■Vvv'^ '^ Ii«^ r/; ^WM^ ^fev-'^f^ i^'AiMurt <=*.. :« nM^s -^ '**. 'ir"'".' a/ 'A '*r^. 'v vwv, '^n-^^i^^^*^^^^. ^> :''^..^^ (Snnwll Kauj Srlfnnl liihrarg Cornell University Library KD 660.S82 1890 3 1924 017 832 969 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/cu31924017832969 Me. SERJEANT STEPHEN'S ON THS LAWS OF ENGLAND (partly fotjnded on blackstone) BY HIS HONOUR JUDGE STEPHEN. " For hoping well to deliver myself frmn. miatakingt by the order and perspicuous expressing " 0/ that I do propound, I am otherwise zealous and affectionate to recede as little from '* antiquity^ either in terms or opinions, as may stand with truth, and the proficience of Icnow- ' ledge." — Lord Bac, Adv. of Leaxning. %\z (<hmi\ %Mxm. IJV FOUR VOLUMES. Vol. I. LONDON: BTJTTEEWOETHS, 7, FLEET STEEBT, %m T^xXH%%tx% to t^t egneen's most a«IUnt JWajestg. DUBUN : HODGES, ITGGIS & CO., GEAFTON STEEET. CALCUTTA : THACKEK, SPINK & CO. MELBOTTRNE : G. EOBEETSON & CO. MANCHESTEE : MEEKDITH, BAY & LTTTLEE. EDINBUEGH: T. & T. CLAEK; BELL & BEADFUTE. 1890. LONDON : PBINTED BY 0. F. BOWOBTH, OEKAT NEW STBEET, FETTEB LANE — E.O. FEOM THE PREFACE TO THE ORiaiNAL EDITION. Of the plan and principle of this work on the Laws of England, and of the views on which it was undertaken, it may be right here to give some explanation. Though the celebrated Treatise of Blackstone still remains without a rival, as an in- troductory and popular work on the laws of Eng- land, the positions which it contains have been nevertheless so trenched upon by alterations in the law itself of modern date, that if the student were to rely upon its text, as containing an accurate account of our present system of jurisprudence, he would be led continually astray. The later editions of that work have consequently com- prised a copious accompaniment of corrective and supplementary notes at the bottom of the page : but it is not in the nature of such a method (with whatever ability pursued) to give entire satisfaction, because it obliges the reader to trans- fer his attention, incessantly, from the text to the commentary, and augments also, to a consider- able degree, the bulk and consequent expense of the volumes. These considerations led me to conceive that a work might prove acceptable, a2 iv PREFACE TO THE ORIGINAL EDITION. whicli should be framed upon the plan of intro- ducing the necessary alterations into the text itself; but the question then arose, whether it would be better to confine my effort to the repa- ration of those defects which new legislation and new decisions had occasioned, or to take a bolder course, and, discarding all solicitude about the measure of my adherence to the original work, to interweave my own composition with it, as freely as the purpose of general improvement might seem to require. It was upon the latter plan that I fixed, though with some hesitation, my choice. It may be thought, perhaps, that the confidence which carried me thus far, might naturally have tempted me farther, and taught me to aspire to the construction of an entirely new treatise. But if I had been conscious of faculties adequate to such an enterprise, I should still have declined it, as founded, in my judgment, on a wrong prin- ciple. The unimpaired portion of Blackstone's Commentaries comprises many passages, which (free in other respects from objection) are so far valuable at least, that they bear the stamp of his authority ; and many others whose merit is of the highest order, being distinguished by all the grace and spirit of diction, the justness of thought, and the affluence of various learning, to which he owes his fame. These relics, which are in considerable danger of perishing by their PREFACE TO THE ORIGINAL EDITION. V incorporation in a work now falling into decay, may be lawfully converted by any new Commen- tator on the Laws, to his own purposes ; and it is manifestly not less his duty than his interest, to make the appropriation. He cannot reasonably hope to rival their excellence ; and to attempt to displace them for original matter of his own, is consequently an injury to the public, and to the science of which he treats. All passages, then, which appeared to me to fall under either of the descriptions above given, I have made it my principle to retain ; but my deviations from the original work have, nevertheless, been frequent and extensive. Independently of certain objections to its arrangement (to which I shall presently revert), its exposition of particular sub- jects appeared to me to be often deficient in depth, in fulness, or in precision, and in some instances to be even chargeable with positive inaccuracy; so that, as I had prescribed to myself the rule of de- parting from Blackstone wherever I felt dissatisfied with his performance as well as where any change in the law had made a departure indispensable, it is seldom that I have been able to pursue the text for several pages in succession, without the intro- duction (more or less extensively) of matter from my own pen. Large portions, indeed, of original composition will be found frequently to occur in a continuous form ; and even where the text of my .predecessor is pursued with shorter interruption, VI PEEFACE TO THE ORIGINAL EDITION. yet it will be often apparent that fundamental alterations have been made in the manner of treating the particular subject under discussion. ♦ With respect to the general arrangement of the work, it is to be remarked that the order adopted by Blackstone is, in all its principal lineaments, derived from the Analysis of Hale; but though rendered venerable by the combined authority of names like these, I, haye not felt myself able to accede to it without alteration. The main division, indeed, by which the body of municipal law is severed into Bights and Wrongs, I have deemed it expedient to retain ; for (though liable to the great disadvantage of precluding the entire or con- tinuous discussion of some particular subjects, by making it necessary to recur to them under the aspect of Wrongs, after they have already once engaged our attention under that of Rights) it is founded nevertheless on a natural and just dis- tinction, and is interwoven besides with the whole fabric of our law, and rooted in the minds of our lawyers. The division also of Wrongs into those of a civil, and those of a criminal nature, I have, for •similar reasons, thought it clearly essential to pre- serve. But as to the division of Rights, the case is widely different. These are distributed by Black- stone into Rights of Persons and Rights of Things ; an arrangement which has been justly considered contrary both to grammatical and logical pro- priety. For the rights of things can only be PREFACE TO THE ORIGINAL EDITION. vii understood as signifying the rights relating to things — a sense not correctly conveyed by the form of expression; and are placed, besides, in false antithesis to the rights of persons ; by which is evidently intended the rights helonging to persons. The meaning would have been better expressed by a division into the rights relating to persons, and the rights relating to things. This fault, indeed, is the more remarkable, because it might have been avoided by a closer adherence to the language of Justinian's Institutes, which appa- rently served in this instance as the model: Omne jus quo utimur (according to this authority) vel ad personas pertinet, vel ad res, vel ad actiones (d). The arrangement in question, however, is open not merely to this kind of criticism, but to other obj ections of a much weightier description . In the first place, it determines that the law relating to persons shall be fully discussed before that relating to property has been examined, — and yet the sub- ject of property ought, in reason, to take the pre- cedence of that part of the law of persons, at least, which treats of relative rights ; for it is in the nature of the relative rights, vis. those which grow out of the social relations of parent and child, husband and vnf e, magistrates and people, and the like, to pre- suppose the absolute ones of life, liberty, personal security, and property (e). With respect to absolute {d) Instit. lib. i. tit. 2. («) This did not escape the discermnent of Hale : " Having done with Viii PREFACE TO THE ORIGINAL EDITION. rights of the three first descriptions, this is obvious, and the precedence therefore is properly assigned to them in Blackstone's work ; but it is equally true with regard to property also— for property, like the rest, unquestionably constitutes one of the circum- stances to which the social relations are adjusted, and to which they must be supposed to refer. To this right, therefore, the next place ought, in point of correct arrangement, to have been allotted ; but the Commentator's plan of division makes this im- possible, and compels him, after a short notice of property, to pass on, and to postpone its further ex- amination, until all relative rights (whether private or public) have been exhausted. This inversion of the natural order is not only inartificial, but often embarrasses the discussion of rights of the relative kind. Thus, in the chapter on Husband and Wife, every reader must perceive the disadvantage of the total omission to notice the effects of marriage in regard to the property of the parties; and yet until the subject of property in general had been ex- amined, any disquisition on the proprietary rights " the rights of persons, I now oome to the rights of things. And though " aooording to the usual method of civilians, and our antieut eommon law " tractates, this comes in the second place, after the Jura personarum and " therefore I have herein pursued the same course, yet that must not be " the method of a young student of the common law, but he must begin " his study here, at the Jura rerum ; for the former part contains matter " proper for .the study of one that is weU acquainted with those Jura " rerum." Hale's Anal. sect. 23. This passage had not attracted my attention until my principle of division had been fixed upon ; and its subsequent discovery was of course calculated to give me increased coiifi- deuee in the propriety of my choice. PREFACE TO THE ORIGINAL EDITION. IX attending that particular relation, would have been obviously premature. Another, and a still more important, objection to the method which considers Rights as consisting either of Rights of Persons or Rights of Things, is that it fails to embrace the whole compass of rights. There is a branch of law which belongs (properly speaking) to neither of these divisions, but which is of great and growing importance in our municipal system, that, namely, which concerns the social, as distinguished from the political, ecclesiastical, and judicial institutions of the country, and which comprises (among many other subjects) the laws relating to the poor, to highways, to public charities, and the like. For topics such as these, the analysis of Blackstone affords no proper place, and when they are of too much importance to be neglected, expedients of an awkward kind are often devised to make room for them. Thus, the law of highways and turn- pikes is made incidental to the office of parish surveyor, and the large and interesting subject of the poor laws is dealt with, by way of digression from the office of overseer. Dissatisfied for these reasons with Blackstone's arrangement of rights, and conceiving that it had not, like the other portions of his general method, become so inveterate among us, as to render its re- tention unavoidable, I have consequently ventured X PREFACE TO THE ORIGINAL EDITION. to lay it aside, and to adopt, so far as this subject is concerned, a different plan of distribution. This plan is entirely of my own conception. It might have been supposed, indeed, that in a field so highly cultivated as that of Rights, I could be at no loss for a satisfactory precedent ; but my search for one, though prosecuted with some diligence, was not attended with success. No writer on English or American law, who has deserted the order of Black- stone, had any pretension to be considered as a model — the repositories of the Roman jurispru- dence (which, with the exception of the Institutes, are notoriously defective or confused in their arrangement) supplied nothing to the purpose — the Institutes themselves (from which the division into the rights of persons and of things was originally taken) could of course afford no assist- ance; — and, with respect to the continental systems, they either conform (as in the Code Civil of France) to the Institutes, or when they depart (as in the treatise of Domat) from the beaten track, their course is not such as an Eng- lish jurist could follow with advantage. The general plan which I have thus ventured, on my own responsibility, to lay down, will be found at the commencement of the first book. Its lead- ing principle is — to make the distinction between Persons and Things the foundation not of a primary, but af a subordinate arrangement, and to con- PREFACE TO THE ORIGINAL EDITION. xi sider Persons as constituting, in a primary sense, the only objects of the law's regard. But the persons, whom the law is supposed thus uniformly to contemplate, are presented, first, in the light of insulated individuals, — and in that capacity their personal (in other words their bodily) rights are examined ; next, in their connection with the things around them, — which introduces the con- sideration of their rights of property ; next, as members of families, — which involves their rights in private relations ; and lastly, as members of the community, — which leads to the discussion of their rights in public relations, or (as they may be termed more compendiously) public rights. According to this order, the absolute right uni- formly takes the precedence of the relative, and the law of property in general is investigated be- fore the relations of men, in regard to property, arise for consideration. Upon this system, too, the division of Public Rights allows of a sub-division conveniently adapted to the discussion of those mixed subjects to which we have before referred, and which, having no exclusive connection either with person or property, it is the tendency of Blackstone's method to exclude. Public Eights are accordingly divided into those which concern a man in his relations to persons in authority, whether civil or ecclesiastical, and those which concern him in his relations to his fellow citizens XU . PKEFACE TO THE ORIGINAL EDITION. at large — 'the first of "wHch falls under the heads of The Civil Government, and The Church; the second under that of the Social Economy of the Realm; and it is under this latter head that such mixed sub- jects, as above referred to, will find their regular and appropriate place. The entire arrangement of the work is consequently as follows : — I. Op Pebsonal EiIohts. n. Of Eights of Pkoperty. 1. As to things real. 2. As to things personal. in. Of Eights in Private Eelations. 1. Between master and servant. 2. Between husband and wife. 3. Between parent and child. 4. Between guardian and ward. IV. Of Public Eights. 1. As to the civil government. 2. As to the church. 3. As to the social economy of the realm. V. Of Civil Injitries. Including the modes of redress. VI. Of Chimes. Including the modes of prosecution. In a production bearing the relation that has been described to the work of a former writer, I have deemed it indispensable to supply the reader with the means of readily and precisely distin- guishing the portions due to either commentator, or, I should rather say, of distinguishing them PREFACE TO THE ORIGINAL EDI'lION. XUl with more readiness and precision than could be done by aid of the internal evidejjice resulting from the style or matter. The sense of this has led. to a method of notation by brackets, the nature of which is explained in a Notice subjoined to this Preface. It has considerably increased both the labom* and the expense of the publica- tion, and by no means contributed to the beauty of its page. But the eye soon learns to accommo- date itself to the novelty, and it is believed that the reader will experience no embarrassment from its adoption. It has not been thought necessary, however, to extend it to the notes. Among these, there are many which are not in Blackstone's work, but the reference that they bear to the text, or other circumstances, will in general be found sufficiently to distinguish them from the annotations of Blackstone himself. PREFACE 10 THE ELEVENTH EDITION. I HAVE endeavoured in this Edition to effect con- siderable improvements, such as are required in order that the Work shall still give a general and comprehensive account of the existing law of England; pointing out, at the same time, where and how it has been modified by recent altera- tions. In pursuance of this aim, I have left out in each chapter such portions of the previous Edi- tions as seemed proper to be now omitted, and have condensed other parts where condensation appeared desirable; and I have also transferred various passages of the text to foot-notes (and vice versa), where such mutual transposition was expedient, in such manner as to bring in, either in the text or in the notes, all the new matter which has arisen since the publication of the last Edition. As a result of this labour, I have, amongst other advantages, been able slightly to reduce the number of pages, although the matter in each volume, and more particularly in the second and third volumes, is very consider- ably increased ; and it is my hope, as it has been XVI PKEFACE TO THE ELE\ ENTH EDITION. my intention, that by means of these alterations, the student will be able to read, and the prac- titioner to consult, these Commentaries with greater facility than heretofore ; the Work, while it retains the historical and antient por- tions so far as still necessary for a proper under- standing of the law, being now made essentially practical and modern in the account it gives of our legal system taken as a whole. The details of the changes made must be sought for in the volumes themselves; but by way of showing their general nature, I will refer to pp. 40 to 50 in the third volume, which treat of County Councils and Borough Councils under the provisions of the Local Grovernment ,Act, 1888 ; and to pp. 219 to 236, also in the third volume, which treat of Solicitors (their privileges and disabilities, their retainer and duties, their remuneration and bills of costs, and the remedies by and against them, civil and criminal), — all which parts, besides many others, are new in this Edition ; and I may further observe, that the Local Government Act above referred to has necessitated also numerous minute changes else- where throughout the Work. Indeed, I may almost say that the whole of the Work has been re-written, hardly a sentence remaining which has not, in some respect or other, been modified by condensation or otherwise ; while at the same time every care has been used to preserve the old style and also the old authority of Blackstone. PREFACE TO THE ELEVENTH EDITION. XVil As regards the incorporation and exposition of the new legislation, — ^which is every year becom- ing increasingly more difficult to set forth with clearness and conciseness, — I have been able to bring into this Edition all the statutes of material importance down to the end of April, 1890. As an example of the difficulties with which I have had to contend, I may remark that the legislature, late in 1889, thought fit to pass a lengthy consolidating Lunacy Act, timed to come- into operation on and as from the 1st May, 1890 ; but in April, 1890, this Act was repealed, and another still heavier Act on the same subject was substituted in its place, which was also timed to come into operation on the same 1st May, 1890. This last Act I have, nevertheless, been able to incorporate in this Edition, expounding its provisions in some detail in Vol. III. (pp. 117 to 129), and also incorpo- rating in the two earlier volumes, and in the fourth volume, such incidental references thereto as were necessary. In conclusion, I wish to state that I have given the greatest attention to making the Indexes to the several volumes as complete as possible. A. BROWN. 8, Ne-w SaUABE, Lincoln's Inn, W.C, June, 1890. VOL. T. 1> NOTICE TO THE READER. The portions of these Commentaries which lie between brackets [3 are taken substantially from Blackstone; and rest, chiefly, on his authority. To enable the reader to distinguish these portions from other parts of the work, upon merely open- ing the volume, and without being obliged to turn the leaves over backwards, the continuation of an extract is always marked by a new bracket at the top of the page. \\ CONTENTS OF THE WORK. VOLUME I. Introduction. Page Shot I.— Of the Study of the Law . . 1 II. — Of the Nature of Laws in general . . , , . , 21 III.— Of the Laws of England 40 IV. — Of the Countries subject to the Laws of England . . 84 v.— Of the Kingdom of England itself .. 119 Book I. OF PERSONAL BIGETS. Of Rights and Wrongs 139 Of the general Arrangement of the Work , , . . . . . , 142 Of the Right of Personal Security 143 Of the Right of Personal Liberty 149 Book II. OF RIGHTS OF PROPERTY. As to Property in general 156 PART I. OP THINGS REAL 169 CHAP. I. Or THE Divisions op Thinos Real. Of Lands, Tenements, and Hereditaments 170 Of Hereditaments, Corporeal or Incorporeal 172 b2 186 188 190 206 211 215 216 220 224 226 XX CONTENTS OF THE FIRST VOLUME. CHAP. II. Or Tenttbes. V^a^ Of the Feudal System ^'^* Of the Introduction of that System into England 182 Of the Nature of Tenure Of the different sorts of Tenure Of Knight's Service Of Free Socage and its Incidents Of Petit Serjeanty, Tenure in Burgage, and Gavelkind . Of Manors , . . . . . . . ■ ■ • ■ ' • • Of ViUenage Of Copyhold. ., ,, Of Antient Demesne , , Of Cij^tomary Freehold , Of Tenure in Frankalmoign 227 CHAP. III. Of Fbbeeold Estates of Ihhesitanoe. Of Estate 230 Of Legal and Equitable Estate 231 Of Freehold Estate «*« . Of Conunbns . ," Of "Ways Of Watercourses Of Lights Of Franchises , , Of Bents Of the Apportionment Act (1870) Of the Law of Incorporeal Hereditaments, generally considered Of Hereditaments Appendant, Appurtenant, or in Grross Of Incorporeal Hereditaments as to Tenure, Estates and Title Of Prescription Of Prescription at Common Law Of Prescription under 2 & 3 WiU. 4, c, 71 Of the Extinction of Incorporeal Hereditaments Of the Abandonment of Lights and Watercourses Page 619 620 629 631 633 634 643 649 650 651 ibid. 654 655 659 662 664 CHAP. XXIV. Of thb CoirraTiKOiNQ and Land Acts, 1881 — 1889. Of the Conveyancing Acts, 1881 and 1882 Of the Settled Land Acts, 1882 to 1889 . 665 683 CHAP. XXV. Of BEGtlSIBATION OF TlILE TO LaITD. Of the Land Transfer Act (38 & 39 Vict. c. 87) 707 OftheDeolarationof Title Act (25 &26 Vict. c. 67) .. .. 715 Of the Land Charges Registration and Searches Act, 1888 . , . . 717 CONTENTS OF THE SECOND VOLUME. XXVU VOLUME II. Book II. OF MIGETS OF PROPERTY— conUnued. PART II. Faos OP THINaS PERSONAL 1 CHAP. I. Of Thinos Pbbsonai, nsr qeheeai,, akb of Pbopeett theebin-. Of Chattels Personal 2 Of Moveables .4 Of Animals Fer VOLUME. CHAP. III. Or Title bt Intention. Of Patent Eights Of Copyright Of Trade Marks and Trade Names Of Designs PAOE 25 36 45 47 CHAP. IV. Or Title by Gift and by Assionmbnt. Of the Alienability of Personal Property Of the Transfer of Choses in Action Of a Gift Of Donatio Mortis Causd Of Assignment, or Bargain and Sale , , Of Fraudulent Gifts and Assignments Of the Transfer of Coin and Negotiable Instruments 51 53 54 55 56 57 60 CHAP. V. Of Title by Contbaot. Of Promises Of Specialty and Simple Contracts . . Of Contracts written and verbal,' and of the Statute of Frauds Of Contracts express and implied .',' Of Contracts executed and executory .V Of the Consideration of a Promise . . Of th6 'Consfructiori or Interpretation of Contracts Of the Performance of Contracts Of Conditions Precedent Of the Law of Principal and Agent Of the Contract of Sale Of the Transmutation of Property . . Of the Statute of Frauds as regard Sales Of Stoppage in Transitu Of Sales in Market Overt Of Implied Warranties on Sales Of the Maxim of Caveat Emptor .... Of Express "Warranties on Sales ^.. Of Factors and Brokers . . Of the Contract of Bailment . , .. , . Of the diflerent, Species, of Bailment . . . Of thp,difleiqnt Degrees of Negligence 62 ibid. 63 64 66 ibi^. 70 71 72 ibid, 76 77 78 79 80 83 84 85 ibid, 90 91 92 CONTENTS OF THE SECOND VOLUME. XXIX CHAP. y.—(continutd.) Of Special Property in Bailees , , Of Lien Of Common Innkeepers , . Of Common Carriers . . Of the Contract of the Loan of Money Of Interest Of Bottomry and Bespondentia . . Of Life Annuities Of the Contract, of Partnership , . Of the Contcaot of Gruarantee Of Bonds Of Contracts secured by Penalties in general Of Bills of Exchange and Promissory Notea Of PoHoies of. Insurance , , . . Of Charter-parties Of Debt and Damages . . Of Specialty and Simple Contract Debts, and Debts of Becord FAaE .. 92 93 .. 94 96 .. 100 ibid. .. 102 103 .. 108 lU .. 117 120 .. 122 136 .. 148 151 .. 152 CHAP. VI. Op Title by Banketjptot. Of the History of the Bankrupt Law 164 Of the Persons who may become Bankrupt . . . . . . . . 167 Of the Circumstances under which, and of the Manner in which, a Man may be adjudicated a Bankrupt 160 Of the Effect of the Bankruptcy on the Property of the Bankrupt . . 165 Of the Proceedings subsequent to Adjudication 176 Of Composition and Schemes of Arrangement 188 CHAP. VII. Of Tetlb by Will and by Adminibteation. Of acquiring Personal Estates by "WiU, and by Administration . . Of the original State of the Law as to bequeathing Personalty Of the Law of Fars Sationaiilis Of the present Power of bequeathing Personalty Of the Ecclesiastical Jurisdiction over WiUs and Administrations Of the Capacity to be Testator Of the SolemnitieB of Wills . . . . Of the Appointment of an Executor Of Probate Of the Gkant of Administration Of Next of Kin 193 194 ibid. 196 ibid. 199 201 204 ibid. 207 ibid. XXX CONTENTS OF THE SECOND VOLUME. CHAP, yil.—iemtinued.) PA.OB Of AdminiBtiation cum testamento annexe . . . . . . . . 210 Of AdminiBtiation dttmrnte minore eetate, durante abientid, and pendente Ute ,. ,. .... . . , . . . Hid, Of Admimstration de bonis non . . , , , . . , , , . , 211 Of limited or special AdmiiuBtratiozi , , , , , . . , ibid. Of the BepresentatiTe Character of Executors and Administrators . , 212 Of the Difference between them in respect of Bights andDuties. . 213 Of an Executor de son tort , . . . , , . . . . . . ibid. Of the Duties of Executors and Administrators 214 Of Devastavit . . . . , ibid. Of proving the 'Will 215 Of making Inventory . . . . . , , , . . . . . , ibid. Of collecting the Assets iSid. Of payment of the Debts 216 Of Legacies . . . . . . . . . . . . . . . , 218 Of Specific Legacies .. ., ,. .. ,. .. ., 219 Of Abatement of Legacies . . , . . . , . . , . . ibid. Of Ademption of Legacies . . . . . . . , , , . . ibid. Of Lapsed Legacies . . . . . . . , , . , , . , 220 Of Contingent Legacies . . , . . . . . , , , . , , ibid. Of the Residue . . . .- . . ; . . . , , , , , , 221 Of the Statute of Distributions . . , . . . . . . , . . 222 Of bringing into Hotchpot . , . . . . . . . . , . 224 Of the former Customs of London and York as to Distributions . . ibid. CONCLUSION TO BOOK II. Op SOME WTitT;T> OE lEEEaULAE SUBIEOTS OP PeOPEETT. Of Emblements . . . . . . . . . . , , Of Fixtures Of Shares of Public Undertakings connected with Land Of Animals Feree Naturce passing vpith the Inheritance Of Charters, Deeds, Family Pictures, and Monuments . . Of Heirlooms . . , . , , , . . . 227 230 234 235 ibid. 236 CONTENTS OF THE SECOND VOLUME. XXxi Book m. OF BIQHTa IN PRIVATE BELATI0N8. CHAP. I. Of Masieb and Sebvakt. Faox Of the Bights of Persons in their Private Relations 239 Of the State of Slavery 240 Of Servants ibid. Of Labourers 241 Of Apprentices . , . , , . . . , . . , , . . , 243 Of the Law of Master and Servant, as regards each other , , 24S Of the Law of Master and Servant, as regards Strangers . . . . 247 CHAP. II. Of HijSBiND Ainj 'Wipe. Of Canonical and Civil Disabilities affecting Marriage , . Of the Prohibited Degrees of Relationship Of the Marriage Acts Of Marriages Abroad . . Of the Legal Identity between Husband and Wife . . Of the Husband's Power over the Wife's Person Of the Effect of the Marriage on her Property Of the Legal Disabilities of Married Women Of the Legal Privileges and Protections of Married Women Of the Manner in which the Legal Effects of Marriage are modified in Equity . , . . Of Marriage Settlements , . Of Separation Deeds . , Of Divorce Of Judicial Separation Of Alimony 265 257 261 272 274 276 277 283 286 287 289 291 293 295 297 Of Nullity of Marriage 298 XXXll CONTENTS OF THE SECOND VOLUME. CHAP. III. Of Fabent and CttitiTi. Faoe Of Legitimacy 299 Of the Conflict of the Law of England with that of the Civilians and Canonists as to the Legitimacy of Antmati 301 Of Proof of Kon-access , , . , , , , . . . . , . . ibid. Of the tiltirmim Tempua pariendi , , . . .. . . , . 302 Of the Writ de Ventre inspiciendo .. ., . . . . . . ibid. Of the Duties of Parents towards their Children . . . . . . 303 Of Statutable Provisions as to the Maintenance of Children . . 30S Of the Power of Parents over their Children . . . . . . 308 Of Bastards 312 ' Of Statutable Provisions as to Maintaining Bastards . . . . ibid. Of the Legal Disabilities of Bastards ,. ,, .. .. .,314 CHAP. .IV. Or GUABDIAN AOT) WaED. Of Infancy , . .. .. .. .. .. .. .. ,. 317 Of the Age of Legal Capacity in different Cases . . . . . . ibid. Of the Capacities and Incapacities of Infants . . . . . . . . 318 Of Guardianship by Nature . , . . . . . . . , . . 323 Of Guardianship for Nurture . . . . . , . . . . . . Hid. Of Guardianship in Socage . . , . . , . . . , . . Hid. Of Guardianship by Statute 324 Of Guardianship by Election 325 Of Guardianship by Appointment of the High Court of Justice . . ibid. Of Guardianship ad Litem .. . , . . , , . , , , 327 Of Guardianship by Custom m^^ Of the Eights and Duties of Guardians in general , . , . 328 CONTENTS OF THE SECOND VOLUME. XXxiii Book IV. OF PUBLIC BIGHTS. PART I. Faoe OF THE CIVIL &OVERNMBKT 331 CHAP. I. Of the Paeiiament. Of the Origin and History of Parliament 333 Of the Manner and Time of Parliament's assembling , , , . 336 Of the Frequency with -wrhioh Parliaments are to be held . , . . 337 Of the Constituent Farts of Parliament, and the Balance of the Constitution 339 Of the House of Lords . . . . 341 Of the House of Commons . . . , . . . . . . . . 345 Of the Principle of Parliamentary Representation 346 Of EJiights of Shires, Citizens and Burgesses . , . . . , ibid. Of the Number of Representatives 347 Of the Power and Jurisdiction of Parliament . , . . . . 348 Of the Law and Custom of Parliament , , , . . . . . 351 Of the Privileges of Parliament 352 Of the Laws and Customs relating to the House of Lords in particular 356 Of the Laws and Customs relating to the House of Commons in particular . . . . . . . , . . . . . . . . 358 Of the Raising of Taxes 359 Of Money BUls ' . . ibid. Of the Flection of Members of the House of Commons , . . . 360 Of the Qualifications of Electors in general ibid. Of the Qualifications of Electors for Counties 361 Of the Qualifications of Electors for Boroughs 368 Of the DisquaUfioations of Electors 367 Of the Persons who may be elected Members 378 VOL. I. C XXXIV CONTENTS OF THE SECOND VOLUME. CHAP. I.— {continued.) Page Of issuing the Writs for Election 382 Of the Election by Ballot 384 Of the Elections for the Universities 385 Of the Questions which may be put to a Voter . . . . . . 386 Of the Tender of an unregistered Vote . . . . . . . . 387 Of the Bemoval of Soldiers from the Place of Election . . . . ibid. Of Rioting at Elections .. 388' Of Bribery, Treating, and Undue Influence Hid. Of other Corrupt and Illegal Practices 391 Of the Eetum of the Writs . . . . 392 Of Controverted Elections 393 Of Disfranchising Boroughs for Bribery . , . . . , . . 395 Of Vacating a Seat in Parliament . . . . . . . . . , 396 Of the Speaker of the Lords and of the Commons . . . . ibid. Of the Manner in which BiUs are passed . . 397 Of the Adjournment, Prorogation, and Dissolution of Parliament 404 Of the Triennial and Septennial Acts 408 CHAP. 11. Or THE SOVBEBIOH, IN HIS OBNEBAI. RelAUOII TO THE PeOPIiE ; AMD THE Law op Subject aud Auejt. Of the Original Contract between the Sovereign and the People Of the Sovereign's Duty to govern according to Law . . Of the Coronation Oath . , Of Allegiance . . Of the former Oath of Allegiance Of the present Oath of Allegiance . . Of Natural-bom Subjects Of Aliens Of Denizens . . , , . , , , Of Persons naturalized 426 410 ibid. 412 414 415 416 421 422 424 CHAP. III. Op THE Royal Titi^. Of the hereditary Succession to the Crown 407 Historical View of the Successions that have taken place " "429 Of the Exclusion Bill Of the Revolution of 1688 " _ _ .^^ Of the Act of Settlement.. ., ■• .. . " ■ • • ■ ■ . . . 448 CONTENTS OF THE SECOND VOLUME. XXXV CHAP. IV. Op the Boyal Familt. Paob Of the Queen Regnant 453 Of the Privileges of the Queen Consort ibid. Of the Husband of a, Queen Regnant 457 Of a Queen Dowager 468 Of the Frince of Wales and his Consort, and the Princess Royal . . Hid. Of the Royal Pamily 460 Of the Royal Marriage Act 462 CHAP. V. Of the Rotax Counoilb, Aim of the Offioebs of State. Of the Councils belonging to the Sovereign 464 Of the Peers of the Realm as hereditary Councillors , , . . ihid. Of the Right of Audience , , . , . , , , . . . . 465 Of the Privy Council 466 Of the Judicial Committee 470 CHAP. VI. Of the Royal Peeeo&ative. Of the Limitation of the Royal Authority 473 Of Political or Civil Liberty 474 Of Magna Charta, the Petition of Right, the Habeas Corpus Act, the Bill of Rights, and Act of Settlement 477 Of the Free Administration of the Law in the Courts of Justice 479 Of the Independence of the Judges 481 Of the Right of Petitioning the Crovra 482 Of the Nature of the Royal Prerogative 483 Of the Sovereign's Pre-eminence 484 Of his Freedom from Civil Disabilities Hid. Of the Maxim that the King never dies 486 Of the Maxim that the King can do no wrong iUd. Of the Manner in which the Royal Grant may be avoided, or Redress obtained from him . . . . . . . . . . . . 487 Of Parliamentary Remonstrance against the Acts of the Sovereign 488 Of Parliamentary Impeachment of his Advisers 489 Of the Bar of his Rights by Lapse of Time 491 Of his Right of Embassy to Foreign States, and of the Law of Ambassadors 492 c2 XXXVl CONTENTS OF THE SECOND VOLUME. CHAP. TL.— (continued.) ^ Page Of his Right to make Treaties . . . . . . . . . . • . *98 Of his Bight to make War and Peace . . . . . . . . *^*^- Of his Right to issue Letters of Marque and Reprisal . . . . 500 Of his Right to grant Safe-Conducts 502 Of his Right to reject Laws . . . . . . . . . . . . 504 Of his Right to raise and regulate Armies and Meets . . . . ibid. Of his Right to appoint Ports and Havens . . . . . . . . 507 Of his Right to erect Beacons, Lighthouses and Sea-marks , . 509 Of his Right to prohibit the Importation or Exportation of Arms, &o. 610 Of his Right to confine his Subjects to the Realm, and to reoaU them to the Realm .. .. .. ,. ,. .. .. .. 511 Of his Right of erecting Courts of Judicature . . . . . . 512 Of his Right of pardoning OSences .. .. .. .. ..513 Of his Right of issuing Proclamations .. ._. .. .. 514 Of his Right as Guardian of Idiots and Lunatics, and of the Law relating to them . . . . . . . . . . . . . . 615 Of his Right as the Fountain of Honour, Office and Privilege . . 621 Of his Bight to establish Markets and Fairs 523 Of his Right to regulate Weights and Measures . . . . . . 524 Of his Right to stamp and regulate the Current Coin . . . . 629 Of his Rights as Head of the Church ; and herein of Convocation 533 CHAP. VII. Of the Rotaii Reveotte. Of the Exchequer . . . . , . . . . . . . . . . , 537 Of the ordinary Revenue of the Crown . . , . . . . . 538 Of the Custody of the Temporalities of Bishops . . . . . . 539 Of the First Fruits and Tenths, and herein of the King's Books, and of Queen Anne's Bounty . . . . . . . . . , 540 Of the Demesne Lands of the Crown . . . . . . . . _ _ 543 Of the Antient Revenue from Purveyance and Pre-emption, and the Revenue given in Compensation for it . 546 Of Profits from Forests . . . , , , . , , . _ _ _ 547 Of Profits from Courts of Justice mj Of Royal Fish, Wrecks, Treasure-trove, Waifs and Estrays . . 548 Of Royal Mines . . . , , . . , _ _ _ ggo Of Forfeitures and Deodands . . . . , , , . _ ggo Of the Extraordinary Revenue of the Crown Of the Land-tax . . Of the Customs Of the Excise Of the Assessed Taxes 662 663 669 573 676 CONTENTS OF THK SKCOND VOLUME. XXXVll CHAP. YIL— {continued.) Of the Post Office Of the Stamp Duties Of the Duty on Offices and Pensions . . Of the Income Tax Of the National Debt . . ■■. Of the Public Funds Of the Consolidated Fund and the Public Income Of the Civil List Page , 677 680 , 582 683 . 686 687 , 689 690 CHAP. VIII. Of teb Royaii Foboes. Of the History and Progress of our Military System Of the Former and Present Military Force Of the Militia Of the Yeomanry and other Volunteers Of the Begular Army Of the Army Act, Articles of War and Courts Martial Of the Navy Of Impressment Of the Naval Discipline Act Of the Boyal Marines Of the power of the Crown in Modem, as compared with Antient Times . . 693 695 . . 697 ibid. . . 698 699 . . 603 Hid. . . 605 607 608 CHAP. DC. Of the NobiiiIIT and oiseb Ranks. Of the Degrees of Nobility Of the Commonalty . . 611 622 CHAP. X. Of Maoibtraies and other Public Offioebs Of the Nature of Offices in general OftheSherifi Of the Deputy Sheriff . . Of the Under Sheriff Of Bailiffs Of the Coroner Of the Justices of the Peace Of Constables . . 629 633 642 ibid. 643 644 663 663 XXXVUl CONTENTS OF THE SECOND VOLUME. PART II. OF THE CHURCH Paob 672 CHAP. I. Op the EoOIiBSIASTIOAIi AUTHOEITIBS. Of the Clergy generally Of Arohbialiops and Bishops Of Deans and Chapters . Of Archdeacons Of Kural Deans . . Of Hectors Of Parsons . . Of Appropriations Of Lay Appropiiators Of Vicars Of Perpetual Curates Of Sinecure Rectors . . Of Presentation Of Institution . . . , Of Collation Of Induction , . Of Donatives Of Residence . . Of Pluralities Of holding in Commendam Of Curates . . Of Churchwardens Of Church Rates , . Of Parish Clerks Of Sextons CHAP. II, 673 677 687 689 ibid. 690 ibid. 691 692 693 695 696 697 698 ibid. 699 700 702 704 705 707 710 712 713 1U Of the DOOTEDIES and WOESHIP of the ChUEOH, and HEEEUf OF THE Laws as to Hebesy and Nonoonfoemitt. Of the Articles of Faith .. Of the Liturgy. , Of the Crown's Supremacy Of Nonconformity . . , . Of the Progress of Toleration 715 716 717 718 720 CONTENTS OF THE SECOND VOT.TTME. XXXIX CHAP. III. Ov THE Endowments anb Fbovisions op the Chuboh. Of Eoolesiastioal Property in General , . Of Glebe Of Advoweons , , , , '. Of Lapse Of Simony . . Of Tithes Of Commutation of Tithes Of the Estates which Ecclesiastical Persons may hold , , Of Autient Bestraints on Alienation of Ecclesiastical Property Of Charging Benefices . . . . Of Ecclesiastical Grants and Leases under Modem Statutes Of Surplice Fees, Easter Offerings and Mortuaries Faoe .. 724 726 .. 727 729 .. 731 734 .. 740 744 , . Hid. 746 .. 747 751 CHAP. IV. Of New Eoolbsiastioai Disteiots and Pabishes, and othee Extensions of thb Obioinal Chubce Establishment. Of Parish Churches 754 Of Chapels 756 Of the Church BuUding Acts 757 Of the Ecclesiastical Commissioners . . . . . . . . 758 Of New Sees and New Arrangements of Diooeses 769. Of the Cathedral" Acts . . »*»rf- Of the New Parishes Acts 760 xl CONTENTS OF THE THIRD VOLUME, VOLUME III. Book IV. OF PUBLIC BIGHTS— continued. PART III. OP THE SOOIAIi ECONOMT OF THE REALM Paoe 1 CHAP. I. Of the Laws BELATnra lo Cob? obahons. Of Corporations Aggregate and Sole . . Of Corporations Ecclesiastical and Lay Of Corporations CivU and Eleemosynary Of the Creation of Corporations Of the Incidents of Corporations Of Qualified Corporations . . Of Incorporated Joint Stock Companies Of the Visitation of Corporations Of Hospitals Of Colleges in the Universities Of the Dissolution of Corporations Of Municipal Corporations , . Of County Councils and County Boroughs i 6 ibid. 7 11 17 18 25 27 ihid. 28 30 40 CHAP. II. Op the Laws eelatujo to the Pooe. Of the Overseers of the Poor Of the early Law of Settlement, Belief and Bemoval . Of Gilhert's Act Of the Select Vestry Act Of the Poor Law Amendment Act Of the Local Government Board . , Of the present Law of Settlement, Relief and Removal Of the Poor Rate 51 ibid. 53 64 53 56 58 68 CONTENTS OF Til li THIRD VOLUME. xli CHAP. III. Or THE Laws belatino to Chabmieb, Savings Banks, Fbiendly and oiheb societieb. Paob Of Charities generally 75 Of the Charitable Trusts Acts 79 Of Savings Banks , . , , . , . . . . . , . . 85 Of Friendly Societies 91 Of Building Societies. , 96 CHAP. rv. Of the Laws belatino to Education. Of Public Elementary Education 98 Of Public and Endowed Schools 102 Of Sites for Schools and for Institutions 108 Of Parliamentary Grants for the Education of the Poor . . 110 Of Pauper Schools . . . . . . Ill Of Befonnatory Schools .. 113 Of Industrial Schools IH CHAP. V. Op the Laws ebiatiho to Lttnatio Asylums, and thbib HANAOEUEIiT. Of County Lunatic Asylums 118 Of the Lunacy Act . . . . 122 Of the Custody of Criminal Lunatics 124 Of the Custody of Lunatics generally 126 Of the Commissioners in Lunacy 127 Of the Visitation of Lunatics ibid. Of the Idiots Act 128 CHAP. VI. Of tee Laws sELATiNa to Fbisons. Of Gaolers 130 Of Houses of Correction 131 Of the Prisons Acts 132 Of Prison Discipline and the Visitation of Prisons . . . . . , ibid. Of Millbank Prison 134 Of Parkhurst Prison 135 Of Pentonville Prison 136 xlii CONTENTS OF THE THIRD VOLUME. CHAP. VII. Of the Laws ssLixmei to Hiohwats — autd heebin op Bsidges amd tuenhxe k0aj>3. Page Of the Dedication of Putlio Roads 137 Of the Repair of Highways 138 Of the Repair of Bridges Hid. Of Highways generally 142 Of Turnpike Roads 147 Of Main Roads IH CHAP. VIII. Of the Laws belahnq to Navioation — and to the Meeoantilb Mabdie. Of the Navigation Acts 153 Of the Merchant Shipping Acts 156 Of the Ownership, Registration, and Transfer of Merchant Ships. . 157 Of the Laws relating to Merchant Seamen . , , . , , 159 OfPUotage 165 Of Lighthouses, Beacons and Sea-marks . , , . , . . , 168 Of the Liability of Shipowners 171 Of the Laws relating to Fisheries . , 173 CHAP. IX. Of the Laws sELATnia to the SAinTAsT Condition of the Peof£e. Of the Plague 177 Of Quarantine.. .. .. .. .. .. ,, .. ibid. Of the Asiatic Cholera 179 Of theSmallPox ibid. Of " The PubUo Health Act (1848) " 181 Of the Local Grovemment Acts . , . . . . . . , , iUd. Of " The Diseases Prevention Act (1855) " ibid. Of " The Nuisances Removal Act for England (1856) " ,. 182 Of the Local G-ovemment Board 183 Of "The PubUo Health Act (1872)" iji^. Of "The PubUo Health Act (1875)" 184 CHAP. X. Of the Laws eelatino to Publio Conveyances. Of Stage Coaches j^gg OfRaUways " -j,-^ Of Conveyances by Water ., .. .. __ _ .go Of " The Passengers' Acts " '" 194 CONTENTS OF THE THIRD VOLUME. xliii CHAP. XI. Of the Laws n^Lirtma lo the Of the Liberty of the Press Of ceTtain Kestrictive Begnlations Of the Ne-wspaper Libel Acts . . Paqe 196 197 198 CHAP. XII. Op the Laws eblatino to Hotjses of Public Eeobption and Sntebtaxetuent. Of PubUo Houses 200 Of Excise Licences , . , . . , , , , . . . . . ibid. Of Justices' Licences . . . . . . . . . . . . . . 201 Of the Licensing Acts . . . , . . . . . . . . 202 Of Refreshment Houses . . . , , . . . . . . . . . 