction is observed in the Settled 
 Estates Act, 1877, and still more markedly in the Settled 
 Land Acts, 1882 — 18.90, which confer (see p. 74, infra) 
 great powers not merely of leasing, but of sale, exchange, 
 and management over the settled lands upon the beneficial 
 life tenant in possession. The lessee for life at a rent has 
 none of these powers. He can sell only his life interest, 
 and any lease he may grant determines upon the determi- 
 nation of his life estate. 
 
 As we shall see, the powers vested in the beneficial 
 tenant for life are to be exercised not for his own benefit 
 but for the benefit of the inheritance, thus differing from 
 the common law powers which he and the lessee at a rent 
 ■equally enjoy, and which they exercise for their own 
 exclusive advantage. 
 
 A. Settlements of Freeholds. 
 
 PAGE 
 
 Number of Estates in Same 
 
 Land 67 
 
 Settlements of Freeholds 68 
 
 Settled Land Acts, 1882-90 . . 70 
 
 Tenant for' Life under Acts . . 72 
 
 PAGE 
 
 Trustees under Acts 73 
 
 Powers given to Tenant for 
 
 Life 74 
 
 ConditionsofexeroisingPowers 76 
 
 Application of Capital Money 77 
 
 Number of Estates in Same Land. — Estates in fee simple, 
 estates in tail, and estates for life, are, then, the three 
 ireehold interests which can subsist in land. All three 
 
 f2 
 
68 KINDS OF INTERESTS IN THINGS OWNED. 
 
 can subsist in the same plot of land at the same time, 
 though, of course, only one can at one time be in possession, 
 that is, in actual enjoyment. Not only so, but any number 
 of estates in tail and for life can subsist at the same time 
 in the same land. Thus, A. may have a life estate in 
 Blackacre, B. may have a fee tail to follow A.'s life estate, 
 0. may have a fee tail to follow B.'s, and D. may have a 
 life estate to follow O.'s fee tail. Of course, all the 
 interests, whether life estates, fees tail, or fees simple that 
 follow any fee tail, are liable to be destroyed, or barred, by 
 the owner of that fee tail turning his estate into a fee 
 simple. 
 
 This brings us to the second point. With regard to 
 fees simple, three characteristics should be noted. In the 
 first place, though there may be anj^ number of life estates 
 and fees tail in the same parcel of land, there can at com- 
 mon law be only one estate in fee simple. In the second 
 place, though life estates and fees tail may or may not 
 subsist in any parcel of land, a fee simple estate must 
 subsist in every parcel in the kingdom not actually owned 
 by the Crown. In the third ijlace, where there are several 
 freehold estates in a parcel of land, the fee simple must 
 at common law come last.^ These three characteristics 
 arise out of the one already referred to, namely, that fee 
 simple practically constitutes, while no other interest or 
 number of interests can constitute, full ownership of land 
 at common law. 
 
 Settlements of Freeholds. — Where there are several fi-ee- 
 hold estates subsisting in the same land at the same time, 
 this is usually due to the land being in settlement, as it is 
 called. A settlement is defined in the Settled Land Act, 
 
 ^ As a matter of fact, in most settlements now a fee simple comes 
 first as well as last. The first fee simple is a determinable one 
 (see supra, p. 36), limited to the settlor by way of use to determine 
 on his marriage, and the last is the ultimate fee, also limited to the 
 settlor after the estates limited to the issue of the marriage. (See 
 Strahan's Convey, p. 144.) 
 
FEEEHOLD INTERESTS IN LAND : SETTLEMENTS. 69 
 
 1882 (sect. 2), as any instrument or number of instruments 
 under or by virtue of which any land or estate or interest 
 in land stands for the time being limited to or in trust for 
 any persons by way of succession. [See In re Pococh and 
 Prankerd's Contract, (189^) 1 Ch. 302.) 
 
 Settlements came into fashion nearly two centuries after 
 the practical repeal of the statute De Bonis, and their ob- 
 ject was much the same as that of the statute — to preserve 
 hereditary estates in the family of the grantee. There 
 was this difference, however, that while the statute pre- 
 served them in the grantee's family for the benefit of the 
 grantor and his heirs, settlements so preserved them for 
 the benefit of the grantee's family itself. Settlements 
 accomplished this by the device of preventing, as far as 
 possible, the inheritance in the land remaining for any 
 length of time in the hands of any person or persons 
 capable of alienating it. The modu/i operandi was as 
 follows : — The law did not permit interests in land to be 
 given beyond the existing generation and the coming one, 
 that is, beyond a living person and his unborn child. 
 [See infra, p. 149.) This, however, by an ingenious mani- 
 pulation, was made sufficient, practically, to keep the power 
 of alienation in continual abeyance. Thus, A. is the owner 
 of fee simple lands which he wishes to settle or tie up as 
 strictly as possible. On his marriage, he settles these lands 
 on himself for life with remainder in fee tail to the first- 
 bom son of the marriage. There are other uses usually 
 limited, as fees tail on death of the eldest son without 
 heirs of the body to the sepond and other sons in succes- 
 sion, and on failure of sons, cross-remainders among the 
 daughters, and powers are reserved to dower the widow 
 and raise portions for the yoimger children out of the land. 
 [See Strahan's Convey, p. 144.) These, however, do not 
 affect our point at present, and, for the sake of clearness, 
 we will omit further reference to them. The original 
 limitation, then, is to A. for life with remainder in fee 
 tail to the first son of the marriage. We will call this 
 
70 KINDS OF INTERESTS IN THINGS OWNED. 
 
 first son B. Now the effect of tlie limitation is that the 
 estate tail cannot be barred by any one until B. attains 
 twenty-one years of age, B. being till then an infant. 
 B., on and after attaining that age, can with A.'s con- 
 sent (A. being protector of the settlement) bar the 
 estates tail, but if A. refuses his consent, then during 
 A.'s life B. can create only a base fee. This base 
 fee, until B. marries and has children, is little better 
 than an estate for B.'s life in expectancy on A.'s life 
 estate — an estate so uncertain as to be practically unsale- 
 able. Meanwhile though entitled ultimately to the whole 
 property in the land, B. has no present income from it. 
 Accordingly, B. usually comes to an arrangement with A. 
 whereby B., in consideration of receiving a part of the 
 income of the property during A.'s life, consents to join 
 with A. in breaking the entail and resettling the fee simple 
 resulting. {See Strahan's Convey, p. 162.) The fee 
 simple is resettled as before — to B. for life subject to A.'s 
 prior life estate, with remainder in tail to B.'s first son, &c. 
 The effect of this is again to make the fee tail inalienable 
 until B. has a son of the age of twenty-one. On that 
 son's coming of age, the estate is again resettled in the 
 same way. By this means it is so managed that almost 
 as soon as alienation of the inheritance in the land is 
 possible, the power to alienate is taken away again by a 
 resettlement, which leaves to no living person more than a 
 life estate, or a life estate and a fee simple in reversion to a 
 contingent fee tail, which fee simple, as we have seen, is 
 liable to be barred as soon as the fee tail gets into the 
 hands of a person over twenty-one years of age. 
 
 Settled Land Acts, 1882— 1890.— The system of tying up 
 land was found to militate against its proper management 
 and development. To remedy this it became customary 
 to introduce provisions into the instrument of settlement 
 giving to the tenant for life or to the trustees of the 
 settlement, or to both jointly, large powers of leasing. 
 
FREEHOLD INTERESTS IN LAND : SETTLEMENTS. 71 
 
 exchange, and sale over the settled land. Owners, how- 
 ever, who were more anxious to preserve certain land in 
 their family than to improve it, refused to give these 
 powers, often with results disastrous to the community. 
 After various attempts on the part of the legislature to 
 mitigate these evils, of which the most important was the 
 Settled Estates Act, 1877, at last, in 1882, the SeHled 
 Land Act was passed. Put shortly, its effect is to give to 
 every life tenant under a settlement of freehold or lease- 
 hold land all the powers usually given in a generously 
 drawn settlement to the life tenant or the trustees, or both 
 jointly. {See In re Clitheroe, 28 Ch. D. 37^', at p. 389.) 
 That Act has since been amended by Acts passed in 1884, 
 1887, 1889, and 1890, and the general name for all this 
 legislation is the Settled Land Acts, 1882 — 1890. These 
 Acts extend to England and Ireland, but not to Scotland. 
 (Sect. 1, Act of 1882.) The Settled Estates Act, 1877, 
 is not expressly repealed by them, but it is practically 
 superseded.^ 
 
 Before considering these Acts in detail, it is well to note 
 three points with regard to the powers of sale and manage- 
 ment which they confer. In the first place these jDowers 
 are imported into every settlement, whether made before 
 or after the passing of the Act of 1882, and whether the 
 settlor wishes them to be imported or not. Any attempt 
 to exclude or restrict them, whether by a direction in the 
 settlement (sect. 51, Act of 1882) or by a contract entered 
 into by the life tenant not to exercise them (sect. 50, Act 
 of 1882), is expressly declared to be void.^ In the second 
 
 1 On one point the Settled Estates Act, 1877, is still useful. A 
 tenant in dower [see infra, p. 311) and a husband seised in fee in 
 right of his wife are not life tenants within the Settled Land Acts, 
 but by sect. 46 of the Settled Estates Act, 1877, they can make 
 leases of twenty-one years. 
 
 2 When, however, the settlement is made by way of trust for 
 sale the life tenant's powers can be exercised only with the consent 
 of the Court. (Sect. 7, Settled Land Act, 1884 ; and see Strahan's 
 Convey, p. 167.) 
 
72 KINDS OF INTERESTS IN THINGS OWNED. 
 
 place the powers given by the Acts are not in substitution 
 for powers expressly given in the settlement, but in addi- 
 tion to such express powers ; in other words, the tenant 
 can exercise not merely the statutory powers but also the 
 express powers if the latter are in any way more extensive 
 than the former. In the third place the exercise by the 
 life tenant of these powers has no effect on the trusts or 
 limitations of the settlement. The money or land procured 
 by their exercise is paid or conveyed to the trustees of the 
 settlement, and is held by them subject to the same trusts 
 and limitations as bound the original settled land. And 
 this is the case even when the person exercising the powers 
 is tenant in fee tail of the settled land. Such a tenant, as 
 we have seen, can bar the subsequent limitations by deed 
 enrolled under the Fines and Recoveries Act, 1833, but he 
 can do so in no other way. A sale by him under these 
 Acts has no effect whatever in barring the entail under 
 the settlement ; it merely transfers it from the land — 
 which the purchaser receives in fee simple — to the purchase- 
 money which, for the purposes of the settlement, the law 
 will regard as the land itself. The trustees of the settle- 
 ment cannot pay over the purchase-money to him until he 
 bars the entail affecting it by enrolled deed. 
 
 Tenant for Life under Acts. — The powers, as we have 
 seen, are primarily given to the tenant for life, and the 
 tenant for life for the purposes of the Acts is defined to be 
 the person beneficially entitled to the possession of the 
 settled land for his life. (Sect. 2 (5), Act 1882.) 
 (" Settled land " includes any estate or interest in land 
 which is the subject of a settlement. (Sect. 2 (3).) ) And 
 a tenant in tail (sect. 58, Act 1882), and an infant tenant 
 absolutely entitled (sect. 59, Act 1882), are to be con- 
 sidered tenants for life for the purposes of the Act, though 
 in the latter instance (as in all cases where the person who 
 would have the powers of a tenant for life if he were of 
 full age is an infant) the powers are to be exercised not by 
 
FREEHOLD INTERESTS IN LAND : SETTLEMENTS. 73 
 
 the infant but by the trustees of the settlement, or, if there 
 be no trustees, by any one approved of by the Court. 
 (Sect. 60, Act 1882.) 
 
 As to the words " person beneficially entitled to posses- 
 sion," that means a person entitled to the land or the 
 profits of the land {In re Pollock, Pollocli v. Pollock, (1906) 
 1 Oh. 146) as owner, in opposition to a person entitled in 
 consideration of rent or other payment. It does not mean 
 that the person must be entitled to the fall benefit result- 
 ing from the land. Thus it has been held that the fact 
 that the land was so heavily mortgaged that the life 
 tenant received no income, nor had any immediate 
 prospect of receiving any, did not prevent his being 
 beneficially entitled under the Acts. {In re Jones, 26 
 Ch. D. 736.) And the powers given are personal to the 
 tenant for life under the settlement. If he sells his life 
 estate the purchaser of it has not the powers of a life 
 tenant. Those powers remain in the original life tenant 
 after he has parted with all interest under the settlement, 
 and he may exercise them subject to this, that he shall not 
 do so in such a way as to defeat interests previously created 
 by himself. He cannot assign or release them. (Sect. 60, 
 Act of 1882 ; In re Munclij and Roper's Contract, (1899) 1 
 Ch. 276.) 
 
 Trustees within the Acts.- — The second class of persons 
 to whom important functions are delegated by the Acts are 
 the trustees of the settlement. These are : — 
 
 (1.) Trustees under the settlement with an immediate 
 power of sale, or with power to approve or consent to 
 sale of the settled land. (Sect. 2, sub-s. (8), Act 
 1882.) 
 
 (2.) In absence of these, then any persons declared in 
 the settlement to be trustees for the purposes of the 
 Acts. (Sect. 2, sub-s. (8), Act 1882.) 
 
 (3'.) In absence of these, trustees under the settlement 
 with power of or trust for sale, or with power to 
 
74 KINDS OF INTERESTS IN THINGS OWNED. 
 
 consent to sale, of other lands similarly settled. 
 
 (Sect. 16, Act 1890 ; and see In re Moore, Moore 
 
 V. Bigg, (1906) 1 Ch. 789.) 
 (4.) In absence of these, trustees under the settlement 
 
 with a future or contingent power of or trust for 
 
 sale, or power to consent to sale, of the settled 
 
 lands. (Sect. 16, Act 1890.) 
 (5.) In absence of all these. Court will appoint proper 
 
 persons to be trustees for purposes of the Acts. 
 
 (Sect. 38, Act 1882.) 
 
 Powers given to Tenant for Life by Acts. — The powers 
 given by the Acts to the tenant for life are numerous. The 
 most important are the following : — 
 
 (1.) To sell the settled land or any part of it, or any 
 easement, right, or privilege over it. (Sect. 3, 
 sub-s. (1), Act 1882.) The mansion-house and the 
 lands usually occupied therewith cannot be sold 
 without the consent of the trustees or an order of 
 the Court, unless where such house is usually occu- 
 pied as a farmhouse or where the site of the house 
 and the lands usually occupied therewith do not 
 together exceed twenty-five acres in extent. {See 
 Dowager Duchess of Sutherland y. Duke of Sutherland, 
 (1893) 3 Ch. 169.) (Sect. 10, sub-s. (2), Act 1890.) 
 Where the trustees' consent has in fact been given 
 it may not be formally expressed. {Cf-ilbey v. Rush, 
 (1906) 1 Ch. 11.) 
 
 (2.) To exchange the settled land, or any part thereof, 
 for other land, and take money for equality of 
 exchange. (Sect. 3, sub-s. (3), Act 1882.) There 
 are two limitations to this power : one as to mansion- 
 house as in sale (supra), and one prohibiting ex- 
 change of land in England for land out of England. 
 (Sect. 4, sub-s. (8), Act 1882.) 
 
 (3.) To concur in partition of settled land. (Sect. 3, 
 sub-s. (4), Act 1882.) 
 
FREEHOLD INTERESTS IN LAND : SETTLEMENTS. 76 
 
 (4.) To grant leases of the settled land, or of part 
 thereof, or of any easement, right, or privilege over 
 it, whether involving waste or not, building lease 
 not to exceed ninety-nine years, mining lease sixty 
 years, other lease twenty-one years in England, 
 thirty-five years in Ireland. (Sect. 6, Act 1882.) 
 Building or mining lease may, with consent of 
 Court, be extended even to lease in perpetuity 
 (sect. 10, Act 1882), and may, without such con- 
 sent, contain an option to purchase within ten years 
 at a fixed price. (Sect. 2, Act 1889.) 
 
 (5.) To accept, with or without consideration, surrender 
 of lease of settled land. (Sect. 13, Act 1882.) 
 
 (6.) To appropriate land for streets, gardens, open 
 spaces, &e., in connection with building leases. 
 (Sect. 16, Act 1882.) 
 
 (7.) To make, vary, or rescind contracts to carry into effect 
 the purposes of the Acts. (Sect. 31, Act 1882.) 
 
 (8.) With consent of trustees or order of Court to cut 
 and sell timber ripe and fit for cutting, though the 
 tenant for life be impeachable for waste. (Sect. 35, 
 Act 1882.) 
 
 (9.) "With order of Court to sell quasi-heirlooms, that is, 
 personal chattels settled to accompany the inherit- 
 ance. (Sect. 37, Act 1882.) 
 
 (10.) To raise money by mortgage of settled land for 
 the purpose (a) of paying off incumbrances (sect. 11, 
 Act 1890) ; (b) for paying for equality of exchange 
 or partition (sect. 18, Act 1882) ; (c) for paying 
 costs ordered by Court to be paid out of settled 
 lands. (Sect. 47, Act 1882.) 
 
 Conditions of exercising Powers under Acts.^ — These 
 powers must he exercised subject to the following con- 
 ditions : — 
 
 (1.) Where a consent of the trustees or an order of the 
 Court is necessary, such consent or order must be 
 
76 KINDS OF INTERESTS IN THINGS OWNED. 
 
 obtained before the power is exercised. [In re 
 Ames, (1893) 2 Cb. 479.) 
 
 (2.) In any case, notice in writing of intention to exer- 
 cise a particular power, or a general notice to 
 exercise powers under the Acts, must be given to 
 two of the trustees and their solicitors at least a 
 month before exercising the power. (Sect. 45, Act 
 1882.) But a person dealing with a tenant for life 
 in good faith need not inquire whether such notice 
 has been given, and the transaction will be good 
 even if as a fact no notice has been given (Mogridge 
 V. Claiyp, (1892) 3 Oh. 382) ; and in the case of 
 leases for periods not excepding twenty- one years, 
 no notice to trustees is necessary, and such leases 
 may be made without there being any trustees 
 existing. (Sect. 7, Act 1890.) 
 
 (•i) A sale or exchange must be at the best price {In re 
 Chauiier's Settled Estates, (1892) 2 Ch. 192) or for 
 the best . consideration that can reasonably be 
 obtained. (Sect. 4, Act 1«82.) If a bribe be 
 given by the purchaser to the tenant for life to 
 induce him to carry out the transaction, the Court 
 will hold the transaction void. ( Chandler v. Bradley, 
 (1897) 1 Ch. 315.) 
 
 (4.) In all cases the tenant for life is to have regard to 
 the interests of all parties entitled under the settle- 
 ment, and is to be deemed to be in the position of, 
 and to have the liabilities of, a trustee for such 
 parties. (Sect. 53, Act 1882 ; Dowager Duchess of 
 Sutherland Y. Duke of Sutherland, (1893) 3 Ch. 169 ; 
 In re Iluiit's Settled Estates, (1905) 2 Ch. 418.) 
 
 (5.) The trustees have an absolute discretion in their 
 exercise of their functions under the Acts, and, pro- 
 vided they act honestly, they are not liable for 
 anything resulting from their action or inaction. 
 (Sects. 41 and 42, Act L^82 ; In re Egmonfs 
 {Earl) Settled Estates, (1906) 2 Ch. 151.) 
 
FREEHOLD INTERESTS IN LAND : SETTLEMENTS. 77 
 
 Application of Capital Money under Acts. — The money 
 arising through the exercise of the powers given by these 
 Acts is called capital money, and the Acts make provision 
 for the manner in which it shall be dealt vs^ith. Generally 
 speaking, it is either to be held by the trustees of the 
 settlement on the trusts of the settlement, or employed by 
 the tenant for life with their consent for the benefit of 
 the whole settled estate. These ends are secured by the 
 following particular provisions : — 
 
 (1.) Capital money may be paid to the trustees or into 
 Court at the option of the tenant for life. (Sect. 22, 
 Act 1882.) 
 (2.) In either case, if invested, the investment is to be 
 made in authorized securities, the tenant for life 
 having the first right to select among these ; which 
 right, if honestly exercised {nee In re Hunt, Bulteel 
 V. Laivdeshayne, (1905) 2 Ch. 418), cannot be inter- 
 fered with by the trustees or the Court {In re Lord 
 Coleridge's Settlement, (1895) 2 Ch. 704) ; and the 
 income arising from the investment is to be applied 
 in pursuance of the trusts of the settlement. 
 (Sect. 22, sub-s. (2), Act 1882.) 
 (3.) If not invested in authorized securities, it may be 
 appKed — 
 
 (a) In discharge of incumbrances upon the settled 
 land remaining unsold (sect. 21 (ii.), Act 
 1882); or 
 (6) In improvements on the settled land as 
 authorized by the Acts, according to a scheme 
 approved by the trustees or the Court 
 (sect. 21 (iii.), and sects. 25, 26, Act 1882, 
 and Act 1887) ; or 
 (c) In purchase of other lands to be held on the 
 trusts of the settlement. (Sect. 21 (vii.). 
 Act 1882.) 
 
78 KINDS OF INTERESTS IN THINGS OWNED. 
 
 Sub-section 2. 
 chattel i^'te rests. 
 
 PAGE 
 
 Origin of Leaseholds 78 
 
 Differences between Lease- 
 hold and ^Freehold Owner- 
 ship 79 
 
 (a.) Tenancy for Time Certain 82 Interests 102 
 
 PAOE 
 
 (4.) Tenancy at Will 101 
 
 (c.) Tenancy on Sufferance . . 102 
 B. Settlements of Chattel 
 
 Origin of Leaseholds. — Originally, as we have seen, the 
 only interests in land recognized by the law were freehold 
 interests. The tenant of a parcel of land either had in 
 him a freehold interest, or he had no legal interest at all, 
 but merely held at will of the legal owner. Tenants at 
 will were at first serfs, to whom their lord gave permission 
 to farm part of his land during his pleasure. Grradually, 
 as the serf became a freeman, villein tenure approximated 
 to free tenure, and his tenancy at will (now called a copy- 
 hold) became a legal and heritable estate. [Supra, p. 27.) 
 
 The law, in transforming the nature of villein tenure, 
 did not alter the interests which could be held in land. 
 In copyholds, as in freeholds, the only interests recognized 
 by the law were estates for life and estates of inheritance. 
 Any agreement between an owner of land and another to 
 grant to the latter an interest different from these — such 
 as a tenancy for a term of years — was regarded as a mere 
 personal contract between the parties. It conveyed no 
 legal interest in the land to the grantee. He could not 
 obtain possession of the land by an action against the 
 grantor, and if he was given possession of it in pm-suance 
 of the contract, the grantor might at any moment defeat 
 his tenancy by suffering a recovery. ^ 
 
 1 The reason why a recovery defeated a term of years was this : 
 A recoverj' was in theory an action to recover the laud from the 
 tenant in fee in possession, on the plea that the latter had not and 
 the recoveror had a good title to the fee. The effect, then, of a 
 
CHATTEL INTERESTS IN LAND. 79 
 
 It is not necessary for our purposes to trace the steps by 
 which contracts for the hiring of land for a certain time, 
 from being mere personal agreements between the parties, 
 came to convey an indefeasible interest in the land itself. 
 It is sufficient to say that since 21 Hen. VIII. o. 15, any 
 such contract, when followed by entry on the land affected 
 by it, conveys to the hirer a legal estate according to the 
 terms of the agreement. Until an entry has taken place, 
 the lessee is still regarded as having no legal estate in the 
 land. {Wallis v. Sand.,, (1893) 2 Oh. 75.) He has only 
 what is called an interesse fermini. {See infra, p. 246). 
 Where, however, a lease for a time certain is created by 
 bargain and sale {i.e., when the agreement is to buy the 
 use of the land for the term and the purchase-money is 
 paid to the lessor), then the grantee is, by force of the 
 Statute of Uses, 1536, deemed in law to be in possession 
 from the bargain and sale. {See infra, p. 243.) 
 
 Differences between Freehold and Leasehold Ownership. 
 
 — Tenancies for a time certain in land, being interests 
 unknown to the ancient common law, were treated by it 
 with scant favour. Even after they had been made by 
 statute indefeasible, it refused to regard them as estates in 
 the land. The only ownership in land it would recognize 
 was freehold ownership. And such is the ease still. The 
 freeholder, however small his interest, has, for the time 
 being, the full property in the land. The tenant for a 
 time certain, however large his interest, never has : he is 
 regarded merely as having a right by virtue of his con- 
 tract with the freeholder to use the land, which, however, 
 remains the property, and the sole property, of the free- 
 holder. He is not considered even as having the full legal 
 
 judgment in favour of the recoveror was teolinically to establish 
 this plea. Since this was so, all the leases of the land made by 
 the previous tenant in fee were bad as against the recoveror. (Co. 
 Litt. 46 a.) 
 
80 KINDS OF INTERESTS IN THINGS OWNED. 
 
 possession of the land : he merely oooupies as the bailiff of 
 the freeholder, who, in the eye of the law, is really in 
 possession. This is usually described by saying that every 
 freeholder has the seisin of the land, while no leasehold 
 owner ever has it. 
 
 This insistence of the law, that tenancies for a time 
 certain in land are not parts of the ownership, but merely 
 contractual rights as to the user of the land, absurd 
 enough as it may seem in view of the circumstance that 
 such tenancies now often are practically equivalent to and 
 even may in fact be turned into fees simple [see infra, 
 p. 86), has had nevertheless very important consequences. 
 In the iirst place, to it, no doubt, is largely due the fact 
 that tenancies for a time certain were and are regarded as 
 personalty, and were therefore, even before a remedy was 
 given for judgment debts as against freehold interests, 
 liable to be taken as goods by the sheriff, and went, 
 and go still, on the death of their owner, to his executors 
 or administrators. {See infra, p. 274). This is the reason 
 why they are called chattel interests in the land or chattels 
 real. In the second place, the right of ownership, whether 
 of land or goods, is a continuous right. {See Strahan's 
 Convey, p. I'-lS.) If the owner of goods casts them 
 away with the intention of abandoning his property 
 in them, his ownership ceases for ever ; if it is to be 
 revived he must re-possess himself of them before anyone 
 else takes them, and then he will hold by a new title 
 • — that of occupation of res nulUus. {See infra, p. 228.) 
 So in land, where the law does not permit ownership to 
 be abandoned {see supra, p. 20), any limitation of the 
 ownership which leaves or may leave the seisin, as it is 
 called, or the real or freehold ownership, without an owner 
 even for a day, always was and is bad ah initio. In other 
 words, ownership of any kind must be continuous, not 
 intermittent. But there is no such rule as to contractual 
 rights. Accordingly, a lease of lands may be good only 
 at intervals. Thus, if A. is tenant for life, B. tenant 
 
CHATTEL INTERESTS IN LAND. 81 
 
 for life after A., and 0. tenant for life after B., and A. 
 and C. grant a lease at common law to D. for a hundred 
 years, this lease is good against A. and 0., but not 
 against B. If on A.'s death B. be living, D.'s lease is 
 dormant during B.'s life. On B.'s death, if 0. be then 
 living, it revives and continues a good lease during C.'s 
 life. (Go. Litt. 46 a.) And again, a lease of land 
 during three bank holidays, namely, Whit Monday, Easter 
 Monday and the first Monday in August, is but one lease, 
 and it is a good lease, though for three days, each sepa- 
 rated by long intervals from the others. {Smallwoocl v. 
 Sheppards, (1895) 2 Q. B. 627.) This latter form of 
 limitation, which is good, it seems, also in the case of ease- 
 ments newly created {see Rex v. Kemp, Ld. Eaym. 49 ; and 
 Strahan's Conv. p. 128, n.), is called a desultory Kniitation. 
 {Earl of Bedford's Case, 7 Eep. 7.) In the third place, a 
 leasehold interest being a contractual right as against the 
 freeholder, it ceases to be enforceable when the freehold 
 becomes vested in its owner. Not merely so ; being only 
 a contractual right as to the land, it is regarded as less of 
 an interest therein than the smallest share of the actual 
 ownership — of the freehold. Accordingly, the largest lease- 
 hold is in law less than the smallest freehold, and when 
 a leashold and freehold are vested in the same person 
 the leasehold, on a principle applicable to all interests in 
 land, is merged or absorbed in the freehold. {8ee infra, 
 p. 88.) In the fourth place, the view that tenancies for 
 a time certain are merely contractual rights takes them 
 out of the rule against perpetuities {see infra, p. 183) as far 
 as a condition to determine them is concerned. As we 
 have seen, it is illegal to attach to a fee simple a condition 
 that may determine it unless such condition must happen, 
 if it ever happens, within a life or lives in being and 
 twenty-one years. No such principle applies to personal 
 contracts {Borland's Trustee v. Steel Brothers, Limited, 
 (1901) 1 Oh. 279), and accordingly no such principle 
 applies to leases, at any rate when the condition is one 
 s. G 
 
82 KINDS OF INTERESTS IN THINGS OWNED. 
 
 which, as the phrase is, " runs with the land " [MuUer v. 
 Trafford, (1901) 1 Ch. at p. 61) ; that is, a condition or 
 covenant relating to the land or anything upon it. (^) {See 
 infra, p. 249.) 
 
 There are other chattel interests in land besides tenancies 
 for a time certain. These, however, are of little import- 
 ance. The only one of these created by contract, like a 
 tenancy for a time certain, is that very precarious interest, 
 a tenancy at will. {See infra, p. 101.) Then there is that 
 even more shadowy interest called a tenancy by sufferance. 
 (See. infra, p. 102.) But besides these, there are interests 
 for uncertain periods of more substance, though not as a 
 rule of very frequent occurrence at the present day. These 
 are: — (1) Tenancies by elegit, i.e., the tenancy which a 
 judgment creditor has who has obtained the possession of 
 his debtor's land in execution of his judgment. His 
 tenancy continues until the debt is satisfied. (2) Tenancies 
 by executors when the owner of freehold land leaves it, by 
 his will, to his executors for the payment of his debts. 
 (3) Tenancies by statutes merchant and statutes staple. 
 (Co. Litt. 42 a; 2 Bl. Com. 161.) All these, save the 
 first, are now obsolete. 
 
 (a) Tenancy for a Time Certain. 
 
 PAGE 
 
 Tenancies for a Time Certain . 82 
 
 Kinds of such Tenancies .... 83 
 
 General Lettings 83 
 
 Terms 84 
 
 PAGE 
 
 Conditional Terms 85 
 
 Absolute Terms 86 
 
 Determination of Tenancies 
 
 for Time Certain 87 
 
 Incidents of Leaseholds 92 
 
 Tenancies for a Time Certain. — By a tenancy for a time 
 certain is meant a tenancy for a period either ascertained 
 
 ' Thougli a condition to determine a lease is not subject to the 
 rule against perpetuities, an option given in a lease to purchase 
 tlie freehold is. {Worthing Corporation v. Heather, (1907) '' Ch 
 532.) 
 
CHATTEL INTERESTS IN LAND : LEASEHOLDS. 83 
 
 or capable of being ascertained before the commencement 
 or during the continuance of the tenancy. The reverse of 
 a freehold interest in this respect, there must be some 
 definite period beyond which it cannot extend. Just as 
 the maximum duration of a freehold interest must be 
 fixed by the fall of events, so the maximum of duration 
 of a tenancy for a time certain must be fixed by the parties 
 to its creation. Thus, a lease for a week, or for a month, 
 or for a year, or for any number of years from any given 
 date, is a good lease, because, from the first, the period for 
 which each is to last is fixed and certain. So is a lease 
 for as many years as A. shall name, for here the period 
 for which the lease is to continue is capable of being made 
 certain by A. stating the number of years. (Co. Litt. 
 45 b.) But a lease for as many years as A. shall live is, 
 from its inception, void, because the period for which it is 
 to continue can only be ascertained on A.'s death, when 
 the lease itself shall be determined. (2 Bl. Com. 143.) 
 Practically a lease for as many years as A. shall live can 
 be given by limiting to A. a lease for a hundred years 
 should A. live so long. (Co. Litt. 45 b.) Here the 
 maximum duration of the lease is certain, though by a 
 collateral condition it may be determined before it would 
 expire by e£B.uxion of time. 
 
 Kinds of such Tenancies. — Tenancies for a time certain 
 are roughly of two kinds. The first may be called a 
 general letting. It is a letting for some definite period, 
 but it is not intended to come to an end then, bu.t is to 
 continue until it is duly determined by notice from land- 
 lord or tenant. The other may be called a specific letting, 
 or a lease for a term. It is a lease for a definite period 
 and no more : it comes to an end on the expiration of that 
 period without notice of any kind. 
 
 General Letting. — A general letting may be by the day, 
 week, month or year. The notice required to determine 
 
 g2 
 
84 KINDS OF INTERESTS IN THINGS OWNED. 
 
 it is often settled expressly at the time of letting, but if it 
 is not so settled it is determined by custom. The custom- 
 ary notice requu-ed on a letting by the week or month is 
 a week or month. Where the letting is by the year — a 
 tenancy from year to year,, as it is usually called — the 
 eustomarj' notice in ordinary lettings is a half-year's notice 
 expiring with the current year of the tenancy. When the 
 tenancy commenced on one of the usual quarter days, the 
 notice should be given on or before the quarter day ending 
 the first half of the tenancy year ; but if the tenancy begins 
 on any other day, a notice of 183 days expiring with the 
 last day of the tenancy year should be given. (Morgan v. 
 Bavies, 3 C. P. D. 360.) In the case of lettings of agricul- 
 tural land, the proper notice is a year's notice expiring in 
 the same way. (Agricultural Holdings Act, 1883, s. 33 ; 
 in Ireland, Notice to Quit Act, 187H.) In both cases 
 where the tenant enters between the usual quarter days 
 and there is no express agreement as to when the tenancy 
 is to commence, it must be taken to commence either on 
 the day of entry or on the following quarter day, and the 
 notice given, to be valid, must expire on one of those days. 
 [Sidehotham v. Holland, (1895) 1 Q. B. 378 ; Simmons v. 
 Undencood, 76 L. T. 777.) 
 
 For the peculiar incidents attached by recent legislation 
 to lettings from year to year of agricultural land in 
 Ireland, the reader is referred to Appendix B. 
 
 Terms. — -Specific lettings for a definite period are in 
 practice seldom met with except for periods of not less than 
 several years : they are therefore usually called terms of 
 years. But there is no reason in principle why there 
 should not be a definite letting for a month or a quarter — 
 indeed the letting of rooms in the poorer kind of lodging- 
 houses is always a definite letting for one night — and when 
 the letting is a definite one the same principle applies, 
 however long or short the term. 
 
 But, as said, the specific lettings a lawyer meets with in 
 
CHATTEL INTERESTS IN LAND: LEASEHOLDS. 85 
 
 actual practice are usually terms of years. These terms 
 may be divided into two kinds. The first might be called 
 conditional terms, since they are terms created for the pur- 
 pose of securing some collateral object and conditioned to 
 determine when that object is secured. The second might 
 be called absolute terms, since they are terms created to 
 continue to their natural expiration and are intended to 
 give the lessee security of occupation till then. 
 
 Conditional Terms. — -What I have called conditional 
 terms are most frequently met with now in marriage 
 settlements for the purpose ■ of securing the payment of 
 money charged upon the settled land, as, for example, 
 portions for the younger children of the marriage. ^ The 
 land is settled on the first tenant for his life, then a term 
 is granted to trustees to raise portions, and subject to this 
 the land is settled on the eldest son of the first tenant.^ 
 {8ee Strahan's Convey, pp. 146 and 171.) 
 
 In terms created for the purpose of securing or raising 
 money, there usually is, as has been said, a provision to 
 determine, or, as it is called, a proviso for cesser, i.e., a 
 proviso that they shall determine when their object is 
 accomplished. Sometimes, however, the term was kept 
 ahve after its purpose was fulfilled, and then it was 
 assigned to attend the inheritance, i.e., it was assigned to 
 trustees to hold in trust for the benefit of the owner of the 
 
 1 Formerly it was very usual to create mortgages of fees simple 
 by means of" a grant of a long lease to the mortgagee without rent 
 reserved. The object was that on the death of the mortgagee the 
 right to the debt and the right to reconvey the land might both 
 vest in his executors or administrators. This is no longer neces- 
 sary. (Con. Act, 1881, s. 30 ; and Strahan's Convey, p. 223.) 
 
 2 Terms for raising money also arise sometimes under the 
 powers given by sect. 44 of the Conveyancing Act, 1881, to persons 
 entitled to annual sums charged upon land. The exercise of 
 these powers has now the effect of creating terms in substitution 
 of the old terms vested in trustees of settlements to secure pin- 
 money, jointures and annuities generally. {See Strahan's Convey. 
 p. 156.) 
 
86 KINDS OF INTERESTS IN THINGS OWNED. 
 
 inheritance in the land (if it had been assigned to the 
 owner himself, it would have merged in his freehold). 
 {See p. Sri, infra.) The object of this was, that in case of 
 sale of the inheritance, the term, if assigned to trustees for 
 the purchaser, would protect him against any rentcharge 
 created by any owner of the inheritance since the term 
 was granted. Now, however, by the Satisfied Terms 
 Act, 1845, for the future all satisfied terms, that is, 
 terms the purposes of which have been fulfilled, are, 
 immediately on becoming attendant on the inheritance, to 
 determine ; but as to such as become attendant on the 
 inheritance before the 1st January, 1846, they, while deter- 
 mining on 31st December, 1845, are still to afford every 
 person the same protection as if they still existed, and 
 were held in trust to attend the inheritance. [Anderson v. 
 Pignet, L. R. 8 Ch. Ap. 180.) 
 
 It is evident that a long term, say of 1,000 years, 
 subject to a nominal rent or to no rent at all, is, for all 
 practical purposes, equivalent to the fee simple of the land. 
 A power to convert such a long term into fee simple is 
 given by sect. 65 of the Conveyancing Act, 1881, as 
 amended by sect. 11 of the Conveyancing Act, 1882. 
 By these statutes, a term originally of not less than 300 
 years, 200 of which are still unexpired, may, by a deed 
 executed by the lessee and declaring to that efi^ect, be 
 enlarged into a fee simple provided (1) that the term 
 was not subject to any rent of money value ; (2) nor to 
 any trust or right of redemption on behalf of the free- 
 holder ; (3) nor to any right of re-entry on behalf of the 
 freeholder for condition broken ; (4) and provided where 
 it was created out of a superior term — was, in other words, 
 a sub-lease— the superior term was itself capable of being- 
 enlarged. All trusts, limitations, &c. affecting the term 
 are to apply to the fee simple. [See Strahan's Convey 
 p. 177.) 
 
 Absolute Terms. — Conditional terms are undoubtedly 
 
CHATTEL INTERESTS IN LAND : LEASEHOLDS. 87 
 
 chattels real, and must be ranked with other leaseholds, yet 
 it is scarcely accurate to call them " lettings." At any 
 rate, most of the points we are now to discuss with regard 
 to tenancies for a time certain or leases seldom arise except 
 in relation to what we have called absolute terms and 
 general lettings. 
 
 In principle there is no difference between absolute 
 terms and general lettings save as to the point of notice. 
 In practice, however, there are usually many marked differ- 
 ences. This arises from the fact that usually general 
 lettings are made very informally — not infrequently with- 
 out writing — while leases for terms are drawn up in formal 
 deeds which set out elaborately all the conditions and 
 covenants upon and subject to which the leases are granted. 
 With this reservation what we shall now say will apply 
 equally to leases and general lettings. 
 
 Determination of Lease.— Though a lease usually deter- 
 mines by efHuxion of time, yet it may come to an end 
 before the period fixed for its determination. This pre- 
 mature determination arises m.ost commonly from the 
 surrender of the lease, its merger, or its forfeiture. 
 
 (a) Surrender is either surrender in fact or surrender in 
 law. Surrender in fact means simply the giving up by 
 the lessee of his interest under the lease to his lessor. 
 Surrender in law takes place when the tenant consents to 
 any act inconsistent with the continuance of his tenancy. 
 Accepting another lease dating from the present time is 
 such an act, and so is consenting to another lease being 
 granted to a third person, but only if followed by the 
 tenant giving up possession of the land to the new lessee. 
 {NickeUs v. Atherstone, lOQ. B. 944; Wallu v. Hands, 
 (1893) 2 Oh. 75.) And from a recent decision it would 
 appear that the consent of the tenant to a lease to a 
 stranger may, if such lease is to commence from a future 
 date, operate as a surrender in law even though the tenant 
 does not give up possession. In such a case the Court, it 
 
88 KINDS OF INTERESTS IN THINGS OWNED. 
 
 would seem, will regard the transaction as an immediate 
 surrender of the lease by the tenant, and the acceptance by 
 him of a new lease to determine at the date when the lease 
 to the stranger is to commence; sed qucere. [Fenner v. 
 Blake, (1900) 1 Q. B. 427.) 
 
 By the Eeal Property Act, 1845, s. 3, a suiTender in 
 writing of any interest in land which is not a copyhold 
 interest, and which could not be created by parol, is to be 
 void except it is made by deed. [See Strahan's Convey. 
 p. 40.) In Ireland, surrenders may be made by writing 
 not under seal. (Landlord and Tenant Act, 1860, s. 7.) 
 
 (b) Merger arises where a greater and a less estate in 
 the same parcel of land meet in one and the same person 
 without any intermediate estate. (2 Bl. Com. 177.) In 
 such case the lesser estate is merged or absorbed into the 
 larger. Thus, if A. have a lease for years, and any free- 
 hold interest in possession comes to him, the lease for 
 years is absorbed or merged in the freehold. And if A.'s 
 leasehold is granted out of a longer leasehold, and A. buys 
 the longer leasehold, that is, the reversion on his interest, 
 the latter is merged in the former ; but there is no merger 
 where the lessee in possession obtains another lease to 
 commence immediately on the determination of that in 
 possession. [Lewin v. Baker, (l!)05) 1 Ch. 46.) And 
 similarly, if a life tenant obtains the reversion in fee on 
 his life estate, the latter becomes merged in the former. 
 An exception occurs in the case of fees tail. The same 
 person can have at the same time a fee tail and the imme- 
 diate reversion in fee simple on it in the same parcel of 
 land without merger resulting, this being due to the opera- 
 tion of the statute De Donia, the provisions of which would 
 be rendered ineffectual in such oases if merger resulted. 
 {2 Eep. 61 ; 8 Eep. 74.) 
 
 At law merger takes place only when both interests are 
 held in the same right. {In re Radclife, Radcliffe v. Bewes, 
 (1892) 1 Ch. 227.) Thus, if A. holds -a larger interest 
 in Blackacre in his own right, and a smaller interest 
 
CHATTEL INTERESTS IN LAND : LEASEHOLDS. 89 
 
 in Blaokacre in right of Ms wife, there is no merger. 
 But as the common law took no cognizance of trusts 
 affecting land, it was not necessary that both interests 
 should be held in beneficial ownership. Thus, if A. held 
 one interest in Blaokacre absolutely, and another interest 
 in Blaokacre as trustee for another, this did not prevent 
 merger at law. In equity, however, there was no merger 
 in such cases. Nor was there a merger in equity where it 
 was plainly shown that no merger was intended by the 
 parties (Lewin on Trusts, p. (J20, 7th ed.) ; or where it 
 was against the interests of the parties that there should 
 be merger. {Ingle v. Vaiiglmn-Jfnlnnn, (1900) 2 Ch. 368.) 
 And now by the Judicature Act, 1873, s. 25, sub-s. 4, 
 there is to be no merger henceforth at law where there is 
 none in equity. {Snow v. Boycott, (1892) 3 Ch. 110.) 
 
 (c) Forfeiture. — The payment of the rent reserved and 
 the observance of the covenants and conditions contained 
 in the lease are usually secured by a proviso for re-entry 
 by the lessor on the land leased on the non-payment of the 
 rent, or on breach of condition or covenant by the lessee. 
 On such re-entry the lease ceases or determines. 
 
 Formerly, a proviso of re-entry was destroyed by (a) the 
 lessor actually waiving the right — that is, expressly refus- 
 ing to take advantage of the right of re-entry wlien the 
 chance occurred ; (b) his giving his licence to do an act 
 which, without his licf^nce, would caiise a forfeiture ; (c) the 
 severance of the reversion to which the right of re-entry 
 belonged — that is, the dividing between two or more of the 
 estate in reversion which would come into possession by the 
 exercise of the right. By Lord St. Leonards' Acts, 1859, 
 ss. 1 — 3, and 1860, s. 6, and by the Conveyancing Act, 
 1881, s. 12, the law is altered. Now, a waiver is to 
 apply only to the particular breach actually waived, the 
 licence is to apply only to the particular act actually 
 licensed, and on the reversion being severed the conditions 
 of all kinds are to be apportioned between the persons 
 among whom the reversion is divided, and the right of 
 
90 KINDS OF INTERESTS IN THINGS OWNED. 
 
 re-entry is to attach to each part of the reversion. 
 (Sect. 12, Conveyancing Act, 1881.) This latter provision 
 only applies, however, to leases made after the commence- 
 ment of the Act (1st January, 1882). As to leases made 
 hef ore that, conditions of re-entry for non-payment of rent, 
 or other reservation, alone survive the severance of the re- 
 version. (Lord St. Leonards' Act, 1859, s. -1) 
 
 Relief against forfeiture can now in most cases be 
 obtained. Where the forfeiture is for non-payment of 
 rent, the tenant can stop the proceedings for ejectment hy 
 paying the rent due with costs before the judgment, or 
 can obtain relief by paying these within six months after 
 judgment. (Common Law Procedure Act, 1»52, ss. 210, 
 212.) There is no forfeiture for non-payment of rent 
 except demand is expressly made for it on the last day on 
 which it is payable, unless the lease expressly provides 
 otherwise, or except half a year's rent is due, and there is 
 no sufficient distress on the premises. {Id. sect. 210.) 
 
 Where the forfeiture is not for non-payment of rent, 
 sect. 14 of the Conveyancing Act, 1881, applies. Under 
 it a lessor, before bringing an action of ejectment for 
 breach of condition, must serve the lessee with a notice 
 requiring, where remedy is possible, that the lessee shall 
 remedy the breach, and claiming compensation in any 
 case. After serving such notice {In re Rif/gs, Ex parte 
 Lovell, (1901) 2 K. B. 16), if the lessee does not remedy 
 the breach or pay satisfactory compensation, the lessor can 
 bring an action of ejectment, and at the hearing of it the 
 Court may grant relief from forfeiture to the lessee or 
 refuse it, and if it grant it, it can do so on terms as to 
 costs, compensation, &c. If, however, the lessee does not 
 apply for relief at the hearing, none can subsequently be 
 given. {Rogers v. Rice, (1892) 2 Ch. 170.) Sect. 14 
 does not apply to covenants against assigning and sub- 
 letting, or to covenants for the inspection of mines, or the 
 books or weighing machines of mines. No relief can be 
 granted on breach of any of these covenants. It has even 
 
CHATTEL INTERESTS IN LAND : LEASEHOLDS. 91 
 
 been held in the case of a covenant against assigning 
 without the lessor's consent, such consent not to be unrea- 
 sonably withheld, that the Court could not relieve against 
 a forfeiture incurred through the lessee assigning without 
 asking the lessor's leave, even where if he had asked for it 
 the lessor would not reasonably have refused it. {Barroto 
 V. IsaacK, (1891) 1 Q,. B. 417.) Nor does it apply to con- 
 ditions forfeiting the lease on the lessee becoming bank- 
 rupt, or having his interest taken in execution. (Sub- 
 sect. 6.) Forfeiture under a condition forfeiting the lease 
 in case of bankruptcy or execution is now provided for by 
 sect. 2 of the Conveyancing Act, 1892. That section pro- 
 vides (sub-sect. 2) that relief against forfeiture in such 
 cases may be given under sect, l-l until a year after the 
 execution or bankruptcy, and if the lessee's interest be 
 meanwhile sold relief may be henceforth given at any 
 time. This enactment, however, does not apply (sub- 
 sect. ;5) to leases of agricultural or pastoral land, of mines 
 or minerals, of public-houses or beer-houses, of furnished 
 dwelling-houses, or of any property where personal quali- 
 fication on the part of the lessee is important. In all these 
 cases there is no relief. But by sect. 4 of the same Act, 
 in all cases of forfeiture under a covenant or condition in a 
 lease, the Court may, on the application of a sub-lessee, 
 order the forfeited lease to vest in such sub-lessee for the 
 term of his sub-lease on such conditions as it thinks proper. 
 (Wardens of Cholmeley School, Highgafe v. Seirell, (1894) 
 2 Q. B. 906.) Thus the sub-lessee may obtain relief 
 denied to the lessee ; but the Court will exercise its juris- 
 diction with great caution, and only give such relief where 
 the sub-lessee was blameless in the matter. {Imray v. 
 Oakshette, (1897) 2 Q. B. 218.) And he can obtain relief 
 where the head lease was forfeited not for breach of a 
 covenant within sect. 14, but for breach of the covenant to 
 pay the rent. {Gray v. Bonsall, (1904) 1 K. B. 601.) 
 
 Finally by sect. 3 of the Conveyancing Act, 1892, 
 where there is a condition in a lease against the lessee 
 
92 KINDS OF INTERESTS IN THINGS OWNED, 
 
 assigning without the lessor's consent, the lessor is pro- 
 hibited from exactinji; a fine or sum of money in the 
 nature of a fine for giving his license to assign. As to 
 what will constitute a breach of this section, see and cf. 
 Jenhn^i v. Price, (1907) 2 Ch. 229, and Andrew v. Bridg- 
 man, (1907) 1 K B. 494. 
 
 Incidents of Leaseholds. — The incidents of leaseholds, 
 like those of tenancies for life, are usually regulated by 
 the instrument creating the estate. When they are not, 
 they are much the same as those which the common law 
 a,ttaches to a life estate. 
 
 (a) Waste. — The lessee is liable for voluntary but not 
 for permissive waste, unless made liable for the latter by 
 the terms of the lease. (Davies v. Baviea, 38 Ch. D. 499, 
 cannot now be considered tobe good law : see J« re Cartwright, 
 41 Ch. L). 532; and cf. Re Arbitration between Parry and 
 Hopld,,, (1900) 1 Ch. 160.) 
 
 In Ireland, certain acts on the part of a tenant are 
 made statutory waste by sects. 26 — 31 of the Landlord 
 and Tenant Act, 1860, and by sect. 35 of the same Act 
 justices of the peace are empowered to issue precepts to 
 restrain the commission of these acts. 
 
 Like the tenant for life, a lessee is entitled to estovers. 
 
 (b) Emhlentents. — -Where the lessee held under a lessor 
 who possessed an uncertain interest — such as an estate for 
 life — and his lease was determinable on the determination 
 of such interest, the lessee was, on such determination 
 between seed time and harvest, entitled to emblements. 
 [See supra, p. 65.) Now where he is tenant at a rack 
 rent, he is to hold on the land till the end of the current 
 year of his tenancy on the same terms as regards the new 
 landlord as those under which he held from the deceased 
 landlord. At the end of the cui-rent year the tenancy 
 expires without notice on either side. (Emblements Act, 
 1851, s. 1.) 
 
 (c) Fixtures. — By fixtures were originally meant chattels 
 
CHATTEL INTERESTS IN LAND : LEASEHOLDS. 93 
 
 which were so annexed to the soil as to become in the eye 
 of the law part of it, and which were on that ground not 
 removable by the tenant on the expiration of his tenancy. 
 Now the word means the precise reverse. It means 
 " articles which were originally personal chattels, and 
 which, although they have been annexed to the freehold 
 by a temporary occupier, are nevertheless removable and 
 of course saleable at the will of the person who has 
 annexed them." [HaUen v. Runder, 1 C. M. & E. 266.) 
 The mode in which this transformation of meaning 
 occuiTed is well stated by Martin, B., in Elliott v. BisJwp 
 (10 Ex. 496, at p. 507). " The old rule," he says, " laid 
 down in the old books is that, if the tenant or the occupier 
 of a house or land annex anything to the freehold, neither 
 he nor his representatives can afterwards take it away, the 
 maxim being, ' Quicquid plantatur solo, solo uedit.' {Min- 
 shull V. Lloyd, 2 M. & W. 450.) But as society progressed, 
 and tenants for lives or for terms of years of houses, for 
 the more convenient or luxurious occupation of them, or 
 for the purposes of trade, affixed valuable and expensive 
 articles to the freehold, the injustice of denying the tenant 
 the right to remove them at his pleasure, and deeming 
 such things practically forfeited to the owner of the fee 
 simple by the mere annexation, became apparent to all ; 
 and there long ago sprang up a right, sanctioned and 
 supported both by Courts of law and equity, in the tem- 
 porary owner or occupier of real property or his repre- 
 sentative, to disannex and remove certain articles, although 
 annexed by him to the freehold." ^ 
 
 The history of the relaxation of the stringent old rule 
 
 ' "Annexed to tlie soil" and "annexed to the freehold" are 
 often used loosely as equivalent phrases; but they are in effect 
 very different. A fixture nowadays is a chattel annexed to the 
 soil, but not to the freehold. By " annexed to the freehold " is 
 meant annexed to the fee or ownership of the soil; that is, so 
 annexed to the soil as to be regarded in law as part of the soil. 
 
94 KINDS OF INTERESTS IN THINGS OWNED. 
 
 that whatever was annexed to the soil became parcel of 
 the soil, and subject accordingly to the same ownership as 
 the soil, is an interesting illustration of the social in- 
 fluences which have done so much to mould the law of 
 England into its present shape. England was always a 
 commercial nation in which the merchant class held great 
 power. Accordingly, as might be expected, the first 
 relaxation of the rule was with regard to trade fixtures. 
 {Lawton V. Latotoii, 3 Atk. 13.) Now, when a house is let 
 expressly for the purpose of carrying on a trade, all trade 
 machinery afiixed by the tenant remains his property, 
 unless it is expressly covenanted in the lease that it 
 shall belong to the landlord. {Per Vaughan Williams, 
 L. J., in Lambourn v. McLclIaii, (1903) 2 Ch. 268, at 
 p. 227.) 
 
 Then during the eighteenth and nineteenth centuries the 
 middle classes acquu'ed much wealth, and with it the power 
 which wealth brings. The middle classes were those who 
 most frequently became the lessees of houses, and who 
 spent money in adding fixtures to such houses, for, in the 
 words of Martin, B. (supra), " the more convenient or 
 luxurious occupation of them," and naturally it was with 
 respect to them that the next relaxation of the rule took 
 place. [Grymes v. Boweren, 6 Bing. 437.) 
 
 But it is to be observed that Martin, B., says nothing 
 about fixtures for agricultural purposes being saved to the 
 tenant. In fact, the Courts never interfered for their 
 protection {Ehces v. Matoe, 3 East, 38), though a priori 
 such fixtures seem to be precisely in the same position as 
 trade fixtures. The reason of the difference, of course, 
 consisted in the fact that landowners until very recently 
 had the predominant influence, social and political. It 
 was not until recent democratic times that the tenant of 
 agricultural lands had the old rule relaxed in his favour, 
 and when it was relaxed it was relaxed not by the Courts 
 but by the Legislature, and to this day the " trade fix- 
 
CHATTEL INTERESTS IN LAND : LEASEHOLDS. 95 
 
 tures " of a farmer, as they might be called, are not in the 
 technical sense fixtures at all.^ 
 
 The law with regard to agricultural fixtures now depends 
 primarily on sect. 34 of the Agricultural Holdings Act, 
 1883 (46 & 47 Vict. c. 61), as amended by sect. 4 of the 
 Agricultural Holdings Act, 1900 (63 & 64 Vict. c. 50). 
 By that section as so amended, when any tenant of 
 agricultural land or of a market garden (Market Grardeners' 
 Compensation Act, 1895 (58 & 69 Vict. o. 27) ) afiixes to 
 his land, or at the commencement of his tenancy pays, in 
 pursuance of the Act, the outgoing tenant for, any engine, 
 machinery, fencing, or other fixture, not so affixed in pur- 
 suance of an obligation to the landlord, he may, on the 
 determination of his tenancy, or within a reasonable time 
 afterwards, remove it, provided (1) he first pays all rent and 
 performs all other his obligations to his landlord, (2) gives 
 his landlord a calendar month's notice of his intention to 
 remove it, (3) and his landlord does not elect to take it at 
 its value to an incoming tenant. {See Meats v. Cullender, 
 (1901) 2 Oh. 3^8 ; and In re Hulse, Beattie v. Hulse, (1905) 
 1 Ch. 106.) 
 
 The mere fact that chattels have been attached to the 
 land for purposes of trade, or for the more convenient enjoy- 
 ment of the land, is not in itself enough to make them 
 merely fixtures, and therefore removable by the tenant. 
 They may be so attached as to annex them to the freehold, 
 no matter for what purpose they were attached. Thus it 
 has never been contended that a store-house erected in 
 connection with a shop or manufactory is a fixture. As 
 regards, however, machinery and such like, it seems that 
 they will be held fixtures unless they are so annexed to 
 the buildings on the land as to be irremovable except by the 
 destruction of such buildings. [Laivton v. Lawton, supra.) 
 And as to chattels affixed for the convenient enjoyment of 
 
 ' In the same way in Ireland agricultural fixtures are protected 
 as improvements ; see Appendix B. 
 
96 KINDS OF INTERESTS IN THINGS OWNED. 
 
 a house or land, the quantum of the annexation seemed 
 formerly to be the sole test of whether or not they could 
 be regarded as fixtures, with the result that very delicate 
 and even ridiculous distinctions sometimes decided the 
 question. {8ee Viscount Hill v. Bulloch, (1897) 2 Ch. 482.) 
 It has been established now that this is not the sole test, 
 though it is a consideration which must have much weight 
 in deciding the point. The real test is whether the chattel, 
 judging from the mode in which it is affixed, and all the 
 surrounding circumstances, was affixed by the tenant to be 
 enjoyed as a chattel, or to constitute an improvement of 
 the house or land of which he was tenant. [Leigh v. 
 Taylor, (1902) A. C. 157.) 
 
 (d) Rent. — Another incident of a leasehold is rent. 
 The amount of rent to be paid is practically always fixed 
 by the agreement creating the tenancy. Where, however, 
 it is not so fixed, the lessee is liable for the use and occu- 
 pation of the land leased, unless it is clear from the words 
 of the lease or otherwise that it was intended that no rent 
 should be paid. When the rent is expressly reserved, it 
 need not be a money payment. It may be any form of 
 profit except a profit which is part of the land, or, as it 
 is called, npivjit d prendre. That is regarded in law, not 
 as a rent, but as an exception of a part of the land from 
 the lease. (2 Bl. Com. 41.) In practice, however, rents 
 reserved now are always fixed monej^ payments to be made 
 at certain periods. 
 
 The chief remedies for non-payment of rent are by 
 action to enforce payment, distress, and forfeiture of lease. 
 With the last of these remedies we have akeady dealt. 
 (See supra,}}. 89.) As to the first, an action lies on the con- 
 tract of leasing for any rent reserved in the lease, whether 
 or not there is a covenant to pay such rent. A covenant 
 to pay is, however, usually inserted in leases, because it 
 renders the lessee liable personally for the rent through- 
 out the existence of the term, even if he parts with, or, 
 as the technical expression is, assigns, the term to another 
 
CHATTEL iNTKRESTS IN LAND : LEASEHOLDS. 97. 
 
 peison. Whether there is or is not a covenant to pay rent, 
 the assignee of the term is liable as assignee to pay any 
 rent reserved in the lease only so long as he is in possession 
 of the land. As soon as he assigns the lease his liability 
 ends. This arises frona the fact that he has made no con- 
 tract to pay the rent ; he is merely liable to pay it by 
 what is called privity of estate, and as soon as the privity 
 of estate comes to an end, so does his liability for further 
 rent.i 
 
 Distress is a remedy given by the common law for a 
 rent service — that is, a rent arising out of the relation of 
 landlord and tenant. At common law it could be levied 
 only during the continuance of the tenancy out of which 
 the rent arose ; but it was enacted by 8 Anne, c 14, ss. 6, 7, 
 that in case of any tenant who continues in possession of 
 the land after his tenancy has determined, distress may 
 be made on the land at any time within six months after 
 such determination. 
 
 The remedy by distress consists at common law of a 
 right to enter on the land and seize any goods thereon, 
 whether belonging to the tenant or not. Originally the 
 lessor could not sell the goods seized ; he took them as a 
 "revenge" (as the Statutes of Marlbridge, 1267 (52 
 Hen. III. cc. 1 — 21), call it) for his unpaid rent, and was 
 entitled merely to impound them until such rent was paid. 
 It was not until 1689 that he acquired the right to sell goods 
 taken in distress to satisfy the rent. (2 W. & M. sess. 1^ 
 0. 5.) And originally, too, the landlord could himself, or 
 by his agents, enter and make distress. Now, however, by 
 statutes commencing with the Statute of Marlbridge (si<pm) 
 distresses can be levied only by sworn officers of the Court 
 [see Perring 8f Co. v. Emerson, (1906) 1 K. B. 1) ; 
 
 ' In assignments of leases there is always inserted a covenant 
 by the assignee to pay the rent. This makes him liable to the 
 assignor [i.e., the original lessee) to do so, but does not impose on 
 Mm any liability to the lessor unless the latter is a party to the 
 assignment. 
 
 S. H 
 
98 KINDS OF INTERESTS IN THINGS OWNED. 
 
 though no legal proceedings are even now necessary to 
 obtain issue of a warrant to distrain. In this respect the 
 remedy by distress is a survival from the times when a 
 man enforced his legal rights not through the medium of 
 the Courts but by his own action. 
 
 As has been said, at common law all goods on the land 
 leased are liable to be taken by distress, whether they 
 belong to the tenant or not. {See Tadman v. Henman, 
 (1893) 2Q..B. 168.) There are, however, certain exceptions. 
 These are, in the first place, goods [a) annexed to the land, 
 (6) delivered by their owner to the tenant to be dealt with 
 in the way of his trade, (c) in actual use at the time of the 
 distress, {d) and such things as cannot be restored to the 
 owner in the condition they were at the time of seizure, 
 such as butcher's meat. These things are said to be 
 absolutely privileged, while beasts of the plough and 
 instruments of husbandry, and the instruments of a man's 
 trade or profession are conditionally privileged — that is, 
 they cannot be seized and sold if there are other distrain- 
 able goods sufficient to satisfy the rent. [Simjison v. 
 Hartopp, 1 Sm. Lead. Gas.) 
 
 These common law rules as to what may be distrained 
 have been considerably altered by statute. In the first 
 place, growing crops, though annexed to the soil, are 
 since \~'-i7 distrainable (11 Geo. II. c. 19, s. 8) ; as are 
 since 1689 sheaves of corn, though they cannot be restored 
 in the condition in which they were when seized. (2 "W. 
 & M. sess. 1, c. 5.) Again, under the Lodgers' Goods 
 Protection Act, 1871, a lodger's goods or furniture cannot 
 be seized and sold for arrears of rent due from the landlord 
 of the lodger to the superior landlord, provided the lodger 
 pays over to the latter any aiTears of rent he may owe to 
 his landlord. (See Lowe v. JDorling ^ Son, (1906) 2 K. B. 
 772.) And by the Agricultural Holdings Act, 1883, s. 45, 
 in the case of agricultural land, a similar privilege is con- 
 ferred on the owner of " live stock taken in by the tenant 
 of a holding to be fed at a fair price," such owner being 
 
CHATTEL INTERESTS IN LAND : LEASEHOLDS. 99 
 
 entitled to redeem such stock if distrained by payment of 
 price, if any, due to the tenant for feeding the stock. And 
 by sect. 4 of the Law of Distress Amendment Act, 1888, 
 goods protected from seizure in execution under the 
 County Courts Act, 1846, s. 96, are to be exempt from 
 distress, save where the interest of the tenant has expired, 
 and demand for possession has been made and distress has 
 been levied not earlier than seven days after such demand. 
 Under the County Courts Act, 1846, s. 96. which is repealed 
 and re-enacted by sect. 147 of the County Courts Act, 
 1888, the wearing apparel and bedding of a judgment 
 debtor and his family, and the tools and implements of 
 his trade to the value of five pounds, are protected from 
 seizure in execution. (See Lnvell v. Itichings, (1906) 1 
 K. B. 480.) The Law of Distress Amendment Act, 
 1888, extends this exemption to distresses for rent, and 
 further regulates the mode in which, and the persons by 
 whom, distresses shall be levied. It does not apply to 
 Ireland or Scotland. The Law of Distress Amendment 
 Act, 1895, s. 4, gives a remedy for unlawful distress in a 
 court of summary jurisdictif)n — that is, before magistrates 
 in petty sessions. As to the difference between a distress 
 and an execution, see. Jones v. Biermtein (1889), 1 Q,. B. 
 470; (IHOO) i Q. B. 100. 
 
 In Ireland, an exemption from distress of the lessee's 
 apparel, bedding, and tools to the same extent as that 
 created by the Law of Distress Amendment Act, 1 888, is 
 made by the Law of Distress and Small Debts (Ireland) 
 Act, 1888, s. 5, and by that Act, as amended by the Law 
 of Distress and Small Debts (Ireland) Act, 1893, special 
 provision is made as to distresses for rent where the amount 
 due and distrained for does not exceed 20/. 
 
 (e) Alienation. — By the general law, leaseholds may be 
 freely alienated or assigned, provided there is no condition 
 in the lease making them forfeitable on their assignment 
 without the consent of the lessor. Such a condition, how- 
 ever, may be, and frequently is, inserted in leases, and 
 
 h2 
 
100 KINDS OF INTERESTS IN THINGS OWNED. 
 
 when inserted, being a covenant or condition that runs 
 with the land, it may be attached to the leasehold during 
 its whole duration, however long that may be. (See 
 supra, p. 81.) Such a condition, however, does not apply 
 to an alienation by operation of law, as in the case of the 
 death or bankruptcy of the lessee. A condition making 
 leaseholds forfeitable on bankruptcy is, however, perfectly 
 legal, and indeed a common condition in leases. 
 
 It is to be noted in this connection that a condition of 
 forfeiture on alienation is not technically a restraint on 
 alienation. A restraint on alienation, strictly speaking, is 
 a condition which does not divest the owner of his property 
 on his attempting to alienate it, but which prevents him 
 from alienating it while permitting him to continue to 
 enjoy it after he has tried to dispose of it. Such a condition 
 cannot be annexed to any interest in English land except 
 by Act of Parliament, or except in the case of ownership 
 by married women. {See infra, p. 371.) 
 
 Leaseholds are also freely alienable by will upon the 
 lessee's death. When freeholds are disposed of by will, 
 they are said to be devised, and the disposition is called a 
 devise. When leaseholds and goods are disposed of by 
 will, they are said to be bequeathed, and the disposition 
 is called a bequest or legacy. Leaseholds, like other 
 personalty, vest, on the death of the lessee, if he has left a 
 will, in his executors in trust for the purposes of his will, 
 or, if he has died intestate, in his administrators appointed 
 by the Court of Probate, who hold them in trust, after 
 payment of his debts, for his next of kin. {See Part IV.) 
 
 (f) Liability of Leaneholds for Debts. — Leaseholds can be 
 taken in execution for their owner's debts during his life, 
 and after his death they are, and have always been, liable 
 for his debts in the hands of his executors and adminis- 
 trators, just as if they were ordinary goods. 
 
CHATTEL INTERESTS IN LAND : TENANCIES AT WILL. ^<^^ 
 
 (b.) Tenancy at Will. 
 
 Tenancy at Will. — Tenancies at will still exist, although 
 they are not often met with. They arise either by express 
 agreement or by construction of law. Those arising in 
 the latter way are most usual. Thus (see p. 202), when 
 a mortgagor is permitted by the mortgagee to retain 
 possession of the mortgaged land after the execution of the 
 mortgage, he is usually tenant at will of the mortgagee. 
 Again, when a tenant enters upon land in pursuance of 
 an invalid lease for a time certain, he is a tenant at will ; 
 and so is a tenant who, with the express assent of his land- 
 lord, continues to hold as tenant at will after a valid lease 
 has expired. {Mortjaii v. Harrkon, (lOi'T) 2 Ch. I'M.) 
 And again, as we shall see, when an equitable owner of 
 land is let into possession of it he is at law nominally the 
 tenant at will of the trustee, who is the legal owner. The 
 Coui't, however, leans against tenancies at will — that is, it 
 will take advantage of the slightest indication to hold that 
 a tenancy for a time certain was created. The relation 
 between mortgagor and mortgagee, like that between 
 equitable owner and trustee, is peculiar ; but in all other 
 oases of tenancies, where there is either an invalid agree- 
 ment or no agreement at all as to the duration of the 
 tenancy, payment of rent by the week, month, or year is 
 usually sufficient to lead the Court to declare that the 
 tenancy is a weekly, monthly, or yearly tenancy, and not 
 a tenancy at will. (Doiigal v. McCarthy, (1893) 1 Q. B. 
 7-"i6.) A tenancy at will may be determined either by 
 express notice given by either party to the other, or by any 
 act of either party which the law regards as inconsistent 
 with the continuance of a tenancy. Such acts on the part 
 of the lessor as granting a lease for years or a freehold 
 estate in possession, or as entering upon the land to open 
 mines or cut timber, and such acts on the part of the lessee 
 as assigning the tenancy or committing waste, are so 
 regarded by the law. A tenant at will of agricultural 
 
102 KINDS OF INTERESTS IN THINGS OWNED. 
 
 land whose tenancy is determined by his landlord between 
 seed time and harvest is entitled to emblements. 
 
 (c.) Tenancy by Sufferance. 
 
 Tenancy by Sufferance. — If a lessee, whether at will or 
 for a time certain, holds over after his interest has deter- 
 mined, he becomes what is called a tenant at or by 
 suiferance. A tenancy by sufferance is defined as the 
 interest — as far as it is a legal interest — which arises 
 where a tenant who obtained possession of the land under 
 a legal title retains possession without leave after his title 
 has ceased. Practically the tenancy amounts to this, that 
 the tenant is not regarded by the law as a trespasser on 
 the land. There can, however, be no tenancy by suffer- 
 ance when the lessor is the Crown, and in this case any 
 tenant holding over is liable to an action for trespass. 
 (2 Bl. Com. 160.) 
 
 A tenant holding over after receiving a proper notice to 
 quit in writing from the lessor is made liable, so long as 
 he holds over, to pay at the rate of do>^ble the yearly 
 value of the land. (4 Greo. II. c. 28, s. 1.) And a tenant 
 holding over after ginng his lessor either written or parol 
 notice to quit — where parol notice is by the lease suffi- 
 cient — is liable to pay at the rate of double the rent or 
 sum he should otherwise be liable to pay. (1 L Geo. II. 
 e. 19, 8. 18.) 
 
 B. Settlements of Chattels Real. 
 
 PAGE 
 
 Partial Interests in Leaseholds 
 at Law 102 
 
 PAOE 
 
 Partial Interests in Leaseholds 
 
 in Equity 104 
 
 Settled Land Acts 104 
 
 Partial Interests in Leaseholds at Law. — Leaseholds, as 
 has already been explained, are not, properly speaking, 
 
CHATTEL INTEEESTS IN LAND : SETTLEMENTS. 103 
 
 things, but merely proprietary rights in things, i.e., in 
 lands. They are, however, regarded by the law as chattels 
 or goods, and so the common law doctrine that there can 
 be nothing but absolute ownership in goods applies to 
 them. No estates or partial interests can, at common law, 
 subsist in leaseholds. Thus, if a term, say of a thousand 
 years, be assigned to A. for life and afterwards to B. and 
 his executors or assigns, the law vests the whole term in 
 A. and treats the remainder to B. as void. 
 
 A partial exception to this occurs in the case of limited 
 interests created in leaseholds by will. If a term of a 
 thousand years be bequeathed to A. for life, and after- 
 wards to B., the remainder to B. will be good. The law 
 will regard the whole term as vested absolutely in A., 
 subject, like a determinable fee, to a collateral condition 
 (his death during the continuance of the term) , on the ful- 
 filment of which the ownership of the term will shift over 
 to B. During A.'s life B. is regarded as having no 
 interest in the term, but a mere possibility, that is, a chance 
 of obtaining the term. This possibility was inalienable at 
 law except by will. (Wills Act, ld>'-M, s. 3.) It was, how- 
 ever, alienable in equity : and now, by the Real Property 
 Act, 1845, s. 6, an executory and a future interest, and a 
 possibility, coupled with an interest, in any tenements or 
 hereditaments of any tenure may be disposed of by deed. 
 If, in the instance given, there were no limitation over 
 after the life interest of A., then on A.'s death the residue 
 of the term would be undisposed of by the will, and would 
 go like other undisposed of personalty. 
 
 A legal tenant for life of leaseholds, as far as the lessor is 
 concerned, is in the position of any other assignee of a lease. 
 {In re Parry and Hopkm, (1900) 1 Oh. 160.) He is not 
 liable for permissive waste unless there is a covenant to 
 repair in the lease, and he is liable to pay the rent and 
 to observe the covenants therein. His liability to the 
 testator's estate seems to be the ordinary obligation of an 
 assignee {see Moule v. Garrett, L. R. 7 Ex. 101) to 
 
104 KINDS OF INTEEESTS IN THINGS OWNED. 
 
 save his assignor's estate from liability under the lease. 
 [In re Parry and Sopkin, supra.) But unless he is made 
 so by the will, he is not liable to his testator's estate to put 
 the leasehold premises in repair so far as these premises 
 were out of repair at the testator's death. {In re Courtier, 
 Coles V. Courtier, ^4 Ch. D. 136.)' And he is under no 
 obligation to the person entitled in succession to him to 
 observe the covenants in the lease or to execute repairs. • 
 
 Partial Interests in Leaseholds in Equity. — This, then, 
 was as far as the law permitted the ownership of leaseholds 
 to be portioned out among successive owners. Equity, 
 however, allowed it to be divided up and successive 
 interests created in it as freely as the law allowed this 
 to be done in freeholds. This it accomplished not by 
 repealing, at any rate nominally, the rule of law, but by 
 turning the absolute owner at law into a trustee for those 
 entitled in equity to the partial interests. 
 
 In equity, as in law, leaseholds are personalty, and the 
 rules which govern equitable interests in personalty are 
 the same whether the personalty is leaseholds or goods. 
 These will be treated of in the next section. As to the 
 position of an equitable tenant foi' life of leaseholds as to 
 waste and the performance of covenants in the lease, see 
 In re Betty, Betty v. Attorney-General, (1899) 1 Ch. 821. 
 
 Settled Land Acts. — It should be remembered that lease- 
 holds are land within the Settled Land Acts, and that the 
 tenant for life has all the powers over them which, as we 
 have seen, he possesses over settled freeholds. 
 
INTERESTS IN GOODS : AT LAW. 
 
 105 
 
 Section II. 
 INTEEESTS IN GOODS. 
 
 PAGE 
 
 (a) At Law 106 
 
 (b) In Equity 106 
 
 Operation of Equity 106 
 
 PAQB 
 
 Equitable Interests in Goods.. 107 
 Express Trusts of Goods .... 107 
 C. Settlements of Goods .■. . . 108 
 
 (a) At Law. 
 
 Legal Interests. — ^As has already been said, tlie oommon 
 law in theory permitted nothing except absolute ownership 
 in goods. In practice, however, it forbade the ownership 
 to be divided as to duration, but it permitted it to be 
 divided as to use. But it did not recognize the person 
 entitled to the use of the goods for the time being as 
 having any share of the ownership of them. He had 
 simply a jus in re aliena — a limited right over a thing 
 which belonged to another. In this respect the hirer of 
 goods is much in the same position as the lessee of lands, 
 and perhaps logically it would be proper to treat here of 
 hiring goods. Hire of goods, however, is merely one form 
 of bailment, and most of the other forms of bailment 
 gave rise to rights in the bailee more akin to easements 
 over than interests in land ; and on the whole it is perhaps 
 more convenient to treat of all forms of bailment together. 
 ((See infra, p. 339.) 
 
 As in the case of leaseholds, so now in the case of goods, 
 the law recognizes successive interests when these are 
 created by will. At first such successive interests were 
 only recognized by equity in the use of the goods be- 
 queathed, the legal ownership remaining in the executors 
 of the will. (2 Bl. Com. 397.) But gradually the 
 Courts of Law came to treat the legatees as the owners. 
 
106 KINDS OF INTERESTS IN THINGS OWNED. 
 
 Successive interests in goods then were called executory 
 bequests. {See infra, p. 169.) And so, as Blackstone 
 says, if a testator now leaves his books or furniture to A. 
 for life and afterwards to B., on the executor assenting 
 to the bequest A. becomes the owner of these subject to 
 their shifting over to B. on A.'s death. (But cf. Re Percij, 
 24 Ch. D. bl6, and see Theobald on Wills, c. 28.) But of 
 course a fee tail or other heritable estate cannot be created 
 at law in goods which in their nature are not heritable. 
 {See infra, p. 109.) Most successive interests in goods 
 arising under wills are still merely equitable interests, and 
 when the enjoyment of them is in specie it is of little 
 practical importance now whether they are nominally legal 
 or equitable. 
 
 Successive interests in goods most frequently arise 
 through trusts, and are in their nature purely equitable. 
 It is to these that the remainder of this section wUl be 
 
 devoted. 
 
 (b) In Equity. 
 
 Operation of Equity. — Equity arose out of the decisions 
 of the Chancellor. {Supra, p. 17.) Now the Chancellor, 
 not having any admitted legislative authority, could not 
 expressly repeal a rule of the common law. He had, there- 
 fore, when he wished to repeal it, to do so by evading it, 
 and he fovmd an effective means of doing this in the power 
 which his Court possessed to attach — -that is, arrest and 
 imprison — for contempt of its authority. Thus, if a person 
 possessed certain rights at common law which the Chancellor 
 thought he should not possess, the Court of Chancery did 
 not — it could not — take these legal rights from him. What 
 it did was either to prohibit him from exercising them or 
 to order him to exercise them in a certain way. If he 
 refused or neglected to obey its direction, it treated his 
 disobedience as a contempt of Court and committed him 
 to prison, where he remained until he purged his con- 
 tempt — that is, until he obeyed its directions. (1 Eep. 
 121 b ; Strahan's Bq. p. 6.) 
 
INTERESTS IN GOODS : IN EQUITY. 107 
 
 Equitable Interests in Goods. — Two applications of this 
 procedure occur in the case of limitations of partial interests 
 in goods and leaseholds, the latter being, as we have ex- 
 plained, regarded in law as goods. If goods were given to 
 a person for life with remainder over to someone else, at 
 common law the life owner was owner absolutely. Equity 
 regarded this as unjust, but could not alter it expressly. 
 It could, however, alter it practically. It permitted, as it 
 had to do, the legal ownership to remain in the life owner ; 
 but it declared him trustee of the goods for the jDerson or 
 persons entitled after him under the gift. It compelled 
 him to make an inventory of the goods given to him 
 (sometimes even to give security for their preservation) ; 
 and if on his death any of them were missing or destroyed, 
 his estate was liable for their value. The only exception 
 to this rule arises in the case of goods quce ipso mii con- 
 sumuntur, which are consumed by their use, such as a cellar 
 of wine, cigars, or breadstufPs. As a limited interest in 
 these would be of no value if at the end of it the partial 
 owner had to hand them over as he received them, equity 
 permits him to use them in the only way they can be 
 used — by consuming them — and refused to recognize any 
 partial or limited interest in them. {RanrJall v. Russell, 
 3 Meriv. 190 ; and see Myers v. Washbrook, (1901) 1 K. B. 
 366.) 
 
 As we have seen, partial interests in goods when created 
 by will are now recognized by the common law too {supra, 
 p. 105) ; but this distinction when the goods are to be 
 enjoyed in specie is now practically of little importance. 
 By sect. 25 of the Judicature Act, 1873, it is enacted that 
 where the rules of equity and law conflict, the rules of 
 equity shall prevail. Henceforth, accordingly, equitable 
 interests in goods will be recognized in Courts of Common 
 Law as well as in the Chancery Division, though they are 
 not thereby made legal interests. 
 
 Express Trusts of Goods. — The most usual way in which 
 
108 KINDS OF INTERESTS IN THINGS OWNED. 
 
 partial interests in goods are created is by means of trusts. 
 When goods were assigned to persons with a direction that 
 they should hold them for the benefit of other persons in 
 succession, the assignees were, at common law, the absolute 
 owners, and the direction to hold the goods for the benefit 
 of others was void. Equity, however, regarded it as con- 
 trary to good faith for the assignees to take advantage of 
 this rule of law. It held that the assignees were in con- 
 science' bound to carry out the directions of the assignor, 
 and it insisted on their doing so. It left, as it had to do, 
 the legal ownership of the goods in the assignees, but it 
 declared that they held them in trust for the persons 
 entitled to them under the direction of the assignor. 
 Limitations of goods in this way were called express 
 trusts. {See Strahan's Eq. p. 19, and i/ifra, p. 114.) 
 
 0. Settlements of Gooas. 
 
 PAGE ' PAGE 
 
 Settlements of Goods 108 ] Limitationoflnterestsin Goods 109 
 
 Settlements of Goods. — Express trusts most commonly 
 arise now under marriage settlements. Under these, some 
 of the husband's, and usually all of the wife's, personalty 
 are assigned to certain persons to hold on the trusts set 
 out in the settlement. These trusts generally are of the 
 husband's property to him for life, then wholly or partly 
 to the wife for her life; of the wife's property to her for 
 life without power of anticipation, and then to the husband 
 for life. During their joint lives they have a joint power 
 of appointing the trust funds (subject to their life interest) 
 among their children ; and this power, if not exercised by 
 them jointly, survives to the survivor. If not exercised at 
 
INTERESTS IN GOODS : SETTLEMENTS. 109 
 
 all, then, if there are children of the marriage, the trust 
 funds go, on the survivor's death, between these equally; 
 if there are no children, the husband's and wife's property 
 go under their respective wills, or, it' they die intestate, to 
 their next of kin under the Statutes of Distribution. {See 
 Strahan's Convey, p. 191.) 
 
 Under the Apportionment Act, 1870, as between limited 
 owner and remainderman, the income of settled property 
 is considered as accruing from day to day. 
 
 Limitation of Interests in Goods. — Goods and leaseholds 
 are not, and cannot be made, heritable. Accordingly, the 
 words "heirs" and "heirs of the body" have no meaning 
 in connection with them. If goods are assigned or 
 bequeathed to a person without words of inheritance or 
 succession, the absolute interest in them vests in him. 
 If they are given to him and his heirs, or to him and the 
 heirs of his body, the effect is the same, though such a gift 
 if made by will may be construed as giving a life estate to 
 the parent with remainder to his children. (Fearne, 371 ; 
 Papillon V. Voice, 2 P. "Wms. 471.) It is usual to assign 
 goods — when it is desired to transfer the absolute interest 
 — to the assignee "and his executors and assigns" but 
 these latter words are quite unnecessary; they merely 
 describe incidents of the ownership of goods which would 
 attach to that ownership whether they were used or not. 
 (Underbill & Strahan on Wills, p. 218.) 
 
 Two points may be noted here in connection with settle- 
 ments of goods. In the first place, owing to their not being 
 heritable in their nature, goods never can be settled in specie 
 on exactly the same limitations as freehold land. As has 
 been pointed out, the usual marriage settlement of land is 
 to bridegroom for life, then to the eldest son of the marriage 
 in tail, and, if that son should die without issue, then to 
 the second son in tail, and so on. Under this settlement, 
 if the eldest son dies without issue before he attains 
 twenty-one, the land must go to the second son, and if he 
 
110 KINDS OF INTERESTS IN THINGS OWNED. 
 
 lives over twenty-one, then, unless he bars the entail, it 
 will still go to the second son on the death of the eldest 
 son without issue. As no estate tail can be created in 
 personalty, all that can be done in a settlement of goods or 
 leaseholds is to give, after the life interest to the settlor, 
 an absolute interest to the eldest son. On the birth of an 
 eldest son this interest vests in him, and all remainders 
 fail. The consequence is that on his death without issue 
 the second son does not take as in a limitation of freeholds, 
 but the settled funds are divided among the next of kin of 
 the eldest son. {See lie Dayrell, Hastie v. Dayrell, (1904) 
 2 Oh. 496.) This may, to a certain extent, be avoided by 
 making the absolute interest not to vest in the eldest son 
 till he attains twenty-one, that being, as we shall see, the 
 most distant time to which the vesting can be postponed. 
 {See Part III.) In that case, if the eldest son dies before 
 twenty-one, the second son succeeds. {See Strahan's Con- 
 vey, p. 193.) 
 
 The second point to be noted is this : When the thing 
 settled is not to be enjoyed by the beneficiaries in xpecie, 
 the question whether the settlement is to be considered a 
 settlement of personalty or a settlement of realty depends 
 not on the actual nature of the thing settled at the date of 
 the execution of the settlement, but on its nature when 
 the ultimate interest under the settlement is to vest in 
 possession. Thus, freehold land settled on trust to sell 
 and pay the income of the proceeds to A. for life, and on 
 A.'s death to divide the corpus — i.e., the principal or fund 
 itself — between C. and D., will be, from the execution of 
 the settlement, and before any sale has taken place, con- 
 sidered in equity to be not freehold land but money, and 
 therefore personalty. On the other hand, money settled 
 on trust to be invested in the purchase of freehold land to 
 be held to the use of A. for life, and then to A.'s eldest 
 son and his heirs, will be, from the execution of the settle- 
 ment, and before any land has been purchased, regarded 
 in equity as land. In each case the interests or estates 
 
INTERESTS IN GOODS : SETTLEMENTS. Ill 
 
 ■which may be created in the settled property will be those 
 characteristic not of the kind of property settled but of the 
 kind of property into which the settled property is directed 
 to be turned, and the estates so created will have all their 
 ordinary incidents attaching to them. This is, very briefly 
 what is meant by the equitable doctrine of the conversion, 
 or the notional change of land into money and of money 
 into land. {Fletcher v. Ashburner, 1 Bro. 0. C. 497 ; 1 W. 
 & T. See Strahan's Eq. p. 190.) 
 
112 
 
 Part III. 
 MODES OF HOLDING INTEfiESTS. 
 
 PAGE 
 
 Modes of Holding Interests 112 
 
 Section I. — In Tetist Ownership 113 
 
 Section II. — In Concueeent Owneeship 125 
 
 Sub-section (1). — Joint Tenancy 126 
 
 (2). — Coparcenary 137 
 
 (3). — Tenancy in Common 139 
 
 (4). — Tenancy by Enti^'eties 141 
 
 Section III. — In Futuee Owneeship 143 
 
 Sub-section (1). — Future Ownership at Common Law 143 
 
 (2). — Future Ownership in Equity 162 
 
 (3). — Future Ownership by Statute 166 
 
 (4). — Powers 173 
 
 (5). — Perpetuities and Accumulations 183 
 
 Section IV. — In Conbitionai Owneeship 191 
 
 Sub-section (1). — Mortgages of Land 201 
 
 Part A. — Mortgages by Deed 202 
 
 B. — Mortgages by Deposit 219 
 
 Sub-section (2). — Mortgages of Goods 222 
 
 Modes of holding Interests. — OwnersHp, whetlier absolute 
 or partial, may be described as normal wben it is beneficial, 
 exclusive, immediate and unconditional. Frequently, how- 
 ever, it does not fulfil all these requirements. Thus, a 
 person may own a thing for another or others, as, for 
 example, Blackacre may be held by A. and his heirs in 
 trust for B. for life, and afterwards for B.'s eldest son and 
 his heirs. Here A.'s ownership is not beneficial. Or, 
 again, a person may own a thing with another or others, 
 
IN TRUST OWNERSHIP. 118 
 
 as, for example, A., B. and C. may have Blaokacre vested 
 in them jointly in fee simple. Here A.'s or B.'s or C's 
 ownership is not exclusive. Or, again, a person may own 
 a thing after another or others, as, for example, A. may 
 have the fee simple in Blaokacre after the determination 
 of B.'s life estate. Here A.'s ownership is not immediate. 
 Or, lastly, a person may own a thing subject to a condition 
 which, in certain events, will transfer the ownership to 
 another or others, as, for example, A. may have the fee 
 simple in Blackaere conveyed to him by B. subject to a 
 proviso that, if B. pays him 10,000/. on a certain day, A. 
 shall reconvey the fee simple to B. Here A.'s ownership 
 is not unconditional. 
 
 When an interest is held for another or others, it may 
 be said to be held in trust ownership ; when held with 
 another or others, in concurrent ownership ; when held after 
 another or others, in future ownership ; and when held 
 subject to a proviso in favour of another or others, in 
 conditional ownership. 
 
 Section I. 
 IN TEUST OWNEESHIP. 
 
 PAGE 
 
 Trust Ownership 113 
 
 History of Trust Ownership . . 114 
 
 Creation of Trust 116 
 
 Description of Trust 117 
 
 PAGE 
 
 Legal and Equitable Estates . . 119 
 
 Equity follows the Law 122 
 
 Devolution of Legal Estate . . 124 
 
 Trust Ownership. — When the legal owner of lands or 
 goods holds them, either by voluntary undertaking on his 
 part or by construction of law, absolutely or partially for 
 the benefit of another or others, he is, in so far as he so 
 holds them, an owner of them on trust, and his property 
 in them is what we have described as trust ownership. 
 (Strahan's Eq. p. 39.) 
 
114 MODES OF HOLDING INTERESTS. 
 
 History of Trust Ownership. — In speaking of limited 
 interests in goods, we liave already had occasion to describe 
 the machinery by which trusts were made effective. A 
 short sketch of their history and growth may now be 
 given. 
 
 Trusts were preceded by what in old times were called 
 tises. The main characteristic of uses was the same as 
 the main characteristic of trusts — namely, the separation 
 of the beneficial from the legal or technical ownership. 
 This separation in the case of uses, as in the case of trusts, 
 was brought about by the action of the Court of Chancery 
 in recognizing that the legal owner of a thing might not 
 be the person morally entitled to enjoy it. Wherever, in 
 the opinion of the Chancellor, this distinction between the 
 legal and the moral right to the ownership of a thing 
 arose, he interfered for the purpose of protecting and 
 enforcing the moral as against the legal right. He did 
 this, as we have seen, by compelling the legal owner to 
 hold the thing owned for the benefit of the person morally 
 entitled to it. 
 
 Wherever this separation took place, the legal or technical 
 ownership, which was the only ownership recognized in 
 the Courts of Common Law, remained subject to all the 
 rules and incidents of the common law. The beneficial 
 ownership, which was the creature of the Court of Chancery, 
 was relieved of all those rules and incidents as far as these 
 appeared to the Court of Chancery to be unjust or inexpe- 
 dient. (Strahan's Eq. p. 19 et seq.) Thus, fee simple 
 land was not subject to its owner's last will at common 
 law, but the Court of Chancery permitted the use of it to 
 be devised. Again, land could not be given to a religious 
 corporation, according to the common law as strengthened 
 by various statutes ; but the Court of Chancery permitted 
 conveyances to be made to feoffees to the use of charitable 
 and religious houses. Again, at common law the seisin of 
 freehold land could never be without an owner ; the Court 
 of Chancery disregarded the whole doctrine of seisin as far 
 
IN TRUST OWNERSHIP. 115 
 
 as uses were ooncerned, and so introduced limitations of 
 future estates unknown to the common law {see infra, 
 p. Ib2), and at the same time revolutionized conveyanoiog 
 by dispensing with the proceeding which was necessary 
 at common law for the effective transfer of fx'eehold 
 lands, and which was known as livery of seisin. {See 
 infra, p. 241.) 
 
 This greater ease and freedom with which uses could 
 he dealt with made the system so popular, that by 
 Henry VIII. 's time most of the land in England, it has 
 been said, was held by its nominal owners on uses for the 
 benefit of other persons who were practically the real owners. 
 The uncertainty as to the real ownership of land to which 
 this state of affairs gave rise was regarded by the legisla- 
 ture as a serious evil, and an effort was made to end it. 
 A statute, accordingly, was passed with the object of 
 reuniting the legal and beneficial ownership in lands in 
 the same person or persons. This statute, which is called 
 the Statute of Uses (27 Henry VIII. c. 10, a.d. 1536), 
 enacted that henceforth all lands in the seisin of a trustee 
 for the benefit of another or others should be held and 
 considered to be in the seisin and possession of the person 
 or persons for whose benefit they were held. The object 
 of this enactment was to put the beneficial owner imme- 
 diately into legal possession of any interest in lands which 
 was held by anyone in trust for him. {See Strahan's 
 Convey, pp. 9 — 13.) 
 