206 Of Theatres Hid. CHAP. XIII. Op the Laws EBLAiiNa to Pkoeesbions. Of Physicians 209 Of Surgeons 210 Of Apothecaries 211 Of Chemists and Druggists 212 Of the Medical Acts 213 Of the Schools of Anatomy 218 Of Dentistry and Dentists 219 OfSoUoitors 219—236 Of the Solicitors Acts 220 Of the Registrar of Solicitors 223 Of the Privileges and Disabilities of Solicitors 225 Of the Retainer and Duties of Solicitors 226 Of the Bills of Costs and Remuneration of Solicitors 228 Of the Remedies for and against SoUoitors 235 CHAP. XIV. Oe the Laws eelatinq to Banks. Of the Origin of Banks . . Of the Bank of England Of Banks of Issue, or of Deposit Of Branches of the Bank of England Of the Banking Act of 1844 Of Joint Stock Banks Of the Bankers' Books Evidence Act 237 238 ibid. 240 241 244 245 xliv CONTENTS OF THE THIRD VOLUME. CHAP. XV. Of the Lavs iiblatino to the Ebgibteation op Bieths and Deaths. Faqe Of the EoclesiaBtioal Mode of Eegistration 247 Of the Civil Mode of Kegistration 249 Of the Registration of Births ; 251 Of the Kegistration of Deaths 252 Book V. OF CIVIL INJURIES. CHAP. I. Of the Sedbess of Injubies bt the uebe Act of the Pabties. Of Wrongs in general . . . , . . . . . . . . . . 255 Of Self-defence 257 Of Recaption or Reprisal 268 Of Entry .' 259 Of Abatement of Nuisances . . . , . , . , . . , , ibid. Of Distress 260 Of the Injimes for -which this Remedy lies 261 Of the Things which are or are not Distrainable . . . . , . 262 Of the Mode of Distraining, and of the Avoidance of Distresses 267 Of the Seizure of Heriots, "Waifs, &e. . , , . . . . . , . 274 Of Accord and Satisfaction . . . . . . . . , , . , 275 Of Arbitration . . . . . . . . . . . . , . , . 276 CHAP. II. Of Rbdebss bt the mbkb Opbbation op Law. Of Retainer 283 Of Remitter 285 CHAP. III. Of the CoTIETS m GrBUBEAl,. Of the different Species of Courts , . . . , . 288 Of Solicitors .. .. ,, ., .. _ ngi Of Counsel . . . . . , . , . , . _ _ 092 CONTENTS OV THE THIRD VOLUME. slv CHAP. rv. Of the Infebiob Coxtbis. Of the Court Baron Of the Hundred Court Of the Sherife's County Court . , Of the County Courts Of Borough and other Local Courts Of the Courts of Sewers Of the Stannary Courts . . Of the University Courts Of the Ecclesiastical Courts Of the Chief Ecclesiastical Wrongs CHAP. V. Op the Sttpbemb Cotjbt or Juuioatuee. Of the High Court of Chancery . . Of the Court of Queen's Bench Of the Court of Common Pleas . . Of the Court of Exchequer . . Of the High Court of Admiralty Of the Court of Prohate Of the Court for Divorce and Matrimonial Causes Of the Court of Bankruptcy . . Of the High Court of Justice Of the Chancery Division Of the Queen's Bench Division, now including the and Exchequer Divisions . . Of the Common Pleas Division Of the Exchequer Division Of the Prohate, Divorce and Admiralty Division Of the Bankruptcy Division Of the Court of Appeal CHAP. VI. Or THE UlTTMATB COUBIB OP APPEAL. Of the House of Lords Of the Judicial Committee Paoe 298 300 301 303 316 320 322 324 325 334 346 356 359 ibid. 364 367 ibid. ibid. ibid. 377 le Common Pleas ibid. 378 ibid. ibid. 379 380 385 387 CHAP. VII. Op the dippeeent Species op Civm Injtjbies and thbib Keuesies — AND HEEEIN OP THE E.EMBDT BY AOTION OENEBALLT.. Of Actions generally . . 388 Of Personal Actions 390 Of Real Actions 391 Of Mixed Actions ibid. Of Actions on Contracts or on Torts . . . . 392 xlvi CONTENTS OF 1"HE THIRD VOLUME. CHAP, yn.— (continued.) Of the Forms of Personal Actions . . . . . • • • • • 393 Of Actions Local or Transitory . . . . . . • . • • • • 394 Of Actions for the Specific Eeoovery of Property, or for Damages . . 395 Of Damnum absque Injurid . . . , •• •• •• •• 397 Of the Transfer of Rights of Action, by Act of Law . . , . 398 Of the Action, by the Representatives of a Person killed , , , , 398 CHAP. VIII. Ov THB DIFFEBEUT SPECIES OF ClVHi InJITBIES, ADS THEIB ReUKDIES. Of Injuries afEecting Personal Rights 400 Of Injuries affecting Rights of Property . . . . . . . . 414 (1) Real Property 415 (2) Personal Property.. .. .. ., .. .. 468 Of Injuries affecting Rights in Private Relations 471 Of Injuries affecting Public Rights 477 CHAP. IX. Of Equity in its eelation to Law. Of the Distinction between Law and Equity . . . . . . . . 479 Of the Subjects of Equitable Jurisdiction . , . . . . , . 489 Of Equitable Relief iiid. Of Equity in relation to Trusts ibid. Of Decreeing Specific Performance ' . . 496 Of an Injunction . . . . , , , , , , . . . , Hid. Of Perpetuating Testimony 498 CHAP. X. Op the LmiTATioN of Actions. Of the Statutes of Limitation . , . . . . . . , , , , 501 Of Limitation as to Entry or Distress and Proceedings for the Recovery of the Realty or of Rights issuing thereout . . 502 Of Limitation as to Actions not brought for Recovery of Things Real . . ~. . , . . . , . . . , . , , . , 511 CHAP. XI. Of THE Pbocbedinos nj an Action. Of the Division of the Tear into Terms 619 Of the Process 526 Of the Pleadings . . , . . , . . , _ _ _ _ _ g3g Of the Trial and Evidence . . . , . . . , , , _ _ 551 Of the Judgment ggg Of Costs . , , , . , , , . . _ _ _ gQg Of Execution , . . , . , . , , . _ _ _ _ cjq Of Appeal " .. " 622 CONTENTS OF THE THIRD VOLUME. xlvii CHAP. XII. Of iNTEBLOOtraOBT AKI) INCIDENTAL PbOOEBDINOB, AND EEBEUT OF Fbebooatite Wbitb. Of Motions Of Interpleader Of Interlocutory Applications . . Of the Writ of Scire Facias Of the Writ of Procedendo Of the Writ of Mandamus . . Of the Writ of Prohibition Of an Information in the nature of a Quo Warranto Of the Writ of Habeas Corpus . . Of the Writ of Certiorari Pass 626 629 631 632 633 634 640 642 646 655 CHAP. XIII. Op Peoobedinqs in the Chanoeey Divibion. Of the Process . . , . . , , . . . . . • • • • 657 Of the Pleadings 660 Of the Trial and Evidence 661 Of the Judgment 664 Of Execution 665 Of Appeal 666 CHAP. xrv. Op Peoobedinos in the Peobate, Divoeoe and ABSOEAiaY Divibion. Of a Probate Action 669 Of a Divorce Petition 671 Of an Admiralty Action 675 CHAP. XV. Op iNjtmiEB AEPEomjo the Ceown. Of obtaining Bedress from the Crown 679 Of Injuries to the Crown .. .. 683 Of an Inquisition or Inquest of Office «*W. Of an Extent in Chief 686 Of an Extent in Aid 690 Of Proceedings to repeal Patents 691 Of an Information in the Exchequer ii'4- xlviii CONTENTS OF THE FOURTH VOLUME. VOLUME IV. — ♦ — Book VI. OF CRIMES. CHAP. I. Of xhs Natuse of Cbiues and theib Punishuents. Paqe Of the Distinction between Crimes and Civil InjnrieB .. .. .4 Of Misdemeanors and Felonies . . . , ..... . . 6 Of the Eight to inflict Punishment 10 Of the Object of Punishment . . . . . . . . . . 12 Of the Measure of Punishment . . . . . . . . . , . . 13 CHAP. n. Of the Pebsons capable of comaniNO Cboibs Of Persons who are not capable of committing Crimes Of Infancy Of Idiocy or Lunacy Of Drunkenness Of Misfortune or Chance . . Of Ignorance or Mistake Of Compulsion and Necessity 19 20 23 26 27 ibid. 28 Of the Incapacity of the Sovereign to commit Crime . . . . 32 CHAP. III. Of Peinoipam and Aooessoeies. Of a Principal in the First Degree . , , , . , , , 33 Of a Principal in the Second Degree ijj^ Of Accessories . . . , . . . . . , _ g^ Of Accessories before the Fact ... hk Of Accessories after the Fact ... q« Of the Punishment of Accessories .... oo CONTENTS OF THE FOUllTH VOLUME. xlix CHAP. rv. Op Offences against the Peeson and Reputation. Of Homicide Of Justifiable Homicide Of Excusable Homicide , . Of Felonious Homicide Of SeU-Murder Of Manslaughter Of Murder . . Of Attempts to Murder Of Conspiracy to Murder. . Of Acts causing Danger to Life or Bodily Harm . . Of Procuring Miscarriage Of Concealment of Birth Of Abduction of Females . . Of Rape . . .... Of Defilement or Abuse of Children Of Kidnapping and Child Stealing . . Of Abandoning Children . . Of Endangering Railway Paasengers Of Setting Spring G-uns, or destructive Engines Of Assaults, Batteries and False Imprisonment , . Of Bigamy . , Of Publication of a Libel Page 40 41 45 51 ibid. 54 67 69 70 ibid. 74 ibid. 75 77 82 83 , 84 85 , 86 ibid. . 88 90 CHAP. V. Of Opeenoes aoainst Rights op Peopbett ob aeising out op Conteaot. Of Arson Of Burglary Of Sacrilege and Housebreaking Of Larceny Of Larceny in a Dwelling-house Of Larceny in Ships, Wharfs, &o Of Larceny from the Person Of Assault with intent to Jlob Of Extorting Money by Threats, Accusations, &c. . . Of Larceny or Embezzlement by Clerks, Servants, &c. Of Larceny in relation to the Post Office Of Receiving Stolen Property Of Malicious Mischief Of Forgery •Of the Merchandise Marks Act, 1887 VOL. I. 94 98 106 107 117 118 ibid. 119 122 123 129 131 132 135 139 CONTENTS OF THE FOURTH VOLUME. CHAP, v.- PAttB Of Obtaining Money by False Personation HO Of Obtaining Money by False Pretences 141 Of Fraudulent Concealment of Deeds, or Falsification of Pedigree 142 Of Falsification of Accounts . . .. .. .. .. .. 143 Of Offences relating to the Coin . . . . . . . . . . ibid. Of Fraudulent Debtors 149 Of Cheating Hid. CHAP. VI. Op Opfenoes aqainsi Publio Obdeb, Intbbkai. and Extebnat. Of High Treason Of Misprision of Treason. . Of Discharging Fire Arms, &c., at the Queen Of Treason Felony Of Scandal against the Sovereign . . Of Prsemunire . . . , , , . . . Of Contempts against the Title of the Sovereign . . Of Contempts against the Crown's Ecclesiastical Supremacy Of Contempts against the Eoyal Palaces . . Of Maladministration of High Officers . . Of Selling Public Offices Of Offences relating to the Customs Of Offences relating to the Eoyal Stores, Ships, &o. Of Serving Foreign States . , . . , , , Of Desertion, or Seducing to Desert Of Unlawful Oaths, and Illegal Societies Of Miscellaneous Contempts against the Prerogative Of Riotously Demolishing Churches, Houses, &o. Of Destroying Game by Night Of Affrays . . , . , . , . , , Of Riots, Routs, and Unlawful Assemblies Of Tumultuous Petitioning , , Of Forcible Entry and Detainer Of Riding Armed . , . , , , Of Spreading False News Of False and Pretended Prophecies Of Challenges to Fight Of Offences against the Law of Nations Of the Violation of Safe Conducts . . Of Violating Rights of Ambassadors . , Of Piracy . , , . 151 166 167 IfiS 169 170 182 183 ibid. 184 185 ibid. 187 188 189 190 192 193 19S 197 199 202 203 ibid. 204 ibid. 205 ibid. 207 209 ibui^ CONTENTS OF THE FOUKTH VOLUME. CHAP. VII. Of Offences against Beuoion, Moeals and Public Contbnibnob. Of Apostasy Of Heresy . , . , . , . . , Of Blasphemy , , , , Of Eeviling the Ordinances of the Church Of Profane Swearing Of XlHiDg Pretended Witchcraft, &o. Of Religious Imposture . . . . , . Of Simony Of Profanation of the Lord's Day Of the Crime against Nature Of Selling Unwholesome Provisions Of Common Nuisances Of Lewdness Of Drunkenness Of Furious Driving Of Cruelty to Animals Of Cruelty to ChUdren Of Talring up Dead Bodies Of Refusing to serve a Public OfEce Of Vagrancy, &c , , . Page 213 215 219 ibid. 221 ibid. 223 ibid. ibid. 225 227 230 237 239 240 ibid. 242 244 245 ibid. CHAP. VIII. Of Offences affectino the Administration or Justice and the Maintenance of Public Obdeb. Of Stealing, Injuring and Falsifying Records Of Striking, or other Outrajre in the Superior Courts Of Intimidation of Parties or Witnesses Of Obstructing a Lawful Arrest or Process Of Escape and Prison-breach Of Rescue and aidiug Prisoners to Escape. . Of Taking a Rewai-d for Restoring Stolen Goods Of Compounding of Felony . , Of Misprision of Felony . . Of Compounding Informations and Misdemeanors Of Common Barratry Of Maintenance Of Champerty . . . , , , . . . . Of Conspiracy . , Of Perjury . . Of Bribery Of Bribery in Municipal Offices , , Of Negligence in Public Officers Of Oppression and Partiality Of Extortion (12 248 250 251 252 253 255 257 258 259 ibid. 260 261 262 263 266 269 271 272 ibid, ibid. lii CONTENTS OF THE FOURTH VOLUME. CHAP. IX. Of the Means of PEEVENnua Offences. Of Preventing the Commission of Crimes Of Security for Keeping the Peace . . Of Security for Good Behariour Of Probation of First Offenders Page 274 277 278 281 CHAP. X. Of CoUBTS op a CeIMINAIi jOTilSDICTION. Of the Courts of Criminal Jurisdiction in general Of the High Court of Parliament . . Of the Court of the Lord High Steward Of the Queen's Bench Division of the High Court of Justice Of the Jurisdiction in Admiralty Of the Assizes . . Of the Central Criminal Court Of the General Quarter Sessions Of the Coroner's Court . . Of the Sheriff's Toum {abolished) Of the Court Leet or View of Frankpledge . . Of the Court of the Clerk of the Market . . Of the Court of the Lord Steward of the Household . Of the University Covirts 283 ibid, 286 290 293 296 299 300 SOS 306 ibid. 308 309 ibid. CHAP. XI. Of Pkooebdinqs of a Stwiiaiit Natuee, and eebeut of Sttjimaet Convictions amb Attaohment. Of Summary Proceedings generally .. .. .. .. ..313 Of Revenue, &c. Proceedings . . . . . . . . . . ibid. Of Proceedings before Justices of the Peace .. .. .. ..314 Of Assault Cases . . . . . . . . , . . . . . 316 Of Summary Jurisdiction in Indictable Offences .. .. .. 316 Of the Proceedings before a Court of Summary Jurisdiction . . 320 Of the Process on Attachment for Contempt . . . . . . . , 323 CHAP. XII. Of Abbests on Cehiinax Ceaboeb. Of Arrests by "Warrant . . Of Arrests without a Warrant Of Hue and Cry , . 328 332 336- CONTENTS OF THE fOUKTH VOLUME. Ijii CHAP. XIII. Of CoioaTUEiiT and Baui. Pase Of the Examination before the Magistrate 338 Of Discharging Person charged 339 Of Bailing 34O Of Committing to Gaol • 342 Of Reoognizamoes to Prosecute and give Evidence 343 CHAP. XIV. Ov THE SETEEAL MoDES OF PBOSEOimON. Of a Presentment 344 Of an Indictment . . . . , . , , , . . , , , 345 Of an Information 356 In Cases of Newspaper Libels 361 Of the Autient Prosecution by Appeal 363 CHAP. XV. Op Pbooess : and heeedt op Cbetioeaei. Of Process after Indictment found 365 Of Capias and Bench Warrant ibid. Of Outlawry, and the Reversal thereof 367 Of Certiorari . . . , 369 CHAP. XVI. Of Aeeaionment and its Incidents. Of the Mode of Arraignment 373 Of Standing Mute 374 Of Confession . . . . . . , , . , . , . . , . 377 CHAP. XVII. Of Plea and Isbite. Of a Plea to the Jurisdiction 381 Of a Demurrer. . .. .. ,. .. .. .. .. ibid. Of a Plea in Abatement . . 383 Of a Special Plea in Bar . . . . . . . . , , . . ibid. Of the General Issue or Plea of Not Guilty 387 CHAP. XVIII. Of Teial and Contiotion. Of the Antient Methods of Criminal Trial 389 Of Trial of Peers in the Court of Parliament 397 Of Trial by Jury ibid. Of Certain Difierences between Civil and Criminal Evidence . . 406 Of Conviction 413 Of the Costs of the Prosecutor .. .. 415 Of Restitution of Gi}ods .. .. .. .. .. .. .. 417 liv CONTENTS or THE FOURTH VOLUME. CHAP. XIX. Of JtmOMBNT AND ITS CONSEQTIENCES. Of Motion in Arrest of Judgment Of Pronouncing and Recording Judgment Of Pines Of Imprisonment Of Whipping Of Penal Servitude Of Police Supervision Of Sentence of Death. . Oi Attainder Of Forfeiture on Attainder . . Of Forfeiture of Goods and Chattels . . Of the Difference between Forfeiture on Attainder and on ConviC' tion Paoe . 420 422 424 426 427 428 431 Hid. 432 ibid. 437 438 CHAP. XX. Of Betebsaii of Jitdciiient. Of Setting Aside or Reversing Judgment without Error Of Reversing by Writ of Error Of Effect of Reversing Judgment of Outlawry 441 442 443 CHAP. XXI. Of Repeibvb ahd Paedon. Of Reprieve Of Pardon 444 446 CHAP. XXII. Of Exectjiion. Of the Manner of carrying into Execution a Sentence of Death Of the Prerogative of the Crovm as to Mode of Execution 4S4 466 CONTENTS OF THE FOURTH VOLUME. Iv CONCLUSION. Ov THE Rise, Peoqbess, and Gbadttal Impbovbmbnt of the Laws OF Enqland. Page Of the Progress from the earliest Times to the Norman Conquest . . 458 Of the Progress from the Norman Conquest to Edward I. ,. 466 Of the Progress from Edward I. to the Keformation . . . , 476 Of the Progress from the Reformation to the Restoration ,. 481 Of the Progress from the Restoration to the Revolution . . . . 489 Of the Progress from the Revolution to the Present Time . . 491 TABLE OE STATUTES 499 GENERAL INDEX 637 INTEODUCTION. SECTION I. OF THE STUDY OF THE LAW. At tlie outset of a work like the present, in the course of which it is proposed (though with the aid, in part, of materials derived from a former writer) to bring under examination no less a subject than the entire body of the English law, the discouragement to which the writer is naturally inclined by the magnitude of the task before him, is counteracted by the recollection of its general interest and importance. The subject is one to which no class of readers in the realm can be indifferent ; [for it is incumbent upon every man to be acquainted with those laws at least with which he is immediately concerned, lest he incur the censure, as well as the inconvenience, of living in society without knowing the obligations which it lays him under. But it ought to have peculisir attrac- tions for men of liberal education and respectable rank. These advantages are given them, not for the benefit of themselves only, but also of the public : and yet they can- not, in any scene of life, discharge properly their duty either to the public or to themselves without some degree of knowledge iu the laws. To evince this the more clearly it may not be amiss to descend to a few particulars. Let us therefore begin with gentlemen of independent estates and fortune, the most useful as well as considerable VOL. I. B INTRODUCTION. [body of men in the nation ; whom even to suppose igno- rant in this branch of learning is treated by Mr. Locke as a strange absiirdity («) . It is their landed property, with its long and volumiaons train of descents and conveyances, settlements, entails, and incumbrances, that forms the most intricate and most extensive object of legal knowledge. The thorough comprehension of these, in all their minute distinctions, is perhaps too laborious a task for any but a lawyer by profession : yet still the understanding of a few leading principles relating to estates and conveyancing, may form some check and guard upon a gentleman's in- ferior agents, and preserve him at least from very gross and notorious imposition. Again, the policy of all laws has made some forms necessary in the wording of last wills and testaments, and more especially with regard to their attestation. An igno- rance in these, must always be of dangerous consequence to such as by choice or necessity compile their own testaments without any technical assistance. Those who have at- tended the coiirts of justice are the best witnesses of the confusion and distresses that are hereby occasioned in fami- lies; and of the difSculties that arise in discerning the true meaning of the testator, or sometimes in discovering any meaning at all : so that in the end his estate may often be vested quite contrary to these his enigmatical intentions, because perhaps he has omitted one or two formal words, which are necessary to ascertain the sense with indisputable legal precision, or has executed his will in the presence of fewer witnesses than the law requires. But to proceed from private concerns to those of a more public consideration. All gentlemen of fortune are, in consequence of their property, liable to be called upon to establish the rights, to estimate the injuries, to weigh the accusations, and sometimes to dispose of the lives of their fellow-subjects, by serving upon juries. In this («) Education, Sec. 187. SECT. I.J OF THE STUDY OF THE LAW. 3 [situation they have frequently a right to decide, and that upon their oaths, questions of nice importance, for the solution of which some legal skill is requisite ; especially where the law and the fact, as it often happens, are inti- mately blended together. And when juries are incapable of doing this with tolerable propriety, it tends proportion- ably to lower their authority and to throw more power into the hands of the judges, to direct, control, and even reverse their verdicts, than perhaps the constitution intended. But it is not as a juror only that the English gentleman is called upon to determine questions of right, and distri- bute justice to his feUow- subjects : it is principally with this order of men that the commission of the peace is filled. And here a very ample field is opened for a gen- tleman to exert his talents, by maintaining good order in his neighbourhood ; by punishing the dissolute and idle ; by protecting the peaceable and industrious : and, above all, by healing petty differences and preventing vexatious prosecutions. But, in order to attain these desirable ends, it is necessary that the magistrate should understand his business; and have not only the will, but the power also, (under which must be included the knowledge,) of administering legal and effectual justice. Else, when he has mistaken his authority, through passion, through ignorance, or absurdity, he will be the object of contempt from his inferiors, and of censure from those to whom he is accountable for his conduct. Yet farther ; most gentlemen of considerable property, at some period or other in their lives, are ambitious of representing their country in parliament ; and those, who are ambitious of receiving so high a trust, would also do well to remember its nature and importance. They are not thus honourably distinguished fi-om the rest of their fellow- subjects, merely that they may list imder party banners ; may grant or withhold supplies ; may vote with or vote agarast a popular or unpopular administration ; but upon b2 4 INTRODUCTION. [considerations far more interesting and important. They are the guardians of tlie English constitution ; the makers, repealers, and interpreters of the English laws ; delegated to watch, to check, and to avert eyery dangerous inno- vation ; to propose, to adopt, and to cherish any solid and well-weighed improvement : bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to their posterity, amended if possible, at least without any derogation. And how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of the old ! what kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments ! Indeed it is perfectly amaaing that there should be no other state of life, no other occupation, art, or science, in which some method of instruction is not looked upon as req[uisite, except only the science of legislation, the noblest and most difficult of any. Apprenticeships are held necessary to almost every art, commercial or me- chanical : a long course of reading and study must form the divine, the physician, and the practical professor of the laws : but every man of superior fortune thinks him- self born a legislator. Yet Cicero was of a different opinion : " it is necessary," says he, " for a senator to be thoroughly acquainted with the constitution ; and this," he declares, " is a knowledge of the most exten- sive nature ; a matter of science, of diligence, of reflection ; without which no senator can possibly be fit for his office" (6). The mischiefs that have arisen to the public from in- considerate alterations in our laws, are too obvious to be called in question ; and how far they have been owing to the defective education of our senators, is a point weU worthy the public attention. The common law of Eng- (J) " Mst senatori neeessarium nosse memorice eat; sine quo parattis esse rempuUioam; idqtie late patet : — senatornullo pacto potest." De Leg. genus hoc omne scimtite, dittgentiee, 3, 18. SECT. I.] OF THK STUDY OF THE LAW. 5 [land has fared like other venerahle edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modem im- provement. Hence frequently its symmetry has been destroyed, its proportions distorted, and its majestic sim- plicity exchanged for specious emhellishments and fan- tastic novelties. For, to say the truth, almost all the per- plexed questions, almost all the niceties, intricacies, and delays, (which have sometimes disgraced the English, as well as other courts of justice,) owe their original, not to the common law itself, but to innovations that have been made in it by acts of parliament, "overladen" (as Sir Edward Ooke expresses it) "with provisoes and additions, and many times on a sudden penned or corrected hy men of none or very little judgment in law" (c). This great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law ; and warmly laments the confusion introduced by ill- judging and unlearned legislators. " But if," he subjoins, " acts of parliament were, after the old fashion, penned by such only as per- fectly knew what the common law was before the making of any act of parliament concerning that matter, as also how far former statutes had provided remedy for former mischiefs and defects discovered by experience ; then should very few questions in law arise, and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, be- tween insensible and disagreeing words, sentences, and provisoes, as they do now." And if this inconvenience was so strongly felt in the reign of Elizabeth, it is easy to judge that the evil is greatly increased in our own times when our statutes have become so much more numerous and complicated. Again, what is said of gentlemen in general, and the (c) 2 Eep. Pref . 6 INTRODUCTION. [propriety of their appKcation to the study of the laws of their country, is equally applioahle to the nobility of this realm, except only in the article of serving upon juries. On the other hand, they have peculiar provinces of far greater consequence and concern ; as they are not only by birth hereditary counsellors of the crown, but are also judges upon their honour of the lives of their brother- peers {d). The Eoman pandects wiU furnish us with a piece of history not unapplicable to our present purpose. Servius Sulpicius, a gentleman of the patrician order, and a cele- brated orator, had occasion to take the opinion of duintus Mutius Sosevola, the then oracle of the Eoman law ; but, for want of some knowledge in that science, could not so much as understand even the technical terms of which his friend was obliged to make use. Upon which Mutius Scsevola could not forbear to upbraid him with this me- morable reproof, " that it was a shame for a patrician, a nobleman, and an orator of causes, to be ignorant of that law in which he was so peculiarly concerned" (e). This [d) Blaokstone here adds some House of Lords are still, of ooTxrse, further remarks on tlie same Head, true ; but, "with reference to the par- grounded on the fact of the no- tieular subject under discussion, are bility, as members of the House of now somewhat beside the purpose. Lords, being the arbiters of the Indeed, long before the alterations property of aU their fellow-sub- in the constitution of the court of jects ; and that in the last resort. ultimate appeal, effected by the "In this their judicial capacity," Appellate Jurisdiction Act, 1876 he proceeds, "they are bound to (39 & 40 Vict. 0. 59) — as to which, decide the nicest and most critical information will be found hereafter parts of the law. Their sentence in its proper place in this work (vide is final, decisive, irrevocable. No post, bk. v. ch. vi.) — it had long appeal, no correction; not even a ceased to be the practice for the review can be had ; and to their lay lords to take any practical part determination, whatever it may be, in the proceedings on an appeal to the inferior courts of justice must the House from the decision of the conform, otherwise the rule of jus- other courts of justice, tioe would no longer be uniform (e) Ff. 1, 2, s. 43. " Turpe ease and steady." patricio, et noUli, et causas oranti, These observations as to the jus in quo versaretur iffnorare." finality of the sentences of the SECT. I.] OF THE STUDY OF THE LAW. 7 [reproach made so deep an impression on Sulpicius, that he immediately applied himself to the study of the law, wherein he arrived to that proficiency, that he left behind him about a hundred and four-score volumes of his own compiling upon the subject; and became, in the opinion of Cicero, a much more complete lawyer than even Mutius Scsevola himself (/), It will be idle to recommend to our English nobUity and gentry to become as great lawyers as Sulpicius; though he, together with this character, sustained likewise that of an excellent orator, a firm patriot, and a Avise and indefatigable senator : but the inference which arises from the story is this, — that ignorance of the laws of the land hath ever been esteemed dishonourable in those who are entrusted by their country to maintain, to administer, and to amend them. Nor will some degree of legal knowledge be found in the least superfluous to persons of inferior rank, especially those of the learned professions. The clergy, in particular, besides the common obligations they are under in propor- tion to their rank and fortune, have also abundant reason, considered merely as clergymen, to be acquainted with many branches of the law, which are almost peculiar and appropriated to themselves alone. Such are the laws re- lating to advowsons, institutions, and inductions ; to simony, and simoniacal contracts; to uniformity, residence, and pluralities ; to tithes and other ecclesiastical dues ; to mar- riages, and to a variety of other subjects, which are con- signed to the care of their order by the provisions of particular statutes. To understand these aright, to dis- cern what is warranted or enjoined, and what is forbidden by law, demands a sort of legal apprehension, which is no otherwise to be acquired than by use, and a familiar acquaintance with legal writers.] To gentlemen of the faculty of physic the study of the {/) Brut. 41. 8 INTRODUCTION. law is attended with some importance, not only to com- plete their character for general and extensive knowledge, a character which their profession has always remarkably deserved, but also to enable them to give more satisfactory evidence in a variety of oases in which they are Hable to be examined as witnesses. The frequent combination of medical with legal considerations, upon inquiries relative to suspected murder or doubtful sanity, and other points of the like nature, has given birth to a sort of mixed science, known by the name of Forensic Medicine, or Medical Jurisprudence, which may be considered as common ground to the practitioners both of law and of physic. [But those gentlemen who profess the civil and eccle- siastical laws are of all men (next to common lawyers) the most indispensably obliged to apply themselves seriously to the study of our municipal laws. For the civil and canon laws, considered with respect to any intrinsic obli- gation, have no force or authority in this kingdom ; they are no more binding in England than our laws are binding at Rome. But as far as these foreign laws, on account of some peculiar propriety, have in some particular cases been introduced and allowed by our laws, so far they oblige, and no farther ; their authority being wholly founded upon that permission and adoption. And in those cases wherein a reception has been thus allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending themselves to other matters than are permitted to them, or if the judges proceed according to the decisions of those laws, in cases wherein it is controlled by the law of the land, the common law in either instance both may, and frequently does, prohibit and annul their proceed- ings {g) : and it will not be a sufficient excuse for them to allege that such or such a practice is warranted by the laws of Justinian or Gregory, or is conformable to the decrees {g) Hale, Hist. 0. L. 2 ; Selden in Fletam ; 5 Eep., Caudrey's case ; 2 Inst. 599. SKCl'. I. j OF THE STUDY OF THE LAW. 9 [of the Rota or imperial chamber. For which reason it becomes highly necessary for everyone who would act with safety as a judge, or with prudence and reputation as an advocate, to know in what cases and how farthe English laws have given sanction to the Eoman ; in what points the latter are rejected ; and where they are both so intermixed and blended together as to form certain supple- mental parts of the common law of England, distinguished by the titles of the maritime and the ecclesiastical law.] The general use and necessity of some acquaintance with the common law being thus apparent, it may natu- rally be supposed that some provision would antientfy have been made for this, as for other branches of education, in the universities of Oxford and Cambridge. The reverse, however, is the fact — ^the study of the common law having until recent times been wholly neglected in those venerable seats of learning, and having been cultivated from the earliest period in a different region. How this came to pass will appear from the following retrospect. [Sir John Fortescue, in his panegyric on the laws of England, (which was written in the reign of Henry the sixth,) puts a very obvious question in the mouth of the young prince, whom he is exhorting to apply himself to that branch of learning : " Why the laws of England, being so good, so fruitful, and so commodious, are not taught in the universities, as the civil and canon laws are ? " (A). In answer to which he gave what seems, with due deference be it spoken, a very jejune and unsatisfac- tory reason ; being, in short, that " as the proceedings at " common law were in his time carried on in three difie- " rent tongues, the English, the Latin, and the French, "that science must be necessarily taught in those three " several languages ; but that in the universities all " sciences were taught in the Latin tongue only ;" and therefore he concluded " that they could not be conve- (A) C. 47. 10 INTRODUCTION. [" niently taught or studied in our universities " («)• But without attempting to examine seriously the validity of this reason, we perhaps may find out a better, or at least a more plausible account, why the study of the municipal laws was so long banished from these seats of science, than what the learned chancellor thought it prudent to give to his royal pupil. That antient collection of unwritten maxims and cus- toms, which is called the common law, however com- poimded, or from whatever fountains derived, had subsisted immemorially in this kingdom ; and, though somewhat altered and impaired by the violence of the times, in great measure weathered the rude shock of the Norman Conquest. This endeared it to the people in general, as well because its decisions were universally known, as because it was found to be excellently adapted to the genius of the English nation. In the knowledge of this law consisted great part of the learning of those dark ages : it was then taught, says Mr. Selden, in the monas- teries, in the universities, and in the families of the prin- cipal nobility (k). The clergy, in particular, as they then engrossed almost every other branch of learning, so (Hke their predecessors, the British Druids) were peculiarly remarkable for their proficiency in the study of the law [l). Nullus clericus nisi causidicus, is the character given of them soon after the Conquest, by William of Malmsbury (m) . The j udges therefore were usually created out of the sacred order {n), as was likewise the case among the Normans (o) ; and all the inferior offices were supplied by the lower clergy, which occasioned their successors to be denominated clerks, as they are to this day. (j) C. 48. vesques, evesques, Us chanoines des (A) In Fletam, 7, 7. eglises cathedrawlx, et lea aulires (?) Csesar de Bello Gal. 6, 12. personnes qui ont dignitez en samcte (»j) De Gest. Reg. 1. 4. egUse ; les abiez, les prieurs con- in) Dugdale, Orig. Jurid. o. 8. ventuaulx, et les gouvemeurs des (o) " Zesjttges sont sages personnes eglises, $c." — Grand Ooustmnier, et autentiqttes, — sicomme les arche- oh. 9. SECT. I.] OF THE STUDY OF THE LAW. 11 [But the common law of England, being not committed to writing, but only banded down by tradition, use, and experience, was not so heartily relished by the foreign clergy, who came over hither in shoals during the reign of the Conqueror and his two sons, and were utter strangers to our constitution as well as to our language.] And it was nearly brought to ruin by the new impulse given in the 12th century to the study of the system of Eoman law compiled by Justinian, and its consequent reception over aU the west of Europe; where, previously, it had pos- sessed, in general, no authority, and had fallen almost into oblivion {p). [Hence that law became in a par- ticular manner- the favourite of the popish clergy, who borrowed the method and many of the maxims of their canon law from this original. The study of it was intro- duced into several universities abroad, particularly that of Bologna, where exercises were performed, lectures read, and degrees conferred in this faculty, as in other branches of science ; and many nations on the continent, just then beginning to recover from the convulsions consequent upon the overthrow of the Eoman empire, and settling by degrees into peaceable forms of government, also adopted the civil law as the basis of their several constitutions ; blending and interweaving it among their own feodal customs, in some places with a more extensive, in others with a more confined authority {q). Nor was it long before the prevailing mode of the times reached England : for Theobald, a Norman abbot, being [p) Hallam's Middle Ages, 3rd evidence that any suoK discovery vol. p. 613; 1 Bla. Com. 18; 1 took place. (See Hallam, ubi sup. ; Reeves, Hist. Eng. Law, p. 66. and Histoire du Droit Remain au It has been said (and the opinion Moyen-Age, par M. De Savigny, is adopted by Blackatone) that this oh. xviii. s. 35, ch. xxii. ss. 164, revival was o^wing to the accidental 167.) discovery of a copy of the Pandects (y) Domat's Treatise of Law, u. at the capture of Amalfi by the 13, § 9 ; Epistol. Innocent. IV. in Pisans, about the year 1130. But M. Paris, a.d. 1254. there appears to be no sufficient 12 INTRODUCTION. [elected, in the year 1138, to the see of Canterbury, and being extremely addicted to this new study, brought over with him in his retinue many learned proficients therein ; and among the rest, Roger, surnamed Vacarius, whom he jdaced in the university of Oxford to teach it to the people of this country (r). But it did not meet with the same easy reception in England, where a mild and rational system of laws had been long established, as it- did upon the continent ; and though the monkish clergy, devoted to the will of a foreign primate, received it with eagerness and zeal, yet the laity, who were more interested to pre- serve the old constitutions, and had already severely felt the effect of many Norman innovations, continued wedded to the use of the common law. King Stephen imme- diately published a proclamation forbidding the study of the laws then newly imported from Italy (s) : but this, which was treated by the monks as a piece of impiety (t), though it prevented the introduction of the civil law pro- cess into our courts of justice, yet did not hinder the clergy from reading and teaching it in their own schools and monasteries. From this time the nation seems to have been divided into two parties ; on the one hand, the bishops and clergy, many of them foreigners, who applied themselves wholly to the study of the civil law and that of the Eoman church (or canon law), which two systems now came to be inse- parably interwoven with each other; and, on the other hand, the nobility and laity, who adhered with equal pertinacity to the old common law : both of them reci- procally jealous of what they were unacquainted with, and neither of them, perhaps, allowing the opposite system that real merit which is abundantly to be found in each. This appears, on the one hand, from the (»•) Gervaa. Dorotem. Act. Pon- and 8 Eep. Pref . tif. Cantuar. Ool. 1665. (<) Joan. Sarisburiens. Polyorat. (s) Bog. Bacon, citat. per Selden 8, 22. in Fletam, 7, 6 ; in Forteso. o. 33 ; SECT. l.J OF THE STUDY OF THE LAW. 13 [spleen with which the monastic writers speak of our municipal laws upon aU occasions (u) ; and, on the other, from the firm temper which the nobility shewed at the famous parliament of Merton, when the prelates endea- voured to procure an Act to declare all bastards legiti- mate in case the parents intermarried at any time after- wards: alleging this only reason, because holy church (that is, the canon law,) declared such children legitimate ; but " all the earls and barons " (says the parliament-roll) " with one voice answered, that they would not change the laws of England, which had hitherto been used and ap- proved "(«). And we find the same jealousy prevaiLuig above a century afterwards, in the reign of Richard the second, when the nobihty declared, with a kind of pro- phetic spirit, " that the realm of England hath never been imto this hour, — neither by the consent of our lord the king, and the lords of parliament, shall it ever be, — ^ruled or governed by the civil law" (y). And of this temper between the clergy and laity many more iastances might be given. While things were in this situation, the clergy, finding it impossible to root out the municipal law, began to with- draw themselves by degrees from the temporal courts ; and to that end, very early in the reign of King Henry the third, episcopal constitutions were published, for- bidding all ecclesiastics to appear as advocates in fm'o scEculari {z). Nor did they long continue to act as judges there, not caring to take the oath of oiBce which was then found necessary to be administered, that they should in all things determine according to the law and custom of this realm (a) : though they still kept possession of the high (m) Ibid. 6, 16 ; Polydor. Virgil, Merton, 20 Hen. 3, o. 9. Hist. 1, 9. W Selden, Jan. Anglor. 1. 2, (a;) "Mt omnes comites et barones § 43; in rortesc. e. 33. tma voce responderunt, quod nolunt (s) WiUrins, Coneil. vol. i. pp. Uges Anglite mutare, quce hucusque 574, 699. uaitata sunt et approbate." Stat. (a) Selden in Fletam, 9, 3. 14 INTRODUCTION. [office of chancellor, and of the court of chancery attached to it, a court then of little juridical power; and afterwards, as its business increased by degrees, they modelled the process of this court at their own discretion. " But wherever they retired, and wherever their autho- rity extended, they carried with them the same zeal to introduce the rules of the civil, in exclusion of the muni- cipal law. This appears in a particular manner from the spiritual courts of all denominations, as well as from the high court of chancery before mentioned ; in all of which the proceedings were conducted in a course much con- formed to the civil law; for which no tolerable reason can be assigned, unless that these courts were aU under the immediate direction of the popish ecclesiastics, among whom it was a point of religion to exclude the municipal law ; Pope Innocent the fourth having forbidden the very reading of it by the clergy, because its decisions were not founded on the imperial constitutions, but merely on the customs of the laity. And if it be considered that our universities began about that period to receive their present form of scholastic discipline ; and that they were then, and continued to be till the time of the Eefor- mation, entirely under the influence of the popish clergy; this will lead us to perceive the reason why the study of the Eoman laws was in those days of bigotry pursued with such alacrity in these seats of learning ; and why the common law was entirely despised, and esteemed little better than heretical. And after the Eeformation, many causes conspired to prevent its becoming a part of academical education: as, first, long usage and established custom, which, as in everything else, so especially in the forms of scholastic exercise, have great weight and authority. Secondly, the real intrinsic merit of the civil law, considered upon the footing of reason and not of obligation, which was well known to the instructors of our youth; and their total ignorance of the merit of the common law, though its SECT. I,] OP THE STUDY OF THE LAW. 15 [equal at least, and perhaps an improvement on the other. But the principal reason of all that hindered the intro- duction of this branch of learning, was, that the study of the common law, being banished from our universities in the times of popery, fell into a quite different channel, and was wholly cultivated in another place. For, being then entirely abandoned by the clergy, a few stragglers excepted, the study and practice of it devolved of course into the hands of laymen ; who enter- tained upon their parts a most hearty aversion to the civil law, and made no scruple to profess their contempt, nay, even their ignorance of it, in the most public manner (6). But still, as the balance of learning was greatly on the side of the clergy, and as the common law was no longer taught, as formerly, in any part of the kingdom, it must have been subjected to many incon- veniences, and perhaps would have been gradually lost and overrun by the civil, — a suspicion well justified from the frequent transcripts of Justinian to be met with in Braoton and Fleta, — had it not been for a peculiar inci- dent, which happened at a very critical time, and con- tributed greatly to its support. The incident referred to was the fixing the Court of Common Pleas, the grand tribunal for disputes of pro- perty, to be held in one certain spot ; so that the seat of ordinary justice might be permanent and notorious to all the nation. Formerly this court, in conjunction with all the other superior courts, was held before the king's chief justiciary of England, va. the aula regis, or such of his palaces wherein his royal person resided ; and removed, with his household, from one end of the kingdom to the other. This was found to occasion great inconvenience to suitors ; to remedy which it was (in the thirteenth century) made an article of the great charter of liberties, both that of King John and that of Kiag Henry the [b) Fortesc. de Laud. LL. c. 25. 