 The statute, however, from the first failed partially of 
 its object. It referred merely to the case of a trustee 
 being seised of lands for another's benefit. Now " seized," 
 as has been already pointed out, applies only to freeholds. 
 Accordingly, the statute did not apply to cases where a 
 trustee was not seized — for instance, where he had vested 
 in him merely a term of years. In the second place, it 
 referred only to passive trusts — that is, trusts where the 
 trustee's whole duty was to hold for the benefit of someone 
 €lse ; not to active trusts — that is, trusts where the trustee 
 
116 MODES OF HOLDING INTERESTS. 
 
 had some active duties to perform, as, for example, to 
 manage the land or to repair and maintain the mansion- 
 house. Soon a decision of the Courts of Common Law 
 {TyrreWs Case, Dyer, 155a; Tudor's E. Pro. Cases) 
 deprived the statute of any little effect it ever had in 
 restraining the creation of trusts. In this decision it 
 was held that there could not be a second use limited 
 upon a first use, and that if such a limitation were 
 attempted the statute would vest the legal estate in the 
 person entitled to the first use, and the second use failed. 
 For example, if Blackaore was conveyed to A. and his 
 heirs, to the use of B. and his heirs, to the use of C. and 
 his heirs, the fee simple in Blackacre would, by force of the 
 statute, vest not in A., but in B., while the use in favour 
 of C. and his heirs, being a use upon a use, would fail, and 
 C, who was the person intended to be benefited, would 
 get nothing. Obviously, this construction frustrated the 
 intentions of the grantor. Again the Chancellor inter- 
 fered to prevent this result by enforcing the second use, 
 and again passive uses of freehold lands became common. 
 " Uses upon uses " of freehold lands henceforth were called 
 " trusts." 
 
 The Statute of Uses had, as we shall see {infra, pp. 242 
 et seq.), an enormous effect upon our system of convey- 
 ancing, but ultimately it failed altogether to fulfil its real 
 object— that is, to put an end to trusts of lands. 
 
 The statute did not apply when the trust estate con- 
 sisted of goods. Trusts of these have always been enforced 
 since the Chancellor's first interference. The modern 
 system of trusts, however, both of land and goods, did not 
 become settled altogether on its present basis till the 
 Chancellorship of Lord Nottingham, tempore Charles II. 
 {Per Lord Mansfield, C. J., in Burgess v. Wheate, 1 Eden, 
 177.) 
 
 Creation of a Trust. — The Court of Chancery now creates 
 a trust, as it formerly created a use, in every case where, 
 
IN TRUST OWNERSHIP. 117 
 
 in its view, the legal and moral rights to a thing reside in 
 different persons. The separation between the legal and 
 moral right most frequently arises through an express 
 declaration of trust. Thus A. may declare himself trustee 
 of his own goods for the benefit of B., or he may assign 
 them to C, with an express direction that C. should hold 
 them in trust for B. This is what is called a declared or 
 express trust. (Strahan's Eq. p. 39.) But the separation 
 between the legal and moral right may arise without any 
 express declaration of trust. An intention to create a 
 trust may be inferred by the Court from circumstances 
 attending the conveyance of the thing. For instance, if 
 lands or goods are assigned, at the desire of a purchaser 
 for value, to a third person who gives no consideration for 
 them — to a volunteer, as the phrase is — then, in the 
 absence of anything to show that the purchaser intended 
 to benefit the volunteer, the Court will hold that the latter 
 was intended to be and is merely a trustee for the former. 
 This is an example of a presumed or resulting trust. 
 (Strahan's Bq. p. 173.) Both these trusts are based on the 
 intention of the parties to create a trust. But sometimes 
 the law creates a trust where there is no such intention. 
 Thus, if a vendee pays the purchase-money to the vendor 
 before the thing sold has been conveyed to him, then the 
 vendor will be held a trustee for the vendee of the thing 
 sold until conveyance of it is executed. This is an example 
 of a constructive trust. (Strahan's Eq. p. 180.) 
 
 Description of a Trust. — To the creation of an express 
 private trust — that is, a trust for the benefit of an in- 
 dividual or of individuals, as opposed to a trust for a 
 public or charitable purpose — three parties are necessary ; 
 the settlor, the trustee, and the cestui que trust. The settlor 
 is the party who provides the property to be held in trust, 
 and who is entitled to declare the purposes for which it is 
 to be held. The trustee is the party who holds the 
 property in trust, and who carries out the purposes J or 
 
118 MODES or HOLDING INTERESTS. 
 
 which it is held by him. The cestui que trud is the party 
 for whose benefit the property is held in trust. The pro- 
 perty held is called the trust property. The interest of the 
 trustee is called the legal estate, and the interest of the 
 cestui que trust is called the beneficial or equitable estate. 
 (Strahan's Eq. p. 46.) 
 
 For the sake of clearness, we have spoken here as if the 
 different parties must be different individuals. But the 
 same individual may fill two or, to a certain extent, all 
 three characters. Thus, for example, a person may declare 
 himself trustee of his own property for his children. Here 
 he fills the two characters of settlor and trustee. Again, 
 for example, a person may declare himself trustee of his 
 own property for his own benefit for life, and then for his 
 children. Here he, in a way, fills all three characters. 
 Again, the different parties need not be single individuals. 
 Indeed, in practice it is usual to appoint two or more 
 persons joint trustees, and as a rule trust property is held 
 for the benefit not of a single individual, but of a class or 
 family of individuals. (Strahan's Eq. p. 48.) 
 
 Both in private and in public trusts — i.e., trusts for 
 public purposes —the trustee may be, and sometimes is, 
 not an individual, but a corporation ; while in public 
 trusts it frequently happens that there is no specific cestui 
 que trust at all, as, for instance, when funds are left for 
 the advancement of some public matter or interest, such as 
 charity or education. In this case the place of cestui que 
 trust is taken by the object of the trust. (Strahan's Eq. 
 p. 160.) 
 
 Under the Judicial Trustees Act, 1896 (59 & HO Yict. 
 c. 35), the Court has now power on the application of a 
 person creating or intending to create a trust, or of a 
 trustee or ce-itui que trust, to appoint a judicial trustee, 
 either jointly with any other trustee or as sole trustee, or 
 if sufficient cause be shown, in place of all or any trustees. 
 (Sect. 1 (1).) It may give such a trustee general or 
 special directions in regard to the trust (sect. 1 (4) ), and 
 
IN TRUST OWNERSHIP. 11& 
 
 may order certain remuneration to be paid to him out of 
 ttie trust estate (sect. 1 (5) ), and the judicial trustee's 
 accounts will each year be audited and a report upon them 
 made to the Court by auditors appointed under the Act. 
 (Sect. 1 (6).) (Strahan's Bq. p. 81.) 
 
 By the Public Trustee Act, 1906, which came into 
 operation on 1st January, 1908, a government department 
 has been created for the purpose of discharging the duties 
 of trustees and executors. The head of this department is 
 called the Public Trustee ; he is a corporation sole with a 
 seal and perpetual succession. He may be appointed by 
 the settlor either a managing or merely a custodian trustee, 
 i.e., one whose sole duty is to hold safely the trust property ; 
 and the Court may appoint him a judicial trustee. In the 
 case of small estates [i.e., under £1,000), the Public Trustee 
 may by an order under his seal take over their administra- 
 tion from the existing trustees, and in the case of estates of 
 any size, the existing trustees may with the consent of the 
 Court transfer the trust property to him, and in any 
 administration action the Court may appoint him to 
 administer the estate. The Public Trustee is entitled to 
 charge fees for his services sufficient to cover expenses ; 
 and any loss to the trust property through breach of trust 
 to which he was party, is to be borne by the consolidated 
 fund. 
 
 The ordinary administration of trust funds and the 
 appointment of trustees and their powers and duties when 
 appointed, are now regulated, to a very large extent, by 
 the Trustee Acts of 1893 and 1894 (56 & 57 Yict. c. b-i ; 
 67 Vict. c. 10). (Strahan's Bq. p. 73 et seq.) The dis- 
 cussion of these is not, however, within the scope of this 
 work, and we shall refer to them and to the law of trusts, 
 generally, only so far as it is necessary to do so in order to 
 explain the effect their existence has upon the law of 
 property. 
 
 Legal and Equitable Estates. — When land or goods, 
 
120 MODES OF HOLDING INTERESTS. 
 
 then, are held in trust, there are two separate and distinct 
 interests subsisting in them — the interest of the trustee 
 and the interest of the cestui que trust. The fonner of 
 these is the legal or technical ownership. A trustee is the 
 legal owner of the trust property, and he can, and he only 
 can, give a good legal title to it to a purchaser. More- 
 over, he can legally sell or dispose of it to anyone he likes 
 without the consent of the cestui que trust, and anyone 
 who purchases from him for value, even although the sale 
 constitutes a breach of trust, has a good title to the pro- 
 perty, both at law and in equity, provided he did not 
 know, or did not have reason to suspect, that the trustee 
 in selling was committing a breach of trust. (Strahan's 
 Eq. p. 21.) If the purchaser had notice of the breach, or 
 if he did not give value, he will take the property subject 
 to the trtist, i.e., he will be only a trustee of the property. 
 Of course, where a trustee sells in breach of trust, he is 
 personally liable civilly, and, if the sale be fraudulent, 
 criminally, too, for his act. (Larceny Act, 1861, s. 80.) 
 Moreover, until recently, there was no time limited by 
 statute after which an action for breach of an express trust 
 would not lie against a trustee. Now, however, by the 
 Trustee Act, 1888, s. 8, in all cases save where the breach 
 of trust was fraudulent on the part of the trustee against 
 whom the action is brought {Thome v. Heard and JIarsh, 
 (1895) A. 0. 496), or where the trust property or proceeds 
 of the trust property are retained by such trustee, a cestui 
 que trust cannot bring an action for breach of trust except 
 within six years from the time when his interest vested 
 in possession. Thus, if A. is trustee for B. for life and 
 afterwards for B.'s children, and A. commits an innocent 
 breach of trust, if B. wishes to sue A. he must do so 
 within six years from the breach, while on the other hand 
 B.'s children may sue A. at any time within six years 
 after the death of B. {See In re Somerset, Somer.set v. I^arl 
 Poulett, (1894) 1 Oh. 231.) In either of the cases excepted 
 from the operations of the statute the time within which 
 
IN TRUST OWNERSHIP. 121 
 
 the action may be brought is unlimited still, as far as 
 statute is concerned, though, if the cestui que trust fails to 
 take action for a long time after discovering the fraud or 
 breach of trust, the Court may refuse to give him a 
 remedy, on the ground that he has been guilty of laches 
 or negligence. There is, of course, no limitation as to 
 criminal proceedings, but the sanction of the Attorney or 
 Solieitor-Greneral, or of the judge of the Court where the 
 civil proceedings, if any, were heard, is necessary before 
 proseciition. (Larceny Act, 1861, s. 80.) 
 
 A further power has been given to the Court to relieve a 
 trustee guilty of a breach of trust by sect. 8 of the Judicial 
 Trustee Act, 1896. By this enactment, if a trustee is per- 
 sonally liable for a breach of trust, but the Court is of 
 opinion that he acted honestly and reasonably, and that 
 he ought fairly to be excused, it may relieve him wholly 
 or partially of his liability. This jurisdiction is intended 
 to be used freely, but the Court must be satisfied that the 
 trustee acted not merely honestly but also reasonably in 
 the administration of the trust before it will interfere in 
 his favour. (In re Turner, Barker v. Iminey, (1897) 1 Ch. 
 536 ; Perrins v. Bellmny, (1899) 1 Ch. 797.) The juris- 
 diction extends to breaches of trust committed before as 
 well as after the passing of the Act, and to ordinary as 
 well as judicial trustees. (/See Strahan's Eq. p. 158.) 
 
 The interest of the cestui que trust, on the other hand, 
 is, strictly speaking, not ownership at all. Practically, no 
 doubt, it constitutes the real — that is, the beneficial — - 
 ownership ; but, technically, it is, as between the cestui 
 que trust and thii'd persons, only a right against the 
 trustee personally and any other person dealing with the 
 property and aware of the trust. The trustee owns the 
 land, but the Court compels him to use his ownership for 
 the benefit of the cestui que trust, and if he refuses to do 
 so, it will attach him for contempt, or will make an order 
 removing him from his position as trustee. 
 
 At first, the tendency of the Court of Chancery seems 
 
122 MODES OF HOLDING INTERESTS. 
 
 to have been to regard the cestui que trust's interest for all 
 purposes merely as a right of action against the trustee. 
 {See Sir Moijle Finch's Case, 4 Inst. 86.) Gradually, how- 
 ever, it came to be recognized in equity as property, and 
 then the Court of Chancery treated it, as far as possible, 
 as if it were ordinary property at common law. It 
 permitted it to be dealt with in the same manner as the 
 legal ownership could be dealt with — to be limited out 
 in estates, to be alienated inter vivos, to be devised or 
 bequeathed, and to descend to the heir or personal repre- 
 sentatives. The principle observed was, and is, that in 
 dealing with equitable interests equity follows the law. 
 {See Strahan's Eq. p. 37.) 
 
 Equity follows the Law. — The principle was, in some 
 respects, applied very strictly, but, in others, relaxed or 
 disregarded. Thus, the equitable estate in freehold lands 
 was generally treated, as regards the estates that might be 
 held in it, and as to their incidents and their devolution 
 on death, almost precisely as if it were the legal ownership. 
 It could be entailed or held in fee simple, and on death it 
 went to the heir at common law, or, if the land itself was 
 subject to a custom — such as gavelkind — to the customary 
 heir. On the other hand, equitable interests in leaseholds 
 and goods, while they were treated as personalty for pur- 
 poses of entail and devolution on death — a fee tail could 
 not be created in them, and on death of their owner in- 
 testate they went to his personal representatives — yet, as 
 we have seen, thej' could be portioned out into limited 
 interests, such as interests for life, and future interests, in 
 a way the common law did not permit the legal ownership 
 to be dealt with. Not only so, but, as we have also seen, 
 by the doctrine of conversion (supra, p. 110), equitable 
 interests in freehold lands are sometimes treated as if they 
 were interests in goods, and interests in goods as if they 
 were interests in freehold lands. {See Stralian's Eq. 
 pp. 32, 180.) 
 
IN TRUST OWNERSHIP. 123 
 
 These are not the only points on which equity does not 
 observe its own principle of following the law. Thus, it 
 disregards altogether the doctrine of seisin in regard to 
 equitable interests in freehold land. Accordingly, such 
 interests can be made to commence from a future time 
 independently of the determination or not of previous 
 freehold interests ; while a fee simple in them can be made 
 to shift over from one grantee to another on the happening 
 of a given event. {Sfie infra, p. 163.) For the same 
 reason, the old common law methods of transferring legal 
 interests in land have no application to equitable interests 
 in it. These latter are in their nature averrabk, that is, 
 capable of being created by word of mouth, or parol, as it 
 is called technically. And originally they could also be 
 assigned or transferred from one owner to another by 
 parol. Now by sect. 10, the Statute of Frauds, 1677, the 
 declaration of trust of land, that is, the creation of equit- 
 able interests in it, must be evidenced in vwiting, signed 
 by the person entitled to declare the trust, i.e., the settlor : 
 and by sect. 9, assignments of equitable interests, whether 
 in lands or goods, must be in writing signed by the party 
 assigning them. The Statute of Frauds, however, cannot 
 be used as a shield for fraud. (Strahan's Eq. p. 51.) 
 Therefore, if a person gets possession of property on the 
 express understanding that he is to hold it on trust, he 
 will not afterwards be allowed fraudulently to keep the 
 property and refuse to discharge the trust on the ground 
 that such understanding was not evidenced by writing. 
 {Rochefoucauld v. Boustead, (1897) 1 Oh. 196.) Writing 
 is sufficient, and a deed is not necessary to assign any 
 equitable estate, except in the case of an equitable estate 
 in tail, which, under sect. 40, the Fines and Recoveries 
 Act, 1833, can be assigned only in the same manner as a 
 legal estate in tail. [See In re Harvey, Harvey v. Harvey, 
 ( 1 901) 2 Ch. 290.) A trust of goods may still be created 
 by parol. {McFadden v. Jones, 1 Ph. 153.) In practice, 
 as a rule, the same instruments are used to declare or 
 
124 MODES OP HOLDING INTERESTS. 
 
 assign equitable interests of all kinds as are used to grant 
 or convey the corresponding legal interests. 
 
 Equitable fees simple, as they were not the subject of 
 tenure, were not liable to escheat, which is an incident of 
 tenure {infra, -p. 307). On the death of an equitable 
 owner in fee simple intestate and without heirs, the trustee, 
 as terre tenant, held the lands discharged from the trust, 
 i.e., for his own benefit. {Burgess y. Wheate, 1 Eden, 177.) 
 In a trust of goods, however, the Crown was entitled to the 
 goods as bona vacantia, goods without an owner. And now 
 by the Intestates Estates Act, 1884 (47 & 48 Vict. c. 71), 
 ss. 4 and 7, equitable interests in hereditaments, on the 
 death of their owner intestate and without heirs, are also 
 to go to the Crown. ((See infra, p. 309.) 
 
 Devolution of Legal Estate. — The estate of the trustee 
 was, as we have seen, the legal or technical ownership ; 
 and on the trustee's death it devolved according to its 
 nature. If it were held by him jointly with other trustees, 
 it survived to the surviving joint owners. If he were sole 
 trustee, it went under his will ; or, if he died intestate, it 
 went, if realty, to his heir ; if personalty, to his adminis- 
 trator; in every case it remained liable to the trust. Now, 
 by sect. 30 of the Conveyancing Act, 1881, on the death 
 of a sole trustee, the trust property, whether it be land or 
 goods, and whether the trustee has attempted to devise 
 or bequeath it to others or not, vests in the deceased 
 trustee's personal representatives, that is, in his executors 
 if he have made a will, in his adniinistrators if he have 
 not. (Strahan's Bq. p. 87.) And now, as far as land iu 
 England is concerned, by sect. 1 (1) of the Land Transfer 
 Act, 1897, every kind of real estate, save copyholds, on 
 the death of its owner, devolves in all oases in the first 
 instance to its late owner's personal representatives pre- 
 cisely as if it were goods. 
 
IN CONCURRENT OWNERSHIP. 125 
 
 Section II. 
 IN CONOUEEENT OWNEESHIP. 
 
 PAGE 
 
 Concurrent Ownership 125 
 
 Sub-sect. 1. Joint Tenancy 126 
 
 Sub-sect. 2. Coparcenary .... 137 
 
 PAGE 
 
 Sub-sect. 3. Tenancy in Common 139 
 Sub-sect. 4. Tenancy hy Entire- 
 ties 141 
 
 Concurrent Ownership. — Ownership ia concun-ent when 
 it is vested in two or more persons at the same time. By 
 person here is not necessarily meant an individual. An 
 individual is, of course, a person, but a person frequently 
 means two, four, a score, a hundred, or a thousand indi- 
 viduals taken together. Person, or persona, represents 
 simply the legal limit, which may be an individual or may 
 be any number of individuals so bound together that the 
 law for its own, or for certain purposes, will regard them 
 as a unit. A number of persons so bound together are said 
 to be incorporated, and are called a corporation. [See infra, 
 pp. 382 et seq.) The individuals forming the corporation do 
 not own concurrently things belonging to the corporation. 
 Individually they have no ownership in such things what- 
 ever. The legal entity, called the corporation, owns them, 
 and it owns them in severalty : that is, not in concurrent 
 but in exclusive ownership. 
 
 Concurrent ownership is divided into joint tenancy, 
 coparcenary, tenancy in common, and tenancy hy entireties. 
 These different kinds of concurrent ownership differ from 
 one another in many respects; but there is one point 
 upon which they are all the same, and on which they 
 differ from ownership in severalty — namely, land or goods 
 owned in any form of concurrent ownership are owned 
 in undivided shares. However much the concurrent 
 owners differ as to the extent or duration of their interests 
 in the thing owned, they each have joint possession of the 
 whole of it and exclusive possession of no part of it. That 
 
126 MODES OF HOLDING INTERESTS. 
 
 is the cardinal distinction between all kinds of concurrent 
 ownership and ownership in severalty. As between the 
 different kinds of concurrent ownership, this point is to be 
 noticed : that while all of them, save tenancy by entireties, 
 may subsist equally in legal and equitable interests, only 
 joint tenancy and tenancy in common can subsist equally 
 in land and goods ; coparcenary and tenancy by entireties 
 can subsist only in freehold lands. 
 
 Sub-section 1. 
 
 JOINT TENANCY. 
 
 PAGE 
 
 Severance at Law 131 
 
 PAGE 
 
 Characteristics of Joint Ten- 
 ancy 126 
 
 Eourfold Unity 126 
 
 Right of Snrvivorship 129 
 
 Severance of Joint Tenancy . . 131 I Trustees Joint Tenants 136 
 
 Severance in Equity 1 34 
 
 User of .Joint Estate 135 
 
 Characteristics.- — -Joint tenancy, whether in land or in 
 goods, always arises by the act of the parties, and never 
 by operation of law, that is, it always arises through an 
 actual gift, grant, or agreement, and never through the 
 descent or devolution of the thing owned on the death of 
 the owner intestate. A grant or bequest to "A. and B." 
 without more, or to "A. and B. jointly," or to "A. and 
 B. during their joint lives," or in any other similar terms, 
 will create a joint tenancy. The chief characteristics of 
 joint tenancy are what are called its fourfold unity and 
 the right of survivorship. 
 
 Fourfold Unity. — The fourfold unity consists of unity of 
 title, unity of time, unity of interest and unity of jjossession. 
 
IN CONCURRENT OWNERSHIP : JOINT TENANCY. 127 
 
 By unitjj of title is meant that the interest of all the 
 joint tenants must arise under the same instrument or out 
 of the same act. For example, if A. conveyed Blackacre 
 to B. and C. jointly, and subsequently 0. transferred his 
 interest in the joint estate to D., B. and D. would not be 
 joint tenants, as B.'s title would arise under the first, and 
 D.'s under the second grant. In such a case B. and D. 
 would hold as tenants in common, as we shall shortly see. 
 
 By iinity of time is meant that the interests of all the 
 joint tenants must come into existence at one and the 
 same time. (Co. Litt. 188.) Thus, for example, property 
 cannot be given directly [inter vivos at any rate) to A. till 
 he marries, and then to him and his wife jointly, because 
 here A.'s interest would come into existence immediately 
 after the gift, while his wife's would arise later (on her 
 marriage). This rule, however, does not apply to grants 
 made by way of use or trust {see infra, p. 166), or to gifts 
 made by will. 
 
 Thus, in the case of freeholds, a grant, for example, to 
 A. and his heirs to the use of B. and his heirs till B. 
 marries, and then to the use of B. and his wife and their 
 heirs jointly, will confer a joint estate on B. and his future 
 wife from their marriage. This estate will, in consequence 
 of the Statute of Uses, 1535, be an estate at law. A gift 
 of goods to trustees on trusts similar to these uses will 
 likewise create a joint tenancy in B. and his future wife 
 from their marriage ; but here the joint interest will be 
 equitable. (See infra, p. 172.) 
 
 Again, a gift by wUl to A. for life, and in case she has 
 children to them as joint tenants on her death, creates a 
 good joint tenancy in A.'s children. On birth, each child 
 will take a joint interest in the property subject to be 
 partially divested to let in other children born later. 
 [Kemvorthy v. Ward, 11 Ha. 196; and see Under. & Stra. 
 on Wills, p. 105.) 
 
 By unity of interest is meant that the share of each joint 
 owner in the joint ownership must be identical. Thus one 
 
128 MODES OF HOLDING INTERESTS. 
 
 joint tenant cannot be entitled to greater rights over the 
 thing owned than any other joint tenant, to use it 
 difFerently, or obtain a larger share of the income arising 
 out of it. As long as the joint ownership continues, the 
 rights of each joint owner as joint owner must be the 
 same. 
 
 One joint tenant, however, may have rights of owner- 
 ship in the thing owned over and above those he possesses 
 jointly with others. For example, if the interest held 
 jointly be a life estate, he may have the reversion in the 
 joint estate in fee simple in severalty, or if he have an 
 estate for life in severalty, that may be followed by a 
 remainder in fee held by him jointly with others. 
 
 It is sometimes said that by unity of interest is meant 
 that the interest of each joint tenant must be of the same 
 duration; ex. gr., one tenant's interest could not be a life 
 estate and another an estate for years. (Co. Litt. 188.) 
 This no doubt is so, since a joint tenancy means an interest 
 held jointly, and here there are (not an interest held 
 jointly, but) two distinct and different interests. 
 
 For some reason not very clear, but supposed by some 
 to be connected with this necessity for equality of interest, 
 corporations could not be joint tenants of freehold lands. 
 (Co. Litt. 190a.) Thus, on a limitation to two corjDorations 
 jointly, or to a corporation and an individual jointly, the 
 tenancy resulting was not a joint tenancy but a tenancy in 
 common. (Litt. s. 297.) This rule did not apply to joint 
 tenancies of leaseholds or chattels, and the reason given 
 for this seems to limit the application of the rule to corpo- 
 rations sole. (Co. Litt. 190a.) However this may be, 
 the rule itself is now abolished by the Bodies Corporate 
 (Joint Tenancy) Act, 1899 (62 & 63 Vict. c. 20), which 
 enables corporate bodies to hold in joint tenancy any real 
 or personal property which they are capable of holding, as 
 if they were individuals. 
 
 By unitij of possesnion is meant, that all joint tenants 
 have an equal right to the possession of the thing jointly 
 
IN COKCUREENT OWNERSHIP : JOINT TliNANCY. 129 
 
 owned. It follows, as a corollary from this, that no par- 
 ticular joint tenant is entitled to exclusive possession of 
 any part of the thing jointly owned. This is what is 
 meant by the old maxim that joint tenants of freeholds 
 are seized per my et per tout, of none and of all, not, as 
 Blackstone (2 Bl. Com. 181) says, "of half and of all." 
 (Co. Litt. 186 a.) 
 
 Right of Survivorship. — ^The most important characteristic 
 of joint tenancy is the right of survivorship, or jus accres- 
 cendi. When an interest in land or goods is limited to 
 two or more persons jciintly, the joint tenants are regarded 
 as one proprietor, and as each tenant dies the whole estate 
 survives to the surviving tenant or tenants until only one 
 tenant remains, who then becomes owner of the interest in 
 severalty. The surviving tenant or tenants are entitled to 
 the whole joint interest on a fellow joint tenant's death, 
 regardless of any devise or bequest of his share which he 
 may have made by his will, or of any rentcharge upon the 
 joint interest which he may have granted during his life, or 
 of any claims of creditors for debts due by him, or of any 
 claim by his widow for dower or jointure, or if the de- 
 ceased tenant were a woman, of her husband's right to an 
 estate by the curtesy. {See infra, p. 310.) 
 
 This right of survivorship makes it impossible to limit 
 an estate in tail general in joint tenancy. When freehold 
 land is limited to A. and B. and the heirs of their bodies, 
 the estate that will result depends on whether A. and B. 
 (being unmarried man and woman) are or are not capable 
 of lawful marriage. If they are not capable of marrying 
 — as if they are brother and sister — then they will have a 
 joint estate for life with inheritances in tail in common. 
 If they are capable of mari-ying, they will take a joint 
 inheritance in special tail. On a limitation to A., B., and 
 
 S. K 
 
130 MOOES OF HOLDING INTERESTS. 
 
 C. in fee simple, or of goods to A., B., and C. simply, the 
 survivor takes the whole property absolutely.^ 
 
 Of course, in every case the right of survivorship obtains 
 only 31 the joint estate is actually subsisting at the death 
 in question. If severance, as it is called, has taken place, 
 from that moment the joint estate is destroyed, and with 
 it the right of survivorship among the joint tenants. 
 
 It IS a rule, partly recognized in law and fully recog- 
 nized in equity, that for the benefit of commerce the right 
 of survivorship does not obtain among partners as to pro- 
 perty held by them in joint ownership for partnership 
 purposes. '^Lake v. Gibson, 1 Eq. Gas. Ab. 294 ; 1 W. & T.) 
 By the Partnership Act, 1890 (53 & 54 Vict. c. 39), " part- 
 nership " is defined as the relationship subsisting between 
 two or more persons carrying on a common business with 
 a view to profit (sect. 1 ) ; and " partnership property," as all 
 property, rights, and interests, originally brought into the 
 common stock, or acquired on account of the firm, or in the 
 course of the common business. (Sect. 20.) Property 
 purchased with partnership money is (until the contrary 
 appears) to be deemed to be acquired on account of the 
 firm. (Sect. 21.) Land which has become partnership 
 property is converted — that is, theoretically changed into 
 personalty — as between the partners, their heirs and 
 executors. (Sect. 22 ; and see Strahan's Eq. p. 192.) On 
 the decease of a partner all the partnership property 
 survives to the surviving partner or partners, who, how- 
 ever, hold it, subject to the partnership agreement, for the 
 benefit of the deceased partner's executors or administrators 
 after payment of the partnership debts. The right, how- 
 
 ' Limitations of joint tenancies are frequently made to tlie 
 grantees and the survivor of them. In the case of life estate, these 
 latter words are mere surplusage, and do not affect the interests 
 given. In the case of fees simple, however, they alter the limita- 
 tion from a joint estate in fee simple to a joint estate for lives, with 
 a contingent remainder in fee simple to the survivor. (Quarmv. 
 Quarm, (1892) 1 Q. B. 184.) 
 
IN CONCURRENT OWNERSHIP : JOINT TENANCY. 131 
 
 ever, of the executor or administrator is not to any specific 
 part or share of the partnership property, but merely to the 
 value of suoh share, after all proper deductions. This right 
 gives rise merely to a debt against the surviving partners, 
 who are not in any sense trustees of the deceased partner's 
 share for the benefit of his personal representatives.^ 
 
 Severance of Joint Tenancy. — "When the fourfold unity, 
 which, as we have seen, characterizes joint tenancy, is 
 broken in upon, the joint estate is destroyed, and those 
 who were before joint tenants hold henceforth either as 
 tenants in common or tenants in severalty, according as 
 the property remains in their common possession, or is 
 divided up among them. The joint estate is then said to 
 be severed. 
 
 When joint tenants for life sever, each takes a tenancy 
 in severalty or in common for his own life in his t'hare. 
 As there is no right of survivorshijj between tenants in 
 common, on the death of one tenant his share goes to the 
 person entitled in reversion, even though the other tenants 
 are living. If the joint tenancy had continued, the rever- 
 sioner could not have entered upon any part of the pro- 
 perty till the death of the last surviving of the joint 
 tenants. Accordingly, severance in such a case is an 
 advantage to the reversioner, and a corresponding dis- 
 advantage to the joint tenants. (Co. Litt. 252.) 
 
 Sevt^i'ance may be either legal or equitable. Where the 
 severance is legal, the joint estate is for all purposes at 
 an end. Where the severance is merely equitable, only 
 the beneficial interest is severed, the legal estate remaining 
 unaffected. 
 
 Severance at Law. — A joint tenancy, where the joint 
 
 ' But see In re Holland, Brettell v. Holland, (1907) 2 Oh. 88. 
 A new kind of partnership is introduced by the Limited Partner- 
 ships Act, 1907, by which a, partner who take^ no share in the 
 management of the partnership business may limit his liabilitj^ to 
 the extent of the capital he puts into the partnership. 
 
 k2 
 
132 MODES OF HOLDING INTERES IS. 
 
 tenants are beneficial owners, may be severed either (a) by 
 a partition of the joint estate, or (b) by alienation by cme 
 of the joint tenants of his imdivided share. 
 
 (a) By partition is meant the dividing up of the joint 
 estate among the joint tenants, who henceforth hold their 
 individual shares in severalty. 
 
 The common law conferred the right on one tenant to 
 claim against the wishes of the other tenants a partition 
 of an estate held in concurrent ownership only when the 
 estate arose by operation of law and not by th.e act of the 
 parties. As joint tenancies always arise in the latter vs^ay, 
 no sucb right existed in their case. This rule still prevails 
 as to goods held in joint ownership, and so no partition 
 can take place as to them except by the consent of all the 
 joint tenants. (Litt. 290.) As to land, however, besides 
 partition by consent, partition may be obtained under the 
 PartitioQ Acts, 1539, 1540, 1868 and 1876, by any joint 
 tenant without the consent of his co-tenants, by application 
 to the Chancery Division in England, or the Chancery 
 Division or the Landed Estates Court in Ireland, or if 
 the propertj' in question does not exceed 500/. in value (in 
 Ireland 30/. annual value), by application to the County 
 Court. 
 
 Whether the partition takes place by agreement between 
 the joint tenants or by decree of the Court, the joint tenants 
 must mutually convey to one another their allotted shares. 
 This conveyance must be by deed (Keal Property Act, 
 1845, s. 3), and should be not by way oi grant but by way 
 of release. [See infra, p. 244.) The conveyance should 
 be by release because before partition each tenant was in 
 possession and owner of the whole, and therefore there is 
 no need to convey to the one tenant what was already his, 
 but merely to release the rights of the other tenants over it. 
 When, however, a partition by agreement is made through 
 the Board of Agriculture (which is the usual and cheapest 
 method), no conveyances of any kind are necessary. 
 
 By sects. 3 and 4 of the Partition Act, 1868, amended 
 
IN CONCURRENT OWNERSHIP : JOINT TENANCY. 133 
 
 by the Partition Act, 1876, the Court has power to decree 
 a sale with division of the proceeds instead of a partition. 
 The power under sect. 3 is absolutely discretionary, and 
 may be exercised by the Court if it thinks a sale would 
 be beneficial, on the request of anyone interested in the 
 joint estate. Sect. 4, on the other hand, gives parties 
 interested to the extent of a moiety a right to demand 
 a sale instead of a partition unless the Court sees good 
 reason for refusing it. (I) r ink i cater v. Ratclijf'e, L. E. 
 20 Eq. -528.) The Court m&j decree sale of part of the 
 joint estate, and partition of the rest. [Roebuck v. 
 Chadebef, L. R. 8 Eq. 127.) If a joint tenant who has 
 taken out a summons to partition dies before order made, 
 there is no severance (In re Wllkn, Child v. Balmer, (1891) 
 3 Ch. 59), and ccmsequently the whole estate survives to 
 the surviving joint tenants ; and when in a partition action 
 a sale is ordered of a joint estate of freehold of which one 
 of the joint tenants is an infant, the infant's share of the 
 proceeds is regarded as realty, and if he dies before coming 
 of age, it devolves as realty. (In re Norton, Norton v. 
 Norton, (1900) 1 Ch. 10 L.) 
 
 (b) Alienation by a joint tenant of his undivided share 
 of the joint property, whether that property be land or 
 goods, causes severance of the joint tenancy. The sever- 
 ance here, however, is not so complete as in the case of 
 partition, since the joint tenants do not become owners in 
 severalty, but owners in common. {See infra, p. 139.) If 
 there are more than two joint tenants, and one only 
 alienates, this alienation will not sever the joint tenancy 
 as between the other tenants. These will continue to hold, 
 a^ between themselves, in joint tenancy; while as between 
 them and the grantee of the alienated share they will hold 
 as tenants in common. (Co. Litt. 189 a.) 
 
 Before the Married Women's Property Act, 1882, 
 marriage in the case of a female joint tenant always 
 caused a severance of the joint tenancy, because, if before 
 the marriage she settled her share for her separate use, this 
 
134 MODES OF HOLDING INTERESTS. 
 
 necessitated a conveyance of it to the trustees of her mar- 
 riage settlement, and if she did not settle it, the marriage 
 vested it in her hushand. In either case the unity of 
 title was broken in upon and the joint estate determined. 
 Nov?, marriage, in itself, vests no property of the wife in 
 her husband, and, accordingly, marriage alone will not 
 sever a joint tenancy of which the wife is a tenant. 
 {Palmer v. Rich, (1897) 1 Ch. 134.) 
 
 Severance of joint tenancies in land may also be brought 
 about by merger. Thus, if A. and B. are joint life 
 tenants of Blackacre, then the reversion in fee descends 
 upon A., A.'s life tenancy will merge in the fee, and A. 
 and B.'s interests becoming unequal, the joint tenancy 
 will come to an end. If the reversion had been limited to 
 A. in the same deed or instrument as created the joint 
 estate, there would have been no merger. (2 Bl. Com. 
 186.) 
 
 Severance in Equity. — In consequence of the right of 
 survivorship, which, as we have seen, is incidental to joint 
 ownership, and which equity regards as unfair, equity, as 
 the phrase is, leans against joint tenancies. In the 
 language of Lord Cowper, C, equity regards them as 
 " odious." [York v. Stone, 1 Salk. 158.) An example of 
 that leaning has been seen already in the case of partnership 
 property. In the same way, on a joint purchase of land, 
 if the purchase-money be advanced by the purchasers in 
 unequal proportions, though they will be joint tenants in 
 law, yet in equity they will be tenants in common. {Lnl;e 
 v. Craddock, 2 P. Wms. 158 ; 1 W. & T.) And in the 
 case of mortgages, whether the mortgagees advanced tne 
 mortgage money equally or unequally, they will in equity 
 be held tenants in common of the mortgage debt, unless 
 the mortgage deed expressly provides that they are to be 
 joint tenants in law and iu equity. (In re Jackson, 34 
 Oh. D. 732.) 
 
 Again, in the case of gifts by will to a number or class 
 
IN CONCURRENT OWNERSHIP : JOINT TENANCY. 135 
 
 of persons, though if there be nothing to indicate an 
 intention that the individual devisees or legatees are to 
 take separate interests, equity will regard them as joint 
 tenants, yet it will take advantage of the slightest indica- 
 tion of such an intention to hold them to be tenants in 
 common. Thus, a gift " between," " among," " to be 
 divided between," a certain class wiU in equity make the 
 gift a gift in tenancy in common. Words of this kind 
 are called " words of severance." {Attorncij-General v. 
 Fletcher, L. E. L'i Eq. 128.) 
 
 Again, any agreement between the joint tenants that 
 the joint tenancy is at an end will determine it in equity, 
 but no mere declaration by one joint tenant to which the 
 other joint tenants were in no sense parties will have that 
 effect. {In re Wilks, Child v. Buhnvr, (1891) 3 Ch. 59.) 
 In the same way a covenant to settle covenantor's share 
 in the joint estate will be sufficient to cause severance 
 {Burnaby v. Equitable Rerersion Interest Societi/, 28 Ch. D. 
 416), whether such covenant was entered into before or 
 after the joint estate arose. {In re Hewitt, Heiritt v. 
 Hallett, (1894) 1 Ch. 362.) 
 
 User of the Joint Estate. — Joint tenants, as between them- 
 selves, are entitled to make what use they like of the thing 
 jointly owned, subject to these two restrictions : that no 
 tenant shall oust, or deprive of possession, any other tenant 
 of the whole or any part of the joint estate ; and that no 
 tenant shall commit voluntary, or at any rate, destructive 
 waste of the joint property. As between themselves, they 
 certainly are not liable for mere permissive waste ; and if 
 one joint tenant spends money in repairs of the oommon 
 property, he cannot, during the continuance of the joint 
 tenancy, recover a share of his expenditure from the other 
 joint tenants, unless he had express or implied authority 
 from them to expend the money, or unless the repairs were 
 absolutely necessary for the preservation of the property 
 itself {Leigh v. Dickeson, 15 Q. B. D. 60), though on a sale 
 
136 MODES OF HOLDING INTERESTS. 
 
 or partition of the joint estate the Court will allow him a 
 part of such expenditure in proportion to the extent to 
 which it has increased the value of the shares of the 
 estate of the other joint tenants. {In re Jones, Farrmgdon 
 V. Forrester, (1893) 2 Oh. 461, at p. 476; In re Cook's 
 Mortgage, Lawledge v. Tyndale, (1896) 1 Ch. 923; cf. Hill 
 V. Eickin, (18^(7) 2 Ch. 579.) A joint tenant is hahle for 
 voluntary waste (Statute of Westminster the Second, 
 1285), but when that waste consists in the proper 
 working of the estate, it would seem that he is liable only 
 to the extent of rendering an account to his co-tenants of 
 the profits resulting therefrom, and appropriating to his 
 own use no more than his proper share of these. [Job v. 
 Potton, L. E. 20 Eq. 84.) Under the Judicature Act, 
 1873 (sect. 34, sub-sect. 3), au order for such account 
 can be obtained in the Chancery Division. [See 4 Anne, 
 c. 16, s. 27.) 
 
 Trustees Joint Tenants. — Trustees are always made joint 
 tenants of the trust estate. This is because the right of 
 survivorship, being an incident of joint tenancy, prevents 
 complications, and saves expense on the death of one of 
 several trustees, by vesting the whole trust property in the 
 remaining trustees without any act on the part of any one. 
 If the trust property had been held in any other way, the 
 deceased trustee must have devised or bequeathed his share 
 in it to the other trustees, or a reconveyance from the 
 trustee's heir or personal representatives would have been 
 necessary. 
 
IN CONCURRENT OWNERSHIP : COPARCENARY. 137 
 
 Sub-section 2. 
 
 coparcenary. 
 
 PAGE 
 
 
 PAOE 
 
 Characteristics of Coparcen- 
 
 Severance 
 
 138 
 
 ary 137 
 
 User 
 
 139 
 
 
 
 Characteristics. — When two or more persons take an 
 estate as together constituting the heir (Co. Litt. 163) of 
 its deceased owner, they hold that estate in coparcenary, 
 and they themselves are called coparceners or, more shortly, 
 parceners. Two points are to be Doted in this definition. 
 In the first, as coparcenary is grounded on heirship, it can 
 only arise by descent, and it can only subsist in estates of 
 inheritance. It cannot, therefore, be created by grant or 
 will (J/' re Baiter (1698), W. N. 156 (12) ), or subsist over 
 goods, on both of which points it differs from joint tenancy 
 and, as we shall see, from tenancy in common. 
 
 Two or more persons may constitute a single heir 
 either : — 
 
 (a) Under the common law, where, through the absence 
 
 of males, females, or the issue of females, inherit. 
 For example, A., an owner of fee simple lands, 
 dies intestate, leaving no son and five daughters ; 
 the five daughters will inherit the lands together as 
 his heir. And if one of the daughters be dead, 
 leaving issue, that issue will take their mother's 
 share in coparcenary with the surviving daughters. 
 In the san)e way, where any class of female rela- 
 tives, as sisters, aunts, cousins, or their representa- 
 tives succeed as one heir, they are coparceners of 
 the descended estate. 
 
 (b) Under special customs, which make all the males 
 
 of a certain class a single heir ; as gavelkind, for 
 instance, where all the sons succeed together. 
 
138 MODES OP HOLDING INTERESTS. 
 
 As regards the unities, coparcenary is characterised by 
 unity of possession and to a certain extent unity of 
 title — derivation by descent from the same ancestor. There 
 is, however, no unity of interest. The shares of the 
 coparceners may be from the first unequal. Taking the 
 example already given, if B. — one of A.'s five daughters 
 — was dead at A.'s decease, leaving no son, but three 
 daughters, these three daughters would be coparceners 
 with their four aunts, but they would have between them 
 only their mother's share : that is, each of them would only 
 have a fifteenth share, while their aunts would each have a 
 fifth share of the whole estate. Nor is there any unity of 
 time. If one of the four aunts in the last example died 
 intestate after her father's death, her share, if she left issue, 
 would descend to them in coparcenary with the other 
 coparceners ; if she left no issue, it would go in copar- 
 cenary among the other coparceners. 
 
 As there is no unity of interest, there is no right of 
 survivorship in coparcenary. As already indicated, in- 
 terests in coparcenary on the death of their ovraer intestate 
 descend precisely as do interests in severalty. 
 
 Severance. — As in joint tenancy, severance will result 
 from partition of the whole estate or alienation by one 
 coparcener of her share. In the latter case, the incoming 
 tenant holds as tenunt in common with the other co- 
 parceners. 
 
 Since tenancy in coparcenary always arises by operation 
 of the law and never by the act of the parties, the right of 
 one coparcener to claim a partition of the common property 
 exists at common law. [See supra, p. 132.) Littleton enu- 
 merates four methods by which partition could be made : — 
 (1) By agreement between the parceners, each to take a 
 determinate part of the land. (2) Partition by a friend, 
 each parcener choosing her share according to age. 
 (3) Partition by the eldest parcener, who then is the 
 last to choose her share. (4) Partition by lot. (Litt. 
 
IN CONCURRENT OWNERSHIP: COPARCENARY. 139 
 
 s. 243 to s. 264.) Some things, however, were not at 
 common law partitionable, such as the mansion-house of 
 the estate. The oldest parcener had a right to it on 
 making compensation to the others, or they all could have 
 it in turns. (Co. Litt. 164.) Now the Partition Act, 
 IhHS, with its provisions as to sales in lieu of partition, 
 applies to interests in coparcenary as well as to joint ten- 
 ancies. Formerly, a partition might be made by parol 
 agreement among the coparceners, but now a deed is 
 necessary. (Real Property Act, 1845, s. 3.) As to the 
 form of the deed, on the alienation by one coparcener of 
 her share to another coparcener, she may convey it either 
 by release, as in the case of a joint tenancy, or by grant, 
 as in the case of a tenancy in common. On a conveyance 
 to a stranger she conveys by grant. 
 
 User. — ■Coparceners are practically in the same position, 
 as to user, waste, and repairs, as other concurrent owners. 
 
 Sub-section 3. 
 texancy ix common. 
 
 PAGE 
 
 Charaoteristios of Tenancy in 
 Common 139 
 
 PAGE 
 
 Severance 140 
 
 User of Estate in Common .. 141 
 
 Characteristics of Tenancy in Common. — Like joint ten- 
 ancy, tenancy in common, whether in land or goods, never 
 arises by inheritance from an ancestor. The three most 
 usual ways in which it arises are — (a) by express limitation, 
 as " to A. and B. as tenants in common," or by the gift of 
 an undivided share of an estate or fund, as " to A. the half 
 of my farm of Blackacre " (Litt. § 299) ; (b) by severance 
 
140 MODES OF HOLDING INTERESTS. 
 
 without partition of a joint tenancy or a coparcenary 
 (Litt. § 309) ; (c) by construction of law, as in the case of a 
 limitation to A. and B. (brother and sister) and the heirs 
 of their bodies jointly ; here A. and B. hold a joint estate 
 for life with estates in tail in common in remainder. 
 Where in a gift joint at law there is a severance in equity, 
 the legal estate remains joint, while the equitable estate 
 becomes a tenancy in common.' 
 
 Of the four unities which characterise joint tenancy, 
 only one exists in the case of tenancy in common — unity 
 of possession. Tenants in common need not claim under 
 the same instrument or act, they need not have equal un- 
 divided shares of the estate in common, and their intei'ests 
 need not have been created at the same time. Neither is 
 there any right of survivorship attached to their interests : 
 on the death of a tenant in common his interest in the 
 common estate is subject to his will, and if he dies intestate 
 it descends to his real or personal representatives according 
 to its nature and tenure precisely as if it were held in 
 severalty. 
 
 Severance. — As in tenancy in common the only unity 
 which exists is unity of possession, it follows that the only 
 severance which can take place is by partition of the estate 
 held in common. 
 
 The various Partition Acts already referred to apply to 
 tenancy in common equally with joint tenancy. It is only 
 necessary here to add that, in case of a partition, whether 
 voluntary or under the Partition Act, 1868, and whether 
 between the original tenants in common or between some 
 of them and the grantees of the others, the mutual con- 
 
 '■ Blackstone sums up the different modes in which a tenancy in 
 common may arise very tersely : ' ' Tenancy in common may be 
 created either by the destruction of the two other estates, in joint 
 tenancy and coparcenary, or by special limitation in a deed." 
 (2 Bl. Com. 191.) The bearing of the last three words is not very 
 clear. A tenancy in common may be limited in a will, or any 
 other instrument capable of conveying the property. 
 
TENANCY BY ENTIRETIES. 141 
 
 veyances of the allotted shares should be not by release, 
 but by ordinary conveyance. This is because, though the 
 possession is joint, their interests are several. (Co. Litt. 
 200 b.) 
 
 User of Estate in Common. — Practically the rights of a 
 tenant in common over the estate in common are the same 
 as those of a joint tenant over the joint estate. And the 
 same is the case as to waste and repairs. 
 
 SUB-SECI'ION 4. 
 TENANCY BY ENTIRETIES. 
 
 PAGE 
 
 Characteristics 141 
 
 PAOE 
 
 Married Women's Property 
 Act, 1882 142 
 
 Characteristics. — When a legal estate of freehold was 
 granted or devised to a man and his wife in terms which 
 would have made them joint tenants of it had they not 
 been man and wife, they, as long as they remained man 
 and wife, held it not as joint tenants, but as tenants by 
 entirpties. Divorce, it would seem, changed the tenancy 
 by entireties into an ordinary joint tenancy. (Thornley v. 
 Thornley, (1893) 2 Ch. 229.) 
 
 Tenancy by entireties is founded on the old common 
 law doctrine that husband and wife are in law only one 
 person. This rendered it impossible for them to be joint 
 tenants. (2 Bl. Com. 181.) And it also accounts for the 
 peculiar characteristics of tenancy by entireties. Thus, 
 each tenant by entireties is seised of the entirety of the 
 estate — that is jxr tout, but not per my. Either tenant is 
 unable, during the coverture, to dispose of the estate, or of 
 
142 MODES OF HOLDING INTERESTS. 
 
 any part of it, save with the concurrence of the other 
 {I)oe d. Freedone v. Parratt, 5 T. R. 652) ; and if it be 
 not disposed of during their joint lives, it survives, like a 
 joint estate, to the survivor. During the coverture, the 
 husband is entitled to the whole rents and profits. 
 
 Married Women's Property Act, 1882. — It seems certain 
 that, since the Married Women's Property Act, 1882, a 
 grant to a husband and wife, not expressly as tenants by 
 entireties, but merely in terms which, had the grantees 
 not been husband and wife, would have made them joint 
 tenants, will now make them simply joint tenants. The 
 wife will, in such case, be entitled to a moiety of the rents 
 and profits for her separate use, and to an account as 
 against the husband. {Thornleij v. Thornley, mpra!) 
 "Whether, however, a grant to them expressly as tenants 
 by entireties would not still create a good tenancy by 
 entireties is doubtful. [See Re Jupp, Jupp v. Buckwell, 
 39 Ch. D. 148.) The unity of the husband and wife is 
 still recognized to this extent, that in grants to husband 
 and wife and a third person as joint tenants, in the 
 absence of anything in the instrument to the contrary, the 
 husband and wife together take only a moiety between 
 them. {Re Jupp, supra.) 
 
IN FUTURE OWNERSHIP : AT COMMON LAW. 
 
 143 
 
 Sectiok III. 
 IN FUTUEE OWNERSHIP. 
 
 PAOE 
 
 
 PAGE 
 
 Future Ownership 143 
 
 Sub-sect. 3. 
 
 Under Statute 166 
 
 
 4. 
 
 Powers 173 
 
 Sub-sect. 1. At Common law.. 143 
 
 5. 
 
 Perpetuities and 
 
 2. In Equity 162 
 
 
 Accumulations.. 183 
 
 Future Ownership. — When a person's interest or share of 
 the ownership in a thing is preceded by another interest 
 or share of the ownership vested in someone else, the 
 former person's interest is future or in expectancy. Some 
 such future interests existed at common law ; others, again, 
 were the creation of the Court of Chancery ; while others 
 owe their origin, at least as legal as opposed to equitable 
 interests, to statute. 
 
 Sub-section 1. 
 
 FUTOBE On'NERSBIP AT COMMON LAW. 
 
 PAGE 
 
 No future Interests in Goods . . 143 
 
 Future Interests in Land .... 144 
 
 Rule in Shelley^ s Case 150 
 
 Kinds of Future Estates .... 153 
 
 PAGE 
 
 Reversions 154 
 
 Remainders 156 
 
 Failure of Contingent Re- 
 mainders 159 
 
 No Future Interests in Goods. — Future ownership, in the 
 sense in which we have defined it, can subsist only in things 
 the ownership of which is capable in law of being divided 
 up among different persons in succession. Now at common 
 law, as we have seen, the ownership of goods could not 
 be so divided up ; consequently at common law there 
 
144 MODES OF HOLDING INTERESTS. 
 
 could be no future interests in goods. On the other hand, 
 the common law permitted the ownership of land to be 
 divided up into successive periods of duration. Accord- 
 ingly, at common law there could be future interests in 
 land. And furthermore, when the ownership of land was 
 divided up in this way, all the interests or estates so 
 created, save the one in actual enjoyment, were necessarily 
 future in their nature. 
 
 Future Interests in Land.^It is important to remember 
 what we have already referred to — that at common law 
 freehold interests are the only interests which were, or 
 for that matter are, regarded as proprietary interests in 
 land. Fee simple is the full ownership of the land so far 
 as full ownership can subsist in land ; fees tail and life 
 estates are parts of the ownership. But at common law 
 terms of years or leases for fixed periods are not regarded 
 as proprietary interests at all ; they are mere matters of 
 contract between the owner of the land and the occupier 
 of it. Accordingly, all future interests at common law 
 are necessarily freehold interests, and in limiting them no 
 attention is paid to the existence or non-existence of terms 
 of years or other chattel interests. ^ 
 
 Now there are two main doctrines of the common law 
 as to ownership of land which must be clearly apprehended 
 before the principles affecting the creation of future 
 interests can be understood. 
 
 1 . The first of these — to which we have already referred 
 (supra, p. 80) — lies at the basis of the conception of owner- 
 ship of anything. It is simply this, that ownership is a 
 
 ' It is, perhaps, worth noting that the first example given by 
 Blaokstone of a f ature interest at common law is at common law 
 not a future interest at all, but a fee simple in possession. (Bl. 
 Com. 164.) Nothing shows better the immense service rendered 
 to English law by Pearne in making clear the principles upon 
 which future estates are limited than a. perusal of the si.Kteen pages 
 in which Blackstone treats of remainders, reversions and executory 
 interests. 
 
IN FUTURE OWNERSHIP : AT COMMON LAW. 145 
 
 continuous right. It cannot be created so as to arise at 
 intervals. Once a thing becomes ownerless for a moment, 
 all previous ownership in it has ceased for ever. It is 
 res nulUus, and the first person who takes possession of it 
 can keep it against all comers. 
 
 In the case of ownership of land, this doctrine was sup- 
 plemented by two other doctrines. The first of these — 
 also already referred to (-see -^upra, p. 19) — was that the 
 ownership of land was a duty as well as a right. An 
 owner of land could not abandon his ownership. In sj^ite 
 of anything he could do, his ownership would remain in 
 him until it was effectively transferred to some one else. 
 The neisin, as the phrase is, must never be tvithoid an 
 oiciter. And as a corollary from this it was held that any 
 limitation which might leave the land without an owner, 
 even for a day, was void ab initio from the point where 
 such hiatus in the ownership might occur. 
 
 The second supplementary doctrine was that just referred 
 to. The only interests which were recognized by the 
 common law as ownership interests were freehold interests. 
 Now, ownership being a continuous right and being a 
 right that could not be vacant or abandoned, and freehold 
 interests being the only ownership recognized by the law, 
 it follows that if the full ownership is to be divided up, it 
 must be divided up into freehold interests and nothing 
 else, and that each of these freehold interests must be 
 limited to commence without the slightest interval between 
 it and the preceding freehold interest, and that if any 
 interval occurs at any point in the limitation the limitation 
 is from that point void. 
 
 Thus, if A., owner in fee simple, limits a life estate to B. 
 from the end of the current year, the limitation is void 
 ab initio, because there is an interval preceding the arising 
 of the freehold interest to B. A. is not to part with the 
 land till the end of the year : the interest in him during 
 this period cannot be a freehold interest, since it is to cease 
 at a definite period [see supra, p. 56), and so it is not 
 
146 MODES OF HOLDING INTERESTS. 
 
 ownership at coaimon law. If, then, such a limitation had 
 been permitted by the common law, it would be a breach 
 of the doctrine that land may not be for a time without an 
 owner.i Again, if A. had limited a life estate to B. to 
 commence from the present, and then to C. for a year 
 after B.'s death, and from the end of that year to D. in 
 fee simple, the fee simple to D. would be bad at common 
 law for the same reason. The interest given C. is not a 
 freehold interest ; it is therefore an interval between the 
 two parts of the ownership given by A.'s grant — the life 
 estate to B. and the future fee simple to D. Freehold 
 interests limited to commence after an interval are said to 
 be limited in futiiro. 
 
 The result of all this is that the ownership of land could 
 only be divided up into freehold interests, and that each 
 future interest must arise the moment the one preceding it 
 determined without interval of any kind. Subsequently an 
 addition to this rule was made, by the Courts holding that 
 the future freehold interest must be limited to commence 
 on the natural determination of the preceding interest. 
 {Cogan v. Cogan, Cro. Bliz. 360.) Thus, if land is limited 
 to A. for life, but if he should attempt to alienate his life 
 estate, then such estate is immediately to determine, and 
 on such determination or on the death of A. to B. in fee 
 simple, the fee limited to B. would not be a good limitation 
 at common law, since it may arise in defeasance of, as it is 
 called (that is, it may arise so as to put a premature end to), 
 A.'s life estate. [Blachnan v. Fysh, (1892) 3 Ch. 209.) 
 As we shall presently see, such a limitation by will or by 
 
 1 Anotlier reason usually given is that freeholds in possession 
 oould only be transferred by Every of seisin. There are two replies 
 to this. A freehold to commeiice in the future is not a freehold in 
 possession. The same rule applies to a freehold interest following 
 a subsisting freehold (see next example, stqiru), which has always 
 been transferable without livery. As to these views generally, the 
 reader is referred to Strahan's Convey, pp. 123 et stv^., where the 
 rules of limitation are discussed in considerable detail. 
 
IN FUTURE OWNERSHIP : AT COMMON LAW. 147 
 
 way of use would now be perfectly good as an executory 
 limitation. 
 
 The effect of these various doctrines may be summed up 
 in this short rule : A future freehold interest must be limited 
 to commence immediately on the natural determination of a 
 preceding freehold interest, and if it be limited to commence on 
 any other event or contingenei/, the limitation is at common 
 law void from its inception. (5 Eep. 94 b.) 
 
 2. The second doctrine of the common law as to the owner- 
 ship of land is one peculiar to itself. In other systems of 
 law the land is always the thing owned. In English law 
 the right of ownership is itself regarded as a thing owned. 
 When the ownership is parcelled out among a number of 
 persons in succession, each of these is regarded as the 
 owner of his share of it, or, as it is said, of his interest in 
 the land. He is in the present enjoyment of that interest, 
 although if some one else owns an intei'est preceding it, he 
 cannot, till such interest is determined, enjoy the land over 
 which his interest exists. In other words, all interests in 
 law, whether in possession or in expectancy, are present 
 rights, although the exercise of that right may be for the 
 present prevented by the existence of rights in others. 
 (Markby's Elements of Law, 4th ed. p. 163.) 
 
 A present right which is at present vested in no one is 
 a contradiction in terms, and as all freehold interests in 
 land are present rights, it follows that they must have 
 present owners. This consideration was formerly held to 
 preclude the limitation of present or future interests to 
 unborn or unascertained persons, since the interests arising 
 under such a limitation must necessarily be without owners 
 until the persons to whom they are limited are born or 
 ascertained. Gradually, however, this view was relaxed. 
 Limitations of future estates to unborn or unascertained 
 grantees were permitted, but such limitations were regarded 
 as creating no present interests in the land, but merely a 
 chance or possibility of future interests. If the grantees 
 were born or ascertained before or at the period when the 
 
 l2 
 
148 MODES OF HOLDING INTERESTS. 
 
 interest in possession came to an end, they took effect as 
 valid grants ; if, however, the grantees were not then born 
 or ascertained, they failed altogether, and the next interest 
 which had present owners came into possession precisely as 
 if the interests to the unborn or unascertained grantees 
 had never been limited. Until the grantees were born or 
 ascertained, the whole ownership or fee simple of the land 
 was made up of the interest in possession and the interests 
 in expectancy which had ascertained owners. Thus, for 
 example, in a limitation to A. for life, then to A.'s eldest 
 son (unborn) in fee tail, with remainder to B. in fee simple, 
 the whole ownership resides in A. and B. until A.'s eldest 
 son comes into existence, when the fee tail, until then 
 ownerless, and therefore not an interest, but merely a pos- 
 sibility of an interest, in the land, vests in him and becomes 
 a real interest. It may be noticed in this connection that 
 a child en ventre sa mere is regarded now as in existence so 
 a,s to prevent the failure of an estate limited to it through 
 the determination of the preceding estates before its birth. 
 Formerly the rule was that a child en ventre sa mere was 
 regarded as in existence for the purpose of inheritance, 
 but not for the purpose of purchase. [Reeves v. Long, 1 
 Salk. 227.) This Rule was altered, however, by the 
 Posthumous Children Act, 1698. 
 
 Future interests in land, then, can be limited now to 
 unborn or unascertained persons. The generality of this 
 statement, however, must be restricted by what is called 
 the rule against double possibilities.' This rule (which 
 
 ' The rule against double possibilities — potentia propinqiia and 
 potentia remotissima — was not confined to this specific case. Foi' 
 example, Blackstone, following Lord Coke, gives as other examples 
 of its operation that it makes void grants to unborn bastards, and 
 to unborn children of particular names, ex. gr. , as " to my daughter's 
 son Geoffrey." (2 Rep. 51 b.) As to the first of these, it might 
 be held bad on another ground — as contrary to public policy ; and 
 as to the second, if it would nowadays be bad at all, it would 
 be because it is a gift to a specified person, when, as a fact, no 
 such person exists. (Pres. Abst. 128.) Probably the rule — as 
 
IN FUTURE OWNERSHIP : AT COMMON LAW. 149 
 
 might perhaps be more accurately described as a rule 
 against too great remoteness of limitation) may be thus 
 stated : After a life estate or an estate tail to a living person, 
 a future freehold interest may be limited to a person unborn 
 at the date of the settlement, but any freehold interest' 
 limited after such interest to that unborn person's child 
 or heir is invalid, as are all other interests following 
 such invalid interest. In other words, the power to 
 limit interests to unborn persons is confined to limitations 
 to unborn or unascertained persons who, if born or ascer- 
 tained at all, must be born or ascertained during the con- 
 tinuance of the estate in possession. ( WJiithy v. Mitchell, 
 44 Ch. D. 85.) 
 
 Where the estate in possession is a fee tail, or a life 
 estate determinable on the death of an ascertained person, 
 this is the only rule applicable to legal contingent re- 
 mainders [Cole V. Sewell, 4 D. & W. 1 ; Perceval v. 
 Perceval, L. E. 9 Eq. 386 ; Symes v. 8ym.es, (1896) 1 Ch. 
 272) ; but where the estate in possession is a life estate 
 determinable on the death of a person possibly not in 
 existence at the date of the settlement — as, for example, an 
 estate pur autre vie, where all the cestuis que vie are not 
 born at the date of the settlement — then a legal contingent 
 remainder to be valid must be within the rule against 
 perpetuities. (See infra, p. 183 ; In re AshfortKs Trusts, 
 Ashforth V. Sibley, (1905) 1 Ch. 535.) 
 
 An exception to the rule as to double possibilities is 
 made in the case of limitations arising under wills. If a 
 testator leave a life estate to an unborn person followed 
 by an estate tail to such unborn person's eldest son, the 
 Court, in order to carry out the testator's intention as far 
 as possible, will read this as giving an estate tail, and not 
 
 far as it ever liad any existence in practice — was merely an attempt 
 to lay down a rule restricting the creation of future estates before 
 the principles controlling the limitation of these were definitely 
 settled. 
 
150 MODES OF HOLDING INTERESTS. 
 
 a life estate to the unborn person. Consequently, if the 
 unborn person does not during his life bar the entail, the 
 estate tail on his death will go to his eldest son by descent. 
 This mode of interpretation is called cy-pres. The doctrine 
 of cy-prh will not, however, operate to prevent the failure 
 of a series of life estates limited to unborn persons' 
 children. [Re Richardson, Parry v. Holmes, (1904) 1 Ch. 
 332.) 
 
 Rule in Shelley's Case. — The old doctrine of the common 
 law, that every freehold interest in land, whether in pos- 
 session or expectancy, must at its inception have a certain 
 and existing owner, led to the establishment of a rule of 
 law, which still applies to all limitations of freeholds, 
 whether at common law, by will, or by way of use. That 
 rule is called the Rule in Shelley's Case, from its being 
 reported in a famous case of that name in Lord Coke's 
 Eeports. It will be best explained by an example. 
 
 Take a grant to A. for life, and afterwards to his heirs, 
 or to the heirs of his body. Now, originally, if this grant 
 had been held to mean the grant of a life estate to A., 
 and after the determination of his life estate, of a fee to 
 him who should then be his heir or his heir of the body, 
 then as such person was unascertained, and, perhaps, not 
 bom at the date of the grant, and must remain unascer- 
 tained until A.'s death (as there can be no heir-at-law to a 
 living person), the grant to him would have been void. 
 To prevent this the Courts held that the effect of such a 
 grant was not to limit two estates — a good life estate to A. 
 and a bad fee to his heirs — but to limit one only, and that a 
 fee in possession to A. In other words, they held that the 
 words " heirs " and " heirs of the body " were used in the 
 grant merely to mark out what estate A. was to take, whether 
 fee simple or fee tail — that is, were mere words of limita- 
 tion, the words " for life and afterwards " being mere 
 surplusage. Not only so, but it was held that the inter- 
 posing of other freehold interests between the grant to A. 
 
IN FUTURE OWNERSHIP : AT COMMON LAW. 151 
 
 for life and the subsequent fee granted to his heirs, or the 
 heirs of the body, made no difference in the construction — 
 that still A. took both the life estate given to himself, and 
 the remainder given to his heirs or his heirs of the body, 
 and that the latter were not grantees at all. 
 
 All this is summed up in the rule laid down in Shelley's 
 Case. That rule is usually stated thus : — It k a rule of law 
 icheii an ancestor by any gift or conveyance takes an estate of 
 freehold, and in the same gift or conveyance an estate is limited 
 either mediately or immediately to his heirs in fee or tail, 
 the icords "heirs'" or '■^ heirs of the body" are words of 
 limitation of the estate of the ancestor. (1 Rep. 104 a.) 
 
 Taking the rule as thus stated, the following points 
 should be marked. In the first place, the first estate 
 mentioned must be to the ancestor to whose heirs the 
 subsequent fee is given. If the limitation were to A. for 
 life, and afterwards to the heirs of B., the rule would not 
 apply. The heirs of B. would here take the subsequent 
 estate as purchasers — that is, as grantees under the deed. 
 In the second place, the estate limited to the ancestor 
 must be one of freehold, legal or equitable. {In re Youman's 
 Will, (1901) 1 Ch. 720.) If a term of years be granted to 
 A., and on its determination a fee simple is given to 
 his heirs — which would be a good limitation if made 
 by will or by way of use {see infra, 2). 167) —there the rule 
 would not apply. On the determination of the lease, A.'s 
 heirs, if A. were then dead, would take as purchasers. In 
 the third place, the grants to the ancestor and to bis heirs 
 must be contained in the same instrument. If the life 
 estate to A. were given by a deed of grant, for instance, 
 and the subsequent fee to his heirs were given by will or 
 by a later deed, the rule would not apply : A.'s heirs 
 would again take as purchasers on the death of A. In 
 the fourth place, the second gift may follow the first 
 immediately or mediately — that is, consecutively or with 
 an intervening grant or intervening grants. An instance 
 of this has been already given. In the fifth place, in a 
 
152 MODES OP HOLDING INTERESTS. 
 
 limitation by deed at any rate, the second gift must be to 
 the "heirs" or "heirs of the body," of the ancestor, i.e., the 
 gift must use the apt words at common law for limiting an 
 estate of fee simple. In a limitation in a will, however, 
 any other words which, taken with the context, would haye 
 the same meaning as words of inheritance have in a deed, 
 would bring such limitation within the rule. ( Van Grutten 
 Y.Fo.Twell, (1897) A.C.658.) Thus, "issue "or "children" 
 may, under certain circumstances, be read as equivalent to 
 " heirs," or " heirs of the body." {Roddy v. Fitzgerald, 
 6 H. L. Gas. 823; and see Pelham- Clinton v. Buke of 
 Neivcastle, (1902) 1 Oh. 34.) But this is not so in limita- 
 tions by deeds. If, for instance, in a deed, after a life 
 estate to A., the fee were limited to A.'s " eldest son " or 
 his " children," or his " grandchildren," the rule would not 
 apply: the fee would vest in the person or classes described 
 as purchaser or purchasers. 
 
 It is to be observed that the rule in Shelki/'s Case is 
 a rule of law, not a rule of construction merely. It will 
 apply, then, however clearly it may be shown that the 
 grantor or testator intended to give the ancestor only a 
 life estate and his heirs the fee. In every case the 
 question is not what he intended to give, but whom he 
 meant to take ; or, in other words, whom he meant to 
 include under the terms " heirs," or "heirs of the body," 
 or, in a will, any other similar expression. If he meant 
 to include the whole line in succession capable of inherit- 
 ing, the ancestor takes the fee. {Pe/ham-C/infon v. Btil'e 
 of Newcastle, stq^ra.) If he meant a particular individual 
 or class of individuals [personal designates), whether the 
 words occur in a will or deed [Evans v. Evans, (1892) 
 2 Ch. 173), the ancestor takes merely a life estate, and the 
 person or persons designated in the instrument take the 
 fee. Whether there is a sufficient indication that the 
 words were meant to refer to designated persons only 
 depends on the terms and general eifect of the instrument. 
 But, generally, the rule applies in terms only to " heirs " 
 
IN FUTURE OWNERSHIP : AT COMMON LAW. 153 
 
 and "heirs of the body" («'.e., in the plural), and where 
 these words are departed from it is easier to show that the 
 rule does not apply. (See Under. & Stra. on Wills, pp. 210 
 et seq.) 
 
 The rule applies whether the limitation is by deed or 
 will, or is a direct limitation, or a limitation by way of 
 use ; but it does not apply unless the estates given to the 
 ancestor and to his heirs are either both legal or both 
 equitable. {Collier v. McBean, 34 L. J. Oh. 555.) 
 
 Where the rule in Shelley's Case does not apply, a grant 
 to a person's " heirs," or " heirs of the body," will vest in 
 them a fee simple or fee tail vdthout additional words of 
 inheritance. Thus, a limitation to A. for life, and after- 
 wards to the heirs of B., would vest in B.'s heir a fee 
 simple in remainder. In case, however, B.'s heir, after 
 succeeding to the estate, died possessed of it intestate, 
 the person who would inherit would be not his heir, 
 but the heir of his ancestor B. (Inheritance Act, 1833, 
 s. 4.) 
 
 Kinds of Future Estates. — Future interests at common 
 law are primarily divided into Reversions and Remainders. 
 A future interest is a reversion when it is the residue of the 
 original estate which remains in the grantor after he has 
 granted a smaller estate than that which he had in posses- 
 sion when the precedent interest or interests were granted ; 
 it is a remainder when it is an interest granted out of the 
 original estate at the same time as, but in succession to, a 
 precedent interest. (Co. Litt. 142 a.) Thus, if A., an 
 owner in fee simple, grant B. a life interest, the fee simple 
 in expectancy remaining in A. after the grant is the 
 reversion on B.'s life estate. B.'s estate is called the 
 particular estate. If A., by the same instrument, had 
 granted a further life estate to C, to vest in possession on 
 B.'s death, then C.'s interest would have been merely a 
 remainder on B.'s, while the fee simple in expectancy 
 still remaining in A. would have been the reversion on 
 
164 MODES OF HOLDING INTERESTS. 
 
 both B. and C.'s life interests, the immediate reversion as 
 to C.'s, the ultimate reversion as to B.'s. 
 
 The same future interest may be a reversion as to some 
 precedent interests and a remainder as to others. Thus, 
 if A., an owner in fee simple, grants B. a life estate, and 
 by the same instrument grants 0. the fee simple in ex- 
 pectancy on B.'s life estate, C.'s fee simple is a remainder 
 as to B.'s life estate. This is because C.'s fee simple is 
 not the residue of the original estate, but a fresh interest 
 created by the same grant as that creating B.'s life interest. 
 If C. subsequently granted a life estate to D., to vest in 
 possession on B.'s death, then C.'s fee simple in expectancy 
 would be a remainder as to B.'s life estate and a reversion 
 as to D.'s. (1 Brest. Est. 123.) 
 
 If, in the above instance, C.'s original fee simple, instead 
 of being granted by the same instrument as B.'s life 
 interest, had been granted by a subsequent instrument, 
 then it would have been the reversion on B.'s life interest, 
 since on the grant of B.'s interest the residue left in A. 
 was the reversion, and its subsequent transfer to C. would 
 not change its nature. 
 
 Reversions. — The most important point to be noticed 
 about reversions is that there is a relation of tenure 
 between the owner of the reversion — the reversioner as he 
 is called — and the owner of the precedent interest or 
 particular estate. In other words, the latter holds from, 
 or is the tenant of, the former. And the usual incidents 
 of tenure attach to this relationship. What those incidents 
 are we have already pointed out in the previous part of 
 this work. {See supra, p. 29.) 
 
 A reversion, as it did not entitle the reversioner to the 
 possession of the land, was regarded as an incorporeal 
 hereditament, and was therefore always alienable by 
 grant. {See supra, p. 9.) If a rent were reserved on 
 the particular estate, a grant of the reversion carried the 
 rent with it without its being mentioned in the grant. 
 
IN FUTURE OWNERSHIP : AT COMMON LAW. 165 
 
 (Co. Litt. 151, 152.) As rent was an incident of the 
 reversion, the right to it was destroyed by anything which 
 destroyed the reversion itself. The most usual mode by 
 which a reversion was destroyed during the continuance 
 of the particular estate was by its merger in a larger 
 interest. For example, A., a tenant for life, grants a 
 term of years to B. Afterwards A. succeeds to the fee. 
 A.'s life estate is merged in the fee, and all the incidents 
 attaching to it were gone. Now, by sect. 9 of the Real 
 Property Act, 1^45, when a reversion expectant on a lease 
 of any tenements or hereditaments of any tenure shall 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 heredita- 
 ments, shall, to the extent and for the purpose of pre- 
 serving 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. 
 
 It may be remembered that, strictly speaking, there is 
 no reversion on a term of years. The grant of a term of 
 years does not take the freehold out of the grantor, and so 
 at common law he is regarded during its continuance as 
 owner in possession through his lessee. Frequently', how- 
 ever, a lease for years amounts practically to the beneficial 
 ownership of the land for the time being, and in such cases 
 it is customary to talk of freeholds being in reversion on 
 terms of years. 
 
 It may be added that common law — as far as it recog- 
 nized such interests in land — regarded chattel interests as 
 goods, and therefore incapable of being limited to various 
 persons in succession, yet it freely permitted a lessee to 
 create sub-leases— that is, leases for shorter periods than 
 that for which the lessor himself held. The effect of this 
 was to leave in the sub-lessor an interest in the head lease 
 similar to a common law reversion. This interest is 
 
156 MODES OF HOLDING INTERESTS. 
 
 usually called a quasi reversion on the sub-lease, or simply 
 a reversion. 
 
 Remainders. — A remainder being simply a grant to take 
 effect in possession on the natural determination of the 
 particular estate, there is no relation of tenure between the 
 owner of it, or remainderman, as he is called, and the 
 owner of the particular estate. The latter does not hold 
 of the former as the owner of a particular estate holds of 
 the reversioner. Both particular estate and remainder 
 come from the same source — the original estate of their 
 grantor ; and both are held of the grantor, unless he has, 
 by his grant, divested himself of all his estate in the land, 
 in which case they are held of his superior lord, or, if he 
 had not a superior lord, then of the Crown as lord para- 
 mount. {See Siqjra, p. 19.) 
 
 Remainders are either vested or contingent. A vested 
 remainder is a remainder of the more ancient kind, that is, 
 one the owner of which is living and ascertained, and 
 which is an actual estate in the land, complete in interest 
 though deferred to the precedent estate in enjoyment. 
 Being complete, it is ready, and must continue ready, from 
 its commencement as a vested remainder till its expiration 
 ia natural course, to come into possession immediately on 
 the determination of the preceding interest, the existence 
 of which is the only thing which prevents it being com- 
 plete not merely in interest, but also in enjoyment. It is 
 true it may fail, or, rather, determine before the period 
 arrives, when it would vest in possession, but such deter- 
 mination must arise from its own natural expiration, not 
 from any outside event or contingency. Thus, take a 
 limitation to A. for life and then to B. for life — B. being 
 a living person. If B. predeceases A., his life estate will 
 never become an interest in possession ; but as long as B. 
 lives, his estate is ready to come into possession the moment 
 A.'s life estate determines. 
 
IN FUTURE OWNERSHIP : AT COMMON LAW. 157 
 
 Contingent remainders are themselves of two kinds. ^ 
 The first kind are those which are contingent because they 
 have no owners. The second kind are those which are 
 contingent because whether they will ever give rise to 
 estates or not depends on a future event or contingency. 
 Neither kind are complete estates in the land, or indeed, 
 estates at all ; they are mere possibilities of future estates. 
 Both kinds are marked by this characteristic which dis- 
 tinguishes them from vested remainders. They are not 
 ready fz-om their commencement to vest in possession on 
 the determination of the preceding estates, or, if so ready 
 at their commencement, they may, before their natural 
 expiration, cease to be ready. 
 
 Examples of the first kind of contingent remainders — 
 those which are contingent because they have no owners — 
 occur in the cases already mentioned of limitations to un- 
 born or unascertained persons. Thus, in a limitation to A. 
 for life, and then to his eldest son in tail — A. having, at 
 the date of the settlement, no son — the remainder to the 
 eldest son has no owner till A. has a son born to him. 
 Until then, that remainder is not ready to come into 
 possession. In the same way, in a limitation to A. for life 
 and then to the heirs of B., B. being a living person — the 
 remainder to B.'s heir has no owner until B. dies. (Nemo 
 est hceres mventk ; Co. Lift. 8 b.) Only then can B.'s heir 
 be ascertained, and, accordingly, till then the remainder is 
 not ready to come into possession. 
 
 Examples of the second kind of contingent remainders — 
 those which are contingent because whether they will give 
 rise to estates or not depends on a future event or con- 
 tingency — -occur in the cases of limitations of future estates 
 subject to a certain event happening or not happening 
 during the continuance of the precedent estates. Thus, in 
 
 ' Fearne gives a, more exhaustive classifioation of contingent 
 remainders into four kinds. The above is intended merely to draw 
 attention to the primary and radical division, which it is of im- 
 portance the student should clearly apprehend. 
 
158 MODES OF HOLDING INTERESTS. 
 
 a limitation to A. for life, and then to B. in tail, provided 
 0. — a person living at the date of the settlement — be not 
 then living, the remainder to B. is not ready to come into 
 possession until C. dies, and if 0. does not die before A. it 
 fails altogether. Again, in a limitation to A. for life, and 
 then to B. in tail, provided C. be then living, the remainder 
 to B. is ready from its commencement, and as long as C. 
 lives, to come into possession on the determination of the 
 particular estate, but it may not continue so ready till its 
 natural determination. The natural determination of B.'s 
 remainder would be the death of B. and the failure of his 
 issue, but its readiness to come into possession, and, indeed, 
 the remainder itself, would be brought to an end at any 
 time by C. predeceasing A. If the limitation had been to 
 A. for life, and then to B. in tail, provided B. be then 
 living, B.'s remainder would still have been contingent, 
 since the natural determination of B.'s remainder would 
 be not B.'s death merely, but the failure of his issue also, 
 and the readiness of B.'s remainder to come into possession, 
 and, indeed, the remainder itself, would be liable to come 
 to an end on the death of B. before A., though B. left 
 issue living at his decease. On the other hand, if in this 
 limitation the remainder given to B. had been a mere life 
 estate, it would have been vested, since then, during the 
 continuation of the estate till its natural determination, 
 i.e., B.'s death, it must have continued ready to come into 
 possession immediately on the determination of A.'s life 
 estate. 
 
 The chief difference between these two kinds of contin- 
 gent remainders lies in the fact that the first kind, as long 
 as they remain contingent, cannot have, while the second 
 kind may have, an ascertained owner. The first kind are 
 contingent because they have no existing, or if, perchance, 
 existing, no ascertained owner ; the moment they have 
 such an owner they cease to be contingent. The second 
 kind are contingent because they are limited upon a future 
 uncertain event ; until that event happens they must remain 
 
IN FUTURE OWNERSHIP : AT COMMON LAW. 159 
 
 contingent whether they have — as they usually have — 
 living and ascertained owners or not. This fact, however, 
 does not make them estates in the land. Like the first 
 kind of contingent remainders, the second kind are mere 
 possibilities of future estates, and as such their owner could 
 not alienate them at common law, though he might release 
 them to the reversioner or remainderman. He could, 
 however, alienate them in equity, and now, by sect. 3 of 
 the Wills Act, 1837, he can devise them, and by sect. 6 of 
 the Real Property Act, 1845, he can alienate them by deed. 
 Neither does the existence of an owner make them less 
 liable than ownerless contingent remainders to fail should 
 the prior estate in the land determine before they are 
 ready, or after they have ceased to be ready, to come into 
 possession. So far as the common law is concerned, all 
 contingent remainders must become estates, as distinguished 
 from mere possibilities of estates, either during the con- 
 tinuance of the preceding estate, or immediately on its 
 determination. This is a rule which applies equally to all 
 kinds of contingent remainders. 
 
 Failure of Contingent Remainders. — Now the determina- 
 tion of the preceding estate might arise through its natural 
 expiration, or it might be brought about artificially. It 
 might be brought about artificially in various ways. 
 Thus, the owner of the preceding estate might do some- 
 thing which would cause a forfeiture of the life estate, as 
 by levying a fine or suffering a recovery, or by conveying 
 the fee simple tortiously. (1 Eep. 66.) Or he might 
 surrender his interest to the first owner of a vested 
 remainder of inheritance, or he might purchase the first 
 vested remainder of inheritance. In either of these cases, 
 if there was no vested interest between the particular 
 estate and the vested fee in remainder, there was nothing 
 to keep them separate, and therefore the particular estate — 
 if it were less than a fee — merged in the fee in remainder, 
 and was thereby determined and destroyed. The exist- 
 
160 MODES OF HOLDING INTERESTS. 
 
 ence of contingent remainders between the particular estate 
 and the vested remainder of inheritance was not sufficient 
 to keep them separate and so prevent merger, as con- 
 tingent remainders were not estates in the land. Vested 
 interests only, as has already been pointed out, are estates 
 or parts of the ownership, and accordingly, when the 
 vested interest preceding contingent remainders, and the 
 vested fee immediately succeeding them, come in any way 
 to be held by the same person, that person holds the free- 
 hold in possession, and the fee immediately in remainder 
 upon it. There is thus nothing to prevent the operation 
 of the rule that where two estates are owned by the same 
 person at the same time, the smaller is merged in the 
 larger. 
 
 To prevent the contingent remainders failing through 
 the artificial and premature determination of the preced- 
 ing freeholds, it was formerly customary in all settlements 
 to grant an estate to trustees, which was to arise on the 
 premature determination of the particular estate and to 
 continue until such period as it would have expired in 
 natural course. Such estates to preserve contingent re- 
 mainders, as they were called, are now rendered unneces- 
 sary by sect. 8 of the Real Property Act, 1845, which 
 enacts that a contingent remainder existing at any time 
 after 31st December, 1844, shall be, and if created before 
 the passing of the Act shall be deemed to have been, 
 capable of taking effect notwithstanding the determination 
 by forfeiture, surrender or merger, of any preceding estate 
 of freehold, in the same manner in all respects as if such 
 determination had not happened. 
 
 There were other modes in which the destruction of 
 contingent remainders might have been brought about by 
 the premature destruction of the particular estate ; but 
 these have now all become impossible owing to other 
 changes in the law, and we need not here mention them. 
 
 The liability of contingent remainders to destruction by 
 the natural expiration of the particular estate or preceding 
 
IN FUTURE OWNERSHIP : AT COMMON LAW. 161 
 
 interests has also been practically abolished for the future 
 by the Contingent Remainders Act, 1877. This enactment 
 leaves contingent remainders arising under instruments 
 executed before 2nd August, 1877, still liable to destruc- 
 tion through the natural determination of the preceding 
 interests before such contingent remainders have become 
 vested {In re Brooke, (1894) 1 Ch. 43) ; but as to contin- 
 gent remainders arising under instruments executed since 
 that date, it abolishes such liability provided the contin- 
 gent remainders are created in conformity with the rules 
 governing the creation of executory interests. 
 
 What these rules are we shall shortly see. One of them 
 is that an executory interest must be limited by will or 
 by way of use, ex. gr., " to A. and his heirs to the use 
 of B. for life, and then to the first son of B. who attains 
 twenty-one." Accordingly, if an interest is limited 
 directly to the grantees — " to B. for life, and then to the 
 first son of B.'s who attains twenty-one " — the Contingent 
 Remainders Act, 1877, does not help it. [Savil Brothers, 
 Ltd. v. Bethell, (1902) 2 Ch. 632.) Another of the rules 
 is what is called the rule against perpetuities. It pre- 
 vents the creation of any executory interest which may not 
 vest in possession within a life or lives in being and twenty - 
 one years after. {Infra, p. 183.) Accordingly, in a limi- 
 tation to A. (a bachelor) for life, and afterwards to the 
 first son of A.'s who attained the age of (say) twenty-six, 
 the limitation over to A.'s son would be a contingent 
 remainder not created in conformity with the rules govern- 
 ing the creation of executory interests, since it is an inte- 
 rest which might not become vested in him till more than 
 twenty-one years after A.'s death. It would, therefore, also 
 receive no benefit from the Contingent Remainders Act , 
 1877. If, when A. died, no son of his had attained the 
 age of twenty-six, the contingent remainder would there- 
 fore fail. {Alibiss v. Bumey, 17 Ch. D. 211 ; Sijnies v. 
 Symes, (1896) 1 Ch. 272; cf. Re Wrigldson, Beatk- 
 Wrightson v. Thomas, (1904) 2 Ch. 95.) 
 
 S. M 
 
162 MODES OF HOLDING INTERESTS. 
 
 Sub-section 2. 
 future wnerseip in eq uity. 
 
 PAGE 
 
 Equity and the Legal Estate.. 162 
 Eqmtable Future Interests in 
 
 Goods 163 
 
 Equitable Interests need not 
 
 have Owner 163 
 
 PAGE 
 Equitable Fee Simple divisible 
 
 into Estates not of Freehold 163 
 Absolute Interest after Abso- 
 lute Interest 164 
 
 Equitable Reversions and Re- 
 mainders 165 
 
 Eq[uity and the Legal Estate.— With respect to the 
 limitation of future interests in lands, where both the 
 legal and equitable interests were dealt with in the limita- 
 tion, it may be said broadly that equity never attempted, 
 directly or indirectly, to interfere. If any such limitation 
 failed at law through its violation of the rules of the 
 common law, the Court of Chancery did not endeavour, by 
 the creation of a trust, or in any other way, to render it 
 effectual in equity. But where an instrument dealt only 
 with the equitable interest as separate and distinct from 
 the legal estate in the land, or where it dealt with goods, 
 there the Court of Chancery jiermitted future interests to 
 be created on different principles from those which, at 
 common law, regulated the creation of future interests. 
 Thus if land were conveyed to persons on limitations not 
 recognized by the common law, these limitations failed, 
 and the grantees under them had no claim to the land, 
 either at law or in equity. But if land or goods were 
 conveyed to persons on limitations good at common law 
 and these persons were directed to hold the land or goods 
 for the benefit of other persons on limitations not recog- 
 nized by the common law, very often equity would enforce 
 these limitations. Or if the grantor had in him only the 
 equitable interest in the land or goods — as, for example, if 
 he were himself a cestui que trust, in which case, as we 
 
IN FUTURE OWNERSHIP : IN EQUITY. ] 63 
 
 have seen, the legal estate in the trust property would be 
 in the trustees of the settlement — ^he might convey that 
 equitable interest on limitations very different from those 
 recognized by the common law. 
 
 Equitable future Interests in Goods. — The first point on 
 which equity differed from the common law as to the 
 creation of future interests has already been, perhaps, 
 sufficiently referred to. (See supra, p. 107.) Equity per- 
 mitted the equitable ownership of goods to be parcelled out 
 among various persons in succession. Of course all such 
 partial interests, save the one in possession, were future. 
 Equity then permitted the creation of future interests in 
 goods, at least as freely as the common law permitted their 
 creation in land. 
 
 Equitable Interest need not have Owner. — The second 
 point on which equity diifered from the common law is, as 
 to the need of owners for all existing interests. The com- 
 mon law, as we have seen, insisted that all interests, pre- 
 sent or future, should have existing and ascertained owners, 
 and contingent remainders were permitted only on the 
 ground that they were not interests at all, but merely 
 possibilities of interests. Equity, on the other hand, did 
 not insist on the equitable interest, whether in land or in 
 goods, and whether in possession or in reversion, having 
 an existing and ascertained owner. The equitable owner- 
 ship of land or goods might be in abeyance, and to whom 
 it would ultimately belong might depend on a contingency, 
 or on the future decision of some person or persons. 
 
 Equitable Fee Simple divisible into Estates not of Free- 
 hold. — A third point on which equity differed from the 
 common law is as to the interests into which a fee simple 
 estate may be divided. The common law, as we have 
 seen, insisted that the legal fee simple could be divided 
 up only into freehold estates. Equity, on the other hand, 
 
 M 2 
 
104 MODES OP HOLDING INTERESTS. 
 
 allowed interests to be created in the equitable fee simple 
 for a fixed period. 
 
 From these two differences it follows that the common 
 law rule of limitation, which resulted from these doctrines, 
 did not apply to equitable ownership. A future equitable 
 interest need not be limited to commence on the determi- 
 nation of a precedent equitable interest, and if it be limited 
 to commence on any other event or contingency, the limi- 
 tation is not necessarily void from its inception. In other 
 words, limitations ///. futuro of equitable interests are not 
 ipso facto void. Thus an immediate gift of an equitable 
 interest in land or goods to the first son of A. who shall 
 attain the age of twenty-one is good. Here there may be 
 no owner of the equitable interest in the land or goods for 
 twenty-one years or more after the date of the gift. Until 
 a son of A.'s attains the age of twenty-one, the gift is 
 contingent. Again, a limitation of an equitable interest to 
 A. for life, and after A.'s death to such children of his as 
 shall be alive twenty-one years after A.'s death, is good. 
 Here the gift to A., is immediate, but there must be an 
 interval between the determination of A.'s interest and the 
 vesting of the future interest in his children. That, how- 
 ever, will not render void the limitation in their favour. 
 Again, a limitation to A. for life, and then to such person 
 or persons as A. may by deed or will appoint, is good. 
 Here the future absolute interest has no owner until A. 
 appoints one. If A. dies without making any appoint- 
 ment, then, unless there is a gift over to some one else on 
 default of appointment, the equitable interest results to 
 the settlor, or, if he be dead, to his real or personal repre- 
 sentatives, according as the property is land or goods. [In 
 re Weekes' Settlement, (1897) 1 Oh. 289.) 
 
 Absolute Interest after Absolute Interest. — The third 
 point on which equity differed from the common law was 
 as to the limitation of one absolute interest after another. 
 As has been pointed out, at common law a fee simple could 
 
IN FUTURE OWNERSHIP : IN EQUITY. 165- 
 
 not to be followed by any other interest. Even if the fee 
 simple limited was a determinable fee, nothing remained in 
 the grantor after parting with it but a possibility of re- 
 verter, which, like other possibilities, was not an estate in 
 the land, and could not be assigned by deed or will. But 
 equity had no such rule as this. It permitted further in- 
 terests to be limited after a fee simple equitable in land or 
 the absolute equitable interest in goods, provided the fee 
 simple or the absolute interest was given subject to a con- 
 tingency which might determine it. The only restriction 
 upon this power lay in that imposed on it by the rule 
 which prevented the creation of perpetuities. {See infra, 
 p. 183.) Thus, a limitation of the equitable ownership of 
 fee simple land to A. and his heirs until A. shall marry, 
 and then to him for life, and subject thereto, to the eldest 
 son of the marriage in fee tail, is good. And in the same 
 way, a limitation of the absolute equitable interest in goods 
 to A. — an infant — but should A. die before attaining the 
 age of twenty-one and without issue, then to B., is good. 
 The latter limitation constantly occurs in settlements of 
 leaseholds or goods to accompany freeholds. {See Christie 
 V. Gosling, L. E. 1 E. & I. App. 279.) 
 
 Equitable Reversions and Remainders. — While equity 
 thus permitted future interests of a different kind, and 
 limited in a difPerent way from those recognized by the 
 common law, yet it did not prevent the creation of equit- 
 able reversions and remainders. When the equitable 
 interest in freehold land was so limited that, had the 
 interest dealt with been the legal estate, the future 
 interest resulting would have been good reversions or 
 remainders at common law, then the equitable interests 
 resulting were regarded as equitable reversions or re- 
 mainders. These equitable reversions and remainders had 
 the same incidents and characteristics as reversions and 
 remainders at common law, with this exception : equitable 
 contingent remainders were not liable to fail through the 
 
166 MODES OF HOLDING INTERESTS. 
 
 determination of the particular estate before they were 
 ready to vest. [Astky v. Micldethwait, 15 Oh. D. 59 ; 
 Fearne's Contingent Remainders, p. 304.) This is usually 
 explained by saying that the contingent remainder is 
 prevented from failing by the existence of the legal estate 
 in the trustees or mortgagees, or in whomsoever it may 
 reside. This is, however, only another way of saying 
 what has been said above — that, as far as equitable in- 
 terests are concerned, equity does not insist that an 
 interest in them in possession or in expectancy shall have 
 an existing owner. {See supra, p. 147.) 
 