16 INTRODUCTION. [third, that " Common Pleas should no longer follow the king's court, but he held in some certain place ; " in con- sequence of which they were continuously thereafter held (a few necessary removals in times of the plague excepted) in the palace of Westminster only. This brought together the professors of the municipal law, who before were dispersed about the kingdom, and formed them into an aggregate body; whereby a society was established of persons, who (as Spelman obserres) addicted themselves , wholly to the study of the laws of the land (c) ; and, no longer considering it as a mere subordinate science for the amusement of leisure hours, soon raised those laws to that pitch of perfection, which they suddenly attained under the auspices of our English Justinian, King Edward the First. In consequence of this lucky assemblage, they naturally fell into a kind of collegiate order, and, being excluded from Oxford and Cambridge, found it necessary to esta- blish a new university of their own. This they did by purchasing at various times certain houses (now called the inns of court and of chancery) between the city of West- minster, (the place of holding the king's courts,) and the city of London ; for advantage of ready access to the one, and plenty of provisions in the other (d). Here exercises were performed, lectures read, and degrees were at length conferred in the common law, as at other universities in the canon and civil (e). The degrees were those of bar- risters, at first styled apprentices {apprenticii ad legem), who answered to the bachelors : and those of Serjeants {servientes ad legem), who answered to the doctors of the universities (/). The crown seems to have soon taken under its protection (c) Q-losaar. 334. law is now conferred either at {. (q) Co. Litt. 140 a. Bagshaw, Cro. Car. 347 ; see also (»•) The dootrine of escheat on a Pulling on the Laws and Customs conviction for felony is, however, of London, p. 2. now abolished altogether. (See 33 62 INTRODUCTION. far as they related to the distribution of the estates of intestates, have been recently abolished (t). To this head has also sometimes been referred that branch of the law which comprises the rales relative to bills of exchange, partnerships, and other mercantile matters, and which body of rules is generally denominated the custom of merchants (u), or the law merchant. As its character, how- ever, is not local, nor its obligation confined to any particular district, it cannot with propriety be considered as a special custom in the technical sense to which we now refer (»). It is, in truth, a part of the general law of England (y) : and it is distinguished by a separate name, because it applies, to the particular subjects in question, principles more or less different from those which the common law ordinarily recognizes in other matters ; and also because these principles were engrafted into our municipal system by gradual adoption from the lex mercatoi~ia, or general body of European usages in matters relating to com- merce («). For the same reason the usages of particular trades, when not restrained to some limit in point of place, must be excluded from the technical idea of a custom. If there be any such usage of immemorial observance, and authenti- cated by judicial decision, it will form, according to our definition, part of the general law of England ; if there be any sanctioned by act of parliament, it will constitute part of the statute law; but for the rest, the want of any peculiar locality determines them to be no customs, and they are consequently no rules of law at aU. Yet, as {!!) 19 & 20 Viot. c. 94. WiUes, 561. See also Benson v. {«) 1 Bl. Com. 76. Chapman, 8 C. B. (N. S.) 967, in {x) Co. Litt. 115 h. noiia. [y) Per Holt, 0. J., Hussey v. («) The lex menatoria, or law Jacob, Ld. Eaym. 88 ; per Forster, merchant, is mentioned in some of J., Edie V. East India Company, 2 our earlier statutes. (See 27 Bdw. 3, Burr. 1226 ; 1 Bl. Hep. 299, S. C. ; st. 2, cc. 8, 19, 20.) 2 Inst. 58 ; Stone v. RawUnson, SECT, III.] OF THE LAWS OF ENGLAND. 63 matters of fact, they are very necessary to be considered ; for as the prevalence of any certain course of dealing among men leads to the presumption that in particular instances they intend to conform to it, the existence of such usages as these may often bear materially upon the question, whether an implied contract to the effect of the trade usage was not entered into between the parties ; and also upon the question in what sense their express contract is to be imderstood («). The rules relating to particular or special customs regard either the proof of their existence, or their allow- ance as good and legal, when proved. And first we will consider the rules of proof. As to the modes of descent in gavelkind, and borough- Bnglish, the law takes notice of them ; and there is no occasion therefore to prove such customs, but only to prove that the lands in question are subject thereto {h). But with respect to most special customs, their existence must be shown, and not merely that the thing in dispute is within the custom. [The trial in both cases — both to show the existence of the custom, as, " that in the manor of {a) Tlie la-w on this subject has 921 ; TomMns v. Lyon, 3 App. been recently much discussed in Ca. 213 ; Seymour v. Bridge, 14 relation to the rules of the Stock Q. B. D. 460 ; and Perry v. Bar- Exchmge. See Cropper v. Cook, nett, 14 Q. 'B. D. 467, affirmed on Law Eep., 3 0. P. 194 ; GrisseU v. appeal, 15 Q. B. D. 388; and see Bristowe, ib. 4 C.P. 36 ; Mollettj'. Easton v. London Joint Stock Bobinson, ib. 5 C. P. 646 ; Allen v. Bank, 34 Oh. Div. 96— on appeal. Graves, ib. 5 Q. B. 478 ; Bowring ml nam., Earl of Sheffield v. V. Shepherd, ib. 6 Q. B. 309; London Joint Stock Bank, 1 3 App. Maxted v. Paine, ib. 6 Exch. 132 ; Oa. 333,— as to an alleged custom Duncan v. Hill , ib. 286 ; Hodgkin- of trade in the city of London son V. Kelly, ib. 6 Eq. Ca. 496 ; entitling money-lenders to pledge Eennie v. Morris, ib. 13 Eq. Oa. their customer's securities en bloc 203; Coles v. Bristowe, ib. 4 for their own debts. Oh. App. 3 ; Hawkins v. Maltby, (A) Co. Litt. 176 ; Tear Book, 36 ib. 200; Cruse v. Paine, ib. 441 ; Hen. 6, 20, 21; see Consuet.KantisB Merry I. Nichols, ib. 7 Ch. App. (17 Edw. 2, st. 1, o. 16) ; 4 & 5 Vict. 733 ; Lacy v. Hill, ib. 8 Oh. App. o. 35, s. 80. 64 INTEODUCTION. [Dale lands shall descend only to the heirs male, and never to the heirs female ; " and also to show " that the lands in question are within that manor," — ^is by a jury of twelve men, and not by the judges ; unless the same custom has been before tried, determined, and recorded in the same court (c) . The customs of London, so far as they continue, differ from all others in point of trial ; for if the existence of the custom be brought in question, it shall not be tried by a jury, but by a certificate from the lord mayor and aldermen by the mouth of their recorder {d) ; uDless indeed it be such a custom as the corporation is itself interested in — as a right of taking toU — for then the law permits them not to certify on their own behalf (e). When a custom is actually proved to exist, the next inquiry is into the legality of it ; for if it is not a good custom it ought to be no longer used ; " Mains usus dbo- lendus est" is an established maxim of the law (/).j As to the legality of a custom, the following rules are established : 1. It must have been used so long, that the memory of man runneth not to the contrary. TJpon this subject, however, it is material to recollect what has been before laid down, that the time of memory as regards the validity of a custom, or (as it is sometimes expressed) the time of legal memory, has received a peculiar technical limitation, and refers to so remote a date as the com- mencement of the reign of King Richard the first {g). So that if an usage can be shown to have first commenced at any time since that era, it is void as a custom ; though, in the absence of such proof, its observance for a long time, and as far back as the evidence reaches, will amount to (c) Dr. & St. 1, 10. C. B., in Coxi). Mayor of London, ((?) See Appleton v. Sloughton, 1 Hurls. & Colt. p. 356. Cro. Car. 616 ; Pltunmer i>. Ben- (e) Day v. Savsidge, Hob. 85. tham, 1 Burr. 248 ; Blaoqniere v. (/) Litt. § 212; 4 Inst. 274. Hawkms, Dougl. 378 ; Westoby ». {g) Co. Litt. 115 a ; et vide sup. Day, 2 EU. & Bl. 605 ; per PoUook, p. 50. SECT. III.J OF THE LAWS OF ENGLAND. 65 presumptive proof of its having prevailed duriag the ■whole period of legal memory (A). It is important also to bear in mind that this principle, by which a custom is required to be immemorial, is materially qualified in many cases by a modern statute, 2 & 3 Will. IV. c. 71 ; which, as to certain customary and prescriptive rights claimed over the lands of other persons, (such as rights of common, or of way, and the like,) provides that these rights shall be deemed sufficiently established by proof of the un- interrupted enjoyment thereof as of right in some cases for thirty, in others for twenty years ; and shall not be defeated (where such enjoyment can be proved) by showing merely that the enjoyment thereof commenced within the time of legal memory (i). 2. A custom must also have been continued. Any inter- ruption would cause a temporary ceasing thereof, and the revival of it would give it a new beginning, which would be within, the time of legal memory, and thereby the cus- tom would be void. But this must be understood with regard to an interraption of the right; for a temporary interruption of the possession only will not destroy the custom {k). As if the inhabitants of a parish have a cus- tomary right of watering their cattle at a certain pool, the custom is not destroyed though they do not exercise the right for ten years ; the right only becomes in such a case more difficult to prove : but if the right be any how dis- continued, even for a day, the custom is quite at an end. 3. A custom must have been peaceable, and acquiesced in; not subject to contention and dispute (/). For cus- toms seem to derive their authority from their allowance at some remote period, by common consent : and where the practice or usage has been immemorially disputed, the evidence of this consent is wanting (m). {h) Rex V. Joliffe, 2 Bam. & (/c) Co. Litt. 114. Ores. S4. W I^i. Bokenham, 11 Mod. {t) 1 Roll. Abr. 560 ; Hickman 161 ; Denn v. Spray, 1 T. R. 466. V. Thome, 2 Mod. 104. f2 OO IKTKODUCTION. [But this custom does not empower him to use any other conveyance, for the custom must be strictly pursued.] Yet if there be a custom in a manor that a man may convey his copyhold in fee simple, this will also enable him to convey for life, or any other estate ; for the less is • implied in the greater ; and though customs must be strictly, yet they need not in every case be hteraUy, con- strued («). 9. Lastly, it is to be understood that no custom can prevail against an express act of parliament (y). There- fore an alleged custom, that every pound of butter sold in a certain market must weigh eighteen ounces, was held to be void, on the ground that there was an act which directed that throughout the kingdom there should be six- teen ounces to the pound (z). And thus much for the second part of the kges non scriptce, or those particular or special customs which affect particular districts only. Let us next proceed to the leges scripfm, the written laws of the kingdom (a) ; which are statutes, acJts, or edicts, made by the sovereign, by and with the advice and consent of the lords spiritual and temporal, and commons, in parliament assembled (J). The oldest of these now extant and printed in our statute books is the famous Magna Charta of king John, as confirmed in parlia- ment (c). {x) Co. Cop. § 33. This Ijmita- whether to assign them to the tion of the rule is noticed in Cole- reign of Hen. 3, of Edw. 1, or of ridge'sBlaokstone, vol.i.p. 79; and Edw. 2) are termed incerti tem- see Denn v. Spray, 1 T. R. 466. ^om,— compose what have been (y) Co. Litt. 113 a. called the Vetera Statuta; those («) See Noble v. DureU, 3 T. E. from the beginning of the reign of 271. Edw. 3 being contradistingnished (b) Vide sup. p. 45. by the appellation of the Nova (i) The Prince's Case, 8 Rep. 20. Statuta. (Dwarris on Statutes, (c) 25 Edw. 1. The statutes 626.) It may be observed, that from Magna Charta down to the by 19 & 20 Vict. c. 64; 24 & 25 end of Edw. 2 — including also Vict. c. 101 ; 26 & 27 Vict. c. 125 ; some which (because it is doubtful 30 & 31 Vict. c. 69 ; 33 & 34 Viet. SECT. III.] OF THE LAWS OF ENGLAND. 69 The manner of making these statutes will he hetter considered hereafter, when we examine the constitution of parliament. At present we will only take notice of the difiPerent kinds of statutes ; and of the rules of law with regard to their effect and construction {d). 0. 69 ; 34 & 35 Vict. o. 116 ; 35 & 36 Vict. 0. 63, c. 97, o. 98 ; 36 & 37 Vict. 0. 91 ; 37 & 38 Vict. oo. 35, 96 ; 38 & 39 Vict. o. 66 ; 39 & 40 Vict. c. 20 ; 41 & 42 Vict. c. 79 ; 42 & 43 Vict. c. 59 ; 44 & 46 Vict. o. 69 ; 46 & 47 Vict. c. 49 ; 50 & 51 Vict. u. 69 ; and 51 & 52 Viot. co. 3, 57, — a variety of Acta not in use or in force, or now unnecessary, are expressly repealed ; and it may be further observed, that with a view to shortening the language of acts of parliament, various provisions are contained in the Interpretation Act, 1889 (62 & 53 Viot. c. 63), giving to short expressions (such as "Board of Trade," "High Court," "borough," "colony," &o.) the fuU effect of the longer and (in many cases) verbose ex- pressions or descriptions formerly in use, and providing (among other things) for the omission of the enacting words theretofore customarily repeated at the begin- ning of each section of the Act. (rf) The method of citing acts of parliament has been various. Many of the antient ones are called after the name of the place where the parliament was held that made them; — as the statutes of Merton and Marlborough, of Westminster, Gloucester and Winchester. Others are named after their subject ; — as the statutes of Wales and Ireland, the artiouH cleri and the prterogativa regis. Some are distinguished by their initial words, as the statute of Quia emptores, and that of Cir- etimapecti agatis. But the most usual method (until recent years) has been to name the year of the reigning sovereign and the chapter or particular Act, according to its numeral order ; — as, 9 Geo. 2, c. 4, — all the Acts of one session of par- liament taken together making pro- perly but one statute, so that when two sessions are held in one year, we usually say stat. 1 or 2, the BiU of Eights, e.g., being cited as 1 W. & M. st. 2, 0. 2. But it has latterly become the common plan to insert in the Act a name referring to its subject-matter and date by which it shall be legal to cite it without further particularity, e.g., "The PubUc Health Act, 1875 ;" and this plan is expressly recognised by the Interpretation Act, 1889 (52 & 63 Vict. c. 63). It may be worth re- marking here that it has been held that the title is no part of an Act. (See Att.-Geu. ». Weymouth, Amb. 22 ; Jeffries v. Alexander, 8 H. of L. Gas. 603, n.) As to the marginal notes appended to each section, see Claydon v. Green, Law Eep., 3 0. P. 511; Venour v. Sellon, 2 Ch. D. 525, remarked upon in Sutton ». Sutton, 22 Ch. Div. 511. As to the preamile, see Rex v. Pierce, 3 M. & S. 62 ; Salkeld v. Johnson, 1 Hare, 196. As to the subheadings of particular sections, see Hammersmith Eail. Co. v. Brand, Law Eep., 4 H. of L. Cas. 171. 70 INTRODUCTION. First, as to their several kinds. Statutes are either puhlio or private (e). Thus, the statute 13 Elii:. c. 10, which prohibits the master and fellows of any college, the dean and chapter of a cathedral, or any other person having a spiritual living, from makiag leases for longer terms than twenty-one years or three Hves, is a puhKc act (J) ; it being a rule prescribed to spiritual persons in general: but an act to enable the Bishop of Chester to make a lease to A. B. for sixty years concerns only the parties and the bishop's successors, and is therefore a private act. Again, of private acts, some are local, as affecting particular places only, others personal, as confined to particular persons (gr). Of the first kind, an inolosure act is an example ; of the second, an act for a change of name ih). With respect to the distinction between public and private statutes, it is to be observed that the courts are bound to take notice judicially of the former, but they were not bound to take judicial notice of the latter ; how- ever, by 13 & 14 Viet. c. 21, every statute made after the year 1850 was to be taken to be a public one, and judicially noticed as such, unless the contrary was therein expressly declared («') ; and that statute has now been repealed by the Interpretation Act, 1889 {k), and in lieu thereof it has (c) As to the law of public and at all. (See 5 & eViot. o. 97, s. 6 ; priyate Acts, see Lord Cromwell's Barnett v. Cox, 9 Q. B. 617.) case, 4 Eep. 13 a ; Holland's case, (Ji) 'We find also in our books ib. 76 a; Kirk v. Nowill, 1 T. E. some Acts termed ^ot«-«? and others 125 ; Samuel v. Evans, 2 T. E. 669. particular ; as to -which it may be Thus, too, the Eoman lawyers dis- observed, that one of the latter class tinguish between the senatAs con- is not repealed by a general statute mlta, which regarded the whole later in date, unless by express community, and the senal&s decreta, reference or by necessary eon- whioh operated only upon parti- struction. (Thorpe v. Adams, Law oolar persons and private concerns Kep., 6 C. P. 125; Clements v. (Graviu. Orig. 1, § 24). "Ward, 36 Ch. Div. 689.) (/) Holland's caae, 4 Eep. 76 a. (s) Known as "LordBrougham's {g) In our printed statute book Act ; " see Chorlton v. Lings, Law some Acts are described as being Eep., 4 C. P. 374. " public Actsof alocal character." (i) 62 & 53 Vict. c. 63. Some private Acts are not printed SECT. III.] OF THE LAWS OF ENGLAND. 71 been now provided tliat every act passed or to be passed after the year 1850 shall be a public act and shall be judicially noticed as such, unless the contrary is expressly provided by the act {I). Statutes also are sometimes described as declaratory, or penal, or remedial, according to the different nature of their objects or provisions. Declaratory statutes are where the old custom of the kingdom is almost fallen into disuse, or become disputable ; in which case the parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and diflBculties, to declare what the common law is and ever hath been. Thus, the statute of • treasons, 25 Edw. III. st. 5, c. 2, did not make any new species of treasons ; but only, for the benefit of the subject, declared and enumerated those several kinds of offence, which before were treason at the common law. Penal acts are those which impose penalties or punishments for an offence committed, as in the case of the statutes relative to game. Eemedial acts are such as supply some defect in the existing law, and redress some abuse or inconvenience with which it is found to be attended, without intro- ducing any provision of a penal character; — as in the case of the statute 3 & 4 Will. IV. c. 105, which introduced various improvements in the law relating to dower. But it is not every statute that falls within one or other of these divisions ; for some combine more than one of these objects, and others have objects of a different description. There is also a distinction of acts of parliament, as being either enlarging or restraining, enabling or disabling acts. Thus the 32 Hen. YIII. o. 28, which gave bishops and other sole ecclesiastical corporations (except parsons and vicars) a more ample power of making leases than they possessed before, is called an enabling statute : the 13 Eliz. c. 10, above noticed, which afterwards imposed certain limitations as to the making of leases by ecclesiastical persons, is de- scribed as a restraining or disabling statute {m). {I) Ibid., s. 9. H Co. Litt. 44 b ; 1 Bl.Com. 87. 72 INTRODUCTION. Secondly, as to their interpretation. In interpreting statutes, — as well as in declaring the rule of the common law («), — the courts are governed hy former adjudica- tions (o) ; or, in the absence of these, by analogy and general reasoning {p). But many specific rules are also laid down for their guidance ; and principally these which foUow. 1. A statute begins to operate from the time when it receives the royal assent, unless some other time be fixed by the act itself for the purpose (j). The rule on this subject was formerly different ; for at common law every act of parliament, which had no provision to the contrary, was considered, as soon as it passed, (that is, received the royal assent,) as having been in force retrospectively from the first day of the session of parliament in which it passed, though in fact it might not have received the royal assent, or even been introduced into parliament, until long after that day. Thus where a statute provided that every deed of annuity granted after the passing of the act should be inroUed within twenty days after execution, and the act received the royal assent in May, 1777, but the session had commenced in October, 1776, an annuity deed, exe- cuted in January, 1777, nearly four months before the royal assent was given, but after the commencement of ()») Vide sup. p. 55. 1889 (52 & 53 Vict. c. 63), that as (o) By Lord Kenyon, Lacon v. regards all Acts passed or to be Hooper, 6 T. R. 224 ; and see Rex passed after the year 1850, re- V. Leek Wootton, 16 Bast, 122. pealing wholly or partially any {p) Hob. 346. former enactment, and substituting (q) 33 Geo. 3, 0. 13 ; Nares v. provisions for those of the repealed Rowles, 14 East, 510. But, by enactment, the repealed enactment 48 Geo. 3, c. 106, where an Act shall remain in force untU the sub- expired before a bill for continuing stituted provisions come into ope- it, introduced in the same session, ration. (Sect. 11.) Of late years it received the royal assent, the latter has been usual to pass an Act in Act took effect (unless otherwise each session, continuing for a fixed provided, and except as to penal- period certain Acts then about to ties,) from the expiration of the expire. 62 & 53 Vict. c. 67 (1889) former ; but it has now been pro- is an example of such a statute, vided by the Interpretation Act, SECT. III.J OF THE LAWS OF ENGLAND. 73 the session, was adjudged to be void for non-compliance with the provision (r). This strange principle, however, though rigidly observed for centuries, no longer prevails ; it being expressly provided by 33 Geo. III. c. 13, that where no other direction is given, every act shall be con- sidered as commencing from the date indorsed upon it as the date of its receiving the royal assent — a manifest im- provement, it must be owned, on the former law (s) ; though it has been doubted (and with reason) whether even the new rule is placed upon the right basis, and whether some fixed and reasonable period ought not always to be inter- posed between the passing of an act and the time of its coming into operation, so as to give the subjects of the realm an opportunity of becoming acquainted with its provisions (t). The rule, it will be observed, is laid down with an exception of the case where the period of com- mencement is otherwise fixed by the statute itself ; for by force of an express provision, or even by necessary con- struction from the nature of the enactment, the operation of a statute may be either postponed on the one hand, or have a retrospective relation on the other, so as to affect rights which had vested before it received the royal assent, or transactions which had before then taken place (u). 2. Statutes are to be construed not according to their mere letter, but according to the intent and object with which they were made (x). It occasionally happens there- fore that the judges who expound them are obliged, in favour of the intention, to depart in some measure from the words. And this may be either by holding that a case apparently within the words, is not within the meaning ; (r) Latless v. Holmes, 4 T. R. ing a statute retrospectively, see 660. Bum V. Carvallio, 1 Ad. & El. 338 ; {«) See also 52 & 53 Viet. o. 63 Hitchcock v. Way, 6 Ad. & El. (The Interpretation Act, 1889), 943 ; Moon v. Burden, 2 Exoh. 22 ; 88. 36, 37. Wright v. Hale, 6 H. & N. 229. (<) See Kent's Comm. Leot. 20 ; {xj Bao. Ab. Statute (1), 6; Dwarris on Stats. 683. Stradling v. Morgan, Plow. 205 ; («) Upon the subject of oonstru- Rex v. Everdon, 9 East, 101. 74 INXRODUCa'ION. or that a case apparently not within the words, is within the meaning. Thus where a statute provides that all who shall commit a certain act shall he deemed felons, yet a madman who does the act shall not be deemed a felon ; for that would be contrary to the presumable intention {y). And so, on the other hand, where an act of parlia- ment gave the owners of inheritances a remedy by action against such tenants holding for life or years as should commit waste (i. e. spoil and destruction) ; the action was held maintainable against a tenant holding only for one year or less, for so the law-makers presimiably designed (s). In all instances, where the strict letter of the law is thus corrected by reference to its intention, the construction is said to proceed upon the equity of the statute {a), a phrase not peculiar to the law of England, but used by foreign jurists in the same sense {b). Thus, in the first example, the case would be said to be out of the equity of the act ; in the second, to be within its equity (c). It is to be observed, however, that this principle of equitable con- struction is not to be carried beyond certain bounds, and a judge is not at liberty, in favour of a supposed intention, to disregard the express letter of the statute, where, for any- thing that appears, the wording may correspond with the actual design of the legislature — the maxim in cases of this description being that a verbis legis non recedendum est{d). It is also important to remark, that the rule in question has been applied more freely to the antient statutes than it has been to those of more modem date, which are interpreted somewhat more strictly, and with closer adherence to the letter (e). For the style of framing acts of parliament [y) Eyston v. Studd, Plow. 465. as. 22, 23. (z) Ibid. 467. (c) 3 Bl. Com. 431. («) Ibid.; Co. Litt. 24b. The (i) Edrioh's case, 5 Rep. 118b; term is of very early ooourrenoe in and see Jones v. Smart, 1 T. R. 52 ; our law (see Bract, lib. 1, c. 4, and R. v. Inhabitants of Great p. 3a; lib. 2, c. 7, p. 23b). Bentley, 10 Bam. & Cress. 520. (i) Grotius de .Slquitate, s. 3; (e) Per Coleridge, J., Rex v. Puflendorf, Elem. Jui-. Un. lib. 1, Gardner, 6 Ad. & El. 118 ; and see SECT. 111.] OF THE LAWS OF ENGLAND. 75 has itself undergone a material change — ^those of a more antient era being comparatively short and general in their character, while the later acts are expanded into minute detail, and intended to reach every specific case ; and there is therefore now little, if any, room for the interpretation according to the equity of the statute ; and in fact such interpretation, as regards modem statutes, has been almost wholly discredited; and the words themselves of the statute are now taken to express its real intention (/) . 3. Another maxim (and one that may often serve for our guidance in the application of the last), is, that iii the interpretation of statutes in general, the following points are to be considered, — the old law, the mischief, and the remedy ; that is, how the common law stood at the making of the act, what the mischief was for which the common law did not provide, and what remedy the parliament hath provided to cure this mischief {g). And here an example may be found in the restraining statute of 13 Eliz. c. 10, to which we have already adverted (A). By the common law the master and fellows of a college, and other such corporations, might let as long leases as they thought proper ; the mischief was that they let long and unreason- able leases, to the impoverishment of their successors ; the remedy applied by the statute was by making void all leases made by them for longer terms than three lives, or twenty-one years. Now in the construction of this statute it was held, that leases, though for a longer term, made by the master and fellows of a college or a dean and chapter, Brandling v. Barrington, 6 Baxn. & equity of the statute ; for by that Cress. 475 ; Eex v. Inhabitants of Act the shorter expressions that Barham, 8 Bam. & Cress. 104 ; are popularly used have received Notley e. Buck, ib. 164 ; Adam v. in numerous oases their fuU legal Inhabitants of Bristol, 2 Ad. & El. significance. 395, 399. (?) Heydon's case, 3 Eep. 7 ; 1 (/) Since the Interpretation Act, Bl. Com. 87; 2 Inst. 110; Salmon 1889 (52 & 53 Vict. c. 63), there is v. Buncombe, 11 App. Oa. 627. less reason than ever for having (A) Vide sup. p. 70. recourse to the doctrine of the 76 INTEODUCl'ION. are not void during the time of the master or the dean ; for the act was made for the benefit and protection of the successor (»), and the mischief is therefore sufficiently sup- pressed by vacating them after the determination of the interest of the grantors; but the leases, during the con- tinuance of the interest of the grantors, not being within the mischief, are not within the remedy (k). 4. It is also an established rule, that remedial statutes are to be more liberally, and penal statutes more strictly, construed (l). The statute of Elizabeth just mentioned may again serve as an example ; for, soon after it was made, the master and fellows of Magdalen CoUege granted certain premises to the queen, her heirs, and successors, on condition that she should convey the same to a certain person named : and it was contended that this conveyance was not restrained by the act; for that, by the general rule of law, the sovereign is not boimd by a statute unless specially mentioned; which the court admitted to be in many cases true. But as this was a remedial act, and made to suppress wrong, it was adjudged that it should bind the queen (m). As to the stricter manner in which a penal act must be interpreted, we may resort to an illustra- tion of Lord Bacon's, that if for a certain offence it be enacted that a man shall lose his right hand, and some offender hath had his right hand before cut off in the wars ; he shall not lose his left hand, but the crime shaU. rather pass without the punishment which the law assignedj than the letter of the law shall be extended (»). This dis- tinction applies, it will be observed, not only to remedial and penal statutes properly so called, but also to those of a mixed kind, which contain both remedial and penal pro- (i) Co. Litt. 45, n. (4), by Harg. ; Ca. 324. Bao. Ab. Leases (H.) ; Magdalen (k) 1 Bl. Com. 87. College case, U Eep. 73 a. And {I) Ibid. 88. see Magdalen Hospital (Governors) (m) Magdalen College case, 1 1 V. Knotts, 5 Ch. DIt. 175 : on ap- Eep. 72. peal, 8 Ch. Div. 709, and 4 App. {«) Bao. Maxims, 12. SECT. III.] or THE LAWS OF ENGLAND. 77 visions ; tlie former of which will be construed with more indulgence than the latter (o). 5. In the construction of a statute, all other such statutes ought to be taken into consideration as have been made in pari materia {p). Thus by the 7 Greo. II. c. 15, it was enacted, that ship-owners, carrying goods, were not to be responsible for losses to such goods, incurred (without their privity) by the misconduct of the master and mariners, to any greater extent than the value of the ship, "with all her appurtenances," and the freight. By 26 Geo. III. c. 86, they were exempted from liability for loss incurred by robbery of any persons whatsoever, further than the value of the ship, " with all -her appurtenances" and the freight. By 53 Geo. III. c. 159, s. 1, they were not to be answer- able for losses arising from any act done without their fault or privity, beyond the value of the ship and freight. Upon the last act a question arose, whether the owner of a vessel was answerable for the value of certain fishing stores belonging to the ship, and lost by an accidental collision at sea; and the court held him answerable; and remarked, that in subsequent sections of the same act, and also in the two preceding statutes, which were in pari materia, the words used were ship and all her appurtenances; so that the section in question was to be understood as if the words "with all her appurtenances" were used therein, sup- posing that those words would make any difference in the sense {q). This rule, it will be observed, applies whether the prior acts are referred to in the statute on which the question arises, or not. They are considered, indeed, as all forming one continued enactment (f). (o) See Piatt v. Sheriffs of Lou- Gale v. Laurie, 5 Baru. & Cress, don, Plowd. 36 ; Boues ». Booth, 156. W. B. 1236. (?) Gale v. Laurie, 6 Bam. & (jo) Bac. Abr. Statute (1), 2, 3 ; Cress. 156. Jones V. Smart, 1 T. R. S3 ; King, {r) Earl of Aylesbury v. Pattison, qui tarn, v. Smith, 4 T. R. 419 ; 1 Doug. 30. Duck V. Addington, 4 T. R. 447 ; 78 INTRODUCTION. 6. A statute, which treats of things or persons of an inferior rank, cannot by any general words he extended to those of a superior (s). And therefore, . inasmuch as the statute of 13 Eliz. o. 10, before referred to, applied its ptohibition to " masters and fellows of colleges, deans and chapters of -cathedrals, masters of hospitals, parsons and yicars, or any other having any spiritual or ecclesi- astical living," a Ushop was held not to be included within its provisions ; for, though he has a spiritual living, he is of higher dignity than any of the persons enumerated {t). 7. Where the provision of a statute is general, every thing which is necessary to make such provision effectual is supplied by the common law {u) . And therefore, when anything is commanded or prohibited, though only in general terms, by an act of parliament, and no remedy is expressly given in the event of its provision being violated, yet is the party, who sustains an injury by such violation, entitled to bring an action for his private xelief ; and if the matter be of public concern, the offender shall besides be considered as guilty of a misdemeanor, and liable to indictment accordingly (i»). The law in this case will be the same, even though the statute after the prohibition, proceeds by a separate clause to annex a particular pecu- niary penalty to the offence if committed ; for that will not take away the other remedies [y) ; but where a statute merely inflicts a pecuniary penalty for an act not pre- (s) 1 Bla. Com. 88. E. v. Badger, 12 L. J., Q. B., (t) Archbishop of Canterbury's N. S. 227. case, 2 Eep. 46 b ; 2 Hawk. o. 27, (y) Per Ashurat, J., Rex v. a. 124. Harris, i T. R. 205 ; Beoiford „. (u) Bac. Abr. Statute (B). Hood, 7 T. E. 620 ; Rex*. Wright, (x) 2 Inst. 131, 163. See the case 1 Burr. 543; and see especially of the Marshalsea, 10 Rep. 76 b; Cooper v. Whittingham, 15 Ch. D. 2 Hale, P. C. 171 ; Rex v. Harris, 501 ; Tottenham Local Board ■u. 4 T. R. 205 ; Rex v. Leginham, 1 Rowell, 15 Ch. D. 378 ; and con- Mod. 71 ; Garden v. G-eneral Oeme- sider Powell v. Fall, 6 Q. B. D. tery Company, 5 Bing. N. 0. 253 ; 597. SECT. 111.] OF THE LAWS OF ENGLAND. 79 viously imlawf ul, and oontains no direct prohibitory clause, no indictment can in this case be sustained ; — the only- remedy is to proceed for the penalty (s). 8. A subsequent statute may repeal a prior one, not only by express provision to that effect, but by necessary implication ; and every statute is a repeal by implication of a preceding statute, so far as it is contrary thereto, for leges postcnores priores abrogant {a) ; consonant to which it -was laid down by a law of the Twelve Tables at Eome, that quod pop ulns postremumjussit id jus ratwn esto. But this is to be understood only when the matter of the later statute is so clearly repugnant that it necessarily implies a negative. As if a former act says, that a juror shall have an estate of twenty pounds a year ; and a new statute afterwards enacts, that he shall have twenty marks: — here the latter statute virtually repeals the former. For if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end (J). But if the enactments are such that they may stand together, here the latter does not repeal the former, but they shall both have a concilrrent efficacy. As if by a former law an offence be indictable at the quarter sessions, and a later law makes the same offence indictable at the assizes ; — here the jurisdiction of the sessions is not taken away, but both have concurrent jurisdiction, unless the new ' statute subjoins express negative words, as, that the offence shall be indictable at the assizes, and not elsetvhere (c). (s) See Eex v. Buck, 2 Str. 679 ; Works, 12 C. B., N. S. 161 ; Gar- Eex V. Wright, ubi aup. ; Eex v. nett v. Bradley, 3 App. Ca. 944. Robinson, 2 Burr. 805 ; and con- (i) Jenk. Cent. 2, 73. aider Couch v. Steel, 3 E. & B. («) Dr. Foster's case, 11 Eep. 63 ; 402 ; Atkinson v. Newcastle, &o. and see The Conservators of the Co., 2 Exch. Div. 441 ; and Ward Thames v. Ball, Law Eep., 1 C. P. V. Hohbs; 4 App. Ca. 13. 415 ; Eitzgerald v. Champneys, 2 (o) Bac. Abf. Statute (D). See J. &H. 31 ; and Clements v. Ward, Paget V. Foley, 2 Bing. N. C. 679 ; 35 Ch. Div. 589. Daw V. The Metropolitan Board of 80 INTRODUCTION. 9. It was formerly the rule, that if a statute, repealing another, was itself repealed afterwards, the first statute was revived, without any formal words for that purpose (d). Thus when the statute of 5 & 6 Edw. VI. c. 12, providing that the matrimony of priests should he deemed true and lawful matrimony to all purposes, was repealed by a statute 1 Mary, st. 2, c. 2, and this latter statute was afterwards repealed by the act of 1 Jac. I. c. 25 ; it was held that there needed not any express words of revival iu King James's statute (though such words are in fact contained therein), hut that the act of Edward the sixth was impliedly and virtually revived (e). But the rule in this respect was altered by the 13 & 14 Yict. c. 21, which enacted that where any act repealing in whole or in part any former statute was itself repealed, such last repeal should • not revive the act or provisions before repealed, unless words were- added for that purpose ; and that where any act was made repealing in whole or in part any former act, and substituting provisions instead of those repealed, such repealed provisions should remain in force till those substi- tuted should come into operation by force of the last made statute ; and although the 13 & 14 Vict. o. 21 has been repealed by the Interpretation Act, 1889 (/), the pro- visions of the repealed act in all these respects are re-enacted in the repealing act (g). 10. [Acts of parliament derogatory from the power of subsequent parliaments bind not. Accordingly the statute 11 Hen. VII. c. 1, which directed that no person for assisting a king de facto should be attainted of treason by act of parliament or otherwise, was held to be good only as to common prosecutions for high treason, but not to restrain or clog any parliamentary attainder {h). And this because {d) See The Bishops' case, 12 (e) The Bishops' case, 12 Eep. 7. Eep. 7 ; 4 Inst. 325 ; Tattle v. Grim- (/ ) 62 & 63 Vict. c. 63. ■wood, 3 Bing. 493 ; Doe v. GuUy, (y) Ibid., sect. 11. 9 Bam. & Cress. 344 ; Phillips v. (A) 4 Inst. 43. Hopwood, 10 Bam. & Cress. 39. SECT. III.J OF THE LAWS OF ENGLAND. 81 [the legislature, being in truth the sovereign power, is always of equal, always of absolute authority ; it acknow- ledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavour to tie up the hands of succeeding legislatures. " When you repeal the law " itself," says he, " you at the same time repeal the pro- " hibitory clause, which guards against such repeal " («).] These are the several grounds of the law of England ia its proper and original extent. There is a species, how- ever, of unwritten law to which no reference has yet been made, but which has long formed part of the general system, and (though here noticed in the last place) con- stitutes one of its principal divisions. This is equity; which is so termed by way of distinction from the original and proper law of England, or (as it is usually called in this case) the common law. For that phrase (we are to observe) is used in two senses, — either, firstly, as denoting legal institutions which have their existence by custom only, and not by statute ; or, secondly, as expressing legal insti- tutions as distinguished from the institutions which have arisen in a court of equity alone [k) ; however, in both its senses the term serves to indicate that which is more antient, as opposed to that which is less so ; the statute law being of modern creation when compared with that which is of immemorial antiquity ; and equity being of considerably later birth than some of the earlier parts of the common law. The origin of equity may be stated as follows. The antient structure of our national jurisprudence (whatever might be its merit in other particulars) was singularly defective in compass and enlargement of view. It took no account of several subjects for which it is the duty of a civilized judicature to provide ; and to others, it applied (i) " Cum lex abrogatur, illucC ip- oporteat." — Ep. ad Att. iii. 23. sum abrogatur, quo nm earn abrogari {k) Vide snp. p. 44 et seq. VOL. I. O 82 INTRODUCTION. maxims too strict and unbending to satisfy the notions of justice in an advanced state of society. Its judicial remedies were also in some cases of a cumbrous and incon- Yenient or limited character. For these evils the progres- sive introduction of new remedial laws, by act of the legislature, would seem to have been the natural remedy. But the course of things was different. Owing perhaps to some peculiar averseness in the early genius of the country from change in its legal institutions, the law administered between subject and subject, in the antient courts of the realm, was allowed to remain for a long period of our history with very little alteration of a fundamental kind. But new courts were on the o^er hand gradually estab- lished with a collateral, and in some sense, an usurped jurisdiction, in which cognizance was taken of those subjects which the common law of England had overlooked or insufficiently regulated ; relief was given from the con- sequences of some of the harsher doctrines of the common law ; and the defects of its judicial methods were in certain cases supplied. These new courts had been, at the outset, chiefly resorted to for one particular purpose, viz., the mitigation of what was felt to be the severity of the common law in the particular case ; but before long the whole system of rules and principles therein administered,- and which, without much propriety, obtained, by reference to the liberal principle of interpreting positive laws (l), the appellation of equity, began to hold, and afterwards success- fully maintained, a divided empire with the more antient, or common law. Thus it happened that in the chief ojE these tribunals — viz., the High Court of Chancery — a very large proportion of the whole forensic business of the country, (that is, in matters of property, for beyond this that court never assumed jurisdiction,) came to be adminis- tered ; and the extensive subjects, in particular, of ti-usts aoA partnerships, fell almost exclusively under its manage- [l) Vide sup. p. 74 ; Mitford, Plead, ia Chan. p. 3. SECT. III.] OF THE LAWS OF ENGLAND. 83 ment. That court was also the proper and regular tribunal to which recourse was had, when the object was either to compel a man to specifically perform a contract into which he had entered, or to cause him to abstain from the com- mission of some specific injury, — ^the common law courts interfering in general only so far as to award damages where the breach of contract or the wrong had been already com- mitted ; and although their jurisdiction in this respect had been somewhat enlarged by the Common Law Procedure Act, 1854 (m), still it was not until the Judicature Acts, 1873 and 1875, that the two systems of law and equity came to be administered in the appropriate divisions of a single tribunal, constituted out of the superior courts of justice existing at the date of these acts, and styled Her Majesty's Supreme Court of Judicature («) ; and by the Judicature Act, 1873, it was provided that in all matters in which there was any conflict or variance between the rules of equity and the rules of the common law, with reference to the same matter, the rules of equity should prevail, scil., as regards principles and substantive law (o) ; for in matters of practice or procedure, when the Orders and Rules of 1883 are silent, the court is in the habit of adopting (in case of any conflict between law and equity) that procedure which is the more convenient of the two {p), all which will in due course hereafter more fully appear. (m) 17 & 18 Vict. u. 125. See (o) 36 & 37 Vict. c. 66, s. 25 (11) . Benson v. Paull, 6 EU. & Bl. 373 ; (p) Thomas v. Palin, 21 Ch. D. Norris V. Irish Land Company, 8 360 ; Jackson v. Litchfield, 8 Q. B. EU. & Bl. 526. D. 474. (») Vide post, bk. v. c. v. g2 84 INTRODTICTION. SECTION IV. OF THE COUNTEIES SUBJECT TO THE LAWS OF ENGLAND. By the common law, the municipal law of England does not extend to any place out of England, and therefore did not extend to Wales, Scotland, Ireland, Berwick-upon- Tweed, or any other part of the dominions of the Crown excepting England ; nevertheless, by force of the statute law (a) the laws of England, or some of them, do now obtain, more or less, ia all of these places [b) ; — of each of which it will be proper first to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws. [And, first, of Wales: — For many centuries after its invasion by the Eomans, Wales remained independent of England, and in the primitive pastoral state which Caesar and Tacitus ascribe to Britain in general (c) ; and in the time of the Saxons, the antient inhabitants of the island retired to its natural intrenchments, for protection against their hostile visitants. But when these invaders them- selves, who in the meantime had been converted to Chris- tianity, settled down under regular governments, they gradually drove the antient Britons into a narrower («) 1 Bl. Com. p. 93. fesBes only to treat of the laws of (4) It may be here remarked that such statutes as apply exclusively (e) As to Wales, see Vaugh. 395 to Scotland, Ireland, or the Co- —420 ; Eex v. Cowle, 2 Burr. 860 ; lonies, are not, as a, general rule, 2 Inst. 195 ; 4 Inst. 239 ; Buckley «i! noticed in this work, which pro- Thomas, Plowd. 121, 123, 126, 129. S. IV.] COUNTRIES SUBJECT TO THE LAWS OF EXGI-AND. 85 [territory, pursuing them from one fastness to another, and eventually after repeated losses abridging them of their wild independence. Very early in our history, we find their princes doing homage to the crown of England ; till at length in the reign of Edward the first, who may justly be styled the conqueror of Wales, the line of their antient princes was abolished (d), and the king of England's eldest son was created their titular prince (e) ; the territory of Wales being then entirely re-annexed, by a kind of feodal resumption, to the dominion of the crown of England (/) ; or, as the statute of Wales (12 Edw. I.) expresses it, " terra Wallice cum incolis suis, prius regi jure ''^feodali suhjecta, jam in proprietatis dominium totaliter et " cum integritate conversa est, et coronce regni AnglicB " tanquam pars corporis ejusdem aunexa et unita " {g). By this statute of Wales, very material alterations were also made in divers parts of the laws of Wales so as to reduce them nearer to the English standard, especially in the forms of their judicial proceedings ; but they still retained very much of their original jurisprudence, particularly their rule of inheritance, by which their lands were divided equally among all the issue male, and did not descend to the eldest son alone. However, by other subsequent statutes, their provincial immunities were still farther abridged : and the finishing stroke to their independence was given by the statute 27 Hen. VIII. c. 26 (as con- firmed and enlarged by the statute 34 & 35 Hen. VIII. 0. 26). These statutes of Hen. VIII. gave at the same time the utmost advancement to the civil prosperity of the people of Wales, by admitting them to a thorough com- munication of laws with the people of England,] and by {d) See Turner's Hist. Eng. p. Wales is always conferred on the 3, 0. ii. ; Hume's Hist. Eng. o. xiii. heir apparent by special creation (e) Blackstone says he became and investiture. " their titular prince as a matterof (/) Vaugh. 400 ; Rex v. Cowle, course ; " but the expression is not 2 Burr. 851. accurate ; as the title of Prince Of (?) 12 Edw. 1. 86 INTRODUCTION. enacting (amongst other matters of less importance), — 1. That the dominion of Wales shaU. be for ever united to the kingdom of England; 2. That all Welshmen bom shall have the same liberties as other the king's subjects ; 3i That lands in Wales shall be inheritable according to the English tenures and rules of descent ; 4. That the laws of England, and no other, shall be used in Wales ; and 5. That Wales shall be divided into twelve counties or shires, exclusive of the county of Monmouth, which is made one of the counties of England. [From the time of Hen. VIII., therefore, the civil con- dition of the principality has differed but slightly from that of England : and it may be remarked, that an Act of Parliament, where England only is mentioned, now in- cludes Wales also(^). Wales, however, for a long time possessed within itself superior courts called Courts of Ghreat Session, independent of the process at Westminster Hall, and was not visited by the English judges of assize («) : also, such of its counties and towns as were represented in parliament sent each one member only, while the usual number in England was two.J But, in 1831, by 11 Geo. lY. & 1 Will. IV. c. 70, the jurisdiction of these Courts of Great Session was abolished; and it was by the same statute enacted, that assizes should be held in Wales for the trial of all matters civil and criminal, in like manner and form as had been usual for the counties in England. And by the Reform Act of the succeeding year (2 & 3 Will. IV. c. 45), a new arrangement was made as to the return of members of parliament for Wales ; by the effect of which, three of its counties used thereafter respectively to send two knights of the shire to parliament, and each of the remaining counties one. And (A) See 20 Geo. 2, o. 42, s. 3. So assimilated to that in England, also by 8 & 9 Vict. c. 11, the (i) The proceedings in the Courts manner of assigning sAerifa of of Great Session of Wales were counties in Wales is regulated and partly regulated by 13 Geo. 3, u. 61. S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 87 Tinder the Eepresentation of the People Act, 1884 (y), and the Redistribution of Seats Act, 1885 {ft), Wales is now placed upon a similar footing to England as regards representation in parUament (l). [Secondly, as regards Scotland : — The kingdom of Scot- land—notwithstanding the union of the crowns on the accession of James the sixth of Scotland and first of Eng- land — continued an entirely separate and distinct kingdom for ahove a century more, though an union had heen long projected; which union was judged to he the more easy to he effected, as these kingdoms exhibited at the time of the project a very great resemblance, though far from identity, in their ihstitutions. And this is remarked by Sir Edward Coke (in), who points out a conformity, in many thiags, not only in the religion and language of the two nations, but also in their antient laws {«). As to the latter particular, indeed, this resemblance did not exist at the time of the Norman conquest, for the Scottish insti- tutions were then, according to the best authorities, exclu- sively Celtic, and those of England, Anglo-Saxon (o) : but it had become established as soon afterwards as the twelfth century {p) ; and not only continued to prevail at the (y) 48 Viot. c. 3. (p) The most antient book of (k) 48 & 49 Viot. o. 23. Scottish law, called Begiam Majes- {!) See also 52 & 63 Viot. o. 40, tatem (the authenticity of which, providing for the extension of a though once a subject of dispute, higher class of education in Wales, seems on the whole to be sufficiently as more fully noted in vol. ni.c.rv., established,) is so similar to the on Education. treatise of Glanvil on English law (>«) 4 Inst. 345. ™ ^^ reign of Hen. 2, that one (») Blaokstone says that both of them is plainly copied from the kingdoms "were antiently under other. There seems little reason, the same government,'' and cites however, to doubt that GrlanvE's 1 Jao. 1, c. 1, as declaring that is the original work. As to these " these two mighty, famous, and treatises, see Inst, ubi sup. ; antient Idngdoms were formerly ErsMne's Instit. b. 1, t. 1, b. 32 ; Eobertson's Chas. V. vol. i. n. (o) See Hallam's Constitutional (25) ; Hist. Eng. Law, by Reeves, Hist. vol. iii. p. 404, 3rd ed. vol. i. p. 225. one. 88 INTRODUCTION. [time of the Union, but is even yet in some particulars dis- tinctly perceptible. The diversities of practice, however, in two large and independent jurisdictions, and the acts of two distinct parliaments, in process of time naturally intro- duced great diversities : and to the antient alliance and connection of Scotland with France, where the civil law chiefly prevailed, must he attributed this further diversity in Scotch law, compared with the law of England, namely, that the Scotch law, particularly in all that regards con- tracts and commerce, presents an extraordinary and indeed predominant conformity with the Roman law, excepting where modem legislation and English influences have concurred in modifying it {q). All difficulties in the way of the imion of the two kingdoms, whether arising from their diversities of law or from other occasions, were in due course overcome, and the union was effected in the year 1706, during the reign of Queen Anne, by a statute commonly called the Act of •Union (r), by which twenty-five articles were agreed to by the parliaments of both nations, and the most considerable of which were as follows : — 1. On the first of May, 1707, and for ever after, the kingdoms of England and Scotland shall be united into one kingdom, by the name of Great Britain (s) ; 2. The succession to the' monarchy of Great Britain shall be the same as was before settled with regard to that of England ; 3. The united kingdom shall be represented by one parliament {t) ; (e) See Erskine's Instit. b. 1 , t. 1 , 4 & 5 Vict. o. 30, and 3S & 34 Vict, s. 41. By 19 & 20 Vict. o. 60, the c. 13, an ordnance survey of Great laws of England and Scotland Britain, and by 8 & 9 Vict. c. 63, were assimilated on several misoel- and 14 & 1.5 Vict. o. 42, a geo- laneous points affecting trade and logical survey of the United King- commerce. dom, were authorized to be taken. (r) See the Act of ITnion (6 Ann. [t) There is an appellate jnris- c. II, sometimes printed 5 & 6 Ann. dictionin the House of Lords over <>• °)- the Scotch Courts in civil cases, as (s) "We may here remark that by to which see 6 Ann. c. 53; 48 S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 89 [4. There sliall be a communication of all rights and privileges between the subjects of both kingdoms, except ■where it is otherwise agreed ; 9. When England raises 2,000,000/. by a land tax, Scotland shall raise 48,000/. ; It), 17. The standards of the coin, and of weights and measures, shall be reduced to those of England, through- out the united kingdom (u) ; 18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England (»), all the other laws of Scotland, nevertheless, remaining in force, though alterable by the parliament of Great Britain, — such of these laws as relate to public policy being alterable at the discretion of such parliament, and such of them as relate to private rights not being alterable save for the evident utility of the people of Scotland ;] 22. Sixteen peers were to be chosen to represent the peerage of Scotland in parliament {tv), and forty-five mem- bers to sit in the house of commons; which number of commoners was, however, afterwards raised to sixty (x), and has now been raised to seventy-two (y) ; and 23. [The sixteen representative peers of Scotland shall have all privileges of parliament : and all peers of Scotland shall be peers of Great Britain, and rank next after those of the same degree at the time of the union ; and shall have all privileges of peers, except sitting in the house of lords and voting on the trial of a peer(z). Geo. 3, c. 151 ; and 39 & 40 Vict. U & 15 Vict. o. 87. u. 59, s. 3. But as to the court of (x) See 2 & 3 Will. 4, o. 65, and Justiciary, see Mackintosh v. The 31 & 32 Vict. c. 48, Acts passed in Lord Advocate, 2 App. Ca. 41. the years 1832 and 1868 reapeo- (w) Art. 17 of the Act of Union tively to amend the representation was repealed by 41 & 42 Vict. of the people in Scotland. g_ 49_ [y] 48 & 49 Vict. o. 23. See also (v) See Maxwell r. Mayre, 1 Bla. 48 Vict. c. 3. Eep. 271, 364. W See Lord Momington's case, [w) 6 Ann. c. 78. And see 2 & 3 Fort. Rep. 165 ; Duke of Queens- Will. 4, u. 63 ; 10 & 11 Viot. o. 52 ; berry's case, 1 Peere Wms. 582. 90 INTRODUCTION. [These are the principal of the twenty-five articles of union, which are ratified and confirmed by the Act of Union, 6 Anne, c. 11 : in which statute there are also two acts of parliament recited, namely, one of Scotland {a), whereby the church of Scotland, and also the four universities of that kingdom, are established for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same ; and the other of England {b), whereby the Acts of Uniformity of the thirteenth year of Elizabeth and the thirteenth and fourteenth years of Charles the second (except as the same had been altered by parliament at that time), and all other acts then iu force for the preservation of the church of England, are declared perpetual ; and it is stipulated that every subsequent king and queen shall take an oath inviolably to maintain the same within England, Ireland, Wales, and the town of Berwick-upon- Tweed. And the Act of Union expressly and particularly enacted that these two acts " shall for ever be observed as fundamental and essential conditions of the union." Upon these articles and Act of Union, it is to be ob- served (c) — 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again except the mutual consent of both, or the successful resistance of either, upon apprehending an infringement of those poiiits which, when they were separate and independent nations, it was mutually stipulated should be " fundamental and essential conditions of the union." 2. That whatever else (a) 1 W. & M. c. 5 (an Act for alteration in the act of uniformity securing the Protestant religion was efieoted by ' ' The UniTersities and Presbyterian church govern- Tests Act, 1871" (34 & 35 Vict, ment). c. 26) ; and also that the liturgy of (J) 5 Ann. c. 6 (an Act for se- the church of England was changed curing the Church of England as in certain particulars by " The by law established) . Prayer Book (Tables of Lessons) (c) It has not been thought con- Act, 1871" (34 & 35 Vict. o. 37). venient to modify the way in which See also the 22 Vict. o. 2, abolish- Blackstone here expresses himself ; ing the church services for some but it will be noticed that some particular days. S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 91 [may be deemed " fundamental and essential conditions," the preservation of tlie two cliurches of England and Scot- land in the same state that they were in at the time of the imion, and the maintenance of the Acts of Uniformity which establish our common prayer, are expressly declared so to be. 3. That therefore any alteration in the constitution of either of those churches, or in the liturgy of the church of England, (unless with the consent of the respective churches, collectively or representatively given,) would be an infringement of these " fundamental and essential con- ditions." 4. That the municipal laws of Scotland are ordained to be still observed in that part of the island, unless altered by parliament ; and, as the parliament has not yet thought proper, except in certain instances, to alter them, they still (with regard to the particulars unaltered) continue in full force.] Wherefore the municipal laws of England are, generally speaking, of no force or validity in Scotland ; nor, on the other hand, are those of Scotland of force or validity in England [d) ; and of consequence, in the ensuing Commentaries, we shall have very little occasion to mention, any further than sometimes by way of illustration, the municipal laws of the Scottish part of the united kingdom. It is however to be observed, that acts of parliament, passed since the union, extend in general to Scotland, though that country be not expressly mentioned. If it be intended to except Scotland, there must be an express proviso to that effect, or the intention of the legislature to except it must be otherwise sufficiently in- dicated (e). A separate secretary of state for Scotland has (d) Our courts do not even take C. P. 473.) Nevertheless, a great judicial notice of the state of the comity of legal intercourse prevails law in Scotland ; but (as in the case between Scotland and England, of a foreign country) if any question especially since the Judgments Ex- upon it happens to arise, it is con- tension Act, 1868 (31 & 32 Vict, sidered as a matter of fact to be as- o. 54), and the Inferior Courts certaiiied by evidence. (SeeWood- Judgments Extension Act, 1882 ham V. Edwards, 5 Ad. & El. 771 ; (45 & 46 Vict. o. 31). Bradlaugh v. DeKin, Law Rep., 5 («) Rex v. Cowle, 2 Burr. 853 ; 92 INTRODUCTION. Been recently appointed (/), but this is only for tlie more convenient management of the business of the two countries, regarded as one united kingdom (g). [Thirdly, as regards the town of Berwick-upon-Tweed : — This town was originally part of the kingdom of Scotland ; but it was for a time reduced by King Edward the first into the possession of the crown of England ; and, during such its subjection, it received from that prince a charter, which, (after its subsequent cession by Edward Balliol to be for ever united to the crown and realm of England,) was confirmed by King Edward the third, with some additions ; particularly that it should be governed by the laws and usages which it enjoyed during the time of King Alexander, that is, before its reduction by Edward the fixst. Its constitution was, however, remodelled and put upon an English footing by a charter of King James the' first, and its liberties, franchises, and customs were con- firmed in parliament by the statute 2 Jac. I. e. 28, apparently following an earlier statute 22 Edw. IV. c. 8 ; and although therefore it hath some local peculiarities, derived from the antient laws of Scotland, yet it is now clearly part of the realm of England, and is accordingly duly represented by burgesses in the House of Commons (A). Accordingly, by statute 20 Geo. II. c. 42, s. 3, where England only is mentioned in any act of parliament, the same notwithstanding comprehends and includes the town of Berwick-upon-Tweed. At the same time, Berwick is no part of the county of Northumberland («), but forms, e.g.', the Local G-overnment Act, (/) 48 & 49 Vict. u. 61. 1888 (51 & 52 Vict. o. 41), does {g) See 50 & 61 Vict. u. 52, and not extend to Scotland, but that 52 & 63 Vict. c. 16. country has its own special act, (h) See Hale, Hist. C. L. c. 9 ; namely, the Local Govemiuent Eex v. Cowle, 2 Burr. 853 ; Com. (Scotland) Act, 1889 (52 & 53 Vict. Dig. Scotland (B.) ; Mayor of Ber- li. 60). See also the Scotch Uni- wick v. Shanks, 3 Bing. 459. versities' Act, 1889 (52 & 63 Vict. (») By the 48 & 49 Vict. c. 23, "• 65). Berwick is now included (for elec- S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 93 [in some sense, a county of itself ; that is, a county of a town corporate {j) : as to the effect of which, the reader is referred to the observations which we shall have occasion presently to make when we come to explain the nature of counties corporate (A). Fourthly, as regards Ireland (l) : — The inhabitants of Ireland, at the time of the conquest of that island by Henry the second, were governed by what they called the Brehon law, so styled from the Irish judges having been denominated Brehons(>w). But on such conquest, the laws of England were received and sworn to by the Irish nation, assembled at the council of Lismore («). And afterwards King John, in the twelfth year of his reign, went into Ireland, and carried over with him many able sages of the law ; and there by his letters patent, in right of the dominion of conquest, he ordained and established that Ireland should be governed by the laws of Eng- land (o) ; which letters patent Sir Edward Coke appre- hends to have been there confirmed in parliament (p). But to this ordinance many of the Irish were averse, and still stuck to their Brehon law : so that both Henry the third (q) and Edward the first (r) were obKged to renew the injunction ; and at length in a parliament holden at Kilkenny, 40 Bdw. III., under Lionel Duke of Clarence, tion purposes) in the county of (o) See Craw v. Kamsay, Vaugh. Northumberland. Also, by the 294 ; 2 Pryn. Eeo. 86 ; Calvin's Local Government Act, 1888 (51 & case, 7 Eep. 23 ; Campbell v. Hall, 62 Vict. 0. 41), Berwick is (for the Cowp. 210. purposes of that Act) portion of (p) Co. Litt. 141. the same county. (?) A. R. 30 ; 1 Eym. Feed. 442. U) See 5 & 6 Will. 4, o. 67, ss. (>■) A. R. 5.—"Tro eo . 61, 109 ; 6 & 7 WiU. 4, c. 103, s. 6. quihis utuntur Myhemici Deo de- (A) Vide post, p. 136. teatabiks existunt, et omni juri dis- [l) As to Ireland, see 4 Inat. 349. sonant, adeo quod leges censeri non («») 4 Inst. 358 ; Edm. Spenser's debeant, nobis et concilio nostro satis State of Ireland, p. 1613, edit. videtur expediens, eisdem utendas con~ Hughes. cedere leges Anglieanas." — Pryn. («) Pryn. on 4 Inst. 249. Eeo. 1218. 94 INTRODUCTION. [the then Lieutenant of Ireland, the Brehon law was formally aholished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. And yet, even in the reign of Queen Elizabeth, the wild natives still preserved their Brehon law; which is de- scribed to have been "a rule of right unwritten, but "delivered by tradition from one to another, in which " oftentimes there appeared great show of equity in deter- " mining the right between party and party, but in many " things repugnant quite both to God's law and man's" (s). Notwithstanding the settlement of Ireland by King John, the sovereignty there was only entitled the dominion or lordship of Ireland (t), and the king's style there was only DominusHibernice, lord of Ireland, till the thirty-third year of King Henry the eighth, when that sovereign assumed the title of king, which title was also recognized by act of parliament, 35 Hen. YIII. c. 3. But as Ire- land was a distinct dominion, and had parliaments of its own, it is to be observed, that though the immemorial customs (or common law) of England were made the rule of justice in Ireland also, yet no acts of the English parlia- ment, siuce the twelfth of King John, extended into that kingdom ; unless indeed Ireland was specially named, or was included under general words, such as " within any of the king's dominions." And this is particularly expressed, and the reason given, in the Year Books ; where it is said, " a tax granted by the parliament of England shall not "bind the people of Ireland, because they are not sum- " moned to our parliament ; " and again, " Ireland hath a " parliament of its own, and maketh and altereth laws ; " and our statutes do not bind them, because they do not " send knights to our parliament {u) ; but their persons are " the king's subjects, like as the inhabitants of Calais, («) See Spenser's State of Ire- Calvin's case, inserts the following land, p. 1613. parenthesis, vis. ("which is to be if) Stat. Hibemise, 20 Hen. 3. \x^a&.eI:aixicA^mless specially named"), (m) Lord Coke, citing this in 7 Hep. 22. S. IV.J COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 95 [" G-ascoigne, and Q-aienne, while they continue under the " king's suhjection " (») . The general run of laws, enacted hy the superior state, are supposed to be calculated for its own internal government, and do not extend to its distant dependent countries, which, bearing no part in the legis- lature, are not therefore in its ordinary and daily contem- plation. But when the sovereign legislative power sees it necessary to extend its care to any of its subordinate dominions, and mentions them expressly by name, or in- cludes them under general words, there can be no doubt but then they are bound by its laws {y). The original method of passing statutes in Ireland was nearly the same as in England, the chief governor hold- ing parliaments at his pleasure, and these parliaments enacting such laws as they thought proper (%). But an ill use being made of this liberty, particularly by Lord Grormanstown, deputy-lieutenant in the reign of Edward the fourth {a), a set of statutes was enacted in the tenth year of Henry the seventh (Sir Edward Poynings being then Lord Deputy, whence these statutes are called Poynings' laws) ; and by one of Poynings' laws (6), in order to restrain the power as well of the deputy as of the Irish parliament, it was provided, — 1. That, .before any parliament be summoned or holden, the chief governor and council of Ireland shall certify to the king, under the great seal of Ireland, the considerations and causes thereof, and the articles of the acts proposed to be passed therein ; and 2. That after the king, in his council of England, shall have considered, approved or altered the said acts or any of them, and certified them back under the great seal of England, and shall have given licence to summon and hold a parliament, then the same shall be summoned and held ; and therein the said acts so certified, and no other, {x) 20 Hen. 6, 8 ; 2 Eioh. 3, 12. [a) lb. 10 Hen. 7, c. 23. (y) Tear Book, 1 Hen. 7, 3 ; (4) Irish Stat. 10 Hen. 7, c. 4, Calvin's case, 7 Rep. 22. expounded by 3 & 4 Ph. & M. o. 4. («) Irish Stat. 11 Eliz. st. 3, o. 8. 96 INTRODUCTION. [shall be proposed, received, or rejected (c). But as this statute precluded any laws from heing proposed but such as were pre-coneeived before the parliament was in being, which occasioned many inconveniences, and made frequent dis- solutions necessary, it was afterwards provided by the Irish statute of 3 & 4 Ph. & Mary, c. 4, that any new propositions might be certified to England in the usual forms, even after the summons and during the session of parliament. Still, however, there was nothing left to the parliament in Ireland, but a bare negative or power of rejecting, not of proposing or altering any law.j But the usage afterwards was, that bills were often framed in either house, under the denomination of " heads for a bill or bills" and in that shape were offered to the conside- ration of the lord lieutenant and privy council: who, upon such parliamentary intimation, or otherwise upon the application of private persons, received and trans- mitted such heads, or rejected them without any trans- mission to England. With regard, however, to " Poyn- ings' laws " in particular, none of them could be repealed or suspended unless the bill for that purpose, before it was certified to England, had been approved by both houses (d). [By another of " Poynings' laws "(e), it was enacted that all acts of parliament before made in England, should be of force within the realm of Ireland (/) ;] but by the same rule, by which the people of Ireland were not (apart from this statute) bound by acts of the English parliament passed before this statute, which did not specially name or refer to Ireland, so the people of Ireland were not bound by any acts of the English parliament, passed after this sta- tute, which did not specially name or refer to Ireland [g) ; (c) i Inst. 353. however, of the Irish parliament, {d) Irish Stat. 11 Eliz. st. 3, c. 8. 21 & 22 Geo. 3, o. 48 (Telverton'a («) Cap. 22. Act), it was enacted, that certain (/) 4 Inst. 351. statutes then made in England or {g) 12 Eep. 112. By the Act, Great Britain, relating to the sub- 5. IV.] COTINTIUES SUBJECT TO THE LAWS OF ENGLAND. 97 on the other hand, where Ireland was particularly named or referred to, or was included under general words, the people of Ireland were bound by aU such acts of parlia- ment, this result following from the very nature and constitution of a dependent state : [dependence being very Kttle else but an obligation to conform to the will or law of that superior upon which the inferior depends, and who, if they will but acknowledge his mastery, will treat them for the future as subjects, and not as enemies (A). How- ever, as regards Ireland, this state of dependence was soon forgotten, and was even disputed by the Irish nation ; and therefore by statute 6 Geo. I. c. 5, it was declared, that the kingdom of Ireland ought to be subordinate to, and dependent upon, the imperial crown of Great Britain, as being inseparably united thereto ; and that the king's majesty, with the consent of the lords and commons of Great Britain in parliament, had power to make laws to bind the people of Ireland,] scil., if Ireland was named or referred to in the Act. The dependence of Ireland upon England being thus declared and established, that dependence extended also to its courts of justice ; wherefore a writ of error (in the nature of an appeal) lay from the Court of King's Bench in Ireland to the Court of King's Bench in England (*), and an appeal from the Court of Chancery in Ireland lay immediately to the English House of Lords, and the peers of Ireland had no jurisdiction either to affirm or to reverse any judgments or decrees whatsoever of the courts in Ireland (k). Ireland, ever impatient of her dependence, was enabled to re-assert her sovereignty, for a time ; and the statute jects therein enumerated, save so {«) This was law in the time of far as the same had been altered or Hen. VIII., as appears by the repealed, should be accepted, used, antient book, intituled Diversity of and executed in Ireland. Gourta, o. Banh U Roy. (Ji) Puff. Law of Nations, viu. (A) So declared by 6 Geo. 1, o. 5. 6, 2i. TOL. I. ^ 98 INTRODUCTION. of 6 Geo. I., above mentioned, was repealed by 22 Geo. II. c. 53 ; and by 23 Geo. III. o. 28, it was declared that the parliament and courts of Ireland should have an exclusive right as to aU matters of legislation and judicature in that country. Very soon afterwards, however, came the Act of Union for Ireland, and the articles of the Union (39 & 40 Geo. III. c. 67), the most important of which were as follows (1) : — 1. That the kingdoms of Great Britain and Ireland shall, on the Ist day of January, 1801, and for ever after, be united into one kingdom, by the name of the United Kingdom of Great Britain and Ireland ; 2. That the succession to the crown of the United King- dom shall continue the same as the succession to the crown of Great Britain and Ireland before the union ; 3. That there shall be one parliament, styled the Parlia- ment of the United Kingdom of Great Britain and Ireland; {I) These articles are contained in the statute mentioned ia the text, and repeated in the Act of the Irish parliament, 40 Gteo. 3, o. 38. The number of Irish members of the House of Commons under the Act of Union was 100., but by 2 & S Win. i, li. 88, was raised, in the year 1832, to 105 ; and under the 48 Vict. c. 3 and 48 & 49 Vict. c. 23, the number is now 103. The Act of Union also contains a stipulation that "four lords spiritual of Ire- land by rotation of sessions shall sit in the House of Lords," and also the following clause: — "That the churches of England and Ireland shall be united into one Protestant episcopal church, to be called the United Church of England and Ire- land : that the doctrine, worship, discipline and government of such church shall be the same as that of the church of England ; that the eontinucmce and preservation of such wnited ehwreh, as the estoMished chv/rch of England and Ireland, shall he an essential and fundamental part of the union ; and that the church of Scotland shall remain the same as established by the Act of Union of England and Scotland." The Act of Parliament, howeyer, which in the year 1870 put an end to the connection of the church of Ire- land with that of England, and de- prived the archbishops and bishops of the church of Ireland of their right to sit in the House of Lords, made the articles of the Act of Union which refer to this subject of less importance. The momen- tous change above referred to was carried into efiect by the 32 & 33 Vict. 0. 42, as to which Act, see 3fi & 36 Vict. cc. 13, 90, and 42 & 43 Vict. 0. 67. S. 1^^J COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 99 4. That twenty-eight peers of Ireland, elected for life by the peers of Ireland, shall sit in the House of Lords of the United Kingdom ; and that one hundred (now one hundred and five) commoners shall sit in the House of Commons of the United Kingdom on the part of Ireland : that any peer of Ireland not elected one of the twenty- eight may serve in the House of Commons of the United Kingdom for any county, city or horough of Great Britain; but, while so serving, shall not be entitled to privilege of peerage, or to be elected one of the twenty- eight, or to vote at such election : and that all the peers of Ireland, (except those who may be members of the House of Commons of the United Kingdom,) shall have all privi- lege of peerage as fully as those of Great Britain ; — the right of sitting in the House of Lords (with its attendant privileges) only excepted ; 5. That the subjects of Great Britain and Ireland shall all be entitled to the same privileges with regard to trade and navigation {m), and also in respect of all treaties with foreign powers ; 6. That the future expenditure of the united kingdom shall be defrayed in such proportion as the parliament thereof shall from time to time deem just and reasonable, according to certain rules prescribed for that purpose in the Act of Union ; and 7. That all the laws and courts of each kingdom shall remain the same as already established, subject to such alterations and regulations as circumstances may appear to the parliament of the united kingdom to require ; but that all writs of error and appeals which might, before the imion, have been decided in the House of Lords of either kingdom, shall henceforth be decided by the House of Lords of the united kingdom («). Finally, it is to be observed, that since the union all (»i) See Attorney - General v. (») See the Appellate Jurisdic- M'Kenzie, 11 Price, 284. tion Act, 1876 (39 & 40 Vict. c. 59), a. 3. h2 100 INTKODUCTION. Acts of Parliament extend to Ireland, whether that portion of the united kingdom be mentioned or not, unless it be , expressly excepted, or the intention to except it be other- wise plainly shown. Fifthly, as regards the other Islands adjacent to, and which are subject to the Crown of. Great Britain :— Some of them (as the Isles of Wight (o), Portland, Thanet, &c.) are comprised within some neighbouring county, and are therefore to be looked upon as forming part of the king- dom of England {p) ; but the others of them require more particular consideration. The Isle of Man is a distinct territory from England, and is not, in general, governed by the laws of Eng- land {q), but by acts of its own local legislature, called the Hause of Keys; neither does any Act of Parliament extend thereto, unless it be specially named (r) : nor (the writ of (o) The Isle of Wigtt, for the purpose of parliamentary represen- tation, used to be a county of itself, separate from Hampshire, and to return one member ; (see 2 Will. 4, u. 45, a. 16) ; and now, under the Bedistribution of Seats Act, 1885 (48 & 49 Vict. c. 23), it returns one member. (jP) Com. Dig. Navigation, F. -5 ; 4 Inst. 287. (j) See Com. Dig. Navigation, F. 2 ; Co. Litt. 9 a ; Calvin's case, 7 Eep. 21 ; 4 Inst. 283. (r) i lust. 284; 2 And. 116. The phrase "British Islands" now means (by 62 & 53 Vict. u. 63, o. 18) the United Kingdom, the Channel islands, and the Isle of Man. As to the excise in the Isle of Man, see 7 & 8 Geo. 4, c. 63, s. 3 ; 50 & 51 Vict. c. 5. As to customs there, see 27 & 28 Vict. 0. 62 ; 29 & 30 Vict. c. 23 ; 37 & 38 Vict. o. 46 ; 39 & 40 Vict. c. 36 ; 42 & 43 Vict. co. 21, 36; 51 & 62 Vict. o. 7- As to probate commissioners for the island, 21 & 22 Viot. I!. 95, =. 30 ; as to its harhov/ra, 26 & 27 Vict. i;. 86 ; 27 & 28 Vict. c. 62 ; 29 & 30 Vict, u. 23 ; 35 & 36 Vict. o. 23 ; 37 & 38 Vict. c. 8 ; 46 & 47 Vict. c. 9 ; 47 Vict. 0. 7. As to costs in revenue proceedings there, 25 & 26 Vict, c. 14. As to forest claims there, 28 & 29 Vict. u. 28. As to the operation there of the "Ecclesias- tical Leasing Acts, 1842 and 1858," 29 & 30 Vict. 0. 81. As to the 7 Wm. 4 & 1 Vict. c. 45, s. 6, not applying there, 33 & 34 Vict. c. 51. As to the superannuation of officers there, 39 & 40 Vict. c. 43 ; 46 & 46 Vict. u. 46 ; as to colonial prisoners, 47 & 48 Vict. o. 31 ; as to Manx children and reformatory schools, 47 & 48 Vict. u. 40. As to savings banks there, SO & 61 Viot. o. 40. As to telegraphs and post offices there, 52 & 53 Viot. u. 34. S. IV.J COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 101 habeas corpus excepted) does process run there from the English courts («). [The Isle of Man was formerly a subordinate feudatory kingdom, subject to the kings of Norway; then to King John and Henry the third of England : afterwards to the kings of Scotland ; and then again to the crown of England ; and then at length we find king Henry the fourth claiming the island by right of conquest, and disposing of it to the Earl of Northum- berland; upon whose attainder it was granted (by the name of the lordship of Man) to Sir John de Stanley by letters patent 7 Hen. IV. {t). The island thereafter con- tinued for eight generations in the possession of the lineal descendants of Sir John de Stanley, the grantee of Henry the fourth, till the death of Ferdinando, Earl of Derby, A.D. 1594 ; when a controversy arose concerning the in- heritance thereof between Ferdinando's daughters and William his surviving brother ; upon which, and a doubt that was started concerning the validity of the origiaal patent {ii), the island was seized into Queen Elizabeth's hands, and afterwards various grants were made of it by King James the first, all which being expired or sur- rendered, it was granted afresh in 7 Jac. I. to William Earl of Derby, and the heirs male of his body, with remainder to his heirs general ; which last mentioned grant was the next year confirmed by Act of Parliament, with a restraint of the power of alienation by the said Earl and his issue male. On the death of James Earl of Derby, a.d. 1735, the male line of Earl William failing, the Duke of AthoU succeeded to the island as heir general by a female branch. In the meantime, though the title of king had long been disused, the successive Earls of Derby, as lords of Man, had maintained a sort of royal authority therein, by assenting to or dissenting from laws and exer- cising an appellate jurisdiction ; though an appeal always lay from their decrees to the sovereign of Great Britain in (») See Re Brown, 33 L. J. (N. S.) (0 Selden, Tit. Hon. 1, 3. Q. B. 193. («) Camden, Eliz. A.r. 1594. 102 INTKODUCTION. [council («). But the distinct jurisdiction of this little suhordinate royalty being found inconvenient for the pur- poses of public justice, and for the revenue, (affording as it did a commodious asylum for debtors, outlaws, and smugglers,) authority was given to the Treasury by statute 12 G-eo. I. c. 28, to purchase the interest of the then pro- prietors therein for the use of the Crown. And this pur- chase was completed in the year 1765, — and was confirmed by statutes 5 Geo. III. cc. 26 and 39, — whereby the whole island and all its dependencies so granted as aforesaid, (except the landed property and some other rights of the Atholl family,) became inalienably vested in the Crown {y). The islands of Jersey, Guernsey, Sark, Aldemey, and their appendages, (often called the Channel Islands,) were antiently parcel of the duchy of Normandy, and were united to the crown of England by the first princes of the Norman line (s). These islands are governed by their own laws, which are for the most part the ducal customs of Normandy, being collected in an antient book of very great authority, intituled Le Grand Coustumier (a). The writ or process of the sovereign from the English courts is in ordinary cases of no force in these islands (b) ; but his commission is (c). They are not bound by common Acts of the English parliament, unless particularly named. AU causes are determined in the first instance by their own {«) Christian v. Corren, I P. (a) See Hale, Hist. Com. Law, Wms. 329, . 0. 6. {y) An additional compensation (i) Inst, ubi sup. It may te for this cession was afterwards observed, however, that a writ of granted to the Duke of Atholl by habeas corpui ad subjiciendum lies 45 Geo. 3, 0. 123. And see 6 G-eo. 4, into the Channel Islands, under the 0. 34. provisions of 31 Car. 2, o. 2, and (a) As to these, see 4 Inst. 286 ; 56 Geo. 3, o. 100, (See Carus Calvin's case, 7 Rep. 20 b; Martin Wilson's case, 7 Q. B. 984.) v. M'Onllooh, 1 Moore, Priv. Couno. (c) As to appointing probate oom- Rep. 308. missioners there, see 21 & 22 Vict. 0. 95, s. 30. S. IV.J COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 103 [officers, the bailifEs and jurats of the islands {d) ; hut appeal lies from them to the sovereign in council in the last resort.] Sixthly, as regards the more distant possessions or dependencies of the British Crown in various quarters of the globe : — Most of these are usually called colonies, and whenever in the course of what follows that term is used, it is to be understood as referring to them all (e). Colo- nies, it is to be observed, are no part of the mother country, but distinct (though dependent) dominions. In general, they are either gained from other states by con- quest or cession, or else they are acquired by right of occupancy only, that is, by finding them desert and uncul- tivated, and peopling them from the mother country. Both the right by conquest or cession and that by occu- pancy are founded upon the law of nature, or at least upon that of nations. But there is a difference between the two species of colonies, with respect to the laws by which they are bound. For in conquered or ceded countries that have already laws of their own, those laws remain in force until changed by competent authority (/) ; and the common law of England, as such, has no authority there : [on the other hand, if an uninhabited country be discovered and planted by English subjects, all the English laws then in being — which are the birthright of every subject (gf) — are immediately there in force {K). But this must be understood with very many and very great restrictions; for such colonists carry with them only so much of the English law as is applicable to their new {d) As to the jurats and the con- (/) Campbell v. Hall, Oowp. 204 ; stitution of the Eoyal Court of 2 P. Wms. 75 ; Rex v. Vaughan, i Jersey, see Law Eep., 1 P. C. 94 ; Burr. 2500. Williams v. Stevens, ib. 352. {g) See Campbell v. Hall, ubi sup. if) As to the term "colony," see (A) Blankardi). Galdy, Salt. 4U; 28 & 29 Vict. u. 63, s. 1 ; c. 113, S. 0. 