 Sub-section 3. 
 futvme ottnessrip under statute. 
 
 PAGE 
 
 Statutory Future Interests . . 166 
 History of Executory Interests 166 
 
 PAGE 
 
 Rule of Construction 169 
 
 Kinds of Executory Interests . 172 
 
 Statutory Future Interests. — -The third kind of future 
 interests are those arising, directly or indirectly, under or 
 by virtue of certain statutes. These statutory future in- 
 terests are called executory interests. The rules regulating 
 their creation are practically the same as those regulating 
 the creation of future interests in equity. Executory in- 
 terests, however, are not merely equitable interests : they 
 are, by force of the statutes in question, legal interests also, 
 that is, they give the grantee not merely the beneficial 
 ownership in the thing they subsist in, but also the legal 
 title to it. 
 
 History of Executory Interests.— Executory interests owe 
 their origin to the old system of uses. In uses, as in trusts, 
 as we have seen, the whole ownership of land was divided 
 
IN FUTURE OWNERSHIP : UNDER STATUTE. 167 
 
 into two parts — the legal or technical ownership, and the 
 beneficial ownership or use ; and the Court of Chancery 
 permitted the latter — just as it subsequently did in the 
 case of trusts — to be dealt with free from the more harass- 
 ing rules of the common law. Practically, we may assume 
 for present purposes that the beneficial interest in land 
 under a use could be limited in the same way as the equit- 
 able interest under a trust can now be limited. 
 
 This was the state of affairs when the Statute of Uses, 
 1535, was passed. That statute, as we have seen, was 
 intended to put an end to the separation of the beneficial 
 interest in land from the legal or technical ownership. It 
 attempted to do this, however, not by preventing the future 
 creation of uses, but by ordaining that the legal ownership 
 of the land should always follow the use. Consequently, 
 uses could be created just as before — that is, on the same 
 principles as apply to future equitable interests — and the 
 moment such uses arose, the Statute of Uses, 15''/5, clothed 
 them with the legal estate. The effect of this was that 
 henceforth future legal estates in land, provided they were 
 not limited directly to the grantees but by way of use to 
 them, could be created without regard to the common law 
 rule of limitation. Thus, a grant of land to A. and his 
 heirs from the end of the current year was bad as creating 
 a fee simple to commence infuturo; but if the grant were 
 an immediate grant to B. and his heirs (B. giving no 
 consideration) to the use of A. and Im heirs, from the end 
 of the ouiTcnt year, it would be perfectly good. Before 
 the Statute of Uses, B. would have the legal estate in the 
 land as feoffee to uses. These uses would have been, in 
 the first place, a resulting use to the grantor till the end 
 of the current year, and then a use in fee to A. and his 
 heirs. The effect of the statute, however, was to take 
 this legal estate out of B. and make it vest in the persons 
 for the time being entitled to the use of the land. Accord- 
 ingly, after the statute, the grantor had, under such a 
 settlement, the legal as well as beneficial ownership of the 
 
168 MODES OF HOLDING INTERESTS. 
 
 land until the end of the year, when both shifted over from 
 liim to the next cebtuis que ime — A. and his heirs. The 
 feoffee to uses, then, was changed by the statute from a 
 trustee into a mere conduit-pipe — as he has been called — • 
 for conveying to the cestuis que uae their respective interests 
 in the land. 
 
 Two points in this connection should be remembered. 
 In the first place, as has been pointed out, the statute only 
 applies where the feoffee to uses has been granted a free- 
 hold interest in the land. In the second place, it only 
 applies to passive feoffees to uses — to feoffees who have no 
 active duties to perform in carrying out the use. Where 
 they have active duties, the statute does not take the legal 
 estate out of them. They are, in such oases, not called 
 feoffees to uses, but trustees. {See generally, Strahan's 
 Convey, pp. 8 — 13.) 
 
 Another effect of the Statute of Uses was to put an end 
 to the power of devising land. As has already been pointed 
 out, land was originally not devisable at common law, but 
 the Chancellor made it practically devisable by permitting 
 the creation of feoffments to the use of the grantor's will. 
 The Statute of Uses, by turning the uses into legal estates, 
 rendered them subject once more to the common law rule. 
 Statutes were, however, soon afterwards passed to prevent 
 this undesirable effect. These were the Statutes of Wills, 
 1540 and 1542, which made freehold land capable of being 
 devised at law. [See rii/ra, p. 271.) The Courts of Com- 
 mon Law, in applying this statute, adopted the practice 
 of the Court of Chancery. The latter had allowed tes- 
 tators, as it had allowed other settlors, to create future 
 interests in the use of land, without regard to the common 
 law rules of limitation. The Courts of Law now allowed 
 the legal estate to be devised in the same way as the 
 Court of Chancery had permitted the use to be devised. 
 Accordingly, the Statute of Wills indirectly resulted, as 
 to grants of land by will (as the Statute of Uses directly 
 resulted as to grants of land by deed), in making it pos- 
 
IN FUTURE OWNERSHIP : UNDER STATUTE. 169 
 
 sible to limit future legal estates in land on the principles 
 applicable previously only to tlie use or equitable interest 
 in the land. 
 
 Two points of difference between executory interests 
 arising under deeds and those arising under wills may be 
 noticed. In the first place, executory interests under 
 deeds, to take effect as such, must be limited not directly 
 to the grantees, but by way of use. Exeoutorj^ interests 
 under wills, on the other hand, take effect as such, whether 
 they are limited directly or by way of use. Thus, to give 
 by deed a freehold in fiituro to A., the limitation should 
 be "to B. and his heirs to the use of A." for life or in 
 fee from the given date ; but a limitation by will "to A." 
 for life or in fee from the given date would be sufficient. 
 In the second place, executory interests under deeds can 
 only be created in freehold land. This is due to the fact 
 that the Statute of Uses applies only to uses of freeholds. 
 On the other hand, executory interests arising under wills 
 may be created in freeholds, leaseholds, or even in chat- 
 tels. Thus, if a lease for a hundred years be left to A. 
 for life, and afterwards to B., on the executor's assent 
 to the legacy {see infra, p. 275), A. will take not a mere 
 equitable, but also the legal, estate in the term subject to 
 the executory limitation over to B., and on A.'s death 
 the legal and equitable interests in the term will imme- 
 diately vest in B. or his assigns. {Lampefn Case, 10 
 Eep. 46.) This extension of the principles of equitable 
 limitations to future interests in personalty arising under 
 wills was made by the Courts of Law to prevent the 
 defeat of the intentions of testators who might be com- 
 pelled to make their wills without legal assistance. 
 
 Rule of Construction. — Executory interests being in- 
 terests unknown to the ancient common law, the Common 
 Law Courts have always regarded them with a certain 
 disfavour. This disfavour caused the adoption of the rule 
 that no future interest, though limited by way of use, or 
 
170 MODES OF HOLDING INTERESTS. 
 
 arising under a will, is to be regarded as an executory 
 interest unless at its inception it is not reasonably possible 
 to consider it a vested or contingent remainder. In other 
 words, no future interests are to be held executory interests 
 unless they are limited in a manner not recognized by the 
 common law rules of limitation. Thus, future interests in 
 goods or leaseholds arising under wills are executory in- 
 terests, because the common law did not permit the creation 
 of future interests in goods or leaseholds. Interests in 
 freehold lands limited by way of use or under wills, to 
 commence in fnHiro, or interests in fee limited in the same 
 way to follow determinable interests in fee, are executory 
 interests, because such limitations are unknown to the 
 common law. But where the limitations set out by way 
 of use or under a will are such as might have been vahdly 
 created at common law, then they must be held to be 
 common law limitations. {Re Lechmert' and Lloyd^ 18 
 Ch. D. 524.) 
 
 Thus, all future freehold interests in land which, though 
 limited by way of use or imder a will, are limited to arise 
 on the natural determination of a precedent freehold 
 interest in possession are, under this rule of construction, 
 vested or contingent remainders, and subject to all the 
 common law incidents characteristic of such interests. 
 One of the most important of these incidents is, as we 
 have seen, the liability of contingent remainders to fail in 
 case they are not ready to vest in possession the moment 
 the preceding estate determines. This liability to failure 
 frequently led to fantastic results, and also caused the 
 frustration of the intentions of testators. Thus, say a 
 testator left to A. a life interest in land, and then the fee 
 simple to the first son of A.'s who attained twenty-one. 
 If A. predeceased the testator, then, unless A. had left a 
 son of twenty-one, the future interest to A.'s son would be 
 an interest limited to commence in fiituro {i.e., without any 
 freehold preceding it), and therefore an executory interest 
 which would arise on a son of A.'s attaining twenty-one. 
 
IN FUTURE OWNERSHIP: UNDER STATUTE. 171 
 
 But if A. outlived the testator, then the future interest 
 to A.'s son would, until A. had a son of twenty-one, he a 
 future freehold interest with a preceding freehold interest 
 in possession to support it, and therefore at common law 
 a contingent remainder ; and accordingly, if A. died 
 before a son of his attained twenty-one, it would, by the 
 common law rule, fail altogether.' To prevent such hard- 
 ships as these, and also to prevent the failure of con- 
 tingent remainders generally {see supra, p. 160), the 
 Contingent Remainders Act, 1877, was passed. This 
 Act provides that every contingent remainder created 
 by any instrument executed after the passing of the Act 
 (2nd August, 1877), or by any will or codicil revived or 
 republished by any will or codicil executed after that date, 
 in tenements or hereditaments of any tenure, which would 
 have been valid as a springing or shifting use or executory 
 devise or other limitation, had it not had a sufficient estate 
 to support it as a contingent remainder, shall, in the event 
 of the particular estate determining before the contingent 
 remainder vests, be capable of taking effect in all respects 
 as if the contingent remainder had originally been created 
 as a springing or shifting use in a deed, or executory 
 devise in a will, without being preceded by any particular 
 estate of freehold. 
 
 This statute puts future legal interests limited in a deed 
 by way of use or arising under a will in all respects save 
 one {see supra, p. 161) in the same position as future 
 equitable interests. Whether they are executory interests, 
 that is, are limited in such a way as would render them 
 
 ' It would be different, however, if the will showed that the 
 testator contemplated an interval between the determination of the 
 life estate and the vesting of the fee. Thus, in a limitation to A. 
 for life, and after his death among such of his children who in his 
 lifetime, or after his death, attained twenty-one, in fee simple, the 
 joint fee simple would be an executory devise. {In re Lechmere 
 and Lloyd, 18 Oh. D. 524; Dean v. Dean, (1891) 3 Oh. 150; Re 
 WrigUson, Beatie- Wrightson v. 'J'homas, (1904) 2 Ch. 95.) 
 
172 MODES OP HOIiDING INTERESTS. 
 
 invalid in their inception if they were subject to the 
 common law rules of limitation, or whether they are vested 
 or contingent remainders, that is, are limited in such a 
 way as they might have been validly limited at common 
 law, they are not to fail through the non-existence or pre- 
 mature determination of a preceding estate of freehold. 
 It may be added that in practice all future interests in 
 freehold land arising under deeds are now limited by way 
 of use, while, of coui-se, all arising under wills are within 
 the statute. 
 
 Kinds of Executory Interests. — Executory interests 
 arising under a deed, and therefore by virtue of the 
 Statute of Uses, are called, according to their nature, 
 springing or shifting uses. Executory interests in free- 
 hold land arising under wills, and therefore by virtue of 
 the Statute of Wills, are called executori/ devises ; while 
 executory interests in leaseholds and personalty arising 
 under wills are called executory bequests. 
 
 By a shifting use is meant a future estate which, by 
 coming into existence, defeats a preceding estate limited 
 by the same instrument. For example, if a fee simple be 
 limited to C. and bis heirs to the use of A. and his heirs, 
 but should B., a bachelor, marry, then to the use of B. 
 and his heirs, the use to B. and his heirs would be a shift- 
 ing use, since its coming into existence as a legal estate 
 must determine the fee simple granted to A. and his 
 heirs. A springing use, on the other hand, is a future 
 estate which is limited to come into existence at some 
 future time without any estate being limited to precede 
 it. For example, if A. limited a freehold interest to C. 
 to the use of B. from the beginning of nest year, the use 
 to B. would be a springing use. Till the end of the year, 
 the instrument creating the use would have no practical 
 operation. It is true, the ownership of the land would 
 be technically transferred by it to C, but, as C. gave no 
 value for it, he would be merely a feoffee to uses. The 
 
liN FUTURE OWNERSHIP : POWERS. 
 
 173 
 
 first use would be a resulting use to A., who would be 
 seised as of his old estate till the end of the year, and 
 then an express use would arise in favour of B. The 
 effect of the Statute of Uses on this would be that A.'s 
 interest, legal and equitable, would continue undisturbed 
 till the end of the year, when it would go over to B. 
 
 Executory devises may be divided into ti'e same classes 
 as executory uses, in which case the classes are called 
 shifting devises and springing devises. Executory bequests 
 can be similarly divided too ; but many executory bequests 
 are rather in the nature of remainders, though, owing to 
 the fact that the things in which they subsist are not such 
 as common law remainders can subsist in, they are execu- 
 tory interests. Thus, in a bequest of a term of years to 
 A. for life, and then to B. absolutely, the interest of B. 
 is neither a springing nor a shifting bequest, and yet it is 
 an executory interest. It is usually described as a quasi- 
 remainder, or, more shortly, a remainder. 
 
 Sub-section 4. 
 
 POWERS. 
 
 PAGE 
 
 Nature of Powers 173 
 
 Kinds of Powers 174 
 
 Special and General Powers . . 176 
 
 Creation of Powers 179 
 
 PAQE 
 
 Execution of Powers 179 
 
 Extinction of Powers 181 
 
 Powers of Revocation 182 
 
 Nature of Powers. — Under the head of future owner- 
 ship may be most conveniently discussed what are known 
 as powers. Tet a power can scarcely be considered the 
 ownership, or a part of the ownership, of the thing ovfr 
 which it subsists, since as long as it remains merely a 
 power, it confers no right to share in the possession or use 
 of the thing, either in the present or in the future. It is 
 
174 MODES OF HOLDING INTERESTS. 
 
 rather one of the rights into which ownership is divisible — 
 the right of disposition — separated from the other rights. 
 {See supra, p. 2.) In other words, it is not an interest 
 in the thing, but an authority to create an interest or 
 interests in it. The interest or interests to be created 
 under the power will, of course, be future interests in the 
 sense that they will arise some time after the grant of the 
 power or authority to create them. The person who gives 
 the authority to create future interests is called the donor, 
 the person to whom it is given, the donee of the power. 
 
 Kinds of Powers. — Powers may be divided into two 
 classes — common law potvers, a,nd powers operating hy icay of 
 trust or use. 
 
 Common law powers are themselves of two kinds. The 
 first are usually called common law powers, strictly so called, 
 of whicb the most ordinary example is the authority to 
 sell his lands which a testator formerly sometimes gave 
 his executors without devising those lands or any interest 
 in them to the executors. (Bean v. Bean, (1891) 3 Ch. 150.) 
 As regards this authority, it is to be remembered that by 
 the Land Transfer Act, 1897, freehold land in England 
 now vests, like personalty, in the owner's executors, who 
 have the right to sell it to satisfy his debts. {8ee infra, 
 p. 275.) The second kind of common law powers are 
 statutory powers, such as the authority given by the Settled 
 Land Act, 1882, to a tenant for life to sell or lease the 
 settled lands. 
 
 Powers operating by way of trust or use are powers 
 to declare the trusts or uses of the thing over which they 
 subsist ; or, in other words, they consist in an authority to 
 dispose of the beneficial interest in the thing. They are 
 equitable poioers when the legal estate does not follow the 
 beneficial interest. They are legal powers when the legal 
 estate does follow the beneficial interest. This happens 
 when the use declared under the power is executed by the 
 Statute of Uses. As we know, that statute applies only 
 
IN FUTURE OWNERSHIP : POWERS. 175 
 
 where a freehold interest in land is vested in the feoffee to 
 uses. When this is the case, the power is simply an 
 authority to declare executory interests in the land. Where 
 the thing over which the power suhsists is leasehold land 
 or goods, then the power is merely an authority to declare 
 equitable interests which the trustees must recognize. 
 
 Powers operating by way of use are most commonly 
 found in disentailing assurances and in settlements of 
 married women's freeholds. When a disentailing assurance 
 is executed by a tenant in tail with a view to a resettle- 
 ment [fsee mpra, p. 79) the land is usually conveyed to the 
 feoffee to uses discharged of the estate tail to hold to such 
 uses as the disentailing tenant shall appoint, and untH 
 such appointment to the uses of the original settlement, the 
 new uses being appointed by a subsequent deed. When a 
 married woman's freeholds are settled after the life estates 
 to the married woman and her husband, and the interests 
 given to the children of the marriage, the freeholds are 
 directed to be held in default of children to such uses as 
 the married woman may appoint. The most frequent ex- 
 ample of a power operating by way of trust is the ordinary 
 power in a marriage settlement of personalty of appointing 
 the personalty, subject to the husband's and wife's interests 
 therein, among the children of the marriage. 
 
 Special and General Powers. — Powers, however arising, 
 are commonly divided into general powers and special 
 powers, according as the authority enjoyed by the donee 
 of the power is to appoint practically to anyone (including 
 the donee himself) , or to appoint to a special person or class 
 of persons. {In re Byron^s Settlement, Williams v. Mitchell, 
 (1S91) 3 Oh. 474.) 
 
 A general power of appointment — unless when it is 
 subject to a trust — is practically equivalent to the owner- 
 ship of the interest over which it subsists, since the donee 
 can at any moment make himself the actual owner by 
 appointing to himself. (The old common law rule (now 
 
176 MODES OF HOLDING INTERESTS. 
 
 repealed) that a person cannot convey to himself or his 
 wife never applied to powers, general or special.) And 
 thus, heing able to appoint to himself, the legislature re- 
 gards him as actual owner, and in several statutes has 
 treated property over which a person has a general power 
 of appointment as part of his estate. Thus, by sect. 13 of 
 the Judgments Act, ISiJS, any laud over which a judgment 
 debtor has " any disposing power which he might without 
 the assent of any other person exercise for his own benefit," 
 may be taken under a writ of elegit. Again, on the bank- 
 ruptcy of the donee of a general power, the power vests in 
 his trustee in bankruptcy, who can exercise it for the 
 benefit of his creditors. (Bankruptcy Act, 1883, ss. 44 
 and 56.) And by 3 & 4 Will. lY. c. 104, on the death of 
 a donee of a general power, if that general power be 
 executed by his will, the property appointed becomes assets 
 for the payment of the deceased appointor's debts. By 
 sect. 4 of the Married "Women's Property Act, 1882, this 
 provision is extended to the wills of married women. Qj 
 sect. 27 of the Wills Act, 1837, a general gift of land or 
 goods in a will is to include all land or goods over which 
 the testator had at his death a general power of appoint- 
 ment by will, unless a contrary intention appears from the 
 will. [See hi re Jacob, Mortimer v. Mortimer, (1907) 1 Oh. 
 445.) By sect. 1 (2) of the Land Transfer Act, 1897, 
 real estate over which a person executes by will a general 
 power of appointment is, as if it were real estate vested in 
 him, to devolve in the first instance in his real representa- 
 tive constituted under that Act. (8ee infra, p. 275.) By 
 sect. 1 of the Infants' Settlement Act, 1856, an infant, if 
 a male, over the age of twenty, and, if a female, over the 
 age of seventeen, can, with the consent of the Court, exer- 
 cise a general power of appointment for the pui-pose of 
 settling the property over which it subsists in view of 
 marriage. And by sect. 2 of the same Act, such appoint- 
 ment is not void on the death of the infant under twenty- 
 one, unless the infant was tenant in tail. [8ee lit re Scott, 
 Scott V. Hanbiu-ij, (1891) 1 Ch. 298.) 
 
IN FUTURE OWNERSHIP : POWERS. 177 
 
 Special powers of appointment, on the other hand; 
 generally amount less to the heneficial ownership of the 
 thing over which they subsist than to a discretionary 
 authority which the donee of the power may, if he like, 
 exercise in favour of the person or persons who a,re the 
 objects of the power. 
 
 As we have seen, special powers are powers to appoint 
 to a particular person or among a particular class of 
 persons. A power to jointure the donee's wife may be 
 regarded as an example of the first kind of special power. 
 A power to appoint among the children of the donee may he 
 regarded as an example of the second and more common 
 kind.'^ Powers of this latter kind are usually inserted 
 in marriage settlements, more especially where the settled 
 funds were originally the property of the wife. Roughly, 
 the trusts in such settlements generally are as follows: 
 The trustees are directed to pay the income of the trust 
 funds to the wife for her separate use without power of 
 anticipation during her life ; should she predecease her 
 husband, then the income is to be paid to him during his 
 life ; on the death of both husband and wife, the trustees 
 are to hold the trust funds for the benefit of the children 
 of the marriage in such shares as the husband and wife 
 jointly, or the survivor of them, shall appoint, and, in 
 default of appointment, to the children in equal shares, vsith 
 limitations over to the wife in case there are no children. 
 (See Strahan's Convey, p. 210.) 
 
 Now formerly, in the case of powers to appoint among 
 a certain class, unless the authority given was to appoint 
 to any or all of them — when the power was called exclusive 
 
 ' Sometimes the class among wliom property is to be appointed 
 includes the donee of the special power in which case the donee is 
 entitled to appoint tp himself. (See Taylor v. Allhausen, (1905) 
 1 Ch. 529.) How far such a power comes within the Acts afiecting 
 general powers, set out in the preceding page, will depend on the 
 special wording of each Act. 
 
 S. 
 
 N 
 
178 MODES OF HOLDING INTERESTS. 
 
 — the donee had to appoint to each member of the class a 
 substantial share, or the appointment would be bad in 
 equity as Ulusory. At law it was a sufficient execution of 
 these non-exclusive powers if some share, however small, 
 was given to each member. By the Illusory Appointments 
 Act, 1830, passed at the suggestion of Lord St. Leonards, 
 the legal rule as to non-exclusive powers was made to 
 prevail over the rule of equity, and henceforth an appoint- 
 ment was good both in law and equity, however small the 
 shares appointed to some members of the class, provided a 
 share was appointed to every one of them. This state of 
 the law has been again altered as to appointments made 
 after the passing of the Act (30th July, 1874), by the 
 Illusory Appointments Act, 1874, which practically makes, 
 in the absence of a direction to the contrary in the instru- 
 ment creating the power, all powers exclusive — that is, 
 gives the donee of the power the right to appoint to one 
 or several members of the class only, excluding altogether 
 the others. As the law now stands, the donee is not bound 
 to appoint a particular or any portion to each member, 
 save only where the instrument creating the power ex- 
 pressly fixes the portion to be appointed to each or any 
 member. (Sect. 2.) 
 
 Usually, in the case of special powers, there is a clause in 
 the instrument creating them declaring that, in default of 
 9,ppointment, the property over which the power subsists 
 shall go to the class among whom it may be appointed in 
 equal shares. But even if such a clause be absent, the 
 Court will imply it where any indication can be gathered 
 from the instrument that it was the settlor's or testator's 
 intention that the gift was for the benefit of the class, 
 and that the donee of the power was merely to have an 
 authority to decide what portion each of such class should 
 take. Where, however, there is no indication of any such 
 intention, no gift to or trust for the class can be implied. 
 {In re Weeken' Settlement, (1897) 1 Oh. 289, following 
 Sealy y-, Donnery, 3 Ir. C. L. Eep. 213.) 
 
IN FUTUKE OWNERSHIP : POWERS. 179 
 
 Creation of Powers. — No formal words are necessary in 
 order to grant or reserve powers. All that is necessary is 
 that the grant or reservation should be made clear. And 
 any power granted is presumed to apply to the whole 
 interest of the grantor in the thing over which it is granted, 
 unless a eontrarj' intention is expressed. 
 
 Ixecution of Powers. — As far as the law itself is con- 
 cerned no formalities are required for the due execution of 
 a power. [In re Broad, Smith v. Drneger, (1901) 2 Oh. 
 86.) But where the instrument creating the power requires 
 certain formalities to be observed in executing it, then, 
 in order that the appointment may be valid, the donee in 
 executing the power must strictly observe all the formali- 
 ties so required. Thus, if the consent of a second person 
 be required by the instrument, that consent must be 
 obtained. If the power is to be executed by deed, it cannot 
 be validly executed by will, and vice versa. Formerly, 
 if the instrument required that the deed or will appoint- 
 ing should be executed with certain formalities — such, for 
 example, as attestation by three witnesses — these formali- 
 ties had to be strictly observed; but now it is sufficient if 
 the deed or will, in such cases, be executed in the presence 
 of and attested by two witnesses as deeds and wills usually 
 are executed and attested. (As to deeds, see sect. 12, Law 
 of Property Amendment Act, 1859 ; as to wills, see sect. 10, 
 Wills Act, 1837.) If, however, the instrument, without 
 specifying the power to be exercisable by will, declared 
 that it must be executed by a writing " signed, sealed and 
 delivered," then, in order to execute it validly by will, 
 the will must be " signed, sealed, and delivered," notwith- 
 standing the Wills Act. {Taylor y. Meads, 34 L. J. Ch. 
 203 ; Smith v. Adkins, L. E. 14 Eq. 402 ; and see In re 
 Broad, Smith v. Draeger, (1901) 2 Ch. 86.) 
 
 As has already been said, a general power of appointment 
 over land or goods exercisable by will is well executed by 
 a general devise or bequest, unless a contrary intention 
 
 N 2 
 
180 MODES or HOLDING INTERESTS. 
 
 appears either in the will or in the instrument creating the 
 power. {Re Bavies, Bavies v. Bavies, (1892) 3 Ch. 63.) 
 A special power, on the other hand, is executed only when 
 there is a specific reference in the will either to the power 
 or to the property over which it subsists, or there appears 
 clearly from the will, read in the light of surrounding 
 circumstances, an intention to execute it. (<SVe Far. on 
 Powers, p. 176; In re Sharlnnd, (1899) 2 Ch. -536; Bod- 
 dington y. Baiiman, (1903) A. C. 13.) And the rule applic- 
 able to the execution of special powers by will applies to 
 the execution of both general and special powers by deed 
 or other instrument inter riros. 
 
 As has also been already said, when the donee of a general 
 power executes such power by will the property appointed 
 becomes part of the testator's estate, and so is liable for the 
 payment of his debts, which it would not be if the power 
 were not executed by the will. [See Beyfun y. Laivley, 
 (l!-t03) A. 0. 411.) Sometimes, where there is a specific 
 appointment which fails owing to the fact that the person 
 in whose favour it was made predeceased the testator, 
 difficult questions arise as to whether or not the power is 
 executed by a general or residuary devise or bequest in 
 the will. It seems to be settled now that the execution 
 is sufficient if it appears from the will that it was the 
 testator's purpose to exercise the power, not merely for the 
 benefit of the deceased appointee, but for all purposes — 
 that is, so as to take the property out of the instrument 
 creating the power altogether. (//; ra Boyd, Kelly v. Boyd, 
 (1897) V, Oh. 232, following Li re de Liisi's ' Trusts, 3 
 L. R. Ir. 232. And cf. Co.reu v. Rowland, (1894) 1 Ch. 
 406.) 
 
 Where there is a defect of a formal character merely in 
 the execution of the power, the Court of Chancery wiU 
 sometimes treat the execution as good. This is what is 
 called aiding a defective appointment. The Court will 
 aid a defective appointment where the person in favour of 
 whom the appointment is made is (a) a purchaser for 
 
IN FUTURE OWNERSHIP : POWERS. 181 
 
 value from the appointor ; (b) a creditor of the appointor ; 
 (c) the wife or child of the appointor ; or (d) where the 
 appointment is in favour of a charity. {See Oharlton v. 
 Charlton, (1907) 2 Ch. 523.) 
 
 Extinction of Powers. — Powers may be extinguished or 
 determined in various ways — by their complete execu- 
 tion, by the death of the donee of them, by the failure 
 of their objects, by the acquisition by the donee of the full 
 ownership of the land or goods over which they subsist, 
 and by the alienation of the estate or interest over which 
 they subsist, as, for example, by the sale of a settled 
 estate. Whether a power could be extinguished by release 
 formerly depended upon whether it was a power nimply 
 collateral, or a jjower relating to the land. By a power 
 simply collateral was meant a power vested in a donee who 
 had no interest whatever in the land over which the power 
 subsisted, and who could not exercise the power in his own 
 favour. Such a person was formerly incapable of extin- 
 guishing, or even suspending, the power by any act on his 
 part. Now, however, by sect. 52 of the Conveyancing 
 Act, 1881 (44 & 45 Vict. o. 41), a person to whom any 
 power, whether coupled with an interest or not, is given 
 may by deed release, or contract not to exercise, the power. 
 A married woman restrained from anticipation is within 
 this enactment. {In re Clmholmh Settlement, Hemphill v. 
 Hemphill, (1901) 2 Ch. 82.) It does not, however, enable 
 a person to release a limited power where there is a duty 
 on him not to release it — that is, where he is a trustee of 
 it. {Re Eijr^; 49 L. T. 269.) But where there is no duty 
 not to release it, the mere fact that the donee of the power 
 obtains a benefit personally by releasing the power will not 
 make such a release fraudulent. {In re Somes, Smith v. 
 Somes, (1896) 1 Ch. 250.) Nor does the receipt of a 
 benefit by the donee in consideration of executing a power 
 make the execution a fraud upon the power unless the 
 benefit is a share in the property appointed or otherwise 
 
182 MODES OF HOLDING INTERESTS. 
 
 corrupt. {Saunders v. Shafto, (1905) 1 Ch. 126.) By 
 sect. 6 of the Conveyanoing Act, 1882 (45 & 46 Vict. c. 39), 
 the donee of a power is enabled to disclaim it by deed, and 
 thereupon he ceases to be capable of exercising it, while it 
 may be exercised by the other or others, or survivor or 
 survivors of the other or others of the persons to whom 
 the power is given, unless the contrary is expressed in the 
 instrument creating the power. 
 
 Powers of Revocation. — A power of revocation is, in a 
 sense, the antithesis of a power of appointment. A power 
 of appointment is an authority to create interests; a power 
 of revocation is an authority to determine interests. 
 
 Powers of revocation arise in the same way as powers of 
 appointment. They subsist over the use of the thing, and 
 they operate either under the Statute of Uses or in equity, 
 according as their subject-matter is freehold land or not. 
 A power of revocation is usually inserted in voluntary 
 settlements, and a power of partial revocation is often 
 inserted in marriage settlements. Thus, it is almost 
 common form in the case of a marriage settlement of a 
 bride's propert}^ to give her power in case of a second 
 marriage to revoke to the extent of a third part of the 
 settled property the trusts declared in the settlement in 
 favour of the children of the then intended marriage. If 
 the power reserved is simply a power to revoke, the exer- 
 cise of it has the effect of rendering the settlement void to 
 the extent of the revocation. Usually, however, a power 
 of revocation is accompanied by a power of new appoint- 
 ment, and unless there is something to the contrary in the 
 settlement, from the existence there of a power of revoca- 
 tion, a power of new appointment will be implied. (1 Sugd. 
 Pow. 461.) In this case the settlor can revoke the old 
 uses and declare new ones : in other words, he can vary the 
 settlement without nullifying it. But where the revoca- 
 tion and new appointment may be made by will, a mere 
 general devise or bequest will not, by virtue of sect. 27 of 
 
IN FUTURE OWNERSHIP : PERPETUITIES. 183 
 
 the Wills Act, 1^37, be taken to be an exercise of the 
 power reserved. {In re Brace, Welch v. Colt, (1891) 2 
 Ch. 671.) 
 
 It is to be noted that once a power of revocation and new 
 appointment has been executed, the new uses appointed 
 cannot be again revoked, unless a new power of revocation 
 is expressly reserved in the instrument appointing the new 
 uses. (1 Sugd. Pow. 449.) 
 
 Sub-section 6. 
 perpetuities and accumulatioxs. 
 
 PAGE 
 
 Rule against Perpetuities .... 183 
 Application to Powers 186 
 
 PAGE 
 
 Acoumulationa 188 
 
 Rule against Perpetuities. — We have already seen how 
 the ancient common law originally insisted that all in- 
 terests in lands should be vested, that is, should definitely 
 belong to a definite owner, and how that rule was relaxed 
 in the case of contingent remainders. With regard to 
 contingent remainders, however, a restriction was put 
 upon their creation by the doctrine, already stated, as to 
 limitations of remainders to children of persons unborn at 
 the date of the settlement. But this was a common law 
 doctrine, and as such applicable only to legal estates in 
 land. Future interests in goods and executory interests 
 in lauds, unknown to the common law, were not affected 
 by it. 
 
 The evil, however, which the common law rule was 
 designed to prevent, was just as likely to arise in con- 
 nection vsdth the new interests as in connection with 
 common law estates ; and so, as was to be expected, it 
 
184 MODES OF HOLDING INTERESTS. 
 
 soon was found necessary to devise a rule of restriction 
 applicable to them. This was accomplished by an adapta- 
 tion of the common law rule. The longest period during 
 which, by the most favourable concourse of circumstances, 
 a remainder in land could at common law be rendered 
 inalienable was during the lives of specified persons in 
 being at the date of the settlement and twenty-one years 
 after the dropping of the last life, with an extra period for 
 gestation if gestation actually existed. Thus, in a limita- 
 tion to A. for life, then to B. for life, then to 0. for life, 
 and on the death of the last surviving to his eldest son 
 and his heirs, the remainder would at the utmost — that is, 
 if the last siuwivor died leaving an only son en centre sa 
 mere — be rendered inalienable during the lives of A., B., 
 and C, and during the minority of the son of the survivor, 
 that is, during a further period of twenty-one years, with 
 some months for gestation — that is, until the last survivor's 
 son came of age. {See supra, p. 69.) Now, this longest 
 possible period was what the Courts adopted as the utmost 
 period during which an executory interest, or a future 
 equitable interest, in lands or goods could remain contingent 
 or unvested. Any such interest failed if, by the limitation 
 under which it arose, it would not or might not vest during 
 a specified life or lives in being and twenty-one years 
 after, a further period for gestation being allowed if 
 gestation actually existed. ^ {See He Wilnicr's Trtids, 
 Moore v. Wingfiekl, (1903) 2 Ch. 411.) This is what is 
 called the rule against perpetuities, and any limitation 
 violating it is said to be void for remoteness.- 
 
 ' If the lives in being are not specified, tlie limitation will be 
 void for uncertainty. Thus, a limitation by will of property in 
 trust for a pri'mte purpose during the lives of "all persons who 
 shall be living at the death" of the testator and for twenty-one 
 years after is void ab initio on this ground. {In re Moore, Prior v. 
 Moore, (1901) 1 Ch. 936.) 
 
 ^ In Be Dean, 41 Ch. D. 552, a trust for the lives of horses was 
 held not to be void for remoteness. 
 
IN FUTURE OWNERSHIP : PERPETUITIES. 185 
 
 With regard to this rule, these iDoints should be noted : 
 In the first place, possible, not actual, events are to be 
 considered in determining whether or not any given 
 limitation offends against the rule. Thus, in a limitation 
 to the use of A. (a bachelor) in fee simple until any son of 
 his attains the age of twenty-one, and then to the use of such 
 son, the executory interest is good, because the event which 
 is to vest it must, if it take place at all, take place not later 
 than twenty-one years after A.'s death, a period, if neces- 
 sary, being allowed for gestation. But, in a similar limita- 
 tion to A. (a bachelor) in fee simple until a son of his 
 attains the age of twenty-five, the executory interest is 
 bad, because, though one of A.'s sons may attain that age 
 even during A.'s life, yet it is possible at the time the 
 limitation is made that no one may attain it until more 
 than twenty-one years after A.'s death. {Bungnnnon v. 
 Smith, 12 CI. & F. 546.) And the same rule applies 
 when the executory interest is given to a class, the 
 members of which may not be ascertainable till more 
 than twenty-one years after a life or lives in being. 
 (1)1 re Afi'iTiii, Jlcmit v. Crof!>>uian, (1891) 3 Ch. 197; 
 cf. In re Turnet/, Turneij v. Tnrnetj, (1899) 2 Ch. 739; 
 and see Re Applehy, Walker v. Lei:er, (1903) 1 Ch. 565.) 
 On the other hand, the twenty-one years after the drop- 
 ping of a life or lives iu being may be taken in gross — 
 that is, it may be fixed independently of any person's 
 minority. Thus, a limitation to the use of A. for life, 
 and afterwards to the use of such person as shall, twenty- 
 one years after A.'s death, be the eldest male descendant 
 of A., is good. {Cadell v. Palmer, 7 Bligh, N. S. 202.) 
 Moreover, if an executory interest be void as violating the 
 rule against perpetuities, all subsequent limitations, though 
 themselves not violating the rule, fail too. [Hale v. Hale, 
 3 Ch. D. 643.) Thus, if property be limited to the use of 
 A. (a bachelor) in fee until a son of his attains twenty-five 
 years of age, and then to the use of such son in fee, and in 
 default of such son to the use of B., the limitation to A.'s 
 
186 M0DE8 OF HOLDING INTERESTS. 
 
 unborn son being void for remoteness, the limitation over 
 to B., though to a living person, fails too. 
 
 The rule against perpetuities does not apply to limita- 
 tions following estates in tail, nor does it apply to limita- 
 tions over from one charity to another. [Christ's Hospital 
 V. Grainger, 1 Mao. & Gr. 460 ; In re Tyler, Tyler v. Tyler, 
 (1891) 3 Oh. 252.) It does, however, apply to limitations 
 in favour of an individual in succession to a charity, and in 
 favour of a charity in succession to an individual. {In re 
 Bowen, Lloyd Phillips v. Davis, (1893) 2 Oh. 491 ; cf. Re 
 Blunfs Trusts, Wigan v. Clinch, (1904) 2 Ch. 767.) As to 
 what is a charity within this rule, see In re Nottage, Jones 
 V. Palmer (No. 1), (1896) 2 Oh. 649; Commissioners for 
 Special Purposes of Income Tax v. Pemsel, (1891) A. C. 
 531. 
 
 By sect. 10 of the Conveyancing Act, 1882, where 
 under any instrument coming into effect after 31st De- 
 cember, 1882, " a person is entitled to land in fee, or for 
 a term of years absolute or determinable on life, or for a 
 term of life, with an executory limitation over on default 
 or failure of all or any of his issue, whether within or at 
 any specified period of time or not, that executory limita- 
 tion shall become void if and as soon as there is living any 
 issue who has attained the age of twenty-one of the class 
 on default or failure whereof the limitation over was to 
 take effect." 
 
 Application of Rule to Powers. — The rule against per- 
 petuities applies to powers of appointment, but its applica- 
 tion varies according as the power is special or general. 
 When the power is special, the instrument creating the 
 power is regarded as the settlement. A power contained 
 in it may be void ab initio for remoteness where the sole 
 class to which the donee may appoint is within the rule 
 against perpetuities. Thus a limitation to A. for life, with 
 power to appoint among her issue who may be surviving 
 twenty-five years after her death, is void, since it cannot be 
 
IN FUTURE OWNERSHIP : PERPETUITIES. 187 
 
 SO exercised as to vest the property in the beneficiaries 
 within the life in being when the instrument creating the 
 special power was created (that is, the life of A.) or within 
 twenty-one years after it dropped. Powers, however, are 
 rarely void for remoteness ab initio, since if any of the 
 objects of the power are not too remote the power is good. 
 The difSculty usually arises over the executory interests 
 created by the exercise of powers where the objects 
 include objects too remote and objects not too remote. 
 In such oases the executory interests created by the exer- 
 cise of the powers are regarded, when they arise, as if 
 they had been originally contained in the settlement itself. 
 {See Whitby v. Von Luedecke, (1906) 1 Ch. 783.) Thus, 
 take property settled on A. for life and then to such of 
 her children or remoter descendants as she shall appoint, 
 and in default of appointment to her children equally. If 
 A. appoints the property equally among her children who 
 attain the age of twenty-one years, the appointment is 
 read into the settlement as if that instrument were " To A. 
 for life, and after her death among those of her children 
 who attain twenty-one years." That is, of course, a good 
 limitation. But A. may appoint the property among her 
 grandchildren who shall attain the age of twenty-one 
 years. The settlement is then read as if it were originally 
 " To A. for life, and then among those of her grand- 
 children who shall attain the age of twenty-one years." 
 That, of course, is a bad limitation, since it is not certain 
 that all A.'s grandchildren who shall attain twenty-one 
 years shall attain it within twenty-one years after A.'s 
 death. In order, then, to make an appointment to grand- 
 children on attaining twenty-one good, it should be limited 
 to grandchildren born during the life of the grandparent. 
 {See Re Finch (^ Chew's Contract, (1908) 2 Ch. 486.) 
 
 On the other hand, in the case of a general power of 
 appointment, the instrument creating it is not regarded as 
 a settlement, since the property subject to the power is in 
 no way tied up, the donee of a general power being able 
 
188 MODES OF HOLDING INTERESTS. 
 
 to dispose of it in what manner he likes. The settlement 
 here arises — if it arises at all — on the execution of the 
 power itself. When the appointor appoints the property 
 subject to the power, he is precisely in the position of any 
 other grantor. If he appoints to objects too remote, his 
 appointment will fail precisely as if he had been owner 
 and limited the property to the same objects by an ordinary 
 conveyance. 
 
 It is to be remembered that a power of appointment is 
 primarily an authority to defeat an existing limitation. 
 Thus on a limitation to A. for life, and on her death to such 
 of her children or remoter issue as she shall appoint, and in 
 default of appointment to her children equally, the limita- 
 tion to A.'s children equally, though always placed after 
 the power, in effect precedes both it and the interests created 
 by the exercise of the power. The settled property is really 
 vested in A. for life and after her death in her children 
 equally, with authority to A. to revoke the trusts in favour 
 of her children equally and appoint to other trusts. Now, 
 if that authority for any reason fails to operate, the trusts 
 for A.'s children equally are not revoked. Accordingly, 
 if the power given to A. is void for remoteness ab initio, or 
 if she makes an appointment void for remoteness, the 
 trusts for the children equally are unaffected. This is 
 shortly summed up by saying that limitations following a 
 power void for remoteness do not fail as do limitations 
 following limitations void for the same reason. (/« re 
 Abbott, Peacock v. Frigont, (LS93) 1 Oh. 54.) 
 
 Accumulations. — An interest in land or goods, then, may 
 be limited so that beneficial interest in it shall not vest in 
 anyone during a life or lives in being and twenty-one 
 years after. The rule which permitted this permitted the 
 income of the land or goods during this period to remain 
 unvested too. Thus, the settlor might direct that the 
 income of the land or goods might be received by trustees 
 and held by them in trust for the benefit of that person in 
 
IN FUTURE OWNERSHIP : PERPETUITIES. 189 
 
 whom the corpus of the property should ultimately vest. 
 Where, however, the corpus is vested from the first solely 
 in the grantee, and it and the accumulated income are both 
 to be paid over to him at the end of the period for which 
 the income is to be accumulated, the Court will not enforce 
 the direction to accumulate. The accumulation directed is 
 for his benefit exclusively, and he is entitled to put an end 
 to it when he likes. [Wharton v. Masferinan, (1895) A. C. 
 ]86.) 
 
 Owing to an abuse of this right to accumulate the 
 income of settled property by a Mr. Thellusson, who 
 endeavoured to tie up all his property and the income of 
 it for the benefit of his remote descendants, an Act to 
 limit the power was passed, commonly called the Thellusson 
 Act (39 & 40 Geo. III. o. 98). 
 
 This Act limited the period during which the income 
 of settled property — whether real or personal — could be 
 accumulated to the following : (a) the life or lives of the 
 settlor or settlors ; (b) twenty-one years from the death of 
 the settlor; (c) the minority or respective minorities of 
 any person or persons who shall be living or en ventre sa 
 mere at the death of settlor ; (d) the minority or respec- 
 tive minorities of any person or persons who under the 
 settlement would for the time being be, if of full age, 
 entitled to the income directed to be accumulated. These 
 are alternative periods — that is, an accumulation cannot 
 be directed during a combination of two or more of them 
 [Jagcjer v. Jagger, 25 Oh. D. 729) — but the Act does not 
 apply to accumulations directed for the purpose of (a) pay- 
 ing the debts of the settlor or of any other person [Re 
 Heathcote, Heathcote v. Trench, (1904) 1 Ch. 826) ; (b) rais- 
 ing portions for any child or children of the settlor or of 
 any person taking any interest under the settlement [Re 
 Stephens, Eilhy v. Betts, (1904) 1 Ch. 322) ; nor does it 
 extend to any direction as to timber or woods upon any 
 land or tenements. (Sect. 2.) 
 
 By 11 & 12 Vict. c. 36, s. 41, the Thellusson Act is 
 
190 MODES OP HOLDING INTERESTS. 
 
 extended to heritable property in Scotland, but it does not 
 apply at all to Ireland. The fact, however, that the 
 owner of land in England has an Irish domicile will not 
 prevent the application of the Act to a settlement by him 
 of such land. (Freke v. Lord Carhery, L. E. 16 Eq. 
 461.) 
 
 A further restriction has been put upon accumulations 
 by the Accumulations Act, 1892. By that Act, where the 
 funds resulting from accumulating the income of settled 
 property are to be invested in the purchase of laud only, 
 no accumulation is to be for a longer period than the 
 minority or respective minorities of the person or persons 
 who would, if of full age, be entitled to receive the income 
 directed to be accumulated. {In re Danson, Bell v. Dansnn 
 (1895), W. N. 102.) This Act is not expressly limited to 
 Great Britain, nor is it .to be read with Thellusson's Act. 
 There can therefore be little doubt that the Act of 1892 
 applies to Ireland, where heretofore the only limit on 
 accumulations was that imposed by the rule against 
 perpetuities. [Cochrane v. Cochrane, 11 L. E. Ir. 361.) 
 It also applies where the accumulation arises under an 
 instrument which came into operation before the passing 
 of the Act. {Re Baroness Llanorer, Herbert v. Freshneld, 
 (1903) 2 Ch. 6.) 
 
 It has been held that any limitation in a settlement 
 which directs accumulation during a period exceeding that 
 allowed by the Thellusson Act, and yet not exceeding the 
 period allowed by the rule against perpetuities, is not, like 
 a limitation violating the latter rule, void ah initio, but is 
 merely void in so far as it exceeds the period allowed. 
 {Lord Southampton v. Marquis of Hertford, 2 Yes. & B. 
 54; and see In re Pope, Sharp v. Marshall, (1901) 1 Ch. 
 64.) 
 
IN CONDITIONAL OWNERSHIP. 
 
 191 
 
 Section IV. 
 IN CONDITIONAL OWNERSHIP. 
 
 PAGE 
 
 Conditional Ownership 191 
 
 Kinds of Conditions 191 
 
 Void Conditions 192 
 
 Conditions in Restraint of 
 
 Marriage 194 
 
 Conditional Limitations 195 
 
 Conditional Interests 196 
 
 PAGE 
 
 Mortgages generally 197 
 
 Kinds of Mortgages 199 
 
 Sub-sect. 1. Mortgages of Land 201 
 Part A. Mortgages by Deed 202 
 Part B. Mortgages by De- 
 posit 219 
 
 Sub-sect. 2. Mortgages of Goods 212 
 
 Conditional Ownership. — When a person owns an inte- 
 rest in land or goods, subject to a condition which, under 
 certain circumstances, will transfer it to another or others, 
 his ownership is conditional, or, as it is sometimes called, 
 defeasible. This means, that by the instrument creating 
 his interest its existence or its quantum is made to depend 
 on the happening or non-happening of a future and uncer- 
 tain eyent. That event may be one which the grantee may 
 or may not be able to bring about ; in either case, so long 
 as it is uncertain whether it will happen or not, his interest 
 is conditional. 
 
 Kinds of Conditions. — Conditions generally arise by 
 express limitation, but sometimes they are implied by law. 
 Formerlj'', for example, it was an implied condition of a 
 life estate that the tenant for life should not alienate, or 
 attempt to alienate, the fee simple. Such an act on his 
 part (called a tortious feoffment) caused a forfeiture of the 
 life estate to the reversioner or remainderman. Now, 
 however, implied conditions usually arise in connection 
 with the tenure of offices, it being always an implied con- 
 dition of an office that the holder of it shall discharge the 
 duties of it. (Co. Litt. 233; 2 Bl. Com. 152.) 
 
 Conditions arising by express limitations, or express 
 conditions, as they are commonly called, are of two kinds, 
 
192 MODES OF HOLDING INTERESTS. 
 
 precedent and subsequent. Conditions which are precedent 
 as to one interest and subsequent as to another are some- 
 times called mixed conditions, or conditions of cesser and 
 acceleration . 
 
 A condition precedent is a condition which must be 
 fulfilled before any interest can arise ; a condition subse- 
 quent, a condition which is annexed to the interest after it 
 has come into existence. Take, for example, a limitation 
 to the use of A.'s second son and his heirs, but should such 
 second son succeed to A.'s settled estates, then to the use 
 of A.'s third son and his heirs. Now here the condition 
 affecting the interests of both sons is the same — the second 
 son's succeeding to his father's settled estates. But as to 
 the interest of the second son, it is a condition subsequent, 
 while as to the interest of the third son, it is a condition 
 precedent. Immediately on the instrument coming into 
 operation the gift to the second son is complete ; his 
 interest is vested subject to the condition which may 
 divest it and transfer it to his younger brother. The 
 latter, however, has no actual interest in the land until 
 the condition is fulfilled, and if it never be fulfilled, he 
 never shall have any interest under the grant. As the 
 condition is thus a condition precedent as to the third son's 
 interest, and a condition subsequent as to the second son's 
 interest, it belongs to that class of conditions which, as 
 they have the characteristics of both conditions precedent 
 and conditions subsequent, are called mixed conditions. 
 
 The distinction between conditions precedent and con- 
 ditions subsequent is important in many respects, but in 
 none more so than as regards void conditions. 
 
 Void Conditions. — Conditions of all kinds are void when 
 they are contrary to the law, or contrary to the policy of 
 the law, or when they are impossible, uncertain, contrariant, 
 or repugnant to the nature of the estate. 
 
 A condition is contrary to the law, or illegal, when the 
 law of England prohibits the performance of it. Thus a . 
 
IN CONDITIONAL OWNERSHIP. 193 
 
 condition that the grantee of an interest shall, within a 
 given time, murder a certain person, would bn illegal 
 and therefore void. (Co. Litt. 206 b.) And a condition 
 which, at the time the instrument creating it was executed, 
 was quite legal and capable of performance, may by a sub- 
 sequent change in the law become illegal and accordingly 
 void. Thus if a lease of land were granted subject to a 
 condition to maintain and repair certain houses thereon, 
 and afterwards, in furtherance of some scheme of public 
 improvement, the said houses were ordered to be demo- 
 lished, the condition requiring their maintenance would 
 become void. 
 
 A condition, on the other hand, is contrary to the policy 
 of the law when its object, though not contrary to any 
 positive rule of law, yet is to restrain something which the 
 law regards with favour, or to promote something which 
 the law regards with disfavour. Thus, a condition tending 
 to promote immorality, a condition in general restraint of 
 marriage, a condition in general restraint of trade, a con- 
 dition in general restraint of alienation, are all void as 
 being contrary to the policy of the law. 
 
 Again, a condition is impossible when, at the time the 
 instrument creating it was executed, it was plainly physi- 
 cally impossible to perform it, as, for example, a condition 
 that the grantee shall visit the moon. And a condition 
 is uncertain when it is so vague in its terms that no one 
 can say what it requires. And a condition is contrariant 
 when it is irreconcilable with the gift or grant to which it 
 is attached ; as, for example, if the grant be of an estate 
 tail, and the condition be that the estate is to go over to 
 another not on failure of the heirs of the grantee's body, 
 but on his death. And a condition is repugnant to the 
 nature of the estate when it endeavours to attach to the 
 estate granted an incident which the law does not permit 
 to be attached to the kind of estate granted : as if, for 
 example, the grant be of an estate in fee, subject to the 
 
 s. 
 
194 MODES OF HOLDING INTERESTS. 
 
 condition that the grantee shall be impeachable for waste. 
 {See In re Elliot, Kelly v. Elliot, (1896) 2 Ch. 353.) 
 
 Now, with regard to void conditions, the general rule 
 is this: that where they are conditions precedent they 
 prevent any estate ever arising, while where they are con- 
 ditions subsequent they have no effect in determining or 
 altering the estate to which they are attached. The rea- 
 soning on which this rule is based seems to be this : void 
 conditions are incapable of legal performance ; therefore, 
 where their performance must by the terms of the grant 
 precede the arising of the interest, the interest cannot arise ; 
 while where it must precede the determination of the 
 interest, the interest cannot be so determined. {See In re 
 Greenimod, Goodhart v. Greenwood, (1903) 1 Ch. 749.) A 
 partial exception to this rule occurs in the case of conditions 
 in restraint of marriage. 
 
 Conditions in Eestraint of Marriage. — It is only con- 
 ditions in general restraint of marriage that are void. A 
 limitation merely on the right to marry, like a limitation 
 on the right to trade, is good provided it is reasonable. 
 {Jenner v. Turner, 16 Oh. D. 188.) Thus, a condition in 
 restraint of a second marriage, or in restraint of marriage 
 to a particular person, or in restraint of marriage to any 
 member of a class socially inferior to the person restrained 
 {Greene v. Kirkwood (1895), 1 Ir. E. 130), or without the 
 consent of such person's parents or guardians, is reasonable 
 {In re Whiting's Settlement, Whiting v. De Rutzen, (1905) 
 1 Ch. 96), and therefore good. 
 
 Where, however, the interest to which a condition in 
 general or partial restraint of marriage is annexed is an 
 interest in personalty, two exceptions to the general rules 
 as to conditions are made : 
 
 (1) In the case of a condition subsequent in partial 
 
 restraint of marriage, unless there is a gift over of 
 the interest on the breach of the condition, 
 
 (2) or in the case of a condition precedent in partial 
 
IN CONDITIONAL OWNERSHIP. 195 
 
 restraint of marriage, unless the donee is in anv case 
 provided for and the gift on marriage with consent 
 is only alternative or in addition to that given in 
 any event, 
 the condition is considered iit terrorem, and therefore void. 
 [In re Nourse, Hampton v. Nourse, (1899) 1 Ch. 63.) 
 
 Where there is a condition in restraint of marriage, 
 save with consent of parents or other persons, the consent 
 in question must be given before the marriage, and the 
 consent of the survivor, where one of those whose consent 
 is required is dead, will suffice. But if by the act of God 
 the sole person to consent becomes unable to do so — as by 
 his dying or becoming lunatic {In re Harris, Fitzroy v. 
 Harris (1891), W. N. 76) — the condition is discharged. 
 
 Conditional Limitations. — A conditional limitation differs 
 from a grant subject to a condition subsequent in this 
 respect : in the latter, the condition is something super- 
 added to the limitation, of which, strictly speaking, the 
 grantor only can take advantage ; in the former, the con- 
 dition is itself part of the limitation, and it transfers the 
 estate granted to a third person. Thus, a grant to A. for 
 life, but if B. should return from Rome then the grantor 
 to re-enter and determine the grant, would be a grant 
 subject to a condition subsequent; but a grant to the use 
 of A. until B. returns from Rome, and then to C. in fee, 
 though A. would take practically the same interest, would 
 nevertheless be not a grant subject to a cimdition subse- 
 quent, but a conditional limitation. {See Co. Litt. 203 b, 
 note.) 
 
 The distinction is important for two reasons. In the 
 first place, an event which would be bad as a condition 
 subsequent may be good as the determining event in a 
 conditional limitation. Thus, a grant of land by way of 
 use, or a gift of personalty by way of trust, or a gift of 
 either land or goods by will to a person until he marries 
 or until he attempts to alienate, and then to another, will 
 
 o2 
 
196 MODES OF HOLDING INTERliSIS- 
 
 determine on the marriage of the grantee or on the first 
 attempt on his part to alienate. {Diujdale v. Dugdale, 38 
 Ch. D. 176; and see In re Slieward, Shorard y. Broini, 
 (18l-)3) 3 Ch. 502.) In the second place, while the hreach 
 of a condition subsequent does not determine the interest 
 unless the person entitled to take advantage of it re-enters, 
 the happening of the determining event in the case of a 
 conditional limitation puts an end ipso facto to the interest. 
 It follows from this latter circumstance that, in cabe the 
 grantee under a conditional limitation not subject to a rent 
 were permitted to hold on for twelve years after the hap- 
 pening of the determining event without acknowledging 
 in writing the reversioner's title, the latter would be barred 
 under the Statute of Limitations. {See infra, p. 303.) 
 No such result would follow in the case of a grant subject 
 to a condition subsequent. 
 
 Conditional Interests. — In the preceding parts of this 
 work we have had to consider most kinds of estates and 
 interests in personalty subject to conditions. It is un- 
 necessary to repeat what has already been said of them. 
 But there is one class of conditional estates which we have 
 so far only referred to ineidi^'ntally, and that is mortgage 
 estates. 
 
 Mortgage estates differ from other conditional estates 
 in this respect : other conditional estates are conditional 
 only to this extent — that their existence depends on the 
 conditions : while they exist, their incidents are practically 
 the same as the incidents of estates of the same kind not 
 subject to a condition. Mortgage estates, on the other 
 hand, are to a great extent the creatures of the condition 
 annexed to them ; most of their incidents result from the 
 condition, and these incidents are very different from the 
 incidents of estates of the same kind which are not subject 
 to the mortgage condition. For this reason, mortgage 
 estates, unlike other conditional estates, need separate and 
 individual treatment. 
 
IN CONDITIONAL OWNERSHIP. 197 
 
 Mortgages generally. — A mortgage is a transaction in 
 which a borrower transfers to the lender the ownership of, 
 or an interest in, land or goods, the condition of the 
 transfer being that the ownership or interest is vested in 
 the lender as security for the loan. The borrower is 
 called the mortgagor, the lender the mortgagee, the loan 
 the mortgage debt, and the land or goods transferred the 
 mortgage estate or property. '^ 
 
 The common law regarded a mortgage, of land at any 
 rate, as simply a conveyance for value, subject to a con- 
 dition that if the purchase-money were paid on a certain 
 day, with interest in the meantime, the estate granted 
 would revert or (after the Statute Quia Einptores) the 
 vendee should reconvey it to the vendor; and on the 
 principle of construing grants strictly as against the 
 grantor, it held that any failure to fulfil the condition on 
 the part of the vendor was a breach of the condition, and, 
 as such, rendered the land or goods conveyed the absolute 
 property of the vendee. (Co. Litt. 205 a.) Equity, how- 
 ever, looked at the essence and not the form of the 
 transaction. The essence of the transaction was the loan 
 made by the mortgagee to the mortgagor, and the land 
 was transfeired simply to secure the repayment of that 
 loan. Equity insisted that the land should be held merely 
 as a security, and that, provided the creditor suffered no 
 substantial damage, it did not matter whether the con- 
 dition to repay on a given day was strictly fulfilled or not ; 
 even after failure to pay on that day the mortgagor was 
 entitled, subject to reasonable conditions for the protection 
 of the mortgagee, to repay the loan and to demand a 
 
 1 Two other transactions in the nature of mortgages of land were 
 formerly in use ; Vivum vadium, or living pledge, where the lender 
 entered upon the land and received the rents and profits until these 
 had paid off his loan ; and the Welsh mortgage, where the lender 
 received the profits in lieu of interest on the loan. Both these 
 are now obsolete in England, but are still in occasional use in 
 Ireland. 
 
198 MODES OF HOLDING INTERESTS. 
 
 re-transfer of the thing mortgaged. Meanwhile equity 
 regarded the mortgagor as the real owner of the mortgage 
 estate, and the mortgagee as a mere creditor with a claim 
 to payment out of it. {See Strahan's Eq. p. 288.) 
 
 So anxious was equity to preserve to the mortgagor the 
 right to redeem that it would not permit it to be taken 
 from him, or to be in any way clogged or fettered by any 
 agreement entered into between the mortgagee and him 
 at the time the mortgage was effected. For example, if it 
 was then expressly agreed that on failure to pay the debt 
 the mortgagee should be entitled to the property abso- 
 lutely or conditionally on giving the mortgagor a certain 
 further amount, the Court would hold this agreement 
 invalid. Once it was proved that the transaction was one 
 by way of security for a loan, the usual incidents of a 
 mortgage attached themselves to it, among which was the 
 right to redeem the property without the consent of the 
 lender and without any condition tending to diminish 
 the value of the property after redemptiim [Rire v. Noakes, 
 (1902) A. 0. 24: ; Samuel v. Jarrah Timber and Wood 
 Pacing Corporation, Ltd., (1904) A. C. 323), on payment 
 of the mortgage debt at any time before foreclosure. {See 
 infra, p. 210.) This is what is meant by the maxim, once 
 a mortgage, always a mortgage. {See Lord Bramwell's 
 judgment, Salt v. Marquess of Northampton, (1892) A. C. 1, 
 at p. 18.) 
 
 In holding a mortgage to be merely a transaction for 
 securing the repayment of a loan, equity, as has been said, 
 was guided by the real nature of the transaction — i.e., the 
 intention of the parties. If what the parties intended was 
 not a mortgage but a conditional sale, then equity regarded 
 the transaction as what it was — an out-and-out conveyance, 
 subject to a condition to re -convey at a certain time and on 
 certain terms — and insisted as strongly as the common law 
 on the condition being observed. As a mortgage and a 
 conditional sale were often the same in form, sometimes it 
 was difficult to decide which of them was intended in a 
 
IN CONDITIONAL OWNERSHIP. 199 
 
 given case. Under such circumstances the test was whether 
 a debt for which the grantor could be sued resulted from 
 the transaction. If it did, the case was one of mortgage ; 
 if it did not, the case was one of conditional sale. 
 {Williams v. Owen, 5 M. & 0. 308.) Where there was no 
 evidence as to this, equity would look to the circumstances 
 surrounding the transaction, such as the amount of money 
 given in comparison with the value of the thing trans- 
 ferred, the party who paid the costs of the transaction (the 
 practice being for a mortgagor to pay for a mortgage, 
 while a vendee pays for his conveyance), whether the 
 grantee entered immediately into possession of the thing 
 transferred, and such like. {-Ex parte Odell, 10 Ch. D. 
 76.) 
 
 Kinds of Mortgages. — -Mortgages are divisible into three 
 classes — legal, equitable, and statutory. 
 
 A legal mortgage is a mortgage by which the legal title 
 to an interest of the mortgagor's ^ in the thing mortgaged 
 is transferred to the mortgagee. An equitable mortgage is 
 a mortgage by which an equitable title to an interest of the 
 mortgagor's in the thing mortgaged is transferred to the 
 mortgagee. A statutory mortgage is a mortgage which 
 derives its legal effects from a statute. Often it transfers 
 to the mortgagee neither a legal nor an equitable title 
 but merely a right to realise his debt by the sale of the 
 thing mortgaged, as in the case of a mortgage of a ship 
 
 ' In mortgages of leaseholds it is usual not to convey the mort- 
 gagor's whole interest to the mortgagee, but merely to grant him. 
 a sub -lease ; the object being to relieve the mortgagee from liability 
 for breaches of covenant and failure to pay rent on the mortgagor's 
 part while the mortgagor remains in possession. If the leasehold 
 were assigned, the mortgagee would be liable for these, even though 
 he never took possession of the land. Formerly mortgages of 
 fees simple were usually effected also by leases from the moitgagor 
 to the mortgagee. The chief object of this was to secuj'e that 
 on the mortgagee's death the legal estate in the mortgaged land 
 would vest — as the right to the mortgage debt did — in his personal 
 representatives. (Now see infra, p. 205.) 
 
200 MODES OF HOLDING INTERESTS. 
 
 under sects. 3-1: and 35 of the Merchant Shipping Act, 
 1894 {see Appendix E.), or a right, on failure of the 
 mortgagor to pay the interest or debt, to enter upon the 
 thing mortgaged and receive the rents and profits, or have 
 the legal title to it transferred to him, or the land sold, 
 as in the case of a registered charge on land, under 
 the Land Transfer Acts, 1875 and 1897. Statutory- 
 mortgages properly so called are to be distinguished from 
 statutory mortgages under sects. 26 and 28 of the Con- 
 veyancing Act, 1881, which are practically ordinary legal 
 or equitable mortgages in the form given in the statute, 
 which implies certain covenants. 
 
 In Ireland there is a peculiar kind of statutory mort- 
 gage, called a judgment mortgage, which arises under 
 the provisions of 13 & 14 Yiot. c. 29. Sections 6 and 7 of 
 that Act provide that any judgment creditor may make 
 an affidavit specifying any lands of which his judgment 
 debtor is seised or possessed, or over which he has a general 
 power of appointment, to be exercised without the assent of 
 another person. On this affidavit being registered, all the 
 estate of the judgment debtor in the lands specified is 
 vested in the judgment creditor, subject to a right of 
 redemption reserved to the debtor on payment of the 
 money mentioned in the judgment. The judgment debt 
 thus becomes a judgment mortgage on the land in question, 
 and the rights and remedies of the judgment mortgagee 
 are the same as those enjoyed by a mortgagee by deed. 
 {Eyre V. McDowell, 9 H. L. C. 647.) 
 
 It will not be necessary to say more here of statutory 
 mortgages. As to legal and equitable mortgages, these 
 subsist equally over land and goods. Mortgages of goods, 
 however, differ considerably from mortgages of land, and 
 therefore it will be expedient to treat of the two kinds 
 separately. 
 
IN CONDITIONAL OWNERSHIP: MORTGAGES OF LAND. 201 
 
 Sub-section 1. 
 mortgages of land. 
 
 PAGE 
 
 Legal and Equitable Mort- 
 gages 201 
 
 PAGE 
 
 Part A. Mortgages by Deed . . 202 
 Part B. Mortgages by Deposit 219 
 
 Legal and Equitable Mortg^ages. — As has already been 
 said, a Ipgal mortgage is one which transfers to the mort- 
 gagee a legal title to an interest of the mortgagor's in the 
 thing mortgaged. Now, in order that a legal title may 
 be transferred, two conditions must be fulfilled : firstly, 
 the mortgagor must have a legal title ; and, secondly, he 
 must execute a legal transfer of it. If he has only an 
 equitable title he can only make an equitable mortgage, 
 whatever sort of conveyance he uses. Thus, a cestui que 
 trust who mortgages his interest in the trust estate, or a 
 legal mortgagor who executes a second mortgage on the 
 mortgage estate, can only create an equitable mortgage, 
 since neither of them has a legal title to transfer. Again, 
 if a mortgagor uses, in making a mortgage, a conveyance 
 not recognised by the common law or by statute, whether 
 he has a legal title or not, the mortgnge is only equitable. 
 Thus, the legal owner of a fee simple estate, who obtains 
 an advance from his banker by depositing as security the 
 title deeds to his fee simple estate, does not create a legal 
 mortgage of that estate. ^ The mere deposit of title deeds 
 is not sufficient at law to transfer title to any interest in 
 land, though it is sufiicient in equity. {See infra, 2}- 219.) 
 
 Equitable mortgages, then, arise either through the 
 mortgagor having only an equitable title to the thing 
 
 1 Tkts must be distinguislied from a mortgage of the title deeds 
 themselves as chattels by means of a bill of sale. [See infra, 
 p. 224.) Such a mortgage conveys to the mortgagee no interest 
 whatever in the lands to which the title deeds relate. (See Swanky 
 Cual Co. V. Dentvn, (1906) 2 K. B. 873.) 
 
202 
 
 MODES OF HOLDING INTERESTS. 
 
 mortgaged, or through his employing a mode of con- 
 veyance which, being recognized only in equity, can 
 transfer only an equitable title. Equitable mortgages of 
 the former kind, however, approach much nearer legal 
 mortgages than equitable mortgages of the second kind, 
 and it is impossible to discuss legal mortgages without 
 considering them. Accordingly, we will divide the sub- 
 ject of mortgages of land, not into legal and equitable 
 mortgages, but into mortgages by deed and mortgages by 
 deposit of title deeds, or by memorandum of deposit ; or, 
 to put it in other words, mortgages by legal conveyance 
 and mortgages by equitable conveyance. 
 
 A. Mortgages by Deed. 
 
 Position of Parties to Mort- 
 gage 
 
 Remedies for Interest on Mort- 
 gage 
 
 (a.) Taking Possession . . 
 [h.) Appointing Receiver . 
 (c.) Action on Covenant. . 
 Remedies for Mortgage Debt . 
 {a.) Foreclosure 
 
 202 
 
 207 
 207 
 208 
 208 
 209 
 210 
 
 PAGE 
 
 (b.) Sale 210 
 
 (o.) Action on the Cove- 
 nant 212 
 
 Redemption of Mortgage Es- 
 tate 213 
 
 Restriction on Right to Re- 
 deem 214 
 
 (a.) Tacking 215 
 
 (b.) Consolidation 217 
 
 Position of Parties to Mortgage. — As has been pointed 
 out, the effect of a mortgage by deed is to convey whatever 
 interest is included in the mortgage, whether tliat is legal 
 or equitable, to the mortgagee. If he be first mortgagee, 
 he becomes entitled to and should — for his protection — ■ 
 obtain possession of the mortgagor's title deeds. He is 
 entitled, moreover, to immediate possession of the land 
 mortgaged, even though there be a covenant in the mort- 
 gage deed that the mortgagee shall not claim possession 
 until default is made in paying the interest or principal 
 
IN CONDITIONAL OWNERSHIP: MORTGAGES OF LAND. 203 
 
 of the debt, such a covenant merely giving the mortgagor 
 a right of action for damages if the mortgagee takes pos- 
 session in defiauoe of it. {Cholmonddey v. Clinton, 2 Meriv. 
 359 ; Bof v. Davies, 16 Jur. 44.) This right to take im- 
 mediate possession is now, to a certain degree, limited by 
 the Common Law Procedure Act, 1852, which enacts that, 
 in un action of ejectment brought by a mortgagee against 
 a mortgagor, the Court will stay proceedings on payment 
 hj the mortgagor of debt, interest, and costs. (Sects. 219, 
 2J0.) 
 
 As is intended, however, this right to take possession is 
 seldom exercised by the mortgagee until the mortgagor 
 make default in payment of interest or debt. Meanwhile, 
 the mortgagor remains in possession, as tenant by suffer- 
 ance if he has not attorned tenant, or, if he has done so, as 
 the tenant at will of the mortgagee {Scoble v. Collins, 
 (1895) 1 Q. B. 375), bat really with nearly all the ordinary 
 powers of a legal owner. Thus, he is entitled to receive 
 all the rents and profits of the land without rendering any 
 account of them to the mortgagee. (Strahan's Eq. p. ^89.) 
 Formerly, however, he could not sue for these without 
 joining the mortgagee, who was the legal owner. However, 
 now by sect. 25, sub-sect. 5, of the Judicature Act, 1873, 
 and in Ireland by sect. 28, sub-sect. 5, of the Supreme 
 CoLirt of Judicature (Ireland) Act, l'^77, he is enabled to 
 sue for them in his own name. He can, moreover, commit 
 the same waste after the mortgage as he could before it, 
 provided he does not thereby injm-e the mortgagee by ren- 
 dering the land a scanty security for the debt. And if a 
 business be carried on upon the mortgaged land, he can 
 make subject to the same proviso any contracts affecting 
 the land which may be necessary for carrying on the 
 business. {Gough v. Wood, (1894) 1 Q. B. 7i3.) Besides 
 these rights, considerable powers of leasing are usually 
 conferred on him by the mortgage deed, and in mortgages 
 executed since the commencement (31st December, 1881) 
 of the Conveyancing Act, 1881, certain such powers are 
 
204 MODES OK HOLDING INTERESTS. 
 
 implied, unless the deed expressly excludes them. These 
 implied powers permit him to grant, without the concur- 
 rence of the mortgagee, agricultural or occupation leases 
 for terms not exceeding twenty-one years, and building 
 leases for terms not exceeding ninety-nine years, such 
 leases to take effect in possession within twelve months of 
 grant, to have the best rent reasonably obtainable reserved 
 on them, and to contain covenants for the payment of rent.^ 
 (Sect. 18 ; Broivn v. Peto, (1900) 2 Q. B. 663.) Where 
 the mortgage, having been executed before the commence- 
 ment of the Conveyancing Act, 1881, contains no powers 
 of leasing, or, having been executed after the commence- 
 ment of that Act, expressly denies such powers to the 
 mortgagor, the mortgagor can still grant leases binding 
 against himself, but liable to be set aside by the mortgagee 
 on taking possession of the land. To bind the mortgagee 
 in these cases, he must join in the lease. 
 
 It is to bn noted that the provisions of sect. 18 of the 
 Conveyancing Act, 1881, apply to mortgages, whether by 
 deed or not. Where the mortgage is not by deed, the 
 powers given by the section can only be excluded by a 
 written agreement between the mortgagor and mortgagee. 
 Such an agreement will exclude them in any case. (Sub- 
 sect. 13 of sect. 18.) 
 
 Besides these rights, which belong to a mortgagor ouly 
 so long as he is in possession of the land, there are others 
 which belong to him whether he is in possession or not. 
 His right to redeem the land from the mortgage, which 
 is commonly called his eqiiiti/ of redi>mptwi/, is regarded, 
 as has already been said, as an equitable estate in the land 
 {Cashorne v. Scrnfe, 1 Atk. 603 ; 2 W. & T.), and he may 
 deal with it as an estate. He may sell it, settle it, or 
 mortgage it, though, if he mortgage it without informing 
 
 ' The mortgagor in possession has, however, no implied authority 
 to accept the surrender of leases of the mortgaged land. {Robhins 
 V. Whyte, (1906) 1 K. B. 125.J 
 
IN CONDITIONAL OWNERSHIP : MORTGAGES OF LAND. 205 
 
 the second mortgagee of the prior mortgage, his right 
 to redeem will, as a penalty, become forfeited. (4 & 5 
 Will. & Mary, c. 16. See infra, p. 221.) On his death it 
 will devolve precisely as the legal interest would have done, 
 that is, if it is a fee simple, an estate pur autre vie, or a 
 leasehold, it will go under his will, if he has made one ; i£ 
 he has not made one, it will devolve according to its nature 
 and its tenure, that is, it will go to his administrators for 
 his next of kin if leasehold or an estate pur autre vie, and 
 for his common law or customary heir, according as the 
 tenure is common socage or gavelkind socage if it he fee 
 simple. 
 
 Formerly, if the mortgage was made by the mortgagor 
 himself, i.e., was not one affecting the land when he first 
 obtained it, on bis death the person succeeding to the 
 mortgaged land, as devisee or heir, was prima facie entitled 
 to have the mortgaged debt paid out of the mortgagor's 
 personal estate, which is, as we shall see, primarily liable 
 for the payment of its deceased owner's debts. [See 
 infra, p. 294.) Now, however, that rule is reversed by 
 Locke King's (or Eeal Estate Charges) Acts, 1854, 1867, 
 and 1877, and the mortgage debt is primarily payable out 
 of the mortgaged land unless there is a contrary inten- 
 tion expressed. [See In re Valpy, Valpy v. Valpy, (1906) 
 1 Ch. 531.) 
 
 The mortgagee, on the other hand, though on execution 
 of the mortgage deed he becomes legal owner of the 
 interest mortgaged, yet is regarded in equity as merely a 
 creditor having a charge on the land as a security for his 
 debt. [See In re Loveridge, Pearce v. Marsh, (1904) 1 Ch. 
 518.) As long as he permits the mortgagor to remain in 
 possession, he has practically little power over the land. 
 Perhaps his most important relation to it is, that he cannot 
 take a lease of it from the mortgagor. Even his taking 
 possession does not put him in as good a position as that 
 enjoyed by the mortgagor in possession. He is, like him, 
 entitled to the rents and profits of the land, but, unlike 
 
206 MODES OF HOLDING INTERESTS. 
 
 him, be is bound to render, on demand, a strict account of 
 all he has received, and of all that, but for his wilful default 
 or negligence, he might have received. {Noi/e-s v. Pollock, 
 32 Ch. D. 53.) In such account he must also make due 
 allowance for any part of the land he may have himself 
 occupied by charging against himself an occupation rent. 
 He is bound, moreover, to keep the mortgaged premises in 
 repau- as far as the surplus rents and profits will enable 
 him to do so ; and he can, in rendering accounts, take 
 credit for what he has spent in repairs or in making im- 
 provements, as far as these have enhanced the value of the 
 land. (Henderson v. Astwood, (1894) A. 0. 150.) And 
 he is not entitled to commit waste, unless the land forms 
 a scanty security for his debt, when he can commit such 
 waste as may be necessary to raise sufficient money to pay 
 the interest. And in case of mortgages by deed, executed 
 after the Conveyancing Act, 1881, unless he is expressly 
 prohibited by the deed from so doing, a mortgagee 
 in possession may cut timber ripe for cutting, and 
 not planted for ornament or shelter, whether his secu- 
 rity be scanty or not. (Conveyancing Act, 1881, s. 19, 
 sub-s. 1 (iv).) 
 
 The mortgagee in possession has bpsides considerable 
 powers as to leases. He is bound by leases made before 
 the mortgage, but the lessees under such leases need not 
 pay him their rents until notice to do so has been given 
 them. As to leases made by the mortgagor after the 
 mortgage, if the mortgagee was a party to them, he is, of 
 course, bound by them ; but if he was not a party to them, 
 unless they were made under an express power, or a 
 power implied by the Conveyancing Act, 1881, he can, 
 on taking possession, repudiate them. If, however, by 
 repudiating an advantageous lease he brings loss upon 
 the estate, he will be liable for that loss as profit which 
 he might, but for his wilful default, have received. 
 (2 Spence's Bq. Juris. 806.) In possession he has, under 
 sect. 18 of the Conveyancing Act, 1881, the same powers 
 
IN CONDITIONAL OWNERSHIP : MORTGAGES OF LAND. 207 
 
 to grant leases as those enjoyed by a mortgagor in posses- 
 sion. {See supra, p. 203.) 
 
 Whether in possession or out of possession, equity always 
 regarded the mortgagee as being a mere creditor, and, 
 therefore, it regarded his interest in the land as pure 
 personalty. Accordingly, on his death, it devolved like 
 pure personalty — that is, it went to his executors, if he 
 left a will ; to his administrators if he did not. But at 
 law he owned the land, and so, when he died, leaving a 
 will, the mortgaged estate, if freehold, went under the 
 residuary clause or otherwise to the residuary or special 
 devisee ; and if he left no will, it descended to his heir. 
 This led to various difficulties, which several statutes were 
 passed to remove. {See 13 & 14 Vict. c. 60, ss. 19, 20.) 
 Now, by sect. 30 of the Conveyancing Act, 1881, the legal 
 rule is made to conform to the equitable rule, and hence- 
 forth, when a mortgagee dies, whether he leaves a will or 
 whether he dies intestate, the legal estate in the mortgaged 
 land (unless such land be of copyhold or customary tenure 
 (Copyhold Act, 1894, s. 88) ) is to vest, like personalty, in 
 his personal representatives. 
 
 Remedies for Interest on Mortgage. — (a) Taking jMsses- 
 sion. — If the mortgagor fails to pay the interest due on 
 the mortgage debt, the mortgagee may, if he likes, secure 
 its payment by taking possession of the mortgaged land, 
 as we have seen. He can then deduct out of the rents and 
 profits received by him the interest due to him, and either 
 hand the balance over to the mortgagor, or devote it to the 
 reduction of the mortgage debt. Resort to this means of 
 obtaining payment of interest is not much practised for 
 two reasons. In the first place, the mortgagee in posses- 
 sion, as has been pointed out, is liable to account not 
 merely for what he receives, but for what he might, but 
 for his own default or negligence, have received ; and in 
 the second place he is not entitled to any remuneration for 
 the trouble of managing the estate. An exception to the 
 
208 MODES OF HOLDING INTERESTS. 
 
 latter rule has recently been made in oases where the 
 mortgagee is a solicitor. A solicitor mortgagee is entitled 
 to charge for any legal work done by him which, if he were 
 not a solicitor, he might retain a solicitor to do. (Mort- 
 gagees' Legal Costs Act, 1895 ; see Day v. Kellcmd, (1900} 
 2 Oh. 744.) 
 
 (b) Appointing receiver.— A- more common and convenient 
 way of obtaining payment is that supplied by the power 
 now usually given to the mort"gagee to appoint a receiver 
 on failure of the mortgagor to pay the interest on the mort- 
 gage debt. Such a power is now implied by sect. 19 of the 
 Conveyancing Act, 1881, in all mortgages by deed executed 
 after the commencement of the Act not containing a pro- 
 vision excluding it. The implied power arises only where 
 the mortgagee would be entitled under the Act to exercise 
 the statutory power of sale. {See infra, p. 210.) The 
 receiver must be appointed in writing under the hand of 
 the mortgagee, who is entitled at any time to remove him. 
 The great advantage, from the mortgagee's point of view, 
 of this mode of proceeding, is that, though he appoints the 
 receiver, yet the latter is regarded as the agent of the 
 mortgagor, and so the mortgagee is not liable for his 
 negligence or misconduct in his ofSce. Moreover, the 
 appointment of a receiver does not render the mortgagee 
 liable under the covenants affecting the mortgaged land 
 which taking possession would. The receiver is entitled to 
 a commission of 6 per cent, on the profits collected by him 
 for his labour. As to the profits collected by him, they 
 are to be devoted to (1) the payment of rent, taxes, and 
 outgoings; (2) keeping down annual payments and 
 interest on preceding mortgages ; (3) payment of receiver's 
 commission and costs of insurance and repairs; (4) payment 
 of interest on mortgage of appointor ; (5) residue to go to 
 person entitled to the land subject to the mortgage. (Sect. 24, 
 Conveyancing Act, 1881 ; and see White v. Metcalf, (1903) 
 2 Ch. 567.) 
 
 (e) Action on covenant. — Where there is a separate cove- 
 
IN CONDITIONAL OWNERSHIP: M0ET3AGES OF LAND. 20^ 
 
 nant to pay the interest, as distinct from the corpus of 
 the mortgage deht, as there is in well- drawn mortgage 
 deeds, an action can be brought on it to recover the inte- 
 rest without at the same time seeking repayment of the 
 principal. In such an action only six years' arrears of 
 interest is recoverable. (Real Property Limitation Act, 
 18:53, s. 42.) 
 
 Remedies for Mortgage Debt. — Though equity held that 
 a mortgagor's right to redeem the mortgaged land waa 
 not lost by his failure to pay the mortgage debt on the 
 exact day fixed by the mortgage deed, yet it always would, 
 on the application of the mortgagee, fix a time when the 
 mortgagor would have to redeem or be deprived of his 
 right to redeem altogether. This was, and still is, the- 
 primary remedy which a mortgagee possesses for the 
 recovery of the mortgage d.ebt. It is called action for 
 foreclosure. Besides foreclosure, however, there are now 
 commonly two other remedies which often prove more 
 beneficial to the mortgagee. These are sale of the mort- 
 gaged land, and action on the covenant to repay the debt. 
 (Strahan's Eq. p. 296.) 
 
 We will treat shortly of these seriatim ; but, before 
 doing so, it is well to point out that these remedies, when 
 they all exist, are not alternative, but concurrent remedies. 
 {Btevens v. Theatres, Limited, (190^5) 1 Ch. 857; and see 
 Williams v. Hunt, (1905) 1 K. B. 512.) Thus, the mort- 
 gagee may sue on the personal covenant, and, if he 
 obtains only partial repayment in this way, he may fore- 
 close for the balance of his debt. {Rudge v. Richens, 
 L. R. 8 C P. 358.) He may even claim foreclosure and 
 judgment on the covenant in the same writ [Dymond 
 V. Croft, 3 Ch. D. 612) ; while, as we shall see, in any 
 action for foreclosure, the Court, if it thinks proper to do 
 so, may order a sale of the mortgaged estate instead. 
 Where, however, a foreclosure has been obtained, if the 
 mortgagee sues on the covenant, this will have the effect 
 
 s. T 
 
210 MODES OF HOLDING INTERESTS. 
 
 of re- opening' the foreclosure and enabling the mortgagor 
 to obtain a reconveyance of the estate on repayment of 
 the debt with interest and costs ; and if the mortgagee 
 has, after foreclosure, so dealt with the property as to 
 make it impossible for him to reconvey it, he will not be 
 permitted to sue on the covenant. 
 
 (a) Foredomre. — In a foreclosure action, the plaintiff — 
 who may be the first or any other mortgagee — -claims that 
 a time shall be fixed during which the mortgagor must 
 repay the mortgage debt with arrears of interest (not 
 exceeding six years') and costs, or be for ever foreclosed of 
 his right to redeem. This right arises only after the 
 mortgagor has incurred forfeiture under the terms of the 
 mortgage. ( Wil/ia/nsv. Morgan, (1906) 1 Oh. 840.) As has 
 been said, the action may be brought by any mortgagee, but 
 when among several mortgagees it is brought by any one 
 except the last, he must claim foreclosure of all the mort- 
 gages following his, as well as of the equity of redemption. 
 On the other hand, while any second or later mortgagee is 
 entitled to redeem the mortgages preceding his own, he can 
 only redeem them in the order in which they precede his. 
 This is what is meant by the maxim " redeem up, foreclose 
 down." It may be added that foreclosure is practically 
 unknown in Ireland, the Court in every case ordering a 
 sale. (Louy/iiriii v. Loughran, 15 L R. Ir. 71.) 
 
 (b) Sale. — Sale of the mortgaged estate may take place 
 under an order of the Court, or under an express power 
 in the mortgage deed, or under a power implied by 
 statute. 
 
 As to sale by order of the Court, by sect. 25 of the 
 Conveyancing Act, 1881, any person entitled to redeem 
 may have, instead of an order for redemption, an order 
 for the sale, or for sale or redemption in the alternative, of 
 the mortgaged estate. (Sub-sect. 1.) And in any action 
 for foreclosure, redemption, or sale, the Court may, on the 
 request of any person interested in the mortgaged estate, 
 whether as mortgagor or mortgagee, order if it thinks fit. 
 
IN CONDITIONAL OWNEKSHIP : MORTGAGES OF LAND. 211 
 
 a sale of the mortgaged estate on such terms as it thinks 
 just. (Sub-sect. 2.) 
 
 This section, however, does not extend to Ireland. In 
 Ireland the Landed Estates Court is given power, by 
 sect. 43 of the Sale and Transfer of Land (Ireland) Act, 
 1858, to order a sale of land which is subject to any 
 incumbrance on the application of any incumbrancer or 
 owner. 
 
 In the case of sale under an express power given to the 
 mortgagee by the mortgage deed, the terms of the power 
 must be strictly observed. Where, however, no express 
 power is so given, then a statutory power to sell is implied 
 by sect. 19 of the Conveyancing Act, 1881. That implied 
 power enables the mortgagee to sell or concur in selling 
 the mortgaged estate either together or in lots, and either 
 by public auction or by private contract, and subject to 
 such conditions of sale as the mortgagee may think fit, 
 with power to vary the contract of sale, or rescind it and 
 resell. In exercising this power the mortgagee is not 
 liable for loss, provided he has acted honestly in the 
 matter. (Keuuech/ v. Dp Trafford, (1897) A. 0. 427.) And 
 the power is given him not for the benefit of the mort- 
 gagor, but f'lr his own benefit, and so, subject to the same 
 proviso, he need not consult the interests of the mortgagor 
 in exercising it. Thus he is under no obligation to delay a 
 sale because it is probable a better price would be obtained 
 if it was delayed. {Farrar v. Farrars, Limited, 40 Ch. D. 
 395 ; and see Nutt v. Easton, (1899) 1 Ch. 873 ; (1900) 
 1 Ch. 29.) On the other hand, when he has commenced an 
 action of foreclosure, and has obtained a decree »«'■«, i.e , a 
 decree directing the mortgagor to redeem within six 
 months or be for ever foreclosed of the right to do so, the 
 mortgagee's power of sale is suspended till the elapse of 
 the six months. {Stevens v. Theatres, Limited, (1903) 1 
 Ch. 857.) 
 
 This power is implied only, (a) in mortgages by deed ; 
 (b) made after the commencement of the Act; (c) where 
 
 v'2 
 
212 MODES OF HOLDING INTERESTS. 
 
 there is nothing to the ooutrary in the mortgage deed. It 
 arises only (a) after notice to pay the mortgage deht and 
 failure for three months to pay ; or (b) interest has been 
 in arrears for two months ; or (c) there has been a breach 
 of some condition in the mortgage other than the condition 
 to pay the debt. (Sect. 20.) These provisions apply to 
 Ireland. 
 
 When the mortgaged estate has been sold, if it is sold 
 free of incumbrances, the purchase-money must be devoted 
 first to the payment of all incumbrances upon the land 
 entitled to priority over that of the person exercising the 
 power. That person is then entitled to discharge his own 
 mortgage together with any arrears of interest due, even 
 though more than six years' arrears be due {In re Manshfield, 
 Marsli field v. Hutchiiis, 31 Ch. D. 721 ; and see In re Lloyd, 
 Lhijd V. Lloyd, (1903) 1 Ch. S'SS), and to repay himself 
 money spent by him in repairs and permanent improvements 
 while in possession before sale, so far as these have enhanced 
 the value of the land. [Henderson, v. Astwood, ( i 894) A. 0. 
 150.) If there be any surplus the mortgagee who sold is 
 a trustee, in the first place, for any puisne mortgagees of 
 whose mortgages he has notice, and after or in default of 
 these, for the mortgagor. ( West London Coninii'rciiil Bank 
 V. Reliance Permanoit Building Soeietij, 29 Ch. D. 954.) 
 As a trustee he is entitled, in case of a breach of trust, to 
 the benefit of the provisions of the Trustee Act, 1888, and 
 the Judicial Trustee Act, 1896, to the same extent as an 
 express trustee. (Strahan's Eq. pp. 138 to 160; Thome 
 V. Heard mid Marsh, (1895) A. C. 495.) 
 
 (c) Action on covenant. — There is now usually a cove- 
 nant in every mortgage deed in which the mortgagor binds 
 himself to repay the mortgage debt. An action on this 
 lies against the mortgagor even after he has parted with 
 his equity of redemption, but if the mortgagee sues him after 
 he has parted with it, that will revive his right, on payment 
 of the mortgage debt, to have the mortgagee's estate in the 
 land conveyed to him. {Kinnaird v. Trollope, 39 Ch. D. 
 
IN CONDITIONAL OWNERSHIP : MORTGAGES OP LAND. 213 
 
 636.) Even, however, where there is no such covenant, the 
 lending of the money implies a promise to repay it on 
 which an action of deht would lie, unless there is some- 
 thing in the mortgage deed to show that the mortgagee 
 was to look solely to the land for the satisfaction of the 
 debt. {Yates v. Aston, 4 Q. B. 182.) Such an action 
 would, however, he liable to be barred, like an action for 
 any other simple contract debt, by the lapse of six years 
 since interest or part of the debt was last paid, or since an 
 acknowledgment in writing of the debt was last made by 
 the mortgagor. 
 
 Where, however, thpre is a covenant to pay in the 
 mortgage deed, an action lies upon it until twelve years 
 have elapsed since the last payment on account of interest 
 or debt, or the last written acknowledgment of the debt 
 by the mortgagor or his assign. {In. re Lacei/, Houmrd v. 
 Lhihtfoot, (19(17) 1 Ch. 330.) And this will be the case 
 when there is not merely a covenant in the mortgage deed, 
 but a separate bond for the amount given by the mort- 
 gagor to the mortgagee. Grenerallj'' speaking, the period 
 of limitation for actions on bonds or covenants is not 
 twelve but twenty years {see Appendix F.) ; but in the case 
 of money charged on land by mortgage, judgment or lien, 
 the period is reduced to twelve by sect. 8 of the Real 
 Property Limitation Act, 1874, and this enactment extends 
 to all remedies for such money. {Sutton v. Sutton, 22 
 Ch. D. 511 ; and see Charter v. Watson, (1899) 1 Ch. 175.) 
 The arrears of interest recoverable is limited to six years'. 
 (Real Property Limitation Act, 1833, s. 42.) 
 
 Redemption of Mortgage Estate. — The mortgagor or the 
 assignee of or anyone interested in the equity of redemp- 
 tion {Tarn v. Turner, 39 Oh. D. 456) is entitled to redeem 
 the mortgage estate by repaying the loan, together with 
 all interest then due and costs {Wales v. Carr, (1902) 1 
 Ch. 860), on the day fixed by the mortgage deed for re- 
 payment. {See Strahan's Eq. p. 281.) If he permits that 
 
214 MODES OP HOLDING INTERESTS. 
 
 day to go past, he must give the mortgagee six months' 
 notice of his intention to repay, so as to give the mort- 
 gagee time to find another investment for the money,, 
 unless the mortgagee has demanded repayment or taken 
 steps to enforce it, when immediate payment may be made. 
 {Smith V. Smith, (1891) 3 Oh. 550.) The entering into 
 possession of the mortgaged premises by the mortgagee is a 
 demand for repayment within this rule. {Bovill v. Endle, 
 (1896) 1 Ch. 648.) 
 
 On payment, the mortgagor is entitled to a reconveyance 
 of the mortgaged estate. If the mortgagee refuses to 
 accept payment, or refuses to reconvey the estate to the 
 mortgagor, the latter has a remedy by an action of redemp- 
 tion. It is to be remembered {see supra, p. 210), that in 
 such an action the Court can order a sale. (Sect. 25, 
 Oonveyancing Act, 1881.) By sect. 15 of the same Act, 
 as amended by sect. 12 of the Oonveyancing Act, 1882, 
 the mortgagor, save when the mortgagee is in possession, 
 can claim, instead of a reconveyance to himself, a transfer 
 of the mortgage to any person whom he shall nominate. 
 
 Eestrictions on Eight to Eedeem. — The right' of a mort- 
 gagor to redeem cannot, as we have seen, be taken from 
 him nor clogged, as the term is, by any condition which 
 will render the mortgaged property lesa valuable to him 
 after redemption than it was before he entered into the 
 mortgage. (Strahan's Eq. p. 280.) This doctrine, how- 
 ever, applies only to conditions introduced into the mortgage 
 itself or agreed to between the mortgagor and mortgagee 
 contemporaneously with the execution of the mortgage. 
 There is nothing to prevent a mortgagor from, subsequently 
 to the execution of the mortgage, agreeing to sell his 
 equity of redemption to the mortgagee. {Revre v. Lisle, 
 (1902) A. 0. 461.) And subsequent events may without 
 any express agreement restrict the right of the mortgagor 
 to redeem. This is the case where the same mortgagor 
 has granted two mortgages, and these two mortgages have 
 
IJSr CONDITIONAL OWNERSHIP : MORTGAGES OF LAND . 215 
 
 practically become one by the operation of the doctrine of 
 tacking or the doctrine of consolidation. 
 
 (a) Tacking. — The process called tacking applies in the 
 case of several mortgages upon the same interest or estate. 
 To explain it, it is necessary to consider, first, the rules a? 
 to priority of mortgages. (Strahan's Eq. p. 307.) 
 
 The first point to be marked is that there can be only 
 one legal mortgage of an interest in land, because a legal 
 mortgage is a mortgage that transfers the legal title to the 
 interest mortgaged, and there can be only one legal title. 
 Accordingly, where there are several mortgages of the 
 same interest, all of them, save one, must be equitable 
 mortgages, and all of them without exception may be 
 equitable mortgages. Whether there is or is not a legal 
 mortgage among them does not matter if every subsequent 
 mortgagee, when he advanced his money, was aware of the 
 existence of the mortgage or mortgages already affecting 
 the interest. In this case, the rule Qui prior ent tempore 
 potior cut jure {jcho is prior in time is better in right) applies 
 all round. The first mortgagee, whether legal or merely 
 equitable, is entitled to be paid off first; the se wnd 
 second, and so seriatim. 
 
 The case, however, is very different when the subsequent 
 mortgagees were not aware, or /lae? no notice, as the phrase 
 is, of the existence of the prior mortgagees at the time they 
 advancpd their money. (Strahan's Bq. p 21.) Then a 
 different rule upplies : tcliere the equities are equal the law sliall 
 prevail. Accordingly, if one of the mortgagees has the legal 
 title, that is, is a legal mortgagee, he will be entitled to 
 priority over all the others, that is, to have his mortgage 
 paid off in full before any of the others have any claim to 
 payment out of the mortgage estate. This priority he may, 
 through negligence or fraud on his part, be deprived of ; 
 but, assuming honesty and reasonable oare, a legal mortgage 
 takes precedence of all equitable mortgages executed before 
 it, of the existence of whi'ih the legal mortgagee was 
 unaware at the time he advanced his money. (Taylor v. 
 
216 MODES OF HOLDING INTERESTS. 
 
 London ^ County Banking Co., (1901) 2 Oh. 231, and see 
 Beruick 8f Co. v. Price, (1905) 1 Oh. 632.) 
 
 Subject to the priority of the legal mortgagee — if there 
 be one — the equitable mortgagees, who have advanced their 
 money without notice of other mortgages, will, as between 
 themselves, be entitled to be paid off in order of time, just 
 as if they had such notice. If one of them, however, 
 buys in the legal mortgage, or sells his equitable mort- 
 gage to the legal mortgagee, then this equitable mortgage 
 will be joined to the legal mortgage, and will be entitled 
 to priority over all other equitable mortgages, whether 
 executed before or after it. The equitable mortgage is 
 then said to be tacked to the legal mortgage. Both are 
 henceforth regarded as one mortgage, alike for the purpose 
 of priority over other mortgages and for the purpose of 
 redemption ; neither the mortgagor nor any of the equitable 
 mortgagees can redeem the legal mortgage without redeem- 
 ing also the equitable mortgage which has been tacked to 
 it. {Marsh v. Lee, 2 Yent. 337 ; 1 W. & T.) 
 
 The same principle applies when the legal mortgagee, 
 having no notice of the existence of equitable mortgages, 
 makes a further advance to the mortgagor on the security 
 of the same estate. This second advance he is entitled to 
 tack to his legal mortgage, and to claim that both shall be 
 paid off before any of the equitable mortgages of which he 
 had no notice. {Brace v. Duchess of Marlborough, 2 P. Wms. 
 491.) But if the legal mortgagee has notice of the 
 ■existence of the equitable mortgage at the time he actually 
 makes the further advance, he will not be entitled to tack 
 this further advance to his legal mortgage, even though it 
 was made in pursuance of an agreement to make it entered 
 into before the equitable mortgage was made {TFest v. 
 Williams, (1898) 1 Oh. 132) ; and where one only of 
 several joint mortgagees has notice of the equitable mort- 
 gage, that is for purposes of tackiug notice to them all. 
 {Freeman v. Laing, (1899) 2 Oh. 355.) 
 
 [n Ireland, the doctrine of tacking has been excluded 
 
IN CONDITIONAL OWNERSHIP : MORTGAGES OF LAND. 217 
 
 by the operation of the Irish Eegistry Act. (6 Anne, 
 0. 2 (Ir.).) That Act renders the registration of all assur- 
 ances (which include equitable mortgages by memoran- 
 dum [Fuller ton v. Provincial Bank of Ireland, (1903) A. 0. 
 309) ) affecting land in Ireland compulsory, save only 
 leases for periods not exceeding twenty-one years, where 
 possession of the land goes along with the lease. Regis- 
 tered assurances are to take priority over all unregistered 
 assurances or charges of which the owner under registered 
 assurance had no notice when he advanced his money. 
 The relative priority of registered instruments is made to 
 depend on the time of their registration. The Courts 
 have held that the effect of this latter provision is to 
 prevent not merely the tacking of one registered mort- 
 gage to a prior one [Latouche v. Dunsani/, 1 Sch. & L. 
 137), but also the tacking of a further advance made by a 
 registered mortgagee on the security of the same estate 
 without notice of an intermediate incumbrance. {Tennison 
 V. 8wec')ii/, 7 Ir. Bq. 511.) 
 
 By the Middlesex Registry Act, 1891, the law of tack- 
 ing, as regards assurance of land in Middlesex, is made 
 practically identical with the Irish law. Under the York- 
 shire Registries Act, 1884, however, registered charges, in 
 the absence of actual fraud (sect. 7 ; see Battison v. Hobson, 
 (1896) 2 Ch. 403), are to take priority according to their 
 date of registration, notwithstanding the owner of the 
 registered charge had actual notice of an earlier unregis- 
 tered charge. (Sects. 14 and 16.) 
 
 It may be noted that, in the case of land registered 
 under the Land Titles and Transfer Act, 1875 (38 & 39 
 Yict. c. 87) , registered charges are to rank according to the 
 order in which they are registered, not in which they are 
 created, subject to an entry to the contrary being made in 
 the register. (Sect. 28.) 
 
 (b) Consolidation. — The process called consolidation ap- 
 plies in the case of several mortgages given by the same 
 person on different interests or estates. Owing to recent 
 
218 MODES OF HOLDING INTERESTS. 
 
 alterations in the law, it is not now so important as 
 formerly. 
 
 When the owner of several interests or estates granted 
 separate mortgages on each of them to secure separate 
 debts, then, provided he redeemed them at the times fixed 
 in the deed for the repayment of the debts, he was en- 
 titled to redeem each estate separately, although all the 
 mortgages were vested in the same person. If, however, 
 he allowed that time to go by without redeeming two or 
 more of them, and these were granted to or became vested 
 in the same person, that person was entitled to refuse to 
 let him, or his assignee of the equity of redemption, redeem 
 one of the mortgages without, at the same time, redeeming 
 the other or others. {PMge v. White, (18:^6) A. C. 187.) 
 The person holding the mortgages was then said to have 
 consolidated the mortgages in question. If, however, they 
 were originally granted to different persons and the 
 mortgagor had assigned his equity of redemption in one 
 of the mortgaged estates to a third person before the two 
 mortgages became vested in one person, this would prevent 
 any consolidation as against such thu-d person. [Minfer 
 V. Can; (1894) 3 Ch. 4S8 ; nnd see Hughes v. Britannia. 
 Permanent Building Society, (1906) 2 Oh. 607.) 
 
 Where one interest was an ample, and another a scanty, 
 security for the debt advanced on it, this right to consoli- 
 date was very valuable. It has, however, been very much 
 limited in its application for the future by sect. 17 of the 
 Conveyancing Act, 1881, which enacts that, as to mort- 
 gages, one or all of which were made after the commence- 
 ment of the Act, a mortgagor shall be entitled to redeem 
 one mortgage without paying any money due under any 
 separate mortgage, or by any person through whom he 
 claims, on property other than that comprised iu the mort- 
 gage which he seeks to redeem, unless a contrary intention 
 is expressed in the mortgage deeds, or one of them. {See 
 In re Salmon, Ex parte the Trustee, (190:i) 1 K. B. 147.) 
 
IN CONDITIONAL OWNERSHIP : MORTGAGES OF LAND. 219 
 B. Mortgages hij Deposit or Memorandum. 
 
 PAGE 
 
 Deposit or Memorandum .... 219 
 Priority 220 
 
 PAGE 
 
 Forfeiture of Equity of Ee- 
 demption 22 L 
 
 Deposit or Memorandum. — Equitable mortgages, as we 
 liave seen, arise in one of two ways. Firstly, through the 
 mortgagor having nothing but an equitable interest to 
 convey ; or secondly, through his having used a form of 
 conveyance or transaction recognized only in equity. We 
 have dealt with those arising in ihe first way as far almost 
 as is necessary, and we have had to deal to a certain extent 
 with the second kind also in the preceding part. There 
 are, however, a few points still to be referred to as to 
 both kinds, but more especially as to the latter, or, as they 
 are commonly called, mortgages by deposit of title deeds 
 or by memorandum of deposit. 
 
 To effect a mortgage by deposit of title deeds, all that 
 is necessary is that the borrower should hand over to the 
 lender the title deeds to the interest in question (or suffi- 
 cient of them to show title), or in the case of land regis- 
 tered under the Land Transfer Acts, 1875 and 1897, the 
 land certificate issued under those Acts (sect. 8, Act of 
 1897), as security for the loan. [Rusxel v. Russel, 1 Bro. C. 
 0. 269 ; 1 W. & T.) Usually a memorandum accompanies 
 the deeds, setting out the object of the deposit, but this is 
 not absolutely necessary. And a mortgage may even arise 
 without an actual deposit if the mortgagor gives the lender 
 a memorandum containing a promise to deposit the title 
 deeds as security for the loan. [See Strahan's Eq., 
 p. 280.) 
 
 The only effect at common law of a deposit of title deeds 
 as security for a loan is to make the Court refuse its aid to 
 the depositor to recover the title deeds until he repays the 
 loan. It transfers no interest in the land. Equity, how- 
 ever, treats a deposit of title deeds, or a memorandum 
 
220 MODES OF HOLDING INTERESTS. 
 
 promising to deposit them, as a valid mortgage of the 
 land, and on failure of the depositor to pay the interest 
 and loan, it will decree a foreclosure, and order the mort- 
 gagor to convey his interest in the mortgaged lands to the 
 lender, six months being allowed for redemption. (3Iar- 
 shnll V. Shremburi/, L. E. 10 Ch. 254.) The powers of 
 sale, appointment of receiver, &c., under sect. 19 of the 
 Conveyancing Act, 1881, are to be implied only when the 
 mortgage is by deed. But the mortgagee by deposit may 
 in England, under sect. 25 of the same Act, and in Ireland 
 under sect. 43, Sale and Transfer of Land Act, 1858 (21 & 
 22 Viot. 0. 72), obtain an order for sale on application to 
 the Court, if the Court see fit to grant it. And on bis appli- 
 cation the Court would always appoint a receiver. {Bodger 
 V. Bodger, 1 1 W. E. 160.) On the other hand, the mort- 
 gagor by deposit has the same or rather a better right to 
 redeem than the mortgagor by deed, since he is entitled to 
 pay off the mortgage at any time without giving the 
 mortgagee six months' notice {Fitzgerald's Trustee v. Mel- 
 lersh, (1892) 1 Ch. 385), and the same right as the mort- 
 gagor by deed to an order for the sale of the mortgaged 
 estate under sect. 25, sub-sect. 1, of the Conveyancing Act, 
 1881. {8ee siqyra, p. 21Q.) 
 
 A mortgagee or mortgagor by deposit, while in possession 
 of the land, has — -unless they are excluded by written agree- 
 ment — all the powers of leasing implied by sect. 18 of the 
 Conveyancing Act. {See supra, p. 202.) 
 
 Priority of Equitable Mortgages. — In considering the 
 doctrine of tacking {supra, p. 215), we have already said 
 nearly all that is necessary as to the order in which equit- 
 able mortgages of all kinds — for in this respect there is no 
 difPerenoe among them — rank as regards the order in 
 which they are to be paid out of the mortgaged estate. 
 Two further points may be noticed. In the first place, as 
 between mortgages where the subsequent ones were made 
 without notice of the earlier ones, the earliest one may 
 
IN CONDITIONAL OWNERSHIP : MORTGAGES OF LAND. 221 
 
 maintain, or any of the later ones may acquire, priority over 
 the others, not merely by being tacked to the legal mort- 
 gage, but, if there be no legal mortgage, by being in any 
 way attached to the legal title — as, for instance, by its 
 owner acquiring the legal estate from the mortgagor. In 
 the second place, all equitable mortgages are liable, as long 
 as they remain equitable, to be postponed or defeated by a 
 subsequent legal mortgage, or by a sale of the legal estate 
 for value to a mortgagor or purchaser without notice of 
 their existence. This all follows from the principle before 
 referred to, that where the equities are equal the law shall 
 prevail. (As to the effect of registration on priority, see 
 supra, p. 216.) 
 
 The right to priority of a subsequent purchaser or legal 
 mortgagee without notice is not destroyed by the fact that 
 the legal estate was transferred to him through the fraud 
 or breach of trust of the mortgagor, provided the purchaser 
 or mortgagee had no notice of it at the time the legal 
 estate was transferred to him. {Taylor v. Russell, (1892) 
 A. C. 244 ; and see Perham v. Kempster, (1907) 1 Ch. 37a.) 
 Fraud, however, on the part of a legal mortgagee, or 
 negligence on his part which has enabled the mortgagor 
 to commit a fraud on a subsequent mortgagee, is sufficient 
 to postpone a prior legal mortgagee to even a subsequent 
 equitable mortgagee [Northern Counties of England 
 Insurance Co. v. Whipp, 26 Oh. D. 482) ; but not mere 
 negligence, such as entering into the mortgage without 
 insisting on the production of the title deeds, if he has 
 inquired why these are missing and has received what he 
 honestly thought a reasonable explanation. [Agra Bank 
 V. Barry, L. E,. 7 H. L. 135 ; and see and cf. In re Greer 
 (1907), 1 Ir. E. 67 ; Walker v. Linom, (1907) 2 Ch. 104.) 
 Mere negligence has, however, been held sufficient to 
 postpone a prior equitable mortgagee to a subsequent one. 
 [Ferrand v. Yorkshire Banking Co., 40 Ch. D. 182.) 
 
 Forfeiture of Equity of Redemption. — There is one respect 
 
222 MODES OF HOLDING INTERESTS. 
 
 in which a mortgage by deposit differs from a legal mort- 
 gage and an equitable mortgage by deed. Under 4 & 5 
 W. & M. c. 16, if a mortgagor grants a second mortgage 
 without disclosing the existence of the prior mortgage to 
 the second mortgagee, he shall, as we have seen, lose his 
 equity of redemption. This Act, however, being a penal 
 one, has been construed strictly, and it has been held not 
 to apply where the second mortgage was merely an advance 
 on the security of the title deeds {Kennard v. Futvoye, 
 2 Griff, f^l) ; nor where other lands not included in the 
 prior mortgage were included in the second mortgage. 
 {Stafford v. Selby, 3 Vern. 589.) 
 
 And by sect. 24 of the Law of Property Amendment 
 Act, 1859, and sect. 8 of the Law of Property Amendment 
 Act, 1860, the fraudulent concealment by any seller or 
 mortgagor, or by his solicitor or agent, of any prior 
 incumbrance from a purchaser or mortgagee is made a 
 misdemeanour, and also renders the party so concealing it 
 liable to an action for damages at the suit of the purchaser 
 or mortgagee. Criminal proceedings under this enactment 
 can be taken only with the sanction of the Attorney or 
 Solicitor-G-eneral. 
 
 Sub-section 2. 
 mortgages of goods. 
 
 PAGE 
 
 Mortgages and Pledges 222 
 
 Pawnbrokers Acta 223 
 
 EASE 
 
 Bills of Sale Acts 224 
 
 Mortgages and Pledges. — Personalty of an incorporeal 
 kind, such as stock or shares in public companies, can be 
 dealt with in the way of mortgage much on the same 
 principles as apply to interests in land. With this species 
 
CONDITIONAL OWNERSHIP: MORTGAGES OF GOODS. 223 
 
 of property, however, we have at present nothing to do. 
 [See infra, p. 343.) 
 
 Mortgages of goods, or moveable physical objects, on the 
 other hand, differ greatly in their nature from mortgages 
 of land, owing partly to the difference in the nature of 
 land and goods, and partly to special legislation. 
 
 Goods may be made a security for a loan, either by a 
 transfer to the creditor of the possession without the legal 
 ownership, or by a transfer of the legal ownership without 
 the possession. In the first instance the security is called 
 a pledge ; in the second, a nwrtgage. In pledges or mort- 
 gages the rights of the parties, independent of statute, 
 are much the same. The pledgor or mortgagor is entitled 
 to redeem the article pledged or mortgaged, not merely at 
 the time fixed for the repayment of the loan, but at any 
 time afterwards, as long as the article remains in the mort- 
 gagee's or pledgee's hands ; the pledgee — or pmcnee — ■ 
 cannot foreclose the right of redemption, but both mort- 
 gagee and pawnee have a power to sell the article on 
 failure of the other party to pay interest or principal of 
 debt at the time fixed for repayment {Carter v. Wake, 
 4 Ch. D. 6(J5), or if no time is fixed, then within a reason- 
 able time. [Beverges v. Sandei//an, Clark ^ Co., (1901) 
 1 Ch. 70.) The rights of the parties, however, have been 
 greatly altered by the Pawnbrokers Act, 1872, and the 
 Bills of Hale Acts, 1878 and 1882, in England; and by 
 the Act to establish the Business of Pawnbroker, 1786 
 (26 Geo. III. c. 43 (Irish)) and the Bills of Sale (Ireland) 
 Acts, 1879 and 1883, in Ireland. 
 
 Pawnbrokers Acts. — With regard to the effect of the 
 Pawnbrokers Acts on the general law of pledge, it will be 
 sufficient here to state that, while the English and Irish 
 Acts differ, both seek to regulate the rights of parties to 
 pledges for small amounts by compelling the pawnbroker 
 to keep records and give tickets as to such pledges, by 
 limitiug the amount of interest chargeable on the loan, and 
 
224 MODES OF HOLDING INTERESTS. 
 
 by setting out the powers of sale and forfeiture possessed 
 by the pawnbroker and the rights of redemption possessed 
 by the pledgor. 
 
 Bills of Sale Acts— The Bills of Sale Acts of England 
 (1878 and 1882) and Ireland (1879 and 1883) are prac- 
 tically identical. By a bill of sale is meant any written 
 instrument by which the title to a chattel personal ^ is 
 transferred from one person to another. When the 
 transfer is intended to be an out-and-out assignment, the 
 bill may be called an absolute bill of sale ; when it is 
 intended to be as a security for a debt or loan, it may be 
 called a conditional bill of sale. The Bills of Sale Act, 
 1878 (41 & 42 Vict. c. 31), applies to both absolute and 
 conditional bills of sale, with many exceptions as to abso- 
 lute bills. The Bills of Sale Act, 1882 (46 & 46 Vict. 
 0. 43), applies to conditional bills only. With absolute 
 bills we have at present nothing to do. Conditional bills 
 of sale, as the words are used in the Acts, practically 
 embrace not merely bills which are transfers of ownership, 
 but all transactions by which goods are made securities 
 for debts while they are left in the possession of the 
 debtor. Mortgages of ships are not Avithin them. I^See 
 Appendix D.) 
 
 Conditional bills of sale within the Acts must be bills 
 (a) given as security for money ; (b) on personal chattels ; 
 (c) which belong to the grantor of the bill at the time he 
 makes it. [Thomas v. Kelly, 13 App. Cas. 506.) Such bill 
 must be duly attested by a witness or witnesses not party 
 to it, and registered at the Central Office of the Supreme 
 Court within seven days from its making. An affidavit, 
 which must not be made before the solicitor of the grantee 
 or grantor [Baker v. Ambrose, (1896) 2 Q,. B. 372), must 
 
 ' The title deeds to land are chattels personal, and may be made, 
 independently of the land, the subject of a bill of sale. [Siuanley 
 Coal Co. V. Denton, (1907) 2 K. B. 873.) 
 
CONDITrONAL OWNERSHIP: MORTGAGES OF GOODS. 225 
 
 at the same time be filed setting out (a) the date of 
 making the hill ; (h) the residence and occupation of the 
 maker ; (o) the residence and occupation of every witness 
 attesting it ; and (d) its due making and attestation. 
 (Sect. 10, Act 1878.) If the hill be not duly registered 
 and duly attested, or if it do not set out truly the consi- 
 deration for which it was granted ; or if that consideration 
 be not, at least, 30/., the bill is void in respect of the 
 personal chattels comprised therein. (Sect. 8.) And if it 
 be not in substantial accordance with the form contained 
 in the schedule to the Act it is void for all purposes. 
 (Sect. 9 ; E.r j)arte Stanford, 17 Q. B. D. 259.) An in- 
 ventory must be attached to the bill in which the goods 
 contained in it are specifically described. To keep it alive 
 the bill must be re-registered every five years. 
 
 A bill satisfying the Acts is a good mortgage or bill of 
 sale of the goods contained in it, and the grantor of it is 
 not entitled to sell or remove from the premises any of 
 these goods. The grantee, however, is not entitled to 
 seize them, save for the causes set out in sect. 7 of the Act 
 of 1882. These causes are: — (a) default on the part of 
 the grantor of the bill to pay money secured on the hill, 
 or to fulfil any covenant or agreement in it necessary for 
 maintaining the security ; (b) the grantor becoming bank- 
 rupt or suffering the goods to be distrained for rent, rates, 
 or taxes ; (c) the grantor fraudulently removing or suffer- 
 ing the goods to be removed from the premises ; (d) the 
 grantor not producing, on the written demand of the 
 grantee, his last receipts for rent, rates, and taxes ; (e) the 
 grantor having a judgment execution levied against his 
 goods. On seizure for any of these causes, the grantor has 
 five days to apply to the Coui-t for an order on the grantee 
 forbidding the sale or removal of the goods on payment of 
 debt and costs, and seizure can in every case be prevented 
 by tender of the debt and reasonable costs. Seizure for 
 any other cause — even though under an express power 
 contained in the bill — will be illegal. 
 
 s. Q 
 
226 MODES OF HOLDING INTERESTS. 
 
 When a conditional bill of sale is void under the Bills 
 of Sale Acts, 1878 and 1882, the grantee is not altogether 
 without a remedy. Merely his right to seize the goods 
 included in the void bill is gone. His action as an ordinary 
 creditor for the money which the bill was intended to 
 secure still remains. 
 
227 ) 
 
 Part IV. 
 MODES OF ACaUIRIM INTERESTS. 
 
 PAGE 
 
 Title 227 
 
 Section I. — Title by Oeiqinal Acquisition of Owneeship 228 
 
 Section II. — Title by Teansfeb of Owneeship 231 
 
 Sub-section (1). — Transfer by Act of Owner 231 
 
 Part A. Alienation inter vivos 233 
 
 I. Alienation of Land 236 
 
 II. Alienation of Goods 258 
 
 Part B. Alienations mortis crmsd 2G6 
 
 I. Vonationes mortis eaU"t 267 
 
 II. Alienation by Will 268 
 
 Siib-seotion (2). — Transfer hy Operation of Law 29S 
 
 Part A. Devolution inter vivos 296 
 
 Part B. Devolution mortis eausd 307 
 
 Title. — The tprm " title " has, like most terms of English 
 law, a variety of meanings. Sometimes it is used as 
 equivalent to the ownership itself : thus we talk of a 
 person having no title to a thing. Again, it is used as 
 indicating the particular fact which vested the ownership 
 in the then owner : that is its meaning when we speak of 
 title by inheritance, for instance. Again, especially in 
 real property, it is used as a description not merely of the 
 particular fact which vested the ownership in the then 
 owner, but all the series of facts by which the ownership 
 was transferred from one person to another until it finally 
 vested in the then owner : that is the meaning of it when 
 we refer to a certain length of title. 
 
 All these meanings are very closely related to one 
 
 q2 
 
228 
 
 MODES OF ACQUIRING INTERESTS. 
 
 another, and it will be necessary to use the term from time 
 to time in each of them. But for the purpose of arranging 
 the subject-matter of this Part we shall use it in the 
 second sense only — that is, as referring to the particular 
 fact which vested the ownership in the then owner. 
 
 Now title in this sense may arise in either of two ways. 
 It may arise through a person being the first to assert or 
 acquire ownership over a thing at that time unowned, or 
 it may arise through the transfer to a person of the owner- 
 ship of a thing by its previous owner. In the former case 
 it may be called title by original acquisition of ownenhip ; 
 in the latter, title by transfer of ownership. 
 
 Section I. 
 
 TITLE BY OEIGINAL ACQUISITION OF 
 OWNEESHIP. 
 
 PAGE 
 
 Original Acquisition 22S 
 
 PAaE 
 
 A. Occupancy 228 
 
 B. Accession 230 
 
 Original Acquisition. — Ownership may be originally 
 acquired either through the taking possession, with the 
 intention of acquiring its ownership, of a thing belonging 
 to nobody, or through new additions being made by 
 nature or industry to a thing already owned. The former 
 mode of acquiring ownership is called occupancy ; the 
 latter, accession. 
 
 A. Occupancy. — Occupancy — that is, the taking posses- 
 sion with the intention of acquiring ownership of things 
 belonging to . nobody — may, as Blackstone repeatedly 
 
BY ORIGINAL ACQUISITION OF OWNERSHIP. 229 
 
 insists, have been the origin of all private property ; but 
 in long-settled countries like England there are few objects 
 now worth occupying which have not long been occupied, 
 and therefore owned. As far as land is concerned, the 
 doctrine of occupancy does not apply, as all land not owned 
 by private persons is by the theory of English law vested 
 m the Crown. Formerly an exception to this occurred in 
 the case of an estate j^^n' ciitrt^ vie, where the tenant died 
 before the cestui que vie. The estate then, if there were no 
 special occupant, became res nullius, and the first person 
 who took possession was entitled to keep it till the death 
 of the cestui que vie as general occupant, as he was called. 
 {See supra, p. 59.) 
 
 The doctrine has a more extended application to goods 
 and chattels. It is a principle of the common law, which 
 has been somewhat modified by franchises such as free 
 warren, &o. (see infra, p. 332), and somewhat altered by the 
 Game Laws (see supra, p. 4), that all wild animals, save 
 such as are in captivity, are res nulKus. Accordingly, they 
 become the property of the first person who takes possession 
 of them. The fisherman holds the fish he catches, the 
 fowler the birds he shoots, by occupancy. Again, things 
 formerly owned, but abandoned by their owner — that is, 
 parted with or tlu'own away with the intention of giving 
 up the property in them — become res nullius, and may be 
 acquired by the first person who takes possession of them. 
 And the goods of alien enemies — that is, the subjects of a 
 country with which England is at war — are by international 
 law res nullius to English subjects. Before, however, such 
 goods can be taken possession of, the English subject must 
 have the consent of the Crown. This is the ground on 
 which privateering is legal. The rule as to property of 
 alien enemies being res nullius does not extend to property 
 brought by them into England before the war in question 
 broke out. (Wheaton's International Law, Part IV., 
 Chaps. 1 and 2.) 
 
230 MODES OF ACQUIRING INTERESTS. 
 
 B. Accession. — -Accession, that is, the addition by nature 
 or industry of something new to a thing already owned, 
 has a larger application in a settled country than occu- 
 pancy. It is the title by which the husbandman owns the 
 crops of his field?, the increase of his flocks, the eggs of his 
 poultry. The fruit of animals belongs to the owner of the 
 female. This rule is subject to a curious exception. It is 
 said that cygnets belong not to the owner of the hen, but 
 to the owners of both birds equally. (7 Eep. 17.) 
 
 The doctrine of accession is usually considered as 
 applicable, not merely to the produce of land, but to land 
 itself. Thus, when an island rises in a non-tidal river, it 
 is presumed to belong in equal parts to the riparian owners 
 on each side if it rises in the centre, while if it rises on one 
 side it is presumed to belong to the riparian owner on 
 whose side it arises. But this is not an acquisition of 
 ownership at all. The island is presumed to belong to the 
 riparian owners because the bed of the river is presumed 
 to belong to them. That presumption may be rebutted by 
 showing, for instance, that a third person has a several 
 fishery {see infra, p. S'42) in the river, and then the bed 
 would be presimied to be his [Ecroycl v. CouUhard, (189S) 
 2 Ch. 359), and so would an island rising in the river. 
 {See Hindson v. Ashley, (189K) 2 Oh. 1.) 
 
 Again, if a river gradually washes away the mould from 
 one side and transfers it to the other, the owner of the 
 latter side is entitled to the additions to his land by 
 aUuvion, which is a mode of accession. The principle here, 
 however, is de minimis -non curat lex ; for it seems that if a 
 storm carries away a considerable portion of one bank and 
 transfers it to the other, the ownership of the soil carried 
 away remains in the original owner. 
 
 Much the same principles apply in the case of the sea- 
 shore. The foreshore — that is, the part of the shore 
 between high and low water- mark — generally, and the 
 bed of the sea for three miles round the coast, always 
 belong to the Crown. If the tide gradually retreats, the 
 
BY OEIGINAL ACQUISITION OF OWNERSHIP. 231 
 
 new land belongs not to the Crown, but to the owner of 
 the land adjoining the shore ; if it retreats suddenly, or if 
 an island arises in the sea, it belongs to the Crown. (2 Bl. 
 Com. 261.) 
 
 Section II. 
 TITLE BY TEANSFBR OE OWNERSHIP. 
 
 PAGE 
 
 Modes of Transfer 231 
 
 Sub-sect. 1. Transfer by Act of 
 
 Owner 231 
 
 PAGE 
 Sub-sect. 2. Transfer iy Opera- 
 tion of Law . . . . 295 
 
 Modes of Transfer. — Title by transfer of ownership may 
 arise either through the ownership being transferred by 
 the voluntary and intentional act of the owner, or by the 
 law transferring the ownership not by the owner's wish or 
 desire, but in consequence of a certain fact or event. The 
 former mode of acquiring ownership may be called transfer 
 by act of oioner ; the latter, transfer by operaMon of law. 
 
 Sub-section I. 
 
 TRANSFER BT ACT OF OWNER. 
 
 PAOB 
 
 Preliminary Remarks 231 
 
 Alienation 233 
 
 PAGE 
 
 Part A. Alienation inter vivos . 233 
 Part Pt, Alienation mortis caws^ 266 
 
 Preliminary Remarks. — We may notice, as a preliminary 
 to the consideration of transfer by act of owner, that it is 
 a principle of the common law that no one can give a 
 better title than he himself has, or, as the maxim puts 
 
232 MODES OF ACQUIRING INTERESTS. 
 
 it, nemo dot quod non hahet. This means that if A. has in 
 relation to a thing no right of ownership, or an imperfect 
 right of ownership, A. cannot, by transferring the thing 
 to B., give B. any better or greater right of ownership 
 than A. himself possesses. This, it is to be observed, is a 
 common law rule, and, as we have already seen, does not 
 always apply in equity. {8ee supra, p. 120.) And even 
 at common law a considerable number of important 
 exceptions have been made to it. These have been gene- 
 rally made for the benefit of commerce, and most of them 
 apply to the sale of the objects of commerce — goods. [See 
 infra, %>■ 258.) 
 
 While an owner can, as a rule, never give a better title 
 than he himself has, any dispol^itiGn he makes is good 
 against him, even though he receives nothing in return — 
 no valuable consideration, as the technical phrase is. Such 
 a disposition is said to be vohmtary. Formerly, if the 
 subject-matter of the gift was land, the voluntary grantor 
 might afterwards sell the land for value ; and if he did so, 
 the ownership of the land was taken out of the voluntary 
 grantee and vested in the grantee for value. ('27 Eliz. c. 4.) 
 This, however, has been altered by the Voluntary Convey- 
 ances Act, 1893 (56 & 57 Vict. c. 21). 
 
 But while a voluntary grant of land or goods is now in 
 all cases binding on the grantor as soon as the transfer is 
 complete, yet in many respects it does not convey the 
 same title to the grantee as a grant for value would. 
 For instance, in the case of goods it never cures a defective 
 title, as a sale sometimes does. [Infra, p. 258.) Again, if 
 the voluntary grantor becomes bankrupt after making the 
 grant, the voluntary grant may, under certain circum- 
 stances, be set aside in favour of the grantor's creditors. 
 (Infra, p. 301.) And lastly, if the immediate effect of 
 making a voluntary grant is to render the estate of the 
 grantor insufficient to pay his debts, it will be void as 
 against his creditors as being made for the purpose of 
 delaying or defeating them within the meaning of 13 Eliz. 
 
BY TRANSFER OF OWNERSHIP. 233 
 
 c. 5, s. 5. [Freeman v. Pope, L. E. 5 Ch. 538 ; and see 
 In re Holland, Gregg v. Holland, (1902) 2 Ch. 360.) 
 
 Alienations inter vivos and mortis causa. — When the 
 ownership of a thing is being transferred by the act of the 
 owner, the transfer of ownership may be fixed to take 
 place during the owner's life or at his death. Title, then, 
 arising from the act of the owner may be divided accord- 
 ing as it arises by alienation inter vivos or by alienation 
 mortis causa. 
 
 Part A. Alienation inter vivos. 
 
 PAGE 
 
 Alienation of Land and Goods 233 
 
 Title to Land and Oooda 234 
 
 Modes of Alienating 236 
 
 PAGE 
 
 I. Alienation of Land 236 
 
 II. Alienation of Goods 258 
 
 Alienation of Land and Goods. — This great and obvious 
 distinction exists between land and goods : Land is an 
 actual part of the realm ; goods, however valuable and 
 important, are not — they are moveables, and as such have 
 no local habitation. This distinction is recognized in the 
 rule which gives the ultimate ownership of all land to the 
 king as representing the State, in the rule which formerly 
 forbade a foreigner to own land [see infra, 2^. 380), and in 
 m.any other rulfis of English law. Nowhere is it more 
 noticeable than in the law as to alienation by the act of 
 the owner inter vivos. 
 
 Land being part and parcel of the realm, its ownership 
 is a matter of public concern. Accordingly, it is, and has 
 always been, the policy of the law to insist that all dealings 
 with the ownership should be open and notorious, and that 
 clear evidence of them should be preserved. To secure 
 this, it has from the earliest times made interests in land 
 transferable only in certain formal modes. The most 
 
234 MODES OF ACQUIRING INTERESTS. 
 
 ancient of these modes is feoffment with livery of seisin, 
 which is coeval apparently with English law ; and the 
 most modern is transfer by registration under the Land 
 Transfer Acts, 1875 and 1897. 
 
 The law has no such interest in the ownership of goods, 
 and accordingly it has never been the policy of the law to 
 insist on interest in goods being transferred in a formal 
 manner. To this day, mere tradition or delivery, with an 
 intention to pass the ownership, is sufficient to give a good 
 title to the thing handed over, however valuable it may be. 
 Any requirements of the law as to writing, or other evidence 
 of a transaction relating to goods, are for the purpose not 
 of protecting the public interest in them — for there is no- 
 thing of the kind — but of securing honest dealing between 
 the parties. An exception occurs in the case of ships, the 
 ownership of which, owing to their importance from an 
 international point of view, is a matter of public interest. 
 Special provisions, accordingly, have been made as to the 
 registration of all dealings with property in them. {S^e 
 Appendix E.) 
 
 Title to Land and Goods. — Another great distinction 
 between land and goods is that to which we have had 
 occasion so often to refer — the existence at common law of 
 limited interests in land and of only absolute interests in 
 goods. This difference has rendered necessary, for the 
 protection of purchasers, a far more thorough investigation 
 of title in the case of purchases of land than in the case of 
 parchases of goods. The possession of goods may be taken 
 as prima facie evidence of absolute ownership ; the posses- 
 sion of lands is consistent with a very limited ownership. 
 Hence, in a conveyance of lands for value, the purchaser 
 may, in the absence of any stipulation to the contrary, 
 insist upon the vendor deducing his title (that is, setting 
 out all dealings with the lands) during a period sufficiently 
 long to render it reasonably certain that the vendor is 
 actually capable of conveying fully the interest which he 
 
BY TRANSFER BY ACT OP OWNER : INTER VIVOS. 235 
 
 purports to convey. On a sale of goods the purchaser has 
 no such right. 
 
 Another distinction between land and goods is this : — 
 The doctrine of lis j^pndens applies to land : it does not 
 apply to goods. {Wigram v. Buckley, (18^4) 3 Oh. 483.) 
 The doctrine of Us pendens arose out of the old system of 
 real actions for the recovery of land. As has heen pointed 
 out, these gave the successful litigant the land itself ; while 
 in actions for the recovery of goods, the judgment was 
 merely for the goods or their value. Accordingly, if land 
 the subject-matter of an action or suit in equity was sold 
 pending the action, it was bound in the hands of the pur- 
 chaser by the result of the action. (Co. Litt. 344 b.) This 
 is the doctrine of Us pendens. As it operated hardly upon 
 persons who had purchased for value without notice of the 
 pending action, it was enacted that no Uls pendens shall affect 
 land until it is registered, and the registration is to be 
 renewed every five years (2 & 3 Viot. o. 1 1 , s. 7 ) , and by a 
 subsequent Act (30 & 31 Viot. c. 47, s. 2) the Court can 
 compulsorily vacate the registration of the Us pendens on 
 the determination of the action, or if it thinks the action 
 is not being prosecuted honu fide. 
 
 Modes of Alienating. — The existence of public interest 
 and of limited ownership at law in land, and its subjection 
 to the doctrine of Us pendens, have made the legal modes 
 of alienation applicable to it very different from the legal 
 modes of alienation applicable to goods. In equity, at one 
 time, the same modes of alienation were applicable equally 
 to land and goods, but even here a distinction was intro- 
 duced long ago by the Statute of Frauds. We will now 
 deal only with legal modes of alienation, because we 
 have already sufficiently dealt with equitable modes, and 
 because in practice the legal modes of alienation are also 
 habitually employed to create and transfer equitable 
 interests. 
 
 Differing so greatly as they do, it will be necessary to 
 
236 
 
 MODES OF ACQUIRING INTERESTS. 
 
 consider separately the legal modes of alienating land and 
 of alienating goods. 
 
 I. Alienation of Land. 
 
 PAGE 
 
 Agreement to Alien 236 
 
 Abstract of Title 236 
 
 Covenants for Title 237 
 
 Freehold and Chattel Interests 238 
 
 Mode of Alienation 239 
 
 {a.) Feoffment 241 
 
 (b ) Bargain and Sale .... 243 
 {c.) Lease and Release .... 243 
 {d.) Covenant to stand Seised 244 
 
 PAOB 
 
 («.) Deed of Grant 245 
 
 (/.) Lease : Chattels Real. . . . 246 
 
 Form of Lease 246 
 
 Kinds of Rent 248 
 
 Covenants in Leases .... 248 
 Covenants running with 
 
 Land 249 
 
 {g.) Assignments of Leases . . 250 
 
 (A.) Registered Transfer .... 251 
 
 Agreement to Alien. — Before the actual conveyance takes 
 place there is always in practice an agreement to convey. 
 This agreement, or contract of sale, in order to be enforce- 
 able against the parties to it, must be made for value, and 
 must, by sect. 4 of the Statute of Prauds (29 Car. II. c. 3), 
 be in writing, signed by the party to be charged. The 
 writing should describe the land agreed to be sold, but if 
 it is described generally, parol — or oral — evidence will be 
 admitted to identify the particular plot to which the 
 agreement refers. {Plant v. Bourne, (1^97) 2 Oh. 281.) 
 If, moreover, in pursuance of a parol agreement to alien, 
 the purchaser enters upon the land, the Court of Chancery 
 will regard this as part performance of the agreement, and 
 will compel the giving or receipt of a grant in the terms 
 verbally agreed upon. {See Hudson v. Henlaud, (1896) 
 2 Ch. 428 ; and Strahan's Eq. 2}p. 226 ct seq.) 
 
 Abstract of Title. — As we have already said, in a con- 
 veyance of lands for value, the purchaser may, in the 
 absence of any stipulation to the contrary, insist upon the 
 vendor's deducing his title during a period sufficiently long 
 
BY TRANSFER BY ACT OF OWNKR : INTER VIVOS. 237 
 
 to render it reasonably certain that the vendor is actually 
 capable of conveying fully the interests he purports to 
 convey. Such a narrative of the dealings with the land 
 conveyed is called an abstract of title. The purchaser may 
 in general, and subject to any stipulation to the contrary 
 in the contract of sale, require that the abstract shall be 
 carried back for forty years. (Vendor and Purchaser Act, 
 1874, s. 1 ; and .see and cf. Bolton v. London School Board, 
 7 Oh. D. 766 ; and In re Wallis and Gronfs Contract, (1906) 
 2 Ch. 206.) However, his general right to have a complete 
 title shown during the whole of this period, and to rescind 
 his contract of sale if it be not so shown, is, in practice, 
 often curtailed by special stipulations called the conditions 
 of sale. [In re Scott and Alcarez's Contract, (1895) 2 Ch. 
 603.) 
 
 Covenants for Title. — In addition to this investigation of 
 the title, a purchaser can, in the absence of a contrary 
 stipulation, insist upon the vendor entering into covenants 
 for title. The practical effect of these is to give the pur- 
 chaser a right of action for damages against the vendor, in 
 case the purchaser is disturbed in his possession of the land 
 by reason of any defect of title against which the vendor 
 covenants, or by reason of the vendor's refusal to do 
 any act reasonably necessary for perfecting the convey- 
 ance. Prior to 1882, such covenants were set out at 
 length in the conveyance. The ordinary covenants in a 
 conveyance of freeholds for value by an owner benefioially 
 entitled were the following : — (1.) Covenant for right to 
 convey, i.e., that the parties conveying have power to con- 
 vey the property to the purchaser for the estate expressed 
 to be limited; (2.) Covenant for quiet enjoyment against 
 any lawful disturbance of the purchaser in his enjoyment 
 of the property ; (3.) Covenant for freedom from incum- 
 brances, i.e., that the land is not subject to any undisclosed 
 charge ; (4.) Covenant for further assurance, i.e., that 
 the vendor will, on being required by the purchaser, do 
 
2a8 MODES OF ACQUIRING INTERESTS. 
 
 all further acts reasonably necessary for more perfectly 
 assuring to the purchaser the lands conveyed. It is to 
 be noted that all these covenants were qualified, that is, 
 extended only to the acts and omissions of the vendor 
 himself, of those through whom he derived his title other- 
 wise than by way of purchase for value, and of persons 
 claiming under him or them.^ If the land conveyed were 
 leasehold, a further covenant was added, viz., (o.) for the 
 validitij of the lease under which the vendor held. {See 
 Strahau's Convey., pp. 68 et seq., 120.) 
 
 In conveyances made after the 31st JJecember, 1881, 
 the Conveyancing Act, lb81, s. 7 (1) (A), of that year pro- 
 vides that these covenants shall be implied by the use of 
 the words as '' beneficial owner " to describe the character 
 in which the vendor conveys. If the grantor is expressed 
 to convey " as trustee " or " as mortgagee," only a cove- 
 nant agaiust incumbrances of his own creation, and if " as 
 settlor" only a covenant for further assurance, is implied. 
 (Sect. 7 (1) (F) and (E).) 
 
 Freehold and Chattel Interest. — Freehold interests, as we 
 know, were originally the only interests in land recognized 
 by the law. They, and they alone, were real ownership or 
 part of the real ownership of the land. Chattel interests 
 were originally not recognized by law at all, and when by 
 force of statute they were recognized as interests iu the 
 land, they were not regarded as part of its real ownership. 
 They were regarded as rights of user merely, and they were 
 treated as if they were not interests in land, but were 
 merely goods. Accordingly, the old formal contracts which 
 the law required for the transfer of the ownership of land 
 applied only to transfers of freehold interests. Chattel 
 
 ' This is commonly called covenanting against the acts and 
 omissions of the vendor, his ancestors and testators and anyone 
 claiming through him or them. For the difference between qualified 
 covenants and absolute covenants or -warranties, see Stra. Convey. 
 p. 72, note {a). 
 
BY TRANSFER BY ACT OF OWNER : INTER VIVOS. 239 
 
 interests, not being common law interests in land, could be 
 transferred as informally as interests in goods. Any 
 formalities now required for the valid transfer of chattel 
 interests are in consequence of comparatively recent Acts 
 of Parliament. 
 
 Freehold interests, again, -as being parts of the real 
 ownership of the land, carried with them the seisin — that 
 is, the full possession at law ; chattel interests, not being 
 parts of the real ownership, did not carry with them the 
 seisin. The Statute of Uses only operates in those cases 
 where the feoffee to uses is seised of the land, that is, has a 
 freehold interest in it. The use, however, declared on 
 his seisin need not be of a freehold interest ; provided the 
 feoffee to uses has vested in him a freehold interest, any use 
 of the land — ^whether it is a chattel or a freehold estate — 
 will be executed by the statute. Thus, if A. is seised in 
 fee simple to the use of B. for a term of years the statute 
 will, immediately on the creation of such use, vest the legal 
 estate in the land for such term of years in B. But if A. 
 himself had only a term of years, then the use to B. created 
 on such terms would not be executed by the statute : the 
 legal estate would remain in A., and B. would have an 
 equitable interest only in the term. This restriction on 
 the operation of the statute practically confined the modes 
 of alienation arising under it to freehold interests. 
 
 Modes of Alienation. — Freehold interests in possession 
 were at common law alienable by (a) feoffment loith livery 
 of seisin ; [h) release ; {a) surrender ; (d) exchange ; and (e) 
 partition. Most of these have already been referred to, and 
 here it will be necessary to deal only with the first and 
 second of them. Under the Statute of Uses freehold in- 
 terests could be alienated either by (a) bargain and sale, 
 or (b) covenant to stand seised. There was a further mode 
 which operated partly under common law and partly under 
 the statute, and this was called lease and release : here the 
 legal title to the lease was transferred by tba statiT-to on 
 
240 MODES OF ACQUIRING INTERESTS. 
 
 the bargain and sale of the lease, and the release operated 
 at common law to transfer the freehold in the land leased. 
 These then were, and still are, modes of conveying free- 
 hold interests in possession in land. 
 
 But future freehold interests in land could always at 
 common law he alienated in 'a mode different from any of 
 these, though, as a matter of fact, for good reason they 
 seldom were so transferred. ^ This mode was by deed of grant. 
 Freeholds in possession were said to lie in livery ; freeholds 
 in expectancy, being incorporeal hereditaments [see supra, 
 p. 9), lay in grant. By the Real Property Act, 1845, s. 2, 
 it is enacted that freeholds in possession shall lie in grant 
 as well as in livery. Since this enactment, conveyance by 
 deed of grant has practically superseded every other mode 
 of conveying freehold interests of all kinds. 
 
 The same statute which made a deed of grant sufficient 
 to create or transfer freehold interests of all kinds made a 
 deed necessary to create or transfer every chattel interest 
 in land for the creation or transfer of which an instrument 
 in writing had hitherto been necessary. [See infra, p. 247 ; 
 and as to Ireland, see infra, p. 398.) The usual mode, 
 then, of creating and transferring both freehold and chattel 
 interests has come to be by deed. But a deed granting a 
 chattel interest is not called a deed of grant, but a lease, 
 and a deed transferring a lease already granted is called an 
 assignment of a lease. And though deeds of grant and 
 leases and assignments under seal are drawn and construed 
 in much the same manner, still there is (as will be seen) 
 much difference in the operation of each respectively. 
 
 I The reason was that when conveyed by grant it was necessary, 
 in order to make the grant a good conveyance, to prove the exist- 
 ence of the particular estate at the date of the grant, as otherwise 
 there would be no evidence that the interest intended to be conveyed 
 was future at all. The usual mode of conveying reversions and 
 remainders was by lease and release, or bargain and sale, these 
 modes of conveyances being equally eifective whether the estate 
 intended to be conveyed was or was not in expectancy at the date 
 of conveyance. 
 
BY TRANSFER BY ACT OF OWNER : INTER VIVOS. 241 
 
 (For a short sketch of the evolution of the modern mode 
 of conveyancing, see Strahan's Convey, pp. 3—34.) 
 
 (a) Feoffment. — Feoffment is the earliest form of con- 
 veyance. The essential part of it was lively of .seisin, that 
 is, the public delivery of the feudal possession of the land 
 vrith a declaration in apt words of the extent of the estate 
 intended to be conveyed. There were two kinds of livery 
 of seisin — livery in deed and livery in lair. Livery in deed 
 was made on the land itself in the absence of any third 
 person having or claiming any interest in the land. 
 Usually the delivery of the land was shown by the feoffor 
 (or grantor) handing over something taken from the land 
 — as a turf or twig — to the feoffee (or grantee) (but it is 
 not clear that this was necessary to a valid feoffment), and 
 actual entry on the land by the feoffee. [Sharp's Case, 6 
 Eep. 26.) This livery was sufficient to pass not merely 
 the land on which it was made, but all the feoffor's land 
 in the country, if so intended. Livery in law was made 
 in sight of the land of which possession was therefore not 
 actually given. Until the feoffee made either entry in 
 deed or entry in law (that is, by going to the land and 
 claiming possession) no legal estate passed to him under a 
 livery in law. 
 
 As has been said, the feoffor, in delivering the seisin, 
 declared in apt words the estate in the land that was 
 intended to be conveyed; and if the feoffee was to hold the 
 land on uses, these were then declared too. This declara- 
 tion was often put into writing and sealed by the feoffor. 
 The writing was then called a charter (or, as we would now 
 say, deed) of feoffment. Such writing was not necessary to 
 the validity of the feoffment, though its utility in other 
 respects was, of course, obvious. At last, in the reign of 
 Charles 11. , Parliament, by sect. 1 of the Statute of Frauds, 
 1677, provided that an estate or interest made or created 
 by livery of seisin only, and not put in writing and signed 
 by the parties so making or creating the same, should have 
 
242 MODES OF ACQUIRING INTEEKSTS. 
 
 the force and effect of estate at will only. As will be seen, 
 this enactment did not require the writing to be sealed ; 
 but now, by the Eeal Property Act, 1845, s. 3, a feoffment 
 must be evidenced by deed, save in cases where the feoff- 
 ment is made by an infant under a special custom {see 
 infra, p. 374), where a writing not under seal is still suffi- 
 cient evidence of the feoffment. 
 
 As since the Eeal Property Act, 1845, a deed is necessary 
 to make a feoffment effective, while a deed is itself sufficient 
 for all purposes without any feoffment, alienation by livery 
 of seisin has ceased in practice altogether. But before 
 that Act it had been superseded as between individuals by 
 conveyance by lease and release. Sometimes it was used 
 in conveyances by corporations, the reason being that the 
 Statute of Uses did not operate on uses arising on land 
 held by corporations. Accordingly, corporations could not 
 convey by lease and release, since if they bargained and 
 sold a lease for a year the statute did not transfer the legal 
 estate in the land to the lessee. 
 
 A peculiar effect of a feoffment was what is known as 
 its tortious operation. If a person in possession of land, 
 not having any interest at all in it or having only a limited 
 interest granted by feoffment, the fee simple, or a freehold 
 estate larger than he himself possessed — assuming he had 
 any estate — such feoffment operated tortiously or by wrong 
 to convey the estate granted to the feoffee. If the estate 
 granted was the fee simple, the feoffee took a fee simple 
 by wrong ; if it was a lesser estate, the feoffor — though 
 before the feoffment he had no estate in the land — became 
 by wrong the reversioner in fee of the feoffee. In either 
 case, the whole title to the land was by the tortious feoff- 
 ment taken out of the real owner. (Co. Litt. 330 b, 
 note (/).) The making of a tortious feoffment was, how- 
 ever, a cause of forfeiture of any interest in the land which 
 the feoffor might have, and entitled the real owner imme- 
 diately to enter into possession and determine the wrongful 
 estate created by the feoffment. If, however, the real 
 
BY TRANSFER BY ACT OF OWNER : INTER VIVOS. 243 
 
 owner waited until the tortious feoffee died, he could 
 determine the wrongful estate only by a real action. It is 
 now provided by the Eeal Property Act, 1845, that after 
 the 1st October of that year a feofiment shall not haye any 
 tortious operation. 
 
 (b) Bargain and Sale. — A bargain and sale was simply 
 a contract of sale of an interest in the land. When such 
 a contract was made and the purchase-money paid, the 
 bargainor, as he was called, was considered by the Court of 
 Chancery to hold the land to the use of the bargainee for 
 the interest bargained to be sold until formal conyeyance 
 was made. Then, upon the passing of the Statute of Uses, 
 that statute executed this use in fayour of the bargainee, 
 that is, gave him the legal title to the estate bargained and 
 sold. This obviously furnished a most private method of 
 conveyance. An attempt to defeat it was made by the 
 Statute of Enrolments, 1536, which provided that every 
 conveyance by bargain and sale of freehold lands should 
 be enrolled in a court of record within six months of its 
 date. 
 
 A bargain and sale required a pecuniary consideration to 
 support it, which consideration had to be bom fide. 
 
 When a testator directed his executors to sell his land, 
 not at the same time devising the land to them, the exe- 
 cutors thereby acquired a common law power of alienation, 
 the exercise of which enabled them to transfer the land 
 without themselves having any estate in it. The convey- 
 ance under this power was made by bargain and sale, 
 which, in this case, did not require enrolment. Nor was a 
 deed necessary ; the estate was held to pass to the alienee 
 by force of the will. 
 
 (c) Lease and Release. — The Statute of Enrolments, 
 1536, referred only to bargains and sales of freehold. 
 (Supra.) If, however, the owner of land in fee simple 
 bargained and sold (for value received) the land for a 
 
 R Z 
 
244 MODES OF ACQUIRING INTEEEST6. 
 
 year, or other chattel interest, a use was raised in favour 
 of the vendee which the Statute of Uses, 1535, would 
 execute. {Supra, p. 167.) This then would not require 
 enrolment under the statute. But once a person was in 
 possession of the land for any legal interest, all that was 
 necessary to do to convey to him the fee, or any other 
 freehold estate in the land, was for the owner of such 
 estate to convey it to him by release. He was in posses- 
 sion, and therefore at common law there was no need to 
 deliver possession to him. Taking advantage of this, 
 landowners began to bargain and sell leases of land to 
 vendees for one year, and the next day convey the fee to 
 them by deed of release. 
 
 This mode of conveying was called lease and release, 
 and, as it needed neither livery of seisin nor enrolment, 
 it soon became the usual mode of granting freehold 
 interests. It was provided by 4 & 5 Vict. c. 21, that a 
 release of freehold estate made after the 15th of May, 
 1841, and expressed to be made in pursuance of that Act, 
 should be as effectual as if a lease for a year had preceded 
 it. However, shortly afterwards the Real Property Act, 
 1845, was passed, and conveyance by release was superseded. 
 A release, however, still is in use in three cases : — 
 
 (i.) for conveying the remainder or reversion to the 
 person having the estate in possession, so as to 
 produce merger ; 
 
 (ii.) between joint tenants and coparceners ; 
 
 (iii.) for extinguishing rights over land less than the 
 full ownership, by conveyance thereof to the 
 owner. 
 
 (d) Covenant to stand Seised. — This was an agreement 
 made upon good consideration that the covenantor would 
 henceforth hold the land in question to the use of the 
 covenantee. Upon this the Statute of Uses operated so 
 as to execute the use — that is, to give the legal estate to 
 
BY TRANSFER BY ACT OF OWNER : INTER VIVOS. 245 
 
 the covenantee. Q-ood consideration is said to be the con- 
 sideration of blood or marriage : the covenant is expressed 
 to be made in consideration of the natural love and affec- 
 tion of the covenantor towards one who is either a blood 
 relation or the husband or wife (or intended husband or 
 wife) of a blood relation. Covenants to stand seised do 
 not require enrolment under the Statute of Enrolments, 
 1536. They are now quite obsolete in practice. 
 
 (e) Deed of Grant. — Since the Real Property Act, 1845, 
 s. 2, deed of grant has become the usual mode of con- 
 veyance of freehold interests both in possession and in 
 expectancy. 
 
 A deed is an instrument in writing under seal. {See 
 Strahan's Convey., pp. 40 — 50.) It is expressed to be 
 " signed, sealed, and delivered " by the parties to it. 
 Belwerij is effected by the party touching the seal and 
 using some such words as " I deliver this as my act and 
 deed " ; and in practice the fact of such signature and 
 delivery is always attested by one or more witnesses. A 
 deed takes effect from the time of its delivery ; it may, 
 however, be delivered subject to some condition, in which 
 case it is inoperative until the condition be performed, but 
 then takes effect as from the original delivery. A deed so 
 delivered is called an eseroic. If there be only one party 
 to a deed, it is called a deed-poll ; if more than one, an 
 indenture. A deed which transfers any interest in property 
 must, under the Stamp Act, 1891, ss. 54 and 55, bear a 
 stamp representing a value proportionate to the considera- 
 tion given for the property conveyed. 
 
 A deed of grant is drawn up in a few simple sentences. 
 No punctuation is used, but instead each new sentence is 
 begun by the phrase " Now this indenture witnesseth," 
 in capital letters. It proceeds upon a regular form or 
 framework, which enables anyone acquainted with deeds 
 of grant to turn at once to any portion of it which he 
 wishes to consult without searching for it throughout the 
 
246 MODES OF ACQUIRING INTERESTS. 
 
 whole instrument. In a deed of grant in which all the 
 parts are fully set out, this form is as follows : (a) Bate ; 
 (h) Parties ; (c) Recital of title ; (d) Recital of contract ; 
 (e) Testatum; (f) Consideration; (g) Receipt; (h) Ope- 
 rative iwrcls ; (i) Parcels; (j) Hahendum ; (k) Estate; 
 (1) Covenants. In practice, however, (c) and (d) are 
 often omitted, especially where the property transferred is 
 small. (The form and effect of a deed of grant can be 
 understood only by means of a precedent and an explana- 
 tion of each clause of it. For this see Strahan's Convey., 
 pp. 40—91.) 
 
 (f) Lease. — A lease is the first mode in which chattel 
 interests in land are acquired. It applies to the creation 
 of a leasehold interest out of an estate of freehold or out of 
 another leasehold interest larger in point of duration. It 
 is sometimes called a demise. 
 
 A lease, then, may be defined as an assurance whereby 
 the possession of land is granted by one person (called the 
 lessor) to another (called the lessee) for an interest smaller 
 in point of duration than the lessor's, in consideration 
 usually of a money paj'ment at fixed periods, called the 
 rent. At common law this grant gives rise to no estate 
 until it is followed by entry of the lessee on the land : till 
 entry the lessee has only an interesse termini, an interest 
 in the term ; that is, a right to enter. This interesse 
 termini, however, like a mortgagor's equity of redemption, 
 is transferable and devolves as an estate. But if the lease 
 is one by bargain and sale taking effect under the Statute 
 of Uses, entry is not necessary to complete the lessee's 
 title. {See Wallis v. Hands, (1893) 2 Ch. 75.) 
 
 Form of Lease. — Since the common law regarded a lease 
 as merely a contract between lessor and lessee, it could be 
 made by word of mouth, or by parol, as it is called. 
 However, the Statute of Frauds, 1677, ss. 1, 4, provided 
 that a lease for a period of more than three years, or on 
 
BY TRANSFER BY ACT OF OWNER : INTER VIVOS. 247 
 
 which the rent reserved was less than two-thirds of a rack 
 rent, should, if not made in writing, only give rise to an 
 estate at will : and, as we have seen hy the Real Property 
 Act, 18-15, a lease that previously had to he in writing 
 must now be by deed. For precedent of a lease, see 
 Strahan's Convey, pp. 92 — 116. Agreements for leases 
 are within sect. 4 of the Statute of Frauds, and so must 
 be in writing; though, not being within the Real Pro- 
 perty Act, 1845, they need not be by deed. Accordingly 
 it often happens that when an instrument intended to be 
 a lease is void as a lease through not being by deed, the 
 Courts will hold it good as an agreement for a lease. 
 {Parker v. Tasivell, 27 L. J. Ch. 812.) And if the tenant 
 takes possession of the land under a parol agreement for a 
 lease or under a lease void through not being by deed, the 
 Court will compel the lessor to grant him a valid lease in 
 the terms of the parol agreement or lease. {Lester v. Fox- 
 croft, Coll. Par. Cas. 108.) When the lessee enters into 
 possession under such an agreement or lease, the rights 
 and liabilities of lessor and lessee are the same as if the 
 lease had actually been granted ( Wahh v. Lonsdale, 2 1 
 Ch. D. 9) ; in other words, the lessee holds under the terms 
 of the draft lease or parol agreement. As Lord Esher put 
 it in Sicai)i v. Ayres (21 Q. B. D. 293), "when there is 
 such a state of things that a Court of Equity would compel 
 specific performance of an agreement for a lease by the 
 execution of a lease, both in the Equity and Common Law 
 Divisions the case ought to be treated as if such a lease 
 had been granted and was actually then in existence. . . . 
 The tenant must be treated in law as holding on the 
 same terms that would be introduced into a lease exe- 
 cuted in pursuance of the terms of the agreement for a 
 lease." 
 
 The chief incidents both of leases for lives which convey 
 freehold interests, and of leases for years or other time 
 certain which convey chattel interests, have been already 
 set out. All that need now be referred to is the different 
 
248 MODES OF ACQUIRING INTERESTS. 
 
 kinds of rents reserved, and of covenants to be found, in 
 
 Kinds of Rent. — In ordinary agricultural leases the 
 rent reserved is generally a fixed sum. In mining 
 leases it is generally a royalty, that is, a sum varying 
 with the quantity of minerals, &o. raised by the lessee ; 
 though in th^ese cases there is usually a fixed minimum 
 sum also reserved, called a dead rent. A peppercorn rent 
 is a nominal rent ; it is generally the rent reserved in 
 building leases during the first few years of the tenancy 
 .while the buildings are still in course of erection. A rach 
 rent is the full annual value of the land including all 
 improvements. (Strahan's Convey, pp. 97 et seq.) 
 
 Covenants in leases. — A lease almost invariably contains 
 agreements both by the lessor and lessee for the better 
 securing that the value of the land demised shall be kept 
 up, and for facilitating the lessor's remedy against the 
 lessee in certain events. 
 
 (1.) Covenants by the Lessor. — It would seem that from 
 the use of the word " demise " the law implies (unless such 
 implication is excluded by express covenants) a covenant 
 for quiet enjoyment, and also, perhaps, a covenant for 
 title. {Hart v. Windsor, 12 M. & W. 68.) It is doubtful 
 whether either of these covenants is " unqualified " — that 
 is, makes the lessor liable to compensate the lessee for acts 
 done in contravention of them by any person whatever 
 {Burnett v. Lynch, 5 B. & C. 589 ; hut see Baynes 8f Co. v. 
 Lloyd 8^ Sons, (1895) 2 Q. B. 610 ; and Jones v. Larington, 
 (1903) 1 K. B. 253.) As the liability of the lessor implied 
 from the word " demise "is so uncertain, it is the practice 
 to insert express covenants by the lessor for title and quiet 
 enjoyment, and " qualified," that is, limiting the lessor's 
 liability to his own acts or those of his ancestors and 
 testators, and of persons claiming through him or them. 
 
BY TRANSFER BY ACT OP OWNER : INTER VIVOS. 249 
 
 These express covenants, therefore, do not guarantee the 
 lessee against eviction by title paramount. 
 
 (2.) Covenants by the Lessee. — There are a number of 
 covenants on the part of the lessee called "usual cove- 
 nants," upon the insertion of which in a lease the landlord 
 can insist without any express stipulation in the agreement 
 to lease to that effect. What are usual covenants would, 
 it seems, vary from time to time with the practice of 
 conveyancers {per Jessel, M. R., in HriDipxhire v. Wickens, 
 7 Oh. D. 555 ; rf. In re Lander ^ Bayley's Contract, (1892) 
 3 Ch. 41), but at the present day they seem in an ordinary 
 lease to be limited to the following : — 
 
 (a) Covenant to pay the rent ; 
 
 (b) Covenant to pay rates and taxes upon the property, 
 
 except landlord's property tax and tithe rent- 
 charge ; 
 
 (c) Covenant to keep and deliver up the premises in 
 
 repair ; 
 
 (d) Covenant giving the lessor a right to enter at in- 
 
 tervals upon the premises for the purpose of 
 inspecting their state of repair. {See Dav. Prec, 
 Vol. v., Pt. 1, p. 51.) 
 As has been said, these are the only covenants which 
 can be insisted upon on an " open contract " ; but there are 
 a few others which are frequently inserted. Of these, the 
 commonest are covenants by the lessee to insure the pre- 
 mises, not to commit waste, not to use the premises in 
 particular ways, and not to assign or underlet the premises 
 without the lessor's permission. {See Strahan's Convey., 
 p. 101 et seq.) 
 
 As to waiver of covenants and relief in ease of their 
 breach, see jo. 89, supra. 
 
 Covenants running with the Land. — Of the lessee's cove- 
 nants, all the implied and some of the express " run with 
 the land," that is, can be enforced by the lessor against 
 not merely the original lessee, but also against his assigns. 
 
250 MODES OF ACQUIRING INTERESTS. 
 
 The general rule as to express covenants is, that covenants 
 relating to something in existence on the land can be 
 enforced against the assigns without their being named in 
 the covenant ; covenants relating to something not yet in 
 existence, but which, when it comes into existence, will 
 relate to the land, can be enforced against the assigns only 
 if they are named in the covenant ; covenants merely 
 collateral, that is, relating to something not connected 
 with the land, cannot be enforced against the assigns even 
 if named in the covenant. {Sjwncer's Case, 5 Co. 16 ; 
 1 Sm. L. 0. 72.) 
 
 (g) Assignments of Leases. — -Assignments of leases come 
 within sect. 1 of the Statute of Erauds, and therefore 
 must be in writing, and they come within sect. 3 of the 
 Real Property Act, 1845, and must therefore be by deed. 
 "Where, however, it is wished to transfer a term of less 
 than three years, this is usually done by the tenant sur- 
 rendering it to the landlord, and the landlord re-granting 
 it to the new tenant. This, however, is not an assign- 
 ment, but a new lease. And if the lessee of a term— 
 whether long or short — does not transfer the whole term 
 to the new tenant — that is, if he reserves a reversion even 
 of a single day — that is not an assignment, but the grant 
 of a sub-lease. If, on the other hand, he grants away the 
 whole term, that is an assignment, whether he intends it 
 or not. (Beardman v. Wihon, L. E.. 4 C. P. 57.) In 
 Ireland, however, a tenant may make a sub-letting of his 
 whole interest, which shall not be an assignment. {8ee 
 sect. 3, Landlord and Tenant (Ireland) Act, 1860 ; and 
 Seymour v. Quirke, 14 L. E. Ir. 97.) 
 
 The distinction between assignments and sub-leases is 
 important, since an assignee is liable to the original lessor 
 for the breaches of those covenants which run with the 
 land, while a sub-lessee is not personally liable to the 
 original lessor, but to the sub-lessor, for breaches of cove- 
 nant in the lease. [Beardman v. Wilson, supra.) And the 
 
BY TRANSFER BY ACT OF OWNER : INTER VIVOS. 251 
 
 distinotion between a sub-lease and a new lease is im- 
 portant, since in the latter case the old lessee at once 
 ceases to be liable under the covenants in the original 
 lease. {See infra.) 
 
 Notwithstanding the assignment, the original lessee still 
 remains liable to the lessor (even though the lessor has 
 accepted rent from the assignee) for the performance of 
 the covenants entered into by him.^ Accordingly, he can 
 insist on the assignee entering into a covenant to pay the 
 rent and perform the covenants and conditions in question 
 and to " save the vendor harmless," indemnify him that is, 
 against any breaches by him or subsequent assigns. {See 
 Poole S( Clarke's Contract, (1904) 2 Ch. 173.) 
 
 The form of an assignment is practically the same as a 
 conveyance of freeholds. {See Strahan's Convey., p. 117 
 et seq.) As to covenants for title implied by the Convey- 
 ancing Act, 1881, s. 7 (A), in an assignment of leaseholds 
 for valuable consideration, see p. 237, supra, and Strahan's 
 Convey., pp. 117 — 122. 
 
 (h) Eegistered Transfer.— A new mode of transferring 
 both freehold and leasehold interests has been introduced 
 by the Land Transfer Acts, 1875 and 1897. The Acts 
 apply only to England, and registration under them is still 
 optional save in the County of London, where it has been 
 made compulsory under the powers in that behalf reserved 
 in the Act of 1897. 
 
 It is not necessary in an elementary work to go at any 
 leQgth into the details of these Acts, especially as most of 
 them deal with matters of more concern to the officials 
 
 > It is otherwise in Ireland. Under sect. 16 of Landlord and 
 Tenant Act, 1860, if the landlord has testified his consent to the 
 assignment in the prescribed form, he is deemed to have released 
 the original lessee. And independently of this section, the original 
 lessee is relieved from liability where an assignee of his interest in 
 possession obtains an order fixing a, fair rent under sect. 1 of the 
 Land Act, 1887. 
 
252 MODES OF ACQUIRING INTERESTS. 
 
 charged with the administration of them, than to the legal 
 profession generally. A short sketch of their object and 
 of the means by which it is sought to be attained will be 
 sufficient for our purposes. 
 
 (a) Object of Registration. — Land being parcel of the. 
 realm, it is a matter of public importance that its owner- 
 ship should be known ; and further to authenticate owner- 
 ship as between vendor and vendee, it is neeessary to 
 investigate the devolution of the title of the vendor for a 
 considerable period back — forty years being fixed as a 
 rough test of its soundness. Now the object of the Land 
 Transfer Acts was to secure a public record of the owner- 
 ship of land, and at the same time to facilitate the 
 authentication of ownership as between private persons. 
 
 (b) The Register. — This object it has been sought to 
 attain by establishing registers of land consisting of three 
 parts : — First, the property register, which gives a descrip- 
 tion of the land registered with the aid of a filed map ; 
 secondly, the proprietorship register, which gives the name 
 and additions of the person who is registered proprietor 
 of the said land ; and thirdly, the charges register, which 
 records the incumbrances registered as affecting the land. 
 There are two of these registers — one for freehold, the 
 other for leasehold land. 
 
 (o) Interests to be registered. — The interests in land that 
 must be registered are fee simple and leaseholds of not 
 less than forty years' duration. The latter must be derived 
 out of freehold lands, as the Act has no application to 
 copyhold lands or customary freeholds transferable only in 
 the rolls of the manor. And registration is compulsory 
 only on the grant or sale for value of these interests. If 
 registration is not then made, the purchaser obtains only 
 an equitable estate till registration. Once land is registered 
 every subsequent dealing with it should be registered in 
 the same way, in order to prevent its defeat by a subse- 
 quent sale by the registered owner. {See infra, p. 255.) 
 On registration the title deeds are stamped by the registrar, 
 
BY TBANSFEK BY ACT OF OWNER : INTER VIVOS. 25S 
 
 with a note recording the registration, and a copy of the 
 entry in the register is given to the proprietor, which is 
 called a "land certificate." 
 
 (d) Titles to be registered. — A proprietor may apply for 
 the registration of his land with either (a) an absolute or 
 (b) a possessory title. An absolute title is registered only 
 after the registrar has investigated the proprietor's title 
 and has made inquiries by advertisement, &c. as to adverse 
 claims, and is satisfied that the title is without defect. 
 If after such investigation the registrar is satisfied that 
 the proprietor's title is good subject to certain reservations, 
 a title subject to such reservations may be registered. 
 This is called a qualified title : no proprietor can apply 
 in the first instance for the registration of a qualified title. 
 The usual — indeed, the only — application in practice is 
 for the registration of a possessory title. This is registered 
 without any investigation of title. All the proprietor 
 need do to secure such registration is to produce to the 
 registrar a conveyance on sale to him, or make a statutory 
 declaration that he is in possession of the land. (Land 
 Transfer Eules, 17 — 24.) In the same way leaseholds 
 may be registered after an investigation of the lessor's 
 title and declaration of his right to grant the lease (abso- 
 lute title) , or after investigation merely of the lessee's title 
 to the lease (qualified title), or without investigation (pos- 
 sessory title). (Sect. 11, Act of 1875.) 
 
 (e) Effect of Registration. — The effect of the registration 
 of land in fee simple with an absolute title is to vest the 
 land in the registered proprietor in fee simple absolutely, 
 subject to the incumbrances (if any) set out in the register, 
 and to such liabilities as easements, obligations ratione 
 tenurcB, rights to mines or minerals and franchises, unless 
 the contrary is set out in the register (sect. 18, Act of 
 1875), and subject also to any trusts affecting the land in 
 the hands of the registered proprietor. (Sect. 7.) A quali- 
 fied title gives the same estate, subject to the reservations 
 which qualify it. In the same way the first registered 
 
254 MODES OF ACQUIRING INTERESTS. 
 
 proprietor of a leasehold, with a declaration of the lessor's 
 right to grant the lease, has vested in him the possession 
 of the land for all the leasehold estate therein described, 
 subject to the provisions of the lease, to registered incum- 
 brances, to obligations, such as easements, &c., and to 
 trusts. (Sect. 13.) 
 
 (f ) Who may Regider. — The only person entitled to apply 
 ior registration is the person entitled to the possession of 
 the land. Such person, however, is not always the owner 
 of the whole interest in the fee simple or in the leasehold 
 he desires to register. Accordingly, it is provided that in 
 the case of settled land the tenant for life or the trustees 
 of the settlement may be registered as owners of the whole 
 estate settled, and that a mortgagee whose power of sale 
 over the fee simple or leasehold, as the case may be, has 
 actually arisen may be registered as owner of the estate 
 mortgaged. 
 
 (g) Cautions, Restrictions, and Inhibitions. — To prevent 
 persons registered as owners, but having merely a limited 
 interest or having merely the legal estate in the land 
 registered, selling the whole estate to bona fide purchasers 
 without notice, a system of checks by notes entered in the 
 proprietorship register has been established. These checks 
 are of three kinds. Cautions, which merely amount to 
 notes that the registrar shall communicate with the person 
 entering the caution before registering any dealings with 
 the registered propertj'. This is chiefly for the benefit of 
 cestuis que trust and other persons having equitable inte- 
 rests in the land. As trusts are not registered the trustee 
 of registered land might, as we shall see, sell the settled 
 estate discharged from the trust to a bona fide purchaser for 
 value. The caution, by giving the cestuis que trust an 
 opportunity of giving the intended purchaser, before regis- 
 tration of the sale to him, notice of the trust, prevents this. 
 Inhibition, which is a note that no entry shall be made 
 in the register until further order. This can only be 
 put in the register with the consent of the proprietor or 
 
BY TRANSFER BY ACT OF OWNKR : INTER VIVOS. 255 
 
 lay order of the registrar or Court. Its most frequent 
 use would be in case of the proprietor being a married 
 woman with power of anticipation, or being a tenant 
 for life where there are no trustees of the settlement. 
 Restrictions, which are notes prohibiting transfers in the 
 register without the consent, or unless the purchase-money 
 is previously paid to certain persons. These are useful 
 where the registered proprietors are trustees of the settle- 
 ment, and not entitled to sell without the consent of the 
 life tenant, or the registered proprietor is life tenant under 
 a settlement, and so on a sale is not entitled to receive the 
 purchase-money. 
 
 (h) Title obtained by Purchaser from Registered Owner. — 
 Where there are no cautions, inhibitions or restrictions 
 noted in the proprietorship register, the registered pro- 
 prietor is entitled to sell the registered land for the estate 
 registered, and the purchaser on the sale itself beiug 
 registered receives a good title thereto, subject (where the 
 registered title is absolute) to registered incumbrances and 
 rights, such as easements, &c., which do not need registra- 
 tion, and, where the registered title is possessory, to 
 these, and also to all rights which existed prior to registra- 
 tion. Any other rights or claims which would have been 
 good against the vendor are defeated, but if they were 
 defeated through a fraudulent or mistaken entry in the 
 register, their owners are compensated at the public 
 expense, unless the mistake or fraud was partly or wholly 
 due to their neglect or default. {See Attorney- General v. 
 Odell, (1906) 2 Oh. 47.) If the sale by the registered 
 owner is not itself registered, the purchaser still obtains 
 the legal and equitable estate in the land. This estate, 
 however, may be defeated by the registered owner re- 
 selling to another purchaser without notice of the first 
 sale, if such second purchaser registers the sale to him 
 first. {Capital and Counties Bank v. Rhodes, (1903) 1 
 Ch. 631.) 
 
 (i) Mortgages of Registered Land. — Finally, mortgages are 
 
256 MODES OF ACQUIRING INTERESTS. 
 
 made by way of registered charges. A mortgage by deed 
 creates only an equitable mortgage until the charge is 
 registered as an incumbrance. Even then it seems to create 
 only an equitable charge as against equitable incumbrances 
 created before the land was registered, and, accordingly, is 
 postponed to them. This arises from the fact that a 
 registered charge does transfer the legal estate to the 
 mortgagee. To make the mortgage a legal mortgage the 
 mortgagee should be entered, not as an incumbrancer on 
 the registered land, but as transferee of it, and the terms 
 of the mortgage should be recorded in a collateral deed. 
 An equitable mortgage by deposit can be effected by 
 deposit of the land certificate, but to make it any sort of a 
 security the equitable mortgagee should at once notify the 
 registrar by registered letter of the transaction. 
 
 (j) Evidence of Title. — One great object of the Land 
 Transfer Acts was to abolish as far as possible the neces- 
 sity for investigation of title on the sale of land. It is 
 intended that ultimately a purchaser by a simple inspec- 
 tion of the register will be enabled at once to see what title 
 his vendor has. How this is to be accomplished is best 
 seen by sect. 16 of the Act of 1897 : — 
 
 " (1.) A purchaser of registered land shall not require 
 any evidence of title, except — 
 
 (i.) the evidence to be obtained from an inspection of 
 the register, or of a certified copy of, or extract 
 from, the register ; 
 (ii.) a statutory declaration as to the existence or other- 
 wise of matters which are declared by section 
 eighteen of the principal Act and by this Act 
 not to be incumbrances ; 
 (iii.) if the proprietor of the land is registered with an 
 absolute title, and there are incumbrances entered 
 on the register as subsisting at the first registra- 
 tion of the land, either evidence of the title to 
 those incumbrances, or evidence of their dis- 
 charge from the register ; 
 
BY TRANSFER BY ACT OF OWNER : INTER VIVOS. 257 
 
 (iv.) where the proprietor of the land is registered with 
 a qualified title, the same evidence as above pro- 
 vided in the case of absolute title, and such evi- 
 dence as to any estate, right, or interest excluded 
 from the effect of the registration as a purchaser 
 would be entitled to if the land were unregis- 
 tered ; 
 (v.) If the land is registered with a possessory title, 
 such evidence of the title subsisting or capable of 
 arising at the first registration of the land as the 
 purchaser would be entitled to if the land were 
 unregistered. 
 " (2.) Where the vendor of registered land is not himself 
 registered as proprietor of tbe land or of a charge giving a 
 power of sale over the land, he shall, at the request of the 
 purchaser and at his own expense, and notwithstanding 
 any stipulation to the contrary, either procure the registra- 
 tion of himself as proprietor of the land or of the charge, 
 as the case may be, or procure a transfer from the regis- 
 tered proprietor to the purchaser. 
 
 " (3.) In the absence of special stipulation, a vendor of 
 land registered with an absolute title shall not be required 
 to enter into any covenant for title, and a vendor of land 
 registered with a possessory or qualified title shall only be 
 required to covenant against estates and interests excluded 
 from the effect of registration, and the implied covenants 
 under section seven of the Conveyancing and Law of 
 Property Act, 1881, shall be construed accordingly." 
 
 Where the registration was voluntary, the registered 
 proprietor may at any time have the land removed from 
 the registry on the delivery up of the land certificate, or 
 office copy of the lease, and thereupon no further entries 
 will be made in the register. (Sect. 17, Act of 1897.) 
 
 The Land Transfer Acts apply only to England (sect. 2 
 of Act of 1875) ; but there are in force in Ireland other 
 statutes following the same lines. An abstract of these is 
 contained in Appendix C. 
 
258 MODES OF ACQUIRING INTERESTS. 
 
 II. Alienation of Goods. 
 
 PAGE 
 
 Title to Goods 2i8 
 
 Modes of Alienation 260 
 
 («.) Gift and DeUvery 260 
 
 {b.) Deed of Gift 261 
 
 PAGE 
 
 (c.) Sale 261 
 
 Implied Conditions and 
 
 Warranties 26(J 
 
 When Property passes . . 264 
 Position of Parties 264 
 
 (d.) BiUs of Lading 266 
 
 Title to Goods. — The rule of the common law that no 
 one can give a better title to a thing than he himself 
 possesses, applies to alienations of goods as well as to 
 alienations of land. (Sale of Goods Act, 1893, s. 21 (1).) 
 But in the case of goods there are considerable exceptions 
 to it. The most important of these are as follows : — 
 
 (a) Sales in Market Overt. — In the City of London 
 every shop in which goods are publicly exhibited for sale 
 is market overt on every week day for the sale of such 
 goods as the shopkeeper openly professes to deal in, 
 though not for the purchase of such goods when the 
 purchaser is the shopkeeper. [Hargreave v. Sjjink, (1892) 
 1 Q. B. 25.) Out of the City of London, market overt 
 is the pubHc market held on certain days by charter or 
 prescription. {Case of Market Overt, 5 Eep. 83 b.) It is 
 provided by the Sale of Goods Act, 1893, s. 22 {see p. 261, 
 infra), th&t a buyer of goods in market overt, buying them 
 in good faith and without notice that the seller's title is 
 defective, acquires a good title to the goods sold. This, 
 however, does not affect the law as to the sale of horses, 
 which is subject to special statutory provisions. (2 & 3 
 Ph. & M. c. 7; 31 Eliz. c. 12.)i Even though the goods 
 
 1 It seems doubtful wlietlier a modern market, established under 
 tlie provisions of an Act of Parliament, is or is not market overt. 
 In Ireland the Queen's Bench Division have held that it is {Oanly 
 V. Ledwidge, I. E. 10 C. L. 33) ; in England, Oockburn, C. J., held, 
 that a market established under a local Act is not market overt. 
 {Moyce v. Newington, 4 Q. B. D. 34.) 
 
BY TRANSFER BY ACT OF OWNER : INTER VIVOS. 259 
 
 in question have been stolen, the property passes in the 
 first instance to the innocent purchaser, but subject to this 
 condition, that if the thief is prosecuted to conviction, the 
 property re-vests in the ovs^ner or his personal representa- 
 tives, notwithstanding the intermediate dealings, whether 
 by sale in market overt or otherwise. Where goods are 
 held by a seller by a voidable title, as, for instance, when 
 he has obtained them from the true owner by fraud or 
 other wrongful means, if they are sold to a bond fide pur- 
 chaser without notice before the voidable title is made 
 void, even though the sale was not in market overt, the 
 purchaser will take a good title, and the property in 
 the goods will not re- vest in the true owner merely by 
 reason of the conviction of the seller. (Sects. 23, 24 ; see 
 Cundy v. Lindsay, 3 App. Oas. 459.) 
 
 (b) Dispositions of Goods by Mercantile Agents. — Under 
 the Factors Act, 1889 (52 & 63 Yiot. c. 45), dispositions 
 of goods made by such agents in the ordinary course of 
 business to persons dealing with them in good faith and 
 without notice of the agent's want of authority to dispose 
 of the goods, give a good title to such innocent disponees. 
 
 (c) Sale by Seller in Possession after Sale. — If a vendor 
 is left in jDOssession of the goods, or documents of title 
 to them, a sale by him to a bond fide purchaser without 
 notice gives the latter a good title, though it may be a 
 fraud on the first purchaser. (Sale of Goods Act, 1893, 
 s. 25 (1).) An unpaid vendor has a right to resell the 
 goods. {Idem, sect. 48.) 
 
 (d) Sale by Buyer in Possession of Goods. — Where a 
 vendee has agreed to buy goods, and, by the consent of 
 the owner, he has obtained possession of them, or of the 
 documents of title to them, a sale by him to a bond fide 
 purchaser without notice gives the purchaser a good title, 
 though it may be in fraud of the original vendor. (Sale 
 of Goods Act, 1893, s. 25 (2) ; Oahn fy Mayer v. Pockett's 
 Bristol Channel Steam Packet Co., (1899) 1 Q. B. 643.) 
 
 (e) Delivery of Current Coin. — " Money cannot be re- 
 
 s2 
 
260 MODES OF ACQUIRING INTERESTS. 
 
 covered after it has passed in currency ; in the case of 
 money stolen, the true owner cannot recover it after it has 
 heeu paid away fairly and honestly upon a valuable and 
 bond fide consideration." {Per Lord Mansfield, Miller v. 
 Itace, 1 Burr. 452 ; 1 Sm. L. 0.) 
 
 (f) Estojjpel. — The vendee may also have by estoppel 
 against the true owner a better title than the vendor had, 
 where the owner is by his conduct precluded from denying 
 the seller's authority to sell. (Sale of Groods Act, 1893, 
 s. 21.) 
 
 Modes of Alienation of Goods. — Chattels, or choses in pos- 
 session, are assignable by the act of the owner inter vivos in 
 four ways : (a) hj gift and delivery; (b) hy deed of gift ; 
 (o) by sale ; (d) by indorsement and delivery of bill of lading. 
 
 (a) Gift and Delivery. — Where the owner of a chattel 
 gives it to another, declaring by words or by writing not 
 under seal his intention to transfer the ownership, and also 
 transfers the possession of the chattel, or of the indicia of 
 title to it {Bauiinson v. Mort (1905), 93 L. T. 555), there 
 is a complete gift, and the chattel becomes the property of 
 the donee. There has been considerable doubt as to 
 whether actual delivery is indispensable to a gift. It has 
 now been decided that delivery is necessary to all gifts 
 not made by deed. [Cochrane v. Moore, 25 Q,. B. D. 57; 
 following L-ons v. Smallpiece, 2 B. & A. 651.) "In 
 ordinary English language," it is there said, " and in 
 legal effect, there cannot be a ' gift ' vsdthout a giving 
 and taking." {Per Lord Bsher, M. E., 25 Q. B. D. 76.) 
 Delivery consists in the voluntary transfer of possession 
 from one person to another ; that is, " the deliveror, by 
 some apt and manifest act, puts the deliveree in the same 
 position of control over the thing, either directly or through 
 a custodian, which he held himself immediately before that 
 act." (P. & W. on Possession, p. 46.) 
 
 Where, however, the thing was in the possession of the 
 
BY TRANSFER BY ACT OF OWNER : INTER VIVOS. 261 
 
 donee before the gift was made, to make the gift effective 
 it is not necessary that the thing should be restored to the 
 owner and re-delivered by him to the donee. A change 
 in the character in which the thing is held is sufficient to 
 support the gift. {KU2nn v. Ratley, (1892) 1 Q. B. 582.) 
 
 (b) Deed of Gift. — A gift of chattels may also be made 
 by deed, and in this case the property in the chattel vests 
 in the donee upon the execution of the deed, whether the 
 possession has been transferred or not, unless and until 
 he repudiates the gift ; and acceptance is presumed until 
 dissent is signified. Delivery is not necessary because a 
 deed imports a valuable consideration, and, therefore, the 
 donee under a deed of gift, if the thing given is afterwards 
 refused him, can as a purchaser sue and recover it. 
 
 It is to be remembered that a gift, whether by parol or 
 by deed, may be made subject to any conditions which the 
 donor pleases to put upon it, and is then incomplete until 
 the donee fulfils such conditions. And so long as a gift is 
 incomplete, whether by reason of some condition remaining 
 to be fulfilled or of the property not having been com- 
 pletely transferred, it may be revoked by the donor ; or, 
 in other words, there is a locus pcenitenticB while a gift is 
 incomplete. An example of a gift made subject to an 
 implied condition occurs in the case of presents made by a 
 man to a lady to whom he is betrothed ; the condition 
 here is that if the engagement is broken off by the lady, 
 the presents shall be returned. [jRohinson v. Cumming, 
 2 Atk. 409.) But the most important class of conditional 
 gifts consists of donationes mortis causa, where the implied 
 condition is that the gift is to take effect only in the event 
 of the donor's death. These will be treated of in the next 
 section, along with wills. {Infra, p. 267.) 
 
 (c) Sale. — ^By far the most important mode of alienation 
 of goods inter vivos is by sale — a contract in which the 
 seller transfers, or agrees to transfer, the property in goods 
 
262 MODES OF ACQUIEING INTERESTS. 
 
 to the buyer for a money consideration called the price. 
 (Sale of Goods Act, 1893, s. 1.) Its two characteristic 
 elements are : that the property in the thing sold passes to 
 the buyer at such time as the parties to the contract intend 
 it to pass, although the possession may not then have been 
 transferred; and second, that this transfer of property is 
 made in return for a money consideration. If any other 
 consideration than money be given, the transaction is not 
 a sale, but a special contract for the transfer of property. 
 The law as to the sale of goods has now been consolidated 
 in the Sale of Goods Act, 1893, which we will proceed to 
 consider. 
 
 The general rule as to the form of the contract of sale 
 is, that no special form is required : it may be verbal, in 
 writing, or implied from the conduct of the parties. (Sect.3.) 
 To this, however, there are two important exceptions : — 
 
 (1.) The transfer of a British ship must be made by bill 
 of sale, in the form provided by the Merchant Shipping 
 Act, 1894, and executed, witnessed, and registered as that 
 Act requires. (Sects. 24 — 26.) 
 
 (2.) An exception so wide as almost to swallow up the 
 rule is that introduced by the 17th section of the Statute 
 of Erauds, 1677, which was further defined by Lord 
 Tenterden's Act, 1828. 
 
 The provisions on this point of both the Statute of 
 ]?rauds and Lord Tenterden's Act are now embodied in the 
 Sale of Goods Act, s. 4, which provides that a contract of 
 sale of any goods of the value of 10/. or upward shall not 
 be enforceable by action unless the buyer accept part of 
 the goods and actually receive them, or give something in 
 earnest to bind the contract or in part payment (.see Norton 
 V. Davison, (1899) 1 Q. B. 401), or imless some note or 
 memorandum in writiog of the contract be made and 
 signed by the party to be charged or his agent in that 
 behalf. This applies although the goods are iutended to 
 be delivered at a future time, or are not actually made 
 or procured or provided at the time of the contract. 
 
BY TRANSFER BY ACT OF OWNER : INTER VIVOS. 263 
 
 (Sect. 4 (2).) Tlie acceptance referred to is defined as any 
 act of tlie buyer in relation to the goods recognizing a pre- 
 existing contract of sale. (Sect. 4 (3) ; Abbott 8^ Co. v. 
 Wohey, (1895) 2 Q. B. 97.) The memorandum must set 
 out the names or sufficient description of the buyer and 
 seller, the goods sold, the price, if agreed on, and all other 
 material terms in the contract. (See Cox v. Soare (1907), 
 96 L. T. 719.) 
 