4 Mod. 215 ; see Smith v, s. 1 ; c. 116, s. 1 ; and 62 & 53 Vict. Brown, Salk. 666. 0. 63, 8. 18. 104 INTRODUCTION. [situation, and to the condition of an infant colony ; Such, for instance, as the general rules of inheritance, and of protection from personal injuries. The artificial refine- ments and distinctions incident to the property of a great commercial people, the laws of police and revenue (such especially as are enforced hy penalties), the maintenance of an established clergy, the jurisdiction of the spiritual courts, and a multitude of other provisions incident to special enactments, or which have resulted from special doctrines of the municipal law («'), are neither neces- sary nor convenient for them, and therefore are not in force.] The sovereign exercises, as to colonies of every descrip- tion, the right of appointing governors [j), and of issuing warrants for the appointment of officers, whether judicial, administrative or ecclesiastical (k) . The right of legislation, too, is in some cases vested in the Crown ; for any colony which has heen acquired hy conquest or cession is subject to such laws as the sovereign in council may impose (/), or to such as maybe imposed by any legislative council established ia the colony under the royal authority. This does not extend, however, to colonies acquired by occupancy ; for in these the Crown possesses no such legislative right. The sovereign may, nevertheless, in any colony, however acquired, direct the governor to summon a representative assembly from among the inhabitants themselves for the (i) Att.-Gren. v. Stewart, 2 Mer. appointed for the colonies ; as to 143 ; Wiicker ». Hume, 7 Ho. L. whom, see 31 Geo. 3, u. 31 ; 69 Ca. 134; Sen v. M'Kiimey, 14 App. Geo. 3, o. 60 ; 3 & 4 Vict. c. 33 ; Ca. 77; Cooper®. Stuart, ibid. 286. 5 & 6 Vict. c. 4, b. 119 ; 15 & 16 U) The term " governor " of a Vict. cc. 62, 63, 88 ; 16 & 17 Vict, colony is defined in 26 & 27 Vict. c. 49. (See Ee The Bishop of u. 84, B. 2 ; and see 52 & 53 Victj Natal, 3 Moo. P. C. (N. S.) 115; u. 63, s. 18. Aato the retiring pen- and Bishop of Natal {!. Gladstone, siom of colonial governors, see 28 Law Rep., 3 Eq. 1.) As to the & 29 Vict. 0. 113; 35 & 36 Vict. colonial clergy, see also 37 & 38 0. 29. Vict. c. 77. (/c) We may observe here, that, (Z) Calvin's case, 7 Rep. 17 b; of late years, bishops have been Campbell v. Hall, Oowp. 211. S. IV.] COUNTKIES SUBJECT TO THE LAWS OF ENGLAND. 105 purpose of interior legislation; and it is an established principle, that a conquered or ceded colony, to which the Crown has once thus granted a representative legislature, is no longer subject to legislation by the Crown (m) . Such would seem, ia a general point of view, to be the extent of the royal power in the colonies acquired either by con- quest, cession, or occupancy ; but in connection with this subject, it is proper also to notice the Foreign Jurisdic- tion Acts (m), by one of which (6 & 7 Vict. c. 94, s. 3) it was declared that it shall be lawful for her majesty to exercise any power or jurisdiction that she may have within any country or place out of her dominions, in the same and in as ample a manner as if such power or jurisdiction had been obtaiaed by cession or conquest (o) : and that every- thing done in pursuance of such power or jurisdiction in any place out of her majesty's dominions, shall within her dominions be deemed to be, to all intents and purposes, as valid as l£ done according to the local law then in force within such place ; and further, that if in any pro- ceedings, civil or criminal, it shall become necessary, in the opinion of the presiding judge, to produce evidence of the existence of such power or jurisdiction, questions properly framed shall be transmitted to a principal secre- tary of state, and his answers shall be final and conclusive evidence of the matters therein contained, and required to be ascertained thereby. Such being the nature of the authority of the Crown in our colonial possessions (as to which authority we may add that it is exercised through the agency of a principal secretary of state, called the secretary of state for the (m) Campbell v. HaU, ubi sup. ; («) The statutes so named form a Att.-Gen. v. Stewart, 2 Meriv. 158. group, commencing, in 1843, -with As to the powers of colonial legis- 6 & 7 Vict. o. 94, and ending, in latures, see 26 & 27 Vict. c. 84 ; 1881, with 44 & 45 Vict. c. 69. 28 & 29 Vict. 0. 63, b. 5. See also (o) See also 28 & 29 Vict. c. 116 ; Phillips v. Eyre, Law Eep., 6 Q. 29 & 30 Vict. u. 87 ; 36 & 37 Vict. B. 1. c. 59, and 38 & 39 Vict. c. 85. 106 INTRODUCTION. colonies), it is almost superfluous to remark that they are all, under all circumstances and whatever may be their poHtioal constitution, subject to the legislative control of the British parliament. It was the exercise by parliament of this general right, for the particular purpose of raising a revenue by colonial taxation, that led to that famous dispute between the mother country and her North American provinces, which ultimately terminated in the independence of the latter (p). The existence of the right in this, as in other cases, was during the controversy asserted by the Act 6 Geo. III. c. 12, which declared that all his majesty's colonies or plantations in America were sub- ordinate to, and dependent upon, the imperial crown and parliament of Great Britain, and liable to be bound by its laws and statutes, in all cases whatsoever; though by a subsequent statute (18 Geo. III. o. 12), it was thought expedient to add that no power of taxation, as regarded America, would for the future be exercised for the benefit of the mother country, a principle which has been since maintained with regard to all of our colonial possessions. But the general right of the mother country to legislate for the colonies is (exceptiag in the matter of taxation) still preserved, and is recognised in the Colonial Laws Validity Act, 1865 (q), which has enacted that (in efEeot) any colonial law that is repugnant to an act of the im- perial legislature extending to the particular colony shall be void to the extent of the repugnancy. Though it is competent to parliament to legislate for the colonies, yet a colony is not considered as affected by Acts of Parliament passed after its acquisition, and while it is subject to other legislative authority, (whether that of the sovereign in council, or of a local council, or as- [p) By 22 Geo. 3, c. 46, his ma- United States of America was ao- jesty was empowered to conclude a knowledged to be free, sovereign truce or peace with these colonies ; and independent, and by a definitive treaty signed at (3) 28 & 29 Vict. c. 63. Paris, 3rd September, 1783, the S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 107 sembly,) unless it be referred to in the Act by name, or by general description, such as " the colonies ; " or unless the Act be, in its nature, obviously intended to affect all our possessions wherever situate. In the case of a colony acquired by occupancy. Acts of Parliament passed before its acquisition come into force immediately upon that event, as part of the general law of England — as to all provisions at least not unsuitable to its social circum- stances. But a colony won by conquest or cession, is not in general affected by statutes of the united kingdom passed before its acquisition. Such being the general principles of law applicable to colonies, we may next advert to the actual constitution of those which at present belong to the British Crown (r). (r) As to these, see the following Acts : — Africa, 1 & 2 Geo. 4, i;. 28 ; 6 & 7 Viot. 0. 13 ; 21 & 22 Viot. i;. 35. Africa {South), 40 & 41 Viot. u. 47. Africa ( West), 1 & 2 Geo. 4, u. 28 ; 16 & 17 Vict. 0. 86 ; 24 & 25 Viot. u. 31 ; 34 & 39 Viot. o. 8. America, 6 Geo. 3, 0. 12 ; 59 Geo. 3, o. 38 ; 1 & 2 Geo. 4, 0. 66 ; 16 & 17 Viot. u. 107, ss. 181, 185, 187 ; 22 & 23 Viot. 0. 26 ; 35 & 36 Viot. o. 45. Australia, 18 & 19 Vict. o. 50 ; 24 & 25 Vict. c. 44 ; 36 & 37 Viot. c. 22 ; and [Australasia, defence of) 61 & 62 Viot. 0. 32. Australia [South), 6 & 6 Viot. 0. 61 ; 13 & 14 Viot. 0. 59 ; 24 & 25 Viot. o. 44 ; 25 & 26 Viot. c. 11 ; 29 & 30 Vict. c. 74. Australia ( West), 13 & 14 Vict. o. 69 ; 25 & 26 Viot. 0. 11 ; 29 & 30 Viot. u. 74. BechuanalandaioA Basutoland, 62 & 63 Viot. o. 38. British Co- lumbia, 22 & 23 Viot. 0. 26 ; 29 & 30 Viot. c. 67 ; 33 & 34 Viot. o. 66. British Sonduras, 44 & 45 Vict, c. 36. British Kaffraria, 28 & 29 Viot. c. 5. Canada, 14 Geo. 3, oc. 83, 88 ; 1 & 2 Geo. 4, o. 66 ; 6 Geo. 4, CO. 59, 75 ; 9 Geo. 4, o. 51 ; 3 & 4 Viot. c. 35 ; 14 & 16 Viot. 0. 63 ; 19 & 20 Viot. o. 23 ; 20 & 21 Viot. c. 34 ; 30 & 31 Viot. o. 3 ; 31 & 32 Viot. 0. 136 ; 32 & 33 Viot. 0. 11, s. 7 ; 0. 101 ; 34 & 35 Vict, c. 28 ; 38 & 39 Vict. oo. 38, 53 ; 49 & 50 Vict. cc. 13, 35 ; 62 & 53 Vict. c. 28. Cape of Good Mope, 28 & 29 Vict. 0. 6 ; 40 & 41 Viot. u. 17 ; 48 & 49 Viot. c. 7. China, 3 & .4 Will. 4, o. 93 ; 22 & 23 Viot. u. 9. Falkland Islands, 6 & 7 Vict. u. 13. Song Kong, 18 & 19 Viot. o. 104. Leeward Islands, 34 & 35 Viot. c. 107. New Brunswick, 14 & 15 Vict. c. 63 ; 20 & 21 Viot. o. 34 ; 30 & 31 Viot. 0. 3 ; 38 & 39 Viot. c. 38. Newfoundland, 49 Geo. 3, c. 27 ; 59 Geo. 3, o. 38 ; 6 Geo. 4, c. 67 ; 6 Geo. 4, 0. 59; 2 & 3 Will. 4, 0. 78 ; 5 & 6 Vict. c. 120 ; 12 & 13 Vict. c. 21 ; 36 & 36 Vict. u. 45. New South Wales, 54 Geo. 3, c. 15 ; 9 Geo. 4, u. 83; 5 & 6 Will. 4, 0. 62 ; 3 & 4 Vict. o. 62 ; 5 & 6 Viot. c. 76 ; 7 & 8 Viot. c. 74 ; 12 & 13 Vict. 108 INTRODUCTION. And here a greElt variety is observable. In every case they are subject to a local governor (the representative and deputy of the sovereign), who acts under the royal commission, and the royal instructions by which the commission is usually accompanied (s). In every case, 19 & 20 Vict. c. 35 : For the sale of encumbered estates therein, 17 & 18 Vict.o. 117 (amended and continued by 21 & 22 Vict. o. 96 ; 25 & 26 Vict. 0. 46 ; 27 & 28 Vict. c. 108 ; 35 & 36 Vict. c. 9 ; and provisions ■ioi its discontinuance contained in 49 & 50 Vict. c. 36) : For regulating the prisons there, 1 & 2 Vict. o. 67 : For increasing the number of bishop- rics therein, 5 & 6 Vict. c. 4 (see 31 & 32 Vict. c. 120) : For esta- blishing courts of appeal for certain of the West India Islands, 13 & 14 Vict, u. 15 ; and (as to the Windward Islands) 52 & 53 Vict. c. 33 : For enabling her Majesty to confirm an act passed by Antigua as to Barbuda, 22 & 23 Vict. 0. 13 : To authorize the ex- tension of a loan by West India relief commissioners to Dominica, 30 & 31 Vict. c. 91 : As to loan to Jamaica, 25 & 26 Vict. c. 56 ; 32 & 33 Vict, c. 69 ; 42 & 43 Vict. c. 16 : For the government of the Cayman Islands, 26 & 27 Vict. c. 31 : To make pro- vision for the government of Jamaica, 29 & 30 Vict. c. 12 : To annex the Turks and Caicos Islands to the colony of Jamaica, 36 & 37 Vict. u. 6 : To give an appeal from British Sonduras to Jamaica, 44 & 46 Vict. u. 36 ; Constitutions of St. Vincent, Tobago and Grenada, 39 & 40 Vict. u. 47 ; and for the union of Trinidad and Tobago, 60 & 51 Vict. u. 44. And as to the government of British settle- ments, see 50 & 51 Vict. c. 54. («) See 28 & 29 Vict. c. 63, s. 4, as to instructions to the colonial u. 22 ; 13 & 14 Vict, c 59 ; 18 & 19 Vict. c. 54 ; 24 & 25 Vict. ^. 44 ; 25 & 26 Vict. u. 11 ; 29 & 30 Vict. 0. 74. New Zealand, 3 & 4 Viot. c. 52 ; 9 & 10 Viot. u. 103 ; 10 & 11 Viot. i>. 112, o. 19 ; 11 & 12 Viot. u. 5 ; 12 & 13 Viot. ^. 79 ; 13 & 14 Viot. u. 70 ; 14 & 15 Viot. co. 84, 86 ; 15 & 16 Viot. c. 72 ; 20 & 21 Vict. 0. 63 ; 25 & 26 Viot. o. 48 ; 26 & 27 Viot. c. 23 ; 31 & 32 Viot. oc. 57, 92. Norfolk Island, 4 & 5 Will. 4, c. 65. Nova Scotia, 30 & 31 Viot. c. 3 ; 38 & 39 Viot. u. 38. Queen's Zand, 24 & 25 Vict. c. 44. Straits Settlements, 3 & 4 Viot. u. 66 ; 11 & 12 Vict. i>. 21 ; 18 & 19 Vict, u. 93 ; 20 & 21 Viot. u. 75 ; 29 & 30 Vict. 1=. 115 ; 30 & 31 Viot. c. 45, s. 17 ; 32 & 33 Viot. c. 88 ; 33 & 34 Viot. u. 65 ; 37 & 38 Vict. c. 38. Vancouver's Island, 12 & 13 Vict. 0. 48. Van Diemen' s Land, 6 G-eo. 4, 0. 39 ; 9 Geo. 4, c. 83 ; 5 & 6 Vict, c. 76, s. 53 ; 7 & 8 Vict. o. 74, s. 6 ; 10 & 11 Vict. 0. 67 ; ,13 & 14 Vict. c. 69 ; 26 & 26 Vict.o. 11 ; 29 &30 Vict. c. 74. Victoria, 54 Geo. 3, c. 15 ; 2 & 3 Viot. o. 70 ; 6 & 6 Viot. 0. 76 ; 7 & 8 Viot. oo. 72, 74 ; 13 & 14 Viot. c. 69 ; 18 & 19 Vict, c. 66 ; 25 & 26 Viot. c. 11 ; 29 & 30 Viot. 0. 74. Moreover, with re- spect to the West Indies, ■we may notice the following Acts : For the relief of certain Colonies a/nd planta- tions therein, 2 & 3 Will. 4, o. 125 ; 5 & 6 Will. 4, c. 51; 3 & 4 Vict. 0. 40 ; 7 & 8 Vict. c. 17 ; 8 & 9 Vict. c. 50 ; 11 & 12 Viot. c. 38 ; S. IV.] COUNTBIES SUBJECT TO THE LAWS OF ENGLAND. 109 too, the law is aduiinistered hj local judges deriving their authority from, but not in all cases appointed by, the crown; and an appeal is universally allowed from the decision of those judges to the sovereign iu council here in England. But in other particulars our colonies differ widely from each other in their plan of government, some of them having received the gift of English laws, others remaining subject to the codes of foreigners, their former masters ; some remaining under the legislative power of the crown itself, and others receiving their laws from a local legislative council, or from representative assemblies, estabhshed by authority of the crown or of parliament. With respect to those possessing assemblies of this latter description, it may be said that their whole interior policy is in general modelled upon that of the mother country. For having a governor (the repre- sentative of royalty), and royal courts of justice, they have also a local council, forming a sort of upper house, ia addition to their general assembly, corresponding with our House of Commons : who, by their united authority, make laws suited to the necessities or requirements of the colony (t), — subject only to such restrictions as result from the subordination of these local establishments to the im- perial parliament. But acts of assembly not only require the assent of the governor as representing the crown, be- fore they can come even into temporary operation, but are liable to be afterwards annulled by a notification from this country of their having been disallowed by the sove- reign in council (u). This subject is now also partly regulated by the Act 28 & 29 Vict. c. 63, passed "to remove doubts as to the validity of colonial laws," and which Act has been already referred to. And by that Act, it has been declared, that any colonial law repugnant in any respect to the provisions of any Act of Parliament government from the mother country; (f) Vide post, bk. iv. pt. i. e. v. see also 50 & 51 Viot. o. 54. {«) Clark's Colonial Law, 41. 110 INTRODUCTION. extending to the colony, shall be void and inoperative to the extent of such repugnancy («) ; on the other hand, that no colonial law, unless bo made void and inoperative, is affected hy its repugnancy to the law of England (2/) ; and further, that every colonial legislature (as defined in the Act) may establish courts and regulate the adminis- tration of justice in the colony ; and that every representa- tive legislature (as defined in the Act) may mate laws as to its own constitution, powers, and procedure (z). Thus much as to our settlements in general (a). But (») 28 & 29 Vict. 0. 63, s. 2. (y) Sect. 3. See also 16 & 17 Viot. D. 107, B. 19Q. (z) By 28 & 29 Viot. u. 63, the term "colonial legielatixre " is to include any authority (other than the imperial parliament or her Ma- jesty in council) which is compe- tent to make laws for the colony or British possession ; and see also 52 & 53 Vict. u. 63 ("The Interpretation Act, 1889 "j, s. 18, which contains proTisions to the same effect. By the statute 48 & 49 Viot. 0. 60, pro-vision has been made for the constitution of a Federal Council for Australasia, as defined hy the Act. (a) "We may here notice the fol- lowing statutes applicable to our colonies in general. As to the appre- hension of fugiti/ve offenders, 44 & 45 Viot. c. 49. As to the removal of prisoners, 47 & 48 Viot. c. 50. As to evidence, 6 & 7 Vict. c. 22. As to letters-patent, 26 & 27 Viot. u. 76. As to registration of English com- panies in the colonies, 46 & 47 Vict. u. 30. As to the jurisdiction of the admiralty, 12 & 13 Viot. c. 96 ; 23 & 24 Vict. 0. 88. As to the post-offiee, 12 & 13 Vict. c. 66. As to the proof of acts of state and legal s, 14 & 16 Vict. c. 49, s. 7. As to the revenues of the crown, 15 & 16 Viot. c. 39. As to lighthouses, 18 & 19 Vict. c. 91. As to crown lands, and the emigra- tion commissioners, 18 & 19 Viot. u. 119. As to the ascertainment of the law, 22 & 23 Viot. u. 63 ; 24 & 25 Vict. 0. 11. As to Me relief of colonial attorneys, 47 & 48 Vict. 0. 43. As to the trial of criminals, 23 & 24 Vict. 0. 122. As to writs of habeas corpus, 26 & 26 Viot. u. 20. As to merchant shipping in- quiries, 45 & 46 Viot. 0. 76. As to certain Acts of legislatures, 26 & 27 Vict. u. 84. As to their naval defence, 28 & 29 Viot. c. 14. As to the validity of certain mar- riages, 28 & 29 Vict. 0. 64. As to gold coins from hremoh mints, 33 & 34 Vict. u. 10. As to the registration of ships, 31 & 32 Vict. 0. 129. As to the prevention of kidnapping, 36 & 36 Viot. c. 19, amended by 38 & 39 Vict. o. 51. As to the trial of crimes committed out of the local jurisdiction, 37 & 38 Viot. c. 27. As to stoeh, 40 & 41 Vict. 0. 59. As to fortifications, works, huildings and land, 40 & 41 Vict. u. 23. As to pensions for colonial services, 50 & 51 Vict. c. 13. S. IV.J COUNTKIES SUBJECT TO THE LAWS OF ENGLAND. Ill there is a large class of them in the West Indies and else- where, which require our separate attention, on account of their connection with the former system of colonial slavery. From -the earliest period of their acquisition, the produce of these colonies had heen raised by the compulsory labour of the negro race; and notwithstanding the peculiar freedom of her own institutions, and the pure form of Christianity which she professes, the mother coimtry, until early in the present century, had never hesitated to lend her sanction to that method of cultivation (6). The con- science of the British pubKo was, however, at length awakened first, to the atrocity of the traffic by which these plantations were continually supplied with new victims from the coast of Africa ; and at a later period, to the nature of the colonial bondage itself, which was shown to exceed even the servile system of Pagan Eome in its severity, and to be without parallel in the history of human oppression. The slave trade, after a long and obstinate opposition from the parties interested, was abolished in 1807 (c) — and after another protracted interval, during which the duty of ameliorating the condition of the negroes in the colonies was confided (but in vain) to the colonial legislatures, the imperial parliament at length resolved to put an end, as from 1st August, 1834, to the system of slavery itself; and the abolition of colonial slavery was carried into effect by an Act passed in 1833 (d) . To justify this measure, however, it was thought necessary to award to the then slave proprietors the sum of twenty millions (A) Several of our statutes gave case, 11 St. Tr. 340 ; LofEt, 1. sanction to this system, as already (o) 47 G-eo. 3, st. 1, c. 36. The estabUshed by the local laws of the foreign slave trade, viz. the supply colonies (see Porbes ». Lord Coch- of foreign countries with slaves, rane, 2 Bam. & Cress. 469) ; yet was abolished in 1806, by stat. the condition of slavery has been 46 G-eo. 3, o. 52 ; and the supply long pronounced by our courts to of our own conquered colonies had be repugnant to the genius of the been previously forbidden by order municipal law of England ; see the in coimcil in 1805. case just cited, and Somersett's (rf) 3 & 4 Will. 4, c. 73. 112 INTRODUCTION. sterling, in compensation for tlie loss they sustaiaed, — and also to interpose a certain period of probation during -wlucli the slaves, instead of passing suddenly into absolute liberty, should be considered as apprentices, and be held in that species of subjection to their former masters. But in the result, the masters themselves found it expedient to abandon the system of apprenticeship before the prescribed time had expired ; and, by acts of their own legislatures throughout the diEEerent colonies, admitted their appren- tices into the state of pure freedom at a period somewhat earlier than they would otherwise have been entitled to its enjoyment (e). Our possessions iu the East Indies (or in India) are also entitled, from their superior extent and importance, to specific notice. In 1708 two rival associations existed in England for the purposes of the East India traffic ; but in that year these two associations were consolidated into one by Act of Parliament (/), with the exclusive privilege of trading to the East Indies and other specified places (gf) ; — a privilege repeatedly renewed by successive subsequent grants. This new body was originally incorporated by the name of " The United Company of Merchants of England trading to the East Indies ; " but convenience attached to them the shorter appellation of " The East India Company," which afterwards became by express provision their proper legal style (A). In the progress of their well-known history, they crushed upon the Indian peninsula the power of the rival settlers from France ; and though first insti- tuted for purposes merely commercial, their policy, as ad-ministered by the governors whom they sent out, gradu- (e) Besides the Acts above cited, Vict. o. 86 ; 36 & 37 Vict. o. 59, o. see also the following, connected 88 ; 39 & 40 Vict. c. 46 ; and 42 & with the subject of slavery and its 43 Vict. c. 38. suppression: 9 Geo. 4, o. 84; 6 & 6 (/) 6 Ann. u. 71, s. 13. Will. 4, i:. 45 ; 6 & 7 Will. 4, o. 6, (ff) See 9 &.10"Will. 3, o. 44, s.Sl. c. 16, I,. 82; 7 Will. 4 & 1 Vict. (h) 3 & 4 Will. 4, u. 85, s. 111. 0. 91 ; 4 & 6 Vict. o. 18 ; 16 & 17 S. IV.J COUKTRIES SUBJECT TO THE LAWS OF EKGLAND. 113 ally led to the acquisition of immense territorial dominions, ; by which they hecame effectively (though subject to the undoubted supremacy of the British Crown) the sovereigns of India («). The unexampled grandeur of this company rendered the regulation of its affairs, for a long period of our history, an object of the highest interest and import- ance to the British nation. In consequence of the preva- lence of great abuses, its constitution was newly arranged in 1773 by an Act of Parliament (k), prescribing the manner in which its Directors should be chosen from among its members, and the qualification which should entitle a member to vote in its affairs (l). In 1784, its administra- tion of the East was brought under the superintendence of the executive government at home, by the establishment of the Board of Commissioners for the affairs of India, which operated as a check upon the Directors, and was afterwards generally called the " Board of Control " (m). Still, how- ever, its commercial monopoly remained entire; but in 1813 it was provided by the Act then passed for the tem- porary renewal of the company's charter, that the trade from all places except China, an^ in all commodities except tea, should be thrown open (under certain restrictions and limitations) to every subject of the realm («). And this proved but the prelude to a stiU more important change ; for the expediency being at length generally recognized of admitting the capital of our private merchants to a free participation in every branch of the Indian traffic, an arrangement was accordingly inade with the company for that purpose in 1832. This was carried into effect by the statute 3 & 4 Will. IV. c. 85 ; -under which such exclusive rights of trading as the company still retained were abolished, (j) See Gibson v. East India and amended by 21 Geo. 3, o. 70. Company, 5 Bing. N. 0. 272; {I) 13 Geo. 3, o. 63, ... 5. Mayor of Lyons v. East India (m) 24 Geo. 3, sess. 2, o. 25, and Company, 1 Moore, Priv. Couno. see 26 Geo. 3, c. 16, and 23 Geo. 3, Rep. 374. f. 52. (*) 13 Geo. 3, c. 63, explained («) 63 Geo. 3, c. 155, a. 7. VOL. I. I 114 INTRODUCTION. and the company was debaired from engaging for the future in commercial transactions (o). And though the territories and other property in their possession, with the exception of St. Helena (which was by the same statute vested in the crown), were allowed to remain under the government of the company, this was declared to be " in trust " only for "his majesty, his heirs and successors" (p). As for the local government of India, it was committed to a governor- general and a board of councillors, who, under the style of " The Govemor-Greneral of India in Council " (q), were in- vested with a superintending authority over all the local Indian governments called Presidencies, in all points relating to their civil and military administration (r) ; and with power to make laws for all persons, whether British or native, throughout the whole of the territories, and for aU servants of the company within the dominions of allied states (s) ; subject, however, to a power in the Court of Directors to disallow any law so made {t) ; and also subject to the superintending and paramount authority of the imperial parliament (z«). The ecclesiastical establishment of India was also remodelled by the same Act, and pro- vision was thereby made for founding two bishoprics — those of Madras and Bombay — in addition to the diocese of Calcutta, already established. The Bishop of Calcutta, however, was declared to be the metropolitan bishop in India, with such jurisdiction and functions as the sovereign by letters patent should direct, subject nevertheless to the general superintendence and revision of the Archbishop of Canterbury («). By 3 & 4 WUl. IV. c. 85, the territories of India were to continue under the government of the (o) 3 & 4 WiU. 4, 0. 85, 8. 3. (i) Sect. 44. {p) Sects. 1, 2. («) Sect. 81. (q) Sect. 39. As to the powers of (a;) Sect. 94. See also the Acts the Governor- General of India in referred to, sup. p. 104, n. (k). As GouncU, seealso 32 & 33 Vict. o. 98. to Indian bishops on furUugh, see {«•) 3 & 4 WiU. 4, 0. 85, s. 65. 34 & 35 Viot. c. 62, and 37 & 38 (s) Sect. 43. Vict. i-.. 13. S. IV.J COUNTRIES SUBJECT TO THE tAWS OF ENGLAJ«D. 115 East India Company until 30th April, 1854, but before the arrival of that time it was provided by another statute (16 & 17 Yict. c. 95) that even after that time these terri- tories should so continue until parliament should otherwise provide. Such new provision, however, was in fact shortly afterwards made, and it was hastened by circumstances of an unexpected and disastrous kind. The Sepoy soldiery in India, having been led early in 1857 to entertain the belief that government was about to compel them in the course of their military duty to bite cartridges greased with the fat of certain animals (an act abhorrent from the Hindoo superstition, and fatal to caste), broke out into open mutiny, which soon ripened into an extensive rebellion of the natives in general against the British power, in the course of which many fearful atrocities were committed by them, and which was not suppressed till the close of 1858. Under these circumstances it appeared to parliament in the course of that year that a time had now arrived at which, for the more effectual administration of affairs, it was expedient that the crown should take to itself the sole and unqualified dominion over India; and by 21 & 22 Vict. 0. 106 (intituled An Act for the better Government of India), it was accordingly provided that all powers and rights vested in the East India Company in trust for her Majesty should cease, and should become vested in her and be exercised in her name (y) ; and, conformably to this, the Act was soon afterwards followed by a proclamation of the Queen in council to the princes, chiefs and people of India, in which she formally claimed their allegiance. This Act, besides providing for the direct sovereignty of the English crown in India (s), contained also specific provisions more or less ancillary thereto, that is to say, — provisions for the determination of the functions and (y) Some years later, viz., in Viot. e. 17. 1874, the Company was dissolved (z) 21 & 22 Viot. c. 106, s. 1. by Act of Parliament, 36 & 37 i2 116 INTRODUCTION. powers theretofore vested in the Court of Directors and Court of Proprietors in relation to the government of India (a), and for the abolition of the Board of Control (b), and the provision that all persons who then held offices, employments or commissions, under the company in India, should thenceforth he deemed to hold them under her Majesty and be paid out of the revenues of India (c) ; and it contained also a great variety of enactments as to the manner ia which the busiaess to be transacted in this country, in relation to the Indian government, and the correspondence therewith, should in future be conducted (d), the general effect of which was, that such busiaess and correspondence were to be conducted by a principal secretary of state in council (e) ; and that such council — of which he was to be president, with a power himself to vote (/) — should consist of fifteen members (g), under the style of the "Council of India," by way of distinction from the council of the governor-general already estab- lished in that country (h) ; and that the members of the council should be salaried (»), and should hold office during good behaviour (/), but were not to be capable of sitting or voting in parliament (A) ; and by another of the enact- ments of this statute, it was provided, that all Acts and provisions then in force, under charter or otherwise con- cerning India, should, subject to the provisions of the statute, continue in force ; and be construed as referring to the secretary of state in council, in lieu of the company and the court of directors and court of proprietors thereof (/). (a) 21 & 22 Viot. o. 106, s. 60. reduced, but not below ten. {b) Sect. 61. (A) Sect. 7. (c) Sect. 58. (i) Sect. 13. (0) Sect. 19. {/) Sect. 11. (e) Sects. 3, 21. (A) Sect. 12. As to the oonstitu- (/) Sect. 21. tion of the " Covmcil of India," see ig) By the Council of India also 39 & 40 Vict. u. 7. (induction) Act, 1889 (52 & 53 {I) 21 & 22 Viot. o. 106, s. 64. Vict. c. 65), this number may be Some of the principal statutes re- S. IV.J COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 117 With a view to the recognition of the transfer of government from the East India Company to her Majesty- effected hy the statute 21 & 22 Yiot. c. 106, ahove mentioned, and for divers other weighty reasons of state, it was subsequently thought expedient that an appropriate alteration should take place in the style and titles appertaining to the Imperial Crown of the United Kingdom and its dependencies ; and accordingly, under the 39 & 40 Yict. c. 10, and a Eoyal Proclamation made under the authority of that Act, her Majesty, in the year 1876, added to her previous style and titles the title " Empress of India." lating to India prior to 1858 are referred to sup. pp. 113, 114. In addition to these, the following may- be here noticed. As to administra- tion of justice, 37 Geo. 3, c. 142 ; 39 & 40 Geo. 3, o. 79 ; 4 Geo. 4, 0. 71 ; 6 Geo. 4, u. 85 ; 9 Geo. 4, u. 74. As to trade with India and China, 3 & 4 WiU. 4, u. 93 ; 3 & 4 Vict. c. 56 ; 16 & 17 Viot. u. 107, ss. 327, 329 ; 17 & 18 Viot. u. 104, s. 108. As to the directors, the presidencies, the governor- general and his council, and the age, quali- fications and appointment of mem- bers of the civil or military service of the company, 5 & 6 Will. 4, 0. 62 ; 16 & 17 Vict. co. 95, 107 ; 17 & 18 Vict. 0. 77. The statutes relating to India which have passed iwce the 21 & 22 Viot. u. 106, comprise the follow- ing : — As to revenue, &o., 22 Vict. 0. 11 ; 22 & 23 Viot. o. 39 ; 23 & 24 Vict. 00. 5, 102, 130 ; 24 & 25 Viot. 00. 3, 25, 118 ; 25 & 26 Viot. c. 7 ; 26 & 27 Viot. c. 73 ; 32 & 33 Vict. 0. 106 ; 34 & 35 Vict. c. 29 ; 36 & 37 Viot. c. 32; 37 & 38 Vict. o. 3; 40 & 41 Vict. 0. 51. As to loans to India, 44 & 45 Vict. c. 64 ; 45 & 46 Viot. 0. 79 ; 48 & 49 Viot. co. 28, 67. As to India stock, 44 & 45 Viot. 0. 63 ; and unclaimed stock, 48 & 49 Vict. 0. 25. As to the army and naval force, 23 & 24 Viot. c. 100 ; 29 & 30 Vict. o. 47 ; 31 & 32 Vict. 0. 38 ; 37 & 38 Vict. 0. 61 ; as to the marines, 47 & 48 Vict. c. 38. As to the civil ser- vice, 24 & 25 Vict. 0. 54 ; 33 & 34 Viot. 0. 3. As to the council of the governor-general, and the go- vernment of the presidencies and provinces, &c., 24 & 25 Vict. c. 67 ; 28 & 29 Vict. 0. 17 ; 32 & 33 Vict. CO. 97, 98 ; 33 & 34 Viot. c. 3 ; 34 & 35 Vict. 0. 34 ; 37 & 38 Vict. 0. 91. As to the courts of justice, &o., 24 & 25 Vict. 0. 104 ; 28 & 29 Vict. 0. 15 ; 34 & 35 Viot. c. 34 ; 37 & 38 Viot. c. 27. As to the " elder widows' fund," 36 & 37 Vict. 0. 17 ; 41 & 42 Vict. c. 47. As to the "Bombay civil fund," 45 & 46 Vict. u. 45 ; and see Ex parte Pringle, 39 Ch. Div. 300. As to the purchase of the Oude and Eohilkund Kailway, and the construction of railways by con- tract, 61 & 52 Viot. c. 5, 118 INTRODUCXrON. [With regard to any foreign dominions which may happen in the course of events to belong to the person of the sovereign by hereditary descent, hy purchase or other acquisition — as these do not in anywise appertain to the crown of these kingdoms, so they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever.] S. v.] OF THE KINGDOM OF ENGLAND ITSELF. 119 SECTION V. OF THE KINGDOM OF ENGLAND ITSELF. [We come now to consider the kingdom of England in particular, the immediate subject of those laws, which we are to treat of in these Commentaries ; and the first point to observe is, that the high seas are, in one sense, part of the kingdom of England proper, for thereon the English courts of admiralty have jurisdiction, although they may not he subject to the common law strictly so called. The high seas begin at the low water-mark and extend outwards, a distinction being taken for certain limited purposes between the first three miles extending outwards from the low water-mark (m) and the sea beyond such three miles limit ; and as regards the space between the high water- mark and the low water-mark, where the sea ebbs and flows, the common law and the admiralty have alternate jurisdiction, according as the tide ebbs and flows, the common law having jurisdiction on the land, and the admiralty on the water (w). (»») Co. Litt. 260. The extent tion Act, 1878). See alao the Sea of admiralty juiisdiotion in respect Fisheries Act, 1883 (46 & 47 Vict, of offences committed by foreigners u. 22), regulating the North Sea ■within three miles of the English fisheries outside territorial waters ; coast was much discussed in the also, the Submarine Telegraphs case of The Queen v. Keyn, Act, 1885 (48 & 49 Vict. c. 49; 2 Ex. D. 63, and has now been amended by the 50 Vict. c. 3). made the subject of express legis- («) Knob, L. 78 ; Constable's lation. See 41 & 42 Vict. o. 73 case, 5 Sep. 107 a, (The Territorial Waters Jurisdic- 120 INTRODUCTION. [All the territory of England is comprised in two divisions, the one of which is ecclesiastical, and the other civil (o). 1. The ecclesiastical division is, primarily, into two provinces, those of Canterhiiry and York. A province is the circuit of an archhishop's jurisdiction. Each province contains divers dioceses, or sees of suffragan hishops (p) ; and every diocese is divided into archdeaconries, each archdeaconry into rural deaneries, and every rural deanery into parishes (q). A parish is that circuit of ground which is committed to the charge of one parson, or vicar, or other minister having cure of souls therein (r). How antient the division into parishes is, may at present be difficult to ascertain ; for it seems to be agreed on aU hands, that, in the early ages of Christianity in this island, parishes were unknovsTi, or at least signified the same that a diocese does now(s). There was then no appropriation of ecclesiastical dues to any particular church ; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some ; or if he (o) As to the territorial divisions eeses. of England, some valuable infer- {q) Oo. Litt. 94. The number mation will be found in the preface of parishes and population of each to the Population Abstract of 1831, diocese in 1831 are given in the vol. i. p. xiv. Population Abstract of that year (p) Bishops are heretermed"suf- (vol. i. p. xix.). fragan " (a word signifying rf«pM«) These Acts do not extend to (o) As to voters in arrear of London or Southwaik, or to any rates, see 16 & 17 Vict. o. 65. As parish created under the Chuioh to the manner of voting, see R. v. Building Acta for ecclesiastical Eeotor of Birmingham, 7 Ad. & El. purposes only, and not separately 254. maintaining its own poor. (See {p) See Reg. v. Hedger, 12 A. & The Queen i.-. Barrow, Law Rep., E. 157. 4 Q. B. 577.) (?) ^- "• St. Pancras Trustees, 5 («) By 7 Will. 4 & 1 Vict. c. 45, Nev. & M. 219 ; R. i:. Vestry of St. the notice for calling a vestry is to Mary-le-bone, 5 Ad. & El. 268. By be affixed on or near the church 18 & 19 Vict. c. 120, s. 1, the stat. door, without any publication (as 1 & 2 Will. 4, c. 60, is repealed as formerly) in the parish church. to the metropolis; and vestries of a new constitution are created there. 126 INTRODUCTIO.V. ment, made subject to the control of the Poor Law Board (r). On the subject of parishes it only remains to be observed that, by certain statutes lately passed for extending church accommodation, and making more effectual provision for the cure of souls (s), — it is provided that by such autho- rities and under such circumstances, and with such con- sents, as therein specified, any part or parts of any parish may be constituted a separate district {t), for spiritual purposes; and that any parish may also be divided iato two or more distinct and separate parishes, for all eccle- siastical purposes whatsoever («j). In pursuance of which provisions many such new constitutions and divisions have, for purposes of that description, accordingly taken place (x). (r) See 4 & 5 Will, i, o. 76, ss. 21, 54 ; 10 & 11 Vict. c. 109, s. 10 ; Queen v. Green and others, 21 L. J. (M. C.) 137. See also 13 & 14 Vict, c. 57, enabling the Poor Law Board upon application of the chuioh- wardens, pursuant to a resolution of vestry, in an.y parish where the population exceeds 2,000 by the then last census, to make an order for the appointment of a paid vestry cleric, whose duties the Act defines. {«) The most important of these statutes are 68 Geo. 3, c. 45 ; 59 Geo. 3, e. 134 ; 6 & 7 WiU. 4, u. 77 ; 3 & 4 Vict. c. 113 ; 6 & 7 Viot. 6. 37 ; 7 & 8 Viot. o. 94 ; 19 & 20 Viot. CO. 55, 104. (See also as to division into separate benefices, 1 & 2 Viot. u. 106, s. 16 ; 2 & 3 Vict. C. 49, 8. 6.) A further account of these statutes will he found post, bk. IV. pt. II. u. rv. (t) See 6 & 7 Vict. u. 37, s. 10 ; 7 & 8 Vict. c. 56, s. 6, as to the registration of a map or plan of the boundaries of districts formed under these Acts. (u) See also 45 & 46 Vict. u. 58. Some of the Acts also authorized the establishment of select vestries for ecclesiastical purposes (see 59 Geo. 3, u. 134, o. 30; 3 Geo. 4, c. 72, s. 10) ; but these vestries have been abolished by 14 & 15 Viot. c. 97, B. 23. {x) With respect to parishes, see 2 & 3 Vict. o. 62, ss. 34—36 ; 3 & 4 Viot. u. 15, s. 28 ; 8 & 9 Vict. 0. 118, s. 39; and 12 & 13 Viot. c. 83, providing that the antient boundaries between parishes and townships may be adjusted, or new boundaries defined (see E. ». Made- ley, 15 Q. B. 43). See also the stat. 5 & 6 Viot. o. 18, authorizing the sale of parish property and paying parish debts out of the poor rate;— the 19 & 20 Vict. c. 60, enabling parishioners, &c., to sell advowsons held by or in trust for them; the 23 & 24 Vict. c. 30, enabling two-thirds of the rate- payers of a parish to make rates for maintaining public walks, &c. therein ; and the 45 & 46 Vict, c. 15, providing for the application S. v.] OP THE KINGDOM OF ENGLAND ITSELF. 127 And thus mueli for the ecclesiastical division of the terri- tory of England. II. [The civil division of the territory of England is into counties, of those counties into hundreds, and of those hundreds into tithings or towns. This division is of remote and undefined antiquity ; and was not peculiar to England, similar distrihutions having been in use among several nations of the continent {y). As to the tithings, they were so called, from the Saxon, because ten free- holders with their families composed one. These all dwelt together, and were sureties or free pledges to the king, for the good behaviour of each other ; and if any offence was committed in their district, they were bound to have the offender forthcoming (z). And therefore antiently no man was suffered to abide in England, above forty days, unless he were enrolled in some tithing or decennary (a). One of the principal inhabitants of the tithing was annually appointed to preside over the rest, being called the tithingman, the headborough, (words which speak their own etymology,) and in some counties, the borsholder, or borough's-ealder, being supposed the discreetest man in the borough, town, or tithing (J). Tithings, towns, or viUs, are of the same signification iu law ; and are said to have had each of them originally a church with the celebration of divine service, sacraments and burials : though that seems to be rather an ecclesi- astical than a civil distinction (c). The word town (d) or of the compensation paid to pa- {«) Flet. 1, 47. rishes on the extinction of their {a) Mirr. o. 1, s. 3. rights of common. (*) Jac. Diet. v. Headborough. (i/) The division has been ascribed (c) Co. Litt. 115 b. to Alfred, but Mr. Hallam ques- (rf) As to the legal meaning of tions his claim to the distinction, the- word "town," see Elliott v. and observes that counties are men- South Devon Railway Company, 2 tioned in the Laws of Ina. (See Exch. 729 ; Ex parte Incumbent, Hallam's Middle Ages, vol. ii. pp. &c., of Brompton, 22 L. J., N. S. 389. 402.) (Oh.) 281 ; London and South 128 INTRODUCTION. [vill is indeed, ty the alteration of times and language, now become a generieal term, comprehending under it several species and varieties.] Taken in this sense, towns are distinguished from each other as being either corpo- rate or not corporate ; the townsmen forming, in the first kind, a corporation, that is, a society, with certain legal properties and capacities, on the nature of which we shall treat at large in a subsequent division of these Commen- . taries ; and shall at the same time consider the provisions of the Act for regulating municipal corporations (45 & 46 Yict. c. 50), by the effect of which, all towns of this description are now placed under one uniform plan of internal government (e) . There are also market-towns, that is, towns which are entitled to hold markets ; and there are others which have not that franchise. And, lastly, towns are divided into cities, boroughs, and common towns. The cities of this kingdom either are or have been sees of bishops; yet there is no necessary connexion between a city and a see (/) ; and though the bishopric be dissolved, yet still the town remaineth a city {g). A borough is a town that sends (or hath sent) burgesses to parliament {h), a privilege the nature of which we shall Western EaUway Company v. 2 Bum, Ecc. Law, 542, 7th ed. ; Blaokmore, Law Eep., 4 H. of L. Co. Litt. by Harg. 109 b, n (3). 6H. The 51 & 52 Vict. o. U (oaUed the (e) As to municipal corporations, Westminster Ahhey Act, 1887), vide post, bk. iv. pt. ni. c. i. contains provisions for the transfer (/) See 1 Woodd.302; Jao. Diet. of the property of the Beau and in tit. City. Chapter to the Ecclesiastical Com- {g) Co. Lit. 109 b. The town missioners, and for the future more of Weatmimter was made a city by efBcient maintenance of the fabric Hen. VIII. when he made it the of the Abbey. seat of one of the new bishoprics (A) 1 Bl. Com. 114 ; Litt. s. 164 •' founded out of the revenues of the Co. Litt. 108 b, 109 a. In the dissolved monasteries ; it was re- Municipal Corporations Act 45 & stored to the diocese of London in 46 Vict. c. 50, a "borough" is the reign of Edw. VI. ; and Eliza- " any city or town to which the beth turned Westminster into a col- Act applies." In 31 & 32 Vict, legiate church, subject to a dean. c. 41 (The Borough Electors Act See Chitty's Black. vol.1. p. 109, «.; 1868), the term "parliamentary S. v.] OF THE KINGDOM OF ENGLAND ITSELF. 129 explain in that part of the work whioh relates to Parlia- ment (j). According to Sir Edward Coke, there were in his time, in England and Wales, 8,803 towns, or there- ahouts (k) . [To several of them there are small appendages belonging, called hamlets ; which are taken notice of in the Statute of Exeter (14Edw. I.), wherein frequent men- tion is made of " entire vills," " demi-vills," and " ham- lets." Entire vills. Sir Henry Spelman conjectures, to have consisted of ten freemen or frank-pledges, demi-vills of five, and hamlets of less than five (/). These little col- lections of houses are sometimes under the same adminis- tration as the town itself, sometimes governed by separate ofiicers ; in which last case they are, for some purposes iu law, looked upon as distinct townships. These towns, as was before hinted, contained each originally but one parish and one tithing ; though many of them now, by the in- crease of inhabitants, are divided into several parishes and tithings ; and, sometimes, where there is but one parish, there are two or more vills or tithings. As ten families of freeholders made up a town or tithing, so ten tithings composed a superior division, called a hundred, as consisting of ten times ten families. The hundred is governed by a high constable or bailiff {ni) ; and borough" meant a borough ■which (4) Co. Litt. 116 a. prior to the Representation of the (f) Grloss, 274. People Act, 1867, returned a mem- (w) As to high constables, how- ber or members to parliament; and ever, see 32 & 33 Vict. u. 47. a "municipal borough," a place Blaokstone says (vol. i. p. 115), subject to the provisions of 5 & 6 that the division of hundreds ob- Will. 4, c. 76 ; and these definitions taiued formerly in Denmark and in are accepted in the Parliamentary France, each hundred being subject and Municipal Kegistration Act, to a c&ntenarius, over a number of 1878 (41 & 42 Vict. e. 26), and as whom presided a comes or count, so accepted are adopted in the He adds, that in France the divi- Eepresentation of the People Act, sion was instituted by Clotharius 1884 (48 Vict. u. 3), and iu the and Childebert, with a view of Eedistribution of Seats Act, 1885 obliging each district to answer for (48 & 49 Vict. u. 23). the robberies committed in its own (») As to the Parliament, vide division ; and we may remark that post, bk. rv. pt. i. c. i, in our own country, the hundred is VOL. 1. K 130 INTRODUCTION. [formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse («). In some of the more northern counties these hundreds are called wapentakes (o) . An indefinite number of these hundreds make up a county or shire. Shire is a Saxon word signifying a division ; but a county, comitatus, is plainly derived from comes, the count of the Franks ; that is, the earl or alder- man, (as the Saxons called him,) of a shire, to whom the government of it was entrusted. This he usually exer- cised by his deputy, still called in Latin vice-cbmes, and in English, the sherifif, shrieve, or shire-reeve, signifying the oflScer of the shire ; upon whom, by process of time, ihe civil administration totally devolved. In some counties there is an intermediate division between the shire and the hundreds, as lathes in Kent, and rapes in Sussex (p) ; each of them containing about three or four hundreds a-piece (9)^ These had formerly their lathe-reeves and rape-reeves, acting in subordination to the shire-reeve. Where a county is divided into thi-ee of these intermediate jurisdictions, they are called trithings, which were an- tiently governed by a trithing-reeve (»•). These trithings made hj statute answerable for the jurisdictions, and of earlier date. — riotous and tumultuous demolition (Population Abstracts, 1831, vol. 1. of churches and certain other build- p. xv.) ings and machinery, and for plunder (j) Por some purposes connected of wreck. with magisterial business, certain (») As to the himdred court, vide counties are severed into divisions. post, bk. V. u. 17. (See 10 Geo. 4, 0. 46; 6 & 7 Will. 4, (0) Seld. in Fortes, u. 24. Wa- c. 12 ; 22 & 23 Vict. 0. 66 ; and 28 & pentakes are so called because the 29 Vict. 0. 37.) This principle of people at a public meeting con- division has been largely adopted firmed their union with the go- in the Local Government Act, 1888 vemor by touching his weapon or (51 & 52 Vict. c. 41). The number lance. (See Wilk. Leg. Ang:.-Sax. of places in England and Wales LI. Edw. c. 33 ; Christian's Black- where petty sessions or divisional stone, vol. i. p. 115, note; Cowell's meetings are usually held, were Diet., V. Wapentake.) returned in 1831, as amounting to (p) The rapes of Sussex are said 609. — (Population Abstracts, ubi to have been military governments sup.) in the time of the Conqueror; the (r) Wilk. Leg. Ang.-Sax. LI. lathes of Kent to have been civil Edw. e. 34. S. v.] OF THE KINGDOM OF ENGLAND ITSELF. 131 [still subsist in the large county of York, where by an easy corruption they are denominated ridings ; the north, the east, and the west riding. The number of counties in England and Wales have been different at different times ; at present they are forty in England and twelve in Wales (s).J It seems probable that the realm was originally divided into counties, with a view to the convenient administra- tion of justice ; for the judicial business of the kingdom was in early times chiefly dispatched in local courts, held in each different county, before the sheriff, as its principal officer {t). These antient courts retain at the present day nothing of their former consequence, and are not now entrusted with the administration of justice. The county courts of modem institution have been nevertheless esta- blished in reference to the old territorial, division, there being for each county one of these courts held in one or more places within its limits ; also, as regards crime («), the trial is, as the general rule, conducted in the county wherein the offence is alleged to have been committed («) ; (») A particular place, parcel of the oauBe of action arose. But one county, is sometimes detached there is now no local venue in ac- from it, and surrounded by another. tions brought in the High Court By 7 & 8 Vict. 0. 61, these detached of Justice, and the place of trial is parts are annexed, for all purposes, arranged in a different way. (See to the counties of which they form Orders and Rules of 1883, Order a part, for the purpose of parHa- xxxvi.) mentary representation. As to the {x) By 4 & 5 Will. 4, c. 36, -was jurisdiotion of magistrates with re- established the " Central Criminal spect to detached parts of counties, Court," for the trial of offences see 2 & 3 Vict. c. 82, and 21 & 22 committed in London, Middlesex, Vict. c. 68 ; and as to the union of and some parts of Essex, Kent, liberties with counties, see 13 & 14 and Surrey ; and by 19 & 20 Vict. Vict. 0. 105. c. 16, persons charged with offences (i) Hickes, Thes. Diss. Epist. ; committed elsewhere may, never- Eeeves's Hist. Eng. L. vol. i. pp. theless, be ordered to be tried in 6, 7. that court. And by the Mutiny (m) Formerly actions in the su- Acts, persons subject to those acts peiior courts of a, local character may be tried in any place where were tried in the county in which they may be found after the com- k2 132 INTKODUCTION. and suoh trials take place either before the judges and commissioners of assize, on their periodical circuits ; or else before the justices of the peace for the county at their quarter sessions. Another important object connected with the distribution into counties, is that of parliamen- tary representation, inasmuch as eyery county used to send to the House of Commons its own members, called knights of the shire, — who represented their respective counties, as the borough members do their respectiTe towns ; though, latterly, the larger counties were sub- divided, each portion forming a separate county (so far as this purpose was concerned), and sending its separate representative {y) ; and this sub- division of counties has been recently carried to a great length, and boroughs also have been sub-divided, by the B«iistribution of Seats Act, 1885 (48 & 49 Vict. c. 23). For the object of local taxation, too, the division into counties is of practical effect and importance ; for as each parish is subject to a rate for relief of the poor, so is every county to a county rate, which is levied on the occupiers of land within the county tinder the authority of various acts of parliament (g), and applied to many miscellaneous purposes {a). mission of the offence. These c. 33 ; 15 & 16 Viot. c. 81 ; 21 & 22 provisions may he considered as by Vict. u. 33 ; 29 & 30 Vict. o. 78 ; way of exception to the principle and East Looe v. Cornwall, 3 Best stated in the text. See also the & Smith, 20. See also 5 & 6 Will. 39 & 40 Viot. 0. 57, extended by 4, o. 76, s. 92 ; 17 & 18 Vict. o. 71, 40 & 41 Viot. c. 46 ; and 42 & 43 as to borough rates in the nature Vict. e. 1, uniting counties together of county rates. for the purpose of trying prisoners. (a) See County Kate Com. Eep. (y) 2 & 3 Will. 4, c. 45, ss. 12, 13, (16 June, 1836). Among the pur- 14, and see 24 & 25 Viot. u. 112, poses to which the county rate is ss. 1, 7. applied, are the maintenance of (2) See 22 Hen. 8, c. 5 ; 12 Geo. 2, the rural police, lunatic asylums, u. 29 ; 55 Geo. 3, c. 51. As to hor- gaols, and bridges. As to borrow- rowing money on the Middlesex ing money for county purposes, see county rate, see 8 & 9 Vict. c. 32. 35 & 36 Viot. 0. 7, and 38 & 39 As to the assessment and collection Viot. u. 83. of the county rate, see 7 & 8 Vict. S. v.] OF THE KINGDOM OF ENGLAND ITSELF. 133 [Three comities, vk. Chester, Durham, and Lancaster, are counties palatine. The two former are such by pre- scription or immemorial custom, or at least are as old as the Norman Conquest (6) ; the latter was created a county palatine by King Edward the third, in favour of Henry Plantagenet, first Earl and afterwards Duke of Lan- caster (c) : whose heiress being married to John of Graunt, the king's son, the franchise was greatly enlarged and confirmed in parliament, to honour John of Gaunt him- self («^); whom, on the death of his father-in-law, the king had also created Duke of Lancaster (e). Counties palatine are so called a palatio, because the owners thereof, the Earl of Chester, the Bishop of Durham, and the Duke of Lancaster, had formerly in those counties jura regalia as fully as the king in his palace ; regalem potesta- tem in omnibus, as Braoton expresses it (/). They might pardon treasons, murders, and felonies; they appointed judges and justices of the peace ; all writs and indict- ments ran in their names, as in other coimties in the king's ; and all offences were said to be done against their peace, and not, as in other places, contra pacem domini regis (g). As to which indeed it may be remarked that by the antient law, in all peculiar jurisdictions, offences were said to be done against his peace in whose court they were tried: in a court leet, contra pacem domini ; in the court of a corporation, contra pacem bal- limrum ; in the sheriff's court or tourn, contra pacem vice-comitis {h). These palatine privileges, so similar to the independent regal jurisdictions usurped by the great barons on the continent during the weak and infant state of the first feodal kingdoms in Europe («), (*) Seld. Tit. Hon. 2, 5, 8. Case of Duchy of LanoaBter, Plowd. (c) Pat. Eot. 25 Edw. 3, p. 1, 215; 7 Eym. 138. m. 18 ; Seld. ubi sup. ; Sandford's (/) L. 3, o. 8, s. 4. Gen. Hist. 112 ; 4 Inst. 204. (?) 4 Inst. 205. {d) Cart. Rot. 36 Edw. 3, m. 9. (A) Seld. in Heng. Magn. c. 2. («) Pat. Rot. 51 Edw. 3, m. 33 ; («) See Roljertson, Cha. V. i. 60. 134 INTRODUCTION. [were in all probability originally granted to the ooiinties of Chester and Durham, hecause they bordered upon inimical countries, Wales and Scotland ; in order that the inhabitants, having justice administered at home, might not be obliged to go out of the county, and leave it open to the enemy's incursions; and that the owners, being encouraged by so large an authority, might be the more watchful in its defence. And upon this account also there were formerly two other counties palatine, Pembrokeshire and Hexhamshire (the latter now united with Northumberland), but these were abolished by parliament; the former in the twenty-seventh year of Henry the eighth, the latter in the fourteenth year of Elizabeth. In the twenty-seventh year of Henry the eighth, moreover, the powers before mentioned of owners of counties palatine were abridged ; the reason for their continuance having in a manner ceased (A-). j And in modem times, alterations have taken place in regard to the administration of justice in the counties palatine, which have assimilated them in that matter to the rest of England. Thus by 11 Geo. IV. & 1 WiU. IV. c. 70, the jurisdiction of the court of session of the county palatine of Chester was abolished, and that county was subjected in all things to the jurisdiction of the superior courts at Westminster ; and by the Judicature Act, 1873, the jurisdictions of the Court of Common Pleas of Lan-r caster and of the Court of Pleas of Durham were trans- ferred to the High Court of Justice by that Act established (l). It is also to be remarked, that of the counties palatine none of them now remain in the hands of a subject. Eor the earldom of Chester, as Camden testifies, was united to (A) Inst. uM sup. Viot. o. 27. And as to the chancery iP) 36 & 37 Viot. 0. 66, s. 16. court of tte county palatine of As to the chancery court of the Durham, see 52 & 63 Viot. o. 47 ; county palatine of Lancaster, see and as to hoth courts, see vol. iii. 13 & 14 Viot. c. 43 ; and 21 & 22 book v. chap. v. S. v.] OF THE KINGDOM OF ENGLAND ITSELF. 135 tEe crown Toy Henry the third, and has ever since been one of the titles of the sovereign's eldest son (m) ; and the palatine jurisdiction of Dnrham, which was long vested in the Bishop of Durham for the time being, was taken from him by 6 & 7 Will. IV. c. 19 (amended by 21 & 22 Vict, c. 45), and vested as a separate franchise and royalty in the crown. [As to the county palatine or duchy of Lan- caster, it was the property of Henry Bolingbroke, the son of John of Graunt, at the time when he wrested the crown from King Richard the second, and assumed the title of Henry the fourth. But he was too prudent to suffer his duchy to be united to the crown ; lest if he lost the one he should lose the other also. For as Plowden (») and Sir Edward Coke (o) observe, " he knew he had the duchy of " Lancaster by sure and indefeasible title, but that his " title to the crown was not so assured : for that after the " decease of Richard the second, the right of the crown was " in the heir of Lionel Duke of Clarence, second son of " Edward the third ; John of G-aunt, father to this Henry " the fourth, being but the fourth son." And therefore he procured an Act of Parliament, in the first year of his reign, ordaining that the duchy of Lancaster, and all other his hereditary estates, with all their royalties and fran- chises, should remain to him and his heirs for ever ; and should remaia, descend, be administered and governed in like manner as if he never had attained the regal dignity; and thus they descended to his son and grandson, Henry the fifth and Henry the sixth : many new territories and privileges being annexed to the duchy by the former \p). Henry the sixth being attainted in the first year of Edward the fourth, this duchy was declared in parliament to have become forfeited to the crown {q) ; and at the same time an Act was made to incorporate the duchy of Lancaster, (m) Camden's Britannia, vol. iii. (p) Pari. 2 Hen. 5, m. 50 ; 3 p. 46. Hen. 5, m. 15. («) P. 215. ' (?) Ksher v. Batten, 1 Ventr. (o) 4 Inst. 206. 155. 136 INTRODUCTION. [to continue the county palatine — wlucli might otherwise have determined hy the attainder (r), — and to make the same parcel of the duchy : and, further, to vest the whole in King Edward the fourth and his heirs, kings of England, for ever; but under a separate guiding and governance from the other inheritances of the crown. And in the first year of Henry the seventh, another Act was made to resume such part of the duchy lands as had been dis- membered from it in the reign of Edward the fourth ; and to vest the inheritance of the whole in the king and his heirs for ever, as amply and largely, and in like manner, form, and condition, separate from the crown of England and the possessions of the same, as the three Henrys and Edward the fourth, or any of them, had and held the same (s).J With regard to the Isle of Ely, we may observe that this was never a county palatine, though sometimes erroneously called so. It was, however, a royal franchise ; the Bishop of Ely having been formerly entitled, by grant of King Henry the fijst, to jura regalia within the district, whereby he exercised a jurisdiction over all causes as wen criminal as civil {t). But by 6 & 7 Will. IV. c. 87 (amended by 7 Will. IV. & 1 Vict. c. 53), this secular authority of the bishop was taken away and vested in the crown. [There are also counties corporate — otherwise called counties of cities or towns — which are certain cities and towns, some with more, some with less territory annexed, to which out of special grace and favour the kings of England have granted the privilege to be coimties of (r) 1 Ventr. 1167. the Duchy of Lancaster are enabled (») As to the effect of this Act, to seE and purchase land on behalf see Plowd. 220, 1, 2 ; Lamb. Ar- of her Majesty in right of the oheion, 233 ; 4 Inst. 206. We may Duchy. notice here that by 18 & 19 Vict. {t) 4 Inst. 220 ; see Grant v. c. .58, the chancellor and council of Bagge, 3 East, 128. S. V.J OF THE KINGDOM OF ENGLAND ITSELF. 137 [themselves and not to be comprised in any other county ; but to be governed by their own sheriffs and other magistrates (m), so that no officers of the county at large have any power to intermeddle therein (v).] As counties corporate constitute no part of the counties in which they are locally situate, so they had formerly, in general, no share in voting for the members to serve for those counties in parliament. However, thirteen of the number were latterly included within their respective counties, so far as regards the right of election for knights of the shire (a;) ; and this practice has been largely adopted in the Redis- tribution of Seats Act, 1885 (48 & 49 Yict. c. 23), and also in the Local Government Act, 1888 (51 & 52 Vict. c. 41). And we may add, that by 38 Geo. III. c. 52, all offences committed in a county corporate may be tried in the next adjoining county at large (y) ; a regulation from which certain towns and cities indeed were at first excepted, but almost the whole of these exceptions were repealed by the Act of 1835, for regulating municipal corporations (z), — a repeal which is continued by the Municipal Corporations Act, 1882. Thus much of the countries subject to the laws of Eng- land; the consideration of which involves, in a general point of view, that of the persons also, to whom these laws are applicable. For it is to be observed that all persons found within these territories fall under the operation of these laws, though in different degrees : British subjects — that is, persons bom within any part of the dominions («) As to sheriffs of counties Other provisions as to counties cor- corporate, see 5 & 6 Will. 4, u. 76, porate not requiring specific notice s. 61; and 6 & 7 WiU. 4, c. 105, in the text are contained in 51 Geo. s. 5 ; and now 45 & 46 Viot. c. 50. 3, e. 100 ; 60 Geo. 3 & 1 Geo. 4, «. 4, (») See 3 Geo. 1, c. 15 ; 5 & 6 s. 6; 7 Geo. 4, o. 64, s. 25 ; 9 Geo. WiU. 4, 0. 76, ss. 61, 109. 4, c. 61 ; 5 & 6 Will. 4, u. 76, s. (a;) 2 & 3 Will. 4, o. 45, s. 17. 113 ; 2 & 3 Viot. u. 72 ; 17 & 18 («) See also 14 & 15 Vict. c. 55, Vict. c. 36 ; and see also the Muni- gg. i9j 21 24 ; and c. 100, s. 23. oipal Corporations Act, 1882 (45 (2) 5 & 6 WiU. 4, c. 76, s. 109. & 46 Vict. .;. 50). 138 INTROUUCl'ION. of the crown, (and in some cases their descendants also, though born in foreign parts,) and persons naturalized by Act of Parliament— being in a full and absolute sense entitled to the rights conferred by these laws, and liable to the obligations they impose ; but aliens (or those who are not British subjects) in a limited sense only, as we shall have occasion more particularly to explain hereafter [a). {a) See 33 & 34 Vict. c. 14, an Act have occasion to speak further in passed to amend in certain points our second Tolume, \rhcre some the law relating to the legal oondi- account is given of the legal posi- tion both of aliens and of British tion of aliens in this country, subjects. Of this statute we shall NEW COMMENTARIES ON THE LAWS OF ENGLAND. BOQK L OP PEESONAL EIGHTS. In a disquisition of suoli extent and variety as that on which we are ahout to enter, it is obviously of the first importance to lay down a proper preliminary arrangement of the subject ; and the plan of division which appears to be most suitable to a treatise of this description, is one founded on a consideration of the nature of municipal law in the abstract, and of the objects or purposes towards which it is directed. It wiU. be necessary, therefore, to recur for a moment to the views taken of this subject ia a preceding part of the work. We have seen that municipal law is a rule of civil conduct prescribed by the supreme power in a state {a) ; whose authority to prescribe it, has been referred to the contract implied in civil society, that its members should submit to certain restraints of their natural freedom, in order to secure to each other the enjoyment of defined liberties and advantages; and these we have comprehended under the general name of rights (S). It results from these considerations, that in every country the true and proper objects of the law consist in the establishment and mainte- (a) Vide sup. p. 25. (J) Vide sup. p. 29. 140 BOOK I. — OF PERSONAL EIGHTS. nance of the nghts severally due to the different members of the community. The idea of rights, however, naturally suggests the cor- relative one of wrongs ; for every right is capahle of heing violated. A right to receive payment for goods sold (for example) implies a wrong on the part of him who owes, hut withholds, the price ; and a right to live in personal security implies a wrong on the part of him who commits personal violence. And, therefore, while in a general point of view the law is intended for the establishment and maintenance of rights, we find it on closer examina- tion to be dealing both with rights and VTrongs. It first fixes the character and definition of rights, and then, with a view to their effectual security, proceeds to define wrongs, and to devise the means by which the latter shall be pre- vented or redressed. These considerations form the most convenient basis upon which to construct the principal division of the laws of England; and we shall therefore sever them (Kke former vmters) into two portions, one of which regards Rights, and the other Wrongs (c). Now, when rights are analyzed, they are found to consist of several kinds. Tor, first, rights are such as regard a man's own person ; secondly, they are such as regard his dominion over the external and sensible things by which he is surrounded; thirdly, they are such as regard his private relations, as a member of a family; foiirthly, they are such as regard his social state or condition as a member of the community; the first of which classes of rights may be designated as personal rights, the second, as rights of property, the third, as rights in private relations, and the fourth, as public rights. In these divisions of rights, it is to be observed, that we everywhere mean to include the converse or reciprocal consideration of duties. For whatever is due to one man, (c) See the Preface to Hale's Analysis of the Laws of England, and Bl. Com. vol. i. p. 122. BOOK I. — OF PERSONAL RIGHTS. 141 or to one set of men, is necessarily due /row another. Thus the right of one man to receive from another the price of a commodity sold, casts upon the latter the duty of paying that price ; and the general right of each individual to live in personal security, implies the converse duty on the part of others not to subject him to any violence. The party, too, who possesses the right, is in general himself subject to some resulting duty. Thus the people have a right to live under the form of government established by law, and are imder a corresponding duty of submission to that government. In the discussion of rights, therefore, it is often necessary to speak also of duties. Indeed, it is under the aspect of duties principally, that some rights require to be considered. To avoid, however, a misapprehension which might arise from the use of the term " duties," we must remark that there are certain duties which are wholly imconnected with rights as above defined, or which are not correlative to any such rights ; and accordingly of such duties otir law takes no notice. These are, e.g. such as the law of God or our own conscience prescribes, and the violation of which by the individual is unattended with direct mischief to others. Thiis, while on the one hand public sobriety is a duty recognized by the law, and is correlative to the right of others to be protected from contaminating and hurtful exhibitions of vice, private sobriety on the Other hand is not a duty recognized by the law, and is not enforced by any legal sanctions; because secret intoxication, though equally opposed, with open drunkenness, to the law of Grod and to conscience, is no violation of any correlative right ia others, and is not a fit subject for civil punishments. Wrongs also may be subdivided ; but as regards these we are necessarily led to adopt a different principle of distribution. For the leading distinction here depends not on the character of the right violated, but on the party who is supposed to sustain injury from its violation. According to the view which our law takes of this subject, the violation of a right may in some instances amount to 142 BOOK 1. — OF PEESONAL EIGHTS. an injury to the particular individual only, but in others it may take the character of an injury to the puhHc at large (d). "When viewed in the first aspect, it is usually called a dvil injury, when in the last, a crime. Thus the withholding of a debt, is a wrong to the individual, and consequently a civil injury; but it is considered as not afEeoting the public, and therefore it is no crime. On the other hand, to deprive a man of his money by theft or robbery, is held to be a wrong to the public, and therefore a crime ; though it is also a civil injury if considered in relation to the damage which the party individually sus- tains. The considerations which tend to determine whether a given species of wrong shall be treated as an injury to the individual, or as an injury to the public, constitute a subject upon which it woidd be premature to enter in this place, and which belongs to a later portion of the treatise. It is sufficient at present to have thus stated the general nature of the distinction between civil injuries and crimes, and to remark that it is one of great practical importance ; for the law deals very differently with the two kinds of wrong ; the former being merely a subject for redress, the latter for punishment. The extensive subject under consideration appearing thus naturally to resolve itself into the several divisions above indicated, we shall adopt them for the purpose of the present work ; and our method, or order of discussion, will be as follows : — Book I. Of Personal Eights. II. Of Eights of Property. III. Of Eights in Private Eelations. IV. Of Public Eights. V. Of Civil Injuries ; including also the modes of Eedress which the law provides for them. VI. Of Crimes ; comprising also the modes of Criminal Prosecution. (. Lady Portington, 1 (a) 42 & 43 Viot. c. 59, a. 3. Salk. 162 ; and see In re Metcalfe, (a) Vide sup. p. 144. 33 L. J., Ch. 308. (*) Vide post, bk. vi. (y) 1 Hale, P. C. 605. (c) Vide sup. p. 28. l2 148 BOOK I. — OF PERSONAL EIGHTS. and now at length effectually, softened by tlie milder spirit of modem legislation. Moreover, the law of Eng- land is an utter stranger to any arbitrary power of killing or maiming the subject without the express warrant of law. [_"Nullus liber homo" says the Great Charter, "aliquo modo destruatur, nisi per legale judicium parium suorum aui per legem terra" (d). Which words, "aliquo modo destruatur," include, according to Sir Edward Coke (e), a prohibition not only of killing and maiming, but also of torturing (to which otir laws are strangers), and of every oppression by colour of an illegal authority ; but flogging for due cause and in proper cases is still permitted by the law ; and it is a punishment which (regarded as an in- cident of imprisonment) is in no sense a torturing of the prisoner. And there is this further protection to life and limb given by the law, namely, that by a statute of 5 Edw. III. c. 9, no man can be forejudged of life or limb, contrary to the Great Charter and the law of the land: and again, by the statute 28 Edw. III. c. 3, no man can be put to death without being first brought to answer by due process of law.j 2. A man is also entitled, as to his whole body, to security from all corporal assaults, insults, or injuries, whether by menaces, beating, wounding, or otherwise, though they amount not to destruction of either life or limb; and 3. To the preservation of his health from such practices as may prejudice or annoy it ; and 4. To the security of his reputation or good name from libel and slander. But these three last articles it will suffice to have barely mentioned among personal rights. It is to their infringe- ment, rather than to the rights themselves, that the pro- visions of the law have been in general directed ; and a more convenient place for their further discussion will W C. 29. [e) 2 Inst. 48. BOOK I. — OF PERSONAL RIGHT?. 149 consequently be found in that part of this work which relates to wrongs (/). II. [Next to personal security, the law of England regards, asserts, and preserves the right of personal liberty. Personal liberty consists in the power of locomotion, of changing situation, or moving one's person about to what- soever place one's own inclination may direct, without imprisonment, hindrance, or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article, namely, that personal liberty is a right strictly natural ; that the law of England never abridges it without cogent reason ; and that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit per- mission of the law.- Here again the language of the Great Charter is, that no freeman shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land {g). And many subsequent statutes of an early date expressly direct, that no man shall be taken or impri- soned on mere suggestion or petition to the king or his council, unless it be by legal indictment, or other due process of the common law {h). Also, by the Petition of Right, (3 Car. I.,) it is expressly declared, that no freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law; and by 16 Car. I. c. 10, it was enacted, that if any person should be restrained of his liberty by order or decree of an illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council; he should upon demand of his counsel, have a writ of habeas corpus to bring his body before the court of King's Bench or Common Pleas ; and such court should thereupon determine whether the cause of his commitment (/) Astoi^>o». 4 ; see Bar. Ant. Stat. 269) ; and ((?) Convicts are still sometimes that the first statute in which the conveyed to parts beyond the seas, word "transportation" is used is under sentence of penal servitude the 18 & 19 Car. 2, o. 3, which gave which is now substituted for trans- a power to the judges at their dis- portation. (See 20 & 21 Vict. u. 3; cretion either to execute, or to 22 Vict. c. 25.) transport to America for life, the (r) It is said that exile was first Mosstroopers of Cumberland and introduced as a punishment by the Northumberland, legislature in the thirty-ninth year (s) C. 29. of Eliz., when a statute enacted {t) As to the-wiitoi habeas corptts, that " such rogues as were dan- see further, bk. v. o. xn. gerous to the inferior people should 154 BOOK I. — OF PERSONAL RIGHTS. [The law, as atove explained, is so benignly and libe- rally construed for the benefit of the subject, that, though within the realm the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the public service ; excepting sailors and soldiers, the nature of whose employ- ment of itself implies this exception.] Thus (says Coke) the sovereign cannot even constitute a man lord lieutenant of Ireland against his will, nor make him a foreign am- bassador; for this might, in reahty, be no more than exile {u) under the pretext of an honourable employ- ment. What has been hitherto said on the subject of personal liberty, refers, it will be observed, chiefly to the illegal restraint thereof by government. When imprisonment is illegally inflicted by a private subject, relief may, in the same manner, be had by habeas corpus : and redress may also be obtained by action ; or the offender may be pun- ished upon indictment. But the consideration of these methods, and the further discussion of the mode of pro- ceeding upon habeas corpus, more properly belong to the consideration of civil injuries and of crimes. They are only glanced at iu this place, and only in illustration of the importance attached by the law to the right now under consideration. In connection with the rights of personal security and of personal liberty, may be mentioned also the right of the subject to carry such arms as are proper for his de- fence ; which right is declared by the statute 1 W. & M. sess. 2, c. 2, and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-pre- servation, applicable especially under circumstances where the sanction of society and law is found insufficient, or is not expeditious enough to protect life or limb, and to restrain the violence of oppression. There is an antient enactment, (m) See 2 Inst. 46. BOOK I. — OF PERSONAL BIGHTS. 155 however, against going armed under such circumstances as may tend to terrify the people, or as may indicate an inten- tion to disturb the puhlic peace (x). And by a modern statute, the training of persons, without lawful authority, to the use of arms is prohibited ; while any justice of the peace is authorized to disperse such assemblies of persons as he may find engaged in that occupation, and to arrest any of the persons present (y). (x) 2 Edw. 3, 0. 3 ; see Hawk. Pleas of the Crown, bk. 1, o. 63, ss. 9, 10. («/) 60 Geo. 3 & 1 Geo. 4, c. 1. It may be remarked, that the volun- teer rifle and artillery forces, being trained under lawful authority, yiz. under the provisions of the Volun- teer Acts, 1863 and 1869 (26 & 27 Viot. vi. 65, and 32 & 33 Viet. c. 81), are not affected by the enactments mentioned in the text, any more than the militia, yeomanry, or regu- lar troops of the line. And see the Army Annual Act, 1882 (45 & 46 Vict. c. 7) ; the Reserve Forces Act, 1882 (45 & 46 Vict. c. 48); the MiUtia Act, 1882 (45 & 46 Vict, c. 49) ; and the Army Annual Acts, 1883 (o. 6), 1884 (c. 8), 1885 (c. 8), 1886 (c. 8), 1887 (o. 2), 1888 (o. 4), and 1889 (c. 3). BOOK II. OF EIGHTS OF PEOPBRTY. AS TO PKOPEllTY IN GENERAL. The. rights of property remain secondly to he considered; and such rights consist in a man's free use, enjoyment, and disposal, according to the laws of the community, of all his acquisitions in the external things around him. It may be desirable to premise a few observations on the nature and origin of these rights, before we proceed to distribute and consider their several objects. [The rights in question, though we speak of them in the plural, in regard to the different objects over which a man has ownership, and the difEerent modifications of that ownership, are yet capable of being reduced, and for the purpose of abstract discussion are usually reduced, to one general head — the right of property, or the principle by which one man claims and exercises a sole and despotic dominion over certain of the external things of the world, to the total exclusion of all other individuals. However generally recognized that right may be, there are very few that wiU. give themselves the trouble to consider its origin and foundation, most people resting satisfied with the decision of the law in their favour, without examining the reason or authority upon which the law has been bunt (a), and thinking it enough that their title is derived (a) Bl. Com. vol. ii. p. 2. AS TO PROPERTY IN GENERAL. 157 [under the grant of some former proprietor, or by descent from some ancestor, or by the last ■will and testament of some dying owner ; and they do not stop to reflect that there is no foundation in natural law, why a set of words upon parchment should convey the dominion of land, or why the son should have a right to exclude his fellow- creatures from a determinate spot of ground, because his father had done so before him, or why the possessor of a particular field, or of a jewel, when lying on his death- bed, and no longer able to maintaiu the possession of it, should be entitled to dictate to the rest of the world who shall enjoy it after him. Ajid, doubtless, these inquiries would be useless and even troublesome in common life ; and it is well that the mass of mankind obey the law, without scrutinizing too nicely into the reason of it. But, when law is to be considered not only as a matter of practice, but also as a rational science, it cannot be im- proper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society. In the beginning of the world, as we are informed by holy writ, the all-bountiful Creator gave toman "dominion " over all the earth ; and over the fish of the sea, and over " the fowl of the air, and over every living thing that " moveth upon the earth" (b). The earth, therefore, and all thiags therein, under this immediate gift of the Creator, are the general property of all mankind. And while the earth continued with few inhabitants, it is reasonable to suppose that all was in common among, them, and that every one took from the public stock, to his own use, such things as his immediate necessities required. These general notions of property were then sufScient to answer aU the purposes of human life ; " erant omnia communiaet indimsa-omnibus, veluH unum cunctis patrimonium esset " (e). This communion of goods seems, however, not (A) Genesis, i. 28. {«) Jistin, 1. 43, c. 1. 158 BOOK II. OF RIGHTS 01' PROPERTY. [to have teen applicable, even in the earliest ages, to aught hut the substance of the thing; it did not extend to the use of it. For, even hy the law of nature, he who first hegan to use a thing, acquired therein a kind of transient property, which lasted as long as he was using it ; or, to speak with greater precision, the right of possession continued while the/ffc^ of possession continued ((f). Thus the earth was in common, and no part of it was the permanent property of any one in particular ; yet whoever was in the occupation of any determined or definite piece or parcel of land,— for rest, for shade, or the like — acquired for the time heing a sort of ownership therein, from which it was unjust, and contrary to the law of nature, to drive him by force, or to deprive him of it ; though the instant that he quitted the use and occupation of it, another person might seize it without injustice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to its produce ; and yet any private individual might gain the sole property of the fruit which he had gathered for his own repast, — a doctrine well illustrated by Cicero, who compares the world to a great theatre, which is common to the public, and yet the place which any man has taken in it is, for the time, his own (e). But when mankind increased in number, craft, and ambition, it became necessary to entertain the conception of a more permanent dominion, and to appropriate to indi- viduals not the immediate ttse only, but the very substance .of the thing to be used, that is to say, the very property in it. Otherwise innumerable tumults must have arisen, and the good order of the world have been continually broken and disturbed, while a diversity of persons were striving who should get the first occupation of the same thing, or were disputing which of them had actually gained it. As human life also grew more and more refined, conveniences (d) BarbejT. Pufl. 1. 4, o. 4. ejus esse eum locum gttem quisque (e) " Quemadmodtm theatrum, cum oocuparit." — De Fin. 1. 3, o. 20. commune sit, reoie tamen did potest, AS TO PROPERTY IN GENERAL. 159 [were devised to render life more easy, commodious and agreeable; e.g., habitations for shelter and safety, and raiment for warmth and decency. But no man would have been at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the instant that he quitted the possession thereof ; — if, as soon as he walked out of his tent, or pulled off his garment, the next stranger who came by would have a right to inhabit the one, and to wear the other. Even the brute creation, to whom every thing else was in common, maintained a kind of permanent property in their dwell- ings, especially, for the protection of their young; the birds of the air had nests, and the beasts of the field had caverns, the invasion of which they resented as a very flagrant injustice, and they would even sacrifice their lives to pre-, serve them. Hence a property was soon estabUshed among mankind also, in their individual houses, and huts or cabins, and more especially in the weapons and other moveable articles which they carried about with them, and which they must have more or less improved by their own bodily labour ; which bodily labour, bestowed upon any subject which before lay in common to all men, is imiver- sally allowed to strengthen, very materially, the title that mere occupancy gives to an exclusive property therein. The article of food was a more immediate call, and therefore a more early consideration. Such as were not contented with the spontaneous products of the earth, sought for more solid refreshment in the flesh of beasts, which they obtained by hunting. But the frequent dis- appointments, incident to that method of provision, in- duced them to gather together such animals as were of a more tame and sequacious nature ; and to establish a per- manent property in their flocks and herds, in order to sustain themselves in a less precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The support of these their cattle made the article of water also a very important point. And therefore the Book of 160 BOOK H, — OF RIGHTS OF PROPERTY. [Genesis (the most venerable monument of antiquity) furnishes us with frequent instances of violent contentions concerning wells ; the exclusive property of which appears to have heen established in the first digger or occupant, even in places where the ground and herbage still re- mained in common. Thus we find Abraham, who was but a sojourner, asserting his right to a well in the country of Abimelech, and exacting an oath for his security, "because he had digged that well" (/). And Isaac, about ninety years afterwards, reclaimed this his father's property; and, after much contention with the Philistines, was suffered to enjoy it in peace (e Mor. Ger. 16. (A) " Colunt iHscreti et diversi; (t) Genesis, u. xiii. AS TO PROPERTY IN GENERAL. 