 Implied Conditions and Warranties. — There are cer- 
 tain conditions and warranties implied in a contract 
 for the sale of goods analogous to the covenants for 
 title implied in a sale of land. In every such sale there 
 are implied a condition of the seller's right to sell, and 
 warranties of quiet possession of the goods sold and of 
 their freedom from any undisclosed incumbrance. (Sect. 
 12.) Where the sale was made by means of a description 
 or sample, a condition is implied that the goods shall 
 correspond to the description or sample. (Sects. 13, 15.) 
 As to quality, conditions are implied in two cases : 
 (a) where the seller sold the goods for a particular purpose, 
 and the buyer has made it clear that he relied on the seller's 
 judgment as to their fitness for the purpose, there is an 
 implied condition that the goods shall be reasonably fit for 
 that purpose ; (b) where the buyer bought by description 
 from a seller who deals in the goods sold, there is an 
 implied condition that the goods shall be of merchantable 
 quality. (Sect. 14.) 
 
 A breach of condition entitles the buyer to repudiate the 
 contract of sale ; a breach of warranty merely gives him a 
 claim for damages ; but the buyer, if he pleases, may elect 
 to treat a breach of condition as a breach of warranty, and 
 sue on it for damages without repudiating the contract, and 
 the buyer must so treat the breach if he has accepted part 
 of the goods sold under an entire contract or, in the case of 
 a sale of specific goods, when the propertj^ has passed to 
 him. (Sect. 11.) 
 
264 MODES OF ACQUIRING INTERESTS. 
 
 When the Property passes. — The sale transfers the pro- 
 perty in the goods sold at such time as the parties intend 
 it to be transferred. For ascertaining this intention, it 
 is provided in general terms that regard shall be had to 
 the terms of the contract, the conduct of the parties, and 
 the circumstances of the case. (Sect. 17.) But the accu- 
 rate ascertainment of this time is of great importance, since 
 prima facie " the risk passes with the property," that is, 
 in the event of the goods being destroyed, the loss falls 
 upon the person whose property they then are. (Sect. 20.) 
 Accordingly, the Act lays down a number of rules by 
 which, in the absence of a contrary intention, the time 
 when the property passes is to be fixed : when specific 
 goods are sold in a deliverable state, the property passes 
 when the contract is made ; when any act remains to be 
 done by the seller to make the goods deliverable, or when 
 the seller has to weigh, measure, or test the goods in order 
 to ascertain the price, the property does not pass till such 
 acts are done and the buyer has notice thereof ; if the 
 goods are sent " on approval," the property passes when 
 the buyer does any act adopting the transaction [Kirkliam 
 V. Attenborough, (1897) 1 Q,. B. 201), or retains the goods 
 for more than a reasonable time without signifying his 
 rejection ; and finally, when unascertained or " future " 
 goods are sold by description, the property passes when 
 such goods are unconditionally appropriated to the con- 
 tract by either seller or buyer with the other's assent. 
 The commonest mode of " unconditional appropriation " 
 is the seller's delivering the goods to a carrier for trans- 
 mission to the buyer, reserving no right of disposition. 
 
 Position of the Parties. — (1.) Of the Seller. — It is the 
 seller's duty to deliver the goods, as it is the buyer's to 
 pay for them (sect. 27) ; and these, unless otherwise agreed, 
 are concurrent conditions, that is, the seller must be ready 
 and willing to give possession of the goods to the buyer in 
 return for the price, and vice versa. (Sect. 28.) An unpaid 
 
BY TRANSFER BY ACT OP OWNER : INTER VIVOS. 265 
 
 seller has various rights with regard to the goods. First, 
 he has what is called a vendor's lien over them ; that is, 
 he may retain possession of the goods until he is paid.^ 
 Second, if he is still retaining possession, and payment is 
 delayed for an unreasonahly long time, he may re-sell. 
 Third, if, when the goods have left his possession, and are 
 on their way to the buyer, he discovers that the buyer is 
 insolvent, he has a right of stoppage in transitu (sects. 39 
 and 44), that is, he may resume possession of the goods 
 (either by actually taking possession, or by giving the 
 carrier notice of his claim) and hold them till payment or 
 tender of the price. (Sect. 46.) If the goods have come 
 into the buyer's possession, and he wrongfully neglects 
 or refuses to pay, the seller has a right of action against 
 him for the price (sect. 49) ; if the buyer wrongfully 
 neglects or refuses to accept the goods, he may be sued 
 for damages for non-acceptance. (Sect. 50.) 
 
 (2.) Of the Buyer. — The buyer has a right to have the 
 goods delivered to him according to the terms of the con- 
 tract, and if the seller wrongfully neglects or refuses to do 
 so, the buyer has a right of action for damages for non- 
 delivery. (Sect. 51.) If the property in the goods has 
 passed by the contract, the buyer can also sue in trover, or 
 for specific performance. (Sect. 52.) In the absence of a 
 contrary agreement, the place of delivery is the seller's 
 place of business or residence, unless the goods are specific 
 
 ' The Court of Appeal has lately decided that the doctrine of 
 vendor's lien, which has long heen applied on sales of realty, applies 
 equally on sales of personalty, i.e., that the lieu continues after the 
 property sold has heen parted with, unless there was a contrary 
 intention, and binds it in the hands not merely of the original pur- 
 chaser, but of purchasers for value from him with notice of the Hen. 
 Further, as the Statutes of Limitation do not apply to charges on 
 personalty, the vendor can at any distance of time apply to the 
 Court to have his lien enforced. [In re Stucley, Stucley v. Kekewich, 
 (1906) 1 Ch. 67, and see infra, p. 341.) Of course, in ordinary sales 
 of goods this doctrine would not apply, since there is usually an 
 intention of parting with all interest in the goods sold and relying 
 on the purchaser's general credit. 
 
266 MODES OF ACQUIKING INTERESTS. 
 
 and are known to the parties to be elsewhere, when the 
 place where the goods are is the place of delivery. 
 (Sect. 29.) 
 
 (d) Bills of Lading. — A bill of lading is a receipt for 
 goods shipped, given by the shipmaster as agent for the 
 owners of the ship to the owner of the goods or his agent, 
 coupled with an undertaking to deliver the goods in ques- 
 tion to the shipper, a consignee, or their assigns. Since 
 it is obviously for the convenience of commerce that the 
 goods should be capable of being dealt with while still 
 on the voyage, it is a rule of the law merchant that the 
 property in the goods may be transferred by indorsement 
 and deKvery of the bill of lading. The shipowner is, 
 therefore, bound to deliver the goods to the assignee who 
 presents the bill of lading. And by the Bills of Lading 
 Act, 1855, the transfer of the bill of lading operates 
 also as an assignment of the contract contained in it, so 
 that the transferee can sue on that contract in his own 
 name, and is liable upon it exactly as if he had been 
 originally a party to it. 
 
 Part B. Alienations mortis causa. 
 
 PAGE 1 PAGE 
 
 Alienations morzJu cflt^tf 266 I. Donationes mortis caiisd ... 2b7 
 
 II. Alienation by Will 26S 
 
 Alienations mortis causa. — Alienations mortis causa, are 
 transfers of interests in things made in view of the trans- 
 feror's death, and in their nature revocable by the trans- 
 feror at his will and pleasure at any time before his death. 
 They are divided according as the alienation is to take 
 effect immediately, or is not to take effect until the death 
 of the alienor. In the first case, the transfer is called 
 
BY TRANSFER BY ACT OF OWNER : MORTIS CAUSA. 267 
 
 alienation by donatio mortis causa ; in the latter, alienation 
 bt/ will or testament. The latter is incomparably the more 
 important. 
 
 I. Donationes Mortis Causa. 
 
 Donationes mortis causa. — As has been said, a donatio 
 mortis causa is a gift made by a man in expectation of 
 speedy dissolution, but intended to operate as a gift, not 
 from such dissolution, but immediately. {Solicitor to the 
 Treasury v. Lnvis, (1900) 2 Ch. 812.) The gift is subject 
 to two conditions arising out of its nature : firstly, that 
 should the donor recover — that is, should the expected 
 dissolution not then take place — the gift is ipso facto void; 
 and secondly, that the donor in any event may expressly 
 revoke the gift at any time before his death. He cannot, 
 however, revoke it by his will. 
 
 The gift must be evidenced by delivery either of the 
 thing given or of the means of obtaining it — such, for 
 instance, as the keys of the box in which it is contained. 
 (Mustapha v. Wedlake, W. N". (1891) 21 ; cf. In re John- 
 son, Sandy v. Reilly (1905), 92 L. T. 357.) The delivery 
 must be made by the donor himself, or by some other 
 person in his presence, and by his direction : and it must 
 be made to the donee or an agent of his. As in the case of 
 gifts inter vivos, if the chattel is already in the possession 
 of the donee, no re-delivery to him is necessary. [Cain v. 
 Moon, (1896) 2 Q. B. 283.) Originally, only things the 
 ownership in which passed by delivery without further 
 act on the donor's part could pass under a donatio mortis 
 causa, but now certain other things may be so given, 
 such as mortgaged securities, bills of exchange payable to 
 order and not indorsed, policies of assurance, cheque?, post 
 office orders, &o. {Veal v. Veal, 27 Beav. :J03 ; Beddin.g- 
 ton V. Bauman, (1903) A. C. 13, at p. 19.) These, however, 
 may be regarded, perhaps, rather as cases of the delivery 
 of the means of obtaining the things given than as cases 
 
268 
 
 MODES OF ACQUIRING INTEEESTS. 
 
 of the delivery of the thing itself. {In re Mead, Austin v. 
 Mead, 15 Ch. D. 651.) 
 
 A donatio mortis causa may be impressed with a condition 
 binding upon the donee if such condition was attached to 
 it at the time delivery was made by the donor. The most 
 common condition is one that the donee shall pay for the 
 donor's funeral. [Hills v. Hills, 8 M. & M. 401.) 
 
 Donationes mortis causa are subject to the same death 
 duties as gifts under wills. Like these, too, they are 
 liable, on a deficiency of assets, to the donor's debts. 
 And even at common law they could always be made to 
 the donor's wife. 
 
 II. Alienation by Will. 
 
 PAGE 
 
 Description of a Will 268 
 
 History of Wills 269 
 
 Effect of History 271 
 
 Wills of Realty and Personalty 272 
 
 Execution of Wills 276 
 
 Domicile and Execution 278 
 
 Republication of Will 280 
 
 Revocation of Wills 281 
 
 PAGE 
 
 Construction of Wills : General 
 
 Rule 282 
 
 Constraction of Wills : Special 
 
 Rules 283 
 
 Kinds of Legacies 288 
 
 Position of Executors 290 
 
 Duties of Executors 292 
 
 Rights of Executors 292 
 
 Description of a Will. — A will or testament is a convey- 
 ance intended to come into operation on the death, and 
 only on the death, of the grantor. Until that event it 
 has no effect whatever, and until that event the grantor is 
 entitled to alter or revoke it at his will and pleasui-e. 
 This is what is meant by the phrase that a will is ambu- 
 latory till death. 
 
 A codicil is an addition to a will [codex, will ; codicillus, 
 little will) executed subsequently to the will itself and 
 with the same formalities as a will. It is considered part 
 of the will to which it is attached, or, as is usually said, it 
 is to be read with the will. In so far, and only in so far, 
 
BY TRANSFER BY ACT OF OWNER : MORTIS CAUSA. 269 
 
 as its terms are inconsistent with the will, it revokes or 
 overrules the will. {Morley v. Rennoldson, (1895) 1 Ch. 
 449 ; and see In re Segelcke, Ziegler v. Nicol, (1906) 2 Oh. 
 301.) 
 
 The person who makes a will is called the testator, if a 
 man ; testatrix, if a woman. A gift under a will is called 
 a devise if the gift is of realty ; a legacy or bequest if the 
 gift is of personalty. The person taking such a gift is 
 called a devisee if the gift is of realty, a legatee if the 
 gift is of personalty, and in either case a beneficiary. If 
 persons are appointed by the will to carry out the wishes 
 of the testator as to the disposal of his estate, they are 
 called the executors of the will ; if persons are not 
 appointed by the will to carry out the testator's wishes, 
 then, should the property disposed of by the will include 
 personalty, and in the case of testators dying on or after 
 the 1st of January, 1898, whether it include personalty or 
 not (Land Transfer Act, 1897, s. 1 (1), (3) ), the Court 
 will appoint such persons, and they will in that case be 
 called administrators with the will annexed. {See infra, 
 J). 291.) 
 
 It is to be remembered that under the Public Trustee 
 Act, 1906, the Public Trustee is empowered to act as 
 executor or administrator, to apply for probate or letters 
 of administration, and to take over the administration of 
 small estates. [See siqjra, p. 119.) 
 
 History of Wills. — As these terms sufEciently indicate, 
 the idea of a will or testament is of Roman origin. It 
 seems to have been unknown to the ancient common law 
 of England. Originally, on the death of the owner of 
 land or goods, the land or goods devolved on the deceased 
 owner's surviving relatives according to the rules of 
 descent and succession unaffected by any act or desire on 
 his part. Testamentary power was 6rst established with 
 regard to goods — indeed, strictly speaking, a testament still 
 means a will dealing only with personalty, — and it was 
 
270 MODES OF ACQUIRING INTERESTS. 
 
 established chiefly through the influence and learning of 
 Churchmen, whose study of the civil law made them well 
 acquainted with the conception of a will. At flrst the 
 power only applied to a portion of the testator's personalty. 
 As enacted by the Magna Charta of 1225 a.d. (9 Hen. III. 
 c. 18), on the death of a tenant any debt due to the king 
 was to be first paid out of the deceased's goods and chattels, 
 " and the residue shall remain to the executors to perform 
 the testament of the dead ; and if nothing be owing unto 
 us, all the chattels shall go to the use of the dead ; saving 
 to his wife and children their reasonable parts." The 
 reasonable parts of the wife and children consisted of one- 
 third part each of all the personalty, and it was only as 
 to the remaining third that the deceased's will operated. 
 Gradually, however, its operation was extended to all the 
 testator's personalty, including, of course, his chattels real. 
 In some places, however, the old law survived as a special 
 custom, and as to these in later times the special custom was 
 abolished by statute. {See 2 Bl. Com. 493.) And now, by 
 sect. 3 of the Wills Act, 1837, testamentary power has 
 been extended to all the personal estate which the testator 
 at his decease shall be entitled to either at law or in 
 equity. 
 
 The history of testamentary power over freehold lands 
 is somewhat different. Here, again, its introduction was 
 due to the influence and learning of ecclesiastics. ^ As has 
 already been pointed out, feoffments to the use of the 
 feoffor's will were protected and enforced by the early 
 clerical chancellors, no doubt largely in the interests of 
 the Church. Such feoffments were put an end to by the 
 Statute of Uses. Testamentary power was, however, very 
 shortly afterwards re-established over fee simple land by 
 
 ' From very early times customs to devise have been legally 
 recognized as obtaining in certain places. How these arose it is 
 now very difficult to say. For a history of the growth of the right 
 to devise, see Co. Litt. Ill b, note. 
 
BY TRANSFER BY ACT OF OWNER : MORTIS CAUSA. 271 
 
 the Statutes of "Wills, 1540, 1542. By these statutes a 
 holder of such lands by tenure of knight-service was 
 entitled to devise two-thirds of them, while a holder in 
 socage could devise them all. (Co. Litt. Ill b.) By the 
 Military Tenures Act, 1662, tenure in socage became 
 universal, and with it testamentary power over fee simple 
 lands became universal too. As to estates pur autre vie, 
 the only other kind of freehold estates that, strictly speak- 
 ing, may survive their owner, these were made subject to 
 the tenant's last will by sect. 12 of the Statute of Frauds, 
 1677. This section, and also the Statutes of Wills, have 
 been repealed by sect. 2 of the "Wills Act, 1837 ; but by 
 sect. 3 of the same statute it is enacted that every person 
 not under disability is entitled to devise all real estate to 
 which he shall be entitled at the time of his death, and 
 real estate is to include any estate, right, or interest, other 
 than a chattel interest in any hereditaments, and " all 
 rights of entry for conditions broken, or other rights of 
 entry." This provision renders devisable a possibility of 
 reverter on a conditional fee simple where conditional fees 
 may still subsist, as they may in copyholds. {Pemherton 
 V. Barnes, (1899) 1 Ch. 544.) 
 
 Effect of History. — "Wills of goods, then, and wills of 
 freehold land were both introduced by the influence of 
 the Church. In the case of wills of goods, however, the 
 influence of the Church continued to mould the law until 
 quite recent times ; while in the case of wills of freehold 
 the influence of the Church ended with the introduction of 
 statutory testamentary power : after that, the law relating 
 to them was moulded by express enactment, and by the 
 policy of the ordinary Courts of law. This difference in 
 the history of wills of personalty and wills of realty led to 
 considerable dijferences in the law with regard to these. 
 These differences concerned chiefly two points : the execu- 
 tion of wills, and the operation of wills after the death of 
 the testator. Most of the differences on the former point,. 
 
272 MODKS OF ACQUIRING INTERESTS. 
 
 and some of those on the latter point were swept away by 
 the Wills Act, 1837 ; and now, by the Land Transfer Act, 
 1897, the remainder have, as far as England is concerned, 
 for the future disappeared. The latter Act,however, does not 
 apply to Ireland at all, and in England it applies only in 
 the case of testators dying on or after 1st January, 1898. 
 The old law, then, is still of great importance in both 
 countries. 
 
 Wills of Realty and of Personalty. — The primary dif- 
 ference, then, which has hitherto characterized the operation 
 of wills of realty and wills of personalty is this. A will 
 of realty has been in almost every way simply an ordinary 
 conveyance of land from the testator to the devisee to take 
 effect from the death of the testator. A will of personalty 
 has been not an ordinary gift of goods by deed or other 
 writing, but resembles a form of universal succession as 
 existing under the civil law. 
 
 This difference shows itself most markedly in two 
 respects : (a) in the way in which the law regarded the 
 will itself ; and (b) in the effect of the will in transmitting 
 the ownership of the property included under it. 
 
 (a) In the case of a will of realty, the law formerly re- 
 garded the will simply as a conveyance between two 
 private persons, with which it had nothing more to do 
 than with any other such conveyance. It supplied no 
 means by which the validity of the will might be once for 
 all established, and it insisted on no further registration 
 or record being kept of it than of any other conveyance 
 affecting the land in question. 
 
 In the case of a will of personalty, on the other hand, 
 the law always regarded the will as a public instrument. 
 It insisted that the will should be handed over to its 
 custody, and that before doing so it should be satisfied that 
 the instrument was a validly-eseouted will. "Where there 
 was no contest as to the will's validity, this proof was 
 merely formal — usually the oath of the executor being 
 
BY TRANSFER BY ACT OF OWiSTER : MORTIS CAUSA. 273 
 
 sufficient. It was then called proof in common form. If, 
 however, there was a contest, or a threatened contest, as 
 to the validity of the will, then the person producing or, 
 as the phrase is, propounding the will, was entitled to 
 prove it hy a regular action in which the person propound- 
 ing the will — the executor usually — and the person or 
 persons contesting it, each produced their witnesses, and 
 cross-examined those produced hy the other side. Proof 
 by action was called proof in solemn form per testes. The 
 chief difference between the two forms of proof is this : 
 proof in solemn form finally established the validity of the 
 will, while proof in common form had no such effect. For 
 an indefinite time after the latter the executor might be 
 called upon by anyone interested to prove the will in 
 solemn form. 
 
 "Wills including under them only freehold land could 
 not be admitted to proof either in solemn or common form. 
 {In the Goods of Jane Barden, L. R. 1 P. & M. 325.) 
 But wills including under them both freehold land and 
 personalty could be so admitted, and such wills were, by 
 proof in solemn form, established finally both as to per- 
 sonalty and the freehold land included under them. 
 
 In England this difference in the operation of wills of 
 realty and wills of personalty has been abolished as to the 
 wills of persons dying on or after the 1st January, 1898. 
 The law as here stated with regard to wills of personalty 
 then became applicable to wills of realty. Probate is 
 granted to wills including under them nothing but real 
 estate (Land Transfer Act, 1897, s. 1 (3) ), and freeholds 
 generally rank as far as probate is concerned like chattels 
 real. (Land Transfer Act, 1897, s. 2 (2).) 
 
 Formerly the Ecclesiastical Courts had jurisdiction over 
 probate of wills and also over their custody. In 1 857 this 
 jurisdiction was taken from them by the Court of Probate 
 Act and vested in the Court of Probate established under 
 that Act. By the Supreme Court of Judicature Act, 1873, 
 s. 16, the jurisdiction of the Court of Probate is now 
 
 S. T 
 
274 MODES OF ACQUIRING INTERESTS. 
 
 vested in the High Court of Justice * Under sect. 10 of 
 the Court of Probate Act, 1857, the County Court has 
 jurisdiction as to probates of wills where the testator at 
 the time of his decease lived within the district of the 
 County Court in question, and where his estate, exclusive 
 of thfit held by him as trustee, does not exceed 200^. 
 personalty and ?00/. realty. 
 
 By the Probates (Ireland) Act, 1(*^57, probates granted 
 in Ireland, and by the Confirraation of Executors (Scot- 
 land) Act, 185(S, confirmations granted in Scotland, are, 
 on production in the Probate Court in England, to be 
 reseated, and to have the effect of probates granted in 
 England, and English probates are to be similarly treated 
 in Ireland and Scotland ; and by the Colonial Probates 
 Act, 18i^2, the King may extend by Order in Council the 
 same privilege to probates granted in any British posses- 
 sion on being satisfied that adequate provision has been 
 made for the recognition in such possession of probates 
 granted in the United Kingdom. Such Orders in Council 
 have now been made in respect of nearly all British colonies. 
 {See Strahan's Wills, p. 7^5.) 
 
 (b) A will of realty before tbe Land Transfer Act, 1897, 
 immediately on its coming into operation, vested in the 
 devisees under it the land devised in it to them. These 
 devisees might, if they liked, disclaim the land ; but until 
 they did so they were regarded by law as the owners of 
 it. In these respects a will was like any other conveyance 
 operating by grant. And be it noted that this rule applied 
 as well to devises in wills referring both to realty and 
 personalty as to devises in wills of pure realty' only. Free- 
 hold land left by will, immediately on the death of the 
 testator vested in the devisee. 
 
 In the case of a will of personalty, however, the first 
 effect of the will always was to vest the whole personalty, 
 to whomsoever it might be bequeathed, in the executor. 
 
 1 In England such jurisdiction is exercised, by a separate 
 Division of the Iligh Court; in Ireland by a branch" of the King's 
 Bench Division called the " King's Bench Division (Probate)." 
 
BY TKANSFEK, BY ACT OF OWNER : MORTIS CAUSA. 275 
 
 (Co. Litt. 388 a.) However specifically an article might be 
 bequeathed to any person, on the death of the testator the 
 ownership of the article vested in the executor, and the 
 legatee had no property in it till the executor had assented 
 to the legacy. And the executor was under no obligation 
 to give his assent until a year after the testator's death. 
 This period — called the executor s year — the law allowed to 
 Gxecuturs to ena,ble them to ascertain and pay off the debts 
 of the testator and generally to administer his estate. 
 
 So necessary was the office of executor to a will of 
 personalty, that formerly such wills were void if no 
 executor were appointed by them. This is no longer the 
 case. On the other hand, an executor was unnecessary to 
 a will of realty only; inieed, the office, strictly speaking, 
 could not exist under such a will. An executor, as such, 
 had nothing to do with a testator's realty, and if any of 
 it was actually devised to him — as, for instance, for the 
 purpose of paving the testator's debts — he took it not as 
 executor but rather as trustee. 
 
 In England this difference in the operatioli of wills of 
 realty and wills of personalty has been abolished as to the 
 wills of persons dying on or after 1st January, 1898. 
 The law as here stated with regard to wills of personalty 
 has now become applicable to wills of realty. Freeholds, 
 howevei' devieed, now, immediately on the death of the 
 testator, vest in the executor (Land Transfer Act, 18^7, 
 s. 1 (1) ), who is a trustee of them, subject to the testator's 
 debts, for the devisee, or, if they be not devised by the 
 will, for the testator's heir. (J&«V^., sect. 2 (1).) And where 
 they are devised the executor can transfer them to the 
 devisee by assenting to such transfer {Ibid., sect. 3), just 
 as if theywere chattels real or specific legacies. {8ee infra, 
 p. 293.) 
 
 Execution of Wills. — It has already been pointed out 
 that the formalities necessary to the valid execution of a 
 will varied greatly under the old law according as the will 
 
 T 2 
 
276 MODES OF ACQUIEING INTERESTS. 
 
 dealt with personalty only, or with realty. This, however, 
 has been altered by the Wills Act, 1837, which makes it 
 necessary and sufficient to the validity of every will that 
 certain formalities should be observed in its execution. 
 These are : — ■ 
 
 (a) The will must be reduced into writing before 
 execution. (Sect. 9.) Originally wills of perponalty could 
 be made by word of mouth merely ; they were then called 
 Huncupatire wills. This rule was practically abolished by 
 the Statute of Frauds, save as regards wills of soldiers 
 when engaged upon an expedition, and wills of sailors at 
 sea. This exception is preserved by the Wills Act. 
 (Sect. 1 1 .) But, by subsequent legislation, the wills of 
 petty officers and seamen in the royal navy, and of seamen 
 in the merchant service, as far in both cases as wages, 
 pay, &c. are concerned, are subjected to certain provisions 
 for the prevention of frauds on such persons' relatives. 
 {See Navy and Marines (Wills) Acts, 1865 and 1897, and 
 Merchant Shipping Act, 1894, s. 177.) 
 
 Though the whole will must be reduced into writing 
 before execution, yet it need not be all written on the 
 same piece of paper, or on pieces of paper physically 
 connected. Other documents proved to be actually exist- 
 ing at the time of execution may be incorporated in the 
 will by a sufficient description of them in the will itself. 
 Thus, a bequest to " the persons named and upon the 
 trusts set out in a deed of trust executed by me on 
 1st January, 1895, and now deposited at my solicitors'," 
 would, if it were proved that a trust deed answering this 
 description was actually existing, and in the hands of the 
 solicitors at the time the will was executed, make that 
 trust deed a part of the will. {See Uiiircrftifi/ College of 
 North Wcdes and Unirermty of Wales v. Tai/lor (1908), 
 L. J. P. 20.) No subsequent writing, however, adding to 
 or altering the will as executed can affect the will, save it is 
 executed with the forms of a new will. (Sect. 21.) Ac- 
 cordingly, where alterations or interlineations have been 
 
BY TRANSFER BY ACT OF OWNER : MORTIS CAUSA. 277 
 
 made in the will before execution, it is customary on exe- 
 cution to mark them with the initials of the testator and 
 . witnesses to prevent any question subsequently arising as 
 to whether they were made before or after execution. {In 
 the Goods of Streatley, (1891) P. 172.) 
 
 (b) It must be signed by the testator, or by some other 
 person in his presence and by his direction, and such 
 signature must be made or acknowledged by him in the 
 presence of two witnesses present at the same time. Such 
 signature is to be at the foot or end of the will (sect. 9, 
 Wills Act), and so placed as to show on the face of the 
 will that the testator intended to give effect by such signa- 
 ture to the will. (15 Vict. c. 24, s. 1.) If the signature 
 is not at the foot or end of the will, the part following 
 it will be invalid. {In the Gooch of Anstie, (1893) P. 283.) 
 
 (c) The two witnesses must attest the will in the presence 
 of the testator and in the presence of each other (sect. 9 ; 
 Wyatt V. Berry, (1893) P. 5) ; but it is not necessary 
 (though it is highly desirable) that they should subscribe 
 their names to the will in each other's presence. {In the 
 Gooch of Wehh, Deane's Eco. 0. 1.) 
 
 Formerly no witnesses were necessary in the case of a 
 will of personalty when such will was in writing, while at 
 least three witnesses were required to a will of realty. 
 Moreover, such witnesses had to be credible witnesses — 
 that is, not infamous persons, or persons who themselves, 
 or whose husbands or wives, received gifts under the will. 
 Section 14 of the Wills Act, 1837 (re-enacting and amend- 
 ing 25 Greo. 2, c. 6), now enacts that the incompetency of 
 a witness shall not invalidate a will ; and by the following 
 section, where a witness, or the wife or husband of a 
 witness, is a beneficiary under the will, the gift is to be 
 void and the attestation good. This latter provision, how- 
 ever, does not render void a gift to a creditor who is a 
 witness to the will merely in payment of testator's debt to 
 him ; and an executor is a good witness to the execution 
 of a will, and also to its validity or invalidity. (Sect. 17.) 
 
278 MODES OF ACQUIRING INTERESTS. 
 
 No attestation clause is necessary, but it is usual to 
 add one, as its presence facilitates probate of the will. 
 Where such clause is present, the oath of the executors 
 that they believe the will to be the last true will of 
 the deceased is sufEcient proof to obtain probate ; but 
 where it is absent, an affidavit as to its execution from 
 one or both of the witnesses, or, if tbey are dead or not 
 to be found, from someone acquainted with the testator's 
 handwriting will be required in addition to the oath of 
 the executor. {In. the Goods of Stephen Sn'ret, (1891) 
 P. 400. A)id see generally Strahan's Wills, pp. 43— ol.) 
 
 Domicile and Execution. — With regard to wills of free- 
 hold land, the law has always been that they are to be 
 executed in accordance with the law of the place where the 
 land is — the lex situs, as the phrase is. (Freke v. Carhenj, 
 L. E. 16 Eq. 4t>l.) With regard to wills of goods, on 
 the other hand, the law formerly was that they were to be 
 executed in accordance with the law of the place where 
 the testator was permanently resident — his domicile, as it 
 is called — at the time of his decease. Now, frequently it 
 is extremely difficult to determine where a given person is 
 domiciled, and, to prevent the validity of wills depending 
 on the solution of so dubious a question, an Act, known as 
 Lord Kingsdown's Act, was passed in 18H1 enacting that 
 in the case of wills of personalty made out of the United 
 Kingdom by a British subject, whatever may be such 
 person's domicile, his will is to be well executed for the 
 purpose of probate if it is made according to the forms 
 required either by the law of the place where it was made, 
 or by the law of the , place where such person was domi- 
 ciled when it was made, or by the laws then in force in 
 that part of her Majesty's dominions where he had his 
 domicile of origin (sect, i) ; and in the case of wills of 
 personalty made within the United Kingdom by a British 
 subject, whatever may be such person's domicile, the will 
 is to be well executed for the purpose of probate if it be 
 
BY TRANSFER BY ACT OF OWNER : MORTIS CAUSA. 279 
 
 executed according to the forms required by the law for 
 the time being in force in that part of the United Kingdom 
 where it is made. (Sect. 2 ) And no subsequent change 
 of domicile is to revoke, invalidate, or alter the construc- 
 tion of a will (sect. 3) ; nor is the Act itself to render any 
 will invalid which would have been valid had the Act not 
 passed, save in so far as such will may be altered or 
 revoked by a subsequent will made valid by the Act. 
 (Sect. 4.) It is to be noted that sects. 1 and 2 of Lord 
 Kingsdown's Act apply only to British subjects, while 
 sects. -^ and 4 apply generallj'. Accordingly, it has been held 
 that when a person of Dutch domicile makes a will, and 
 afterwards marries and acquires an English domicile, as 
 marriage does not by Dutch law revoke a will, his will is 
 not revoked in England. {In the Estate of Groos, (1904) 
 P. 269.) It is also to be remembered that sects. 1 and 2 
 refer to wills not of moveables merely, but of personalty. 
 Accordingly, a will of leaseholds in England is admissible 
 to probate if it is made in accordance with the law of the 
 testator's domicile, though its provisions will be invalid if 
 they transgress English law, as, for instance, bv attempt- 
 ing to establish a perpetuity. (Pepi'i v. Bruyerc, (1902) 
 1 Oh. 24; In re GrasHi, Stuhberfleld v. Grassi, (1905) 1 
 Ch. 684.) Finally, the Act applies only to wills made by 
 persons who die after the passmg of the Act (6th August, 
 1861). {8ee Strahan's Wills, pp. 69—74.) 
 
 By an Act passed on the same day (24 & 25 Vict. c. 121), 
 power was given to the Crown 'to enter into conventions 
 with foreign countries under which a British subject dying 
 in any such foreign country, or a subject of such foreign 
 country dying in the United Kingdom, is not to be con- 
 sidered to have acquired a domicile in the country whvre he 
 died unless he has lived for one year before his decease 
 in that country, and has also deposited in a public office 
 appointed for the purpose a declaration in writing of his 
 intention of becoming domiciled in such country. And for 
 all purposes of testate and intestate succession to moveables, 
 
280 MODES OF ACQUIRING INTERESTS. 
 
 such person till then is to be considered to retain the 
 domicile he possessed at the time of his going to reside 
 there. 
 
 No convention under this Act has as yet been entered into. 
 
 Republication of Will. — Formerly, to give a will of realty 
 validity it had to be published — that is, some act had to be 
 done by the testator to show that he intended the instru- 
 ment to operate as a will. Now no pubhcation beyond 
 the execution required by the statute is necessary to the 
 validity of any will. (Wills Act, s. 13.) 
 
 Under the old law, when a codicil was added to a will, 
 the execution and publication of this amounted to a repub- 
 lication of the whole will as well. In this respect the 
 law is still unaltered. (Sect. 22, Wills Act.) The effect 
 of this rule is sometimes to make valid a will improperly 
 executed, and also sometimes to make good a gift under the 
 will which previously was null and void. Thus, if a codi- 
 cil, duly executed, be added to a will which was invalid 
 through both the witnesses not being present at its execu- 
 tion, or which has been revoked through the subsequent 
 marriage of the testator {see infra), the will is re- 
 established. And again, if by a will a gift be made to 
 one of the witnesses, that gift, as we have seen, is void. 
 But if subsequentlj' a codicil, duly executed, but attested 
 by different witnesses, be added, then the old execution is 
 superseded, the old witness ceases to be a witness to the 
 will, and the gift to him becomes valid. {Anderson v. 
 Anderson, L. E. 13 Eq. 381. Of. In re Hay, Kerr v. 
 Stinnear, (1904) 1 Ch. 317.) 
 
 An invalid will can be established, and a valid wUl can 
 be repubUshed by a re-execution in due form. (Sect. 22, 
 WiUs Act.) But no will can be re-estabHshed or revived 
 by mere implication {In the Goods of Steele, L. E,. 1 P. A; 
 M. 576), or by merely cancelling a subseqtient will or 
 codicil by which it was revoked {In re the Goods of 
 Hodgkinson, (1893) P. 339) ; nor can a codicil revive 
 
BY TKANSFEE BY ACT OF OWNER : MORTIS CAUSA. 281 
 
 a will that has been revoked by jDhysical destruction. {In 
 the Goods ofReade, (1902) P. 75.) 
 
 Revocation of Wills. — Under the Wills Act a wiU can 
 now be revoked in four ways only : — 
 
 (a.) By the subsequent marriage of the testator or 
 testatrix. (Sect. 18.) 
 
 Subsequent marriage, however, will not revoke 
 a will made in exercise of a power of appoint- 
 ment, where the property so appointed would not, 
 in default of appointment, pass to the appointor's 
 heir, executor, administrator, or next of kin. 
 (b.) By a subsequent will or codicil revoking the will. 
 
 (Sect. 20.) 
 (c.) By a writing executed like a will and declaring an 
 intention to revoke the will. (Sect. 20 ; see 
 Toomer v. Sohinska, (1907) P. 106.) 
 (d.) By the destruction of the will by or in the 
 presence and by the direction of the testator 
 with the intention of revoking it. (Sect. 2(J.) 
 The destruction of a will without any intention of 
 revoking it will not cause its revocation ; oral evidence of 
 its contents will be heard by the Court, and the contents 
 as thus established will be admitted to probate. Neither 
 will the loss of a will cause revocation, nor will its inten- 
 tional destruction under the false impression that it is 
 invalid. {Giles v. Warren, L. E. 2 P. & M. 4Ul. As to 
 " dependent relative revocation," see Strahan's "Wills, p. 57.) 
 A will, however, will be sufficiently destroyed to revoke it 
 by cutting off the signature of the testator with the intention 
 of revoking it {Bell v. Fothergill, L. E. 2 P. & M. l48), 
 or, when it is executed in duplicate, by the intentional 
 destruction of one of the parts. {Atkinson v. Morris, (1897) 
 P. 40.) And it may be partially revoked by the complete 
 obliteration of a part of it, either by erasure, or by blotting, 
 or by pasting paper over such part. (Sect. 21, Wills Act. 
 In the Goods of Gilbert, (1893) P. 183.) 
 
282 MODES OF ACQUIRING INTERESTS. 
 
 On the other hand, an intention to revoke a will, how- 
 ever clearly manifested, will not cause its revocation unless 
 the will is destroyed or the intention to revoke is declared 
 in writing duly executed like a will. Thus, cancelling a 
 will by drawing lines through it, or writing " revoked " 
 across it, or any other such proceeding, has no effect what- 
 ever in revoking a will. {Atkinson v. MorrU, mpra.) 
 
 Construction of Wills ; Geaeral Eule. — It is commonly 
 said that in construing a will the Court will always 
 endeavour to discover the intentions, and will be bound 
 by the intentions, of the testator. This rule is perfectly 
 accurate if we remember that the intentions which the 
 Court seeks are not the actual intentions existing in the 
 mind of the testator when he made his will, but his 
 intentions as expressed in the will. (Under. & Stra. on 
 Wnis, p. 63.) In this res[)eot a will is like any other 
 written instrument. {Egerton v. Broicnlow, 4 H. L. Cas. 
 181.) 8o, too, the intention which the Court will seek is 
 not the intention as expressed in a single sentence torn 
 from the context, but the intention as gathered from the 
 instrument as a whole. (Under. & Stra. on Wills, pp. 10, 
 31 et seq.) In this respect also wills are construed like 
 other writings. [Abbott v. Middleton, 7 H. L. Cas. 68.) 
 
 The difference between the construction of wills and of 
 other writings arises after this general intention has been 
 ascertained. In other writings, and more especially in 
 deeds, the general intention may be modified and even 
 defeated by the parties having chosen to use ordinary or 
 technical language in a sense different from that which 
 it properly possesses. In wills, on the other hand, the 
 general intention will override any ordinary or technical 
 expressions which conflict with it. {Kei/ v. Ket/, 4 D. M. 
 & G-. T 3.) It may be noted that wills of realty are in this 
 respect construed more strictly than wills of personalty. 
 {Miles V. ITarford, 12 Ch. D. 691.) 
 
 A further difference arises from the fact that while 
 
BY TEANSFEE BY ACT OP OWNEB : MOETIS CAUSA. 283 
 
 deeds are drawn without punctuation (see supra, p. 245), 
 wills are punctuated. And in construing wills the 
 punctuation will be taken into consideration. In Oompton 
 V. Bloxham (2 Col. 201), the decision turned on the fact 
 that the words " my moneys " began an entirely new 
 sentence, the Judge (Knight Bruce, V.-C.) having ascer- 
 tained this by an examination of the will itself. 
 
 As has been said, the intentions of the testator must 
 be gathered from the terras of the will. No extrinsic 
 evidence — that is, statements of persons who knew his 
 intentions, or contents of documents not testamentary in 
 their nature — will be admitted to show that the inten- 
 tions expressed on the face of the will were not his real 
 intentions. Neither will extrinsic evidence be admitted 
 to remedy what are called patent ambiguities — that is, 
 deficiencies of expression appearing on the face of the will 
 itself, such as a blank where the name of a legatee should 
 have appeared. [Re Gregson's Trusts, 2 Hem. & M. 504.) 
 But when a will is itself clear in its terms, diiSculties may 
 arise in applying it to the facts. For example, a legacy 
 may be left " to my niece B. C," and the testator may 
 have had two nieces called B. C. {In re Fish, (1894) 
 2 Oh. 83.) Or, again, a legatee may be described as 
 " J. Brown of Whiteacre," and on investigation it may 
 turn out that the Brown living at Whiteacre is E.. Brown, 
 and that there is a J. Brown living at Blackacre. Such 
 ambiguities as these are called latent ambiguities because 
 they do not appear on the face of the will, but only arise 
 when the time comes for applying the will to the facts. 
 (Under. & iStra. on Wills, pp. 42 et seq.) Extrinsic 
 evidence is admissible to explain them. {Charter v. 
 Charter, L. E. 7 H. L. 364.) 
 
 Construction of Wills : Special Eules, — Besides this 
 general rule of construction, which is, to a large extent, 
 the same as is applied in the case of every written 
 instrument, there are certain special rules applicable to 
 
284 MODES OP ACQUIRING INTERESTS. 
 
 wills and to wills alone. Of these, the more important 
 have always been appKed to the construction of wills of 
 personalty, and now, by the Wills Act, they have been 
 made applicable to wills of realty also. 
 
 It is to be remembered that rules of construction are 
 merely guides to ascertain the testator's meaning when that 
 meaning is not clearly expressed. Where that meaning 
 is clearly expressed there is no need for the rule and 
 the Court is bound by the expressed intention. This is 
 what is meant when it is said that a rule of construction 
 applies only when a contrary intention does not appear by 
 the will. 
 
 (a) Wills are to be condriied as speaking from the death of 
 the testator. (Sect. 24, Wills Act.) 
 
 By this is meant that the will is to be read as if it had 
 been executed immediately before the testator's death, as 
 far as the property referred to in it is concerned. (Under. 
 & Stra. on Wills, pp. 116 ei! seq^ For example, if the will 
 gives " all my money at Child's Bank " to a certain legatee, 
 that will mean all the testator's money at the bank not at 
 the date of the will, but at the testator's death. In the 
 same way, " all my land in North Hants " will include not 
 merely all the land testator had in that county when he 
 made the will, but also all that he acquired afterwards, 
 and all that he sold subsequently to the will and re-pur- 
 chased before death (sect. 23) — in short, all that he held 
 at his death. 
 
 The rule that the will speaks from the death of the testator 
 applies only to gifts described in general terms. Where 
 the thing given is specifically identified and the extent of 
 it marked out, only that thing so identified and limited will 
 pass under the will. Things may be so identified in either 
 of two ways : (a) by specific description, as '' my gold 
 repeater watch " ; (b) or by reference to the date of the 
 will, as " the estate I now own at Blackacre." And the 
 rule does not apply at all to the persons to whom gifts are 
 made in the will. Ab to them, the rule is that when a gift 
 
BY TRANSFER BY ACT OF OWNER : MORTIS CAUSA. 285 
 
 is made by will among persons included under a general 
 description — that is, a class of persons — ^those will take 
 under it who are within that general description, either at 
 a time expressly fixed by the will, or, if no such time is 
 fixed, at any time up to the period of distribution. When 
 the period of distribution is depends upon the nature of 
 the gift. If the gift is immediate, then the period of 
 distribution is the testator's death. If the gift is of a 
 remainder, it will be when the remainder comes into pos- 
 session. If the gift is i^ostponed as to vesting, it will be 
 when the first member of the class described becomes 
 entitled to his share. {See Under. & Stra. on Wills, pp. 102 
 to 115.) Thus, if A., by his will, gives a legacy of ready 
 money to B.'s children without more, the persons included 
 within this description will be B.'s children living at A.'s 
 death ; children born to B. subsequently will not partici- 
 pate in the gift. But if A. had first given B. a life 
 interest in the money, and the corpus of it subject thereto 
 to B.'s children, the persons included within this descrip- 
 tion would be the children of B. not only at A.'s death, 
 but also all born subsequently. And if the gift had been 
 to B.'s children on their attaining, respectively, the age of 
 twenty-one, then all B.'s children born before the eldest 
 attained twenty-one would be included in the gift. {In re 
 Mervin, Mervin v. Cronsman, (1891) 3 Oh. 197.) 
 
 (b) General residiiriry devises and bequests carry lapsed 
 devises ami bequests. (Sect. 25, Wills Act.) 
 
 By a general residuary devise or bequest is meant a 
 devise or bequest giving all that remains of the realty or 
 personalty respectively after satisfaction of the other devises 
 and bequests contained in the will. By lapsed devises and 
 bequests are meant devises or bequests which, for any 
 reason, have failed to go to the person or object for whom 
 or which they were intended. The rule itself, then, means 
 that these devises or bequests go to the persons to whom is 
 left the residue of the realty or personalty respectively. 
 (Under. & Stra. on Wills, pp. 151 et seq.) 
 
286 MODES OP ACQUIRING INTERESTS. 
 
 A devise or bequest, when it is not made for the purpose 
 of discharging a legal or moral obligation recognised by 
 the testator {Stevem v. King, (1904) 2 Oh. 30), lapses when 
 the person to whom it was left dies in the lifetime of the 
 testator, or when the object for which it was lett is an 
 illegal object. When the devise is made to two or more 
 persons in joint tenancy, or among a class of persons, then, 
 on the death of one of these before the testator, his share 
 will go to the survivors, and it is only on the death of all 
 the joint tenants, or on the failure of the class before the 
 testator's death, that there will be a lapse. But if the 
 devise or bequest be to two or more persons nominidim as 
 tenants in common, then, on the death of one before the 
 testator, there will be a lapse of his share of the gift. The 
 most common cause of lapse through illegality of object 
 has hitherto been the law as to gifts to charitable uses. 
 Formerly it was illegal in England, though not in Ireland, 
 to devise laud for charitable uses, or to bequeath money 
 for the purpose oi purchasing land for charitable uses. 
 This has now been altered, as to England, by the Mort- 
 main and Charitable Uses Act, 1891, under which such 
 devises and bequests are good, but land so devised is to be 
 sold within a year from the death of the testator (sects. 5, 
 6, and 8) ; and money so bequeathed is not to be invested 
 in the purchase of land. (Sect. 7.) The Act applies only 
 to the wills of testators dying after the passing of the Act 
 (5th August, 1891). 
 
 The Wills Act makes two exceptions to the rule that 
 the death of a legatee or devisee in the lifetime of the 
 testator causes a lapse. The first occurs in the case of a 
 devise in fee tail to a person who dies in the lifetime of 
 the testator leaving issue living at the death of the testator 
 capable of inheriting the estate. (iSect. 3:2.) The second 
 oceui's in the case of a devise or bequest of more than a life 
 interest to a child or other issue of the testator who dies 
 in the lifetime of the testator leaving issue living at the 
 testator's death. (Sect. 33.) There is no lapse in either of 
 
BY TRANSFER BY ACT OP OWNER : MORTIS CAUSA. 287 
 
 these cases. The devise or bequest goes as if the original 
 devisee or legatee had died not before, but immediately 
 after, the testator. Accordingly, the devise or bequest is 
 treated precisely as if it had formed part of the devisee's or 
 legatee's estate at his decease. Thus, in the first case the 
 heir of the deceased devisee will take the estate tail by in- 
 heritance from the deceased devisee, not by purchase under 
 the will making the devise, which makes a considerable 
 difference in its descent subsequently. {See infra, p. 315.) 
 In the same way, in the second case, if the deceased 
 devisee or legatee died leaving a will containing a residuary 
 clause, the devise or legacy will go to the person or per- 
 sons entitled under such clause ; if the will contained no 
 such clause, or if the deceased devisee or legatee died 
 intestate, it will go as undisposed of — that is, if a devise 
 it will go to his heir-at-law, if a bequest among his next 
 of kin, subject in case the deceased devisee or legatee was 
 a married woman to the rights of her husband. {Eager v. 
 Funiival, 17 Oh. D. 115 ; and see infra, p. 810 et seq.) 
 
 (o) A deciw without words of limitation passes all the 
 interest testator could hy his will dispose of. (Sect. 2b, Wills 
 Act.) 
 
 As we have seen, a grant of freehold land without words 
 of limitation passes to the grantee a life estate merely. 
 (Under. & Stra. on Wills, pp. 197 et seq.) This rule of 
 construction gives a similarly expressed gift in a will the 
 largest meaning in accordance with the rule of construction 
 usually applicable to deeds of grants as well as wills — that 
 a grant is to be construed most strongly against the grantor. 
 As to the ajpplication of this rule to rentcharges and 
 annuities charged on land, .see infra, p. 334. 
 
 (d) The words " lands," and other lilie words, are prima 
 facie to uirlude all the testator's lands of any tenure. (Sect. 
 26, Wills Act.) 
 
 Before the Wills Act such an expression as " lands " 
 carried leaseholds only when the testator had no freeholds 
 to satisfy the gift. Now leaseholds, copyholds, mortgaged 
 
288 MODES OF ACQUIRING INTERESTS. 
 
 estates, lands oontraoted to be purchased, money held in 
 trust subject to a direction to lay it out in the purchase of 
 lands, &c. are included. [In re Duke of Cleveland's Settled 
 Estates, (1893) 8 Ch. 244; Under. & Stra. on Wills, 
 pp. 164 et seq.) 
 
 (e) " Die without issue " refers to a proximate, not an 
 ultimate, failure of issue. (Sect. 29, Wills Act.) 
 
 Before the Wills Act " die without issue " was held to 
 refer to an ultimate failure of issue — i.e., a failure either at 
 the death of the devisee or at any subsequent time. An 
 estate to continue during the grantee's life, and as long as 
 he shall have issue, is a fee tail ; and as the gift over was 
 not to arise till its natural determination, such gift over 
 was only a remainder which the tenant in tail could bar. 
 Since the Wills Act, such an expression is to be construed 
 as referring to a proximate failure of issue — i.e., a failure 
 at the death of the devisee. The effect of this is to turn 
 the gift over to an executory limitation—that is, the devise 
 is a limitation in fee tail to the devisee, subject to a con- 
 dition shifting the estate over to another at the devisee's 
 death should he not have issue then living. Here the 
 limitation over cannot be defeated by any act of the first 
 devisee's. In the case of a bequest subject to a similar 
 gift over, before the Wills Act, the gift over failed. Since 
 the Wills Act, the legatee takes an absolute interest, sub- 
 ject to an executory bequest over should he not have issue 
 living at his death. (Under. & Stra. on Wills, pp. 226 
 et seq.) 
 
 Kinds of Leg'acies. — Legacies are specific, demonstrative, 
 or general. A legacy is specific when it is of a particular 
 thing ; it is demonstrative when it is payable out of a 
 particular fund ; it is general when it is neither of a 
 particular thing nor payable out of a particular fund. 
 (Strahan's Eq. pp. 508, 509.) 
 
 Specific legacies are liable to ademption ; that is, if the 
 testator sells or otherwise alienates the particular thing 
 
BY TKANSFER BY ACT OF OWNER : MORTIS CAUSA. 289 
 
 bequeathed, or if it be destroyed before his death, or if it 
 be so changed as not to answer the description in the will 
 {see In re Slater, (1907) 1 Ch. 665), the legacy is revoked, or 
 rather avoided, thereby. They may, in cases where the 
 thing given is not specifically identified, but merely gene- 
 rally described, be enlarged by additions to the thing 
 made before the testator's death. Thus, a gift of " all 
 my stock in the Midland Railway " will carry not merely 
 the stock held by the testator at date of will, but also any 
 acquired by him afterwards and held by him at his death. 
 Again, they are not liable to abate on a deficiency of assets 
 to pay all legacies given by the wiU. Thus, if a testator 
 bequeaths his leasehold house to A., his grey horse to B., 
 and 1,000/. apiece to C, D. and B., if after payment of 
 his debts enough money is not left to pay C, D. and E. 
 each 1,000/., these legatees have no claim to a share of 
 the specific legacies to A. and B. Lastly, specific legacies 
 carry with them any income accruing from them from the 
 testator's death. 
 
 Demonstrative legacies are not adeemed by the aliena- 
 tion by the testator, during his life, of the fund or stock 
 out of which they are primarily payable, nor can they be 
 enlarged by additions made to that fund by the testator 
 during his life. The alienation of the fund by the testator 
 during his life merely turns them from demonstrative into 
 general legacies. If it remains at his death, they continue 
 demonstrative, and as such are not liable to abate if the 
 fund be sufficient to pay them in full, and they carry 
 income if the fund produces income. 
 
 General legacies are simple legacies payable out of what 
 remains of the testator's estate after satisfaction of his 
 debts, specific legacies, and demonstrative legacies. The 
 commonest example of them is the pecuniary legacy — 
 " I bequeath 1,000/. to B.,'' without more. They are not 
 liable to ademption ; they cannot be enlarged by additions 
 to the general estate, except they are residuary in their 
 character ; they are liable to abate ; and, as a general rule, 
 
 s. u 
 
290 MODKS OF ACQUIRING INTERESTS. 
 
 they carry interest only from tlie end of the executor's 
 year, or from the time fixed in the will for their payment. 
 There are three exceptions to this. Interest is payable 
 from the death of the testator on legacies — 
 
 (a) In satisfaction of a debt {In re Battenberri/, Ray v. 
 
 Grant, (1906) I Ch. 667) ; 
 
 (b) To children for whom they are the sole provision ; 
 
 (c) Charged on land. 
 
 With regard to the second of these, the only interest 
 payable is so much as is necessary for the maintenance of 
 the children. {In re Bowlby, Boidby v. Boidby, (1904) 
 2 Ch. 685.) 
 
 With regard to the last, it is to be noted that legacies 
 are not payable out of land unless they are expressly 
 charged upon it. When a legacy is charged on a specific 
 piece of land, it is itself a specific legacy, and on sale of 
 the land charged before the death of the testator, it is 
 adeemed {Neichold v. Roadhiight, 1 R. & My. 677), and 
 on the death of the legatee after the testator, but before 
 payment and before the end of the executor's year, it lapses 
 for the benefit of the land on which it was charged. 
 
 It is to be noted, further, that there is no division of 
 devises similar to this division of legacies into specific, 
 demonstrative, and general. All devises are in their 
 nature specific — even residuary devises. {Lancefield v. 
 Icjgvldcn, 10 Ch. App. l;J6.) 
 
 Position of Executors.' — At common law, as we have 
 already pointed out, an executor, qua executor, had nothing 
 to do with the freehold lands devised in the will of which 
 he was executor. That will might vest these lands in him, 
 or it might give him a power of sale over them for the 
 purpose of raising funds to pay the testator's debts or 
 legacies ; but such rights as he thus took he took as devisee, 
 and not as executor. 
 
 To a will of personalty, on the other hand, an executor, 
 or an administrator with the functions of an executor, was 
 
BY TRANSFER BY ACT OF OWNER : MORTIS CAUSA. 291 
 
 always absolutely necessary. Accordingly, when through 
 any cause there was no executor, or none able or willing to 
 act, the Court appointed an administrator to act in his 
 stead. Such an administrator is called an adminutrator 
 cuiji tedcnnento nnnexo — i.e., with the will annexed. The 
 person usually appointed in any of ' these oases is the 
 residuary legatee. 
 
 In England, this difference in the executor's position 
 under wills of realty and wills of personalty is abolished as 
 to the wills of persons dying on or after the 1st January, 
 1898. By the Land Transfer Act, 1897, a testator's 
 executors are made his real representatives, and his real 
 estate is to be administered by his exeoators precisely as if it 
 were a chattel real ; and all the powers, rights, duties, and 
 liabilities of an executor in respect of personal estate shall 
 apply to real estate so far as the same are applicable as if 
 that real estate were a chattel real vesting in them, save 
 that it shall not be lawful for some or one only of several 
 executors without the authority of the Court to sell or 
 transfer real estate. (Sect. 2 (2) ; In re Pawley and 
 L'liidoii and Provincial Bank, (1900) 1 Ch. 58.) 
 
 A limited or special kind of administration with the 
 will annexed is granted when the executor appointed by 
 the will becomes lunatic before accepting or disclaiming 
 the office. The person appointed is either the lunatic's 
 committee — i.e., guardian — or the residuary legatee {aee 
 Part VII.) ; and again, where the sole executor under the 
 will is an infant, the person usually appointed is the 
 infant's guardian, and he acts until the infant comes of 
 age. {See Part VII) In the latter case the adminis- 
 trator is called administrator durante minore cetate. 
 
 An administrator ad colligendum bona defuncti is ap- 
 pointed in any necessary case for the purpose not of 
 administering the estate, but of keeping the goods in safe 
 custody. 
 
 In all these cases, save the last, the administrator cum 
 testamento annexe is practically an executor. The chief 
 
 u2 
 
292 MODES OF ACQUIRING INTERESTS. 
 
 differences are that he does not derive his authority from 
 the will as an executor does, and therefore he has no right 
 to interfere with the estate till appointed by the Court, 
 whereas the executor's right arises immediately upon the 
 death of the testator; and that his office on his death 
 before the administration is complete does not descend to 
 his executor as an executor's office does. 
 
 Duties of Executors.— Stated shortly, the chief duties of 
 an executor are to bury the testator in a manner suitable 
 to his estate, to prove his will, to call in his personal estate, 
 to pay his debts, to assent to the specific legacies, to pay 
 the demonstrative and general legacies, and to hand over 
 the residue of the testator's estate to the residuary legatee, 
 if there be one, or to distribute it among the testator's 
 next of kin if no residuary legatee be appointed by the will, 
 or if the residuary legatee so appointed has predeceased the 
 testator. 
 
 The assets of the testator are applicable to these purposes, 
 much in the order in which they are enumerated above. The 
 first charge upon the assets is for funeral and testamentary 
 expenses of deceased. Then follow expenses properly in- 
 curred in calling in the estate. Then, before legacies of 
 any kind are satisfied, all the testator's debts must be paid. 
 These debts are payable in a certain order, specialty 
 Crown debts coming first and debts due on voluntary bonds 
 last. It is only after all the debts have been paid or pro- 
 vided for that the executors are justified in assenting to the 
 specific legacies or paying the pecuniary bequests. 
 
 Eights of Executors. — For the purpose of enabling 
 executors to administer estates quickly and inexpensively, 
 very large powers are now given them. Of these, the most 
 important are as follows : — By the Conveyancing Act, 
 1881, s. 37, now repealed and re-enacted by the Trustee 
 Act, 1893, s. 21, executors may (a) pay the testator's debts 
 on whatsoever they consider sufficient evidence of their 
 
BY TRANSFER BY ACT OF OWNER : MORTIS CAUSA. 293 
 
 existence ; (b) accept a composition for debts due to tbe 
 estate ; (c) allow time for tbe payment of sucb debts ; 
 (d) compromise or submit to arbitration all debts, accounts, 
 or claims against tbe estate. By the Land Transfer Act, 
 1897, s. 2 (2), tbey may sell tbe testator's realty for tbe pur- 
 pose of paying bis debts ; but to do so, all tbe executors, in- 
 cluding tbose who bave not proved, but not including of 
 course tbose wbo bave renounced probate and so ceased to be 
 executors, must join in tbe sale. [In re Pmcley and Loiuhni 
 and Provincial Bank, supra ; In re Cohen'' s Executors, (1 902) 
 1 Ch. 187.) By tbe Law of Property Amendment Act, 
 1859, ss. 27 and 28, tbey can convey a lease or otber property 
 subject to a rent, covenants, or agreements, after satisfying 
 all liabilities tben accrued and setting aside a fund to 
 satisfy liabilities wbicb may arise in tbe future, and tbereby 
 free tbemselves from all future liability as to such rentj 
 covenants, or agreements. And by tbe same Act, tbey 
 can advertise for creditors of the testator to send in their 
 claims within a certain reasonable time, and after that 
 time has elapsed they may distribute tbe estate amongst 
 those who have sent in their claims and the legatees, with- 
 out being personally responsible to any creditor who has 
 not sent in his claim. {In re Bracken, Boughti/ v. Townson, 
 42 Ch. D. 1. See Strahan's Wills, pp. 103—107.) 
 
 Besides these statutory powers, executors have other 
 rights as to the payment of debts of considerable im- 
 portance. Thus, they are entitled out of the legal 
 assets of the testator which bave actually come into 
 their hands as executors [Pii/iuan v. Meadoivs, (1901) 
 I Ch. 233) to pay themselves debts owed to them by the 
 testator before paying the debts of other creditors of equal 
 degree. This is called an executor's right of retainer. 
 Again, among creditors of equal degree, they can prefer 
 one to another. (In re Samson, Robliins v. Alexander, 
 (1906) 2 Ch. 584.) Moreover, they can, if they please, pay 
 any debt due by tbe testator though barred by the Statutes 
 of Limitation, provided an action to recover it had not 
 
294 MODES OF ACQUIKING INTERESTS. 
 
 been defended and judgment given against the creditors 
 {^ilidgey v. Midgey, (1893) ■', Ch. 282) ; or provided there 
 has been no administration decree [Sheuiii v. Vanderhorst , 
 1 Russ. & IT. 347), or the residuary legatee has not 
 obtained an order of the Court restraining them from so 
 doing. [In re Wenhran, Hiint-f. Wenham, (1892) 3 Ch. 59.) 
 An executor is not entitled to carry on the testator's business, 
 unless he is expressly authorized to do so by the will ; and 
 if he does carry it on without such authority, he does so at 
 his risk. If, however, he is authorized to carry it on, and 
 if the testator's creditors as^sent, he is entitled to an indem- 
 nity out of the estate for all debts contracted by him in 
 properly carrying on the trade. {Doicse and of hers v. Gorton 
 and others, (1891) App. Cas. 190; and see In re Rayhould, 
 Rayhould^. Turner, (190U) 1 Ch. 199.) 
 
 As between the beneficiaries and the creditors of the 
 testator, the latter are entitled to have their debts satisfied 
 out of any part of the testator's estate. It is all liable for 
 the testator's debts, and creditors who have obtained judg- 
 ment for their debts are entitled to seize in execution 
 whatever part of it is most convenient to them to seize. 
 But as between the beneficiaries themselves the estate is 
 liable in a regular order. [See Strahan's Eq. Book III.) 
 That order is as follows : — 
 
 (1) Personalty not disposed of by the will or disposed 
 of by way of residue, and personalty over which 
 the deceased has exercised a general power of 
 appointment by a residuary clause in his will. 
 {Williams Y. Williams, (1900) 1 Ch. lo2.) 
 (^2) Real estate devised for the payment of debts. 
 
 (3) Real estate not disposed of. 
 
 (4) Real estate disposed of, but charged with debts. 
 
 (5) General legacies. 
 
 (6) Devises not charged with debt and specific legacies. 
 
 (7) Realty or personalty over which the deceased has 
 
 exercised specifically a general power of appoint- 
 ment. 
 
BY TRANSFER BY ACT OF OWNER : MORTIS CAUSA. 295 
 
 (8) The paraphernalia of the widow ; i.e., her necessary 
 clothing and personal ornaments given to her 
 by the deceased, not absolutely, but to wear as 
 his wife. {TasJier v. Tasker, (1895) P. 1.) 
 The beneficiaries whose interests come under any of the 
 later of these heads are entitled, as against the benefi- 
 ciaries whose interests come under earlier heads, to insist 
 that the parts of the estate included under those earlier 
 heads shall be exhausted in the payment of the testator's 
 debts before their interests under the will are touched. 
 And if a creditor seizes anything coming within a later 
 head— e.(/., a specific legacy — the beneficiary who would 
 have been entitled to that thing can claim the value of 
 it from the beneficiaries liable before him, unless their 
 interests have already been entirely swept away. It is to 
 be noted that the Land Transfer Act, 1897, makes no 
 diiference in the order of liability between beneficiaries. 
 (Sect. 2 (3).) 
 
 Sub-sec I'lON 2. 
 
 TRANSFER BY OPERATION OF LAW. 
 
 PAGE 
 
 Devolution 296 
 
 PAGE 
 
 Part A. Devolution inter vivos . 296 
 Part B. T)Qwo\\it\oia. mortis eausd 307 
 
 Devolution. — Transfer of ownership by operation of law 
 may for brevity be called devolution. Devolution, then, 
 like alienation (of which, indeed, it is only a species — 
 involuntary alienation), may be divided according as the 
 devolution may take place during the life of the owner 
 whose interest is transferred or can only take place on his 
 death. In the former case it may be called devolution 
 inter vivos, and in the latter, devolution mortis causa. 
 
296 MODES OF ACQUIRING INTERESTS. 
 
 Part A. Devolution inter vims. 
 
 PAOE 
 
 Devolution inter vivos 296 
 
 [a.) Judgment 296 
 
 PAGE 
 
 (b.) Bankraptcy 297 
 
 (e.) Long Possession 303 
 
 Devolution inter vivos, — A devolution of ownersliip inter 
 vivos may take place in consequence of (a) a judgment 
 being given against the owner ; (b) the bankruptcy of the 
 owner ; (c) or long possession against the owner. 
 
 (a) Judgment. — Actions at law or in equity may be 
 either for the recovery of a particular thing, or for the 
 recovery of a sum of money. Now in neither of these 
 cases can the judgment itself be said, as a rule, to transfer 
 the ownership of anything. In the first instance, all that 
 the judgment does is to determine which of the parties is 
 legally entitled to a certain thing. It does not transfer, 
 but ascertains, the ownership. Exceptions to this formerly 
 occurred in the case of recoveries, and may still be con- 
 sidered as occurring in foreclosure actions. In the second 
 instance, the judgment merely creates, or renders enforce- 
 able, a debt as between the parties to it. The enforcement 
 or execution of the judgment may, however, in this 
 instance, result in a transfer of ownership. The person 
 against whom judgment has been recovered may hand 
 over money to the other party in satisfaction of it, or his 
 goods and leaseholds may be seized by the sheriff under a 
 writ oi fieri facias, or his freeholds may be extended under 
 a writ of elegit. Where goods are seized they must be 
 sold; but where freeholds are extended under a writ of 
 elegit, they are valued and then handed over by the sheriff 
 to the judgment creditor, who acquires thereby a chattel 
 interest in them till his debt is paid. 
 
 Two other cases in which the carrying out of a judg- 
 ment or order of the Court may transfer the ownership of 
 
BY TRANSFEK BY OPERATION OF LAW : INTER VIVOS. 297 
 
 a thing are (1) when a sale is made by the order of a 
 Court of competent jiu'isdietion ; (2) when a sale is made 
 by the high bailiff of a County Court in execution of a 
 judgment. The peciiliar characteristic of both of these is, 
 that the purchaser takes a good title to the thing sold, to 
 whomsoever it belongs. (As to sales by order of a Court, 
 see sect. 21 (2), Sale of Goods Act, 1893 ; and as to sales 
 by high bailiffs of County Courts, see Goodlock v. Cousins, 
 (1897) 1 a B. 568.) 
 
 (b) Bankruptcy. — When a person is unable or unwilling 
 to pay his debts, he may, on the petition of himself or of a 
 creditor of his, be adjudicated bankrupt. The effect of 
 such an adjudication is that all his property, whether 
 realty or personalty, and whether corporeal or incorporeal 
 — save only a right of action for a tort to his person {see 
 infra, p. 345) — becomes vested in the trustee or assignee 
 in bankruptcy. Thus there is a universal succession inter 
 vivos, and accordingly bankruptcy must be ranked, like 
 judgment, as a mode of acquiring title to things. 
 
 At the same time, just as judgment in an action at 
 law is a step towards enforcing payment of a particular 
 debt, so bankruptcy is a step towards enforcing payment 
 of debts generally. As such it does not properly belong 
 to the law of property, but rather to the law of actions. 
 It will be sufficient, then, to give here a very slight sketch 
 of the law on the subject. 
 
 The law as to bankruptcy in England and Ireland 
 differs. In England it now depends primarily on the 
 Bankruptcy Act, 1883, and the later Acts amending it — 
 more especially the Bankruptcy (Discharge and Closure) 
 Act, 1887, the Preferential Payments in Bankruptcy Act, 
 1888, and the Bankruptcy Act, 1890. These Acts, how- 
 ever, do not apply to Ireland. The law there depends 
 primarily on the Irish Bankrupt and Insolvent Act, 1857, 
 and the Bankruptcy (Ireland) Amendment Act, 1872. 
 The law as enacted by these statutes roughly corresponds 
 
298 MODES OF ACQUIRING INTERESTS. 
 
 to the English law of bankruptcy before the passing of 
 the Bankruptcy Act, 1883. 
 
 For brevity, the different Acts will be referred to simply 
 by their date, and when the Act is not mentioned, but 
 merely a section is referred to, the section will be of the 
 Bankruptcy Act, 1883. 
 
 In both countries, to give the Court of Bankruptcy juris- 
 diction, it is necessary that the debtor should be guilty of 
 an act of bankruptcy. In England a debtor commits an act 
 of bankruptcy if he (a) makes an assignment of property 
 in trust for creditors generally ; (b) makes a fraudulent 
 conveyance of property ; (c) makes a conveyance of pro- 
 perty which would be a fraudulent preference if the debtor 
 were adjudged bankrupt [see infra, p. 302) ; (d) departs 
 from or remains out of England, departs from his dwell- 
 ing-house, or absents himself in any other way, or keeps 
 house with intent to defeat or delay his creditors ; (e) has 
 his goods seized in execution and sold ; (f) files a declara- 
 tion of insolvency, or presents a petition in bankruptcy ; 
 (g) is served with a bankruptcy notice requiring him to 
 pay a debt for which judgment has been recovered, and 
 fails to pay within seven days of service thereof ; (h) gives 
 notice to his creditors that he is about to suspend payment 
 of his debts. (Sect. 4, Bankruptcy Act, 1883.) To make 
 any of these acts an act of bankruptcy on which a petition 
 can be based, it must have been committed within three 
 months of the petition in question. (Sect. 6.) 
 
 In Ireland the law is somewhat different. In the first 
 place, the distinction between trader and non-trader still 
 exists there. Departure from dwelling-house, or otherwise 
 absenting himself, and keeping house with intent to delay 
 or defeat creditors, and seizure and sale of goods, are acts 
 of bankruptcy in Ireland only when the debtor is a trader. 
 In the second place, instead of procedure by bankruptcy 
 notice, there is a proceeding by debtor's summons. Any 
 creditor (not necessarily a judgment creditor) to whom at 
 least 20^. is due, and who has made reasonable efforts to 
 
BY TRANSFER BY OPERATION OF LAW: INTER VIVOS. 290 
 
 obtain payment and failed to do so, may apply to the 
 Court for such a summons. The debtor has then a limited 
 time (seven days for a trader, twenty-one days for a non- 
 trader) within which he may apply to the Court to have 
 the summons dismissed ; if it is not dismissed, or if the 
 debtor does not satisfy the creditor's claim, the creditor 
 can apply to the Court to have the debtor adjudicated 
 bankrupt. (Sect. 30, Act 1872.) Lastly, the act of 
 bankruptcy may occur any time within six months of the 
 petition. 
 
 On the commission of an act of bankruptcy, any creditor 
 of the debtor may petition the Court to adjudicate him 
 bankrupt, subject to two conditions. The debt due to the 
 petitioning- creditor must have existed at the time the 
 act of bankruptcy was committed, and it must be for an 
 unsecured sum of at least 50/. (Sect. 6.) In Ireland, 
 the debt on which an adjudication is founded must be 
 at least ■iOl. (sect. 20, Act 1872), although, as has been 
 said above, a creditor to the amount of only 20/. can 
 initiate proceedings by debtor's summons, and two or 
 more creditors are apparently allowed to join in making 
 up the necessary 40/. 
 
 If the bankruptcy petition be not dismissed, the result 
 is that, in England, a receiving order is made against the 
 debtor vesting the management of his affairs in the official 
 receiver. (In Ireland he is at once adjudged bankrupt.) 
 After the receiving order is made, a meeting of the 
 debtor's creditors is called. The debtor submits to it a 
 statement of his affairs, he is subjected to a public 
 examination, and, if he has any proposal to make, it is 
 submitted to his creditors for their approval. If the 
 creditors pass a resolution that the debtor should be 
 declared bankrupt, or if they pass no resolution, or if they 
 do not meet, or if his jDroposal (if any) be not approved 
 by the creditors and the Court, the debtor is adjudged 
 bankrupt. (Sect. 20.) 
 
 On adjudication, the following vest immediately and 
 
300 MODES OP ACQUIRING INTERESTS. 
 
 without conveyance, in England, in the official receiver, 
 or (if one be appointed) in the trustee appointed by the 
 creditors (sect. 54) ; in Ireland, in the official assignee : — 
 
 (a) All the land, whether freehold or leasehold, and all 
 
 the goods and chattels belonging to the debtor at 
 the date of the act of bankruptcy : 
 
 To this there are two exceptions : (1) Property 
 held by the debtor as trustee ; (2) Tools of his 
 trade, together with necessary wearing apparel 
 and bedding for himself, his wife and family, to 
 a value altogether of not more than 20/. : 
 
 (b) All debts due to the debtor : 
 
 (c) All remedies for breach of contract and for torts, 
 
 save torts against the person of the debtor : 
 
 (d) The right to execute a power which the bankrupt 
 
 could have exercised for his own benefit : 
 
 (e) As long as the bankrupt remains undischarged, all 
 
 property which may come to him by purchase, 
 devise, bequest, descent, or in any other way : 
 (/) All goods not belonging to the bankrupt, but being 
 at the commencement of the bankruptcy in the 
 possession, order, and disposition of the bank- 
 rupt, in his trade or business, by the consent and 
 permission of the true owner under such circum- 
 stances that the bankrupt is the reputed owner 
 / thereof. Things in action, save debts due to the 
 bankrupt, however, do not come within this pro- 
 vision. (Sect. 44, Bankruptcy Act, 18^o.) 
 The trustee, however, if he finds that any propeity 
 which belonged to the bankrupt is burdened with onerous 
 covenants, or that any contracts made by him are un- 
 profitable, may disclaim them within twelve months after 
 the first appointment of a trustee ; but the trustee cannot 
 disclaim a lease without the consent of the Court, and he 
 cannot disclaim any property where he has declined or 
 neglected to disclaim it for twenty-eight days after he has 
 been applied to in writing by any person interested in the 
 
BY TRANSFER BY OPERATION OF LAW : INTER VIVOS. 301 
 
 property requiring Mm to decide wliether he will disclaim 
 or not, and if he does not disclaim a contract within such 
 time after such notice, he will be taken to have adopted it. 
 (Sect. 55, amended by sect. 13, Bankruptcy Act, 1890 ; nee 
 In re Cohen, (1905) 2 K. B. 704.) The effect of such 
 disclaimer is to free the bankrupt's estate from any future 
 liability under the covenants or contracts, and the persons 
 injured by such disclaimer are creditors of the bankrupt's 
 to the extent of such injury. 
 
 Not merely does the adjudication divest the bankrupt of 
 all his property and proprietary rights, but it also renders 
 invalid certain dispositions made by him before his bank- 
 ruptcy. Thus, if he has made a voluntary settlement — 
 that is, a settlement without valuable consideration to 
 support it — within two years of his bankruptcy, it is void 
 ipso facto on his becoming bankrupt ; and if he made it 
 more than two but less than ten years before the bank- 
 ruptcy it will be void, unless he can show he was able to 
 pay his debts at the time he made it without the aid of the 
 property settled. (Sect. 47, Bankruptcy Act, 1883.) The 
 settlement, however, is void only from the date of the 
 bankruptcy. If anyone has acquired bona fide and for 
 value an interest in the property included under the settle- 
 ment before the trustee's title arose, that interest will be 
 good against the trustee. [In re Carter and Kenderdine^s 
 Contract, (1897) 1 Oh. 776.) 
 
 Again, if he has made a contract or covenant in con- 
 sideration of marriage for the future settlement on his wife 
 or children of any money or property in which he had not, 
 at the date of his marriage, any estate or interest, vested 
 or contingent, in possession or remainder, on his becoming 
 bankrupt before the property or money has been actually 
 transferred or paid pursuant to the contract or covenant, 
 the contract or covenant will be void as against his trustee 
 in bankruptcy. 
 
 Neither of these provisions applies to a settlement on his 
 wife or children, made by the bankrupt, of money or 
 
302 MODES OF ACQUIRING INTERESIS. 
 
 property which has accrued to him in right of his wife 
 (sect. 47, Bankruptcy Act, 18^i3) ; and in Ireland neither 
 of them applies, except where the hankrupt is a trader. 
 {Sect. 52, Act of 1872.) 
 
 Again, if the bankrupt has within three months pre- 
 ceding the presentation of the petition on which he was 
 adjudged hankrupt, and when unable to pay his debts as 
 they became due out of his own moneys, transferred any 
 property, made any payment, taken or suffered any 
 judicial proceeding, or incurred any obligation for or in 
 trust for any creditor with the view of giving such creditor 
 a preference over the other creditors, such transfer, pay- 
 ment, judicial proceeding, or obligation is to be fraudulent 
 and void as against the trustee in bankruptcy ; provided 
 always, that the rights of persons buying in good faith 
 from such creditor shall not be affected. (Sect. 48, Bank- 
 ruptcy Act, 1883.) 
 
 It is not necessary here to enter into the administration 
 of the bankrupt's estate. Suffice it to say, that it is the 
 duty of the trustee or assignee to realise it as cheaply and 
 as expeditiously as possible, and the bankrupt is bound to 
 give him every assistance in his power so to do. From 
 time to time, as the estate is realised, and subject to certain 
 preferential payments, and to costs of the bankruptcy, iu- 
 stalments of, or dividends upon, their debts are paid to the 
 creditors until the whole estate is thus disposed of. The 
 debtor can apply to the Com-t for his order of discharge (in 
 Ireland, a certificate of conformity) — that is, his relief from 
 the disabilities of bankruptcy. This order the Court may 
 refuse altogether, or may suspend for a time fixed by it, in 
 case the debtor has been guilty of practices specified in the 
 Bankruptcy Act, s. 28, or it may grant it subject to con- 
 ditions ; as on condition that the bankrupt consents to 
 judgment being entered against him for the unpaid balance 
 of his debts ; or it may grant it immediately and without 
 conditions, upon coming to the conclusion that the bank- 
 
BY TRANSFER BY OPERATION OF LAW : INTER VIVOS. 303 
 
 ruptcy was due to misfortune, without any misconduct on 
 his part. (Sect. 82.) 
 
 (c) Long Possession. — A person in possession of a thing 
 of which he is not the owner is entitled to retain possession 
 of it against every one except the true owner. {Armori/ v. 
 Dflamirie, 1 Strange, 504 ; 1 Sm. L. 0.) This rule applies 
 whether the thing in question is land or goods. When, 
 however, it is land, a further rule applies. In that ease, 
 if the person in possession retains possession for a certain 
 period without acknowledging the owner's title, his posses- 
 sion will draw to it the ownership ; in other words, the 
 title of the true owner will he transferred by lapse of 
 time to the person in possession of the land. {See In re 
 Nesbitt 8c Pott's Contract, (1905) 1 Ch. 391.) In order 
 that possession may thus transfer the ownership from the 
 true owner to the person in possession, the possession need 
 not be adverse to the true owner — that is, the land need 
 not be held in a way inconsistent with the title of the true 
 owner ; but the true owner must be actually dispossessed 
 or have actually discontinued possession. [Littledale v. 
 Liverpool College, (1900) 1 Ch. 19.) Title thus acquired is 
 called title by long possession. {3Irir.s/iall v. Taylor, (1895) 
 1 Oh. 641.)i 
 
 As just stated, this rule applies only to the ownership 
 of, or rights over, land. Strictly speaking, there is no 
 
 ' The law as to acquisition of title to land by long possession 
 seems to have been much modified, as far as reo;istered land is 
 concerned, by sect. 12 of the Land Transfer Act, 1897 (re-enacting 
 and amending sect. 21 of the Act of 1875). It is hard to say 
 with confidence the exact effect of this section, but generally 
 it seems to be that while the registration of a person not in 
 possession as first proprietor can in no way prejudice the rights 
 of the person in possession of the land, yet a transferee for value 
 from such registered proprietor is entitled to recover the land from 
 the person in possession, however long he may have been in posses- 
 sion, unless that person has previously applied to the Court to have 
 the register rectified, and has himself registered as proprietor in 
 place of such first registered owner or transferee. (See Briokdale & 
 Sheldon's L. T. Acts, p. 302.) 
 
304 MODES OP ACQUIRING INTERESTS. 
 
 such thing- as title by long possession to goods. Mere 
 length of possession, without acknowledgment of the true 
 owner's title, does not transfer the ownership of goods 
 from the true owner to the person in possession of them. 
 {Daicliins v. Loi-d Penrhj/n, 4 A. 0. 61.) Under the 
 Limitation Aot^ (21 Jao. I. c. 16, s. 3), however, much 
 the same result is produced by a provision which bars 
 actions for the recovery of goods — actions of irover and 
 detinue, as they were formerly called — after the lapse of 
 sis years. In order that this enactment may operate, the 
 possession of the goods must be adverse, that is, the 
 possessor must hold them with the intention of retaining 
 them against the true owner. {Pliilpoft v. Kelhj, 5 A. & E. 
 103.) And even then the property in the goods is not 
 changed by the statute, but the remedy for the wrongful 
 detention only is barred, and if the true owner obtains 
 possession of them without action, the person who had them 
 in his possession over six years has no right to recover them 
 from him. {Miller v. Bell, (1891) 1 Q. B. 468.) 
 
 In form, long possession of land is in English law 
 treated as if it were not a mode of acquiring ownership, 
 but merely, as in the case of goods, a limitation of actions 
 for its recovery. Thus, the Acts dealing with it are 
 always described as the Real Property Limitation Acts, 
 1833 and 1874 ; and their provisions take the shape of 
 prohibitions of actions for the recovery of land after the 
 lapse of a certain period from the date on which the right 
 to bring them first accrued. Yet, nevertheless, these 
 prohibitions have the effect of extinguishing the original 
 owner's title, and of creating a new one by usucapion 
 or prescription in the person in possession. (Sect. 34.) 
 The term " prescription" is used technically in English law 
 
 ' This statute never applied to Ireland. Similar provisions -n-ere, 
 however, contained in 10 Car. I. sess. 2, c. 6 (Ir.), which have now 
 been repealed and re-enacted by sects. 20 — 23 of the Irish Common 
 Law Procedure Act, 1853. 
 
BY TRANSFER BY OPERATION OF LAW: INTER VIVOS. 305 
 
 merely as describing the title under which easements and 
 profits a 2}i'endre may be aoquii-ed by long enjoyment.' 
 {See infra, p. 327.) 
 
 The law relating to limitation of actions as to real pro- 
 perty is now contained in the Real Property Limitation 
 Acts, 1833 and 1874, the latter of which Acts is an 
 amendment of the former, and is to be read with it. 
 Sect. 1 of the latter Act lays down the general rule that 
 no person shall make an entry or distress, or bring an 
 action or suit to recover any land or rent, but within 
 twelve years after the right to make such entry or distress, 
 or bring such action or suit, first accrued. Rent here 
 means rentoharge, not arrears of rent due under a lease. 
 {Grant v. Ellk, 9 M. & W. 113.) An acknowledgment in 
 writing, however, given by the person in possession of the 
 land to the true owner will prevent the operation of the 
 statute, and the receipt of rent payable by a tenant from 
 year to year, or other lessee, will be sufficient to prevent 
 the statute operating on his behalf. (Real Property 
 Limitation Act, 183-3, s. 14.) 
 
 Sect. 2 of the Act of 1874 deals with interests in 
 expectancy. The right to make an entry or distress with 
 regard to them is to be deemed to arise on their becoming 
 interests in possession by the determination of the par- 
 ticular estate. Where the owner of the particular estate 
 was out of possession, then the owner of the estate in 
 expectancy has only six years from the time when his 
 own interest came into possession, or twelve years from 
 the particular estate becoming an interest in possession, 
 whichever may be longer, to bring action. 
 
 The operation of the statutes, moreover, may be delayed 
 or prevented by the disability of the person claiming. 
 Disabilities within the statute are infancy, coverture, idiotcy. 
 
 1 Title to mines cannot be acquired by long enjoyment taking- 
 tie form not of possession of the mines, but merely of working the 
 minerals. [Thompson v. Hickman, (1907) 1 Oh. 550.) 
 
306 MOOES OF ACQUIRING INTERESTS. 
 
 lunacy, or unsoundness of mind. (Real Property Limita- 
 tion Act, 1874, s. 3.) Formerly, absence beyond the seas 
 also ranked as a disability, but this is now altered. (Sect. 4.) 
 Where disability exists, a further period of six years from 
 the removal of the disability, or from the death of the 
 person entitled, is allowed, provided the whole period does 
 not exceed thirty years. (Sect. 3.) Two further points 
 are to be noted with regard, to disability. Where a person 
 under disability dies, no additional time will be allowed 
 on account of the disability of any other person. (Act of 
 1833, 8. 18.) And if the person entitled was not under 
 disability at the time the right accrued, no subsequent 
 disability will affect the operation of the statute. 
 
 Another fact that may prevent or delay the operation of 
 the statute is the existence of concealed fraud. Where the 
 person who sets up the title by long possession [In re 
 McCallum, McCallum v. MvCaUum, (1901) 1 Oh. 143) has 
 obtained possession by secret fraud, then the twelve years 
 will be counted, not from the time when an action might 
 have been brought by the person rightfully entitled had 
 he known of the fraud, but from the time he discovered 
 the fraud, or might, with reasonable care, have discovered 
 it. (Act of 1833, s. 26.) 
 
 Lastly, the ordinary Statutes of Limitation, though 
 they apply to equitable interests in land (Act of 1833, 
 s. 24), do not apply to interests, whether in land or goods, 
 secured by an express trust. But mortgages made by way 
 of trust for sale are mortgages within sect. 7 of the Real 
 Property Limitation Act, 1874, and by sect. 10 of the same 
 Act, in the case of money or a legacy charged upon land 
 and secured by means of an express trust, the remedy as 
 against the land is barred just as if no trust existed. And 
 although a trustee cannot prescribe for land or goods held 
 by him as trustee, still actions for innocent breaches of 
 trust are now subject to limitation like actions for debt, as 
 we have abeady seen. {See supra, 2). 120.) 
 
 As has been said, the right to recover debts is barred 
 
BY TRANSFER BY OPERATION OF LAW: MORTIS CAUSA. 307 
 
 under muoh the same circumstances as title by long pos- 
 session is acquired. It will not be necessary, therefore, to 
 repeat what we have here said when referring- to what is, 
 strictly speaking, not acquisition of title, but merely limita- 
 tifin of action. To save recurrence to the topic, we have 
 put in Appendix F. a short table giving the periods of 
 limitation for claims to debts, legacies, rents, rentoharges, 
 and such like, besides the periods of limitation as against 
 the Crown and in other special cases, and also for the 
 acquisition of easements. 
 
 Part B. — Devolution mortis crnivu. 
 
 PAGE [ PAGE 
 
 Devolution mortis causd 307 [ (i.) Marriage 310 
 
 (a.) Escheat and Forfeiture . 307 | (c.) Intestate Succession 313 
 
 Devolution mortis causa. — Devolution mortis causd arises 
 where the ownership of a thing is transferred by operation 
 of law to a new owner in consequence of the death of its 
 previous owner. Between individuals, the new owner's 
 title to the thing in question may arise from the relation 
 of lord and tenant, or of husband and wife, or of common 
 ancestry having subsisted between him and the previous 
 owner. In the absence of such relationships, the Ci'own 
 may be entitled to the goods, and sometimes in defeasance 
 of them it may be entitled to both the land and goods, of 
 the deceased. It will not, however, be necessary or ex- 
 pedient to treat of devolution to the Crown separately 
 from devolution to a new private owner. 
 
 (a) Escheat and Forfeiture. — Escheat, as we have seen, 
 is an incident of fee simple ownership of land. When a 
 tenant in fee simple is attainted, or dies intestate and 
 
 x2 
 
308 MODES OF ACQUIRING INTERESTS. 
 
 without heirs, his fee simple lands escheat or revert to the 
 lord of whom he held them. 
 
 Strictly speaking, escheat is not always a title arising 
 mortin causa, since attainder, which causes it, may take 
 place during the tenant's natural life, though upon 
 attainder he became civilly dead. Practically, however, 
 attainder as a cause of escheat has ceased to exist. 
 Formerly, judgment of death by a Court of Common Law 
 whether followed by execution or not, abjuration of the 
 realm, or outlawry, caused attainder. Of these three causes 
 the last is the only one (if any) which is now effective, 
 abjuration of the realm being long obsolete, and judgment 
 of death no longer operating as a cause of attainder. 
 (Forfeiture Act, 1870.) 
 
 The usual cause of escheat now is the death of the 
 tenant intestate and without heirs. Failure of heirs most 
 commonly arises through the tenant being a bastard, and, 
 as such, incapable of having any heirs save heirs of his 
 body. Formerly, attainder also led occasionally to a failure 
 of heirs, as it caused what was called corruption of blood, 
 i.e., heirship) could not be traced through a person who 
 had been attainted. Corruption of blood, however, has 
 been abolished by the statute abolishing attainder on 
 judgment of death. 
 
 Escheat being an incident of tenure, when in default of 
 any mesne lord, the Crown takes escheated fee simple 
 lands, it takes them as lord paramount. Forfeiture, on 
 the other hand, has nothing to do with tenure. The 
 Crown there confiscates the tenant's land as part of the 
 penalty payable for a crime committed by him. 
 
 Forfeiture followed attainder, but, unlike escheat, it 
 applied not merely to the felon's land, but also to his 
 goods and chattels. If the attainder resulted from a con- 
 viction of high treason, the mesne lord's right to escheat 
 was defeated, and all the traitor's fee simple lands, and 
 to a certain extent his fee tail estates (see 26 Hen. VIII. 
 c. V6, s. 5), and all his goods and chattels, were forfeited 
 
BY TRANSFER BY OPERATION OF LAW : MORTIS CAUSA. 309 
 
 to the Crown. If the attainder resulted from a conviction 
 of felony merely, the felon's goods and chattels were for- 
 feited to the Crown ; but his fee simple lands escheated to 
 his lord subject — if he held under a mesne lord — to the 
 right of the Crown to the use and profits of the land for a 
 year and a day. The abolition of attainder, save in case 
 of outlawry, was accompanied by the abolition of the for- 
 feiture which resulted from it.' (Forfeiture Act, 1870.) 
 
 Formerly, aliens were not permitted to hold freehold 
 interests in land, or chattel interests of more than a certain 
 duration. (3'3 Hen. VIII. c. Itf, s. 23; 7 & 8 Vict. c. 66.) 
 If an alien violated this rule by taking a greater interest 
 than the law allowed, the interest so taken, on death of 
 the alien, or after investigation and ofSce found, whichever 
 first happened, became forfeited to the Crown. This has 
 now been altered, and an alien can hold any interest in 
 English land. (/;?//■«, jo. 380.) 
 
 Escheat was an incident of every legal estate in fee 
 simple, but it did not apply to equitable estates, as they 
 were not the subject of tenure. As a result, the legal estate 
 of a trustee, on his death without heirs or on his attainder, 
 escheated to the lord or Crown ; but on the death without 
 heirs, or on the attainder of a tenant in fee simple of an 
 equitable estate, his interest did not escheat — the trustee 
 or owner of legal estate as terre fenanf held the land dis- 
 charged of the trust. After being suspended by temporary 
 statutes, the escheat of a trustee's estate was finally 
 abolished by sect. 46 of the Trustee Act, 1850 [and see 
 now sect. 30, Conveyancing Act, 1881) ; and by sect. 4 of 
 the Intestates' Estates Act, 1884, equitable interests are 
 
 ' Forfeiture of both land and goods sometimes resulted from 
 convictions for other offences than treason and felony. (.S'ee 2 Bl. 
 Com. 267, 419.) These forfeitures, however, were- sanctioned by 
 particular statutes, not by the general law. This difference between 
 forfeiture of lands and goods may be noticed. The forfeiture of 
 lands related back, after conviction, to the date when crime was 
 committed ; forfeiture of goods applied only from time of con- 
 viction. 
 
310 MODES OF ACQUIRING INTERESTS. 
 
 rendered liable to escheat on the death of their owner 
 intestate and without heirs. The escheat appears to be to 
 the Crown. {In re Wood, Attuniei/- General v. Anderson, 
 (1896) 2 Ch. 696.) 
 
 (b) Marriage. — Before the Married Women's Property 
 Act, 1882, marriage ranked among the causes of a devolu- 
 tion of ownership tiiler vivos as well as mortis causa. Then 
 when a woman owning property married, the husband 
 immediately became entitled, unless his common law rights 
 were avoided by a settlement, to very large interest in her 
 realty and personalty. He was entitled to the rents and 
 profits of her freeholds during the coverture, and if such 
 freeholds were heritable, and he had issue born alive by 
 her who could inherit them, he was, in case she predeceased 
 him, entitled to a life estate in all of them of which she 
 was seised in possession at her death. This life estate was 
 called an estate bi/ the curtesy of England. As to her 
 leaseholds, he was entitled to them absolutely during the 
 coverture. He could alienate them without her consent 
 — a power which he did not possess over her freeholds ; 
 the latter could only be alienated by her consent, which 
 had to be acknowledged by her separately. Moreover, if 
 he outlived her, he was entitled to her leaseholds abso- 
 lutely. If, however, she outlived him, and he during the 
 coverture did not alienate them, they on his decease 
 survived to her independently of his will and debts. Her 
 goods and chattels — ohoses in possession — vested abso- 
 lutely and for all purposes in him immediately on the 
 maniage. Choses in action {sec infra, p. 344), on the 
 other hand, were like leaseholds ; they vested in the 
 husband during the coverture, and if allowed to remain 
 choses in action till the death of the husband or wife, they 
 then survived to the survivor. If the husband, however, 
 reduced them into possession during the coverture, they 
 then, being ohoses in possession, vested in him absolutely. 
 