161 [land he pleased, being land not already occupied by some other family. The same principle explains the right of migration, or of sending colonies to find out new habitations, when the mother coimtry was overcharged with its own people, as practised in early times as well by the Phoenicians and Greeks, as by the Germans, Scythians, and other northern people, and as still practised at the present day. And, so long as this migration was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature ; but how far the seizing on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour ; how far such conduct was or is consonant to nature, to reason, or to Christianity, deserved and deserves well to be con- sidered by those nations who have rendered their names immortal by colonizing enterprises. As the world by degrees grew more populous, it daily became more difficult to find out new spots to inhabit, without encroaching upon former occupants; and it be- came therefore necessary to pursue some method of dealing with the land already occupied which would make it per- petually fruitful ; whence arose the art of agriculture, — an art which gradually established the idea of a more permanent property in the land ; for without an assured continuance of the occupation of land, who would have been at the pains to cultivate it? Necessity therefore begat property ; and in order to ensure that property, re- course was had to civil society, which brought along with it a long train of inseparable concomitants, — states, govern- ments, laws, punishments, and the pubHe exercise of re- ligious duties.] The idea of property seems therefore to have had its original foundation in occupancy, confirmed and strength- ened by labour. [The reason why occupancy should con- VOL. I. ' M 162 BOOK II. — OF RIGHTS OF PUOPERTY. [vey the right of property has been variously accounted for, — Grotius and Puffendorf insisting that this right of occupancy as a mode of acquiring property is founded on a tacit and implied assent of all mankind; and Barheyrac, Locke, and others holding that no such implied assent is necessary, for that occupancy alone without any consent or compact, is suflBcient of itself to vest a title to the property. But this distinction is of a character more subtle than practical ; and at all events both sides agree in this, that occupancy is the thing by which the title was in fact originally gained (j) . Property, both in lands and in moveables, having been thus acquired by occupancy, the title so acquired con- tinues in the occupant, by the' principles of universal law, until such time as he does some act to abandon it. There- fore, if one possessed of a jewel cast it into the sea, this is such an express dereliction, that a new property in the jewel will be vested in the first fortunate finder that will seize it to his own use again ; on the other hand, if the owner hide it privately in the earth, that is no dereliction, and the casual finder of it acquires no property therein | for the owner hath not by such an act declared any inten- tion to abandon it, but rather the contrary ; so if he lose it, or drop it by accident, it cannot be collected from thence that he designed to quit the possession ; and there- fore in all such cases the property still remains in the loser, who may claim it again of the finder. But although property was thus acquired and thus con- tinued in the case of things in general, whether land or moveables, still there were (and there always must be) some few things, which must unavoidably remain in com- mon, being such wherein nothing but an usufructuary property is capable of being had ; and which therefore {J) In Maine's Treatise on An- individuals, is contrasted with the tient Law (p. 264), the theory, that doctrine of Savigny, that property the origin of property is the assent was acquired by adverse possession of mankind to the occupation by gradually ripened by prescription. AS TO PKOPKRTY IN GENJiBAL. 163 [still belong to the first occupant, and pass from occupant to occupant, during the time that each occupant holds possession of them, and no longer. Such (among others) are the elements of light, air, and water, which a man may occupy by means of his windows, his gardens, his mills, and other conveniences ; and such also are the gene- rality of those animals which are said to be ferm naturae, or of a wild and untameable disposition, which (subject to certain restrictions) any man may seize upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy with- out disturbance ; but if once they escape from his custody, though without his voluntary abandonment, they return to the common stock, and every fresh occupant acquires for the time a new property therein. The right of ownership once established, soon drew after it the right of transfer. It was found, that what became useless to one man, was highly useful to another ; and that the latter was ready to give in exchange for it some equivalent which promised to be of equal use to^the former proprietor. Thus a sort of mutual convenience prepared the way for, and suggested, a commercial trafiSo in things, and this involved the transfer of property by sale, grant, or conveyance, — in which transfer was involved both the abandonment of the thing by the previous owner, and its immediate occupancy by the new proprietor. If all property ceased upon death, it would follow by the principles before established, that the next immediate, occupant would acquire a right to all that the deceased possessed. But as, under civilized governments, such a constitution would be productive of endless disturbances, the universal law of almost every nation has either given the dying person a power of continuing his property, by disposing of his possessions by will ; or, in case he neglects to so dispose of them, or is not permitted to make any such disposition at all, the municipal law of the country then steps in, and declares who shall be the successor, m2 164 BOOTi. II. — 01' RIGHTS OF PROPERTY. [representative, or heir of the deceased; in other words, ■who alone shall have the right to enter upon this vacant possession (k) ; and in case no such disposition is made, and no such successor is found as the law requires, then in this case, and in order to prevent the robust title of occu- pancy from again taking place, the doctrine of escheats has been adopted in almost every country ; whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances to which no other title can be formed {^).] As to the right, however, of the children or nearest relations of the deceased to inherit, — a right much more antient than the right of alienation, — there seems good reason to refer this right to the same natural title of occupancy, on which the right of property itself is founded. [A man's children or nearest relations are usually about him on his death-bed, and are the earliest witnesses of his decease. They became therefore generally the next imme- diate occupants, tiU. at length in process of time this frequent usage ripened into general law ; whence also, in the earliest ages, on failure of children, a man's servants born under his roof were allowed to be his heirs, being immediately on the spot when . he died, — the patriarch Abraham expressly declaring, that since God had given him no seed, his steward Ehezer, one bom in his house, was his heir(w). While property continued only for life, testaments were of course useless and unknown : and when it became inheritable, the children or heirs at law were for a long time incapable of exclusion by will ; but so strict a rule of inheritance made heirs disobedient and headstrong, defrauded creditors of (A) Thus, to prevent any vacancy the hands of the survivor. (See of possession, the civU law eon- Ff. 28, 2, 11.) sidered father and son as one per- {I) As to escheats, vide post, son ; so that, upon the death of pt. i. c. xn. either, the inheritance did not so (m) Gen. iv. 3. properly descend, as continue in AS TO PROPERTY IN GENERAL. 165 [their just debts, and prevented many provident fathers from dividing or charging their estates as the exigencies of their families required ; and accordingly the power of testamentary disposition was gradually recognised ; that is to say, the right of disposing of one's property, or a part of it, by testament, i.e., by written or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased, which we therefore emphatically style his ivill. This power was established in some countries much later than in others.] With us in England, as the law stood in the reign of Henry the second, the testamentary power of a man over his moveable possessions was limited, for he could then only dispose of one-third of them to the exclusion of his wife and children ; but this restriction soon fell out of use. As to lands, these, before the Con- quest, were fully devisable ; but afterwards, and until the reign of Henry the eighth, the general law (subject to special customs in particular places) was that they could only be devised for a term of years, and only a certain portion of them even to that limited extent : and it was not till after the Restoration, that the power of devising real property became imiversal (w). Wills and testaments are obviously in their nature of a date posterior to the formation of civil society, and must be considered as the mere creatures of the municipal law ; by which also it is clear that the particular modifications of the law of inheritance and succession are alone regulated. [Accordingly we find that every distinct country has diffe- rent ceremonies and requisites to make a testa,ment com- pletely valid : neither does anything vary more than the right of inheritance under different national establishments. In England, particularly, this diversity is carried to such a length, as if it had been meant to point out the power of the laws in regulating the succession to property, and («) This arose in consequence of Car. 2, u. 24 ; vide post, bk. ii. pt. j. the conversion of tenure in chivalry c. n. and c. xx. into tenure in socage, by the st. 12 166 BOOK II. — OF EIGHTS OF PROPERTY. [how futile every claim must he that has not its foundation in the positive rules of the state. In general only the eldest son, in some places only the youngest, in others all the sons together, have a right to succeed to the inherit- ance : in real estate, males are preferred to females, and the eldest male will usually exclude the rest : in the divi- sion of personal estate on the other hand, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.] Such is the origin that we are disposed to assign to property itself, and to the power of transferring or trans- mitting property, considered in the abstract. However, it is clear that aU proprietary rights, as we now find them estahlished in any country, rest on the municipal law as their immediate basis ; and, like those relative to life and limb, these rights have always been guarded by the laws of England with peculiar vigilance, and have been fre- quently recognized in distinct and emphatic terms by the legislature. [Thus the Great Charter has declared, that no freeman shall be disseised or divested of his freehold, or of his liberties, or free customs, save by the judgment of his peers, or by the law of the land (o). And by a variety of antient statutes it is enacted, that no man's lands or goods shall be seized into the king's hands against' the Great Charter and the law of the land ; and that no man shall be disinherited, nor put out of his franchise or free- hold, tinless he be first duly brought to answer and be fore- judged by course of law ; and if anything be done to the contrary, it shall be redressed and holden for none {p).'\ Even for the general good of the whole community, no unnecessary violation of the rights of property is, in any instance, allowed by our law. If a new road, for example, is to be made through the grounds of a private person, in a case where it would be extensively beneficial to the public, the legislature never permits itself to do this with- (o) C. 29. (p) See 5 Edw. 3, c. 9 ; 25 Edw. 3, st. 5, c. 4 ; 28 Edw. 3, e. 3. AS TO PROPERTY IN GENERAL. 167 out the consent of the owner of the land, or at least with- out securing to him a complete indemnification. In vain may it be iirged that the good of the individual ought to yield to that of the community. The true principle ap- plicable to all such cases is one to which we have had occasion already to refer, and which is constantly home in view by the English law, viz. that the private ruterest of the individual is never to be sacrificed to a greater extent than is necessary to secure a public object of adequate importance {q). The public, therefore, is considered in all such transactions as an individual treating with an indi- vidual, for an exchange. All that the legislature does is to oblige the private owner to alienate his possession for a reasonable price; and even this is an exertion of power which it indulges with caution, and which nothing but the legislature can perform (r). Nor is this the only instance in which the law of the land has postponed the public interest to the sacred and inviolable rights of private property. Thus no subject of England can be constrained to pay any aids or taxes, even for the defence of the realm or for the support of the government, but such as are imposed by his own consent or that of his representatives in parliament. For by the statute 25 Edw. I. c. 1, it is provided that the king shall not take any tallage or aid but by the assent of the arch- bishops, bishops, earls, barons, knights, burgesses, and other freemen of the land (s) ; and again by 14 Edw. III. to) Vide sup. p. 149. to the Great Charter (edit. Oxon.), Ir) See 8 & 9 Vict. u. 18 (called sub anno 1297 ; wherein it is shown " The Lands Clauses Consolidation that this statute, (called De tallagio Act 1843"), for consolidating into non concedendo,) supposed to have one Act the provisions usual in Acts heen made in 34 Edw. 1, is in authorizing the taking of lands for reality nothing moi'e than a sort of undertakino-8 of a pubUo nature. translation into Latin of the Gon- The above statute was amended by Jlrmatio cartarum, 25 Edw. 1, which 23 & 24 Vict. c. 106 ; 32 & 33 Vict. was originally published in the i>. 18, and 46 & 47 Vict. o. 16. Norman language. (») See however the introduction " 168 BOOK II. — OV KIGHTS OF PEOPEllTY. st. 2, the prelates, earls, barons, and coinmons, citizens, burgesses, and merchants, shall not be charged to make' any aid, if it be not by the common assent of the great men and commons in parliament. [And as this funda- mental law had been shamefully evaded under many suc- ceeding princes, by compulsory loans, and benevolences extorted without any real consent, it was made an article in the Petition of Eight, 3 Car. I., that no man shall be compelled to yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament. And, lastly, by the statute 1 Will. & Mary, sess. 2, c. 2, it is declared, that levying money for or to the use of the Crown, by pretence of prerogative, without grant of par- liament, or for longer time or in other manner than the same is or shall be so granted, is illegal.] ( 16f' ) PART I. OF THINGS REAL. The subjects of property, in the law of England, are things, as contradistinguished from persons ; and things are dis- tributed into two kinds, things real, and things personal. Things real, (otherwise called realty,) consist of things sub- stantial and immoveable, and of the rights and profits annexed to or issuing out of them ; while things personal, (otherwise called personalty,) consist of goods, money, and all other moveables, and of such rights and profits as relate to moveables (a). The First Part of the present Book will consequently relate to things Real, and the Second to things Personal. (a) Blaokstone says, " things real " are such as are permanent, fixed ' ' and immoveable, which cannot " be carried out of their place, aa "lands or tenements — things per- " sonal are goods, money, and all " other moveables which may at- ' ' tend the owner's person wherever " he thinks proper to go." (2 Bl. Com. p. 16.) It has been thought expedient to deviate from these de- finitions, which, among other ob- jections to them, appear to be too limited, as referring to things of a substantial or solid kind only, with- out embracing incorporeal rights. His definition of things personal, however, does not appear to be fairly open to the objection that has been sometimes made to it, of not being extensive enough to comprise chattels real. Por it is more correct and convenient to keep the idea of the subjects in which property may be acquired, separate from the idea of the estate or interest that may be acquired in these subjects. A chattel real is, properly speaking, not a thing personal, but rather «■ particular kind of estate in a thing real. It is, however, for many purposes, properly designated as personal estate. This is a matter that we shall have occasion to notice more fully hereafter. 170 BK. II. OF RIGHTS OF PKOPERTY. ^PT. I. THINGS HEAL. OHAPTEE I. OF THE DIVISIONS OF THINGS REAL. Things real are usually said to consist in lands, tenements, or hereditaments. [Land, says Sir Edward Coke, compre- hendeth in its legal signification any ground, soil, or earth whatsoever ; as arable, meadows, pastures, woods, moors, waters, marshes, furzes and heath [a). It legally inoludeth also all castles, houses, and other buildings : for they con- sist, saith he, of two things ; land, which is the foundation, and structure thereupon ; so that if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism ; but such is the language of the law: and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only ; either by calculating its capacity, as for so many cubical yards ; or by superficial measure, as for twenty acres of water ; or by general description, as for a pond, a water- course, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water (b). And so if I grant a certain water, though the right of fishing passes, yet the soil does not(c). Por water is a moveable wandering thiag, and must of neces- («) Co. Litt. 4a; and see Ewer (i) Challoner f. Thomas, Brownl. V. Hayden, Cro. Bliz. 476 ; Cooke 142. V. Yates, 4 Bing. 90. (u) Co. Htt. 4 b. CHAP. I. — OF THE DIVISIONS OF THINGS REAL. 171 [sity continue common by the law of nature ; so that I can only have a temporary, transient, usufructuary property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it (d). But the land which that water covers, is permanent, fixed and immoveable : and therefore in this I may have a cer- tain substantial property, of which the law will take notice, and not of the other. Land hath also, in its legal signifi- cation, an indefinite extent upwards as well as downwards. Cuj'us est solum, ejus est usque ad caelum, is the maxim of the law ; upwards, therefore no man may erect any building, or the like, to overhang another's land ; and downwards, whatever is in a direct line between the surface of any land and the centre of the earth, belongs in general to the owner of the surface. So that the word "land " includes not only the face of the earth, but everything under it or over it(e). And therefore if a man grant aU his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are equally sufficient to pass them (/) ; but the capital dis- tinction is this, that by the name of a messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generalissimum, everything terrestrial will pass (jr).] {d) See Eaoe v. Ward, 4 Ell. & {g) Co. Litt. 4 a— 6 b. This Bl. 702. word land is used in a still larger (e) Shep. Touch. 90 ; Baine v. sense in certain statutes ; as in 3 & Alderson, 1 Arnold, 329. 4 WUl. 4, o. 106 (for regulating the (/) Blaokstone here adds, "ex- law of inheritance), where it is pre- cept in the instance of water." vided, that, so far as the enact- But it would seem that the case ments of that statute are concerned, of water cannot properly be con- "land" shall comprise every in- sidered as an exception, because terest, real or personal, capable of ' ' water " ienot the particular name, being inherited, and also money to in contemplation of law, of the be laid out in the purchase of land, thing intended to be passed ; -ride &o. ; see also c. 105, the Act for the sup. p. lYQ regulation of the law of dower. 172 BK. H. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. The word tenement is of still greater extent, and though in its ordinary acceptation it is only applied to houses and other buildings, yet in its original proper and legal sense, it signifies everything that may he holden, that is, he the subject of tenure, of which we shall speak at large in the following chapter. In ordinary legal intendment, it in- cludes not only land (which is the primary subject of tenure), but rents, commons, and several other rights and interests issuing out of or concerning land [h). But hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression («) ; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed. Thus an heirloom, or implement of furniture, which by custom descends to the heir together with the house or land, is neither land nor tenement, but a mere moveable : yet, beiag inheritable, is comprised imder the general word hereditament : and so a condition, the benefit of which may descend to a man from his ancestor, is also a hereditament (li). It is under the larger term of hereditaments, though it be not strictly confined to things real, that the subjects of real property have been usually arranged ; and to this method it will therefore be most convenient to adhere. Hereditaments, then, are of two kinds, corporeal and in- corporeal. Corporeal consist of such as affect the senses, such as may be seen and handled by the body ; incorporeal are not the objects of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in con- templation. If we apply the word hereditaments to the realty only (which is its most ordinary use), " corporeal " hereditaments are in fact the same with land, of which (A) Co. Litt. 6 a, 20 a, 78 a; and Deun, 2 Bos. & Pul. 261 ; Pooook see R. I/. Dersiugham, 7T.E. 671; v. Bishop of London, 3 Brod. fr Vin. Ab. Grants (T). Biiig. 33. («) Co. Litt. 6 a. As to the term [k) "Winchester's case, 3 Rep. /lei-editmnmzts,' see also Moore i'/ 2 b. CHAP. I. — OF THE DIVISIONS OF THINGS REAL. 173 enough has been said ; " incorporeal " are the rights and profits annexed to or issuing out of land. It is to cor- poreal hereditaments, that our attention must he first directed ; and whatever is said generally, hereafter, as to the law of real property, is to be understood as referring to its corporeal subjects only, imtil those of the incorporeal kind present themselves, in their turn, for separate con- sideration, in a distinct chapter (/). {I) As to incorporeal hereditaments, vide post, bk. ii. pt. i. e. xxni. 174 BK. 11. OF RIGHTS OF PBOPEBTY. PT. 1. THINGS KEAL. CHAPTER II. OP TENURES. In proceeding to treat of corporeal hereditaments, we shall consider, in the first place, the tenures by which they may he holden ; secondly, the estates which may be had in them {a) ; and, lastly, the title to them, or the manner in which those estates maybe acquired and lost (J). And, first, as to tenures. These it will be impossible to understand with any degree of accuracy, unless we have some previous acquaint- ance with the nature of feuds, or the feudal law (c) ; a system established during the middle ages throughout the greater part of the European continent, and from thence derived to England, where its spirit still lives in several of her institutions. This chapter will therefore be dedicated, in the first instance, to an inquiry into the feudal system ; after which we shall revert to our own municipal law, and particularly that branch of it which relates to the Tenure of real property, a doctrine which we shall find to be alto- gether founded upon feudal principles. Feuds were introduced under the new dynasties founded by the barbarous tribes, who, during the fourth, fifth, and (a) Vide post, bk. n. pt. I. oo. m, " flowers of antiqiiify and foreign — T^- "learning, hath not turned into (i) Ibid. CO. X. — xxn. "this field, from whence so many •(c) "I do marvel many times," "roots of our law have, of old, says Spehnan, " that my lord Coke, " been taken and transplanted."— " adorning our law with so many Spel. Orig. of Terms, c. viii. CHAl*. II. OF TKNURE.S. 175 sixth centuries, poured themselves from Germany and the neighbouring countries into the Eoman empire (rf). In every province which they subjugated, large tracts of territory were divided by lot among the conquerors, some portion falling to the king or general of the invading tribe, and the rest to his soldiers, who received their shares as free and independent property, subject only to the condition of bearing arms, as occasion might require, in the defence of the community from hostile aggression. Of the lands assigned to the sovereign of the tribe, cer- tain portions were afterwards usually distributed by him among his adherents, and chiefly among his courtiers or companions {comites) : but the interest they derived under these grants was not strictly in the nature of property ; it was of a beneficial or usufructuary kind only, a mere stipendiary return for services (commonly services of a military description) which they were expected to render to their master, and subject at some future period to re- sumption ; the proprietas, or actual ownership of the land, being considered as still residing in the sovereign himself. This species of interest, which we find at first described as a benefice (e), was called, about the close of the tenth century (and, as there is reason to suppose, much earlier) a feud{f), — a term which signified in the German lan- guage a stipendiary estate, and stood in contradistinction to allodium {(/), the phrase applied to that independent (rf) See Spelman on Feuds, and feuda according to Spelman, -who Wright on Tenures ; Co. Litt. by cites Cujaoius, Feud. lib. 3, p. 180. Harg. 64 a, n. (1), 191 a, n. hj (See Spelman on Feuds, 4, 6, 9; Butler. Cowell's Interpreter, in verb.) {ej The portions of land thus dis- (/) Feudum is said to be com- tributed were at first revocable at pounded of od, possession or es- the will of the lord, and were then, tate, anifeo, wages, pay. — Robert- it is said, called munera. They son's Hist. Ch. V. vol. i. u. (8), were afterwards held for some citing Waohteri, GrlosB. Germ. voc. limited time (usually one year). Feodum. and called beneficia. In process of {g) Allodimn is stated by Eoberft time they began to be granted in son (ubi sup.) to be compounded of perpetuity, and were then called the German particle mi and lot, and 176 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. species of property, before described, which had originally become vested by allotment in the conquerors of the country. There began thus to arise two distinct modes of holding or possessing land. The stipendiary held of (that is, in relation to and in dependence upon) a superior ; the allodialist held of no one, but enjoyed his land as free and independent property ; the first of these methods ap- plying exclusively to royal domains granted out in the manner we have described, the other to such land as had been allotted to the troops on the original conquest, or to land never appropriated by the barbarians, but left in the possession of the antient owners ; for the holding of this was of the same independent character, and received the same appellation of allodium. The interest of the stipendiary or beneficiary tenant did not originally extend beyond his own life, if it was not even determinable at the royal pleasure ; but in course of time it gradually improved in stability, and acquired an hereditary character, which led by a natural progress to the practice of subinfeudation; for the stipendiary, (or feudatory, as he should now rather be termed,) consider- ing himself as substantially the owner, began to imitate the example of his sovereign, by carving out portions of the benefice or feud, to be held of himself by some other person, on terms and conditions similar to those of the original grant; and a continued chain of successive de- pendencies was thus established, connecting each stipen- diary, or vassal as he was termed (A), with his immediate superior or lord. The beneficiary or feudal relation was well suited to those times of violence and insecurity, and was found by to signify land obtained by lot; and the Nortbem languages. — 2 Bl. he cites the same glossary, voc. Com. p. 45, n. Allodium. Another derivation, {h) R-om gwrn, a Celtic word for towever, is given by Blaoistone, a sefvant.—Hallam's Middle Ages, ■who considers it as eomponnded of p. 155, 7th ed. all itotvm), and odh {proprietaa) in CHAP. II. — OF TENURES. 177 experience to be attended with great advantage both to the lord and the vassal : to the former, as it secured to him a band of military retainers, attached by duty and by sentiment to his person ; and to the latter, as it brought them into close connection with a powerful superior, imder whom they found that shelter from oppression, which the law was then too weak to afford. The effect of this, as regarded the allodial species of property, was remarkable : the allodialist, though enjoying a nominal independence, was yet envious of the comparative security of the feudal vassal, and therefore gradually placed himself in the same or a similar relation, changing the nature of his property from allodial to feudal; which change he effected by giving up or surrendering his land to some powerful lord, and receiving it back again from him in the shape of a beneficium or feud, to be held upon some kind of service ; or, more simply, by merely acknowkdging himself to hold as a vassal to some chosen lord, under specified services, as if by the effect of a former grant, which had, in truth, never taken place. In one or other of these methods, allodial lands were largely converted into feudal ; still, there were many estates which always continued to be held aUo- dially (»). Such is the true history of the origin and establishment of the feudal system (k) ; it was not according to the theory adopted by Blaokstone, so much an invention of government applied systematically to the management of conquered countries, with a view to security from foreign invasion or domestic insurrection (/) ; but rather it was a conventional arrangement of property, established by gradual usage, and brought into general acceptance by its tendency to protect persons of inferior rank from the inconveniences of civil disorder ; at the same time it did (i) See Co. Litt. by Harg. 65 a, lam's Middle Ages, vol.i. pp. 142 — . n. (1). 323, 7tll edit. {k) See particularly Robertson's (T) 2 Bl. Com. pp. 45, 46. Charles V. vol. i. n. (8) ; and Hal- VOL. I. N 178 BK. II. or EIGHTS OF PROPERTY. — PT. I. THINGS EEAX. also tend to aggrandize the more powerful lords ; and it did also operate to maintain an effective force to meet hostile invaders (in). [The feud was conferred by words of gratuitous and pure donation, dedi et concessi, which would still be the operative words ia a modern infeudation or deed of feoff- ment in the English law. This donation was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vassals ; which delivery perpetuated among them the era of the new acquisition, at a time when the art of writing was very little known, and therefore the evidence of property was reposed in the memory of the neighbour- hood; who, in ease of a disputed title, were afterwards called upon to decide the difference, not only according to external proofs adduced by the parties litigant, but also by the internal testimony of their own private knowledge. Besides an oath of fealty, or profession of faith to the lord, which was the parent of our oath of allegiance, the vassal or tenant, upon investiture, usually did homage to his" lord ; openly and humbly kneeling, being ungirt, un- covered, and holding up his hands both together between those of the lord, who sat before him, and there professing that " he did become his man from that day forth, of life and limb and earthly honour ;" and then he received a kiss from his lord (w). Which ceremony was denominated homagium, or manhood, by the feudists; from the stated form of words, devenio vester homo (o).J (m) 2 Bl. Com. p. 46. Some writers among oHldren, whose games and have supposed that the idea of plays are delivered down invariahly feiidahsm was borrowed by the from one generation to another, barbarous tribes from the Roman (Warburton's notes on Pope, vi. tenure of Emphyteusis. (See Maine 134, 8vo.) It wiU not, perhaps, on Antient Law, p. 302.) be thought puerile to remark in W Litt. s. 85. confirmation of this observation, (o) It was an observation of Dr. that in an antient game described Arbuthnot that tradition is nowhere by Julius Pollux [Onomaatic, 1. 9, preserved so pure and incorrupt as u. 7), under the title of basilinda, or CHAP. II. — OP TENURES. 179 Besides the fealty and homage, the relation of lord and vassal was ordinarily attended with the following feudal incidents {p) : — 1. Aid, whioh was originally a mere bene- volence volnntarily granted by the vassal to his lord in time of difficulty and distress {q) ; but which in process of time came to be considered as a matter of right. 2. Relief, which was a tribute paid to the lord, for " taking up" the estate which had lapsed or fallen in by the death of the last tenant : for while the feuds were not properly here- ditary, but granted by favour of the lord only to the children of the former possessor, the heir used generally to pay a fine or acknowledgment to the lord, in horses, arms, money, or the like, for the renewal of the feud ; and this was called a reKef , because, in the words of the feudal writers, " incertam et caducam hereditatem relevat." And this relief afterwards, when the feuds became absolutely hereditary, continued to be paid on the death of the tenant, though the original reason of it had ceased to apply. [3. Fine on alienation, being a sum of money paid to the lord by the tenant whenever he had occasion to make over his land to another ; for, the reason of conferring the feud having been the personal abilities of the first feuda- tory to serve in war, it was not fit he should, without the lord's consent, transfer this gift, either from himself, or from his posterity who were presumed to inherit his valour, to others who might prove less able. And as the feudal obligation was looked upon as reciprocal, the feudatory being entitled to the lord's protection in return for his own fealty and service, therefore the lord could no more transfer his seigniory or protection, without the attornment, that is to say, the consent of his vassal, than the vassal could transfer his feud without the consent of his lord (r) ; it being equally unreasonable that the lord should extend the king I am, the oeremonies and p. 181, 7th ed. language of feudal homage are pre- (?) See Bract, lib. ii. tr. 1, e. 16, served with great exactness. s. 8. (js) Hallam's Middle Ages, vol. i. {r) Wright's Tenures, 30. n2 180 BK. II. OF RIGHTS OF PKOPERTY. PT. 1. THINGS REAL, [his proteotion to a person to whom he had exception, and that the vassal should owe subjection to a superior not of his own choosing.] 4. Escheat and forfeiture, being two different modes by which the relajiion between the lord and vassal might be dissolved (s). The first was where the tenant in possession of a feud not granted for life only, but transmissible by hereditary descent, died without leaving any heir behind him upon whom, according to the terms of the original grant, the feud could any longer descend ; in which case it reverted to the lord, that is, the gift, being determined, resulted back to the giver. The second case (that of forfeiture) occurred where the tenant committed some act in violation of his duty towards his lord, such as rendered him unfit to be longer trusted as a vassal ; and the effect of this was that his interest in the feud became forfeited, and returned to the lord, as for a breach of that condition of fidelity on which the grant was made if). [Feuds, as we have seen, did not originaEy extend beyond the life of the first vassal ; but in process of time they were universally extended to his sons, or perhaps to such one of them as the lord should name; and in this case the form of the donation was strictly observed : for if a feud was given to a man and his sons, all his sons suc- ceeded him in equal portions ; and, as they died off, their shares reverted to the lord, and did not descend to their children, or even to their surviving brothers,' as not being specified in the donation («). But when such a feud was given to a man and his heirs, in general terms, then a more extended rule of succession took place ; and when the feudatory died, his male descendants in infinitum were admitted to the succession. When any such descendant, who thus had succeeded, died, his male descendants were also admitted in the first place : and, in defect of them, («) As to escheat, vide post, bk. n. {t) 'Wright's Tenures, 44. pt. I. u. xn. ; as to forfeiture. Mo. (m) Wright, uhi sup. 17. C. XIY. CHAP. II. — OF TENURES. 181 [such of his male collateral kindred as were of the blood or lineage of the first feudatory, but no others. For this was an unalterable maxim in feudal succession, that " none was capable of inheriting a feud but such as was of the blood of, that is, liaeally descended from, the first feuda- tory " ix). And the descent, being thus confined to males, originally extended to all the males alike; all the sons, without any distiuction of seniority, succeeding to equal portions of the father's feud.] But this was found upon many accounts inoonTenient, particularly by dividing the services, and thereby weakening the strength of the feudal union ; and, moreover, honorary feuds, or titles of nobility, had been gradually introduced, which were not of a divisible nature, but could only be iaherited by the eldest son (y) ; and, at length, in imitation of these last, military feuds (or those we are now describing) began also in most countries to descend, according to the rule of primogeniture, to the eldest son, in exclusion of all the rest (z). [These were the principal and very simple qualities of the genuine or original feuds, which were all of a military nature, and in the hands of military persons ; though the feudatories being imder frequent incapacities of cultivating and manuring their own lands, soon found it necessary to commit parts of them to inferior tenants, obhging the latter to such returns, or reditus — ^that is to say, rents — in services, corn, cattle, or money, as might enable the chief feudatories to attend to their mihtary duties without dis- traction. And by these means the feudal polity was greatly extended, these inferior feudatories (who held what are called in the Scots law "rerefiefs ") being under similar obligations of fealty, to do suit of court, to answer the stipulated renders or rent-services, and to promote the welfare of their immediate superiors or lords (a). But this at the same time demolished the antient simplicity of feuds ; and an inroad being once made upon their con- {x) ■WrigH's Tenures, 183. (s) Wright, ubi sup. 32. (y) Feud. ii. 65. (a) Ibid. 20. 182 BK. II. OF RIGHTS OF PROPEKTT. PT. I. THINGS HEAL. [stitution, it subjected them, in course of time, to great varieties and innovations. Feuds began to be bought and sold, and deviations were made from the old fundamental rules of tenure and succession, which were held no longer sacred, when the feuds themselves no longer continued to be purely military. Hence these tenures began now to be divided into feoda propria et impropria, proper and improper feuds ; under the former of which divisions were compre- hended such, and such only, of which we have before spoken, and under that of improper or derivative feuds were comprised all such as did not fall within the other description ; such, for instance, as were originally bartered and sold to the feudatory for a price ; such as were held upon base or less honourable services, or upon a money rent, in lieu of military service ; such as were in them- selves alienable, without mutual licence ; and such as might descend indiSerently either to males or females. But where a difference was not expressed in the creation, such new-created feuds did in all respects follow the nature of an original, genuine and proper feud (6). The feudal polity of which we have here presented an outline was not received, at least not universally received, in England, till the reign of William the Norman (c) ; it is reasonable indeed to believe that even in the times of the Saxons, — who were a swarm from what Sir William Temple calls the same Northern hive, — something similar to it was in use, yet not so extensively, nor attended with aU the rigour that was afterwards imported by the Normans : for the Saxons were firmly settled in this island at least as early as the year 600 ;] and it was not until the eleventh or twelfth century that feuds arrived to their full vigour and maturity, even on the continent of Europe (d). Moreover, [the introduction of the feudal tenures into (J) Wright's Tenures, 36. p. 192, 7th ed. Blaokstoue fises (c) Spelm. Gloss. 218; Bract. 1. 2, a.d. 800, as the period of the fnU c. 16, s. 7. maturity of the feudal system, and ((Q Hallam's Middle Ages, vol. i. he cites Craig, 1. 1, t. 4. CHAP. II.— OF TENURES. 183 [England by King William was not effected immediately after the Conquest, nor by the mere arbitrary will and power of tbe Conqueror ; but was gradually estabKsbed by tbe Norman barons and others, in such forfeited lands as they received from the gifts of the Conqueror ; and it was afterwards iiniversaUy consented to by the great council of the nation, long after his title was established. Indeed, from the prodigious slaughter of the English nobility at the battle of Hastings, and the fruitless insurrections of those who survived, such numerous forfeitures had accrued, that the Conqueror was able to reward his Norman followers with very large and extensive possessions ; and their regard for the feudal law, under which they had long lived, together with the king's recommendation of this policy to the English, as the best way to put themselves on a military footing, and thereby to prevent any future attempts from the continent, were probably the reasons that prevailed to effect its universal establishment here by law. And, though the time of this great revolution in our landed property cannot be ascertained with exactness, yet there are some circumstances that may lead us to a probable conjecture concerning it ; for we learn from the Saxon Chronicle (e), that in the nineteenth year of King WiUiam's reign an invasion was apprehended from Den- mark ; and the military constitution of the Saxons beiag then laid aside, and no other iutroduced ia its stead, the kingdom was wholly defenceless ; which occasioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landowner, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might co-operate with the king's remonstrances, and the better incline the nobiHty to listen to his proposals for putting themselves in a posture of defence ; for, as soon as the danger was over, the king held a great council to inquire («) A.D. 1085. 