 These common law rights of a husband were often 
 
BY TRANSFER BY OPERATION OF LAW: MORTIS CAUSA. 311 
 
 avoided by means of a settlement to the wife's separate 
 use. The effect of such a settlement was to deprive the 
 husband of all rights over the wife's property during her 
 life. Moreover, on her predeceasing him, if she left a will, 
 the property went under it precisely as if she had been 
 unmarried. If, however, she died intestate, the husband's 
 common law rights revived. He was entitled to an estate 
 by the curtesy in her freeholds, to her leaseholds and goods 
 absolutely, without taking out letters of adininistration of 
 her estate, and to her choses in action on taking out such 
 letters. 
 
 The effect of the Married Women's Property Act, 1882, 
 has practically been to make all the propeity of women 
 married since 31st December, 1882, and all the property 
 accruing since that date to women married before it, 
 the wife's separate estate without the necessity of a settle- 
 ment. (Sect. 1.) During the wife's life the husband 
 has no right to any share of or interest in the statutory 
 separate estate. She can deal with it as she pleases 
 without his consent, and if she lends it to him, she is 
 entitled to recover it back. If he predeceases her, it 
 remains her property ; if she predeceases him, it will go 
 under her will should she leave one, but should she leave no, 
 will, his common law rights revive. He is then entitled, 
 subject to her debts, to her goods and chattels real abso- 
 lutely, without taking out administration [S/niUoii v. Lam- 
 bert, 39 Ch. D. 626), to her choses in action on taking out 
 administration, and to an estate by the curtesy on her 
 heritable freeholds, provided he had issue born alive by 
 her who might have inherited them. 
 
 Marriage never entitled a wife to any interest in her 
 husband's lands or goods during the coverture. Unless, 
 however, where she had, before marriage, given up the 
 right in consideration of a jointure settled upon her 
 (27 Hen. YIII. c. 10), she was entitled, in case he pre- 
 deceased her, to doiver out of all the heritable lands the 
 legal interests in which had at any time during the cover- 
 
312 MODKS OF ACQUIRING INTERESTS. 
 
 ture been vested in her husband in severalty, and to which 
 any issue she might have had might possibly have been 
 heir. Her right to dower accordingly became a burden 
 upon the land, which remained upon it even though her 
 husband had sold the lands before his death, or even 
 though he devised them to someone else. By the Dower 
 Act, 1833, the law has been altered as to women married 
 since 1st January, 1831. A widow's right to dower is 
 now defeated by the alienation of the husband's lands 
 during his life or by his will (sect. 4), and it is subject 
 to all partial alienations, and all charges created by him 
 by any disposition or will, and also to all debts, incum- 
 brances, and contracts affecting his lands. (Sect. 5.) And 
 further, the widow's right may be defeated by a declara- 
 tion against dower made by the husband by deed or by 
 will. (Sects. 6, 7, and 8.) 
 
 Where the right is not defeated by any of these means, 
 a widow is still entitled to a life estate in one-third of 
 the heritable lands which her husband dies seised of or 
 entitled to (sect. 3, Dower Act), whether his interest in 
 them is legal or merely equitable. (Sect. 2.) If the 
 lands be subject to the custom of gavelkind, her right is 
 to a life estate in a moiety of them, but it continues only 
 so long as she remains unmarried and chaste. 
 
 As to his goods and chattels real on the death of a hus- 
 band intestate, these vest in the President of the Probate 
 Division of the High Court. The Court appoints someone 
 — usually the widow — to administer them. [See infra, 
 p. 314.) When the deceased's estate has been realized and 
 his debts paid, the widow is entitled, under the Statutes 
 of Distribution, 1670 and 1685, to one-third of the 
 residue absolutely, if the husband has left issue living at 
 his decease, or to one-half absolutely if he has left no such 
 issue. 
 
 Under the Intestates' Estates Act, 1890, the widow 
 of ■ a person dying childless and intestate since 1st Septem- 
 ber, 1890, is entitled to a first charge of 500/. upon his 
 
BY TKANSFEK BY OPERATION OF LAW: MORTIS CAUSA. 313 
 
 estate, payable rateably out of his net realty and person- 
 alty. {See In re Heath, Heath v. Widgeon, (1907) 2 Ch. 
 270.) This charge is over and above any share she may 
 be entitled to out of the residue of the estate, which residue 
 is to be treated, as far as her claims are concerned, as if it 
 were the whole net estate. The Act does not apply in 
 cases of merely partial intestacy. {In re Twigg, Txcigg v. 
 Black, (1892) 1 Ch. 579.) 
 
 (c) Intestate Succession. — We have already pointed out 
 the great difference which before the Land Transfer Act, 
 1897, characterized the operation of a will of lands and of 
 a will of goods. Much the same distinction appeared in 
 the devolution of land and goods under an intestacy. 
 Hitherto on the death intestate of a tenant in fee simple 
 or in fee tail, his lands vested immediately in his common 
 law or customary heir, or his heir of the body, according 
 to their tenure and his estate. The heir became at once 
 the owner of them without the intervention of the Courts 
 or the State. Indeed, they were vested in him more com- 
 pletely than they could be by an ordinary conveyance, 
 since a grantee can disclaim or refuse a gift by deed or 
 will ; but an heir could not disclaim a freehold coming 
 to him by descent. On the other hand, on the death 
 intestate of an owner of chattels real or personal, these 
 always vested, not in his next of kin, but in the President 
 of the Probate Division. (Court of Probate Act, 1858, 
 s. 19.) The Court handed them over to an administrator 
 whom it appointed by the grant to him of letters of 
 administration. The administrator then occupied much 
 the same position as an executor under a will. He 
 realised the assets of the deceased, paid his debts, and 
 then divided the surplus among his next of kin according 
 to the Statutes of Distribution. He has the same powers 
 of settling claims, and the same time — one year — for ad- 
 ministering the estate, as an executor. (Trustee Act, 1893, 
 e. 21.) 
 
314 MODES OF ACQUIRING INTERESTS. 
 
 In England, this difference in the devolution of realty 
 and personalty on the death of their owner is, 8,s far as 
 devolution to the administrators is concerned, now abolished 
 as to the estates of persons dying on or after the 1st 
 January, 1898. Eealty now devolves on the administra- 
 tors, who have the same rights over its administration as if 
 it were not pure realty, but a chattel real. The subsequent 
 devolution of realty will, however, remain unaltered, the 
 administrators being merely trustees for the persons who 
 are heirs to it by the common law or custom affecting it. 
 These are entitled to demand its conveyance to them by 
 the administrators at any time after the expiration of a 
 year from the intestate's death.' (Land Transfer Act, 
 1897, ss. 1, 2, and;3.) 
 
 These differences may be noticed between the office of 
 executor and that of administrator. The right of an 
 executor arises under the will, and therefore it dates from 
 the death of the testator. The right of an administrator 
 arises under the grant of the Court, and therefore it dates, 
 not from the death of the intestate, but from the grant. 
 On the death of an executor, his office survives to his 
 executor if he have one, but not to his administrator if he 
 dies intestate. On the death of an administrator, his oifice 
 becomes vacant until a new grant is made to some other 
 person. The new administrator is called administrator 
 de honk non, i.e., of the goods not administered by the 
 first administrator. 
 
 The common law rules governing the descent of 
 heritable freeholds were reduced to certain canons by 
 Lord Hale. They have, since then, been modified by the 
 Inheritance Act, 1833 (amended by the Law of Property 
 Amendment Act, 1859, ss. 19 and 20), which aj)plies to 
 
 ' It should be noted that while administrators can vest the intes- 
 tate's realty in the heir only by a regular conveyance, executors 
 cau transfer it to the devisees entitled under the will by a mere 
 assent to the devise as if it were a bequest of a chattel real, (/y; re 
 Pix, Plomhy v. StiUman, W. N. (1901) 165.) 
 
BY TEANSFER BY OPERATION OF LAW: MORTIS CAUSA. 315 
 
 the estates of persons dying on or after Ist January, 1834. 
 The distribution of the surplus of an intestate's personal 
 estate after payment of his debts is regulated by the 
 Statutes of Distribution, 1670 and 1685, as modified, as 
 regards the widow's share, by the Intestates' Estates Act, 
 1890, ah'eady referred to. We will endeavour to make 
 clear the difference between the two systems of succession 
 by stating the chief canons of descent, and contrasting 
 them with the analogous rules applying to personalty. 
 
 Before doing so, however, it may be well to point out 
 that the right to inherit freeholds and the right to claim a 
 share of an intestate's personalty depend equally on kin- 
 ship. In both cases, generally speaking, the rule is that 
 the nearest in blood shall succeed ; but in both cases (and 
 more particularly in inheritance) this rule is modified by 
 the special rules now to be stated. Degrees in kinship are 
 counted, as between lineal ancestor and descendant, by the 
 number of generations between them, and as between 
 collateral relatives by the number of generations from one 
 relative up to the common ancestor and down to the other 
 relative. Thus, for example, father and son are in the 
 first degree of kinship, grandfather and grandson in the 
 second, and so on. On the other hand, brothers also are 
 in the second degree — from one brother to the father being 
 one degree, and from father to the other brother a second ; 
 while uncle and nephew are in the third — first, uncle to 
 his father ; second, father to uncle's brother ; third, uncle's 
 brother to nephew. 
 
 We have already dealt with the widow's and widower's 
 rights in case of intestacy. We will therefore confine 
 ourselves now to the rights arising from kinship — that is, 
 blood relationship. 
 
 (a) Heritable freeholds : Deacerd is traced from the last 
 piii-chaser. 
 
 Personalty : The intestate is always the stoch of suc- 
 cession. 
 
 This rule as to heritable freeholds was introduced by 
 
316 MODES OF ACQUIRING INTERESTS. 
 
 sect. 2 of the Inheritance Act, 1833. The old rule was 
 that descent was to be traced from the last owner seised in 
 possession. 
 
 By " purchaser " is meant an owner who acquires in 
 any other way than by descent from some other owner or 
 by escheat, enclosure, or partition. (Sect. 1, Inheritance 
 Act, 1833 ; Co. Litt. lb.) Thus, A. buys Blackacre and 
 Whiteacre. He devises the former to B., who is also his 
 heir-at-law, but he dies intestate as to the latter, to which, 
 however, B., as his heir-at-law, succeeds by descent. On 
 B.'s death intestate, Blackacre, of which, as devisee, he 
 was purchaser (Inheritance Act, 1833, s. 3 ; Strickland v. 
 Strickland, 10 Sim. 374), will descend to his heir-at-law, 
 while Whiteacre, which came to him by descent, will 
 descend not to his heir, but to the heir of A., who may, of 
 course, be a different person. Notwithstanding this rule, 
 on the death intestate of a coparcener, the heir to be 
 sought is not the heir of the ancestor from whom the 
 coparcener inherited, but the heir of the coparcener. ( Cooper 
 V. France, 19 L. J. Ch. 313.) Thus, if a coparcener dies 
 leaving a son and a sister, daughter of the ancestor from 
 whom the deceased coparcener inherited, if descent were 
 traced from the ancestor as first pm-chaser, the deceased's 
 share would go equally between her son and her sister. 
 But in fact it goes entirely to the son. [Ibid.) And the 
 same rule applies in all cases. {In re Matson, James v. 
 Dickinson, (1897) 2 Ch. 509.) In such cases the old rule 
 applies, and the descent is traced, not from the last 
 purchaser, but from the last person seised of the land. 
 
 A limitation is placed on this rule by sects. 19 and 20 
 of the Law of Property Amendment Act, 1859. Where 
 there is a failure of the heirs of the last purchaser, then 
 descent may be traced from the person last entitled to the 
 land. Thus, if A. dies intestate, leaving freeholds de- 
 scended to him from his father, and his father had left no 
 blood relations save A., then, in order to prevent escheat 
 
BY TRANSFER BY OPERATION OF LAW: MORTIS CAUSA. 317 
 
 the freeholds would descend to A.'s heirs, if he had any — 
 that is, his relatives by his mother's side. 
 
 (b) Heritable freeholds : The inheritance descends in the 
 first place to the issue of the last purchaser in infinitum. 
 
 Personalty : The succession falls in the first place among 
 the issue of the intestate in infinitum. 
 
 It should be repeated here that these rules apply subject 
 to the widow's or widower's rights, which we have already 
 stated. {Supra, p. 310.) Thus, in the case of freeholds, if 
 the intestate left a widow or widower, the issue would take 
 subject to the widow's right to dower, or the widower's 
 right to an estate by the curtesy ; and in the case of per- 
 sonalty, the widow would be entitled to her third and the 
 widower to the whole estate, to the total exclusion of the 
 issue. Subject to this, in both heritable freeholds and per- 
 sonalty it is only in default of issue of the stock of descent 
 or succession that lineal ancestors or collateral relatives 
 have any claim.. 
 
 (c) Heritable freeholds : In default of the issue of the 
 last purchaser the inheritance descends to his nearest lineal 
 ancestor. 
 
 Personalty : In default of the issue of the intestate the 
 succession, falls in the first place to his father. 
 
 The rule here applicable to heritable freeholds is a new 
 one introduced by sect. 6 of the Inheritance Act, 1833. 
 The old rule was that freeholds could not lineally ascend, 
 and, therefore, they frequently went to a collateral relative 
 in preference to a lineal ancestor nearer in kin to the 
 propositus. 
 
 The new rule means that a lineal ancestor will now take 
 in preference to any collateral relative who, under the old 
 rule, could only have taken by tracing his descent through 
 the ancestor, or in default of descendants of the ancestor. 
 Thus the father is preferred to the brother, the grand- 
 father to the uncle, but not to the brother, since the brother 
 can take by tracing his descent through a nearer lineal 
 ancestor, i.e., the father. 
 
318 MODES OF ACQUIRING INTERESTS. 
 
 In the case of personalty the entire succession goes only 
 as far as the father. Should he be dead, then the 
 mother and brothers and sisters become entitled in equal 
 shares. 
 
 (d) Heritable freeholds : The male relatives of the last 
 purchaser are preferred to his female relatives of the same 
 degree. 
 
 Personalty : No preference to male relatices over female 
 relatives is shoicn except as regards the intestate's parents. 
 
 The rule of inheritance which gives preference to the 
 male over the female applies not merely to the issue of the 
 propositus, but also to his lineal ancestors and collateral 
 relatives. Thus, a son succeeds before an elder daughter ; 
 the son of a son before the son of a daughter ; the father 
 and all his relatives succeed before the mother or any of 
 her relatives ; the father's or mother's paternal relatives 
 before the father's or mother's maternal relatives, &c. 
 {Sect. 7, Inheritance Act, 1833.) 
 
 The female as compared with the male relatives are 
 placed at no such disadvantage in respect to claims to an 
 intestate's personalty save as regards the intestate'^ mother. 
 If the intestate has left no issue, as has been just pointed 
 out, the father is entitled to his whole personalty though 
 the intestate's mother be living ; if the father be dead the 
 mother, who is then the only relative in the first degree, 
 ranks only with the brothers and sisters of the intestate 
 who are in the second degree of kinship to him. 
 
 (e) Heritable freeholds : As between male relatives of the 
 name degree only the eldest inherits ; ichile all female relatives 
 of the same degree inlierit equally. 
 
 Personalty : All relatives of the same degree succeed 
 equcdly indepotdrntly of age or se.r, sid)Ject to their brini/ing 
 into hotchpot any advancement they may have received from 
 the intestate before his death. (Statute of Distributions, 
 1670, 8. 5.) 
 
 The custom of primogeniture, as the preference of the 
 eldest in the matter of inheritance is usually called, prob- 
 
BY TRANSFER BY OPERATION OF LAW: MORTIS CAUSA. 319 
 
 ably arose out of the feudal system. A characteristic of 
 that system was the identification of the ownership of land 
 with political and military power. This cannot easily be 
 divided among a number of persons, and accordingly the 
 land to which it was annexed was not divided either 
 as a rule. When, however, the descent was to women, 
 who in theory and law were incapable of exercising 
 political or military power, the reason for preventing the 
 division of the land disappeared, and they succeeded 
 equally as coparceners. 
 
 Before the introduction of the feudal system, the descent 
 appears to have gone to the males equally, as is now the 
 case in gavelkind lands. (Grlan. 1. 7, o. y.) Indeed, descent 
 to the eldest son was at first, even after the Conquest, con- 
 fined to lands in knight service. (2 Bl. Com. 216.) The 
 course of descent in gavelkind lands is, to all the sons 
 equally, in default of sons to all the daughters equally, in 
 default of daughters to all the brothers equally. If a son 
 or daughter is dead leaving issue the issue take their 
 parent's share. (Eob. Grav. 112, 115.) 
 
 The doctrine of hotchpot is now confined to the succes- 
 sion to personalty. Originally, however, it applied also to 
 realty. If land was given by an ancestor to a woman in 
 frankmarriage, and afterwards land descended from the 
 same ancestor to her in coparcenary with her sisters, before 
 she could claim a share of the inheritance she had to bring 
 into the division the lands in frankmarriage. (2 Bl. Com. 
 191.) At present in distributing the personalty of an in- 
 testate, land coming to one of the claimants as heir cannot 
 be taken into consideration. (Boyd v. Boyd, L. R. 4 Eq. 
 305.) Nothing need be brought into the estate of the 
 intestate, by the claimants to a share of it, but personalty 
 given by the intestate for their advancement or establish- 
 ment in life — not merely their support or education. 
 {Taylor v. Taylor, L. E. 20 Eq. 155.) 
 
 (f) Heritable freeholds : Representation by issue is un- 
 limited. 
 
320 MODES OF ACQUIRING INTERESTS. 
 
 Personalty : Representation by issue is unlimited only as 
 regards the descendants of the intestate, not being admitted at 
 all in the case of his collateral relatives, save only as respects 
 the representation of his deceased brothers and sisters by 
 their children where one or more brothers or sisters are 
 surviving. 
 
 " Representation by issue " means that the issue of a 
 deceased person who, were he alive, would be entitled 
 under the intestacy, are permitted to stand in his shoes 
 for the purpose of succession. Thus, if A. dies intestate, 
 leaving B. and C, two daughters, and D., the child of a 
 deceased son, D. will represent his or her dead father, and 
 be entitled to succeed to A's realty in preference to B. and 
 C, A.'s daughters. The same would have been the case 
 if B. and C. had been aunts of A.'s, and D. had been the 
 child of a deceased uncle. As to personalty, this principle 
 is recognized fully in the case of descendants of the intes- 
 tate. Thus, in the case given, A.'s personalty would be 
 divided between B., C, and D., the last mentioned taking 
 his father's share by representation. And the same would 
 be the case if B. and C. had been sisters of the intestate, 
 and D. the son of a deceased brother. But had B. and 0. 
 been aunts, and D. the son of a deceased uncle or aunt, B. 
 and 0. would have taken everything, and D. nothing. 
 After the children of brothers and sisters of the intestate 
 no representation is permitted among collaterals. All 
 relatives of the nearest degree to the intestate take the 
 whole net personalty among them to the exclusion of all 
 other relatives of a more remote degree. 
 
 Eelatives taking directly take per capita, that is, the 
 estate is divided among them by the head, while relatives 
 taking by representation take^jxv stirpes, that is, the parent's 
 share is divided among those who represent him. Thus, if 
 A. dies intestate leaving five children as next of kin, these 
 children take equally per capita. If, however, one child 
 had predeceased him, leaving five chi],dren, the four chil- 
 dren of A. would each have taken a fifth part of A.'s per- 
 
BY TRANSFER BY OPERATION OF LAW: MORTIS CAUSA. 321 
 
 sonalty, while the five grandchildren would have taken the 
 remaining fifth part — their parent's share — between them. 
 
 Representation does not arise among collaterals where 
 all entitled are of the same degree, and, accordingly, in 
 such ease each takes per capita. Thus, if A. dies intestate 
 lea^ring no brother living, but five nephews by one de- 
 ceased brother, and one nephew by another, the six 
 nephews will each take one sixth part of his personalty. 
 {Lhi/d V. Tench, 2 Ves. sen. 216.) 
 
 But this rule does not apply to descendants. If in the 
 last case the next of kin instead of being nephews had 
 been children of two sons of A., the estate would have 
 been divided into moieties, one going to the five children 
 of the one son, and the other to the only child of the 
 other son. {In re Natt, Walker v. Gammage, 37 Ch. D. 
 517.) 
 
 (g) Heritable freehold : Relatives of the half-Mood inherit 
 after relatives of the ivhole blood, where the common ancestor 
 is a male, and after the common ancestor ichere the common 
 ancestor is a female. 
 
 Personalty : No distinction subsists betioeen the half and 
 the whole blood as to their right to succeed. 
 
 The right of the half-blood to inherit was given by 
 sect. 9 of the Inheritance Act, 1833. Before that they 
 were totally excluded. This exclusion, like the preference 
 of the male relatives over the female, probably originated 
 in the ancient custom of regarding as the only legitimate 
 relationship that through males — agnatic relationship. 
 (Maine's Ancient Law, pp. 150—152.) 
 
 Another rule of descent applies to heritable freeholds 
 which can have no analogy applicable to succession to 
 personalty. This is as follows: — 
 
 In inheritance by female paternal ancestors, the mother 
 of the more remote male paternal ancestor and her 
 descendants shall be preferred to the mother of a less 
 remote paternal ancestor and her descendants ; and in 
 inheritance by the female maternal ancestors, the mother 
 
322 MODES OF ACQUIRING INTERESTS. 
 
 of the more remote male maternal ancestor and her heirs 
 shall be preferred to the mother of a less remote male 
 ancestor and her heirs. (Inheritance Act, 1833, s. 8.) 
 
 This rule is not of frequent application. It means, for 
 example, that if A. dies intestate, leaving no relatives 
 of his father's blood except his father's mother and his 
 father's father's mother, the latter will succeed to A.'s 
 freeholds in preference to the former. In the same way, 
 if A. had had no relatives of his father's blood, and none 
 of his mother's blood except her father's mother and her 
 father's father's mother, the latter would succeed in pre- 
 ference to the former. 
 
 The right of the Crown under an intestacy can only 
 arise when the intestate has left no heirs or next of kin. 
 In that case it is entitled to his heritable freeholds as lord 
 paramount in case there is no mesne lord. (Such is now 
 mostly the case, and it is always presumed to be the case 
 until the contrary is shown.) And the Crown is entitled 
 to his personalty, both legal and equitable, absolutely as 
 hona vacantia. It is, however, to be borne in mind that 
 the Crown takes subject always to the rights of the intes- 
 tate's widow or widower, should the intestate have left a 
 widow or widower. 
 
( 323 
 
 Part V. 
 RIGHTS OVER THINGS OWNED BY OTHERS. 
 
 PA&E 
 
 Corporeal and Incorporeal Property 323 
 
 Section I. — Rights ovee Land owned by Othees 324 
 
 Section II. — Eights oyee Goods owiied by Othees 338 
 
 Corporeal and Incorporeal Property. — We have now dealt 
 witii the law of property strictly so called, that is, owner- 
 ship over existing physical objects ; but there still remain 
 those proprietary rights which, though not ownership in 
 its fullest or strictest sense, are nevertheless commonly 
 regarded as property. These rights are of two kinds. 
 The first class consists of true proprietary rights vested in 
 one person over physical objects owned by another person, 
 or, in other words, some of the ordinary rights which 
 together constitute the ownership of a thing, detached 
 from the bulk of those rights and vested in a different 
 person from him who is entitled to the bulk of them. 
 {See supra, j}. 13.') The second class consists of those 
 quasi-proprietary rights which, since they do not subsist 
 over physical objects, are not, strictly speaking, proprietary 
 at all. 
 
 These two classes of rights are now commonly called 
 purely incorporeal things. This name, as we have already 
 pointed out, arises from a confusion between rights and 
 the objects over which rights subsist, namely, physical 
 
 y2 
 
324 RIGHTS OVER THINGS OWNED BY OTHERS. 
 
 objects or things. The reason, however, why they are so 
 called is clear. They are called incorporeal because they 
 do not give a right to the possession and control of a 
 physical object. And they are called purely incorporeal, to 
 distinguish them from interests in expectancy in freehold 
 land which were in old times usually classed as incorporeal 
 property, because they did not entitle their owner to the 
 immediate possession of the land, and therefore, like purely 
 incorporeal property, they lay in grant and not in livery. 
 {See supra, p. 240.) 
 
 We will now deal shortly with the first class — rights 
 over things owned by others. 
 
 Section I. 
 EIGHTS OVER LAND OWNED BY OTHEES. 
 
 PAGE 
 
 Mode of Owning 324 
 
 A. Rights to use Land in 
 
 Definite Ways 325 
 
 PAGE 
 
 B. Rights to take part of 
 
 Land's Profits 329 
 
 0. Rights to appoint to Office 
 
 connected "with Land . . 335 
 
 Mode of Owning. — When rights over land owned by 
 others are annexed to the ownership of other land, they 
 are said to be appendant or appurtenant to such land. 
 When they are owned separately from the ownership of 
 any land, they are said to be in gross. A right of this 
 kind is appendant when it was naturally and originally 
 annexed to the ownership of the land ; it is appiirtenant 
 when it has become annexed to it through express grant 
 or prescription. Eights appendant or appurtenant pass 
 under a grant of the land to which they are annexed 
 without special mention ; but it sometimes happens that 
 such rights, though enjoyed with a plot of land, are not. 
 
OVER LAND : EASEMENTS. 325 
 
 strictly speaking, either appendant or appurtenant to it, 
 and in such cases they do not, at common law, pass with 
 the grant of it, unless specially described. Accordingly 
 it used to be customary to insert in deeds of grant general 
 words, as they were called, to caiTy any easements annexed 
 to the land. Now, by sect. 6 of the Conveyancing Act, 
 1881, such general words are to be implied, save where a 
 contrary intention is expressed, in all conveyances executed 
 after 1881. 
 
 Rights in land owned by others, when enjoyed in gross, 
 are tenements within the statute De Bonis, and therefore 
 entailable. {See sujjra, p. 47.) 
 
 A. Rights to use Land in Definite Ways. — Rights to use 
 in definite ways land belonging to another person than 
 the person entitled to the rights are called, in legal 
 language, easements. Easements are not regarded in 
 English law as property in themselves. Owing to the fact 
 that they never exist in gross, that is, separately, but are 
 always annexed to the ownership of some plot of land 
 other than that over which they subsist, they are regarded 
 rather as extensions of the ordinary rights of ownership in 
 the plot of land to which they are annexed.' This plot is 
 called the dominant tenement ; the plot over which they 
 subsist the servient tenement. 
 
 Easements should be distinguished from those common 
 law rights which are sometimes called natural easements, 
 such as the right which the owner of one plot of land 
 enjoys to have his soil supported by the soil of the neigh- 
 bouring plot, the right which the owner of the surface of 
 land enjoys to have it supported by the minerals or other 
 strata underlying it when these belong to another person. 
 
 ' It is perhaps "worth noting that Blaokstone puts rights of way 
 among incorporeal hereditaments, though such rights can scarcely 
 be said ever to exist in gross. (2 Bl. Com. 3.5. But see Eymer v. 
 Mcllroy, (1897) 1 Oh. 538.) 
 
326 EIGHTS OVER THINGS OWNED BY OTHERS. 
 
 or the right which one riparian owner enjoys to the con- 
 tinuance, undiminished and uncontaminated, of the natural 
 flow of a river or stream passing over or by his land. 
 [John White ^ Sons v. J. 8f M. White, (1906) A. C. 
 72; Mmjor of Bradford, v. Pickles, (1895) A. C. 129. 
 For the use a riparian owner may make of water flowing 
 over his land, see ^jer Lord Maonaghten, McCartiieij v. 
 Londonderry Rail. Co., (1904) A. C. 301, at p. 306.) 
 These are mere incidents of ownership. If in any case 
 they do not accompany ownership, they must have been 
 parted with by express grant, or have been lost by negli- 
 gence or acquiescence in their violation. Easements, on 
 the other hand, are always additions to the ordinary rights 
 of ownership which have to be acquired just as ordinary 
 rights are lost — by grant, express or implied, or prescrip- 
 tion. [Baclihouse v. Bonomi, 9 H. L. Cases, 503.) 
 
 The most important easements are rights of support for 
 buildings, rights of way, and rights to water, light, or air. 
 By a right of support for buildings is meant a right to 
 have buildings on the dominant tenement supported by 
 the soil, or the buildings on the soil, of the servient tene- 
 ment ; or where the surface and subjacent strata belong to 
 different owners, to have the buildings on the surface 
 supported by the subjacent strata. By a right of way is 
 meant a right belonging to the owner of the dominant 
 tenement to walk, ride, drive, or bring cattle — as the case 
 may be — over the servient tenement. By a right to water 
 is meant either a right to have an artificial flow of water 
 from the servient tenement continued, or a right to dis- 
 charge over the servient tenement water which has been 
 artificially accumulated on the dominant tenement. By 
 rights to light and rights to air are meant rights to the 
 free passage of light or air over the servient tenement to 
 windows or apertures in buildings on the dominant tene- 
 ment. 
 
 None of these rights necessarily attaches to the owner- 
 ship of a plot of land at common law. They must be 
 
OVER LAND : EASEMENTS. 327 
 
 specially acquired, and they may be acquired in any of 
 three ways : (a) by express grant ; (b) by implied grant ; 
 (c) under the Prescription Act, 1832. 
 
 Of express grant it is unnecessary to say anything, save 
 that it must be by deed. Implied grant may arise either 
 (a) through the circumstances attending the grant of the 
 dominant tenement, or (b) through long enjoyment of the 
 easement by the owner of the dominant tenement. As to 
 the former of these, it is a rule that a grantor shall not be 
 allowed to derogate from his own grant. Accordingly, 
 when the owner of land grants part of it, he will not be 
 allowed to use the remainder in such a way as to interfere 
 with the enjoyment of the part granted. Thus, if the part 
 granted can only be entered upon over the part retained 
 by the grantor, the grantee will have a right of way over 
 the part retained. This is called a way of necessity. 
 Again, if the part granted discharges artificially water 
 over the part retained, or receives an artificial supply of 
 water from it, or if the buildings on the part granted 
 receive light or air from over the part retained, all these 
 rights will go with the grant of the part granted without 
 special mention — that is, the grant of them will be implied. 
 The easements that at common law go with such a grant 
 are called continuous and apparent easements, because they 
 are easements which constantly operate without the inter- 
 vention of man. Discontinuous easements — such as rights 
 of way — did not, as a rule, go with such grants unless 
 specially mentioned, or unless arising through necessity. 
 But see now sect. 6, Conveyancing Act, 1881. (Under. & 
 Stra. on Wills, pp. 126 et seg.) 
 
 Long enjoyment, again, as has been said, implies a 
 grant. According to the common law, if an easement 
 were enjoyed from time " whereof the memory of man 
 runneth not to the contrary," that enjoyment was pre- 
 sumed to have had a legal origin. By analogy to the 
 period established by 3 Ed. I. c. 39 — commonly called the 
 Statute of Westminster I. — for writs of right, the period of 
 
328 EIGHTS OVER THINGS OWNED BY OTHERS. 
 
 legal memory was fixed as being from the first day of the 
 reign of Richard I. This, again, was qualified by the 
 rules of evidence as to proof of enjoyment established by 
 the Courts. Under these, if uninterrupted and unexplained 
 enjoyment of the easement for twenty years before action 
 brought could be shown, that was evidence from which a 
 jury might infer that the enjoyment originated in a grant 
 which had been lost, or in some other lawful way. This, 
 however, might be defeated by showing that, as a matter 
 of fact, the enjoyment did begin since the reign of 
 Eichard I., and that it did not originate in a grant or in 
 other lawful manner. Such was the state of the law when 
 the Prescription Act, 1832, was passed, and in cases where 
 advantage of the Act cannot be taken, it is the law which 
 regulates the acquisition of easements still. Thus a right 
 to air is not an easement within the Act, and accordingly, 
 to acquire it by long enjoyment, recourse must be had to 
 the old common law rule as to a lost grant {Bass v. 
 Gregory/, 25 Q. B. D. 481 ; Sail v. The Lichfield Breicery 
 Company, 49 L. J. Ch. 655) ; and the same is the case as 
 to rights of support for buildings from the soil of the 
 servient tenement {Angus v. Dalton, L. E. 6 App. Gas. 740), 
 or from buildings upon it {Lemaitre v. Davis, 19 Ch. D. 
 281). 1 As to the person against whom an action lies for 
 interference with such right of support, see Greemcell v. 
 The LoiD Beechburn Colliery Company, 76 L. T. 759. 
 
 Under the Prescription Act, an indefeasible title to a 
 right to light may now be acquired by an enjoyment for 
 
 ^ In Avgus v. Dalton, Lord Selborne, C, expresses an opinion 
 that rights to support for buildings are easements within sect. '2 of 
 the Prescription Act. The words " other ensement " in that section 
 have, however, been usually interpreted as applying only to ease- 
 ments of the same kind as rights of way, and Lord Selborne's 
 view was not adopted by any of the other judges (save, to a certain 
 extent, by Lindley, J.) who delivered judgments and opinions in 
 that great case which is now the leading authority on prescription 
 of easements. {But see dictum of Lord Davey, S-impscm v. God- 
 manchesttr Corporation, (1897) A. 0. 696, at p. 709.) 
 
OVER LAND : EASEMENTS. 329 
 
 twenty years without interruption immediately before 
 action brought, unless such enjoyment has been with the 
 consent in writing of the owner of the servient tenement. 
 (Sect. 3 ; Colls v. Home and Colonial Stores, Ltd., (1904) 
 A. C. 179.) An indefeasible title to a right of way, or of 
 water or other easement, can be acquired by an enjoyment 
 for forty years without interruption, unless such enjoyment 
 is by consent or agreement ; while a title, which cannot be 
 defeated merely by showing that the enjoyment began 
 prior to that period, can be acquired by twenty years' 
 enjoyment. (Sect. 2.) No break in such enjoyment for 
 a lesser time than a year after notice is to be an interrup- 
 tion within the Act. (Sect. 4 ; and see Flight v. Thomas, 
 11 A. & E. 688 ; and cf. Lord Battersea v. Com. of Sewers 
 for City of London, (1895) 2 Ch. 708.) 
 
 B. Rights to take part of Land's Profits. — Rights to take 
 part of the profits or produce of land belonging to another 
 person are of four kinds : (a) Seignories ; (b) Profits a 
 prendre ; (e) Rents and annuities charged on land ; (d) Tithes. 
 A very short notice of each of these will be sufficient for 
 our purpose. 
 
 Seignory. — As we have seen, before the Statute Quia 
 Eniptores the relation of landlord and tenant could subsist 
 between the grantor and grantee of land in fee simple. 
 "When such a relation subsisted the grantor was entitled to 
 homage, fealty, and such services as were reserved in the 
 grant, from the tenant. He had not, however, any estate 
 in the land, but merely a possibility of reverter in case the 
 tenant's interest escheated. These rights of the grantor or 
 lord constituted a seignory or lordship. 
 
 Since the statute Quia Eniptores it is impossible, in 
 England, to create, except by royal charter, the relation 
 of landlord and tenant between the grantor and grantee of 
 land in fee simple. Accordingly, probably all seignories 
 now existing originated before the date of that statute. 
 [See supra, p. 39.) They are now found usually connected 
 
330 EIGHTS OVER THINGS OWNED BY OTHERS. 
 
 with manors in which are lands of copyhold tenure. In 
 such cases the grant of the manor carries with it, without 
 express mention, the seignory over the fee tenancies of 
 the manor, the seignory being here strictly appendant to 
 the manor. Sometimes, however, seignories exist in gross. 
 
 Profits d prendre. — Profits a prendre are rights to take 
 part of the natural produce of land, of which the owner- 
 ship is vested in another. The most important kinds 
 are what are called rights of common. These are of four 
 kinds : (a) common of pasture, or the right to graze cattle 
 on another's land ; (b) common of piscary, or the right to 
 fish in another's waters ; (c) common of turhary, or the 
 right to dig turf for firebote — for the fires in the house to 
 which the right is annexed ; (d) common of estovers, or the 
 right to take estovers. {See supra, p. 62.) 
 
 Commons of all kinds seem to have arisen out of the 
 organization of the old village community. When a tract 
 of land was occupied by a community, the better part of 
 the land was portioned out among the families composing 
 the community, while the remainder was the common land 
 of all, to be used by them for pasturing their cattle, and 
 for providing them with tui-f and wood. This common 
 land was called the waste of the manor. Gradually, how- 
 ever, as the chief of the community or lord of the manor 
 became more and more important, the waste ceased to be 
 regarded as the common land of the manor, that is, the 
 joint property of the freeholders of the manor, and began 
 to be considered the freehold of the lord, over which the 
 freeholders had merely certain rights of common for their 
 cattle, and sometimes also rights to cut turbary, to take 
 estovers, and to fish. (Maine's Village Communities in 
 the East and West, p. 135.) 
 
 Of the various kinds of common, common of pasture 
 is incomparably the most important. It may be either 
 appendant or appurtenant to a fi-eehold of a manor, or it 
 may be held in gross. It is appendant when it arises of 
 common right. (2 Bl. Com. 32.) It then is annexed to 
 
OVER LAND : PEOFITS A PRENDRE. 331 
 
 arable land only, and subsists over the waste of the manor 
 in which the land lies. In such case, the right is to de- 
 pasture such animals as are necessary for the land, such as 
 horses and oxen to plough it, and cows and sheep to 
 manure it ; and the number of cattle which may be depas- 
 tured when it is not definitely fixed is confined to the 
 number the land, to which the right is annexed, can sup- 
 port during winter, the number levant and couchant on the 
 land as this is called. It is appurtenant when it arises 
 by prescription or grant, and is claimable for land in a 
 different manor, or for land not arable, or for beasts not 
 necessary for the proper cultivation of the soil, as goats or 
 swine. It is in gross when the right is not annexed to the 
 ownership of land either in the manor or out of it. In 
 common of pasture in gross the number of cattle which 
 may be depastured is usually fixed, but it may be those 
 levant and couchant on a certain farm. When the former, 
 the right may be claimed by prescription or grant ; when 
 the latter, it must be claimed under an express grant.^ 
 
 Another kind of common of pasture is common because 
 of vicinage. It consists of the right which the owners of 
 separate strips of unenclosed land have of turning their 
 cattle to depasture over the whole tract. 
 
 nights of common, whether appendant or appurtenant, 
 pass with a grant of the land to which they are annexed 
 without special mention in the grant. (Sect. 6, Convey- 
 ancing Act, 1881.) 
 
 Eights of common may be put an end to either by the 
 enclosure — or approvement — of the waste over which they 
 subsist, or by extinguishment. Under the Statute of 
 Merton (20 Hen. III. c. 4), the lord of the manor was 
 given power to approve the waste, provided he left un- 
 enclosed sufficient to satisfy the commoners' right. Now, 
 
 ^ Copyholders often enjoy rights of common over the waste of 
 the manor of which they are parcel. Unlike freeholders, however, 
 they are not entitled to them by general custom of the realm, but 
 by special custom of the manor. 
 
332 RIGHTS OVER THINGS OWNED BY OTHERS. 
 
 enclosure usually takes place under the Inclosure Acts 
 (8 & 9 Yict. c. 118 ; 39 & 40 Yict. c. 66; and 45 Vict, 
 c. 15, s. 2), with the sanction of the Board of Agriculture. 
 {Settled Land Act, 1882 ; Board of Agriculture Act, 1889 ; 
 and see Law of Commons Amendment Act, 1893.) Extin- 
 guishment may arise from release — a release of part of the 
 common land extinguished the right over the remainder— 
 and unity of possession of land to which the right is 
 annexed and the land subject to the right of common. 
 
 There are some oih.es: profits a prendre which may simply 
 Tdb mentioned. Of these, a several fishery is the best 
 known. It consists in the exclusive right to take fish in 
 a navigable river, the bed of which belongs to the owner 
 of the fishery.' Such a right may be granted to a person 
 having no property in the river bed. [Fitzgerald v. Fir- 
 hank, (1897) 2 Ch. 96.) But the existence of a several 
 fishery raises a presumption that the bed of the river 
 belongs to the owner of the several fishery. {Ecroyd v. 
 Coidthard, (1897) 2 Ch. 554.) Grants of a right to enter 
 upon the land and take the minerals may also be con- 
 sidered grants of profits a prendre. 
 
 Franchises. — Closely akin to profits a prendre are 
 franchises which savour of the land. A franchise or 
 liberty is " a regal privilege in the hands of a subject." 
 (2 Bl. Com. 153.) It can only originate in a grant by 
 the Crown, and when it savours of the land it consists of a 
 right to do something upon, or take something from, land 
 which may or may not belong to another. The more 
 usual franchises ax& free fishery, or the exclusive right to 
 fish in a public river, firee warren, or the exclusive right to 
 kill and take beasts and fowls of warren on another person's 
 land, that is, hares, conies, pheasants and partridges, rights 
 
 ' The owner of a salmon fishery in the upper reaches o f a river 
 has the right to prevent riparian owners on the lower reaches 
 erecting obstructions which may prevent the fish coming up the 
 river. {Pirie v. Kintore [Earl), (1906) A. C. 478.) 
 
OVER LAND : RENTS AND ANNUITIES. 333 
 
 to tolls, to treasure trove, to wrecks, and other prerogative 
 rights of a similar kind. There are other and more com- 
 mon franchises which do not savour of the land. These 
 will be referred to in Part YI. 
 
 Rents and Annuities charged on Land. — A rent or an 
 annuity charged on land is a right to share in the profits 
 of land, belonging to another. Such rents or annuities 
 are, when charged on freehold land,^ incorporeal heredita- 
 ments, and can be held in the same estates as the land 
 itself. They may be created without formal words, and 
 either at common law or under the Statute of Uses. 
 Before, however, they can affect the land on which they 
 are charged, they must be registered, unless they arise 
 under marriage settlements (18 Vict. c. 16, s. 12), or by 
 will. (Sect. 14.) This statute applies only to annuities 
 for life or lives, or for terms of years or greater estates 
 determinable with life. An imregistered grant is good 
 against subsequent volunteers with or without notice ; but 
 it is not good against subsequent purchasers for value, 
 save where these bad notice of the charge. {O reaves v. 
 Tofield, 14 Oh. D. 563.) 
 
 In the preceding parts of this work, the remedies for 
 rents and annuities charged on land and their incidents 
 generally {see supra, p. 40) have been pointed out. It 
 is sufficient to add here two further points. In the 
 first place, at common law there was no escheat on the 
 death without a will and without heirs of the owner 
 of a rent-charge in fee simple. The rent sank into the 
 land, or was extinguished for the benefit of the owner 
 thereof. Now, under the Intestates' Estates Act, 1884, 
 s. 4, apparently there is an escheat of a rent-charge, but 
 whether for the benefit of the mesne lord — where the land 
 subject to it is held of a mesne lord — or of the Crown is 
 not very clear. In the second place, sect. 28 of the Wills 
 
 ' Rent issuing out of a leasehold interest is a chattel real. 
 [Be Fraser, Loivther v. Fraser, (1904) 1 Ch. 111.) 
 
334 EIGHTS OVER THINGS OWNED BY OTHERS. 
 
 Act (1 Yict. c. 26), which passes the fee in realty devised 
 without the necessity of words of limitation in the will, 
 applies only to realty existing at the death of the testator. 
 Accordingly, if an existing rent-charge or annuity in fee 
 is devised, the fee will pass without words of inheritance 
 being used in the will ; but if the will creates a new rent- 
 charge or annuity, that will be only a charge or annuity 
 for the life of the devisee unless a different intention 
 appears in the will. [Nichols v. Hawkes, 10 Hare, 342.) 
 
 Tithes. — Tithes consist of the right to a tenth part of 
 the profits of the land, whether these profits arise from the 
 natural growth on the land, or the stock upon it, or the 
 labour bestowed upon it. Formerly they were payable 
 in kind, but now a multitude of Acts of Parliament have 
 brought about their commutation into a rent-charge which 
 varies in amount according to the price of corn. Formerly, 
 too, they were usually paid by the tenant in possession of 
 the land ; but now, by the Tithe Act, 1891, they are made 
 payable in all cases by the owner, and any contract between 
 the owner and the tenant under which the latter is to pay 
 them is made void. 
 
 Tithes being originally an endowment for the support 
 of the church, when they belong to the rector of the parish 
 they are his by common right. A vicar when entitled to 
 them, takes them by gift or by prescription. Occasionally, 
 before the Eicformation, they became the property of 
 monasteries. But until the dissolution of the monasteries 
 they seem to have been exclusively in ecclesiastical hands. 
 On the Reformation, however, those belonging to the dis- 
 solved monasteries were confiscated to the Crown. The 
 Acts of Parliament confiscating them gave the king power 
 to grant them by letters patent to lay persons (called 
 lay impropriators). (27 Hen. YIII. c. 28, s. 2, and 
 3i Hen. YIII. c. 13, ss. 18 and 19.) 
 
 Tithes in lay hands are incorporeal hereditaments held 
 in the same estates as subsist in freehold land, and trans- 
 ferable by the same modes as estates in freehold land. 
 
OVER LAND : ADVOWSONS. 335 
 
 (32 Hen. VIII. c. 7, s. 7.) They descend like freehold 
 estates, with this difference, that they are not subject to 
 any local custom of descent which affects the land out of 
 which they issue. This arises from their being regarded 
 as an inheritance altogether distinct from the land. From 
 this view two other consequences follow. When the land 
 and the tithes issuing out of it belong to the same person, 
 there is no merger at common law, though there may now 
 be merger under statute. And, in the same circumstances, 
 the tithes do not go with a grant of the land, unless they 
 are specifically mentioned in the conveyance. 
 
 When tithes belong to the rector or vicar of the parish, 
 he owns them as a corporation sole. {See jy. 382.) He 
 personally is entitled to the benefit of them for his life. 
 On his death the title to them is in abeyance until a new 
 rector or vicar is inducted into the profits of the living. 
 The new rector or vicar's title then reverts back to the 
 death of his predecessor. 
 
 C. Right to, or to appoint to, Office connected with Land. 
 
 — The most important right to, or to appoint to, an office 
 which entitles the office-holder to a part of the profits of, 
 or to an interest in, land, is what is called an advoivson. 
 
 Advowsons. — An advowson is the perpetual right to 
 present to an ecclesiastical benefice. The owner of the 
 right is called the patron of the benefice. Advowsons are 
 either donative — i.e., where the patron is either the Crown, 
 or a private person specially licensed by the Crown, and 
 where the patron appoints by deed without the intervention 
 of the bishop in whose diocese the benefice is ; or collative, 
 i.e., where the patron is the bishop himself ; or preventa- 
 tive, i.e., where the right consists in the right to present a 
 proper person to the bishop who is bound to institute such 
 person into the office of the cure of souls and to induct him 
 into the profits of the office. 
 
 An advowson presentative, when owned not in virtue 
 of a spiritual dignity or office, is an incorporeal here- 
 
336 EIGHTS OVER THINGS OWNED BY OTHERS. 
 
 ditament, and may be enjoyed either in gross, or as 
 appendant to a manor. It may be held for estates like 
 freehold land; and it is subject to the patron's widow's right 
 to dower, which right takes the form of the widow having 
 the right to the third presentation. It is alienable by deed, 
 and is assets for the payment of the debts of the patron. 
 (Co. Litt. 374 b.) 
 
 Sometimes the right of presentation has to be exercised 
 by the patron on the nomination of another person. Thus, 
 when the advowson is the subject of a trust, the trustee 
 holds the right of presentation, but the right of nomina- 
 tion is in the cestui que trust; and when it is the subject 
 of a mortgage, the mortgagee presents, but the mortgagor 
 nominates. Sometimes, again, the right to present upon 
 the next vacancy is separated by sale or assignment from 
 the advowson. In such a case, this right of next presenta- 
 tion is a chattel real, and on the death of the owner goes 
 to his executors. The right of next presentation cannot 
 be sold during a vacancy, such an alienation constituting 
 the offence of simony (31 Eliz. c. 6; 28 & 29 Yict. o. 122, 
 ss. 2, 6, 9) ; and on the sale of the advowson itself during 
 a vacancy, the right remains in the vendor. No clergy- 
 man, however, can sell or assign any patronage which he 
 holds by virtue of his dignity or spiritual office. (3 & 4 
 Vict. c. 113, s. 42.) Nor can a clergyman buy the next 
 presentation for his own preferment, even when the church 
 is full, though he may purchase the advowson itself. (12 
 Anne, st. 2, o. 12, s. 2.) And by 11 Geo. III. c. 17, s. 5, 
 a grant of an advowson or of a presentation by a Papist 
 patron is void except when it is to a Protestant for valuable 
 consideration and for the Protestant's benefit, while a 
 devise of an advowson by a Papist is void if it be for the 
 benefit of the heirs or family of the Papist owner. 
 
 When the advowson is held in joint tenancy or tenancy 
 in common, all the tenants must concur in the presenta- 
 tion. If they cannot agree upon a clerk, and each presents 
 one on his own account, the bishop may induct either or 
 
OVER LAND : TITLES OF HONOUR. 337 
 
 refuse to induct either. In the latter case, unless a joint 
 presentation is made within six months, the right to present 
 lapses. (2 Bl. Com. 182.) When it is held in coparcenary 
 all the coparceners should concur in the presentation, but 
 in case of disagreement, the eldest coparcener or her husband 
 or grantee is entitled to the first presentation, the next to 
 the second, and so on in order of age. By sect. 2 of 
 7 Anne, c. 18, on the partition of an advowson held in 
 joint tenancy or tenancy in common, the rule applicable 
 to disagreeing coparceners applies to the former joint 
 tenants or tenants in common. 
 
 By sect. 4 of the Statute of Frauds, 1677, all presenta- 
 tions must be in writing. Usually, they are made by 
 means of an ordinary letter to the bishop, and in every 
 ease they may be revoked by the patron at any time before 
 actual presentation. 
 
 Ancient Offices. — There are some ancient offices connected 
 with land, such as stewardships of manors and rangerships 
 of forests, which are incorporeal hereditaments. (4 Inst. 
 87.) Such offices are, however, not of sufficient importance 
 to be considered in an elementary work. 
 
 Titles of Honour. — Like ancient offices, titles of honour 
 arose originally out of duties connected with the land, and, 
 as a rule, they still savour of it and are tenements. (Co. 
 Litt. 2 a.) Like franchises, they can only arise by grant 
 from the Crown ; they may be created either by letters 
 patent or by writ. The former is now the usual mode of 
 creation. If created by letters patent, they must be 
 limited to the grantee and his heirs ; if by writ, they are 
 hereditary, without mention of the grantee's heirs. (2 
 Bl. Com. 118.) 
 
 When a title of honour savours of the land, and is 
 limited by patent, it is a tenement and may be held in fee 
 simple, fee tail, or special tail. When it descends to 
 females it is not held in coparcenary, but falls into abey- 
 ance till one heir alone is entitled, or until the sovereign 
 
 s. z 
 
338 RIGHTS OVER THINGS OWNED BY OTHERS. 
 
 revives the title in favour of one of the coparceners or her 
 heir. (2 Bl. Com. 215.) 
 
 Section II. 
 EIGHTS OVER GOODS OWNED BY OTHEES. 
 
 PAGE 
 
 OwDership and Possession . . . 338 
 Trover 338 
 
 PAGE 
 
 Bailment 339 
 
 Liens 341 
 
 Ownership and Possession. — Eights over goods arising 
 out of contracts with the owner of the goods are not 
 regarded at common law as giving those entitled to them 
 any share in the ownership of the goods over which they 
 subsist. These rights are regarded as aifeoting not the 
 ownership, but merely the possession of the goods. Such 
 rights, however, when they are enforceable against the 
 goods themselves, without the consent of the owner, are 
 part of the right of ownership over the goods, much as a 
 lease for a time certain is now part of the ownership of 
 land. {See supra, ]:>. 79 et seq.) When they are not so 
 enforceable, they can scarcely be considered part of the 
 ownership, but merely as a Kcence to hold or use the 
 goods at the will of the real owner, akin in their nature 
 to the licences to go upon land. 
 
 Eights over goods owned by others, whether enforceable 
 against the will of the owner or not, are divisible into 
 three classes — rights by trover, by bailment, or by lien. 
 
 Trover. — Trover is from the French verb frouver, to 
 find. When a person finds goods which have been lost, 
 he is entitled, as we have seen, to hold them against 
 everybody except their rightful owner {Armory v. Dela- 
 mirie, supra, p. 303), whose property ia them is unaffected 
 
OVER GOODS : BAILMENT. 339 
 
 by the loss of their possession. (The same is the case 
 where the person obtains possession in any other lawful 
 way. See infra, p. 341.) If the finder, or other person in 
 possession, refuses on demand to deliver them to the rightful 
 owner, the latter can recover them by action. This action 
 was formerly called an action of trover and conversion, or 
 more shortly, of trover. The conversion — that is, the 
 determination to convert the goods to the finder's own 
 use as evidenced by his refusal to deliver them up — was 
 the gist of the action, and, accordingly, it came to lie for 
 all unlawful detaining of goods, whether the detained 
 possession originated in finding or not. Forms of action 
 have now been abolished under the Supreme Court of 
 Judicature Act, 1875, but the principle upon which relief 
 is given remains unaffected. 
 
 Bailment. — When goods are delivered by their owner to 
 another person, who takes possession of them subject to 
 a condition to return them as S')on as the purpose, or the 
 period for which they were delivered, is fulfilled or deter- 
 mined, the transaction is called a bailment of the goods. 
 The owner is then the bailor of the goods, the person to 
 whom they are delivered the bailee. 
 
 Bailments may be divided according as the bailment is 
 for the benefit of the bailor alone, or for the benefit of the 
 bailee alone, or for their common advantage. Bailments 
 of the first class are : depodtimi, or nimple bailment, where 
 the thing is kept by the bailee for the use of the bailor, 
 and maiidatum, where the thing is to be carried or dealt 
 with in some way by the bailee. In both deponitum and 
 mandatam the bailee receives no payment for his trouble, 
 and in both oases he is responsible for injuries to or loss of 
 the thing only when such injuries or loss are due to gross 
 negligence on his part. Bailments of the second class are 
 of one kind only — commodatiim, or loan, where the thing 
 delivered is of a useful nature, and the bailor gives the 
 bailee permission to use it without receiving payment for 
 
 z2 
 
340 RIGHTS OVER THINGS OWNED BY OTHERS. 
 
 doing so. Here the bailee is responsible for injuries and 
 loss due to slight negligence on his part. The last class 
 consists of locatio rei, where the bailee hires the thing ; 
 radium, or pledge, where the thing is delivered as a 
 security for a debt due by the bailor to the bailee ; 
 and locatio operis faciendi, where the thing is delivered 
 to be carried or otherwise dealt with by the bailee for 
 payment. In all these cases, in the absence of express 
 agreement on the point, the bailee is liable for injuries 
 and loss arising from ordinary negligence of himself or 
 his servants, that is, a less degree of care than an ordinary 
 owner shows in respect to his own goods. {Coggs v. 
 Barnard, 2 Ld. Eaym. 909 ; 1 Sm. L. C. ; Coupe Co. v. 
 Maddick, (1891) 2 Q. B. 413.) 
 
 It is unnecessary to enter here at any length into the 
 other incidents attached by the general law to the different 
 kinds of bailments. One or two points may, however, be 
 referred to. In deposituiii, when the bailee is an inn- 
 keeper, and the things deposited are the luggage of guests 
 using his inn ; and in locatio opieria faciendi, when the bailee 
 is a common carrier, and the goods bailed are goods de- 
 livered to him to be carried for hire, the bailee is liable 
 for all injury and loss happening to them while they are 
 in his inn or in his custody, save injury or loss arising 
 through natural decay of the goods themselves, or through 
 the act of God, or of the King's enemies. (As to inn- 
 keepers, see Calye's Case, 8 Coke, 32 ; 1 Sm. L. 0. ; as to 
 common carriers. Dale v. Hall, 1 Wils. 281.) In the case 
 of both innkeepers and common carriers, their common 
 law liability has, however, been modified by statute. 
 (Innkeepers' Liability Act, 1863 ; Carriers Act, 1830 ; 
 Railway and Canal Trafiic Act, 18o4 ; as extended and 
 amended by 26 & 27 Vict. c. 92 and 36 & 37 Vict. c. 48.) 
 In every class of bailment, the bailee, if deprived by the 
 act of a vwongdoer of the possession of the goods, can 
 recover it by an action of trover. {Sutton v. Buck, 
 2 Taunt. 302.) The bailor has the same right in every 
 
OVER GOODS : LIENS. 341 
 
 kind of bailment save those which entitle the bailee to 
 exclude him from the possession of the goods, when the 
 right of recovery is in the bailee exclusively. The reason 
 of this rule is that the law merely decides who is entitled 
 to the possession of goods; it never decides who owns 
 them. The bailee, as the person legally in possession, is 
 always entitled to possession of the goods as against a 
 wrongdoer. [Armory v. Delamirie, stqjva) The bailor as 
 owner is also entitled to it, except where by agreement the 
 bailee has the exclusive right to it. The classes of bailments 
 where the bailee has that exclusive right irrespective of 
 special agreement are pledges and hiring agreements. 
 
 Liens. — Liens are of two kinds, common law and equit- 
 able. A common law lien is merely the right to retain 
 the possession of goods belonging to another person until 
 a particular debt, or the balance of a running account, is 
 paid by the owner of the goods. An equitable lien is the 
 right in equity to have a particular claim satisfied out of 
 particular property belonging in law to another person. 
 
 Equitable liens do not depend upon the creditor retain- 
 ing possession of the property ; they bind it in the hands 
 of any person who obtains possession of it with notice of 
 the lien. The most important of these are vendors' and 
 purchasers' liens. It has lately been decided that these 
 liens arise with respect to personalty as well as realty. 
 (In re Stucley, Stucley v. Kekcidch, (1906) 1 Ch. 67 ; and 
 supra, p. 265.) For a consideration of their nature and 
 incidents, see Strahan's Eq. pp. 320 — 327.) 
 
 Common law liens are either p^i-^-iicidar or general. A 
 particular lien is the right to retain possession of the goods 
 in regard to which the debt in question was incurred. 
 Thus in the bailments vadium, or locatio operis faciendi, the 
 bailee has a particular lien on the goods pledged or dealt 
 with for the money advanced on the goods or the labour 
 expended in connection with them respectively. [Skinner 
 V. Upshaw, 2 Ld. Eaym. 752.) A general lien, on the 
 
342 EIGHTS OVER THINGS OWNED BY OTHERS. 
 
 other hand, is a right arising by express or implied 
 contract, to retain possession of goods until payment 
 is made by their owner of any balance due on trans- 
 actions between him and the person in possession of his 
 goods. Such a contract is implied in certain trades and 
 professions. Thus, a solicitor has a lien on the papers of 
 his client for remuneration due to him for professional 
 services. (Under the Solicitors Act, 1860, the Court may 
 declare a solicitor employed in a suit or action entitled to 
 a charge upon any property recovered or preserved in such 
 suit or action.) Again, an innkeeper has a lien upon the 
 goods of a guest for the amount of the guest's unpaid bill 
 {MuUiner v. Florence, 3 Q. B. D. 384) ; and under the 
 Innkeepers Act, 1878, s. 1, the innkeeper under certain 
 circumstances is entitled to sell the guest's goods to satisfy 
 the debt. And in many other trades, such as those of 
 wharfingers, factors, bankers, calico printers, &c., by the 
 custom of the trade such a lien is implied. 
 
 A common law lien, whether particular or general, gives, 
 as has been said, merely the right to retain the goods. 
 Wherever there is a further right to sell, as in the case of 
 innkeepers' liens, that right arises under statute. And 
 the lien may be lost either by parting with the possession 
 of the goods, or by taking some other security in heu of 
 it. But merely taking another security is not in itself 
 sufficient to deprive the possessor of the goods of his lien 
 on them unless there is something in the taking of the 
 security inconsistent with the continuance of the lien. 
 
( 343 ) 
 
 Paet VI. 
 PEOPRIETAET RI&HTS NOT OVER THINGS. 
 
 — ♦- — 
 
 PAGE 
 
 Proprietary Rights not over Things 343 
 
 Chosea in Action 344 
 
 Annuities 350 
 
 Personal Annuities 350 
 
 Consolidated Bank Annuities 361 
 
 Interests in Corporations 362 
 
 Shares 367 
 
 Stock 357 
 
 Debentures 358 
 
 Monopolies 360 
 
 Patents 360 
 
 Copyright 363 
 
 Right to Perform 365 
 
 Trade Marks 366 
 
 Trade Names 366 
 
 Proprietary Rights not over Things. — Hitherto we have 
 been considering rights which are more or less strictly 
 rights of property. The rights we are now to deal with 
 are, strictly speaking, not rights of property at aU, since 
 they do not subsist over any existing physical object. {See 
 supra, p. 2.) They are, however, commonly regarded as 
 proprietary rights, since they usually are lucrative, and 
 therefore property in the popular sense. Most of them 
 are also proprietary in the further sense that they are not 
 mere rights against certain persons {Jura in personam), but 
 rights availing against the whole world {jura in rem). 
 
344 PROPRIETARY EIGHTS NOT OVER THINGS. 
 
 It is not intended to treat of these rights at any length, 
 partly because they do not properly come within the scope 
 of this work, and partly for the more practical reason that 
 it is impossible to give a satisfactory sketch of all of them 
 without entering upon an exposition of matters very 
 far removed from the most liberal conception of what is 
 properly included under the term property. Once the 
 strict meaning of property as ownership over physical 
 objects is departed from, it is very difBcult to draw the 
 line and say what is and what is not within the sense of 
 that word. This is sufficiently shown by the example of 
 many text writers who, in what purported to be treatises 
 on the law of personal property, have found themselves 
 compelled to deal with the law of contracts, the law of 
 wrongs (or torts) and the law affecting joint stock com- 
 panies, patents, copyrights, insurance, arbitration, trade- 
 marks — in short, almost every department of jurispru- 
 dence outside that relating to crime. Even a separate 
 treatise as large as the whole of the present work would be 
 of little use as a guide to this vast territory. AH that can 
 be done in a chapter of such a treatise is to indicate shortly 
 the nature of the rights most' closely akin to proprietary 
 rights in their true sense, and leave the reader to seek in 
 special works information concerning those other rights 
 which we have indicated, but to which we will not further 
 refer. 
 
 As has been indicated, these rights are very diverse in 
 their nature. They may be divided roughly into four 
 classes: — rights or choses in action; annuities or rights to 
 annual payments not charged upon land ; rights or interests in 
 corporations aggregate ; and monopolies. Generally speak- 
 ing, all these rights are personalty, but some of them are 
 hereditaments, and some of them are not merely heredita- 
 ments but tenements also, and, as such, entailable under 
 the statute Be Bonis. {See supra, p. 47.) 
 
 Choses in Action. — Formerly, pure personalty was divided 
 
CHOSES IN ACTION. 345 
 
 into choses in possession (or goods) and choses in action (or 
 rights of action), on the same lines as pure realty was 
 divided into corporeal and incorporeal hereditaments. Of 
 late years, however, many other kinds of proprietary rights 
 which, though personalty and incorporeal in their nature, 
 are not rights of action merely, have sprung up, usually 
 under particular Acts of Parliament ; and choses in action 
 are consequently now regarded no longer as a main class 
 of personalty, but only as one division, and that not the 
 most important, of a main class which, as opposed to the 
 other main class, choses in possession or corporeal per- 
 sonalty, is now commonly called incorporeal personalty on 
 the analogy of the great divisions of realty. 
 
 Choses in action arise primarily either ex delicto''- or ex 
 contractu. If a person wrongfully damages me in my 
 person, in my reputation, or in my property, I have a legal 
 right to obtain compensation for the injury. If he lawfully 
 contracts with me to pay me a certain sum of money or to 
 do a certain act, I have a legal right to obtain payment of 
 the money or performance of the act, or compensation in 
 lieu of performance. If the person refuses to recognize 
 my legal rights in such circumstances, my only means of 
 enforcing them is by an action at law. These legal rights, 
 then, are rights which can only be enforced by action. 
 They were therefore called choses (or things) lying in 
 action. 
 
 The policy of the ancient common law being to dis- 
 courage litigation, assignments of choses in action were 
 not permitted by it. This policy was carried so far, that 
 if any third person assisted the owner of a chose in action 
 
 ^ Some writers object to rights of action ex delicto being called 
 cboses in action (see Sir H. Elpbinstone's Article, p. 311, Law 
 Quarterly, vol. 9), cbiefly on tbe ground that a mere expectation 
 of damages for a wrong committed can scarcely be called property. 
 Such expectations, however, are treated as property in the Bank- 
 ruptcy Act, 1883 (sect. 168) ; and the older writers, when they use 
 the phrase " chose in action," apply it to rights both ex delicto and 
 ex contractu. (Termes de la Ley, Chose in Action.) 
 
346 PROPRIETARY RIGHTS NOT OVER THINGS. 
 
 to prosecute Ms claim, he was guilty of maintenance ; while 
 if a condition of the help was that the third person was to 
 receive a share or all of the damages or debt recovered, he 
 was guilty of champerty. Gradually, however, a distinction 
 in choses in action was admitted. Where the action was 
 for the doing of an act or for damages for the breach of a 
 duty arising either from contract or wrong, the old rule 
 remained. But where it was for the payment of an as- 
 certained (or liquidated) sum of money — that is, a debt — 
 the law permitted a third person not only to sue in the 
 name of the owner of the right, but to sue for his own 
 private benefit and at his own cost. (Bro. Abr. tit. Chose 
 in Action, pi. 3 ; 15 Hen. VII. c. 2.) The authority which 
 the owner of the debt gave to the third person to sue in 
 his name was called a power of attorney. It did not need 
 to be by deed, and if given for valuable consideration, it 
 was irrevocable by the original owner of the debt. This 
 was as far as the ordinary common law went in the matter 
 of assigning choses in action. 
 
 Two other agencies, however, soon carried the right to 
 alienate choses in action much further. The first of these 
 was the practice of merchants. The second was equity. And 
 both these agencies have been helped from time to time by 
 Acts of Parliament recognizing or estending their opera- 
 tion. 
 
 By the practice of merchants, which on this point is now 
 declared by tlie Bills of Exchange Act, 1882, when a debt 
 was secured by what is called a bill of exchange, the right 
 to sue for it passed along with the title to the bill itself, 
 which was freely transferable. " A bill of exchange is an 
 unconditional order in writing addressed by one person to 
 another, signed by the person giving it, requiring the 
 person to whom it is addressed to pay on demand, or at a 
 fixed or determinable future time, a sum certain in money 
 to or to the order of a specified person or to bearer." 
 (Sect. 3, sub-sect. 1.) The person who draws the biU is 
 called the drawer, the person on whom it is drawn is 
 
CHOSES IN ACTION. 347 
 
 called the drawee until he accepts the bill — that is, writes 
 " Accepted " and his name across the face of it — when he 
 becomes the acceptor, and is primarily liable for the amount 
 payable on the bill ; and the person to whom the payment 
 is to be made is called a payee. "When the bill is payable 
 to a person " or bearer," it is transferable by delivery ; 
 when to him " or order," it is transferable only by indorse- 
 ment, that is, by the payee writing his name on the back 
 of the bill and delivering it to the new holder. (Sect. 31.) 
 After indorsement, the transferor becomes an indorser of 
 the bill, and is liable on it, should it, on being presented to 
 the drawee for acceptance or payment, be dishonoured, that 
 is, should acceptance or payment then be refused. Bills may 
 be made payable on sight, or so many days after sight, or 
 at any fixed time. When they become immediately pay- 
 able, they are said to have matured . 
 
 A bill of exchange is not merely assignable — it is 
 negotiable. In other words, any person who takes it bona 
 fide and for value acquires a good title to it, even though 
 the person who assigned it to him had no title to it. In 
 this respect it resembles coin, bank notes, and other 
 promissory notes (3 & 4 Anne, c. 9, made perpetual by 
 7 Anne, c. 25, and now repealed and re-enacted by 
 the Bills of Exchange Act, 1882), and bills of lading 
 (Bills of Lading Act, 1855), which are negotiable also. 
 After maturity a bill or note ceases to be negotiable, 
 though it remains assignable. (Sect. 36, sub-sect. 2, 
 Bills of Exchange Act, 1882.) 
 
 Exchequer bills payable to bearer are also negotiable, 
 and so are multitudes of securities for debts issued by 
 foreign governments and corporations and made on the 
 face of them payable to the bearer. [London Joint Stock 
 Bank V. Simmons, (1892) A. C. 201 ; TFebb, Sale 8f Co. 
 V. Alexandra Wafers (1905;, 93 L. T. 339.) Debts due 
 to the Crown have always been assignable by the Crown. 
 
 The other agency which advanced the right to alienate 
 choses in action was equity. Equity recognized two classes 
 
348 PEOPEIETAEY RIGHTS. NOT OVEE THINGS. 
 
 of choses in action — legal and equitable. Legal choses in 
 action were, of course, those known to the common law ; 
 equitable, those enforceable only in the Court of Chancery. 
 Of the latter, the most important, perhaps, were claims to 
 legacies, for which the common law supplied no effective 
 remedy. The latter kind of choses in action equity per- 
 mitted to be freely assigned, and after assignment the 
 assignee might sue in Chancery in his own name. As to 
 legal choses in action, practically all those arising e.r con- 
 tractu or in the nature of a debt, equity permitted to be 
 alienated so as to enable the assignee to sue in the name 
 of the assignor. Such alienations, however, did not bind 
 the debtor until he had received notice of them, and they 
 were not allowed to operate in such a way as to prevent 
 his setting off against the assignee any claim he would 
 have been entitled to set off against the original creditor, 
 or as to render invalid any prior assignment of the debt or 
 part of it of which the debtor had received earlier notice. 
 That is what is meant by an assignment subject to all 
 equities. 
 
 Besides promissory notes, to which we have already 
 referred, policies of assurance of lives (30 & 31 Yict. c. 144) 
 and of marine assurance (31 & 32 Vict. o. 86) have been 
 made assignable at law by Act of Parliament. And now, 
 by sect. 25, sub-sect. 6, of the Judicature Act, 1873, it is 
 enacted that any absolute assignment by writing under 
 the hand of the assignor (not purporting to be by way of 
 charge only) of any debt or other legal chose in action 
 of which express notice in writing shall have been given 
 to the debtor, trustee, or other person from whom the 
 assignor would have been entitled to receive or claim such 
 debt or chose in action, shall be, and be deemed to have 
 been, effectual at law (subject to all equities which would 
 have been entitled to priority over the right of the assignee 
 if that Act had not passed) to pass and transfer the legal 
 right to such debt or chose in action from the date of such 
 notice, and all legal and other remedies for the same, and 
 
CHOSES IN ACTION. 349 
 
 the power to give a good discharge for the same without 
 the concurrence of the assignor. {See Brandta, 8ons Sf Co. 
 V. Dunlop Rubber Co., (1905) A. C. 454.) 
 
 The effect of this enactment is, shortly, to make every 
 chose in action assignable in equity assignable at law. 
 Consequently, all debts and rights of action ex contractu 
 are now assignable, and all rights arising before breach 
 under contracts, save such as are, by the terms of the 
 contract, not assignable, or from the nature of the contract 
 are not capable of being performed by persons other than 
 the parties to it. Contracts of the latter kind are called 
 personal contracts, and are usually for personal services.^ 
 How far rights of action ex delicto are assignable it is very" 
 difScult to say. Apparently, in cases where the damages 
 are practically liquidated, as in actions of detinue and 
 trover (where the damages are the value of the property 
 detained or converted) , the right of action may be assigned. 
 {Cohen v. Mitchell, 25 Q. B. D. 262.) Actions for injuries 
 not to the property but to the person or reputation of the 
 litigant, appear, however, still to be within the old rule 
 which prohibited assignments of choses in action. 
 
 On bankruptcy the bankrupt's rights of action— save 
 only those for personal torts — vest in the trustee, as we 
 have already seen. {See mpra, p. 300.) And under the 
 Act for extending the remedies of creditors ■ against the 
 property of debtors (Judgments Act, 1837, s. L2), securities 
 for debts due to the debtor may be seized by the sheriff 
 under the writ of fieri facias. And now, by the Rules of 
 the Supreme Court, 1«S3 (Ord. XLV. r. 1), the Court can 
 order that all debts owing or accruing to a judgment 
 debtor may be attached to answer the judgment. Such 
 an order is called a garnishee order. 
 
 On the death of their owner, choses in action arising ex 
 contractu vest in his personal representatives, save where 
 the chose in action is merely a right or benefit arising 
 uuder a personal contract, in which case it is extinguished 
 by the death of either party to the contract before per- 
 formance and before breach. On the other hand, choses 
 
350 PROPRIETARY RIGHTS NOT OVER THINGS. 
 
 in action ex delicto are extinguished by the death either of 
 the person who suffered or of the person who committed 
 the wrong before verdict, in all cases, save where the wrong 
 was an injury to property, or where, being a personal tort, 
 it comes within Lord Campbell's Act, 1846 (amended 
 by 27 & 28 Vict. c. 95). As to injuries to property on 
 the death of a person whose personal estate (4 Edw. III. 
 c. 7), or whose real estate (3 & 4 Will. IV. c. 42, s. 2), 
 has during his lifetime suffered by another's wrong, the 
 executors or administrators of the deceased may bring an 
 action for such wrong, and the damages recovered are to 
 be part of the deceased's personal estate. As to injuries 
 to real estate, the injury must have been done within six 
 months before, and the action must be brought within one 
 year after, the death of the person whose estate is injured. 
 On the other hand, by 3 & 4 Will. IV. c. 42, s. 2, on the 
 death of the wrongdoer — or tort-feasor as he is called — the 
 person wronged can bring his action against the deceased 
 tort-feasor's executors or administrators within six months 
 after these executors or administrators have taken on 
 them the administration of his estate. As to personal 
 torts, when the wrong in question caused the death of the 
 person wronged, Lord Campbell's Act gives a right of 
 action against the vsrrongdoer for the benefit of the 
 deceased's wife, husband, children, parents, or grand or 
 step children or parents. Such action must be brought 
 within one' year of the death of the deceased. With 
 these two exceptions, the maxim of the common law. 
 Actio personalis moritur cum j^ersona (a personal action 
 dies with the person), still applies to all rights of action 
 ex delicto. [Pulling v. The Great Eastern Rail. Co., 
 9 Q. B. D. 110.) 
 
 Annuities. — We have already dealt with annuities charged 
 upon land. Annuities not charged upon land are called 
 personal annuities. They are personalty, and yet they can 
 be held for estates for life, and in fee simple, and when held 
 in fee simple they will, on the owner's death intestate, go 
 
ANNUITIES. 351 
 
 to his heir. They are for this reason sometimes called 
 personal hereditaments. They are not, however, tene- 
 ments, and cannot, accordingly, be held in fee tail. A 
 limitation to the grantee and the heirs of his body creates 
 merely a conditional fee which the grantee can alienate on 
 the birth of issue. {Earl of Stafford v. Buckley, 2 Ves. 
 sen. 171.) And a personal annuity granted to a man and 
 his heirs will pass under a general bequest of the grantee's 
 personal estate, while one granted to a man " for ever " 
 will, on the grantee's death testate or intestate, go, like 
 ordinary personalty, not to the grantee's heir or devisee, 
 but to his executors or administrators. 
 
 Perhaps the commonest kind of annuities not charged 
 on land is consolidated bank annuities, or, as they are usually 
 called, consols. These are perpetual annuities (subject to 
 redemption) granted by the Crown as interest for money 
 borrowed by it for national purposes. They are redeem- 
 able on the repayment of the money borrowed. Under 
 the National Debt (Conversion) Act, 1888, the annuities 
 are now (since April, 1903) fixed at the rate of 2| per cent. 
 per annum on the borrowed money. The dividends are 
 payable quarterly, and the right to them is called stock or 
 stock in the funds. This right is personalty, and on the 
 death of the stockholder it devolves upon his executor or 
 administrator. 
 
 Originally bank annuities were ordinary personal 
 annuities — indeed, they seem to have been the original of 
 personal annuities as now known to the law ; but since the 
 national debt was funded, shortly after the Eevolution, 
 their legal incidents have been set out in the Acts of 
 Parliament under which the various public loans were 
 raised. These Acts have now been consolidated by the 
 National Debt Act, 1870. 
 
 The most noteworthy incidents of stock in the funds are 
 these : — 
 
 (a) All dividends on it are paid at, and all transfers of 
 it must be made in the books of, the Bank of 
 
352 PROPRIETARY RIGHTS NOT OVER THINGS. 
 
 England or of Ireland. (Sect. 22.) Before 
 allowing any transfer, the Bank may, if they 
 think it expedient, demand evidence of the 
 title of the person claiming a right to transfer. 
 (Sect. 24.) 
 
 (b) The interest of a deceased stockholder is transfer- 
 
 able by his executors or administrators notwith- 
 standing any specific bequest of it ; but the Bank 
 need not transfer the interest till probate of the 
 will or the grant of administration has been left 
 with them for registration, and they may require 
 all executors who have proved the will to join in 
 the transfer. (Sect. 23.) 
 
 (c) The stock may be converted into stock certificates 
 
 payable to bearer and transferable by delivery. 
 (Sect. 26.) 
 
 (d) Any one having an interest in stock standing in 
 
 another's name may prevent any transfer of it by 
 serving on the Bank an ofSce copy of the affidavit 
 as to his interest, and of the notice required under 
 Rules of the Supreme Court, Ord. XL VI. r. 4. 
 This process is equivalent in its effect to the 
 former writ of distringas. 
 
 (e) Stock cannot be taken in execution under a writ 
 
 of fieri facias ; but under Judgments Act, 1837, 
 ss. 14 and 15, and 3 & 4 Vict. e. 28, s. 1, a 
 judgment creditor can obtain a charging order 
 on the debtor's stock. Such order operates as a 
 distringas. 
 
 (f) Stock is not " goods " within sect. 4 of the Sale of 
 
 Goods Act, 1893. [See supra, p. 262.) 
 
 Interests in Corporations Aggregate. — Corporations {see 
 infra, p. 382) are of two kinds — corporations sole and cor- 
 porations aggregate. The former consist of one individual 
 at a time, the latter of more than one. It is with the 
 latter only that we are now concerned. 
 
INTERESTS IN CORPORATIONS AGGREGATE. 35.'? 
 
 A corporation aggregate differs from an unincorporated 
 group of individuals owning property together, or acting 
 together for a common purpose, in this respect, that it is 
 recognized by the law as in itself a person {persona) or 
 legal unit, having an existence altogether distinct from 
 the individuals composing it. {Supra, p. 125.) These 
 individuals have no personal interest in its property, and 
 at common law they had no personal liability for its debts. 
 Its acts are not their acts, and they as much as strangers 
 are bound to respect its legal rights. Its corporate identity 
 is manifested by its common seal, which alone gives 
 validity to its corporate acts. 
 
 Corporations aggregate may be divided primarily into 
 political and non-political corporations. The former of 
 these include municipal corporations, county councils, and 
 such like, and with them we have little to do save to point 
 out that when they, under the authority of Parliament, 
 borrow money for local works or other pubHo purposes, 
 the stock thereby created corresponds closely to stock in 
 government securities, except that usually it must be 
 redeemed within a given period. Non-political corpora- 
 tions, on the other hand, may themselves be divided into 
 commercial corporations, more commonly called com- 
 panies,'^ and benevolent or religious corporations, more 
 commonly called societies. It is commercial corporations 
 with which we are now most concerned. 
 
 Commercial corporations — that is, corporations formed 
 for the purpose of making profits for their members — may 
 be established by charter granted by the Crown, or by 
 special Act of Parliament, or by registration under the 
 
 ' The word "company" is often applied to unincorporated groups 
 of individuals carrying on business in common, each, individual 
 having a share of the joint capital which he could alienate at will. 
 This latter characteristic distinguishes them from ordinary partner- 
 ships — where the relation between the partners is personal, and 
 cannot be altered by the introduction of a new partner, save by 
 common consent — which in other respects they are. {Smith v. 
 Anderson, 15 Ch. D. 247, at p. 273.) 
 
 S. A A 
 
354 PEOPRIETARY RIGHTS NOT OVER THINGS. 
 
 provisions of the Companies Act, 1862. Where a cor- 
 poration is established by charter or special Act, its con- 
 stitution and powers depend upon the provisions of the 
 charter or Act. These, however, usually follow similar 
 lines ; and to ensure this in the case of corporations 
 established by special Act the general provisions contained 
 in the Companies Clauses Acts, 1845 — 1869, are made 
 applicable to them unless expressly excluded by the 
 special Act. Besides these, there are numerous other 
 Acts of a similar character applying specially to companies 
 formed for definite purposes, such as constructing gas- 
 works or waterworks for towns, harbours or piers, ceme- 
 teries, &c. The object of all these Acts is to give 
 uniformity, as far as possible, to corporations established 
 by special Acts for similar purposes. 
 
 Charters and special Acts are now the means used for 
 establishing commercial corporations of a public nature, 
 such as corporations having semi-sovereign rights in 
 foreign countries and corporations carrying on great 
 public undertakings, like railways, town waterworks, &c. 
 The common mode of incorporating companies for ordinary 
 trading purposes is by registration under the Companies 
 Act, 1862. 
 
 That Act prohibits the formation of any banking 
 partnership of more than ten members, and of any other 
 trading partnership of more than twenty members. 
 (Sect. 4.) A partnership, however, of at least seven 
 members may, under its provisions, be incorporated into a 
 joint stock company by the members subscribing a 
 memorandum of association, and in some cases {see infra, 
 J). 866) articles of association, and having these registered 
 with the registrar of joint stock companies. (Sect. 17.) 
 The memorandum of association must in all cases state — 
 (a) the name of the proposed company ; (b) the part of 
 the United Kingdom in which it proposes to have its place 
 of business; and (c) its proposed objects. When there 
 are articles of association (as there usually are), these set 
 
INTERESTS IN COEPORATIONS AGGREGATE. 355 
 
 out the regulations under which the company is to carry 
 on its business. (Sects. 6 — 10, Companies Act, 1862.) 
 
 Companies established by registration under the Com- 
 panies Act, 1862, differ from corp)orations at common law 
 in two very important respects. Ordinary corporations, 
 as we have seen, must use their common seal to give 
 validity to their corporate acts and, more particularly, 
 their contracts. Joint stock companies need use their 
 common seal only in making contracts which, if made 
 between individuals, would by English law have to be 
 under seal. All other contracts may be made by an agent 
 on behalf of the company in the same way as they are 
 made between individuals. (Sect. 37, Companies Act, 
 1867.) Again, in corporations at common law, the cor- 
 porators have no personal liability for the corporation's 
 debts. In a joint stock company under the Act, the 
 corporators may enjoy this immunity, or they may enjoy 
 it to a certain degree only, or they may not enjoy it at all, 
 according as the company is limited or unlimited, and 
 their shares in it are fully paid up or not. 
 
 In an unlimited company, every member, on the dissolu- 
 tion — or winding-up, as it is called — of the company, is 
 liable rateably with the other members for the company's 
 debts. In a limited company, the members' liability may 
 be limited either by guarantee or by shares. (Sect. 7, 
 Companies Act, 1862 ; sect. 27, Companies Act, 1900.) 
 If it is to be limited by guarantee, then the memorandum 
 of association must state that each member undertakes, in 
 case the company is wound up while he is a member, to 
 be liable for its debts rateably with the other members up 
 to a certain amount. If it is to be limited by shares, then 
 the memorandum of association must state that, and also 
 set out the proposed amount of the company's capital, 
 dividing it into shares of a. certain fixed amount. Then 
 each shareholder's liability is limited to the amount of the 
 shares he holds. If the shares are only partly paid up — 
 if, for instance, each of his shares is for 100/., and only 
 
 A A 2 
 
356 PROPEIE'l'AKY RIGHTS NOT OVER THINGS. 
 
 60^. has been paid up on them — then he is liable to be 
 called upon, either by the company itself, or, on winding- 
 up, by the liquidator, to pay the remaining 50/., and if he 
 fails to do so, his shares may be forfeited. If, however, 
 the whole amount is paid up, he is liable for no further 
 calls, either from the company or the liquidator. His 
 shares are then called " fully paid-up " shares. 
 
 When a company is limited, either by guarantee or by 
 shares, the word " limited " must be the last word of its 
 registered name, and its registered name must be displayed 
 outside its registered place of business, and must be used 
 in all its notices, bills, cheques, invoices, receipts, and 
 papers generally. 
 
 When a company is unlimited, or limited by guarantee, 
 it must, and when it is limited by shares it may, register 
 with its memorandum of association articles of association 
 setting out such regulations as to the conduct of its 
 business as may seem expedient. (Sect. 14.) The 
 memorandum and articles of association together form 
 the constitution or deed of settlement of the company. 
 The articles may be altered subsequently by special 
 resolution of the members of the company (sect. 50), but 
 the memorandum can only be altered in some particulars. 
 Thus the capital may be increased, the shares may be 
 divided into larger amounts, or the paid-up shares may be 
 changed into stock by special resolution. (Sect. 12.) And 
 the name may be changed with the consent of the Board 
 of Trade (sect. 13), and the capital may be reduced with 
 the consent of the Court (sects. 9 — 20, Companies Act, 
 1867) by a similar resolution. But practically, with these 
 reservations, the memorandum is unalterable. 
 
 In all companies a register of members must be kept 
 (sect. 25, Companies Act, 1862) ; and in companies in 
 which the capital is divided into shares, a copy of this 
 register, with other particulars, must be made out annually, 
 aud forwarded to the registrar of joint stock companies. 
 (Sect. 26.) 
 
INTERESTS IN CORPORATIONS AGGREGATE. 357 
 
 A company registered under the Companies Act, 1862, 
 is liable to be compulsorily wound up when {inter alia) it is 
 unable to pay its debts. The proceedings are now regulated 
 by the Companies (Winding-up) Act, 1890. It is suffi- 
 cient to say here that the policy of that Act is to approxi- 
 mate as far as possible the procedure in the winding-up of 
 companies to that on the bankruptcy of individuals. As 
 to the liability of members on winding-up, besides the 
 limitation in the case of limited companies to the amount 
 unpaid on the shares or the amount guaranteed, the 
 following limitations obtain in all cases : — 
 
 Xo past member of any company is liable to contribute — 
 
 (a) To the assets in any way where he has, at the date 
 
 of the winding-up, ceased to be a member of 
 the company for one year or more ; 
 
 (b) When he has not so long ceased to be a member, to 
 
 any debt or liability contracted since he ceased 
 
 to be a member ; 
 (o) In any case, until it appears that the existing 
 
 members are unable to satisfy the contributions 
 
 required to be made by them under the Act. 
 
 (Sect. 38, Companies Act, 1862.) 
 With regard to interests in joint stock companies underthe 
 Companies Act, 1862, the following points may be noticed: — 
 
 (a) Shares, stock, or other interests in them are person- 
 
 alty. (Sect. 22, Companies Act, 1862.) So are 
 interests in companies established by special Act 
 of Parliament, with the exception of interests in 
 one or two ancient companies, of which the New 
 River and the River Avon are the most notable 
 instances. Interests in these are tenements 
 within the statute De Bonis [Dnjhidter v. Bar- 
 ihohmew, 2 P. Wms. 127) ; 
 
 (b) Fully paid-up shares may be consolidated into stock. 
 
 (Sect. 12.) The difference between shares and 
 stock is this : shares canm it be assigned in frag- 
 ments ; stock may be so assigned (joer Lord 
 
358 PROPEIETAEY EIGHTS NOT OVEE THINGS. 
 
 Cairns, C, Morrice v. Aylmer, L. E. 10 Ch. App. 
 148, at p. 154) ; 
 
 (c) A certificate under the common seal of the company 
 
 is prima facie evidence that the shares or stock 
 therein specified belong to the person in whose 
 name they stand (sect. 31) ; 
 
 (d) Shares and stock may be transferred in the manner 
 
 prescribed by the regulations of the company. 
 (Sect. 22.) In companies established by special 
 Act incorporating the Companies Clauses Conso- 
 lidation Act, 1845, transfers must he by deed 
 registered at the office of the company ; 
 
 (e) Warrants for fully paid-up shares and stock may be 
 
 issued which will entitle the holder or bearer of 
 them to the shares or stock specified in them. 
 The title to the shares or stock can then be 
 transferred by delivery of the certificate (sect. 28, 
 Companies Act, 1867) ; 
 
 (f) Shares and stock of a deceased member are trans- 
 
 ferable by his personal representatives (sect. 24, 
 Companies Act, 1862) ; 
 
 (g) Shares and stock are subject to the provisions of 
 
 Ord. XL VI. r. 4, Rules of Supreme Court, and 
 
 of Judgments Act, 1837, and 3 & 4 Yict. c. 28 
 
 {see supra, p. 352) ; 
 (h) Shares and stock are not goods within sect. 4 
 
 of the Sale of Goods Act, 1893. {8ee supra, 
 
 p. 262.) 
 Companies established by special Acts of Parliament, if 
 they have borrowing powers under their Acts, and com- 
 panies registered under the Companies Act, 1862, if, by 
 their memorandum and articles of a,ssociation, they are 
 entitled to borrow, may raise loans by the issue of deben- 
 tures. By debenture is meant a security for a debt issued 
 under the seal of the borrowing company. It may or may 
 not constitute a charge upon the propertj^ of the company 
 [Edmonds v. Blaina Furnaces Co., 36 Ch. D. 215), though 
 
INTERESTS IN CORPORATIONS AGGREGATE. 359 
 
 in ordinary practice it usually does. When it does con- 
 stitute such a charge, the charge may be on a specific 
 portion of the company's property, and therefore practi- 
 cally a legal mortgage on it ; or it may be a charge on the 
 company's undertaking generally, leaving the company 
 power to deal with and dispose of its property in the usual 
 way of business, until a receiver is appointed on behalf 
 of the debenture holders, or until the commencement of 
 winding-up proceedings. In the latter case the deben- 
 ture is called a "floating" charge. {Government Stock, 
 8^c. Inmatment Co. v. Manila Raihiviy Co., (1897) A. C. 
 81 ; In re Yorkshire Woolcombers' Association, Ltd., (1903) 
 2 Oh. 284.) These charges must now be registered. 
 (Companies Act, 1900, s. 14, and Companies Act, 1907, 
 s. 10.) 
 
 When debentures are charged on a specific portion of 
 the company's property, they are legal mortgages of it, 
 and the holders have the rights of legal mortgagees. 
 When they are floating securities the holders' ordinary 
 remedy is by appointing a receiver. They have no power 
 of sale unless it is expressly conferred by the trust deed 
 securing the debentures, and if the undertaking be of a 
 public nature, no power to appoint a manager. 
 
 A floating charge given by a company within three 
 months of its being wound up is now invalid save as to the 
 amount of cash paid under it to the company immediately 
 after it was made or subsequently, unless it can be shown 
 that the company was solvent at the time the charge was 
 created. (Companies Act, 1907, s. 13.) 
 
 Companies established by Act of Parliament incorporat- 
 ing Part III. of the Companies Clauses Act, 1863, may 
 raise money on debenture stock to the same extent as they 
 are authorized to raise money on mortgages or beads. 
 The holders of such stock are entitled to their full interest 
 before any dividend is paid to shareholders, but they are 
 not entitled to repayment of their capital, and they are 
 not entitled to share in the government of the company. 
 
360 PROPRIKTARY RIGHTS NOT OVER THINGS. 
 
 Companies registered under the Companies Act, 1862, 
 may be empowered under their memorandum of associa- 
 tion to issue debenture stock. Both companies incorpo- 
 rating the Companies Clauses Act, 1863, and companies 
 registered under the Companies Act, 1862, are required 
 to keep a register of charges affecting their property, and 
 these do not require registration under the Bills of Sale 
 Act, 1878. By sect. 14 of the Companies Act, 1900, all 
 debentures creating a charge on the property of a company 
 registered under the Companies Acts must be registered 
 within 21 days with the registrar of joint stock companies, 
 or they will be void as against the liquidator or any 
 creditor of the company. 
 
 Monopolies. — In ordinary language a monopoly means 
 the exclusive right to make, deal in or use a particular 
 thing. In English law, however, the term is applied only 
 to such an exclusive right arising under a grant from the 
 Crown. (3 Inst. 181.) In this restricted sense it is now 
 practically synonymous with what in modern times is 
 usually called a patent. 
 
 In the broader sense the term includes not merely patents, 
 but copyright, the. right of performing dramatic and musical 
 compositions, and the right to trade marks and trade names. 
 For the purpose of arrangement we will use the term in 
 its broader sense, and discuss shortly these different rights 
 under the head of monopolies. 
 
 Before treating of these separately we may notice one 
 or two points all have in common : — All are pure person- 
 alty ; all are freely assignable at law, though trade marks 
 and trade names are not assignable in gross, but only as 
 appendant to the manufactures or business with which 
 they are connected ; and as to all, the remedy for all 
 infringement of the owner's exclusive right is an injunc- 
 tion restraining the defendant from further infringement 
 and damages for any injury already done. 
 
 By a patent is meant a grant from the Crown by letters 
 
MONOPOLIES : PATENTS. 361 
 
 patent of the exclusive right or privilege of making, using, 
 or selling a certain thing. It is, therefore, a franchise or 
 "a regal privilege in the hands of a subject" {The Queen 
 V. Judge of Halifax Conntij Court, (1891) 2 Q. B. 263), 
 though, unlike most franchises, it does not savour of the 
 land. [Supra, p. 332.) At one time the Crown exercised 
 the right to grant patents to make, use, or sell any article, 
 vyhether that article was the result of a new invention, or 
 something long the subject of manufacture or commerce 
 in the realm. Whether it ever had any legal claim to this 
 power is very questionable. {See 1 Hawk. P. 0. 231.) 
 At any rate, by sect. 6 of the Statute of Monopolies, 
 1623, it was definitely prohibited from exercising it except 
 in case of " the working of new manufactures within the 
 realm," and then the patents were to be granted only to 
 the " true and first inventors " of these new manufactures, 
 and were to continue in force for no greater period than 
 fourteen years from the date of the letters patent. (21 
 Jao. I. 0. 3, s. 6.) 
 
 The law as to patents is now consolidated by the Patents, 
 Designs, and Trade Marks Act, 1883, as amended by 
 Patents, &c. Amendment Acts, 1885 and 1888. This Act 
 repeals, along with the other earlier Acts, the Statute of 
 Monopolies, but the principles regulating the grant of 
 patents are unaltered. (Sect. 46.) 
 
 Under the Act, patents are granted by the Comptroller 
 of the Patent Office. All applications for them must be 
 accompanied by a provisional or complete specification, 
 and if the accompanying specification be only provi- 
 sional, a complete specification must be delivered within 
 nine months of the application, or the application will 
 lapse, subject to a power given to the comptroller to 
 extend the time one month. A complete specification is 
 a full and fair description of the invention ; and if the 
 specification delivered be not full and fair, the comptroller 
 may reject it or may require modifications in it. (Sect. 9.) 
 On acceptance of a specification the comptroller advertises 
 
362 PROPRIETARY RIGHTS NOT OVER THINGS. 
 
 the aeoeptance (sect. 10), and any person may within 
 two months of the date of the advertisement give notice 
 of objection. (Sect. 11.) The comptroller hears the 
 objection— if any — and should he decide against the 
 objection, or should there be no objection, he issues a 
 patent under the seal of the patent offloe. (Sect. 12.) 
 There is an appeal from the comptroller of patents to the 
 law officers of the Crown. After grant (or before it) 
 application may be made to amend the specification by way 
 of disclaimer, correction or explanation, provided that at 
 the time of application no proceedings affecting the 
 validity of the patent are pending. If such proceedings 
 are pending, amendment can only be made with the 
 consent of the Court. (Sects. 18 and 19.) If the specifi- 
 cation is incomplete, or ambiguous, unless amended, any 
 patent granted on it is void. 
 
 It is unnecessary to enter here on a discussion of the 
 law of patents. The following points, however, may be 
 noted : — 
 
 (a) The grant of a patent is a matter not of right but 
 
 of favour. 
 
 (b) Patents can be granted only for " the working of 
 
 new manufactures within the realm." 
 
 That is, they must be "manufactures." A 
 patent is not grantable for a mere idea, but for 
 the actual working improvements in the methods 
 of doing or making something. 
 
 And they must be " new within the realm." 
 They must, in other words, be either original 
 discoveries, or, at any rate, processes hitherto 
 not publicly practised or known in this country. 
 
 (c) They can be granted only to the " true and first 
 
 inventor " himself — that is, the person who 
 makes the discovery or imports from abroad the 
 novel process. A mere assignee of the invention 
 cannot apply for a patent. 
 
 By sect. 5, sub-sect. 1, of the Patents Act, 
 
MONOPOLIES : COPYRIGHT. 363 
 
 1883, in the case of a joint application by two or 
 more persons for a patent, it is sufficient if one 
 of the applicants is the true and first inventor. 
 
 (d) A patent once granted has effect throughout the 
 
 United Kingdom (sect. 16), and may entitle the 
 patentee to patents in the colonies and in foreign 
 countries. (Sect. 103.) 
 
 (e) The duration of a patent is fourteen years from the 
 
 date of application for it (sect. 17) ; but this 
 period may, on proof that the patentee has been 
 insufficiently remunerated by receipts under the 
 patent, be extended for a further period of seven 
 or, in exceptional circumstances, of fourteen years. 
 (Sect. 25.) [In re Boicer-Barff Patent, (1895) 
 A. 0. 675.) 
 
 (f) The patentee may assign his patent completely, or 
 
 assign his right as to a certain place (sect. 36), 
 or grant a licence to use it. 
 
 (g) A register of patents is now kept at the Patent 
 
 Office, and all assignments, complete or partial, of 
 registered patents, must be registered. (Sects. 23 
 and 87.) 
 (h) When the patent is not being worked in the United 
 Kingdom, or when the reasonable requirements 
 of the public as to the invention are not being 
 supplied, or when some other person than the 
 patentee is prevented from using to the best 
 advantage another invention possessed by him, 
 the Board of Trade may order a compulsory 
 licence to be granted. (Sect. 22.) 
 Gopijright may be defined as the exclusive right of pro- 
 ducing copies of an original literary, musical, or artistic 
 composition or work. The law as to copyright in literary 
 and musical compositions, maps, plans and charts depends 
 primarily on the Copyright Act, 1842. That affecting 
 artistic works is contained in a multitude of statutes, 
 including 8 Geo. II. c. 13 (amended by 7 Geo. III. c. 38, 
 
364 PEOPRIETAKY EIGHTS NOT OVER THINGS. 
 
 and 17 Geo. III. c. 57, and extended by 16 & 16 Viet. 
 c. 12), which secures copyrights in engravings and prints, 
 and pictures produced by mechanical process ; 38 Geo. Til. 
 c. 71 (amended by 64 Geo. III. c. 71), which secures 
 copyright in sculptures ; 26 & 26 Vict. o. 68, which secures 
 copyright in original paintings, drawings, and photo- 
 graphs ; and the Patents, Designs, and Trade Marks Act, 
 1883, which secures copyright in registered designs. 
 
 Dealing with the most important of these enactments — 
 the Copyright Act, 1842 — it secures to the author of a 
 book the copyright of it for the term of the author's life 
 and seven years more, or of forty-two years after its 
 publication, whichever may be the longer. (Sect. 3.) 
 Where the author is dead the copyright in his unpublished 
 books resides in the owner of the author's manuscript who 
 first publishes them. (See Macmillan Sf Co. v. Dent, (1907) 
 1 Ch. 107.) " Book " here includes every volume, part or 
 division of a volume, pamphlet, sheet of letter-press, sheet 
 of music, map, chart, or plan separately published. 
 (Sect. 2.) And it has been held that a newspaper is 
 within this definition ( IFir/Zifer v. -Hom-p, 17 Oh. D. 708), 
 while the engravings and other illustrations of a volume 
 are protected as part of the book. {Bogue v. Houhton, 
 6 De G. & Sm. 267.) Copyright is only given — inde- 
 pendently, that is, of conventions under the International 
 Copyright Acts, 1844, 1862, 1862 and 1886— when 
 the publication has taken place first in the British 
 dominions (Copyright Act, 1886, s. 8), or simultaneously 
 in the British dominions and abroad [Buxton v. James, 
 5 De G. & Sm. 80), and when the book is original — that 
 is, is not a copy or piracy of some other book. ( Walter 
 V. Lane, (1900) A. C. 639.) 
 
 As to contributions to encyclopssdias, periodicals, and 
 works published in a series of books or parts, or other 
 miscellaneous work, the proprietor, when he has engaged 
 the authors to write the contributions on the terms that he 
 shall have the copyright in such contributions and paid 
 
MONOPOLIES : COPYRIGH r. 365 
 
 the authors for them [Sweet v. Beming, IH 0. B. 484 ; 
 Lawrence and Biillen, Ltd. v. Aflalo, (1904) A. C. 17), is 
 entitled to the copyright as if he were the author. In the 
 case, however, of magazines and other like works the 
 proprietor is entitled only to republish such contributions 
 along with the other matter which originally appeared 
 with them [Mayheio v. Maxwell, 1 John. & Hem. 312), and 
 at the end of twenty-eight years after their first publica- 
 tion in the magazine the authors are entitled themselves 
 to publish them. (Sect. 18.) 
 
 Provision is made for the registration at Stationers' 
 Hall of books entitled to copyright under the Act. 
 (Sect. 11.) Strictly speaking, however, registration is not 
 requisite to obtain copyright ; it is requisite merely to 
 obtain a remedy for the infringement of it. {Trade 
 Anxilianj Co. v. Middleshrough, S(c. Tradesmen's Protection 
 Association, 40 Ch. D. 430.) And registration at any 
 time before the writ of summons issues, even though sub- 
 sequent to the alleged infringement, is sufficient to support 
 an action for piracy. As to periodicals, registration of the 
 first number issued is enough to protect the whole series 
 (sect. 19) ; and where the first number has not been regis- 
 tered, registration of any subsequent number is enough to 
 protect that particular number's contents. [Dick v. Yates, 
 18 Ch. D. 76.) Assignments of copyright may be made 
 by entry in the register. (Sect. 13.) 
 
 A right akin to copyright is the exclusive right to per- 
 form publicly a dramatic or musical composition. This 
 right is secured to the author by the Copyright (Dramatic) 
 Act, 1833, as amended by sects. 20, 21, and 22 of tlie 
 Copyright Act, 1842, which apply the provisions of that 
 Act as to registration of copyrights to the right to perform- 
 ance. The assignment of the copyright of a musical or 
 dramatic piece does not convey the right of performance 
 unless the entry of the assignment in the register is 
 accompanied by a statement of the intention to convey it. 
 (Sect. 22.) By -the Copyright (Musical Compositions) Act, 
 
366 PROPRIETARY RIGHTS NOT OVER THINGS. 
 
 18H2, when the owner of a musical composition wishes to 
 retain the right of public performance of it he must, on 
 publishing the composition, print on each copy a notice to 
 this effect. And by the Copyright (Musical Compositions) 
 Act, 1888, power is given to the Court to reduce the penalty 
 for infringement of such right of performance which, by 
 sect. 2 of the Copyright (Dramatic) Act, 1833, was fixed 
 at not less than forty shillings for each breach, with full 
 costs. 
 
 Akin also to copyright are the rights to trade marks and 
 trade names. Trade marks are marks commonly used by 
 manufacturers to distinguish goods or classes of goods 
 produced by them. The Trade Marks Act, 1905, makes 
 provision for their registration at the Patent Office, in a 
 book called the register of trade marks (sect. 4), and no 
 person shall be entitled to institute proceediags for the 
 infringement of a trade mark unless the same has been 
 registered, or registration of it has been refused. (Sect. 42.) 
 Previous to the Registration Acts, the right to a trade 
 mark, like the right to a trade name, had to be acquired 
 by the public use of it; but now an application for the re- 
 gistration of a trade mark is made equivalent to its public 
 use (sect. 39), and accordingly, if no other person be 
 entitled to the mark, it makes a good title to it. And 
 registration is to be priind facie evidence of the registered 
 owner's right to it. (Sect. 40.) The right to a registered 
 trade mark can be assigned only with the goodwill of the 
 business concerned in the particular goods or classes of 
 goods for which it has been registered. (Sect. 22.) 
 
 Trade names are names associated by public user with 
 certain firms, or imdertakings, or manufactures. When 
 such a name has been so associated for such a time as to 
 become identified in the public mind with the firm, under- 
 taking, or manufacture to which it is applied, then it 
 becomes, in a sense, the property of that firm, or of the 
 proprietors of the undertakings or manufactures. {Borth- 
 icick v. Evening Post, 37 Ch. D. 449.) At any rate, the 
 
MONOPOLIES : TRADE MARKS. 367 
 
 first users of it have a legal right to prevent any other 
 persons so using it as to mislead the public. {Saxkhner v. 
 ApoUinaris Co., (1897) 1 Ch. 893.) When the use of 
 one's own name in a particular way is calculated to induce 
 the public to regard his goods as the goods of another 
 person of the same name, the latter can restrain its use in 
 that way. [Reddaway v. Banham, (1896) A. 0. 211.) 
 
( 368 ) 
 
 Part VII. 
 
 PERSONS UNDER DISABILITIES AS TO 
 PROPERTY. 
 
 — ♦ — 
 
 PACE 
 
 Disabilities and Persons 368 
 
 Section I. — Nattjeal Persons 369 
 
 Specific Disabilities 370 
 
 General Disabilities 373 
 
 Section II. — Aetipioial Peesons 382 
 
 Corporations 382 
 
 Charities 384 
 
 Disabilities and Persons. — Disability as regards property 
 consists in any incapacity to acquire, hold, or dispose of 
 property in general or some particular kind of property. 
 To make this incapacity a disability it must attach to the 
 person subject to it as an individual or as a member of a 
 certain class. The ownership or alienation of certain 
 things is sometimes made by the general law impossible or 
 illegal. In such cases the incapacity of a given person to 
 own them, or to convey a title to them, is not a disability, 
 but an incident of the legal nature of the thing itself. 
 
 We will discuss shortly the law as to disabilities accord- 
 ing as they affect natural persons or individuals, and 
 artificial persons or corporations sole and aggregate. 
 
( 369 ) 
 
 Section I. 
 NATURAL PERSONS. 
 
 PAGE 
 
 Oeneral Rule 369 
 
 Specific Disabilities 370 
 
 (a.) Act of Parliament 370 
 
 (b.) Public Policy 370 
 
 (c.) Conditions of Settlement 371 
 
 General Disabilities 373 
 
 (a.) Infants 373 
 
 PAOE 
 
 {b.) Married 'Women 375 
 
 (c.) Lunatics 378 
 
 (<;.) Illegitimate Persons 380 
 
 {«.) Aliens 380 
 
 (/.) Bankrupts 381 
 
 ((7.) Convicts 381 
 
 General Rule. — With regard to natural persons the 
 general rule is that every individual having the shape of 
 a human being is qualified to acquire and hold all kinds 
 of property recognized by English law. Monsters — that 
 is, creatures born of human parentage but not having the 
 shape of human beiags — are, it seems, not within this 
 rule. (Co. Litt. 7 b.) These are subject to a complete 
 incapacity to own property. 
 
 Not only has every individual the capacity to hold 
 property, but every individual has the full capacity to 
 dispose of any property he holds. This is the general 
 rule, and the tendency of the Courts has always been to 
 lean against any practice, custom, or statute which in- 
 fringes it, whether by making certain interests in property 
 inalienable, as the statute De Bonis attempted to make 
 fees tail inalienable {see sxqjra, p. 31), or by imposing a 
 special disability on a particular grantee as regards a 
 particular grant, as by a condition in general restraint of 
 alienation contained in a grant or settlement. {See supra, 
 p. 193.) 
 
 There are, however, various exceptions to this rule. 
 These exceptions are of two kinds. The first kind are 
 
370 PERSONS UNDER DISABILITIES AS TO PROPERTY. 
 
 such as affect individuals as regards specific property. 
 These we shall call specific disabilities. The other kind are 
 such as affect individuals as regards property generally, 
 or a species of property generally. These may be called 
 general disabilities. 
 
 Specific Disabilities. — Specific disabilities are limitations 
 imposed upon particular individuals as to their capacity 
 to acquire, or more commonly to alienate particular pro- 
 perty. They may arise (a) under a special Act of Parlia- 
 ment; (b) under considerations of public policy; (c) under 
 conditions of settlement. 
 
 (a) Act of Parliament. — Sometimes a private Act of 
 Parliament settles a certain estate to accompany a certain 
 title, or as an unbarrable fee tail. In such instances the 
 estate is inalienable, in the sense that the nominal owner 
 of it in fee simple or fee tail is not able to sell the estate 
 for his own benefit. But he can, as life tenant, sell under 
 the provisions of the Settled Land Act, 1882, s. 58. 
 
 Sometimes, again, a special Act of Parliament settles 
 Crown lands or lands to be purchased with public funds 
 on a person and his successors in a title of honour. Here 
 the lands are inalienable in the ordinary sense ; and in the 
 case of lands purchased with public money, if they be held 
 in tail and the reversion is in the Crown, they are also 
 inalienable under the Settled Land Act {idem). 
 
 Again, by several general Acts certain pensions granted 
 by the Crown to persons in acknowledgment of or recom- 
 pense for past services are declared to be inalienable by 
 such persons. In such cases only arrears actually accrued 
 due can be alienated. 
 
 (b) Public Policy. — When a salary is granted to a public 
 servant to enable him to discharge the duties of his oflBce, 
 or when a pension is granted to a former servant to support 
 him and keep him in readiness for further services, if re- 
 quired, such salary or pension is inalienable on grounds of 
 
NATtJEAL PERSONS : SPECIFIC DISABILITIES. 371 
 
 public policy. When no public duties are connected with 
 the oiEce, or when, by the terms of the pension, the pen- 
 sioner cannot be called upon for further services, the salary 
 or pension is alienable. {Grenfell v. Dean of Windsor, 
 2 Beav. 544.) 
 
 Allowances made to married women on separation or 
 divorce from their husbands are also, by the policy of the 
 law, inalienable. 
 
 (c) Conditions of Settlement. — A general condition against 
 alienation is, as we have seen, a void condition both at law 
 and in equity. An exception to this rule occurs in the 
 case of settlements upon married women. When property 
 is held by trustees for a married woman's separate use, or 
 even when it is her separate property only by virtue of the 
 Married Women's Property Act, 1882 {In re Lumley, Ex 
 parte Hood-Barrs, (1896) 2 Ch. 690), equity permits, as a 
 further safeguard of her rights, as against the coercion or 
 persuasion of her husband, that her life interest in it may 
 be made inalienable. This condition is called a condition 
 against anticipation. Under it the trustees are entitled to 
 pay the income to the married woman only when it has 
 actually accrued due, and any attempt on the woman's 
 part to assign the corpus of the property or the income of it 
 not yet accrued due is void. It is not liable for her debts 
 contracted during coverture (Pelton Brothers v. ITarrison, 
 (1891) 2 Q. B. 422), either during coverture or after her 
 husband's death, except she is made a bankrupt during her 
 husband's life. {Me Wheeler's Trusts, Briggs v. Ryan, 
 (1899) 2 Ch. 717.) The restraint does not apply to income 
 which has accrued due at the time judgment for the debt 
 was recovered {Hood-Barrs v. Reriot, (1896) A. C. 174) ; 
 but it does apply to income accruing after the date of the 
 judgment. ( Whiteley v. Edwards, (1896) 2 U. B. 48.) Nor 
 does the restraint prevent a married woman barring an 
 estate tail to which she is entitled {Cooper v. Macdonald, 
 7 Oh. D. 292), or releasing a power under sect. 52 of the 
 Conveyancing Act, 1881. {In re Chisholm's Settlement, 
 
 B b2 
 
372 PERSONS UNDER DISABILITIES AS TO PROPERTY. 
 
 Hemphill V. Hemphill, (1901) 2 Oh. 82.) Under sect. 39 
 of the Conveyancing Act, 1881, the Court may, where it 
 thinks it is for the benefit of the married woman, remove 
 the restraint on anticipation {see In re Pollard's Settlement, 
 (1896) 1 Ch. 901 ; In re Blundell, (1901) 2 Ch. 221) ; and 
 by sect. 2 of the Married Women's Propei-ty Act, 1893, 
 the Court may direct that the costs of proceedings at law 
 initiated by a married woman shall be paid out of her 
 estate, though that is subject to a restraint on anticipation. 
 {8ee Hood-Barrs v. Heriot, (1897) A. C. 177.) 
 
 This condition against anticipation is a specific disability 
 superimposed upon the general disability to which every 
 married woman is, or rather was, subject as to propei-ty at 
 common law. It binds the property only during cover- 
 ture. On death of the husband both the general and the 
 personal disability goes, and the widow is able to dispose 
 freely of the settled property, or rather of her interest in 
 it. But should she not dispose of it, or get it from the 
 trustees into her own hands, on her re-marriage the con- 
 dition against anticipation will revive along with her 
 general disability, or what now remains of it. 
 
 Where, however, a grantee or cestui que trust is under 
 no general disability, the only method of preventing 
 alienation is by making his interest come to an end on his 
 attempting to alienate. Thus a gift to trustees for the 
 benefit of B. for life, but in case he attempts to sell his 
 interest or becomes bankrupt, then his interest to deter- 
 mine, is good, subject to two conditions. In the first place, 
 such a settlement cannot be made by a man on himself of 
 his own land or goods. The law considers such a pro- 
 ceeding fraudulent and void. In the second place, any 
 settlement of this kind must contain what is called a gift 
 over on the happening of the condition— that is, it is not 
 sufiicient to say, on the grantee's attempting to sell or 
 becoming bankrupt his interest is to cease ; words must be 
 put in vesting his interest on that event in someone 
 else. 
 
NATURAL PERSONS : GENERAL DISABILITIES. 37B 
 
 General Disabilities. — What we have called specific dis- 
 abilities are commonly regarded not as disabilities proper, 
 but rather as characteristics attaching less to the owner of 
 the property than to the property owned. What we have 
 called general disabilities are commonly considered the only 
 disabilities affecting individuals. 
 
 The classes of individuals subject to general disabilities 
 are — (a) infants, (b) married ivomen, (c) lioiaUcfs, (d) illegiti- 
 mate ^yer sons, (e) aliens, (f) bankrupts, (g) convicts. Avery 
 short notice of each of these classes will be sufficient here, 
 since in the course of this work it has been necessary to 
 refer incidentally to most of the disabilities under which 
 they lie. 
 
 (a) Infants. — An infant — that is, an individual, male or 
 female, under the full age of twenty-one years— is under 
 no disability as to acquiring property by inheritance. He 
 is under no disability as to acquiring property under a 
 will, providing the acquisition is beneficial in its nature. 
 He may also acquire property by purchase for value, but 
 on coming of age he can repudiate the bargain without 
 assigning cause, unless he induced the vendor to sell by 
 fraudulent misrepresentation as to his age. For this reason 
 a contract to sell is not enforceable against the vendor 
 where the purchaser is an infant. 
 
 On the other hand, an infant cannot alien his property. 
 If, however, he does alienate it by deed operating by 
 delivery or by feoffment, or in the case of personalty by 
 sale or delivery, the transaction is not void but only 
 voidable. He cannot contract in such a way as to make 
 himself personally or his property liable for his debts, 
 and any promise after twenty-one to pay debts incurred 
 before that age is void. (Infants' Belief Act, 1874, s. 1.) 
 An infant cannot under any circumstances make a valid 
 will. (Wills Act, 1837, s. 7.) 
 
 The rule that an infant cannot alienate his property or 
 
374 PERSONS UNDER DISABILITIES AS TO PROPERTY. 
 
 incur legal debts is subject to exceptions, of which the 
 following are the most important : — 
 
 (a) An infant can incur debts for the supply of neces- 
 
 saries. What are necessaries to him depends on 
 his fortune and position in life and actual require- 
 ments ; 
 
 (b) An infant can, under 11 Geo. lY. & 1 Will. lY. 
 
 0. 47, s. 11, convey lands merely for the purpose 
 of making a title to them in cases where the lands 
 have to be sold or mortgaged for the payment of 
 debts ; 
 
 (c) Under the Infant Settlements Act, 1855, s. 1, an 
 
 infant, if a male over twenty, and if a female over 
 seventeen, may, in contemplation of marriage, 
 make a marriage settlement or contract for a 
 settlement, and every conveyance or assignment 
 executed by the infant with the sanction of the 
 Court will be good ; 
 
 (d) An infant tenant in gavelkind can at the age of 
 
 fifteen alienate by way of sale for value his gavel- 
 kind land by feoffment with livery of seisin, 
 evidenced by deed or writing {see In re Maskell 
 and Goldfinch's Contract, (1895) 2 Ch. 525) ; 
 
 (e) An infant can execute a power of appointment if the 
 
 power is not over realty {Rearle v. Grecnbank, 
 3 Atk. 695), is not coupled with an interest 
 (supra, p. 181), and it clearly appears from the 
 deed creating the power that such was the 
 donor's intention {In re Cardross's Settlement, 7 
 Uh. D. 728) ; 
 
 (f) An infant can present to a benefice. 
 
 During his minority an infant's property is managed by 
 his guardian (Military Tenirres Act, 1660), or the trustees 
 of the settlement or will under which the property has come 
 to him. Yarious powers are given by Act of Parliament 
 to the guardian or trustees besides those given by the will 
 or settlement or under the general law. Thus, by sects. 42 
 
NATURAL PERSONS : GENERAL DISABILITIES. 375 
 
 and 43 of the Conveyancing Act, 1881, the trustees of an 
 infant's land may enter into possession of it and manage 
 it during his minority and devote the income to his educa- 
 tion and benefit. By sect. 60 of the Settled Land Act, 
 1882, the powers given by that Act to a life tenant (see 
 supra, 2?. 74) may, when the life tenant is an infant, be 
 exercised by the trustees of the settlement, or if there be 
 none, by persons appointed by the Court on the applica- 
 tion of the infant's guardian or next friend. 
 
 (b) Married Women. — We have already, in treating of 
 marriage as a mode of acquiring property [see supra, 
 p. 310), said nearly all that is necessary as to married 
 women's past and present position as to property. We 
 will now merely give an outline of the development of the 
 law on the subject. 
 
 At common law the theory was that by marriage the 
 wife's identity became merged in that of the husband, and 
 this theory was rigorously carried out in regard to her 
 property. As we have seen, marriage vested, during the 
 continuance of the coverture, all the rights and obliga- 
 tions of the wife as to her freeholds, leaseholds, goods and 
 choses in action in the husband ; and as goods are 
 capable only of absolute ownership, this had the effect of 
 vesting these absolutely in him, while his interest in the 
 other kinds of property was merely temporary. As to 
 all, however, for the time being the husband and he 
 alone had any rights or obligations, and he alone could 
 acquire any rights or incur any obligations. The wife 
 could not bring an action to defend the property, 
 neither could she contract a debt to bind it. She could 
 during the coverture only contract debts as the agent of 
 her husband, and for all torts committed by her during 
 the coverture the husband was and still is liable. {Seroka 
 V. Katfenherg, 17 Q. B. D. 177 ; Earle v. Kingscote, (1900) 
 2 Ch. 585.) He was also liable for her pre-nuptial debts — 
 that is, the debts she was subject to at the time of her 
 marriage. 
 
376 PEHSONS UNDER DISABILITIES AS TO PROPERTY. 
 
 As to alienation, the husband was entitled to alienate 
 without the wife's consent her leaseholds and choses in 
 action ; but he could not alienate her freeholds. These 
 could only be alienated by the wife with the concurrence 
 of her husband, who had to join in the deed. And the 
 deed had to be acknowledged by the wife before a judge 
 of the superior Courts or of a county court, or before two 
 commissioners (now one) for taking acknowledgments of 
 married women, who examined her apart from her husband 
 as to her knowledge and desires as to what she was doing. 
 (Fines and Recoveries Act, 1833, ss. 77, 79 and 80 ; and 
 Conveyancing Act, 1882, s. 7.) 
 
 Equity altered this state of the law by permitting 
 trustees to hold property for the use of a married woman 
 independently of her husband. This is what is called a 
 trust for the wife's separate use. When property is so 
 held, the wife is entitled to it practically as if she were 
 immarried or a, feme sole. She could alienate it infer vivos, 
 bind it by her contracts, and devise or bequeath it by her 
 will. Equity, however, permitted her to be deprived of 
 the first two of these powers by a condition against antici- 
 pation in the settlement. {See supra, p. 371.) 
 
 Equity interfered with the common law view in another 
 way. When the wife, or the husband in right of the wife, 
 became entitled to property which was recoverable only in 
 equity — such as a legacy — or which was the subject of a 
 suit in equity, the Court, on the application of the wife, 
 would refuse to permit the husband to receive the property 
 until he agreed to settle a portion of it, as approved by 
 the Court, upon the wife and the children of the marriage. 
 This right of the wife was called her equity to a settle- 
 ment. {Lady Elibank v. Moniolieu, 5 Ves. 737 ; 1 W. 
 &T.) 
 
 This state of the law was altered by the Married 
 Women's Property Act, 1870, and certain other statutes 
 which gave protection to a wife's property as against her 
 husband imder certain conditions and circumstances. 
 
NA.TURAL PERSONS : GENERAL DISABILITIES. 377 
 
 But most of these were repealed or superseded by the 
 Married Women's Property Act, 1882. As before stated, 
 the effect of that Act has practically been to make all the 
 property of women married since 31st December, 1882, 
 and all the property accruing since that date to women 
 married before it, the wife's separate estate without the 
 necessity of a settlement. It does not, however, interfere 
 with the law of settlement as established before its enact- 
 ment (sect. 19), and as to the property accrued before 
 31st December, 1882, to women married before it, the old 
 law still prevails. 
 
 Property accruing to married women before 1883 means 
 accruing either in possession or in title. Accordingly, a 
 reversionary interest which accrued in title before 1883, 
 but which fell in since then, is not separate estate within 
 the Act. And accordingly, as to it, the old law as to the 
 wife's equity to a settlement and as to its alienation if 
 freehold by separately acknowledged deed still prevails. 
 {Reid V. Reid, 31 Ch. D. 402.) 
 
 As regards her statutory separate estate, unless she is 
 restrained from anticipating it {In re Lumh'ij, Ex parte 
 Hood-Bans, (1896) 2 Ch. 690), a married woman is prac- 
 tically under no disability now. She can sell it, leave it 
 by will, bind it by her contracts, and sue and be sued as 
 to it precisely as if she were e^fcme HoIe. If she owns the 
 first estate of freehold under a settlement she is competent 
 to be protector of the settlement. (Married Women's 
 Property Act, 1907.) Indeed, as regards her separate 
 estate, coverture is no longer a disability within the Statute 
 of Limitations. ( Weldon v. Neal, 51 L. T. 289.) In many 
 other respects the Act of 1882 has increased the legal 
 capacity of married women. Thus, they can, without 
 their husbands joining or being joined as co-plaintiffs or 
 co-defendants, sue for and are liable for torts. (The 
 husband, if sued jointly with his wife, still remains Hable 
 for her torts.) If they trade separately from their 
 husbands they are liable to be made bankrupt. (Sect. 1.) 
 
378 PERSONS UNDER DISABILITIES AS TO PROPERTY. 
 
 They cannot, however, bind themselves personally for 
 their debts under the Debtors Act, 1869 ; the creditors' 
 sole remedy is against their estates {Scott v. Morley, 20 
 Q. B. D. 120), though they can now contract without 
 having at the time of contracting any separate estate 
 which they can bind, or any separate estate whatever. 
 (Man-ied Women's Property Act, 1893, sect. 1 (a).) 
 They may act without their husband's consent as execu- 
 trixes or trustees (sect. 18, Married Women's Property 
 Act, 1882), and can convey the property held by them as 
 such without their husbands joining in the conveyance. 
 (Sect. 1, Married Women's Property Act, 1907.) A 
 husband, however, is no longer liable on his wife's con- 
 tracts, save when she contracts as his agent, nor for her 
 liabilities as executrix or trustee, nor for her prenuptial 
 debts or torts, save to the extent of the property he may 
 have received through her. (Sect. 13.) And the wife's 
 property remains liable for these last in spite of any 
 condition against anticipation imposed upon it at her 
 subsequent marriage. {Kirk v. Murphy, 30 L. E. Ir. 508.) 
 (c) Lunatics. — The will of a person lunatic, idiot, or 
 otherwise of unsound mind— as in consequence of extreme 
 age — is absolutely void. {Smith v. Tebbett, L. R. 1 P. & 
 M. 398.) The conveyance of such a person is voidable, 
 unless the other party to it was unaware and took no 
 unfair advantage of his lunacy.^ The rule as to con- 
 veyances applies to purchases by a lunatic, and every other 
 form of executed contract. {Beavan v. McDonnell, 23 L. J. 
 Ex. 94 ; Drejv v. Nwnu, 4 Q. B. D. 661.) A will or con- 
 veyance made by a lunatic during a lucid interval is 
 perfectly valid, unless the lunatic is a lunatic so found. 
 
 ' Formerly a person was not allowed to plead, in avoidance of 
 his conveyance, his own insanity when he made it, on the ground 
 that if he was then really insane he could remember nothing about 
 it. Accordingly, if he died without recovering his wits his heir 
 could have the conveyance voided, but if he recovered them he 
 could not. (2 Bl. Com. 291, 292.) 
 
NATUEAL PERSONS : GENERAL DISABILITIES. 379 
 
 when his conveyance, but not his will, is void. {In re 
 Walker, (1905) 1 Ch. 160.) 
 
 The powers of the Court in Lunacy are now set out in 
 the Lunacy Act, 1890 (as amended by the Lunacy Act, 
 1891), which repeals and consolidates many earlier statutes. 
 This Act does not extend to Ireland. The jurisdiction 
 over lunatics in Ireland is in the Lord Chancellor of 
 Ireland, and is practically co-extensive with that possessed 
 by the Court of Lunacy in England. (34 & 35 Yict. 
 c. 22.) 
 
 Lunatics are either lunatics so found by inquisition or 
 lunatics not so found. When a lunatic is so found a 
 guardian of his person and property — called his committee 
 — is appointed by the Lord Chancellor or Lords Justices 
 having jurisdiction in lunacy. This committee, who is an 
 oificer of the Court in Lunacy, manages the lunatic's pro- 
 perty subject to the sanction of the Com-t. (See Part IV., 
 Lunacy Act, 1890.) The rule in so managing it is to 
 regard only the lunatic's interest and that of his family, 
 but, subject to this, not unnecessarily to alter the nature of 
 the property so as to affect the respective rights of his heir 
 or next of kin on his death — as by selling realty belonging 
 to him or investing his personalty in realty. {Oxendon v. 
 Compton, 2 Ves. jun. 72.) 
 
 As has already been pointed out, when a lunatic is pro- 
 tector of a settlement, his committee, with the sanction of 
 the Court in Lunacy, can consent for him to bar the entail ; 
 and under the Settled Land Act, 1882, when the life 
 tenant is a lunatic, the powers given him by the Act may 
 be exercised by his committee under the order of the Lord 
 Chancellor or other judges having jurisdiction in lunacy. 
 (Sect. 62.) Where a trustee is a criminal lunatic, juris- 
 diction over the trust property is vested in the High Court, 
 which can make vesting orders respecting it under sect. 5 
 of the Trustee Act, 1880. {In re R., (1906) 1 Ch. 700.) 
 
 As to lunatics not so found, the Court in Lunacy has no 
 jurisdiction independent of statute. {Be Wilton, 2 C. P. 
 
380 PERSONS UNDER DISABILITIES AS TO PROPERTY. 
 
 Coop. temp. Lord Oottenham, 208.) Now, however, by- 
 sect. 116 of the Lunacy Act, 1890, the provisions of that 
 Act apply to the case of lunatics not so found in all cases 
 where it is proved to the satisfaction of the judge in lunacy 
 that a person not found lunatic is of unsound mind and 
 incapable of managing his own affairs, and that his pro- 
 perty does not exceed in value 2,00U/. or that the income 
 thereof does not exceed 100/. per annum. Where a lunatic's 
 fortune exceeds these limits, the only mode of bringing him 
 within the jurisdiction of the Court is by a proceeding de 
 inquirendo lunatico. 
 
 (d) Illegitimate Persons. — As has already been pointed 
 out, persons not born in lawful wedlock are, in law, nuUius 
 filii — the children of nobody. They are accordingly in- 
 capable of acquiring by inheritance or intestate succession 
 from their parents or any person related to them through 
 their parents. The only relatives they can have whom 
 the law will recognise as relatives are their descendants, 
 to whom they may succeed as heirs-at-law or next of Mn. 
 
 It may be added that the illegitimate children of a 
 person not being regarded by the law as his or her children, 
 they will not be included in a bequest or devise to that 
 person's children, unless the person in question to the 
 knowledge of the testator was dead (or, if a woman, past 
 child-bearing) , having had only illegitimate children {In re 
 Homer, Eagleton v. Homer, 37 Oh. D. 695), or unless the 
 illegitimate children are identified by a sufficient descrip- 
 tion. {See In re Fish, Ingham v. Rayner, (1894j 2 Ch. 83 ; 
 Under. & Stra. Wills, pp. 78—89.) As to gifts to illegiti- 
 mate children as a class, see In re Mayo, Chester v. Ketrl, 
 (1901) 1 Ch. 404. 
 
 (e) Aliens. — Formerly aliens — that is, persons born out 
 of the ligeance of the King (7 Co. 16 a, Calrin's Case) — 
 were subject to many disabilities, more especially with 
 regard to the ownership of land. These, however, have 
 been abolished by sect. 2 of the Naturalization Act, 1870, 
 which confers upon an alien the same capacity as a subject 
 
NATURAL PERSONS : GENERAL DISABILITIES. 381 
 
 of the King as to the ownership of all kinds of property. 
 This general provision, however, is limited by sect, 1 of 
 the Merchant Shipping Act, 1894, which denies to aliens 
 the capacity to own any share in a British ship. {See 
 Appendix E.) 
 
 (f) Bankrupts. — As long as a bankrupt remains un- 
 discharged from his bankruptcy, he cannot hold property 
 as against his trustee in bankruptcy. All that he 
 acquires and all that accrues to him may be claimed 
 by the trustee. But, until the trustee claims it, every 
 person dealing with the bankrupt honestly can acquire 
 from him a title to such after-acquired property which 
 will be good against the trustee. [Cohen v. Mitchell, 25 
 Q. B. D. 262.) This rule, however, does not apply to 
 pure realty {In re New Land Development Association and 
 Gray, (1892) 2 Oh. 138), though apparently it does apply 
 to leaseholds. {In re Clayton and Barclay^ s Contract, (1895) 
 2 Oh. 212.) 
 
 (g) Convicts. — The Forfeiture Act, 1870, which abolished 
 forfeiture on a conviction for felony, gives power to 
 deprive a person sentenced to death or penal servitude 
 of the control of his property during the term of his 
 imprisonment (sect. 6). The King may appoint an ad- 
 ministrator of his property, and if no administrator is 
 so appointed the justices may appoint a curator. The 
 administrator has fuU powers to alienate or charge the 
 convict's property and to cause payment or satisfaction of 
 any debts or liabilities of the convict, or claims for main- 
 tenance on the part of those dependent on him, to be made 
 out of it. On completion of sentence the property reverts 
 to the convict. 
 
382 PERSONS UNDER DISABILITIES AS TO PROPERTY. 
 
 Section II. 
 ARTIFICIAL PERSONS. 
 
 PAOE PAOE 
 
 Corporations 382 | Charities 384 
 
 Corporations. — Artificial persons are a number of in- 
 dividuals or a succession of single individuals treated 
 by the law as a single person or unit. When they 
 are so treated they are said to be incorporated, and 
 are called corporations. When they consist of a number 
 of individuals at the same time, they are corporations 
 aggregate ; when they consist of a succession of in- 
 dividuals, one at a time, they are corporations sole. 
 Both corporations aggregate and corporations sole have 
 perpetual succession — that is, though the corporators may 
 die, the corporation itself never dies, the corporations 
 aggregate having inherent powers to replace those cor- 
 porators who drop off ; while in the case of a corporation 
 sole, when the sole corporator dies, his successor, whether 
 by inheritance or appointment, succeeds, as from his pre- 
 decessor's death, to all his predecessor's rights and Kabilities 
 without any conveyance or assignment of these. 
 
 Now as to land, a corporation aggregate or sole has the 
 capacity to acquire it, and it has that capacity owing to its 
 being a corporation. [Sutton^ s Hospital, 10 Eep. 30 b.) A 
 grant of land in severalty could not be made to a group of 
 individuals unless this group was incorporated. Neither 
 could a fee simple be conveyed to a single person and his 
 successors in a certain o£B.ce or position unless the holder 
 of that office or position and his successors constituted 
 a corporation sole. {See supra, p. 34.) But while incor- 
 poration is necessary to give a group of individuals or a 
 succession of individuals (not by way of inheritance) the 
 capacity to hold land, by common law a corporation cannot 
 
ARTIFICIAL PERSON.S : CORPORATIONS. 383 
 
 exercise that capacity until it has the licence of the Crown 
 to do so. (Co. Litt. 2-.) 
 
 The reason of this doctrine of the common law was 
 that the lords of whom land was held were deprived 
 of some of their most valuable rights by the alienation 
 of their land to a corporation, since, owing to a corpora- 
 tion never dying, there were no descents from one owner 
 to another, and consequently no reliefs ; and owing to 
 its never being under age, there were no wardships ; and 
 owing to its not being an individual, there were no mar- 
 riages. For these reasons, alienation to a corporation was 
 called alienation in mortmain (dead hand). 
 
 Numbers of statutes were passed to strengthen the 
 powers of the common law to prevent alienations in mort- 
 main. These have been repealed by the Mortmain and 
 Charitable Uses Act, 1888, and the law is now consolidated 
 in that statute. By sect. 1, there is to be forfeiture to the 
 superior lord of whom the land is held, or, if there be no 
 such lord, to the Crown, if land be conveyed to a corpora- 
 tion in mortmain, unless the corporation has authority to 
 hold land given to it by licence of the Crown or by an 
 Act of Parliament for the time being in force. By sect. 2, 
 the Crown has power to grant a licence to hold land to 
 any corporation. 
 
 Most corporations established by Act of Parliament have 
 power to hold such land as may be needed for the purposes 
 for which they were established. Companies registered 
 under the Companies Act, 1862, if their object be gain for 
 their members, have full capacity to hold land ; if their 
 object be not gain, they are not entitled to hold land 
 exceeding in extent two acres without the sanction of the 
 Board of Trade. (Sect. 21.) 
 
 When land is held in fee simple by a corporation, on 
 the dissolution of the corporation there is no escheat at 
 common law ; the land reverts to the grantor or his heirs. 
 It would seem that, as the grantor, then, in granting a fee 
 simple to a corporation, does not give up all interest in 
 
384 PERSONS UNDER DISABILITIES AS TO PROPERTY. 
 
 the land, a condition against alienation by the grantee is 
 valid. {See Challis's Eeal Prop. 198, 199.) 
 
 As to goods, a corporation aggregate has at common law 
 full capacity to acquire and to hold them. A corporation 
 sole, on the other hand, has no such capacity at common 
 law. (Bl. Com. 1, p. 477.) Goods can be settled for the 
 benefit of a corporation sole only by means of a trust, 
 an assignment to the corporator sole and his successors 
 vesting the complete ownership in the corporator himself. 
 An exception seems to occur in the case of the Crown, the 
 state jewels and plate being held by the Sovereign for the 
 time being merely for his or her life. Probably, however, 
 these are to be considered as heirlooms. [See Hargrave's 
 note, Co. Litt. 9.) And power to hold goods may be and 
 frequently is given to corporations sole created by Act of 
 Parliament. 
 
 Charities. — Closely allied to alienations in mortmain are 
 alienations to charitable uses. These, strictly speaking, 
 are not logically part of our present subject, since the 
 limitations imposed by statute on gifts to charities are not 
 disabilities of persons who take under the gifts, but rather 
 restrictions as to objects for which gifts may be made. 
 These limitations apply equally, whether the donees to 
 whom the gifts for charitable purposes are made are 
 corporations or individuals. Yet the law as to corporations 
 and as to charitable uses is so similar and so intermixed, 
 that it is convenient to treat of both under the one 
 heading. 
 
 The law as to charitable uses, which was the creation of 
 many statutes, chief among which was the so-called Mort- 
 main Act, 1736, is now consolidated and amended by the 
 Mortmain and Charitable Uses Acts, 1888, 1891 and 1892. 
 Charitable uses within these Acts are defined by sect. 13 (2) 
 of the principal Act (1888), which is a re-enactment of the 
 preamble of 43 Eliz. c. 4 (Irish Act, 10 Car. I. sess. 3, c. 1), 
 which statute, with most other Acts affecting charities, is 
 
ARTIFICIAL PERSONS : CHARITIES. 385 
 
 repealed. The Mortmain Act, 1736, did not extend to 
 Ireland, nor do the Mortmain and Charitable Uses Acts, 
 1888-92. 
 
 The provisions of the principal Act, like those of the 
 Mortmain Act, apply only to assurances of land, or of 
 money to be laid out in land for charitable uses. These 
 assurances may be validly made, subject to certain condi- 
 tions laid down in Part II. of the Act. The chief of these 
 conditions are that the assurance is to take effect at once, is 
 to be without power of revocation, reservation or condition, 
 save as permitted therein, and is, if it be of land or per- 
 sonal estate not being stock in the public funds, executed 
 before two witnesses, not less than twelve months before 
 the assuror's death, and registered within 'six months of 
 execution at the Central Office of the Supreme Court. 
 The provision as to execution before witnesses does not 
 apply in case the assurance is hon& fide for full and valu- 
 able consideration, which consideration, by the way, may 
 take the form wholly or partly of a rent reserved by the 
 assurance. If the property transferred be stock in the 
 public fiinds, the assurance, unless it be made for full and 
 valuable consideration, must be by transfer at least six 
 months before the death of the assuror. (Sect. 4.) Pro- 
 vision is made for validation of the assurance by subsequent 
 registration, where registration within the proper time was 
 omitted by inadvertence. (Sect. 5.) 
 
 Under Part III. of the Act are certain exemptions from 
 the provisions of Part II. and also of Part I. — referring to 
 alienations in mortmain — where these assurances are for 
 certain objects. Under this Part, assurances by deed of 
 land of any quantity, and by will of land of the quantities 
 therein stated, may be made for the purposes of a public 
 park, school-house for an elementary school, or museum, 
 provided such assurance, if by deed and not for full and 
 valuable consideration, or, if by will, was executed at least 
 twelve months before the assuror's death, or is a substantial 
 reproduction of a devise in a will made twelve months 
 
 s. c c 
 
386 PERSONS UNDER DISABILITIES AS TO PROPERTY. 
 
 before the assuror's death, and is enrolled within six 
 months from its execution, if a deed, or the death of the 
 assuror, if a will. The maximum quantity of land 
 devisable for a public park is twenty acres ; for a school- 
 house, two ; for a museum, one. (Sect. 6.) By the 
 amending Act of 1892, these provisions — all save that 
 requiring execution of the assurance twelve months before 
 the assuror's death — are extended to any assurance by 
 deed to a local authority for any purpose for which such 
 local authority is empowered by Act of Parliament to 
 acquire land. By sect. 7, Part II. of the principal Act is 
 not to apply to assurances of land, or money to be laid out 
 in the purchase of land, to or to the use of the Universities 
 of Oxford, Oariibridge, London, Durham, and Victoria, or 
 the colleges of these ; or in trust for the colleges of Eton, 
 Winchester, and Westminster ; or in trust for Keble Col- 
 lege ; or to assurances to trustees on behalf of associations 
 for religious purposes, or for the promotion of education, 
 art, literature, or science, of not more than two acres of 
 land on which to erect a building for the purposes of the 
 association. 
 
 Part II. of the principal Act does not refer to assurances 
 for charitable uses by will. The law as to these is now 
 contained in the amending Act of 1891, the effect of which 
 is, as we have already seen, to give power free from all 
 restrictions to leave land, or money to be laid out in 
 land, to charities ; land so left, however, is to be sold 
 within a year, and money left to be laid out in land is 
 not to be so laid out. {Li re Bridget', (1894) 1 Oh. 297.) 
 This Act does not, it would appear, repeal the provisions 
 of Part II., which still apply to assurances otherwise than 
 by will, and it expressly preserves the exemptions as to 
 land devised for the purposes of a public park, school, or 
 museum contained in Part III. The Act of 1891 is 
 not to be read along with the principal Act, and its 
 object is altogether different. The Act of 1888 was 
 intended to regulate the conditions under which land 
 
ARTIFICIAL PEESONS : CHARITIES. 387 
 
 might be alienated to charities or in mortmain ; the Act 
 of 1891 was intended to prevent alienations in mortmain 
 while permitting charities to benefit by the intentions 
 of testators. {In re Hume, Forbes v. Hume, (1895) 1 Ch. 
 422.) 
 
 As has been said, the Mortmain and Charitable Uses 
 Acts do not apply to Ireland, nor did the preceding Acts 
 repealed by them. The law there is regulated by the 
 Charitable Donations and Bequests (Ireland) Act, 1844. 
 By sect. 16 of that Act no donation, devise or bequest for 
 pious or charitable uses shall be valid to create or convey 
 any estate in lands for such uses unless the deed, will or 
 other instrument containing the same shall be executed 
 three months at least before the death of the person exe- 
 cuting the same, and unless every such deed or instrument 
 not being a will, be registered within three months of its 
 execution. 
 
 There is a difference between English and Irish law as 
 to the validity of gifts by will for offering up masses 
 for the souls of the dead. Such gifts are held void in 
 England {In re Fleetwood, 16 Ch. D. 694) ; but they are 
 not illegal in Ireland {Charitij Commissioners v. Walsh, 
 7 Ir. Eq. E. 34), and are held to be good charitable gifts, 
 whether the masses are directed to be said in public or 
 not {O'Hanlon v. Logue, (1906) 1 Ir. E. 247). 
 
 c c '.^ 
 
389 ) 
 
 APPENDIX A. 
 
 COPYHOLDS. 
 
 Copyhold tenure has already been mentioned in Part II.. 
 p. Ti , supra. It is proposed here to treat briefly of its origin, 
 nature, and incidents, and of the means provided by recent 
 legislation for enlarging it into freehold tenure. The course 
 of English law in this matter is plain. The copyholder is 
 originally a villein holding land merely at the will of his lord, 
 and obliged to perform various " base services." Custom 
 gradually fixed those services, and provides that the villein 
 and his descendants shall remain in possession of the land so 
 long as they perform the services thus fixed. This custom is 
 at first recognised only in the manorial court to which the 
 villein is subject ; gradually the common law comes to recog- 
 nise and enforce it, and the villein thus becomes a copyholder, 
 with a legal interest in his land, of which he can dispose. 
 Finally, modern legislation provides means by which the 
 copyholder can free himself from the services, and acquire a 
 freehold interest in his land. 
 
 I. First, then, as to the origin and history of copyhold tenure. 
 For this we must go back even before the Conquest. All 
 copyholds are some parcel of a manor ; and although this 
 name is of Norman origin, and though the relation of a lord 
 of a manor to his tenants was developed and strictly defined 
 by the Norman feudal lawyers, yet even in Saxon times there 
 are traces of the existence of the manor, in the sense of a 
 group of lands cultivated in common by their holders, who 
 owed some sort of duties to a lord. It seems probable that 
 in many cases the Conquest did but change Saxon lords for 
 Norman, and define the relation of lord and tenant on more 
 strictly feudal principles. Confining ourselves to the manor 
 as existing in Norman times, we may describe it as "a 
 jurisdictional, a geographical, and an economic unit,"' a 
 
 ' The student will find some of the results of recent investi- 
 gations on this subject conveniently collected in Medley's Con- 
 stitutional History, ch. 1, s. 5. 
 
390 appendix: a. 
 
 district of lands, holden by a lord, and by tenants under him, 
 over -whicli lands and tenants he exercises certain rights, 
 including rights of jurisdiction. The lands forming a manor 
 were (a) demesne lands, Tvhich comprised lands in the lord's 
 own occupation, and waste lands over which the tenants of the 
 manor had generally rights of common, {b) tenemental lands, 
 i.e., lands granted to free tenants in consideration of rents 
 and free services, which tenants are now represented by the 
 freeholders of the manor, and (c) the villenagmm, or lands 
 occupied by villeins or serfs, from whom the present copy- 
 holders or customary tenants have sprung. {See Pollock & 
 Maitland, Hist. Eng. Law, vol. 1, p. 345.) The freehold tenants 
 owed, as one of their services, attendance in the court of the 
 manor, caEed the Court Baron, in which they were the judges, 
 the pares curia, and the lord or his steward the president. 
 There are thus three essentials of a manor : (u.) demesne lands, 
 allotted as described above, and including the villenagium ; 
 (b) a court-baron ; (c) free tenants in fee, holding of the lord 
 by services, which include attendance on this court. 
 
 It is with the villeins, whom the lord allowed to occupy 
 portions of his demesne, that we are particularly concerned. 
 They were the non-free tenants of the manor, villani adscripti 
 glebce, or, in Norman phrase, villeins regardant, i.e., villeins 
 attached to the soil. Such land as they had they held merely 
 at the will of the lord, to whom they rendered " base 
 services," usually in the cultivation of his lands. The 
 criterion of villein tenure seems at first to have been the un- 
 certainty of the service which the villein might be called on to 
 perform ; as the phrase went, he did not know in the evening 
 what he should have to do on the morrow. But the custom 
 gradually came to fix the services which a lord could demand 
 from his villeins, and they were largely commuted for pay- 
 ments in money or produce. In fact, it was to the lord's 
 advantage to continue them in possession of their lands, so 
 long as they performed their services ; and he could derive 
 profit from allowing them to dispose of those lands to their 
 children after them, or to strangers, in consideration of a 
 payment made to the lord. Thus there gi-ew up in manors 
 various customs giving the villeins virtually estates of in- 
 heritance in their lands and a modified power of alienation ; 
 that is, they came to have what we may call a morally- 
 sanctioned interest in their lands, known as villenagium.^ At 
 
 1 Villenagium had pre-vdously meant "land occupied by villeins " ; 
 it came to mean " a villein's interest in his lands." See further on 
 the subject of villein services, P. & M. Hist. Eng. Law, vol. 1, 
 p. 334. 
 
COPYHOLDS. 391 
 
 first, the only court to take cognizance of this interest was the 
 manorial court. The villeins attended it not as members, but 
 as suitors ; its decisions, based on the custom of the manor, 
 regulated their dealings with their lands, the services which 
 they were to render, the paj^ments to be made to the lord ; its 
 rolls recorded all these decisions and proceedings ; and hence 
 the rolls of the manorial court formed the evidence of the 
 manorial customs, while a copy of an entry on the roU relating 
 to a tenant was his title-deed. So common and regular grew 
 these proceedings that they came to be recognised by the 
 King's Courts ; the customs of the manors acquired legal 
 validity ; and thus, by the time of Edward IV. (Littleton, c. 9, 
 s. 73), the villein regardant had become a copyholder, with 
 rights which he could assert even against his lord. Henceforth 
 the modern definition of copyhold applies — " estates in some 
 parcel of a manor founded on the lord's grant and tenant's 
 admittance enrolled in the customary court, amounting in 
 law, apart from the custom, to mere tenancies at will, but 
 where the custom comes into question, having a more per- 
 manent character." (Elton on Copyholds, p. 2.) 
 
 II. The Nature and Incidents of Copyhold Tenure. Copy- 
 hold tenure, or tenure by copy of court roll, is a customary 
 tenure, i.e., its incidents are fixed by custom. Such custom 
 is of two kinds : (a) the general custom of copyholds, now 
 forming a part of the common law, of which the Court will 
 take judicial notice ; and {b) special customs, prevailing in 
 particular manors, which Sir George Jessel has caUed "local 
 common law." These latter customs must be strictly pleaded 
 and proved ; and the essentials to the validity of such a cus- 
 tom are its being local, certain, reasonable, and continuous. 
 The incidents of copyhold tenure may thus vary somewhat in 
 different manors, but its main features are constant, and are 
 briefly as follows : — 
 
 The freehold and seisin of the lands are in the lord, the 
 tenant having a customary interest and possession. {Eardley 
 V. Granville, 3 Ch. D. 826.) The extent of the tenant's cus- 
 tomary estate is regulated by the custom of the particular 
 manor. Generally, estates can subsist in copyholds, analogous 
 to freehold estates for life or in fee ; an estate tail in copy- 
 holds can subsist only in a manor where a particular custom 
 permits of it, and in the absence of such a custom, an attempt 
 to entail copyholds creates a fee- simple conditional. {Hey don's 
 Case, 3 Eep. 7 a.) The descent of copyhold lands is governed 
 by the custom of the manor wherein they are situate, and, in 
 the absence of special custom, by the common law rules. 
 The most usual incidents of copyhold are the following : — 
 
 (a) Freebench. This is the interest of a widow in her hna- 
 
392 APPENDIX A. 
 
 band's copyholds ; and it is to be noted that the Dower Act, 
 1833 (3 & 4 Will. IV. o. 105), does not apply to copyholds. 
 Its extent depends upon the custom, and it is not always the 
 third which a dowress took at common law. 
 
 (6) Like this is the custo7nary curtesy, the widower's estate 
 in his late wife's copyholds. Here the custom is usually, but 
 not always, the same as the common law. 
 
 (c) Fines. These are payments due to the lord on various 
 occasions fixed by custom. The m.ost usual are on the death 
 of the lord, on a change of the tenant, on a licence empowering 
 the tenant to aliene. Fines are either fixed or arbitrary, but 
 if arbitrary, they must be reasonable. {IVillowes' Case, 13 
 Eep. 1.) 
 
 {(l) Other services due from the tenant. Of th.ese/eal(y and 
 suit of court are universal ; another common service is the 
 payment of heriots, usually on the death of a copyholder. 
 {Damerell v. Protheroe, 10 Q. B. 20.) Rent also is sometimes 
 due. 
 
 (s) Rights of Common. Copyholders are often entitled to 
 exercise commonable rights over the waste of the manor. 
 
 (y) Escheat and forfeiture. Generally, the estate of a copy- 
 holder escheats to the lord on the tenant's death intestate and 
 without customarj' heirs. The estate is forfeited to the lord 
 on the tenant's doing any wrongful act to the lord's pre- 
 judice, e.g., anything amounting to a determination of his 
 tenancy without the lord's consent ; by failure to perform the 
 due services ; by committing either voluntary or permissive 
 waste, unless a custom allows waste. If the heir or devisee 
 of a deceased copyholder does not claim to be admitted, after 
 due proclamation, the lord can seize the lands quousque, i.e., 
 until a claimant appear. {Doe v. Hellier, 3 T. E,. 162.) 
 
 III. Mode of Alienation of Copyholds: (1) inter vivos; 
 (2) by will. 
 
 1. A copyholder could not use the common law forms of 
 conveyance, for, being iu the eye of the common law a tenant 
 at will, he had, strictly speaking, no estate to convey. What 
 he could do was to surrender his interest to the lord, praying 
 him to admit to possession of it the person to whom he (the 
 tenant) wished to transfer it. This surrender was made in 
 the manorial court. It was customary for the lord to admit 
 the alienee, on payment of the usual fine ; and this custom 
 grew so strong that the lord was considered bound by a trust 
 to admit the person designated by the surrender.' This 
 
 ' It may be useful to compare this with the " Ulster custom," as 
 to alienation of a tenant's interest in Ireland, p. 397, infra ; but in 
 the case of the Ulster custom, there seems to have been no actual 
 trust binding the landlord. 
 
COPYHOLDS. 393 
 
 trust would, in mediseval times, have been enforced by the 
 Chancellor (Spence, Equitable Jurisdict. vol. 1, p. 648) ; in 
 modern times it would be enforced by a common law court 
 by mandamus. Thus the legally recognised mode of convey- 
 ing copyholds is by surrender and admittance. The essential 
 of a surrender is the giving up of the customary seisin to the 
 lord, who can then only refuse to carry out the admittance if 
 the conveyance is improper in form or prejudicial to his inte- 
 rest, e.g., he can refuse to admit a corporation, since, as it is 
 immortal, he would lose the fines payable on death. The 
 person who can surrender is the person who could convey 
 the land, if freehold, by an ordinary assurance. A copy of 
 the record of this surrender and admittance on the court rolls 
 is delivered to the new tenant, and is his muniment of title. 
 The process need not be gone through in the court ; a sur- 
 render may be made out of court to the steward or his 
 deputy, and the vendor's solicitor is usually appointed deputy 
 steward for the time being, in order to take his surrender. 
 The admittee can now be admitted by his attorney, appointed 
 for that purpose orally or in writing. (Copyhold Act, 1894, 
 8. 83.) A tenant for life under the Settled Land Act, 1882, 
 can, in exercising the powers of that Act, convey by deed 
 settled copyholds vested in trustees for him, which deed is 
 entered on the rolls, and the grantee is then entitled to 
 admittance without any surrender. (45 & 46 Vict. c. 38, 
 s. 28 (3).) 
 
 A mortgage of copyholds is effected by a covenant to sur- 
 render them conditionally, followed by a surrender conditioned 
 to become void on payment of the debt and interest. This is 
 entered on the rolls, and on the mortgage being paid off, the 
 mortgagee executes a warrant to the steward to enter satis- 
 faction of the conditional surrender. When satisfaction is 
 thus entered, it has the effect of the reconveyance in an 
 ordinary mortgage of freeholds. 
 
 2. Originally, copyholds were not devisable. The copy- 
 holder made a surrender to the uses of his will, which then 
 operated merely as a declaration of those uses. An Act of 
 55 Geo. III. c. 192, made devises of copyholds not surrendered 
 to the uses of the testator's will as valid as if they had been 
 so surrendered. And the Wills Act, 1837 (1 Vict. c. 26), s. 2, 
 made copyholds freely devisable by wills made or republished 
 after its date. {See Howard v. Givynn, 84 L. T. 505.) The 
 estate vests in the customary heir until the devisee is admitted. 
 [Garland v. Mead, L. E. 6 Q. B. 441.) 
 
 On the death of a copyholder if his estate is legal the right 
 to admittance vests in his devisee if the deceased left a wiU, 
 and in his customary heir if he died intestate. This is the 
 case whether he holds his estate beneficially or as trustee or 
 
394 APPENDIX A. 
 
 mortgagee, legal copyholds not being within either sect. 30 
 of the Conveyancing Act, 1881 {see Copyhold Act, 1894, s. 88), 
 nor sect. 1 of the Land Transfer Act, 1897. But if the copy- 
 holder's estate is equitable it comes within both of these 
 enactments and vests like freeholds in the deceased's executors 
 or administrators. [In re Somerville and Turner's Contract, 
 (1903) 2 Ch. 583.) 
 
 IV. Change of Copyhold Lands into Freehold. There are 
 two ways in which copyhold land may cease to be held 
 " according to the custom of the manor " : (1) by extinguish- 
 ment ; (2) by enfranchisement. 
 
 1 . Extinguishment occurs when the freehold and copyhold 
 interest in the same land and in the same right are united in 
 one person. Thus, if the copyholder surrenders his land, to 
 the use of the lord, or without declaring any use ; or, if the 
 lord conveys the land to the copyholder for an estate of free- 
 hold, or even a term of years, the copyhold is merged and 
 extinguished in the freehold. But if the lord acquires the 
 land by descent, forfeiture, escheat, &c., and there is no act 
 on his part showing an intention to destroy the copyhold 
 tenure, it is only suspended, so long as he does not alter the 
 demisable nature of the tenement, and on a re-grant by him 
 the land is still copyhold. {See sect. 81, Copyhold Act, 
 1894.) 
 
 2. Enfranchisement' may take place (a) at common law, or 
 {b) under statute. It is the conversion of the copyhold estate 
 in the hands of the tenant into an estate of freehold. 
 
 (a) At common laiv it is effected by an agreement between 
 the lord and tenant, and then avails only to the extent of the 
 lord's interest ; if he has, e.g., an estate for life, such volun- 
 tary enfranchisement would not be complete as against the 
 remainderman. 
 
 (i) By statute. A series of Acts known as the Copyhold 
 Acts of 1841, 1843, 1844, 1852, 1858, and 1887, have provided 
 means by which either lord or tenant could procure enfran- 
 chisement of the lands. These Acts have now been consoli- 
 dated in the Copyhold Act, 1894 (57 & 58 Vict. c. 46). 
 
 This statutory enfranchisement may be voluntary or com- 
 pulsory. Voluntary enfranchisement is effected by agreement 
 between the lord and tenant, with the consent of the Copyhold 
 Commissioners (now the Board of Agriculture), followed by a 
 conveyance from the lord to the tenant with their consent ; 
 and it is complete, even though the lord have only a limited 
 interest, if proper notice be given to the remaindermen or 
 reversioners. (Part II. Copyhold Act.) Compulsory enfran- 
 chisement may be compelled by either lord or tenant. (Sect. 1 .) 
 The consideration is ascertained by a valuation of the lands. 
 
COPYHOLDS. 395 
 
 either by valuers appointed by the parties, or by the Board 
 of Agriculture, if the parties cannot agree upon it. (Sect. 5.) 
 An award of the Board, in pursuance of this valuation, has, 
 when finally confirmed, the effect of a conveyance. (Sect. 10.} 
 The effect of enfranchisement, as has been said, is that the 
 lands become of freehold tenure and subject to the common 
 law rules ; but the lord's rights as to escheat for want of 
 heirs, and the tenant's rights of common are preserved. 
 (Sect. 21.) A copyhold tenant is now entitled, on succeeding 
 to his estate, to a written notice from the lord, setting out the 
 tenant's right to compel enfranchisement on payment of the 
 compensation to the lord and the fees to the steward of the 
 manor, as ascertained under the Copyhold Act. (Sect. 42.) 
 The compensation and fees may, in certain cases, be charged 
 on the land enfranchised by a certificate of the Board of 
 Agriculture — which certificate will then be transferable by 
 endorsement (sect. 41), or by deed executed by the owner of 
 the enfranchised land. (Sect. 36.) 
 
396 ) 
 
 APPENDIX B. 
 
 THE lEISH LAND ACTS. 
 
 We have just seen — in treating of copyhold — how a tenancy, 
 which was at first merely to continue so long and on such 
 conditions as the landowner pleased, gradually became a per- 
 manent tenancy at iixed services ; how from being a per- 
 manent tenancy it became by custom, enforced by the King's 
 Courts as law, an hereditary estate in the land subject to 
 certain rights and payments due to the original owner ; how, 
 when this state of affairs had long been established. Parlia- 
 ment interfered to put an end to the double ownership of the 
 land, and did so by conferring on the tenant the right to buy 
 out compulsorily the original owner, and become himself the 
 nominal as well as the real owner of the land. 
 
 The earlier stages of this process were accomplished without 
 the aid of express legislation, by the natural growth of general 
 practice into law. It was consequently a slow process — the 
 work of centuries. We come now to the consideration of a 
 similar development, in modern times and by modern methods. 
 We shall see how a state of affairs not very unlike that which 
 originally prevailed in what are now copyhold lands was in 
 a single generation changed, somewhat as copyhold was 
 changed, by a series of Acts of Parliament beginning with the 
 Irish Land Act of 1870, and reaching its completion — for the 
 present at any rate — in the Land Purchase Act of 1903. 
 
 The object common to the series of Acts passed during the 
 last thirty years, which is sometimes called the Irish land 
 code, is the extension of the common law rights of agricultural 
 tenants in Ireland. Those rights, in the absence of special 
 customs, had been governed since the time of James I. by the 
 English common lawrules (see the Case of Gavelkind, Pep. 134) ; 
 but the conditions actually prevailing in the two countries 
 were widely different. Ireland was a country of small holdings, 
 the tenant's legal interest in which was capable of speedy 
 
THE IRISH LAND ACTS. 397 
 
 determination, for the most part held, under yearly tenancies. 
 But in practice, tenants and their families were often allowed 
 to continue bo long in occupation of their holdings that they 
 came to have a sort of customary right to the occupation ; 
 and in parts of the country custom allowed the tenant to deal 
 with this privilege of occupancy by way of sale.' Moreover, 
 it was an almost universal practice that improvements to the 
 holding were made by the tenant, not the landlord ; yet these 
 by the common law rules became the property of the landlord, 
 who was under no legal obligation to compensate the tenant 
 for them on ejecting him from his holding, and who could 
 increase the rent as the tenant's improvements made the 
 holding more valuable. To remedy this state of things ; to 
 legalize the customs referred to as favourable to the tenant, 
 among which the Ulster custom was chief ; to put all tenants 
 of agricultural holdings on a similar footing to those subject 
 to these customs ; to make permanent a tenant's interest in 
 his holding, and enable him to have the fair rent for his 
 holding judicially determined ; and finally, to assist tenants 
 in purchasing their holdings from their landlords — these were 
 the intentions of the Irish Land Acts of 1870, 1881, 1887, 
 and 1896, and of the Land Purchase Acts of 1885, 1891, and 
 1903. 
 
 I. It will be well to preface a summary of these by some 
 notice of the Irish Landlord and Tenant Act, 1860 (Deasy's 
 Act). This consolidates the existing law of landlord and 
 tenant, and makes some important changes in procedure : 
 and it creates one of the radical differences between English 
 and Irish law on this subject, viz., that the relationship of 
 landlord and tenant is in Ireland henceforth based, not on 
 tenure, but on contract, and no reversion is necessary for the 
 existence of such relationship. (Sect. 3.) The Act (23 & 24 
 Vict. c. 154) may be divided as follows : — 
 
 1. The formation, and certain incidents, of the contract of 
 tenancy, which is declared to exist whenever one party agrees 
 to hold land from or under another in consideration of rent. 
 
 ' Compare the statement of Bewley, J. [Market) v. Lord Gos/ord, 
 31 I. L. T. E. 97): " Prior to the passing of the Act of 1870, 
 the tenant of a holding subject to the Ulster custom claimed to 
 have an interest in his holding over and above his mere legal 
 tenancy, and although, tiiis interest had no legal sanction it was 
 almost universally recognised. The tenant was regarded as an 
 owner, and not a mere hirer of land, and the farm was considered 
 to be fully as much a part of the family propertj' of the tenant as 
 the reversion was of the family property of the landlord." 
 
398 APPENDIX B. 
 
 It may be express or implied from the conduct of the parties — 
 payment of rent being evidence, but not irrebutable evidence, 
 of a contract of tenancy. [Hurly v. Hanrahan, I. E. 1 C. L. 
 7 In.) If express, and for a greater period than from year to 
 year, it must be made either by deed, or by writing signed by 
 the landlord, or his agent authorised in writing. (Sect 4.) 
 A letting from year to year may be made by parol. {Bayley 
 V. Conyngham, 15 I. C. L. R. 406.) The main incidents 
 treated of are : (a) fixtures and emblements. A tenant, if there 
 be no contrary agreement, may remove his fixtures during 
 the tenancy, or within two months of its determination by an 
 uncertain event. (Sect. 17.) And on such a determination 
 of his tenancy, if he holds at a rack-rent, he may, in lieu of 
 his right to emblements, continue his occupation till the end 
 of the current year of his tenancy. (Sect. 34.) (5) As to 
 waste: sects. 26 — 31 deal with certain acts in the nature of 
 "waste, and the tenant's rights as to committing them ; and a 
 summary jurisdiction to prevent waste is given to justices of 
 the peace. (Sects. 35 — 37.) (c) As to covenants implied in 
 the contract : on the landlord's part, absolute covenants for 
 title and for quiet enjoyment (sect. 41) ; on the tenant's part, 
 covenants to pay rent, keep in repair and so deliver up the 
 premises, subject to a right of surrender in case of their 
 accidental destruction. (Sects. 40 and 42.) 
 
 2. Surre?ulers and assignments by tenants. These may be 
 made either by deed or by note in writing (sects. 7, 9), or 
 may take place by operation of law. If there be an agree- 
 ment in writing prohibiting assignment or sub-letting, any 
 assignment or sub-letting without the landlord's written con- 
 sent, testified by his or his agent's joining in or endorsing the 
 instrument of assignment, is absolutely void (sects. 10, 18), 
 and passes no intei-est to the assignee or sub-tenant, not 
 even an interest by estoppel against the assignor himself. 
 {Gillinan v. Murphy, I. E. 6 0. L. 34.) However, an Act of 
 51 & 52 Vict. 0. 13, s. 1, in cases of the assignee applying to 
 have a fair rent fixed, allows the landlord's consent to the 
 assignment to be established by any evidence satisfactory to 
 the Court. And sect. 11 of the Land Act, 1896, provides, 
 with reference to sub-lettings without consent,, that on an 
 application bj' the sub-tenant to have a fair rent fixed, proof 
 that the superior landlord knew of the sub-letting and took 
 no steps to enforce his contract shall be sufficient proof of his 
 consent. Nor do these sections invalidate an assignment by 
 will. {Foley v. Gallagher, 2 L. E. Ir. 35.) 
 
 .'j. Procedure. Sects. 45 — 102 deal with actions for rent and 
 actions of ejectment. An action of ejectment for non-payment 
 
THE IRISH LAND ACTS. 399 
 
 of rent may not be brought unless at least one year's rent is 
 due. Under sects. 70, 71, a tenant who has had a decree 
 given against him in an action of ejectment may be restored 
 to his holding on applying to the Court within six months 
 from the execution of the decree, and paying the rent with 
 arrears and costs. (And see sect. 7, Land Act, 1887, as to 
 service of a "caretaker notice" being made equivalent to 
 execution.) Further, if the tenancy be one to which the 
 Land Acts apply, the tenant may redeem it by the payment 
 of two years' rent (^whatever be the amount of rent due), 
 and the landlord can recover the remainder of the arrears 
 as a debt due by the tenant, but nut by ejectment or distress. 
 (Sect. 16, Land Act, 1896.) 
 
 II. The hrst of the Land Acts proper is the Landlord and 
 Tenant (Ireland) Act, 1870 (33 & 34 Vict. c. 46). This, which, 
 like the succeeding Act, applies only to agricultural and pastoral 
 tenancies, was the first to recognise an occupation interest in 
 land. It legalized the Ulster custom and similar usages ; and 
 it gave tenants hot subject to these a right, on quitting their 
 holding, to be compensated for their improvements, and to be 
 compensated for " disturbance " in their holding by act of the 
 landlord. It has, of course, been largely superseded by later 
 legislation ; such of its main provisions as are noteworthy 
 may be summarized under these heads : — 
 
 1 . Legal force given to customs formerly not recognised by law, 
 a number of varying usages which had long existed, chiefly 
 in Ulster, permitting a tenant to deal with his customary 
 interest. Sects. 1 , 2 of the Act now declare this Ulster custom 
 and similar usages legal, and enforceable in manner provided 
 by the Act ; however, curiously enough, the Act provides no 
 means of enforcing the custom. The essential elements in 
 such a custom have been judicially said to be : — (a) the 
 tenant's right to sell his interest ; (b) to have the purchaser 
 recognised by the landlord, if there be no reasonable objection 
 to him ; (c) and to have his tenancy transferred to such pur- 
 chaser. {Per Porter, M. E., M'Elroy v. Brooke, 16 L. E. Ir. 
 74.) To these may be added {d) the right of a tenant to 
 continue in undisturbed possession so long as he pays his rent. 
 The sections also provide that a landlord may purchase this 
 custom from the tenant, and it then ceases to attach to the 
 holding. 
 
 2. Compensatio7i for disturbance. Sect. 3 provides that a 
 tenant, not entitled under the foregoing customs, shall be en- 
 titled to such compensation from the landlord, if " disturbed " 
 by him, as the Court shall think just. " Disturbance " is not 
 
400 APPENDIX B. 
 
 defined ; but a tenant may claim compensation as soon as lie 
 has been served by his landlord with a notice to quit or an 
 ejectment ; it would seem that the Court would decide on the 
 facts of each case whether a disturbance had taken place. 
 [Fitzsimons v. Clive, 12 I. L. T. E. 12.) 
 
 3. Compensation for improvements. Sect. 4 enacts that a 
 tenant, not claiming under the customs, may, on quitting his 
 holding, or being ejected for non-payment of rent, claim, com- 
 pensation for improvements made by him or hia predecessors 
 in title, except in certain specified cases. " Predecessors in 
 title " means not necessarily predecessors in the same title, 
 but "those who have transmitted to one another their 
 respective tenancies or titles to the possession of a holding, 
 whatever those tenancies or titles may be." {Adams v. 
 Dunseath, 10 L. E. Ir. 109.) Contracts not to improve the 
 holding, or not to claim for im.provenient8, are declared void. 
 Sect. 70 defines "improvements" as (o) works adding to the 
 land's letting value ; and (5) unexhausted tillages, manures, 
 and like farming works. As the law now stands (sect. 5, 
 Act 1870, amended by Land Act, 1896, s. 1 (10) ), improve- 
 ments are presumed to have been made by the tenant, except 
 (a) they were made before 1850; or (5) the estate is 
 "English-managed"; or (c) the Court is satisfied from aU 
 the circumstances that the improvements were not made by 
 the tenant; or {d) the improvements were made previous to 
 a sale of the holding (before 1 Aug. 1870) to the landlord. 
 But it must be remembered that if the holding be subject to 
 the Ulster custom, there is a general presumption that the im- 
 provements belong to the tenant. (See judgment of Bailey, 
 Sub-Com., in Boyle v. Richardson, 28 I. L. T. E. 153.) 
 
 . 4. Exclusions from the Act. From the provisions as to 
 compensation for disturbances are excluded tenants of demesne 
 lands, pasture lettings, and "town-parks," which may now be 
 defined as holdings in the outskirts of a town, let to residents 
 in the town, having an increased value as accommodation 
 land, and not merely let and used as ordinary agricultural or 
 pastoral farms. (Cp. Land Act, 1881, s. 68; Act of 1887, 
 8. 9 ; Act of 1896, s. 6.) From the provisions both as to dis- 
 turbance and improvements are excluded tenants of lettings 
 for temporary convenience, lettings in conacre {i.e., a letting 
 of a small portion of land for a single crop of potatoes or 
 other tillage, which is really a sale of a profit a prendre), and 
 lettings for agistment. (Sect. 15.) 
 
 III. By far the most important of these Acts is the Land 
 Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49). Its aim was to 
 
THE IRISH LAND ACTS. 401 
 
 put a tenant (not under an existing lease) who takes advan- 
 tage of its provisions virtually in the position of owner of his 
 holdings and to reduce the landlord's position practically to 
 that of a mere rent-charger. It was meant to give tenants 
 what were popularly called " the three F's" — fixity of tenure 
 ol: the holding, fair rent, and free sale. And it created a new 
 judicial body, called the Land C'ommissioti, with jurisdiction 
 to hear and determine all matters of law or fact arising under 
 the Act — a concurrent primary jurisdiction also existing in the 
 Civil Bill Courts (the County Courts of Ireland), with right of 
 appeal to the Land Commission. The head of this Commission, 
 the Judicial Commissioner, ranks as a puisne judge of the 
 High Court; and the Land Act, 1903, gives the powers of a 
 Judicial Commissioner also to one of the other chief com- 
 missioners. Assistant commissioners are appointed by the 
 Lord Lieutenant with the approval of the Treasury. This 
 body is, by the Land Purchase Act, 1891, made perpetual. 
 
 The main provisions of the Act (as now amended by the Land 
 Act, 1896) maybe considered under the following heads : — 
 
 1. Scope and application of the Act. 
 
 2. Tenant's jooffc'ers to dispose of his holding. 
 
 3. Creation and incidents of a statutory term. 
 
 4. Tenant's rights to have a, fair rent lixed. 
 
 1 . The question of the scope and application of the Act, and 
 of the exclusions from it, is complicated. It makes a distinc- 
 tion between " present " and " future " tenancies. (Sect. 57.) 
 A present tenancy is one existing at the passing of the Act 
 (22nd August, 1881), or created before 1st January, 1883, in 
 a holding in which a tenancy existed at the passing of the 
 Act. Any other is a, future tenancy ; but now, by consent, the 
 landlord and tenant may make any tenancy a present tenancy. 
 (Sect. 18, Act 1896.) Formerly, in the case of tenants under 
 limited oivners, when the interest of a limited owner deter- 
 mined, the tenancies under his successor became new and 
 future tenancies ; but this is overruled by sect. 1 of the Act 
 of 1896. As to the application of the Act to present and future 
 tenancies respectively — it seems that the provisions as to dis- 
 position by the tenant apply to both present and future 
 tenancies; those as to the statutory term apply to present 
 tenancies, and to future tenancies only in case the landlord 
 and tenant have agreed to an increase of rent (sect. 4) ; the 
 provisions as to fair rent apply solely to present tenancies. 
 
 Even of present tenancies, many are excluded from the Act. 
 These are specified in sect. 58, as amended by sect. 5, Act 
 ] 896, and are, besides those tenancies not substantially agri- 
 cultural or pastoral, tenancies in demesne lands, town-parks, 
 
 s DD 
 
402 APPENDIX B. 
 
 and several others. (See the sections, on -whicli there is a 
 mass of decisions.) 
 
 Tenancies may also be excluded by agreement between 
 landlord and tenant for a lease approved of by the Court, 
 called a. Judicial lease. (Sect. 10.) And a tenant, the rating- 
 valuation of whose holding is not less than 150^. yearly, may 
 contract himself out of the Act. (Sect. 22.) 
 
 2. One of the great objects of the Act was to give the 
 tenant a power of disposing of his holding, by alienation 
 inter vivos (sect. 1), or by bequest (sect. 3) — to put him, in 
 fact, in a somewhat similar position to a tenant under the 
 Ulster custom. Sect. 1 provides that the tenant of any holding 
 to which the Act applies may sell his holding for the best 
 price that can be got, subject to the regulations set forth in 
 the Act. These regulations provide that notice of the sale 
 shall be given to the landlord, who thereupon has any one of 
 three courses open to him. He may (a) consent to the sale. 
 (h) He may "pre-empt," i.e., elect to purchase the holding 
 himself at its "true value" ; the Court decides upon the irue 
 value of the tenancy if landlord and tenant band fide disagree 
 as to it ; and this has been held to be not the value of the 
 holding in the open market, but " what, having regard to the 
 interests of landlord and tenant respectively, is the true 
 estimate of price between them.'" {Per Sullivan, M. E., in 
 Adams v. Dzmseath, 10 L. E. Ir. 143.) (c) He may object to 
 the purchaser on reasonable grounds, and the reasonable- 
 ness of his objection will, in case of dispute, be determined 
 by the Court; if, however, the improvements on the holding 
 have been made and maintained by the landlord, his objection 
 is conclusive. There are also regulations as to the satisfaction 
 of arrears of rent out of the purchase-money. A tenant hold- 
 ing under the Ulster custom may, if he choose, sell under that 
 custom and not under the Act (sect. 1 (12) ) ; and if he does so, 
 the landlord has no right (5) of pre-emption. The tenant has 
 also a right to mortgage his holding to one person only, and 
 in that case the landlord's only right is (c). (Sect. 19, Act 
 1896.) 
 
 Sect. 3 provides that if a tenant bequeaths his tenanc}', his 
 legatee shall have the same right to be accepted by the land- 
 lord as a purchaser would have. If a tenant dies intestate, 
 his personal representatives may nominate one of the next of 
 kin to succeed to the tenancy ; if there are no next of kin, 
 
 ' The true value is related to the "open value" as the fair 
 rent to the "competition rent." [Ciirnecn v. Tottenham, (1896) 
 2 Ir. E. p. 362.) It may be more than the tenant could get as 
 compensation for disturbance. {Johnsons. Ouurtney, 31 I. L. T. R. 
 117.) 
 
THE IRISH LAND ACTS. 403 
 
 the tenancy goes to the landlord subject to the tenant's 
 debts 
 
 3. Another great object was to give fixity of tenure. This 
 is attained by enabling a tenant to enlarge his interest into a 
 statutory term, which is virtually an interest in a tenancy in 
 perpetuity, subject to having the rent revised at intervals of 
 fifteen years, and to statutory conditions, on breach of which 
 the landlord can determine it by ejectment founded on notice to 
 quit. A statutory term may be created (a) by agreement for an 
 increased rent under sect. 4 (1); (i) by having a fair rent fixed, 
 either by the Court or by arbitration (sects. 8 (1), 40) ; (c) by 
 filing in Court an agreem.ent for a judicial rent. (Sect. 8 (6).) 
 During this term the rent cannot be increased, except by 
 agreement in respect of capital laid out by the landlord. The 
 conditions to which it is subject, and on breach of which it may 
 be determined, are (sect. 5) : — [a) payment of rent by the 
 tenant ; {b) tenant not committing persistent waste; (c) tenant 
 not sub-dividing or sub-letting without consent — such sub- 
 letting is absolutely void and passes no interest to sub-lessee — 
 {O'Kane v. Burns, (1897) 2 Ir. E. .591) ; (^d) tenant not doing 
 any act to vest his interest in an assignee in bankruptcy ; 
 (e) tenant not opening a public-house on the holding without 
 consent. The landlord is given rights of entry for certain 
 purposes, and a restricted right of resumption. It is to be 
 noted that the statutory term can now outlast the interest of 
 the landlord under whom it is created. (Sect. 10, Act 1896.) 
 
 4. Finally, tenants were enabled to have fair rents for their 
 holdings judicially fixed. Sect. 8 provides that the tenant, or 
 the landlord in case he has demanded an increase of rent 
 which has been refused, may apply to the Court to fix a fair 
 rent, called a. judicial rent. The Court is to fix this fair rent 
 on considering (sub-sect. 9) all the circumstances of the case, 
 holding, and district, and having regard to the interest of 
 landlord and tenant respectively, which does not, however, 
 mean that either "competition value" or "occupation interest" 
 is to be a ground of deduction. {Ripley v. Macnaghten, (1899) 
 2 Ir. E. 446.) It is particularly provided that no rent shall 
 be made payable by the tenant in respect of improvements 
 made by him or his predecessors in title, unless these have 
 been already compensated. The Land Act, 1896 (59 & 60 
 Vict. c. 47), now requires the Court, on fixing this fair rent 
 originally or on appeal, to record in the form of a schedule 
 full particulars as to improvements, the condition of the hold- 
 ing, and generally aU. matters taken into account in fixing the 
 fair rent— to record, in short, the grounds of its judgment. 
 (Sect. 1.) 
 
 The leading case of Adams v. Dunseath (10 L. E. Ir. 109) 
 has decided that "improvements" here must have the same 
 
 dd2 
 
404 APPENDIX B. 
 
 meaning as in tlie Land Act, 1870— i.e., must mean improve- 
 ment works, not increased letting value — and that the reduc- 
 tion of rent in respect of them is to be only in proportion to 
 the amount of labour and capital actually expended in making 
 them. In a case affecting the same holding, on the expiration 
 of the first statutory term [Adams v. Dunseath, No. 2, (1899) 
 2 Ir. E. 504), a majority of the Court of Appeal laid down the 
 following principles as to fixing the fair rent : — (o) The 
 tenant is entitled to a fair return by way of annual allowance 
 in respect of the present capital value of his improvement 
 works, which may be estimated by way of percentage on 
 such capital value. (5) If, after making this percentage, 
 there is still a surplus of increased letting value, it is within 
 the exclusive jurisdiction of the Land Commission to deter- 
 m.in6 whether, and in what proportions, such surplus shall be 
 divided between landlord and tenant ; in making such divi- 
 sion, it will have regard to all the matters mentioned in 
 sect. 8 (9) of the Act of 1881, and will treat the latent and 
 dormant resources of the soil, as let by landlord to tenant, as 
 the property of the landlord, and the development of those 
 resources by the tenant as the act of the tenant. " English- 
 managed " estates are excluded from the benefits of the 
 section. 
 
 IV. All later Land Acts may be said to be amendments 
 and extensions of the Act of 1881, and in particular {see 
 Appendix C.) of provisions contained in it for assisting 
 tenants to purchase the fee simple of their holdings. The 
 Land Act, 1887 (50 & 51 Vict. c. 33), enabled leaseholders 
 who would, under sect. 21, Act 1881, at the expiration of 
 their existing leases be deemed in the position of tenants 
 from year to year of " present tenancies," to take the benefits 
 of the Act of 1881 within a specified time. It enabled them, 
 in fact, to anticipate their future rights. (Sect. 1.) It may 
 be noted that if a lessee under a lease for lives — whose interest 
 would of course be freehold {see p. 66, supra) — has a fair rent 
 fixed under this section, his interest is thereby converted into 
 personal estate. {M'Evoy v. M'Evotj, (1897) 1 I. E. 295.) 
 And the Eedemption of Eent Act, 1891 (54 & 55 Vict. c. 57), 
 enables lessees under long terms, and grantees in fee farm, 
 to have their rents redeemed by advances from the Land 
 Commission, or, if the landlord will not consent to that, to 
 have a fair rent fixed. In fixing such fair rent the grantee 
 in fee farm has now practically the same rights as an ordinary 
 tenant, as to exemption from rent on improvements. (Sect. 14, 
 Act 1896, supplementing Mairs v. Lechj, (1895) 2 I. E. 479.) 
 
 An attempt has been made by the Town Tenants (Ireland) 
 Act (6 Edw. VII. c. 54) to give tenants of houses, shops, and 
 
THE IRISH LAND ACTS. 405 
 
 other buildings in towns, rights analogous to those given to 
 agricultural tenants by the Act of 1870, in regard to compen- 
 sation for improvements and disturbance. Such a tenant 
 may, on quitting his holding, claim from his landlord com- 
 pensation in respect of all improvements made by him or his 
 predecessors in title, which add to the letting value of the 
 holding (sect. 1) ; and the amount of such compensation is in 
 case of dispute to be determined by the County Court. 
 Compensation for disturbance may be claimed (sect. 5) if the 
 landlord without sufficient cause (a) determines the tenancy ; 
 [b) refuses a renewal thereof ; (c) demands an increased rent 
 in respect of tenant's improvements. This section, however, 
 applies only to houses, shops, and other buildings occupied 
 wholly or to a substantial extent for trade or business 
 purposes, and held (1) under yearly tenancies created after 
 the passing of the Act ; or (2) under leases made after the 
 Act for not less than thirty-one years or for life or lives ; or 
 (3) contracts of tenancy existing before the passing of the 
 Act at a rent of not less than 100^. yearly. If the tenant 
 wishes to claim for improvements made after the Act, he must 
 give the landlord notice of his intention to make them. 
 
( 406 ) 
 
 APPENDIX C. 
 
 IRISH LAND PUEOHASE. 
 
 As stated in former editions of this work, a series of Land 
 Purcliase Acts has been passed, intended to assist tlie sale of 
 Irisli agricultural holdings from landlords to their tenants. 
 The first effective step in this direction was taken by the 
 Land Purchase Act, 1885, the "purchase clauses" in the 
 Land Acts of 1H70 and 1881 having little practical result. 
 Modifications in the scheme of purchase established by that 
 Act were made by the Acts of 1891 and 1896. But the recent 
 and important Irish Land Act, 190i (3 Edw. VII. c. 37), has 
 so largely increased the facilities for purchase that we may 
 treat it as a new point of departure ; it therefore seems desir- 
 able to give some account of its provisions, although the 
 details of this complicated subject are beyond our limits. 
 
 The common characteristics in all recent schemes of Irish 
 land purchase are that the State, through the Land Commis- 
 sion, advances the purchase-money to the landlord, and that the 
 purchasing tenant repa> s this advance with interest to the 
 Commission by annual instalments (called the purchase annui- 
 ties) ; the amount of each instalment is in practice less than 
 the rent previously paid, which of course ceases at the sale. 
 Under the Act of 1891 this purchase-money was not paid to 
 the landlord in cash, but by the issue to him of guaranteed 
 land stock. In order to be satisfied that the holding was a 
 sufficient security to the State for the advances, the Land 
 Commission had to inspect it ; and in order to be satisfied of 
 the vendor's right to receive the monej', they had to investi- 
 gate his title fully. The principal changes made by the Act 
 of 1903 in the system are (1) the price is payable in cash; 
 
 (2) the vendor also receives a " bonus " from the State ; 
 
 (3) sales under the Act are to be made, not of separate 
 
lErSH LAND PURCHASE. 407 
 
 holdings, but of " estates " ; and (4) an attempt is made to 
 simplify and cheapen the investigation of title. Under this 
 Act, however, as formerly, sale remains a voluntary process ; 
 the questions whether a sale shall take place at all, and at 
 what price, are matters of agreement and bargain between 
 landlord and tenant. But whereas it was formerly a matter 
 of discretion with the Land Commission as to whether they 
 would sanction an advance, this is in many cases no longer 
 so ; if the sale falls within certain conditions, and if the Com- 
 mission have declared the subject-matter of the sale " an 
 estate," the Commission must sanction the advance. 
 
 We shall now shortly consider the various steps in this 
 process in their order. 
 
 I. The Vendor. — "Without attempting an exhaustive enu- 
 meration of those persons who, as landlords, may sell to their 
 tenants under the Land Purchase Acts, it is sufficient for our 
 present purpose to say that they include the following : — 
 (a) An owner in fee simple or in fee farm, or a person having 
 a power of appointment over the fee ; (S) an owner of a lease 
 for lives or years renewable for ever, or an owner entitled to 
 a lease for years whereof at least sixty years are unexjjired ; 
 (c) a tenant for life of any of the foregoing interests under a 
 settlement, or a person having the powers of a tenant for life 
 under the Settled Land Acts; id) a trustee for sale or with 
 a power of sale of any interests mentioned under («) and iV) ; 
 (e) the Land Judge, in certain cases ; (/) a mortgagee in 
 possession, with a power of sale, of any interests mentioned 
 under (a) and (5). 
 
 II. The Purchaser. — Under previous Land Purchase Acts, 
 a sale of a holding could only be made to a tenant of that 
 holding. The Act of 1903 enlarges the class of persons who 
 may purchase by including (sect. 2) the tenant of another 
 holding on the same estate, or the son of such a tenant, or 
 the tenant of a small holding (under bl. in rateable value) in 
 the neighbourhood of the estate, or a tenant who has been 
 evicted from a holding within twenty-five years before the 
 passing of the Act. 
 
 III. Subject-matter of .S'a/e.— That which is transferred from 
 the landlord to the tenant is the holding, or, more correctly, 
 the interest in that holding of the landlord and those whom 
 the landlord (if a limited owner) represents ; and all interests 
 superior to the landlord's being redeemed out of the purchase- 
 money, the tenant-purchaser acquires the fee simple. It must 
 be noted, however, that ia) this holding which may be pur- 
 chased by a tenant is not necessarily the holding which he 
 
408 APPENDIX C. 
 
 previously occupied (sect. 2, supra) ; {b) only estates consisting 
 substantially of agricultural (or pastoral) holdings are capable 
 of being purchased under the Act ; (c) but if a holding be 
 substantially agricultural or pastoral, there are not the same 
 exclusions from this Act as from the previous Land Acts {see 
 pp. 400, 401, supra), e.g., future tenancies, town-parks, and 
 demesne-lands may be purchased under this Act ; but {d) the 
 purchase-provisions of this Act are, strictly speaking, applic- 
 able to the sale, not of single holdings separately, but of estates. 
 (Sects. 1, 98.) Therefore, before a sale can be made, an order 
 must be obtained from the Commission declaring the quantity 
 of lands which it is proposed to sell to be " an estate." The 
 duties of the Commission under this Act are specially assigned 
 to a new department of the Commission called the Estates 
 Commissioners. (Sect. 23.) 
 
 Sales under the Act may take one of two forms : (i.) The 
 most common, sales direct by landlord to tenants of holdings 
 declared by the Commission to constitute collectively an 
 estate ; or (ii.) sales of an entire estate by the landlord to 
 the Commission, with a view to its b^ing re-sold by the 
 Commission to the tenants. (Sect. 6.) The procedure in the 
 latter case is more complicated, and, as it is likely to be 
 less usual than the former, it will not be further noticed 
 here. 
 
 IV. Agreejnent for Sale. — The agreement for the sale and 
 purchase of a holding must state the price ; it should also 
 state whether the sporting rights over the holding are to be 
 conveyed to the tenant-purchaser or reserved to the vendor ; 
 if this is not specified, such rights will vest in the Commission, 
 who may subsequently deal with them. 
 
 This agreement, together with a statement on the part of 
 the landlord called an originating application, is filed with 
 the Land Commission. Their duties thereupon are twofold : — 
 (1) They must consider whether the statement discloses that 
 the landlord has a prima facie title to sell. Under sect. 17 all 
 that is necessary in that regard at the present stage is {a) to 
 give prima facie evidence that he comes within one of the 
 classes of vendors mentioned above ; and (A) to satisfy the 
 Commission that he or his immediate predecessor in title has 
 been in receipt of the rents and profits of the land for the 
 six years immediately preceding his proposal for sale.' The 
 
 ' This prima facie investigation of title is, under Rules made in 
 November, 1907, to be performed by counsel for the vendor, who 
 is to certify that iu his opinion the requirements of sect. 17 have 
 been fulfilled, and also that the lands have been suflioiently identi- 
 fied. Such certificate will " satisfy the Commission." 
 
IRISH LAND PURCHASE. 409' 
 
 Commissioa are then authorised to treat him as owner for all 
 purposes other than the distribution of the purchase-money ; 
 i.e., a complete investigation of his title is postponed until 
 after the transfer to the tenants. (2) If satisfied on this 
 preliminary question of title, and if the subject-matter of the 
 proposed sale is declared fit to be regarded as an estate, there 
 arises the question as to the Commission sanctioning an 
 advance of the purchase-money. 
 
 V. Sanction of Advance. — The duty of the Land Commis- 
 sion to sanction an advance for the purchase of a holding is 
 in some cases mandatory, in others discretionary . 
 
 1. It is mandatory where the holding is subject to & judicial 
 rent {see p. 403, supra), fixed or agreed on : — 
 
 {a) Since 1896, if the purchase-money is not less than 21|- 
 
 or more than 27f times the rent ; 
 (J) Before 1896, if the purchase-money is not less than 18^- 
 
 or more than '2A^ times the rent.' 
 
 2. It is discretionary if the holding is not a judicial 
 tenancy, or if the price does not come within the conditions 
 above mentioned. In such cases the Commission may 
 sanction the advance, if they are satisfied with the security, 
 and if, after giving all persons interested an opportunity of 
 being heard, they consider the price equitable. 
 
 VI. J^esting Order. — The advance having been sanctioned, 
 and such evidence given of the boundaries and extent of the 
 holdings as the Commission think necessary, an order is 
 made vesting the ownership of the holdings in the tenant- 
 purchaser. During the interval between the signing of the 
 agreement and the making of this order, the tenant, instead of 
 rent, is liable to pay interest on the purchase- money to his 
 landlord through the Commission, at a rate which will 
 generally be specified by the agreement. 
 
 VII. Making of Advance. — The purchase-money is not 
 advanced direct to the landlord, as he has not yet fully proved 
 his title to it, and as in most cases various persons will be 
 entitled to different interests in it. The Commission pay it 
 into the Bank of Ireland and make an order attaching to the 
 
 1 This is the practical result of sects. 1 and 45 : any case satisfying 
 these conditions is said to be " within the zones. ' ' The price is stated 
 in the agreement as a lump sum, but the negotiations usually go 
 on the basis of a number of years' purchase of the rent. 
 
410 APPENDIX C. 
 
 money all claims wticli previously attached to the landlord's 
 interest in the land. (Sect. 24.) 
 
 VIII. Repayment hy Purchaser. — This advance is repayable 
 by the tenant-purchaser to the Commission by a series of 
 annual payments called purchase-annuities, which are charged 
 on the tenant's interest in the land purchased. Sect. 45 
 fixes the amount of the annuity at Zl. 5«. for every 100/. 
 advanced. The purchaser may at any time redeem the out- 
 standing future annuities. (Sect. 46.) 
 
 IX. Payment to Vendor. — For the purpose of ascertaining 
 who is entitled to the purchase-money, the landlord's title is 
 at this stage investigated by the Commission (without, if 
 possible, causing expense to the persons entitled), and the 
 money is distributable among those whose claims to it are 
 ascertained.' Not only will the landlord (vendor) receive that 
 portion of the purchase-money to which he is entitled, after 
 providing for claims, but also a "bonus." (Sect. 48.) In 
 order to aid the sale of estates, the Commission are em- 
 powered to pay the vendor an amount equal to 12 per cent, 
 on the purchase-money of the estate. It is to be noted, how- 
 ever, that if (rt) the estate is insolvent as to income {i.e., so 
 encumbered that the vendor is not entitled to receive for his 
 own use any part of the rents or profits) ; or if (6) the per- 
 centage is payable in respect of au estate sold by the Land 
 Judge, the bonus is not paid to thfi vendor, but added to the 
 purchase-money. Where it is payable to the vendor, 
 however, he is entitled to it for his own use and benefit, 
 notwithstanding that he is a tenant for life ; i.e., it is not like 
 capital money under the Settled Land Acts. (4 Edw. VII. 
 c. 34, s. 3.) 
 
 From the date of the vesting order the Commission pay the 
 landlord interest at 3i- per cent, on the purchase-money till 
 distribution ; the rate of interest may be reduced in case of 
 any person entitled, if by his default his title is not estab- 
 lished within twelve months. (Sect. 25.) 
 
 X. Restriction on Rights of Tenant- Purchaser. — We have 
 only to notice, further, that the purchaser of a holding is 
 restrained from sub-dividing or letting it, and (partially) from 
 mortgaging it. (Sect. 64.) He may not sub-divide or let 
 
 ' This distribution is made by an order of the Judicial Commis- 
 sioner (sitting in Court or in Chambers), before ^hom there is 
 brought a schedule setting forth the various peisons entitled to 
 the money, in due order of priority ; and this schedule, if approved 
 by him, regulates the order in which the money is to be paid out. 
 
IRISH LAND PURCHASE. 411 
 
 without the consent of the Commission, who, if he does so, 
 may order the holding to be sold. Nor may he mortgage or 
 charge the holding or any part of it for more than ten times 
 the amount of the annuity payable in respect of the holding 
 or that part ; any mortgage or charge exceeding this amount 
 is void as to the excess. If the result of a disposition taking 
 effect on death, or of an intestacy, would be to cause the 
 holding to become vested in more than one person, the Court 
 may either direct a sale within twelve months, or nominate 
 some person interested as the proprietor of the holding, 
 providing for the satisfaction of the claims of other persons 
 interested by charging them on the holding or otherwise. 
 
( 412 ) 
 
 APPENDIX D. 
 
 EBG-ISTRATION IN IRELAND. 
 
 There are in Ireland two systems of registration : (a) regis- 
 tration of assurances (and of judgments), being a record of 
 dealings witli land ; and (h) registration of title, being a record 
 of the ownership of land. The former system is similar to, 
 but somewhat more extensive than, that prevailing under the 
 English Registry Acts in the so-called Register Counties. 
 {See supra, p. 216.) The provisions of the latter system are 
 similar to those which the Land Transfer Acts, 1875 (38 & 39 
 Vict. c. 87) and 1897 (60 & 61 Vict. c. 65, supra, p. 251), 
 enacted for England, with this important difference : that 
 whereas registration under those Acts has hitherto been 
 largely voluntary, and in practice comparatively rare, there 
 is in Ireland, under the Local Eegistration of Title Act, 1891 
 (54 & 55 Vict. c. 66), a large class of lands the ownership of 
 which must be registered, viz., lands sold and conveyed to or 
 vested in a purchaser under the Purchase of Land (Ireland) 
 Acts (see Appendix C), subject to a charge for repayment of 
 an advance of purchase-money. The registration of all other 
 land is voluntary. When land is registered under the Eegis- 
 tration of Title Acts, it ceases to be subject to the ordinary 
 law as to registration of assurances. Since, however, all other 
 land in Ireland is so subject, we shall first briefly notice the 
 provisions of the Irish Registry Acts. 
 
 I. The chief of these are the 6 Anne, c. 2 (Ir.), with various 
 amending Acts, and (as to judgments) 13 & 14 Vict. c. 29. 
 The statute of Anne provides for the registration, in a central 
 office established by it, of all deeds, conveyances, and wills,* 
 
 1 Since, however, unregistered wills were not declared void 
 against subsequent purchasers, wills are in practice seldom regis- 
 tered. {Fury V. Smith, 1 H. & B. 759.) 
 
REGISTRATION IN IRELAND. 413 
 
 affecting land (sect. 3), except leases for years not exceeding 
 twenty-one, accompanied by actual possession. (Sect. 14.) 
 Such registration is effected by enrolling in the Eegistry of 
 Deeds a "memorial" of the instrument in question, i.e., a 
 statement of its date, parties and witnesses, with their descrip- 
 tions and residences, and of the lands affected by the instru- 
 ment and their local situation. (Sect. 7.) This memorial is 
 to be executed by a grantor or grantee under the instrument, 
 and attested by two witnesses, one of whom was a witness to 
 the original deed, and this latter witness is to prove, by 
 affidavit filed along with the memorial, the execution both of 
 memorial and deed. (Sect. 6.) The effect of such registration 
 is to give registered instruments priority, according to the 
 time of their registration, against all other assurances of the 
 same land. (Sect. 4.) And unregistered assurances of lands 
 comprised in a registered assurance are to be deemed fraudu- 
 lent and void, both against the registered assurance and 
 against creditors having a claim against the lands in question. 
 (Sect. 5.) Generally speaking, a registered assurance will 
 have priority over a previous unregistered assurance of the same 
 lands, unless the party setting up the registered instrument 
 has actual notice of the previous instrument, in which case 
 equity deprives him of his statutory priority. {Le Neve v. 
 Le Neve, 1 Ves. 64 ; Mill v. Hill, 3 H. L. 0. 828.) As to the 
 effect of registration in excluding the doctrine of tacking, 
 see p. 216, supra.^ 
 
 It is to be noticed that non-registration of an instrument 
 which should have been registered does not invalidate that 
 instrument, but merely renders it liable to be defeated by a 
 subsequent registered instrument ; it is nevertheless good, e.g., 
 as between grantor and grantee. {Jones v. Gibbon, 9 Ves. 407.) 
 Nor does an instrument [e.g., a voluntary conveyance, at all 
 events so long as none but volunteers derive under it) gain 
 any additional intrinsic validity from being registered. {In re 
 Flood, 13 Ir. Ch. 312.) This, however, must be taken subject 
 to the qualification that certain statutes make registration 
 essential to the validity of certain assurances ; thus, e.g., the 
 Charitable Donations and Bequests Act (7 & 8 Vict. c. 97, 
 s. 16) avoids conveyances of lands in Ireland for pious or 
 charitable uses unless registered within three months of their 
 
 ' An equitable deposit of deeds, unaccompanied by any memo- 
 randum in writing, takes priority over a purchaser for value claim- 
 ing under a subsequent deed without notice of the deposit. But if 
 the deposit is accompanied by any memorandum amounting to an 
 agreement to create an equitable charge on the lands, such memo- 
 randum must be registered. [Re Burke's Estate, 9 L. E. Ir. 24 ; 
 and Fullerton v. Provincial Bank, (1903) A. C. 309.) 
 
414 APPENDIX D. 
 
 execution (wills are excepted, but a devise of lands for 
 charitable uses is void unless the testator lives three months 
 after executing his will). 
 
 II. Registration of Judymenls as Judgment Mortgages. — 
 Since the Act 13 & 14 Vict. o. 29, the lands of a judgment 
 debtor can, in Ireland, no longer be seized under a writ of 
 elegit. There are now only two ways in which a judgment 
 can be made available against a debtor's lands : {a) chattel 
 interests in land may be taken under a writ oifi. fa. ; (V) the 
 judgment may be registered under this Act as a judgment 
 mortgage. 
 
 Sect. 6 enacts (in substance) that when a judgment creditor 
 shall know or believe that the judgment debtor is possessed 
 of, or has a disposing power over, lands of any tenure, the 
 judgment creditor may make, and file in the Court in which 
 judgment has been entered up, an affidavit stating (a) the 
 title of the cause, (J) the name and the usual or last known 
 place of abode and the title, trade, or profession of the 
 plaintiff and defendant, (c) the amount of the debt, damages 
 and costs, id') the nature of the judgment debtor's interest in 
 the lands, (e) the county and barony or town and parish in 
 which the lands are situate. An office copy of this affidavit 
 is filed by the judgment creditor in the Registry of Deeds ; 
 and this filing efiects a judgment mortgage, transferring the 
 judgment debtor's interest in the lands to the creditor to the 
 same extent as if a mortgage had been duly made and 
 registered at the time of registering the affidavit. 
 
 III. Registration of Title. — This was to some extent pro- 
 vided for by the Eecord of Title Act, 1865 (28 & 29 Vict. c. 88), 
 which established a Record of Title Office for the registration 
 of parliamentary titles to land, and of titles conferred by con- 
 veyances, and declarations of title made by the Landed Estates 
 Court.' This Act, however, is now of comparatively slight 
 importance. 
 
 1 This court was established in 1858, by the 21 & 22 Vict. o. 72, 
 as successor to the older Encumbered Estates Court, and is now 
 a branch of the Chancery Division. Its function is to facilitate 
 the sale of the encumbered estates so common in Ireland ; and 
 to take charge of them until sold, by appointing receivers. Any 
 encumbrancer or owner of an encumbered estate can apply for a 
 sale, which is preceded by an investigation of title to the lands, of 
 the priority of charges existing upon them, and the rights of all 
 persons in regard to them. A Landed Estates Court conveyance 
 creates a certain and indefeasible title to whatever it purports to 
 convey, against which no averment can be made. (Sect. 61 and 
 
REGISTRATION IN IRELAND. 415 
 
 The Local Eegistratioa of Title (Ireland) Act, 1891 (54 & 55 
 Vict. c. 66), establishes a central registering authority in 
 Dublin, and a local registering authority in each county in 
 Ireland. (Sect. 4.) In these ofEces, the ownership of any 
 lands purchased by tenants under the Land Eur(;ha8e Acts, 
 and subject to a charge for the repayment of purchase- money 
 advanced under those Acts, must be, and the ownership of any 
 other land may be, registered (sect. 22) ; and so long as land 
 remains registered under this Act, the provisions as to regis- 
 tration of assurances do not apply to it. (Sect. 19.) If the 
 original registration was voluntary, the owner may at any 
 time have the land taken off the register. (Sect. 20.) 
 
 Where registration is declared to be compulsory no estate 
 is acquired under any conveyance by any person until he is 
 registered as owner of such land, and upon such registration 
 the title relates back to the date of the conveyance, and any 
 dealings with the land before registration have effect accord- 
 ingly. (Sect. 25.) Land compulsorily registrable m.ay be 
 devised, but the devisee acquires no estate or interest until 
 he is registered as owner. [Torish v. Or?- and Smith, (1894) 
 2 Ir. E. 381.) 
 
 Registration is generally preceded by an investigation of 
 the title by the registering authority, for the purpose of deter- 
 mining under which "kind of ownership" it shall be registered, 
 and whether any " burdens " affect it. (Sect. 29.) There are 
 two kinds of ownership which may be registered : (a) full 
 ownership, i.e., ownership in fee ; and (J) limited ownership, 
 i.e., the ownership of a tenant in tail or for life. (Sect. 28.) 
 " Burdens " or incumbrances are also of two kinds : [a) burdens 
 which may affect registered land without the burdens being 
 registered ; these are enumerated in sect. 47, which see ; and 
 (h) burdens which may be registered as affecting registered 
 land, which include incumbrances in general, and judgments. 
 {^See sect. 45.) Burdens rank in priority according to the time 
 of their registration. (Sect. 49.) 
 
 The effect of registration is to vest the fee simple in the 
 person registered as full owner, or in the person registered as 
 limited owner and the other persons entitled under the settle- 
 ment collectively, subject to such burdens as may affect the 
 land. (Sect. 30.) This ownership is evidenced by the 
 delivery to the person entitled of a " land certificate " (sect. 31); 
 and a deposit of this certificate as security for a loan has the 
 
 He Tottenham's Estate, Ir. E. 3 Eq. 529.) When a receiver has been 
 appointed, it is now the duty of the Land Judge, ^Ith the assistance 
 of the Land Commission, to offer the estate for purchase in the first 
 instance to the tenants. (Sect. 40, Land Act, 1896; and Be Owen's 
 Estate, (1897) 1 I. E. 200.) 
 
416 APPENDIX D. 
 
 same effect as a deposit of title deeds, i.e., creates an equitable 
 mortgage. (Sect. 81.) The register is then conclusive evidence 
 of the title to the land (sect. 34), and upon it all transfers and 
 devolutions will thenceforth appear, any instrument of transfer 
 being ineffectual till it does appear on the register. (Sect. 36.) 
 Charges on the registered land are to be made by an instru- 
 ment of charge, which, when registered, has the effect of a 
 mortgage by deed (sect. 40) ; when a charge is satisfied, the 
 ■satisfaction is in like manner entered on the register, and the 
 charge thereupon ceases to operate. (Sect. 42.) 
 
 It is important to note, that adverse possession gives no title 
 to registered land until the person thereby claiming has 
 obtained from the Court an order declaring his title, and order- 
 ing the rectification of the register accordingly. (Sect. 52.) 
 
 A separate register of leasehold land is to be kept. (Sect. 53.) 
 
 Generally speaking, no trust affecting registered land will 
 appear on the register. (Sect. 63.) 
 
 Land registered as having been purchased by tenants under 
 the Purchase Acts is to devolve like personalty. (Sects. 83 — 
 89.) Notwithstanding any testamentary disposition of the 
 owner, it devolves upon his personal representatives like a 
 ohattel real (sect. 84) ; and they hold it, as they do personalty, 
 in trust for the persons beneficially entitled under the deceased 
 owner's will, or by way of intestate succession. (Sect. 85.) All 
 canons of descent, and rules as to curtesy and dower, are 
 abolished with respect to such land ; but the word heirs, used 
 as a word of limitation in an instrument executed before the 
 Act, is to have the same effect as if the Act had not passed ; 
 and in an instrument made after the Act, it is to be construed 
 as meaning the persons beneficially entitled by way of intes- 
 tate succession to the ancestor's personal estate. (Sect. 89.) 
 Under 3 Edw. VII. c. 37, s. 54 (41, any mortgage or charge 
 on such lands is to be void if not registered as a burden within 
 three months of its execution if made inter vivos, or, if created 
 by will, within six months of testator's death. 
 
( 417 
 
 APPENDIX E. 
 
 SHIPS. 
 
 Ships are a species of personal property, and are therefore 
 subject, in the absence of other provisions, to the ordinary 
 rules relating to the acquirement, transmission, and devolu- 
 tion of goods. But they are also subject, by reason of their 
 important and peculiar character, to a large body of special 
 rules, and it is therefore necessary to consider briefly the 
 mode in which interests in ships can be dealt with and dis- 
 posed of. For, as was said by Turner, L. J., in Hooper v. 
 Gunn (L. E. 2 Ch. App. 282), " a ship is not like o'dinary 
 personal property ; it does not pass by delivery, nor does the 
 possession of it prove the title to it ; there is no market overt 
 for ships." 
 
 The effect of statutory enactments has been to put ships, as 
 far as the mode of dealing with them is considered, in a posi- 
 tion very like that of land, the title to which has been regis- 
 tered. A Registry of Shipping has been established in the 
 ports of the United Kingdom ; and every ship, with the 
 exception of small coasting vessels or vessels engaged in 
 inland navigation, must be registered therein if it is to be 
 recognised as or have the privileges of a British ship. (Mer- 
 chant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 1.) 
 
 Moreover, there exists a restriction as to the persons who 
 can be considered as owners of a British ship — a restriction 
 such as no longer exists in the case of any other kind of pro- 
 perty under English law. Just as formerly an alien could not 
 hold land in England, so still an alien cannot be owner of a 
 British ship. The persons qualified for such ownership are 
 either — (a) British subjects, whether they have become such 
 by birth, naturalization, or denization, or (i) a body corjjorate, 
 under the law of some portion of the British Empire, and 
 having its principal place of business within the empire. 
 (Sect. 1.) 
 
 There is a further restriction as to the number of persons 
 who can be registered as owners of any one ship; this number 
 
 E B 
 
418 APPENDIX E. 
 
 is fixed at 64. This does not mean that no more than 64 
 individuals can possibly be beneficially interested in a ship. 
 The provision simply is that not more than 64 individuals 
 shall be registered, and that a ship shall be considered as 
 divisible into not more than 64 shares ; but this provision is 
 not to affect the beneficial title of any number of persons or 
 of any company, claiming through the registered owners. 
 (Sect. 6.) 
 
 The first entry of a ship upon the register is preceded by a 
 survey, for the purpose of ascertaining its tonnage, and by a 
 declaration as to the ownership, which is evidenced by a certi- 
 ficate of the builder. (Sects. 6, 8 and 9.) The fact of registry 
 is then evidenced by a certificate of registry, containing the 
 name of the ship, the port at which she is registered (called 
 Vaei port of registry), particulars as to her tonnage, build, and 
 origin, the name of the owners and of the master. (Sect. 14.) 
 Every subsequent change in the ownership of the vessel is 
 indorsed on this certificate, which is finally delivered up to 
 the registry authorities on the ship being lost or ceasing to 
 be a British ship. (Sect. 20.) 
 
 Transfers of Ships. — A ship being thus entered upon the 
 register, a legal transfer either of the whole ship or of any 
 share therein — i.e., a transfer entitling the transferee to be 
 put on the register in place of the transferor — can be made 
 only between persons qualified as above stated to own a 
 British ship, by means of a bill of sale duly attested ; and it 
 must be evidenced by the requisite entries and alterations in 
 the register. This bill of sale, or instrument of transfer, is to 
 be in the form set out in the schedule to the Act, and attested 
 in the manner therein provided. (Sect. 24.) It is, moreover, 
 to be accompanied by a declaration of transfer. (Sect. 25.) 
 This is a declaration made by the transferee, containing a 
 statement of his qualification to be the registered owner of 
 a British ship, and a further statement that no unqualified 
 person is entitled, legally or equitably, to the ship or a share 
 therein. Upon the bill of sale and the declaration of transfer 
 being produced to the registrar at the ship's port of registry, 
 he makes the requisite alteration in the registered ownership 
 by entering the name of the transferee as the new owner, and 
 indorses on the bill of sale a memorandum of such entry. 
 
 Devolution. — The devolution of ships, on the death or bank- 
 ruptcy of the owner, is governed by the rules applicable to the 
 devolution of other personal property ; but the person suc- 
 ceeding to the rights of ownership acquires no power of dis- 
 position over the ship until his rights are authenticated by the 
 proper entry in the register. As on a transfer by bill of sale, 
 
SHIPS. 419 
 
 ■so here, the successor must make a declaration of transmission, 
 ■containing similar statements to those in the declaration of 
 transfer, and this is entered on the register in a similar 
 ■manner. (Sect. 27.) 
 
 If a transfer, either inter vivos or on death, is made to a 
 person not qualified to own a British ship, the Court has 
 power, on the application of any person interested, to order a 
 sale of the ship, and such order will nominate some person to 
 execute the transfer upon sale. (Sect. 28.) It is also open 
 to a person interested to apply that transfer of the ship shall 
 be prohibited for a specified time. (Sect. 30.) 
 
 Ecjuitable Transfers. — A transfer of the equitable interest 
 in a ship maj' be made without the formalities necessary for a 
 transfer of the legal interest. It is, in fact, expressly provided 
 that no notice of any trust is to appear on the register (sect. 65) ; 
 but equitable interests may be enforced by or against regis- 
 tered owners, in the same manner as in respect of any other 
 personal property. (Sect. 57.) 
 
 Mortgages of Ships. — The provisions as to the creation of 
 a mortgage on a ship are analogous to those relating to the 
 mode of transferring the ship completely. The mortgage is 
 nn vnsi&ncB oi & statutory mortgage. {Seep. 199, siqira.) An 
 instrument making a ship, or a share in it, security for a loan, 
 must be in the form provided in the schedule to the Act, and 
 be registered at the ship's port of registry. (Sect. 31.) If 
 there be more than one such instrument affecting a ship, the 
 various mortgages are entered on the register in the order of 
 their production to the registrar, and have priority inter se, not 
 according to the date of their execution, but of their registra- 
 tion. (Sect. 33.) The effect of a mortgage is not to make the 
 mortgagee owner of the ship, or to give him any of the powers 
 of an owner, except such as are necessary for enabling him to 
 realize his security. (Sect. 34.) This he may do by means of 
 his power of sale. A sole mortgagee has an absolute power 
 of sale over the ship ; a puisne mortgagee has only a power 
 exerciseable either with the concurrence of the prior mort- 
 gagees or under an order of the Court. (Sect. 35.) In case 
 of the owner becoming bankrupt after having mortgaged his 
 ship, the mortgage remains unaffected by the bankruptcy, 
 and the mortgagee is preferred to the other creditors so far 
 as the ship is concerned. (Sect. 36.) A mortgagee may 
 transfer his mortgage by an instrument of transfer duly 
 authenticated and registered (sect. 37) ; and on the mortgage 
 being paid off, its discharge is entered on the register on pro- 
 duction of the instrument of mortgage with the mortgagee's 
 receipt indorsed upon it. (Sect. 32.) 
 
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INDEX. 
 
 Absolute Ownership, 
 
 characteristics, 11, 13. 
 
 subsists in goods, not in land, 19. 
 
 ownership of leasehold interests, 103. 
 
 Abstract of Title, 236. 
 
 Accession, acquiring ownership by, 230. 
 
 Accumulations, 
 
 restraint on, 188. 
 Accumulations Act, 1892.. 189. 
 law in Ireland, 190. 
 
 Acknowledgments by married women, 376. 
 
 Actions, 
 
 real and personal actions, 7, 48. 
 
 actions for payment of rent, 96. 
 
 actions by mortgagee, 207, 208, 210,, 218. 
 
 actions by mortgagor, 213. 
 
 probate actions, 272. 
 
 limitation of actions, 303. 
 
 actions for debt, 249. 
 
 actions for torts, 250. 
 
 actions by married women, 377. 
 
 Acts of Bankruptcy, 298. See Bankruptcy. 
 
 Administration, 294. 
 
 Administrator, 
 
 cum testamento annexo, 29 1 . 
 
 durante minore estate, 291. 
 
 ad colligendum bona defuncti, 291. 
 
 of real estate, 290. 
 
 powers of an administrator, 313. 
 
 difference between administrator and executor, 314. 
 
 Adtowsons, 
 
 incorporeal tenements, 33.5. 
 kinds of, 335. 
 right to present, 336. 
 presentations to be in writing, 337. 
 
2 INDEX. 
 
 Aqeeements, 
 
 to convey freeliolds, 336. 
 
 for lease, 247. 
 
 for sale of goods, 262. 
 
 Am, right to, 326. See Easements. 
 
 Alien-, 
 
 former disabilities as to land, 309. 
 Naturalization Act, 380. 
 ownership of British ships, 417. 
 
 Alienation, 
 
 of land : inter vivos, 236. 
 
 feoffment, 241. 
 
 bargain and sale, 243. 
 
 lease and release, 243. 
 
 covenant to stand seised, 244. 
 
 deed of grant, 245. 
 
 lease, 246. 
 
 assignment of lease, 250. 
 
 registered transfer, 251. 
 of goods : inter vivos, 258. 
 
 gift and delivery, 260. 
 
 deed of gift, 261. 
 
 sale, 261. 
 
 bill of lading, 266. 
 of land or goods: mortis causa, 266. 
 
 donationes mortis causa, 267. 
 
 wills, 268. 
 of choses in action, 344 — 350. 
 of consols, 352. 
 of stock and shares, 358. 
 of patents, 363. 
 of copyright, 365. 
 
 of right to perform drama, &c., 365. 
 of trade mark, 366. 
 
 Alienation, Involuntary, 
 of fees simple, 43. 
 of fees tail, 53. 
 of life estates, 66. 
 of leaseholds, 100. 
 on bankruptcy, 297. 
 
 Allodial Ownership, 22. 
 
 Animals, 
 
 /era naturcB, 4, 9, 229. 
 domesticated, 4. 
 
INDEX. 6 
 
 Annuities, 
 
 charged on land, 333. 
 personal annuities, 350. 
 bank annuities, 351. 
 
 Anticipation, Eestraint on, 37 1 . See Married Women. 
 
 Appointment, 173. See Powers. 
 
 Apportionment, 65. 
 
 Appurtenances, appiu-tenant and appendant distinguished, 
 330. 
 
 Assets, 
 
 of testator, 291. 
 
 of deceased intestate, 313. 
 
 Assignment. See Alienation. 
 
 Attorney, Power op, 346. 
 
 Bailment, 339. 
 
 Bankruptcy, 
 
 of tenant in fee simple, 45. 
 
 of tenant in tail, 52. 
 
 an universal succession, 297. 
 
 law in England and Ireland, 298. 
 
 acts of bankruptcy, 298. 
 
 adjudication, 299. 
 
 effect of, on bankrupt's property, 299. 
 
 effect on previous transactions, 301. 
 
 daties of trustee in bankruptcy, 302. 
 
 disabilities of bankrupt, 302. 
 
 Bargain and Sale, 243. 
 
 Base Fee, 38, 51. 
 
 Bastard. See Illegitimate Persons. 
 
 Benefice. See Advowson. 
 
 Bequest. See Legacies. 
 
 Bills or Exchange, 340. See Negotiable Instiumaits. 
 
 Bills of Lading, 266, 347. 
 
 Bills of Sale, 224. 
 
 absolute bills, 224. 
 conditional bills, 225. 
 
INDEX. 
 
 BoJVA Vacantia, 322. 
 
 Borough-english, 28. 
 
 Botes, 62. 
 
 BiiEAOH OF Teust, 120. See Trusf. 
 
 Oeutificate, 
 
 of land, 253. 
 
 of bankrupt's discharge, 302. 
 
 of stock and shares, 258. 
 
 Cestui QUE TfiuST, 118. See Trusts. 
 
 Cestui que vie, 58. 
 
 Chakginq Order, 352, 358. 
 
 Charities, 
 
 in England, 384—387. 
 in Ireland, 387. 
 
 Chattel Interests in Land, 
 origin of, 78. 
 nature of, 79. 
 kinds of, 82, 101, 102. 
 settlements of, 102. 
 creation of, 246. 
 assignment of, 250. 
 devolution of, 270, 313. 
 disclaimer by trustee in bankruptey, 300. 
 
 Chattels, 21, 78. See Goods. 
 
 OlIILDllEN, 
 
 appointments to children, 177. 
 devises and bequests to children, 286. 
 
 Chivalry, Tenure in, 25. 
 
 Chosbs in Action. See Segotiahle Instruments 
 wife's, 310. 
 what are, 344. 
 assignments of, 346, 349. 
 devolution of, 349. 
 
 Choses in Possession. See Goods. 
 
 Clandestine Mortgages, 221. 
 
INDEX. 
 
 Class, 
 
 power to appoint to, 177. 
 gift by will to, 286. 
 
 Codicil, 268. See Will. 
 
 Common, Eights of, 
 
 kinds of common, 330. 
 extinguishment of, 331. 
 
 Companies, 354. See Corporations. 
 
 CoNouBRENT Ownership, 125. 
 
 Condition, 
 
 kinds of, 191. 
 
 void conditions, 192. 
 
 conditions in restraint of marriage, 194. 
 
 conditional limitations, 195. 
 
 Conditional Ownership, 191. Qea Mortgages. 
 
 Consideration, 232. 
 
 Consols, 351. See Annuities. 
 
 Contracts. See Agreement ; Sale. 
 
 Conversion, 110. 
 
 Convicts, 381. 
 
 Coparcenary, 137. 
 
 Copyholds, 
 
 customary tenure, 25. 
 chief incidents of copyholds, 27. 
 history of copyhold tenure, 389. 
 nature and incidents of, 391. 
 alienation of, 392. 
 enfranchisement of, 394. 
 
 Copyright, 
 
 kinds of, 363. 
 
 literary copyright, 364. 
 
 COBPORATIONS, 
 
 nature of corporations, 125. 
 kinds of corporations, 353, 382. 
 interests in corporations aggregate, 353. 
 disabilities of corporations, 382. 
 
 Corporeal Pbopebty, 
 
 things corporeal and incorporeal, 9, 323. 
 
6 INDEX. 
 
 Court Baeon, 24, 390. 
 
 Court of Chancery, 106. 
 
 Covenants, 
 
 breach of covenant, 89. 
 
 limitation of actions on covenants, 212. 
 
 covenants for title, 237. 
 
 covenants in leases, 348. 
 
 (a) by lessor, 348. 
 
 (b) by lessee, 349. 
 covenants running witt land, 349. 
 
 Creditors. See Alienation ; Bankruptcy . 
 
 conveyance for defrauding creditors, 232. 
 
 Crown, 
 
 all land held of Crown, 19. 
 
 Crown jewels, 22. 
 
 escheat to Crown, 307 — 310. 
 
 rights of Crown to iona vacantia, 322. 
 
 rights of Crown on conveyance in mortmain, 383. 
 
 Current Coin, 259. 
 
 Curtesy oe England, 310. 
 
 Customary Freeholds, 27. 
 
 Cy pees, 150. 
 
 Damages, Action eor, 349. 
 
 Death, effect on choses in action, 350. 
 
 Debentures, 358. 
 
 Debt. See Choses in Action. 
 judgment, 43, 53. 
 specialty, 45. 
 infant's, 374. 
 married woman's, 375. 
 
 Debtors Act, 1869.. 378. 
 
 De Donis Conditionalibus, 46. 
 
 Deed, 
 
 mortgage by deed, 202. 
 what is a deed, 245. 
 deed of grant, 245. 
 deed of gift, 261. 
 
INDEX. 
 
 Deliveey, 
 
 of deed, 245. 
 
 transfer of goods by, 260. 
 Descent, rules regulating descent of land, 315 — 322. 
 Designs, copyright in, 364. 
 Detinue, 304. 
 
 Devise. See Will. 
 
 meaning of devise, 269. 
 power to devise, 271. 
 effect of devise, 272—275. 
 lapsed devises, 286. 
 without words of limitation, 287. 
 Devolution Mortis Causa, 307—322. 
 "Die without Issue," 288. 
 Disabilities, 
 
 under Statute of Limitations, 305, 306. 
 nature of disabilities, 369. 
 specific disabilities, 370. 
 general disabilities, 373. 
 
 infants, 373—375. 
 
 married women, 371, 375—378, 
 
 lunatics, 378—380. 
 
 illegitimate persons, 380. 
 
 aliens, 380. 
 
 bankrupts, 381. 
 
 convicts, 381. 
 
 corporations, 382 — 384. 
 
 charities, 384—387. 
 
 Disclaimer, 
 
 no disclaimer by heir, 20. 
 
 by trustee in bankruptcy, 300. 
 
 Distress, 97. 
 Distringas, 352, 358. 
 Domicile, 278. See Will. 
 Donatio Mortis Causa, 267. 
 Dower, 311, 312. 
 Dramatic Composition, 365. 
 
 Easements, 
 
 kinds of, 325, 326. 
 acquisition of, 327. 
 prescription, 327. 
 
8 INDEX. 
 
 Ejectment, 89. See Forfeiture. 
 Elegit, 43. 
 Emblements, 65, 98. 
 Enfeanohibembnt of copyholds, 394. 
 Enrolments, Statute of, 243. See Inrolments. 
 EaniTABLE Interests, 104, 106, 107. See Trusts. 
 Equitable Mortgage. See Mortgage. 
 Equitable Waste, 63. 
 
 Equity, 
 
 rise of, 18. 
 operation of, 106. 
 
 Escheat, 
 
 incident of fee simple estates, 29. 
 
 nature of right, 307. 
 
 escheat of equitable estates, 124, 309. 
 
 escheat of rent-charge, 333. 
 
 of copyholds, 392. 
 
 Estates, 
 
 in land only, 20. 
 freehold estates, 32. 
 chattel estates, 78, 82. 
 equitable estate, 122 — 124. 
 
 Estovers, 62. 
 
 Execution, 
 
 of power of appointment, 179. 
 of bill of sale, 224. 
 of deed, 245. 
 of will, 275. 
 
 Executor, 
 
 oflace of, 269. 
 position of, 290. 
 duties of, 292. 
 rights of, 292. 
 
 Executory Interests, 
 history of, 166. 
 
 arising under wills and deeds, 169. 
 not executory interest if possible contingent remainder, 
 
 169. 
 springing and shifting uses, 172. 
 springing and shifting devises and bequests, 173. 
 
INDEX. 
 
 ExEOUTBix, 378. See Married Women. 
 Express Tbitst (limitation), 120. 
 
 Factors, sales by, 259. 
 
 Fee, 30, 31. 
 
 Fee Farm Grants, 
 in England, 39. 
 in Ireland, 40. 
 
 Fees Simple, 
 
 no reversion, 36. 
 determinable fees, 37. 
 limitations over after, 37. 
 lordships over fees simple, 38. 
 alienation, 43. 
 liability for debts, 43. 
 
 Fees Tail, 
 
 nature of, 46. 
 
 alienation by action, 48. 
 
 alienation by deed, 49. 
 
 operation of disentailing deed, 50. 
 
 special fee, 52. 
 
 liability for debts, 53. 
 
 not devisable, 54. 
 
 tenants' leasing powers, 54, 
 
 position of tenant, 55. 
 
 Felony, attainder on, 308. 
 
 Feme Covert, 371, 375. See Married Women. 
 
 Feoffee to Uses, 114, 167. 
 
 Feoffment, 24 1 . 
 
 Fkud, 23. 
 
 Fine, 48. 
 
 Fixtures, 66, 92 — 96. 
 
 foefeituke, 
 
 for breach of covenant, 89 — 92. 
 of equity of redemption, 222. 
 for fehmy or treason, 308. 
 
 FiiANcnisBS, 332—334, 360. 
 
10 INDEX. 
 
 Fraudulent Conveyances, 
 to delay creditors, 232. 
 within Bantruptcy Act, 301. 
 
 Freebench, 391. 
 
 Freehold Interests, 31. 
 
 Free SooAaE, 25, 28. 
 
 Free Tenures, 24. 
 
 Funds, 351. 
 
 Future Ownership, 143 — 191. 
 
 Garnishee Order, 349. 
 
 Gavelkind, 
 
 custom of, 28. 
 equitable estate in, 122. 
 descent, 137, 319. 
 alienation by infant, 374. 
 
 General Occupant, 59. See Pm- autre vie, Estates. 
 
 Gift and Delivery, 260 
 
 GiPT, Deed of, 261. 
 
 Goods, 
 
 meaning of term, 6, 10. 
 
 o-wnersbip of goods, 18. 
 
 no tenure in goods, 19. 
 
 no estates in goods, 20. 
 
 partial interests in goods at common law, 20, 105. 
 
 partial interests in equity, 106, 107. 
 
 future interests in goods, 143, 163. 
 
 alienation of goods, 258 — 266. 
 
 donationes mortis causd, 267. 
 
 wills of goods, 268—293. 
 
 succession to goods, 313 — 324. 
 
 rights over goods owned by others, 338 — 342. 
 
 Grand Serjeanty, 25. 
 
 Grant, Deed of, 245. 
 
 Grant of Copyholds, 392. 
 
 Gross, incorporeal hereditaments in, 324. 
 
 Guardians, 374, 375. See Infants. 
 
INDEX. 11 
 
 Habendum, 246. 
 
 Half-blood, 321. See Descent. 
 
 Heie, 
 
 heir-at-law, 31. 
 customary heir, 28, 137. 
 disclaimer by heir, 20. 
 
 Heirs, 
 
 meaning of term, 31. 
 kind of heirs, 32. 
 limitations to heirs, 151. 
 
 Heirlooms, 21. 
 
 Hereditaments, 
 meaning, 6. 
 
 incorporeal hereditaments, 9, 329 — 338. 
 personal hereditaments, 351. 
 
 Hire of Goods, 105, 339. See Bailment. 
 
 Honour, titles of, 24, 327. 
 
 Horses, sale of, 258. 
 
 Husbands. See Marriage. 
 
 covenants to settle property (bankruptcy), 301. 
 
 rights of, in wives' lands and goods, 310. 
 
 since Married Women's Property Act, 1882. .311. 
 
 Idiots, 378 — 380. See Disabilities. 
 
 Illegitimate Persons, 32, 380. 
 
 Illusory Appointments, 178. iSee Po/rrrs. 
 
 Improvements, 77. See Settled Land Ads. 
 
 In closure, 331. See Common. 
 
 Incorporation, 125, 352. See Corporations. 
 
 Indorsement, 347. See Negotiable Instruments. 
 
 Infants, 373 — 375. See Disabilities. 
 
 Inheritance. See Descent. 
 
 goods settled to attend inheritance, 22, 110. 
 
 Injunction, 106. See Equity. 
 
12 INDEX. 
 
 Inrolments, 
 
 of deeds barring entail, 49. 
 of asaurances of land in Ireland, 217. 
 of bargains and sales of land, 243. 
 of gifts to charities, 386. 
 
 Intestate Succession, 313 — 322. 
 
 Issue, die without, 288. 
 
 Joint Stock Companies, 354. See Corporations. 
 
 Joint Tenancy. See Concurrent Ownership. 
 characteristics, 126. 
 fourfold unity, 126. 
 right of survivorship, 129. 
 severance of Joint tenancy, 131. 
 severance at law, 131. 
 severance in equity, 134. 
 user of joint estate, 135. 
 trustees joint tenants, 136. 
 
 Judgment, 296. 
 
 Judgment Debts, 43. 
 
 Judgment Mortgages, 200. 
 
 Kin, Next of, 313. 
 Kinship, degrees of, 315. 
 Knight-Service, 25. See Tenure. 
 
 Land, 
 
 meaning of, 6. 
 
 tenure of, 19. 
 
 estates in, 20. 
 
 right over land owned by others, 324 — 338. 
 
 Land Purchase, Ireland. See Purchase, Irish Land. 
 
 "Lands," 287. 
 
 Land Transfer Acts, 
 
 registration of title, 250 — 257. 
 real representative, 275. 
 
 Lapse. See Legacies. 
 
 La-W and Equity, 106. 
 
INDEX. 13 
 
 Lease, 
 
 kinds of leases, 68, 80, 83. 
 general lettings, 83. 
 terms, 84. 
 
 conditional terms, 85. 
 absolute terms, 86. 
 definition of lease, 246. 
 form of lease, 246. 
 rentunder leases, 248. 
 covenants in leases, 248. 
 assignments of leases, 250. 
 
 Lease and Eeleasb, 243. 
 
 Leaseholds, 
 
 origin of, 78. 
 
 nature of, 79. 
 
 determination of, 87. 
 
 incidents of, 92. 
 
 partial interests in, at law, 102. 
 
 partial interests in, in equity, 104. 
 
 grants of, 246. 
 
 assignments of, 250. 
 
 disclaimer of, by trustee in bankruptcy, 300. 
 
 husband's interests in wife's leaseholds, 310. 
 
 Legacies, 
 
 devises and legacies, 272. 
 
 kinds of legacies, 288—290. 
 
 lapse of legacies, 289. 
 
 payment of legacies, 293. 
 
 ademption of legacies, 293. 
 
 legacies of public stock, 352. 
 
 legacies of shares of stock in companies, 358. 
 
 to illegitimate children, 380. 
 
 Legal Estate, 119. See Trust. 
 
 Legal Memory, 327. 
 
 Liability foe Debts. See Alienation. 
 of fee simple, 41. 
 of fee tail, 5 1 . 
 of life estates, 57, 63. 
 
 Liability of Trustees, 120. See Trust. 
 Lien, 341. 
 
 Light, right to, 327. See Easements. 
 Limitation, Eules of, 144 — 185. 
 
 s. P F 
 
14 INDEX. 
 
 Limitation, Words of,' 
 " heirs," &c., 32. 
 "successors," 34. 
 construction of : Shelley^ Case, 150. 
 
 Limitations of Actions, 303. See Long Possession and Pre- 
 scription. 
 
 Limited Liability Companies, 354. 
 
 Limited Owners, 72, 73. See Settled Land Acts. 
 
 Lis Pendens, 235. 
 
 Livery of SEisitf, 241. See Alienation. 
 
 Loan, 339. See Bailment. 
 
 Lodgers' Goods, 98. See Distress. 
 
 Long Possession, 
 
 acquisition by, 303. 
 
 of land, 303. 
 
 none of goods, 304. 
 
 when time begins to run, 305. 
 
 disabilities, 305. 
 
 fraud, 306. 
 
 express trust, 306. 
 
 Lunatics, 378 — 380. See Disabilities. 
 
 Maintenance. See Choses in Action. 
 
 Manor, 24, 38, 389. See Copyhold. 
 
 Market Overt, sales in, 258. 
 
 Marriage, 
 
 conditions in restraint of, 194. 
 
 rights of property arising from, 310 — 313. 
 
 Married Women, 311, 313. See Disabilities. 
 
 Memorandum in Writing, 362. 
 
 Mercantile Agents, dispositions by, 259. 
 
 Merger, 81, 88. 
 
 Middlesex Registry, 217. 
 
 Money, transfer by delivery, 259. 
 
INDEX. 15 
 
 Monopolies, 360. 
 
 patents, 360—363. 
 
 copyright, 363 — 365. 
 
 right to perforin dramatic, &c. compositions, 365. 
 
 right to trade marks, 366. 
 
 right to trade names, 366. 
 
 Mortgages, 197. 
 kinds of, 199. 
 mortgages of land, 201. 
 mortgages of goods, 222. 
 
 Mortgages of Goods, 
 
 mortgages and pledges, 222. 
 Pawnbrokers Acts, 223. 
 Bills of Sale Acts, 224—226. 
 
 Mortgages of Land, 201 — 222. 
 
 A. mortgages by deed, 202. 
 
 position of parties, 202. 
 remedies for mortgage interest, 207. 
 remedies for mortgage debt, 209. 
 redemption of mortgage estate, 213. 
 restrictions on right of redemption, 214 — 218. 
 
 B. mortgages by deposit or memorandum, 219. 
 
 priority, 220. 
 
 forfeiture of equity of redemption, 221. 
 
 Mortgages oe Ships, 419. 
 
 Mortmain, 
 
 trust of lands to evade Mortmain Acts, 114. 
 
 conveyances to'"corporations, 382. 
 
 Mortmain and Charitable Uses Acts, 1888-92. .384-387. 
 
 National Debt. See Aniiuities. 
 
 Naturalization Act, 1870.. 309, 380. See Aliens. 
 
 Necessaries. See In/ants. 
 
 Negotiable Instruments, 
 bills of exchange, 346. 
 meaning of negotiable, 347. 
 promissory notes, 347. 
 bills of lading, 347. 
 exchequer bills, 347. 
 
 Nuncupative Will, 376. 
 
 F F 2 
 
16 INDEX. 
 
 OccTjPANcy, acquiring ownership by, 228. 
 
 Occupants, special and general, 59. 
 
 Offices, Freehold, 335 — 338. 
 
 Order and Disposition, goods in bankrupt's, 300. 
 
 OcTTLAWKY, forfeiture on, 308. 
 
 Ownership, 
 
 definition of, 2. 
 
 nature of right of, 2. 
 
 subject-matter of right, 3. 
 
 extent of right, 1 1 . 
 
 partial ownership, 13. 
 
 of land and goods, 16. 
 
 modes of enjoying ownership, 112 — 226. 
 
 modes of acquiring ownership, 227 — 322. 
 
 modes of owning incorporeal hereditaments, 324. 
 
 Paramount, Lord, 19. 
 
 Partition, 
 
 joint tenancy, 131. 
 coparcenary, 138. 
 tenancy in common, 140. 
 
 Partners, 
 
 joint tenants, 130. 
 no Buryivorship, 130. 
 limited, 131. 
 
 Patents, 360 — 363. See Monopolies. 
 
 Pawn, 223. See Mortgages of Goods. 
 
 Perpetuities, 
 
 rule against, 183. 
 applied to powers, 186. 
 accumulations, 188. 
 
 Personal Property, 7. 
 
 Pledge, 223. See Mortgages of Goods. 
 
 Possibility, 
 
 of reverter, 36. 
 of issue extinct, 52. 
 double possibility, 148. 
 possibilities of interests, 155. 
 alienation of, 159. 
 
 Posthumous Children, 148. 
 
INDEX. 17 
 
 Powers, 
 
 of life tenant under Settled Land Acts, 74, 75. 
 
 nature of powers, 173. 
 
 kinds of powers, 174. 
 
 powers of appointment, 175. 
 
 creation of powers, 179. 
 
 execution, 179. 
 
 extinction, 181. 
 
 revocation, 182. 
 
 Pbesckiption. See Limitation and Long Possession. 
 of easements, 327, 328, 420. 
 
 Presentation, 335. See Advoivsons. 
 
 Privity of Estate, 97. 
 
 Probate, 
 
 of wills, 372, 373. 
 Court of, 313, 373. 
 
 Profits a Prendre, 330—332. 
 
 Protector of Settlement, 51. 
 
 Public Tritstee, 119, 269. 
 
 Pur Autre Vie, Estate, 58 — 60. 
 
 Purchase, Irish Land, 406 — 411. 
 tlie vendor, 407. 
 the purchaser, 407. 
 subject-matter of sale, 407. 
 agreement for sale, 408. 
 sanction of advance, 409. 
 vesting order, 409. 
 making of advance, 409. 
 repayment by purchaser, 410. 
 payment to vendor, 410. 
 restrictions on rights of tenant-purchaser, 410. 
 
 Purchaser, 
 
 meaning of "purchase," 316. 
 
 Quasi Entail, 60. 
 
 Quia Emptorbs, 25, 39. 
 
 Quiet Enjoyment, covenant for, 237. 
 
 Quit Pent, 29. 
 
18 INDEX. 
 
 Eaok-bent, 
 
 sub-tenants holding at, 65, 92. 
 meaning of, 248. 
 
 Eealty, 
 
 origin of term, 7. 
 
 things included under it, 9. 
 
 Receiver, power to appoint, 
 of mortgagee, 208. 
 of debenture holder, 359. 
 
 Eecovekies, 48. See Fine. 
 
 Re-entry. See Forfeiture. 
 
 for condition broken, 89 — 92. 
 severance of condition of, 90. 
 
 Registration, 
 
 of judgments, 44. 
 
 of bills of sale, 224. 
 
 of lis pendens, 235. 
 
 of transfers of land, 251 — 257. 
 
 of annuities, 333. 
 
 of joint stock companies, 355. 
 
 of debentures, 359. 
 
 of patents, 361. 
 
 of copyright, 365. 
 
 of trade marks, 366. 
 
 of ships, 417. 
 
 of transfers of ships, 418. 
 
 of mortgages of ships, 419. 
 
 Registbation of Deeds, 
 
 in Middlesex and Yorkshire, 217. 
 in Ireland, 217, 412—416. 
 
 Registration of Title, 217, 251. 
 register, 252. 
 
 interest to be registered, 252. 
 titles to be registered, 253. 
 effect of registration, 253. 
 person to register, 254. 
 cautions, restrictions and inhibitions, 254. 
 title obtained, 255. 
 mortgages of registered land, 255. 
 evidence of title, 256. 
 in Ireland, 412—416. 
 
INDEX. 19 
 
 Ebleasb, 
 
 conveyance between joint tenants by, 132. 
 extinguishment of power by, 181. 
 conveyance by, 244. 
 
 E.EMAINDEB, 
 
 distinguished from reversion, 151, 156. 
 
 kinds of remainders, 156. 
 
 vested, 156. 
 
 contingent, 157. 
 
 liability to failure, 159, 171. 
 
 equitable remainders, 165. 
 
 remainders and executory interests, 169. 
 
 Contingent Remainders Act, 171. 
 
 Eent, 
 
 quit; 29. 
 
 service, 40. 
 
 seek, 40. 
 
 charge ; remedies, 40. 
 
 under Deasy's Act (Ireland), 41. 
 
 remedies for rent, 
 
 forfeiture, 89. 
 
 distress, 96. 
 
 action for payment, 96. 
 arrears of, 420. 
 
 Representation by Issue, 320. 
 
 Residuary Gifts, 285. 
 
 Restraint on Anticipation, 371. 
 
 Resulting Trust, 117. 
 
 Resulting Use, 167. 
 
 Reversions, 
 
 no reversion on fee simple, 36. 
 
 future interest at common law, 151. 
 
 reversions and remainders distinguished, 151, 156. 
 
 incidents of reversions, 151. 
 
 Eetogation, powers of, 182. 
 
 River, 
 
 ownership of bed of, 230. 
 right of flow of, 326. 
 
 Rules of Construction, 
 
 executory interests, 169. 
 wiUs, general rule, 282. 
 wills, special rules, 283—288. 
 
20 INDEX. 
 
 Sale op Goods, 
 
 in market overt, 268. 
 
 no writing required, 261. 
 
 exceptions, 262. 
 
 implied conditions and warranties, 263. 
 
 when property passes, 264. 
 
 position of vendor, 264. 
 
 position of vendee, 265. 
 
 Sale, Powers of, 
 
 tenant for life, 74. 
 mortgagee of land, 210. 
 mortgagee by deposit, 220. 
 mortgagee of goods, 223. 
 executors, 293. 
 trustee in bankruptcy, 302. 
 innkeepers, 342. 
 
 Satisfied Terms, 86. 
 
 Seamen", wills of, 276. 
 
 Seignory, 329. 
 
 Seisin, 
 
 tbe possession of a freeholder, 80. 
 must never be without owner, 145. 
 livery of seisin, 241. 
 copyholds, seisin in lord, 391. 
 
 Separate Estate. See Married Women. 
 equitable, 371, 375. 
 statutory, 376. 
 
 Serjeanty, grand and petit, 25. 
 
 Servient Tenement, 325. See Easements. 
 
 Settled Land Acts, 
 object of, 70. 
 life tenant under, 72. 
 trustees under, 73. 
 powers of life tenant, 74. 
 conditions governing powers, 75. 
 capital money, 77. 
 
 Settlements. See Trusts. 
 of freeholds, 68. 
 of leaseholds, 102. 
 of goods, 108. 
 
 Severalty, Ownership in, 125. 
 
INDEX. 21 
 
 Severance, 
 
 of reversion, 89. 
 
 of joint tenancy, 131, 134. 
 
 of coparcenary, 138. 
 
 of tenancy in common, 140. 
 
 Shares in Joint Stock Companies, 357, 358. 
 
 Shelley's Case, rule in, 151. 
 
 Shifting Uses, 172. 
 
 Ships, 
 
 aliens and British ships, 417. 
 registry of British, ships, 417. 
 transfers, 418. 
 devolution, 418. 
 equitable transfers, 419. 
 mortgages, 419. 
 
 Simony, 336. 
 
 Socage, 
 
 tenure in, 24. 
 free, 28. 
 
 Special Occdpant, 59. 
 
 Springing Uses, 172. 
 
 Statittes. See Table of Statutes. 
 
 Stock, 351. 
 
 Stolen Goods, Sale of, 258. 
 
 Stop Order, 352, 358. 
 
 Stoppage in Transitu, 265. 
 
 Subinfeudation, 23, 38. 
 
 Succession, 
 
 rules regulating succession to goods, 315—322. 
 
 Sufferance, Tenant by, 102. 
 
 Surrender, 
 
 of leaseholds, 87. 
 
 of copyholds, 392, 394. 
 
 Survivorship, Eight of, 129. 
 
 G G 
 
22 INDEX. 
 
 Tacking, 215. See Mortgages. 
 
 Tail, Fee. See Fee Tail. 
 
 Taltaeum'3 Case, 49. 
 
 Tenancy at Will, 101. 
 
 Tenancy BY Entireties, 141. 
 
 Tenancy by Sufferance, 102. 
 
 Tenancy for Time certain, 82. See Leaseholds. 
 
 Tenancy from Year to Year, 83. 
 
 Tenements, 
 
 meaning of, 6. 
 
 ■within statute De Bonis, 47 (note). 
 
 incorjjoreal tenements, 325. 
 
 Tenure, 19. 
 
 origin of, 22. 
 
 kinds of, 24. 
 
 free and customarj', 27. 
 
 incidents of free, 29. 
 
 interests in free, 30. 
 
 copyhold, 389—395. 
 
 Terms of Years, 84. See Leaseholds. 
 Testament, 268. See Will. 
 Testatum, 246. 
 
 Thellusson Act, 189. See Accumulations. 
 
 " Things Heal, Personal, and Mixed," 8. 
 
 Timber, 62. 
 
 Tithes, 334. 
 
 Title, 227. 
 
 meanings of, 227. 
 
 by original acquisition of ownership, 228. 
 
 by transfer of ownership, 231. 
 
 Title Deeds, 21. 
 
 Titles of Honour, 337. 
 
 Torts, Eights arising from, 349, 350. 
 
INDEX. 23 
 
 Trade Marks, 366. 
 
 Trade Names, 366. 
 
 Transfer. See Alienation. 
 
 Trover and Conversion, 338. 
 
 Trust, 
 
 trusts of goods, 107, 109. 
 trust ownership, 1 13. 
 history of, 114. 
 creation of a trust, 116. 
 description of trust, 117. 
 breach of trust, 119. 
 
 Trustee, 
 
 not protector of settlement, 51. 
 trustees under Settled Land Acts, 73. 
 death of sole trustee, 124. 
 trustees joint tenants, 136. 
 
 Trustee in Bankruptcy, 300. 
 
 Unlawful Conditions, 192. 
 
 Usee, 
 
 of joint estate, 135. 
 
 of estate in coparcenary, 139. 
 
 of estate in common, 141. 
 
 Uses. See Trust and Executory Interests. 
 rise of uses, 114. 
 Statute of Uses, 115, 167—169. 
 limitations to uses, 169. 
 springing and shifting uses, 172. 
 
 Vendor's Lien, 265. See Lien. 
 
 Vested Remainder, 156. See Remainders. 
 
 Voluntary Conveyances, 117, 232. 
 
 Waiver of Forfeiture, 89. 
 
 Warranty on sale of goods, 26.'i. 
 
 Waste, 61. 
 
 voluntary, 61. 
 permissive, 63. 
 equitable, 63. 
 underleases, 92. 
 
24 INDEX. 
 
 Watee, 5, 326. 
 
 WiDO"W. See Married Women. 
 stare of personalty, 270, 312. 
 dower, 312. 
 freebench, 391. 
 
 WlDOVHOOD, 
 
 estate during, 56. 
 gifts generally, 194. 
 
 Wild Animals, 4, 9, 229. 
 
 Will, 
 
 description of, 268. 
 
 history of, 271. 
 
 wills of realty and of personalty, 272. 
 
 execution of, 275. 
 
 domicile and execution, 278. 
 
 republication of, 280. 
 
 revocation of, 281. 
 
 construction of, 282 — 288. 
 
 WoEDS OF Limitation, 
 " beirs," 34. 
 
 rule in Shelley's Case, 151. 
 devise witbout words of limitation, 287. 
 
 YoEKSHiEE, registration in, 217. 
 
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 ' Holds solely soverei^ sway and masterdom.* " — Law Quarterly Review. 
 
 " No company lawyer can afford to be without it." — Law Jovnial. 
 Part II. WINDING-UP FOKMS AND PEACTICE. 
 Compulsory Winding-Up, Voluntary Winding-Up, Winding-Up 
 under Supervision, Arrangements and Compromises, with Copious 
 Notes, and an Appendix of Acts and Rules. Ninth Edition. 
 By Sir Feanois Bbaupoet Palmee, assisted by Feank Evans, Esqr., 
 Barristers-at-Law. Royal 8vo. 1904. II. 12s. 
 
 "The book par excellence for practitioners. There is nothing we can think of 
 which should be within the covers which we do not find." — Law Journal. 
 
 Part III. DEBENTURES AND DEBENTURE STOCK. 
 
 Debentures, TrustDeeds, Stock Certificates, Resolutions, Prospectuses, 
 Writs, Pleadings, Judgments, Orders, Receiverships, Notices, Mis- 
 cellaneous. With Copious Notes. Tenth Edition. By Sir Feanois 
 Bbatjfoet Palmee, Bencher of the Inner Temple. Royal Svo. 
 1907. U. 5s. 
 
 " The result of much careful study Simply invaluable to debenture- 
 holders and to the legal advisers of such investors." — Financial News. 
 
 Palmer's Companies Act, 1907, and Limited Partnerships Act, 
 1907, with Explanatory Notes.— By Sir Feanois Beaufoet 
 Palmee, Bencher of the Inner Temple. Royal Svo. 1908. 6s. 
 
 " The skill of the master.hand is conspicuous on every page." — Lnw Times. 
 
 " Certain to find its way to the booksbelf of every lawyer who prides himself 
 upon doing company work intelligently and well." — FLitancial News. 
 
 ^^* All standard Law TForki are kept in Stock, in law calf and other bindings. 
 
119 & 120, OHANOERT LANE, LONDON, W^O '_ 
 
 COMPANY UA\M—eontinued. 
 
 Palmer's Private Companies, their rormation and Advantages; 
 being a Concise Popular Statement of the Mode of Converting a 
 Business into a Private Company, with Notes on Limited Partner- 
 ships. Twenty-second Edition. By Sir F. B. Palwwb, Barrister-at- 
 Law. 12mo. 1908. Net, U. 
 
 Palmer's Shareholders, Directors, and Voluntary Liquidators' 
 Legal Companion.— A Manual of Every-day Law and Practice for 
 Promoters, Shareholders, Directors, Secretaries, Creditors, Solicitors, 
 and Voluntary Liquidators of Companies under the Companies Acts, 
 1862 to 1900, with Appendix of useful Forms. Twenty-fourth Edit. 
 By Sir F. B. PAiMEE, Barrister-at-Law. 12mo. 1907. Net, 2a. U. 
 COWIPENSATION.— Cripps' Treatise on the Principles of the 
 Law of Compensation, By C. A. Ceipps, Esq., K.C. Fifth 
 Edition. By the Author, assisted by A. T. Lawebnoe, Esq., 
 Barrister-at-Law. Royal 8vo. 1905. U. 6s. 
 
 "A clear andpracticulexpositinnof this branch of \he\SL^ ,^^ —Solicitors' Journal. 
 " 'There are few men whose practical knowledge of the subject exceeds that of 
 the learned author." — Law Quarterly Eeview. 
 
 COMPOSITION DEEDS.— Lawrance.— Firfe "Bankruptcy." 
 
 CONDITIONS OF SALE.— Farrer.-Fi<ie "Vendors & Pur- 
 chasers." 
 Webster, — Vide " Vendors and Purchasers." 
 
 CONFLICT OF LAWS.— Dicey's Digest of the Law of 
 England with reference to the Conflict of Laws, — By A. V. 
 Dicey, Esq., K.C, B.C.L. With Notes of American Cases, by 
 Professor Moobe. Royal 8vo. 1896. U. 10s. 
 
 CONSTITUTION.— Anson's Law and Custom of the Constitu- 
 tion, Third Edition. By Sir William R. Anson, Bart., Barrister- 
 at-Law. 3 vols. Demy 8vo. Vol. II. Part I. The Crown. 1907. 
 
 Net, 10s. 6d. 
 
 CONSTITUTIONAL LAW. — Ridges' Constitutional Law of 
 England. — By E. Wavell Ridqes, Esq., Barrister-at-Law. Demy 
 8vo. 1905. 125. 6d. 
 
 "... We think this book will be found a vei-y useful compendium of con- 
 stitutional law. The more especially as it enables the student to obtain a 
 completer view of the whole field than is obtainable from any- 
 other book w^ith which we are aoQiuainted."— iaw Notes. 
 
 *'Mr. Ridges has produced a book which will rank high as a practical guide 
 on matters constitutional and pobtical . . . the book is an able and practical 
 contz-ibution to the study of constitutional 1&-W.'*— Solicitors' Journal. 
 
 CONTRACT OF SALE.— Blacl<burn,— rirfe "Sales." 
 Moyle's Contract of Sale in the Civil Law,— By J. B. Motle, 
 Esq., Barrister-at-Law. 8vo. 1892. 10s. 6rf. 
 
 CONTRACTS.— Addison on Contracts, — A Treatise on the Law 
 of Contracts. Tenth Edition. By A. P. Pbeoetal Keep and William 
 E. GoEDON, Esqrs., Barristers-at-Law. Royal 8vo. 1903. 21. 2s. 
 " Essentially the practitioner's text-book."— -Z^aw Journal. 
 " Among all the works on Contracts, there is none more useful to the practi- 
 tioner than Addison."— idMi Times. 
 Anson's Principles of the English Law of Contract. — By Sir W.R. 
 Anson, Bart., Barrister-at-Law. Eleventh Edit. 1906. 10s. 6d. 
 
 Pry, f^ide " Specific Performance." 
 
 * * .Alt standard Latv Works are kept in Stock, in law calf and other bindings. 
 
STEVENS AND SOUS, LlMtTKb. 
 
 CONTRACTS— continued. 
 
 Leake's Law of Contracts.— Prinoiplee of the Law oJ Contractu. 
 By the late S. Maetin Leaie. Fifth Edition. By A. E. Raiidai,l, 
 Esq., Barrister-at-Law. Royal 8vo. 1906. IZ. 12s. 
 
 " The hig-h standard attained in the former issues has been well sustained, 
 and the work carefully revised and brought well up to date."— Z-aw TimeB. 
 
 *' A full and reliable guide to the principles of the English Law of Contract," 
 — Law t/ournn/, 
 
 " Admirably siiited to serve the purpose of the practitioner .... the wor> 
 is complete, accurate, and easy of reference." — Solicitors' Journal. 
 
 Pollock's Prinoipleb of Contract,— A Treatise on the General 
 Principles concerning the Validity of Agreements in the Law of 
 England. Seventh Edition. By Sir Feedeeick Pollock, Bart., 
 Barrifiter-at-Law, Author of "The Law of Torts," " Digest of the 
 Law of Partnership," &c. Demy 8vo. 1902. II. 8«. 
 
 "A work which, in our opinion, shows great ability, a discerning intellect, a 
 comprehensive mind, and painstaking industry." — Law Journal. 
 
 CONVEYANCING. — Brickdale & Sheldon,— ft* "Land 
 Transfer." 
 Dickins' Precedents of General Requisitions on Title, with Ex- 
 planatory Notes and Observations. Second Edition. By Hebbbet 
 A. DiOKiNS, Esq., Solicitor. Royal r2mo. 1898. 5s. 
 
 " We cannot do better than advise every lawyer with a conveyancing practice 
 to purchase the little book and place it on his shelves forthwith." — Law Notes. 
 
 Farrer. — Tide " Vendors and Purchasers." 
 
 Greenwood's Manual of the Practice of Conveyancing. To 
 which are added Concise Common Forms in Conveyancing. — Ninth 
 Edition. Edited by Haeet Geeenwood, M.A., LL.D., Esq., 
 Barrister-at-Law. Roy. 8vo. 1897. 11. 
 
 " "We should like to see it placed by his principal in the bands of every articled 
 clerk. One of the most useful practical works we have ever seen." — Law Stu. Jo. 
 
 Hogg's Precedents of Conveyancing Documents for Use in 
 Transactions Relating to Registered Land under the Land 
 Transfer Acts, 1875 & 1897. — With Notes. By James Edwaed 
 HoQG, Esq., Barrister-at-Law. Royal 8vo. 1907. 12«. 6d. 
 
 Hood and Challis'Conveyancing, Settled Land, and Trustee Acts, 
 and other recent Acts affecting Conveyancing. With Commentaries. 
 Sixth Edition. By Peeoy F. Wheelee, assisted by J. I. STiELDfa, 
 Esqrs., Barristers-at-Law. Royal 8vo. 1901. \l. 
 
 "This ia the best collection of conveyancing statutes with which we are 
 acquainted. . . . The excellence of the commentaries which form part of this 
 book is so well known that it needs no recoia^iendation from us." — Law Journal. 
 
 Jackson and Gosset's Precedents of Purchase and Mortgage 
 Deeds. — By W. Howland Jaoksoh and Thoeold Gosset, Esqrs., 
 Barristers-at-Law. Demy 8vo. 1899. 7s. 6rf. 
 
 Prideaux's Precedents in Conveyancing — With Dissertations on 
 its Law and Practice. I9th Edition. By John Whitoombb and 
 Benjamin Lennaed Cheeey, Esqrs., Barristers-at-Law. 2 vols. 
 Royal 8vo. {October) 1904. 31. lOs. 
 
 " ' Prideaux * is the best work on Conveyancing." — Law Journal. 
 
 *' Accurate, concise, clear, and comprehensive in scope, and we know of qo 
 treatise upon Conveyancing which is so generally useful to the practitioner."— 
 Law Times. 
 
 '* The dissertations will retain their time-honoured reputation."— Z^awj Journal, 
 
 Strachan's Practical Conveyancing, By Waltke Stkaohan, Esq., 
 Barrister-at-Law. Royal 12mo. 1901. 8s. 6d. 
 
 Webster. — Vide " Vendors and Purchasers." 
 Wolstenholme, — Vide "Forms." 
 •^* jili standard Law IVorki are kept in Stock, in law calf and other bindings. 
 
119 Sc 1 20, CHANCERY LANE, LONDON, W.O. 9 
 
 CORONERS. — Jervis on Coroners.— With Forma and Precedents. 
 Sixth Edition. By E. E. Mklsheimbe, Esq., Barrister -at- Law. 
 PostSvo. 1898. 10». ed. 
 
 COSTS.— Johnson's Bills of Costs. — With Orders and Rules as to 
 Costs and Court Fees, and Notes and Decisions relating thereto. 
 By HoBAOE Maxwell Johnson, Esq., Barrister-at-Law. Second 
 Edition. Royal 8to. 1901. 11. 15». 
 
 Webster's Parliamentary Costs,— Private Bills, Election Petitions, 
 Appeals, House of Lords. Fourth Edition. By C. CavanaqS, Esq., 
 Barrister-at-Law. Post 8vo. 1881. II. 
 
 COUNTY COURTS.— The Annual County Courts Practice, 
 
 1908. By Hie Honour Judge Smtly, K.C, assisted by W. J. 
 
 Beookb, Esq., Barrister-at-Law. 2 vols. Demy 8vo. U. 5». 
 
 *»* A thin paper edition in 1 Vol. may be had, price 25s. ; or, 
 
 on India paper, 3s. 6d. extra. 
 
 " Invaluable to the Comity Court practitioner."— Law Journal. 
 
 COVENANTS. -Hamilton's Concise Treatise on the Law of 
 Covenants, — Second Edition. By G. Baldwin HAMn/roN, Esq., 
 Barrister-at-Law. Demy 8vo. 1904. 10s. 6d. 
 
 " We welcome the second edition of a very useful book." — Law Journal. 
 
 CRIMINAL LAVVA.—Archbold's Pleading, Evidence and Prac- 
 tice in Criminal Cases, — With the Statutes, Precedents of Indict- 
 ments, &o. Twenty-third Edition. By William F. Ceaies and Guy 
 Stephenson, Esqrs., Barristers-at-Law. Demy 8vo. 1905. U. los. 
 
 '* This hook is quite indispensable to everyone engaged in the practice of the 
 Criminal Law." — Solicitors^ Journal. 
 
 '' An edition which bears every evidence of a most thorough and painstaking 
 care to bring it down to date, and to render it as indispensable and reliable as it 
 has been in the past. The index is more complete than ever." — Law Times 
 
 Bowen-Rowlands on Criminal Proceedings on Indictment and 
 Information (in England and Wales). — By E. Bowbn-Rowlands, 
 Esq., Barrister. at-Law. Demy 8vo. 1904. 12s. &i. 
 
 " An invaluable source of information and a safe guide." — Pall Mall Gazette. 
 
 Chitty's Collection of Statutes relating to Criminal Law. — (Re- 
 printed from ' ' Chitty ' e Statutes. ' ' ) With an Introduction and Index . 
 By W. F. Ceaies, Esq., Barrister-at-Law. Royal 8vo. 1894. 10s. 
 
 Disney and Gundry's Criminal Law. — A Sketch of its Principles 
 and Practice. By Henet W. Disnet and Haeold Gtjndet, Esqrs., 
 Barristers-at-Law. Demy 8vo. 1896. 7«. 6rf. 
 
 Kenny'sOutlinesof Criminal Law, SrdEd. Demy8vo. 1907. 10s. 
 
 Kenny's Selection of Cases Illustrative of English Criminal 
 Law,_Demy 8vo. 1901. 12s. &d. 
 
 Kershaw's Brief Aids to Criminal Law. — With Notes on the Pro- 
 cedure and Evidence. By Hilton Keebhaw, Esq., Barrister-at- 
 Law. Royal 12mo. 1897. 3s. 
 
 Mews' Digest of Cases, — Vide "Digests." 
 
 Roscoe's Digest of the Law of Evidence and the Practice in 
 Criminal Cases (chiefly on Indictment),— Thirteenth Edition. 
 By Heeman Cohen, Esq., Barrister-at-Law. Demy 8vo. 1908. 
 
 U. lis. U. 
 *,* A II standard taw Works are iept in Stock, in law calf and other bindings. 
 
10 STEVENS AND SONS, LIMITED, 
 
 CRIMINAL I. A^W— continued. 
 
 Russell's Treatise on Crimes and Misdemeanors, — Sixth Edit. 
 By HoEACE Smith, Esq., Metropolitan Police Magistrate, and A. P. 
 Peeoevai, Keep, Esq. 3 vols. Roy. 8vo. 1896. 51. ISs. 6d. 
 
 Warburton, — Vide " Leading Oases." 
 
 CROV^N PRACTICE.— Robertson on the Crown. — The 
 Law and Practice of Oivil Proceedings by and against the Crown 
 and Departments of the Government. With numerous Eorms and 
 Precedents. By G. Stxjaet Robeetson, Esq., Barrister-at-Law. 
 Royal 8vo. 1908. U. 18». 
 
 CUSTOMS. — Higlimores Customs Laws; including the 
 Customs Consolidation Act, 1 876, with the Enactments amend- 
 ing and extending that Act, and the present Customs Tariff for 
 Great Britain and Ireland ; also the Customs Laws and Tariff for 
 the Isle of Man ; with other Enactments affecting the Customs, and 
 Notes of the Decided Cases. Second Edition. By Sir Nathahiel J. 
 HiQHMOEE, of the Middle Temple, Barrister-at-Law, Solicitor for 
 His Majesty's Customs. Demy 8vo. 1907. 6s. 
 
 DEATH DUTIES.— Freeth's Acts relating to the Estate Duty 
 and other Death Duties, with an Appendix containing the Rules 
 Regulating Proceedings in England, Scotland and Ireland in Appeals 
 under the Acts and a List of the Estate Duty Forms, with copies of 
 some which are only issued on Special AppUoation. Third Edition. 
 By EvELTN Peeeth, Esq., Registrar of Estate Duties for Ireland. 
 Demy 8vo. 1901. 12«. 6a. 
 
 " The official position of the Author renders his opinion on questions of proce- 
 dure of great value." — Solicitors' Jnnrnal. 
 
 Harman's Finance Act, 1894, and the Acts amending the same 
 so far as they relate to the Death Duties, and more espe- 
 cially to Estate Duty and Settlement Estate Duty, With an 
 Introduction and Notes, and an Appendix. By J. E. Haeslan, Esq., 
 Barrister-at-Law. Second Edition. Roy. 12mo 1903. 6s. 
 
 DEBENTURES AND DEBENTURE STOCK. -Palmer, 
 
 — Vide *' Company Law." 
 
 DECISIONS OF SIR GEORGE JESSEL.. -Peter's Ana- 
 lysis and Digest of the Decisions of Sir George Jessel ; with 
 Notes, &p., By Apslev Peteb Petee, Solicitor. DemySvo. 1883. 16s. 
 
 DIARY.— Lawyer's Companion (The) and Diary, and London 
 and Provincial Law Directory for1908. — For the use of the Legal 
 Profession, PubUo Companies, Justices, Merchants, Estate Agents, 
 Auctioneers, &c., &c. Edited by Edwin Laywaw, E.sq., Barrister-at- 
 Law ; and contains Tables of Costa in the High Court of Judicature 
 and County Court, &c. ; Monthly Diary of County, Local Government, 
 and Parish Business ; Oaths in Supreme Court ; Svunmary of Sta- 
 tutes of 1 907 ; Alphabetical Index to the Practical Statutes since 1820 ; 
 Schedule of Stamp Duties ; Legal Time, Interest, Discount, Income, 
 Wages and other Tables; the New Death Duties; and a variety of 
 matters of practical utility : togeth er with a complete List of the English 
 Bar, and London and Country Solicitors, with date of admission and 
 appointments. Pdblished ANNTJAiiy. Sixty-second Issue. 1908. 
 Issued in the following forms, octavo size, strongly bound in cloth : — 
 
 1. Two days on a page, plain . . Ss.Orf. 
 
 2. The above, ruTEEiaAVED with plain paper ... 70 
 
 3. Two days on a page, ruled, with or without money columns . 5 6 
 
 4. The above, with money columns, nrrBELEAVEri with plain paper 8 U 
 
 5. Whole page for each day, plain . 7 6 
 
 {Continued on next page ) 
 » « Jill standard law WorTts are kept in Slock, in law calf and other bindings. 
 
119 & 120. OHAlfOERT LANE, LONDON, W.O. H 
 
 DIARY — continued. 
 
 6. The atove, intbeIiEavbd with plain paper .... 9s. 6(2. 
 
 7 . Whole page for each day, ruled, with or without money columns 8 6 
 
 8. The above, inteelbavbd with plain paper . . . 10 6 
 
 9. Three days on a pag'e, ruled bhie lines, without money columns 3 6 
 10. Whole page for each day, plain, without Directory . . .30 
 IV A great many additional Tables have recently been added, and in 
 
 this issue are included two additional Tables, namely, Non- 
 contentious Probate Costs to be allowed to Proctors, Solicitors and 
 Attorneys — (1) in respect of Personal Estate of Testator, and (2) 
 Personal Estate of Intestate. 
 
 A list of Barristers in the Provinces, with Towns alphabetically 
 arranged, has been added. 
 The Diary oontaim memoranda of Legal Business throughout the Year, with 
 an Index for ready reference, 
 " The legal Whitaker." — Saturday Review. 
 
 " The amount of information packed within the covers of this well-known 
 book of reference is almost incredihle. In addition to the Diary, it contains 
 nearly 800 pages of closely printed matter, none of which could be omitted without, 
 perhaps, detracting from the usefulness of the hook. The publishers seem to 
 have made it their aim to include in the Companion every item of information 
 which the most exacting lawyer could reasonably expect to find in its pages, and it 
 may safely be said that no practising solicitor, who has experienced the luxury of 
 having it at his elbow, will ever be likely to try to do witbmit it." — Law Jnurrtal, 
 
 DICTIONARY.— Stroud's Judicial Dictionary, or Interpreter 
 
 of Words and Phrases by the British Judges and Parliament. — 
 
 Second Edition. By P. Stbotjd, Esq., Barrlster-at-Law. 3 vols. 
 
 Eoy. 8vo. 1903. it. is. 
 
 %* A supplemental Volume is in preparation. 
 
 "Must find a place in every law library. It is difficxilt to exaggerate its use- 
 fulness. ... is invaluable, not only as a labour-saving machine, but as a real 
 contribution to legal literature. ... a standard classic of the law." — Law Journal. 
 
 " An authoritative dictirmary of the English language."— Law Times. 
 
 •'This judicial dictionary is pre-eminently a ground from which may be ex- 
 tracted suggestions of the greatest utility, not merely for the advocate in court, 
 but also for the practitioner who has to advise."— Solicitors' Journal, 
 
 The Pocl<et Law Lexicon, — Explaining Technioal Words, Phrases 
 and Maxims of the English, Scotch and Roman Law. Fourth Edition. 
 By Joseph E. Moebis, Esq., Barrister-at-Law. 1905. 6«. 6d. 
 
 *' A wonderful little legal Dictionary." — Indermaur's Law Students* Journal. 
 
 Wharton's Law Lexicon, — Forming an Epitome of the Law of Eng- 
 land, and containing full Explanations of Technical Terms and 
 Phrases, both Ancient and Modem, and Commercial, with selected 
 Titles from the Civil, Soots and Indian Law. Tenth Edition. 
 With a New Treatment of the Maxims. By J. M. Lklt, Esq., 
 
 Barrister-at-Law. Super-royal 8vo. 1902. U. 18» 
 
 "An enoyolopsedia of the laiv." 
 
 " The new edition seems to us to he very complete and perfect, and a copy 
 of it should be procured by every practising solicitor without delay. A better 
 value for his money in the law book market a practitioner could not, we are sure, 
 get. Of the many boobswe have to refer to in our work no volume is, we believe, 
 more often taken down from the shelf than ' Wharton, ' ' ' — Law Notes. 
 
 DIGESTS. 
 
 MEWS' DIGEST OF ENGLISH CASE LAW.— Containing the Reported 
 
 Decisions of the Superior Courts, and a Selection from those of the 
 
 Irish Courts, to the end of 1897. (Being a New Edition of "Fisher's 
 
 Common Law Digest and Chitty's Equity Index.") Under the general 
 
 Editorship of John Mews, Barrister-at-Law. 16 vols. Roy. 8vo. d620 
 
 {Bound in half calf, gilt top, £3 net extra.) 
 
 " A vast undertaking .... indispensable to lawyers." — The Times. 
 
 *,♦ J II standard Law Works are kept m Stock, in law calf and other bindings. 
 
12 HTEVEN8 AND SONS, LIMITED, 
 
 DIGESTS — contintied. 
 
 The Annual Digest from 1898 to 1907,— By John Mews, Esq., 
 Barriater-at-Law. Eoyal 8vo. each 16*. 
 
 •„* This Digest is also issued quarterly, each part being oumvilative. 
 Price to Subscribers, for the four parts payable in advance, net 17*. 
 " The practice of the law without Mews' Annual would be almost an impos- 
 sibility." — Law Times. 
 
 Mews' Digest of Cases relating to Criminal Law down to the 
 end of 1897,— By Jems Mews, Esq., Barrister-at-Law. Royal 
 8vo. 1898. 1?. 5s. 
 
 Law Journal Quinquennial Digest, 1901-1905,- An Analytical 
 Digest of Cases Published in the Law Journal Reports, and the Law 
 Reports, during the years 1901-1905, with references to the Statutes 
 passed during the same period. By James S. Hendeebon, Esq., 
 Barrister-at-Law. 1906. H- 10«. 
 
 Talbot and Fort's Index of Cases Judicially noticed, 1865 to 
 1905,— Second Edition. Being a List of all Cases cited in Judg- 
 ments reported in all the Reports from 1865 to 1905; as also a 
 Statement of the manner in which each case is dealt with in its place 
 of Citation. By M. R. Mehta, Esq., Barrister-at-Law. Royal 8vo. 
 1908. 1^. 18s. 
 
 Woods and Ritchie's Digest of Cases, Overruled, Approved, 
 and otherwise dealt with in the English and other Courts; 
 with a selection of Extracts from Judgments referring to such Cases. 
 By W. A. G. Woons, LL.B., and J. Ritchie, M.A., Esqrs., 
 Barristers-at-Law. — Founded on "Dale and Lehmann's Digest of 
 Cases Overruled, &c." 3 Vols. Royal 8to. 1907. 5Z. bs. 
 
 " Indispensable in every branch of the la^."— Z(iw Journal. 
 *' Of great use to the Profession." — Law Timps. 
 
 DISCOVERY. — Bray's Digest of the Law of Discovery, with 
 Practice Notes, — By Eewakd Beat, Esq., Barrister-at-l.aw. 
 Demy 8vo. 1904. Net, 3s. 
 
 DISTRESS. -Oldham and Foster on the Law of Distress, — A 
 Treatise on the Law of Distress, with an Appendix of Forms, Table 
 of Statut,eB, &c. Second Edition. By Akthtje Oluham and A. La 
 TeobeFobtee, Esqrs., Barristers-at-Law. Demy 8vo. 1889. 18.». 
 
 DISTRICT COUNCILS.— Chambers' Digest of the Law relat- 
 ing to District Councils, Ninth Edition. — By G.F.Chambees, Esq., 
 Barrister-at-Law. Royal 8vo. IHSfi. las. 
 
 Cornish's District Councils. — A concise Guide to their Powers and 
 Duties. By H. D. Coenish, Esq., Barrister-at-Law. Demy 8vo. 
 1908. 7«. 6(f. 
 
 DIVORCE.— Browne and Powles' Law and Practice in Divorce 
 
 and Matrimonial Causes. — Seventh Edition. By L. D. PowtKS, 
 
 Esq., Banister-at-Law, Probate Registrar, Norwich. Demy 8vo. 
 
 1905. U. bs. 
 
 "The practitioner's standard work on divorce practice." — Law Qvm . Hev, 
 
 DOGS.— Emanuel's Law relating to Dogs,— By Montague R. 
 Emamxtel, Esq., Barrister-at-Law. Demy 12mo. 1908. 3s. 6(Z. 
 
 EASEMENTS.— Goddard's Treatise on the Law of Ease- 
 ments, — Bt John Letbouen Goddaed, Esq., Barrister-at-Law. 
 Sixth Edition. Demy 8vo. 1904. \l. 6s. 
 
 "Nowhere has the subject been treated so exhaustively, and, we may add, 
 BO soientUlcally, as by Mr. Goddard. Wo recommend it to the most cai'eful study 
 of the law student, as well as to the library of the practitioner." — Law Tiinns. 
 
 'J* All standard Law Works are kept in Stock, in law calf and oth-er hindings. 
 
119 * 120, OHANOERT LANE, LONDON, W.O. 13 
 
 EASEMENTS — continued. 
 
 Innes' Digest ot the Law of Easements —Seventh Edition. By 
 
 L. C. Innes, late Judge Hi^h Court, Madras. 12mo. 1903. 7*. Sd. 
 
 " This presents the law in a series of clearly enunciated propositions, which 
 
 are supported by examples taken in general from decided cases." — Solicitors' 
 
 Joumnl.. 
 
 Roscoe's Easement of Light. — A Digest of the Law relating 
 to the Easement of Light. — With an Historical Introduction, 
 and au Appendix containing Practical Hints for Architects and 
 Surveyors, Obfervatious on the Right to Air, Statutes, Forms 
 and Plans. Fourth Edition. By Edwabd Stauley Eoscoe, Esq., 
 Barrister- at- Law, Author of "ADigest of Building Cases," "Ad- 
 miralty Practice," &c. Demy 8vo. 1904. 7s. 6d. 
 
 *' A most useful little work." — Law JournuL 
 
 " A clear and practical digest of the law." — Law Times, 
 
 ECCLESIASTICAL LA^V.— Phillimore's Ecclesiastical 
 Law, — Second Edition. By Sir W. G. P. Phillimoee, Bart., 
 assisted by C. F. Jbjiiibtt, Barrister-at-Law. 2 vols. Royal 8vo. 
 1895. . Published at SI. 3s., reduced to, net, \l. 5s, 
 
 " Everything that the ecclesiastical lawyer can possibly need to know." — 
 i-aw Journal. 
 
 Whitehead's Church Law, — Being a Concise Dictionary of Statutes, 
 Canons, Regulations, and Decided Cases affecting the Clergy and 
 Laity. Second Edition. By Benjamin "Whitehbad, Esq., Barrister- 
 at-Law. Demy 8vo. 1899 10s. 6d. 
 
 " A perfect mine of learning on all topics ecclesiastical." — Daily Telegraph. 
 "A book which will be useful to lawyers and laymen." — Law Times. 
 
 ELECTIONS.— Day's Election Cases in 1892 and 1893.— By 
 
 S. H. Day, Esq., Barrister-at-Law, Editor of "Rogers on Elec- 
 tions." Royal 12mo. 1894. 7s. 6d. 
 
 Hedderwick's Parliamentary Election Manual ; A Practical 
 Handbook on the Law and Conduct of Parliamentary Elections 
 in Great Britain and Ireland, designed for the Instruction and 
 Guidance of Candidates. Agents, Canvassers, Volunteer Assistants, 
 &c. Second Edition. By T. C. H. Hebdeewiok, Esq., Barrister-at- 
 Law. Demy 12mo. 1900. 10.5. 6rf. 
 "The work is pre-eminently practical, concise and dear." — Solicitors* Journal. 
 
 Hunt's Metropolitan Borough Councils Elections; A Guide to 
 the Election of the Mayor, Aldermen, and CoimciUors of Metropolitan 
 Boroughs. ByJoHNHuNT, Esq., Bar.-at-Law. Demy8vo. 1900. Ss.6d. 
 
 Rogers' Law and Practice of Elections. — 
 
 Vol. I. Reoisteation, including the Practice in Registration 
 Appeals; Parliamentary, Municipal, and Local Government; with 
 Appendices of Statutes, Orders in Council, and Forms. Sixteenth 
 Edition ; with Addenda of Statutes to 1900. By Matjbiob Powkll, 
 Esq., Barrister-at-Law. Royal 12mo. 1897. 11. Is. 
 
 " The practitioner will find within these covers everything which he can be 
 expected to know, well arranged and carefully stated." — Law Times. 
 
 Vol. II. Paeliamentaey EiiECTions and PETinoNa ; with Appen- 
 dices of Statutes, Rules and Forms, and a Precedent of a Bill of Costs. 
 Eighteenth Edition. By C. Willoughby Williams, Esq., Barrister- 
 at-Law. Royal 12mo. 1906. 11. Is. 
 
 " The acknowledged authority on election la,w."— Law Journal. 
 
 "The leading book on the difficult subjects of elections and election peti- 
 tions." — Law Times. 
 
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 JUDGMENTS AND ORDERS Seton.— Fti* " Equity." 
 
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20 STEVENS AND SONS, LIMITED, 
 
 LAND CHARGES ACTS. — Eaton and Purcell's Land 
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 RULING CASES. -Campbell's Ruling Cases.— Arranged, 
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 I. — Abandonment —Action. 
 11. —Action —Amendment. 
 III. — Ancient Light— Banker. 
 IV. Bankruptcy— Bill of Lading, 
 v.— Bill of Sale— Conflict of Laws. 
 VI.— Contract. 
 VII. — Conversion — Counsel. 
 VIII. -Criminal Law — Deed. 
 IX. —Defamation — Dramatic and 
 
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 XI. — Estoppel —Execution. 
 XI I. — Executor — Indemnity. 
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 XX.— Patent. 
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 XXVI.— Table of Cases ; Index. 
 
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32 STEVENS AND SONS, LIMITED, 
 
 SALES. — Blackburn on Sales. A Treatise on the Effect of the 
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 SPECIFIC PERFORWIANCE. — Fry's Treatise on the 
 
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 TRADE MARKS.— Sebastian on the Law of Trade IWarksand 
 their Registration, and matters connected therewith, including a 
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 with Forms and Precedents; the Merchandize Marks Acts, 1887-94, 
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 Sebastian's Digest of Cases of Trade Mark, Trade Name, 
 
 Trade Secret, Goodwill, &c., decided in the Courts of the United 
 
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 ByLnwis Boyd Sebastian, Esq., Barrister-at-Law. 8vo. 1879. II. U. 
 
 *' Will be of very great value to all practitionerfi who have to advise on matters 
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 TRADE UNIONS. — Assinder's Legal Position of Trade 
 
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 Draper's Trade Unions and the Law.— By "Waewick H. Dkapee, 
 
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36 STEVENS AND SONS, LIMITED, 
 
 TRAIWWAYS.- Robertson's Law of Tramways and Light^Rail- 
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