184 BK. II. OF EIGHTS OF PROPERTY. — ^PT. I. THINGS REAL. [into the state of the nation (/) ; tlie immediate consequence of which was the compiling of the great survey called Domesday Book, which was finished in the next year: and in the latter end of that very year the king was attended by all his nobility at Sarum, where all the principal land- holders submitted their lands to the yoke of military tenure, became the king's vassals, and did homage and fealty to his person {g). This may possibly have been the era of formally introducing the feudal tenures by law ; and perhaps the very law, thus made at the council of Sarum, is that which is still extant, and couched in these remarkable words — " Statuimus, ut omnes Kberi homines fcedere et sacramento afflrment, quod intra et extra universum regnum Anglice Wilhelmo regi domino suo fideles esse volunt ; terras et honores illius omni fidelitate uhique servare cum eo, et contra inimicos et alienigenas de/endere " (A). The terms of this law, as Sir Martin Wright has observed, are plainly feudal («) ; for, first, it requires the oath of fealty, which made, in the sense of the feudists, every man that took it a tenant or vassal ; and, secondly, the tenants obliged them- selves to defend their lord's territories and titles against all enemies foreign and domestic. But what clearly evinces the legal establishment of this system, is another law of the same collection, which exacts the performance of the military feudal services as ordained by the general coxmcil. " Omnes comites, et barones, et milites, et seroientes, et imiversi Kberi homines iotius regni nostri prcedicti, habeant et teneant se semper bene in armis et in equis, ut decet et oportet ; et sint semper^ prompti et bene parati ad sermtium siium integrum nobis explendum et peragendum, cum opus (/) "Bex tmuit magnum eonei- omnes se illi subdidere, ejusque faeti Hum., et graves sermones habuil cum sunt vasaUi, ac ei fidelitatis juramenta suis procerihus de Me terrd ; quo modo prmstitermit, se contra alios quosctm- incoleretur, et a quibus hominibm." — que UU Jidos futuros." — Chron. Sax. Chron. Sax. ib. a.d. 1086. (y) " Omnes praedia tenenles, quot- (A) Wilkins's Leg. Anglo-Sax. quot essent notes melioris per toiam LL. Guil. Con. o. 52. Angliam, ejus homines facti sunt, et . (i) Tenures, 66. CHAP. 11. — OP TENURES. 185 \_fuerU ; secundum quod nobis detent de feodis et tenementi suis de jure facere, et sicut ilKs statuimus per commune con- cilium totius regni nostri prcedicti" (k). It is probable that, by thus consenting to the iatroduc- tion of feudal tenures, our English ancestors meant no more than to put the kingdom in a state of defence by establishing a military system, and to oblige themselves, in respect of their lands, to maintain the king's title and territories with equal vigour and fealty, as if they had received their lands from his botmty upon these express conditions, as pure, proper, beneficiary feudatories. But ■whatever their meaning was, the Norman interpreters, skilled in all the niceties of the feudal constitutions, and well understanding the import and extent of the feudal terms, gave a very different construction to this proceed- ing; and thereupon took a handle to introduce not only the rigorous doctrines which prevailed in the Duchy of Nor- mandy, but also such fruits and dependencies, such hard- ships and services, as were never known to other nations ; as if the English had, in fact as well as in theory, owed everything they had to the bounty of their sovereign lord (l). Our ancestors, therefore, who were by no means bene- ficiaries, but had barely consented to this fiction of tenure from the crown as the basis of a military discipline, with reason looked upon these inflictions as grievous imposi- tions and arbitrary conclusions from principles that, as to them, had no foundation in truth (m). However, the Conqueror, and his son William Eufus, kept up with a high hand all the rigours of the feudal doctrines ; but their successor, Henry the first, found it expedient, when he set up his pretensions to the crown, to promise a resti- tution of the laws of King Edward the Confessor, or antient Saxon system ; and accordingly, in the first year of his reign, granted a charter, whereby he gave up the (k) WiUdna'sLeg.ubisup.c. 28. («i) Wright's Tenures, 81. (?) See Spelm. of Feuds, c. 28. 186 BK. II. OP RIGHTS OF PKOPERTY. — ^PT. I. THINGS REAL. [greater grievances, but still reserved the fiction of feudal tenure, for the same military purposes which, engaged his father to introduce it («). But this charter was gradually broken through, and the former grievances were revived and aggravated by himself and succeeding princes ; till, in the reign of King John, they became so intolerable, that they occasioned his barons or principal feudatories to rise up in arms against him ; and thus at length produced the famous great charter at Eunning-mead, which, with some alterations, was confirmed by his son Henry the third (o).J And, though the immunities granted by King John (espe- cially as his charter was finally altered, in its last edition, by Henry the third,) are very greatly short of those granted by Henry the first, they were justly esteemed at the time a vast acquisition of English liberty. And although, by reason of the alteration of tenures, — which priacipaUy took place, as we shall presently see, in the reign of Charles the second, — many of these immunities may now appear, to a common observer, of much less consequence than they really were when granted; this, properly considered, will show, not that the acquisitions ujider John were small, but that those under Charles were greater. [And from hence also arises another inference ; that the liberties of Englishmen are not mere infringe- ments of the king's prerogative, extorted from our princes by taking advantage of their weakness, but a restoration of that antient constitution of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived of by the force of the Norman arms.] The general introduction of strict feudal principles into («) WilMns's Leges Anglo-Sax. thirty-seven chapters, printed un- LL. Hen. 1, v. 1. der 25 Edward 1, in our present (o) The charter granted by King Statute Book), has never received John received confirmation, -with any alterations. But Sir E. Coke some not inconsiderable variations, reokonsthirty-tvfo instances where- in the first, second, and ninth years in it has been solemnly ratified, of Henry's reign. The last of these (HaUam's Mid. Ages, vol. u. (the Magna Oharta, consisting of p. 452, 7th ed.) CHAP. II. — OP TENURES. 187 this country, as above explained, gave rise to that funda- • mental maxim of the law of England which still prevails, that aU land belonging to any subject is holden of some superior, and either mediately or immediately of the sovereign {p) ; for in this realm, according to Sir E. Coke, we have not allodium (q) . And as all lands in England are holden, they are consequently called tenements, the pos- sessors thereof tenants, and the manner of their possession a tenure (r). Where the tenure was of the sovereign immediately, it was said to be in capite, or in chief. And this was of two kinds, either ut de honore (where the land was held of the king as the proprietor of some honour, castle, or manor), or ut de eoron& (where it was held of him in right of the crown itself) ; and it is to the latter kind that the term of tenure in capite was more especially applied (s). But the holding might also be mediate, that is, in the way of subinfeudation {t). [For such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were stni tenants with respect to the king : and, thus partaking of a middle nature, were called mesne or middle lords. So that if the king granted a manor to A., and A. granted a portion of the land to B., now B. was said to hold of A., and A. of the king ; or in other words, B. held his lands immediately of A., but mediately of the king. The king therefore was styled lord paramount ; A. was both tenant and lord, or was a mesne lord ; and B. was called tenant par avail, or the lowest tenant (m) . (^) Oo. Litt. by Harg. 93 a, 1 a, ut de corond and not ut de honore, 1 b, 65 a. (Co. Litt. 108 a ; 2 Inst. 64 ; Mag. (?) lb. 64 a, n (1) ; et vide sup. Char. c. 31 ; 1 Edw. 3, st. 2, o. 13 ; p. 176. 1 Edw. 6, 0. 4 ; E. N. B. 175 ; Bro. (r) Co. Litt. ubi sup. 1 b ; 2 Bl. Alien. 11; WrigM's Ten. 163. 0. 69. But see Oo. Litt. by Harg. 108 a, (») It seems that when tenure in n. (3).) capite was mentioned generally, it (<) Vide sup. p. 176. was understood to apply to a tenure («) 2 Inst. 296. 188 BK. II. OF EIGHTS OF PROPEKTY. — PT. I. THINGS REAL, [This distinction of mediate or immediate tenancy ran throTigh. all the different sorts of tenure, which we shall here proceed severally to consider. There subsisted among our ancestors four principal species of lay tenures, to which aU others may he reduced : and the grand criteria of these were the natures of the several services or renders that were due to the lords from their tenants. The services, in respect of their quality, were either /ree or lase; in respect of their quantity and the time of exacting them, they were either certain or uncertain. Free services were such as were not unbecoming the' character of a soldier, or a freeman, to perform ; as to serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were fit only for peasants, or persons of a servile rank ; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain depended upon unknown contingen- cies ; as to do military service in person, or pay an assess- ment in lieu of it, when called upon ; or to wind a horn whenever the Scots invaded the realm ; which are free services: or to do whatever the lord should command; which is base, or villein service.] The various combinations of these services gave rise to the various kinds of lay tenure. Of these Bracton (who wrote under Henry the third) seems to give the clearest and most compendious account of any author antient or modem; and of this, the following is an outline or abstract. " Tenements are of two kinds, frank-tenement " and viUenage. And of frank-tenements some are held " freely, in consideration of homage, and knight-service ; " others in free-socage with the service of fealty only, or " with fealty and homage, according to some authori- CHAP. II. — OF TENURES. 189 "ties"(a!). And, again, "Of villenages some are pure, " others privileged. Pure vilknage is where a man holds " upon terms of doing whatsoever is commanded of him, " nor knows in the evening what is to be done in the " morning, and is always hound to an tincertain service. " There is also another kind of villenage holden of the " king, from the time of the Conquest, which is called " villein-socage, and which is villenage, hut of a privileged " sort. Such tenants of the king's demesnes have the " privilege that they cannot he removed from the land " while they do the service due ; and these viHeui-socmen " are properly called glebm ascriptitii. They perform " villein services, hut such as are certain and deter- " mined" (y). This account, illustrated as it is by other authorities, proves that there antiently existed (as before remarked) four principal kinds of lay tenure : and that they were as follows — sermiium militare, that is knight- service, or in law-French, chivalry or service de chivaler, answering to the fief d'haubert of the Normans, — where the service was free, but uncertain (s) : liberum socagium (free socage), where the service was not only free, but certain : purum villenagium (pure villenage), where it was base in its nature, and uncertain : and lastly, villenagium privikgiatum (or viUein socage), where it was base but certain ; and this last seems principally to have prevailed among those who are above described as "tenants of the king's demesnes." The four kinds of tenure above enumerated, however, in process of time were described as only three, viz. knight-service, free socage, and copyhold ; which last com- prises both the species of villenage to which Braeton refers. These three subsisted in England till the middle of the seventeenth century, and the two last subsist to this {x) Bract. 1. 4, o. 28, § 1. by " knight- serrioe," is expressly (y) Ibid. § 5. called "fiefd^haubert" in the Mir- (e) Spelm. ttloss. 219. Tenure rour (o. 2, § 27). 190 BK. II. OF RIGHTS OF PROPBETY. — PT. I. THINGS REAL. day. We will now examine a little into the character of each. First, as to knight-service, otherwise called tenure by chivalry. [This was the most universal, and esteemed the most honourable species of tenure, and it differed in very few points from a pure and proper feud, being entirely military in its character. To mate this holding, it was necessary that the tenement in point of quantity should amount to twelve ploughlands (a) ; which was called a knight's fee, feodum militare (b) ; and the value of which is stated in 1 Edw. II. at £20 per annum (c). And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon (d) ; which attendance was his reditus or return, his rent or service for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twfenty days, and so in proportion (e). And there is reason to apprehend, that this service was the whole that our ances- tors meant to subject themselves to ; the other fruits and consequences of this tenure being fraudulently super- iaduced, as the regular (though unforeseen) appendages of the feudal system. This tenure had all the marks of a strict and regular feud : it was granted by words of pure donation, dedi ei concessi (/) ; was transferred by investiture or delivering corporal possession of the land, usually called " livery of seisin ;" and was perfected by homage and fealty (' common socage, and base tenure n. (i). " by copy of court roll."— 2 Bl. C. (?) L. 4, t. 1, c. 28, ri. 5. Vide 101. And see Co. Cop. ss. 17, 32 ; sup. p. 188. CHAP. U. — OF TENURES. 225 [wMch, though now perhaps granted out to private sub- jects, were in the hands of the Crown at the time of Edward the Confessor, or William the Conqueror; and appear to have been so by the great survey in the Ex- chequer, called Domesday Book {m). The tenants in these crown manors were not all of the same order or degree. Some of them, as Britton testifies, continued for a long time pure and absolute villeins, dependent on the will of the lord («) : and such as have succeeded these in their tenures, now differ from common copyholders only in a few poiats (o). Others, again, were in a great measure enfranchised by the royal favour; beiag only bound, in respect of their lands, to perform some of the better sort of villein services of the determinate and certain class ; as, to plough the king's lands for so many days, to supply his court with such a quantity of provisions, or other stated services ; all of which are now changed into pecuniary rents : and in consideration of these services, they had many immunities and privileges granted to them {p) ; as to try the right of their property in a peculiar court of their own, called a court of antient demesne {q), and by a peculiar process, denominated a writ of right close (r) ; not to pay toll or taxes (s) ; not to contribute to the expenses of knights of the shire ; not to be put on juries ; and the like {t).'] Manors of antient demesne accordingly comprise, to this day, both copyholders in the proper and common sense of the term, and also such privileged tenants as just {m) F. N. B. 14, 16 ; Crowther (q) Doe v. Eoe, 2 Burr. 1046 ; V. Oldfield, Salk. 364. Alden's case, 6 Eep. 103 ; and see («) C. 66. 3 & 4 Will. 4, c. 74, ss. 4, 5, 6. (o) P. N. B. 228. (»■) r. N. B. 11. (j)) 4 Inst. 269. In would seem (s) As to the extent of this im- that in antient demesne the free- munity, see The Queen v. Ayles- hold may be in the tenant ; see 2 ford, 2 Ell. & Ell. 538. Inst. 325 ; Soriven on Copyholds, (t) F. N. B. 14. 6th ed., by Brown, pp. 33, 34. VOL. I. Q 226 BK. II. OF RIGHTS OF PROPEKTIf. PT. I. THINGS REAL. described (m), who are alone properly called tenants in antient demesne {x). As to these last, though their services, like those of pure villeins, were origiaally base, yet (as appears by the account of them just given) they were distinguished from the latter, in that their services were fixed and determinate ; and that they could not be compelled (like pure villeins) to rehnquish their tenements at the lord's will, or to hold them against their own ; " et ideo" says Bracton, " dicuntur liberi." Britton, also, on account of such their freedom, calls them sokemans, and their tenure sokemanries ; that is to say, " lands and tene- " ments, which are not held by knight-service, nor by " grand serjeanty, nor by petit, but by simple services ; " being, as it were, lands enfranchised by the king or his " predecessors from their antient demesne " (y). And the same name is also given them in Meta (s). Tenants in antient demesne, like common copyholders, require ad- mittance by the lord to perfect their title ; and they hold according to the custom of the manor, though not ad voluntaiem domini (a). Customary freehold (the other variety to which we re- ferred) exists in many parts of the kingdom. The evi- dences of title are to be found, as in pure or common copyhold, upon the court roUs; and here, again, the entries declare the holding to be according to the custom of the manor, though it is not expressed to be at the will of the lord (6). The customs of these manors are subject to («) F.N.B. 14, B. 11 M., 12B.; Litt. byHarg. 52 b, n. (1). There Co. Cop. B. 32. is also a kind of customary estate (a;) Third Real Property Eep. called tenant right (said to be pe- p. 13. ciJiar to the north of England), ■ ((/) 0. 66. which falls imder the general class (s) L. 1, u. 8. of copyhold, though distinguished (a) 2 Bl. 0. 101 ; and aco. Co. from the common kind by many Cop. 8. 32 ; but see Third Eeal of its incidents. (See Graham v. Property Eep. ubi sup. Jackson, 6 Q. B. 811 ; Passingham, (J) Co. Cop. ubi sup. ; see Third app., Pitty, resp., 17 C. B. 313.) Eeal Property Eep. p. 20 ; Co. CHAP. II. OF TENURES. 227 great variety ; but in general the incidents of eustomary freeholds are similar to those of copyhold lands properly so called (c). Mention has hitherto been made of lay tenures only; but there is another species of tenure which stiU subsists, as it was reserved by the statute of Charles the second; and this is of a spiritual nature, and it is called the tenure in frankalmoign. [Tenure in frankalmoign, {in liberd eleemosynd, or in free alms,) is that, whereby a religious corporation, aggre- gate or sole, holdeth lands of the donor to it and its successors for ever {d). The services which (prior to the Eef ormation) such corporations were bound to render for these lands were not certainly defined ; but only, in general, to pray for the souls of the donor and his heirs, dead or alive ; and therefore they did no fealty, which is incident to all other services but this (e), because this divine service was of a higher and more exalted nature (/). This was the tenure by which almost all the antient monasteries and religious houses held their lands ; and by which the paro- chial clergy, and very many ecclesiastical and eleemosynary foundations hold them to this day (gr) ; the nature of the (c) As to the state of the law settled, and the freehold is now •with respect to the devise of ous- deemed to be in the lord and not ternary freeholds prior to the year in the customaryhold tenant (see 1838, see the Third Keal Property Soriven on Copyholds, 6th ed., by Eep. p. 22. But by 7 WiU. 4 & 1 Brown, pp. 14—17). See also, as Viet. c. 26, s. 3, the power of de- to the right of customary tenants vising was extended to aU ous- to work minerals, The Duke of tomary freeholds. There has been Portland v. HiU, Law Eep., 2 Eq. much controversy upon- the ques- Ca. 765. tion whether the freehold in a cus- (d) Litt. s. 133. tomary freehold is vested in the (e) lb. s. 131. tenant, or (as in the oaseof common (/) lb. s. 135. copyhold) in the lord ; (see Blaokst. (?) See Third Real Property Rep. Law Tracts, Oonsid. on Cop. pp. p. 7. That Blackstone is correct 144 et seq. ; Third Real Property in stating this as the tenure of the Rep. p. 20) ; but the controversy parochial clergy, is confirmed by may now be considered as finally the language of the asaisa utrum, cj2 228 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. [service, however, being, upon tlie Eeformation, altered and made eonformatle to the doctrines of the Church of Eng- land. Tenure \q. frankalmoign is an old Saxon tenure, and it continued under the Norman revolution, through the great respect that was shown to religion and religious men in antient times. Which is also the reason that tenants in frankalmoign were discharged of all sectdar services, except the trinoda necessitas, of repairing the highways, building castles, and repelling invasions {h) ; just as the Druids, among the antient Britons, had om- nium rerum immunitatem {i) . And, even at present, this is a tenure of a nature very distinct from all the others we have described, being not in the least feudal, but merely spiritual. And if the service be neglected, the law gives no remedy by distress or otherwise to the lord of whom the lands are holden, but merely a complaint to the ordinary or visitor to correct it (k). In this last respect, as also in its services being not certainly defined, it materially diSers from another antient holding of a spiritual nature, called tenure ly divine service : in which the tenants were obliged to do some special divine services in certain; as to siag so many masses, to distribute such a sum in alms, and the antient remedy of the parson terit nisi nomine ecclesia sua, quia for recovering his glebe, &o., in in ecclesiis parochialibtts non Jit do- which the point of inquiry always natio persona sed ecehsia." The was "utrum tantmn terra sit libera inheritance, according to thisTiew, eleemosyna pertinens ad ecclesiam ip- resides not in the parson himself, sius, an laieum feodum." — Bract. but in his church. (And see Litt: 1. 4, tr. 5, c. 1. s. 646.) The tenure of the paro- It is true, indeed, that in the chial clergy, however, will be of case of a parson the inheritance is this kind only where the grant said to be in abeyance, and the was originally made in the antient parson entitled for his life only, form, to hold ut in liberd eleemosynd. and this at first sight appears in- (See Wats. C. L. 373 ; Plowd. 242; oonsisteiit with the nature of frank- 1 Inst. 94 b.) almoign, which always implies a (A) Seld. Jan. 1, 42. giitin perpetuity; "bat the dimoulty (i) CsesardeBell. Gall.l. 6, o. 13. is removed by the remark of Brae- (A) Litt. s. 136^ ton (ibid. c. 2), "nihil elamare po- CHAP, II. OF TENURES. . 229 [the like ; whioh, being expressly defined and prescribed, could with no kiad of propriety be called free alms ; especially as for this, if unperformed, the lord might distrain, without any complaiat to the visitor {l)7\ No donation in frankalmoign can now (since the statute of Quia emptores) be made by a subject {m) ; but the tenure is here mentioned because frankalmoign is excepted by name in the statute of Charles the second, and it subsists in many instances to this day. Having made these observations with respect to the different kinds of tenures, it may be now proper to add, that, in proceeding further to investigate the nature and properties of corporeal hereditaments, we shall for the present suppose them held by the ordiuary tenure of free socage, that is, freehold; and the reader may dismiss the subject of copyhold from his consideration, till we arrive at a later part of the treatise, when we shall have occasion to devote a separate chapter to the more particular exami- nation of property holden by that tenure (w). [Vj Litt. s. 137. {«) Vide post, bk. ii. pt. i. o. (m) lb. s. 140. By this statute xxii. It may be desirable to men- (18 Edw. 1, st. 1) no subject may tion here, that freehold and copy- grant lauds in perpetuity to hold hold tenures have by modem of himself. From vhich it follows, statutes been placed on the same that none can grant in frankal- footing for many purposes, e.g., moign ; for (as Littleton after- the qualification to serve on jtiriea wards remarks) none may hold in (6 Geo. 4, v. 50, s. 1) ; the devise frankalmoign but of the grantor by will (1 Vict. c. 26) ; the aliena- and his heirs (s. 141), and the tion under the Settled Land Act, estate in frankalmoign is always 1882, &c., &c. in perpetuity. — Co. Litt. 94 b. 230 BK. II. OF RIGHTS OF PKOPEETY. PT. I. THINGS BBAL. OHAPTEE III. OF FREEHOLD ESTATES OF INHERITANCE. The second point to he considered with regard to corporeal hereditaments is the nature of the estates which maybe had in such of them as are of free tenure, reserving for subse- quent consideration the subject of corporeal hereditaments held ia base tenure (a). An estate in land signifies such interest as the tenant hath therein ; so that if a man grants all his estate in Dale to A. and his heirs, everything that he can possibly grant shall pass thereby (6). It is called in Latin status : it signifying the condition or circumstance in which the owner stands with regard to his property (c). And here it is material, in the first place, to remark that some kind of actual interest or ownership is implied in the term ; for a bare possibility, (such, for example, as the ex- pectation of the eldest son of succeeding, upon his father's decease, to the inheritance of his lands,) will not satisfy the legal idea of an estate {d). Nor will a mere power amount to an estate ; as if a man by will orders his land to be sold by his executors : for they will in such a case take (a) Vide sup. p. 189, et post, bk. with an interest — such, for example, n. pt. ±. u. xxn. as the possibility of B., whioli (b) Co. Litt. 345 a. arises on an estate being conveyed (c) 2 Bl. Com. p. 103. to A. for life, and (Uving C. at his {i) See Jones v. Eoe, 3 T. B. death) then to 5. in fee. The latter 93 ; Doe v. TomMnson, 2 Mau. & kind may without impropriety be Sel. 170. There are two kinds of considered as an estate (though an possibility in law : — one a *«?•« pos- estate in contingency), and may sibUity, such as is referred to in the now, by 8 & 9 Vict. o. 106, s. 6, be text ; the other a possibility coupled disposed of by deed. CHAP. III. — OP FREEHOLD ESTATES OF INHEEITANOB. 231 no estate or right or title in or to the land, but only a bare authority over it (e) ; and the same may be said of a mere revocable licence or permission (in writing or otherwise) to make a certain use of land (/). On the other hand, there are various descriptions of actual interest to which the term estate applies. The leading distinction to which estates are subject is between such as are legal and such as are equitable {g). But it is of legal estate alone (which is the original and primary estate) that we shall have occasion at present to speak (A) : and we purpose to consider it in a threefold view : first, with regard to the quantity of interest which the tenant has in the tenement; secondly, with regard to the time at which that quantity of interest is to be enjoyed : and, thirdly, with regard to the number and connection of the tenants. First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by its dura- tion and extent. Thus, either the ownership is to subsist in the tenant during his own life, or during the life of another man ; or it is vested in the tenant and his descendants after him ; or it is circumscribed within a certain number of years, months, or days ; or, lastly, it is infinite and unlimited, being vested in the tenant and his representatives for ever. And this occasions the primary division of estates into such as &iq freehold, and such as are less than freehold. A freehold estate — liberum tenementum, or frank tene- ment, as it was formerly called, — is an estate either of (e) Co. Litt. 265 b ; Co. Litt. {g) Sanders on Uses, 8 ; Bao. 113 a, n. (2). Us. 77; 2 Fonbl. 257. And see (/) See E. V. Mellor, 2 East, Alpass v. WatMns, 8 T. E. 516 ; 189 ; "Wood v. Leadbitter, 13 Mee. Hardr. 469 ; Murley v. Sherren, 8 & W. 838 ; Perry v. Fitzhowe, 8 Ad. & El. 664. Q. B. 767 ; Hewitt v. Isham, 7 (h) As to the distinction between Exoh. 77 ; EofEey v. Henderson, 17 legal and eq^uitable estates, vide Q. B. 574 ; TapUn v. Florence, 10 post, chap. rs.. C. B. 764. 232 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. inheritance, or for Kfe, in lands of free tenure (») ; and it is material to our proper conception of it to remark, that at the common law, and prior to certain alterations in our system to be hereafter explained, an estate of this descrip- tion in hereditaments corporeal could in general be created or transferred only by the ceremony called Iwery of seisin, attended with proper words of donation ; which ceremony consisted, as its name imports, of a solemn delivery of pos- session ; and was in fact the feudal investiture of which we spoke in the last chapter (A). This method (which is still capable of being used) is called a feoffment, and the parties between whom it takes place are called \h.Q feoffor and the/eo;^ee. By the common law, the donation with which the livery is accompanied might be merely oral; but, by the Statute of .Frauds, (29 Car. II. c. 3,) some instrument in writing, under the sig- nature of the feoffor (or of his agent by writing lawfully authorized) , was made essential ; and a deed is now required by the statute 8 & 9 Yict. c. 106, for a feoffment in aU eases. It appears by our definition, that estates of freehold may be classed as being either estates of inheritance, or estates iiot of inheritance {I) ; and these two kinds will each be con- sidered in their order. An estate of inheritance is where the tenant is not only entitled to enjoy the land for his own life, but where, after his death without having disposed of it, it is cast by the law upon the persons who successively represent him in (i) Co. Litt. 43 b. The tenure therefore no others are properly itself, -we may recollect, is expressed freehold. It may be observed that by the same term of freehold (vide a freehold estate may consist either sup. p. 211, n. (^)). Blaokstone's in land or in some "tenement" definition of freehold is that it is (vide sup. p. 172) other than land. " such an estate as is conveyed by (A) Co. Litt. 49 a. As to the livery of seisin" (2 Bl. Com. 104) ; manner of making livery, see Doe but he adds, that as estates of in- v. Taylor, 5 Bam. & Ad. 575. heritance, or for life, and no other, (i) Edward Seymour's case, 10 are conveyed with this solemnity. Rep. 97 b. CHAP. 111. — OF FREEHOLD ESTATES OF INHBKITANCE. 233 pmyetuum in rigM of blood, according to a certain esta- blished order of ckscent, which we shall have occasion here- after to explain (m). These persons are called his heirs, and himself their ancestor. An estate of inheritance is otherwise called a, fee (w). [The true meaning of the word fee, feodum, is the same with that of feud or fief, and in its original sense it is taken in contradistinction to allodium (o) ; which, as we have seen, is a man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree, and the owner thereof hath absolutum et directum dominium. But, feodum, or fee, is that which is held of some superior, on condition of rendering him service ; in which superior, the ultimate property of the land resides. This allodial pro- perty no subject in England now has, it being a received and now undeniable principle in the law, that all the lands in England are holden mediately or immediately of the crown. The sovereign, therefore, only hath absolutum et directum dominium (p) ; but all lands owned by subjects are in the nature of fiefs, whether derived to them by descent from their ancestors, or purchased for a valuable consideration ; for they cannot come to any man by either of those ways, unless accompanied with those feudal inci- dents which attended upon the first feudatories to whom the lands were originally granted. This is the primary sense and acceptation of the word fee. But, as Sir Martin Wright very justly observes, the doctrine " that aU lands are holden " having been for so many ages a fixed and undeniable axiom, our modem English lawyers do very rarely use the word fee in this (m) Co. Litt. 237 b. As to the o. 5, s. 27. law of descent, vide post, bk. u. (o) As to allodial property, vide pt. I. c. XI. sup. p. 176. (n) " Fee simple " and " inherit- (p) "Frtedium domini regis eat ance" are used as convertible directmn dominium, cuius nuUus est terras, Litt. ss. 1, 9 ; Met. b. 5, author nisi Deus."— Co. Litt. 1 b. 234 BK. ir. OF EIGHTS OF PROPERTY. ^PT, I, THINGS HEAL. [its primary original sense, in contradistinction to allodium or absolute property, witli wHch they have no concern ; but generally use it to express the continuance or quantity of the estate (g). A/ee, therefore, in general, signifies an estate of inheritance (r), being the highest and most extensive interest that a man can have in a feud, i.e., in land. And in no other sense than this is the king said to be seised in fee, he being the feudatory of no man(s).J Estates of inheritance are either estates in fee simple or estates in/ee tail (f). I. An estate in fee simple (u) is that which a man hath to hold to him and his heirs general, that is, his heirs both lineal and collateral, male and female {x) ; and this is often called an " estate in fee," ■without the addition of the word "simple" (y) ; though, as abeady explained, a "fee" more properly signifies any estate of inheritance. Where a man claims an estate in fee simple in possession in a corporeal hereditament (s), the precise technical ex- pression is as follows : that he is " seised in his demesne as of fee " {in dominico suo ut de feodo) ; the words in dominico, or " in his demesne," signifying that he is seised {q) Wright's Tenures, 148. Litt. 1 a— 18 b. (r) Liu. o. 1 ; Flet. 1. 5, o. 6, [x) Wright's Tenures, 147 ; Co. B. 27. Litt. 1 b. It is to be observed (s) Co. Litt. 1 b. that we are treating at present of (<) "An estate of inheritance is natural persons only. AitLfioial either fee simple or fee tail." — persons, or corporations, of -whom Edward Seymour's case, 10 Rep. we shall have occasion to speak 97 b. (And see Litt. o. 13; Co. hereafter, hold estates in fee simple, Litt. 1 b, 19 a, 27 b ; Vaughan, to them and their successors. (Co. 273.) Blaokstoue divides inherit- Litt. 8 b.) auces into such as are absolute [y) Litt. s. 293. (which he considers as equivalent («) Where the subject is incor- to fees simple) and such as are poreal, or where the estate is ei- Umited, of which he considers fees peotant on a precedent freehold, tail as forming a species. (2 Bl. the words "in his demesne" are Com. 104.) omitted. Com. Dig. Pleader (0. {u) As to this estate, see Co. 35). CHAP. 111. OF FREEHOLD ESTATES OF INHERITANCE. 235 as owner of the land itself, and not merely of tlie seigniory or services (a) : and the words " as of fee " importing that he is seised of an estate of inheritance in fee simple ; and also (in reference to the original meaning of the term /ee) that he is not the ahsolute or allodial owner, but holds feudally, of a superior lord (b). The quality of being always holden of a superior lord (the nature of which was fully explained in the Chapter on Tenures) is incident to every estate in fee simple belonging to a subject; but the tenure is no longer (as formerly) of the person from whose immediate grant the fee is derived, but of the person to whose seigniory it has of antient time belonged. This is by the effect of the statute of Quia emptores (18 Edw. I. st. 1), which was passed to put a stop to the practice of the subinfeudation of the fee simple (c) . For according to that practice, a new relation of lord and tenant was, upon each successive aliena- tion of the fee, continually created between the alienor and the alienee ; and the latter consequently held of the former, and not of the chief lord under whom the alienor himself held. But this being found prejudicial to the interests of the chief lords, by exposing them to the frequent loss of their escheats, wardships, and marriages, the statute in question was passed for their protection {d) ; directing that, upon aU sales or feoffments of land in fee simple, the feoffee shall hold the same, not of his immediate {a) Blackstone considers these signifies the land which the feudal ■vrords "in his demesne," as sig- lord retained to his own use for nifying that it is " his property, as sustentation of his household, aa belonging to him and his heirs for distinguished from what he granted ever." (2 Bl. Com. 105.) Lord out on services ; and that the true Coke understands the word de- sense of seisin in demesne is that mesne, when used in this particular given in the text. (See Fleta, 1. connection, to signify rf« »iat» or of 5, c. 5, b. 18, s. 26; Bract. 1.4, the hand, because it is applied only tr. 5, o. 2, s. 2.) to corporeal or tangible subjects of (J) Bl. Com. ubi sup. property. (Co. Litt. 17 a.) But («) As to subinfeudation, vide there is abundant authority for sup. pp. 176, 187. holding that dominicum properly [d) 2 lust. 66, 500. 236 BK. II. OF EIGHTS OF PROPERTY. PT. I. THINGS REAL. feofEor, but of the next lord paramount, of whom such feoffor himself held; and by the same services (e). Since this statute, therefore, a man who would aliene an estate in fee simple, has no longer been able to convey it to be holden of himself (/) ; and his grantee will take it to hold of the same seigniory to which the fee immediately belonged when the statute passed (g), — unless something should have since occurred to alter the tenure. Where, from the lapse of time, no badges of tenure under any subject can now be traced, the land will be considered as holden immediately as well as ultimately of the crown (A), a,nd by the service of mere fealty ; which is the least and lowest service the law can create (») ; and which being now never exacted, has become a merely nominal obligation {k). But in many instances a private lord can stm be shown to be entitled to the immediate seigniory ; the ultimate one, as formerly remarked, being in all oases vested in the sovereign. A fee simple is the most extensive estate of inheritance that a man can possess (l) ; it is the entire property in the land (m) : and to it is attached — as an inseparable incident — the right of alienation, to the full extent of the interest which is vested in the tenant himself, or for any smaller estate (w). If he alienes to the full extent of his interest, (e) 2 Inst. 605. in capite. Tide sup. p. 187. (/) It is said that the stat. Quia (g) See Bradshaw v. LawBon, 4 emptores did not extend to the T. R. 443. Hng's own tenants in capite, but (A) Booth, 135. that the like law was afterwards (») Co. Litt. 98 a. declared as to them by the statute (A) Co. Litt. by Harg. 68 b, De FrerogativA Regis (17 Edw. 2, n. (5). St. 1, 0. 6), and 34 Edw. 3, o. 15. (t) Litt. s. 11 ; Co. Litt. 18 a; (See 2 Bl. Com. 91.) It would Vaughfl.u, 269. seem, however, that the stat. Quia (m) Butler's Feame, p. 13 (note) ; emptores did in effect apply to the Co. Litt. 18 a ; 2 Saund. 388 b ; tenants in capite, where they held Machell v. Clarke, Ld. Eaym. 779 ; ut de honore, and not ut de corond. 2 Inst. 336 ; Edward Seymour's (Wright's Tenures, 163 ; Taylor v. case, 10 Kep. 97 b. Horde, Burr. 108.) As to the dis- («) Litt. s. 360 ; Co. Litt. 223 a ; tinction between these two tenures 1 Cr. Dig. 20. CHAP. III. OF FREEHOLD ESTATES OF INHERITANCE. 237 or, in other words, conveys away the fee simple, it follows of course that the alienee takes an estate to himself and his own heirs, answerahle to that which the original owner had to him and his heirs. [As a general rule, the fee simple or inheritance of lands and tenements is generally Tested and resides in some person or other, though divers inferior estates may he carved out of it. As if one grants a lease for twenty- one years, or for one or two lives, the fee simple remains vested in the grantor and his heirs ; and after the deter- mination of those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee.] Yet sometimes the fee may he in abeyance, that is, only in rememhrance, intendment, and consideration of the law; there heing no person in esse, in whom it can vest and ahide; though the law considers it as always potentially existing (o). [This may he exemplified in the case of a parson of a church, who hath only an estate therein for the term of his life, and the inheritance remains in ahey- ance {p). And not only the fee, hut the freehold also, may be in aheyance ; as, when a parson dies, the freehold of his glebe is in abeyance until a successor is named, and then it vests in the successor {q). The word " heirs " used to be necessary in the grant or donation, in order to make a fee or inheritance. For if the land was given to a man for ever, or to him and his assigns for ever, this vested in him but an estate for (o) As to the doctrine of atey- perpetual abeyance (as in the case ance, see Co. Litt. 341 a, 342 b; of a paison) "without any expeo- Litt. 646, 647; Butler's Peame, tation to come in, esse." (Co. p. 360, 9th ed. ; 1 Prest. Est. 503 ; Litt. 343 a.) Littleton's exposi- Oamoy'sPeeragecase, SBing. N.O. tion, therefore, -which is that fol- 763 ; et vide sup. p. 227, n. ig). lowed in the text, seems to be the Blackstone (vol. ii. p. 107) con- more correct ; see Litt. s. 646. siders abeyance as also importing {p) Litt. s. 646. Lord Coke, ' ' expeetation," and Co. Litt. 342 b, however, holds that a parson has is to the same effect. Yet Lord for some purposes a fee simple Coke himseU afterwards remarks qualified ; Co. Litt. 341 a. that the fee simple may be in (?) Litt. s. 647; Co. Litt. 342 b. 238 BK. II. OF RIGHTS OF PROPERTY* — PT. I. THINGS REAL. [life (>•). This very great nicety about the insertion of the word " heii's " in all donations, in order to vest a fee, was plainly a relic of the feudal strictness, by which it was required that the form of the donation should be punctu- ally pursued ; or that, as Craig expresses it in the words of Baldus, " donationes sint strieti juris, ne quis plus donasse prcesumatur quam in donatione expresserit" (s). And there- fore, as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee's estate in the land extended only to his own per- son, and subsisted no longer than his life; unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs.] But this old rule, after having obtained for centuries, has been at length abolished by the Conveyancing Act, 1881 (44 & 45 Yict. c. 41), s. 51, which has enacted that it shall not be necessary to use the word " heirs " in any deed, but it shall be sufficient to say that the conveyance is " in fee simple " or " in fee tail " as the case may be. Moreover, even the old rule had some exceptions — and particularly it never extended strictly to dispositions by will; m which, as they were introduced at a time when the feudal rigour was fast weariag out, a more liberal construction has always been allowed : and therefore, by a devise to a man for ever, or to one and his assigns for ever, or to one in fee simple, the devisee has always been construed to have an estate of inheritance ; for the inten- tion of the devisor was sufficiently plain from the words of perpetuity annexed, though he had omitted the legal words of inheritance [t). If, however, the devise were simply to a man and " his assigns," without annexing any («•) Litt. B. 1 ; Wright v. Dovley, debts or legacies, was held to take 2 W. Bl. 1185. the fee; though it was otherwise {a) L. 1, t. 9, 8. 17. if the estate devised to him was so [t] Thus, too (even before the charged. (See Doe d. Sams v. New Wills Act), a devisee of an Garliok, 14 Mee. & W. 698; Man- indefinite estate, if he was charged ning v. Taylor, Law Rep., 1 Exch personally with the payment of 236.) CHAP. lU. OF FREEHOLD ESTATES OP INHERITANCE. 239 ■words of perpetuity, the devisee was, at one time, held to take only an estate for life ; for it did not appear that the devisor intended any more. A new rule of construction, however, has been now provided ; for by the New Wills Act (7 Will. rV. & 1 Vict. c. 26), s. 28, it has been enacted, that where any real estate shall (after the passing of that Act) be devised without words of limitation, it shall be construed to pass the whole interest of which the testator had power to dispose, unless a contrary intention should appear by the will in question. Estates in fee simple are divided into three sorts (m) : — 1, fee simple absolute; 2, fee simple qualified; S,fee simple conditional — a division which relates, it is to be observed, to the quality, not the quantity, of the estate ; for it is laid down by Lord Coke that in the latter respect, both fees qualified and fees conditional are equivalent to fees simple absolute {x). («) This division of fees simple is given by Lord Coke as the com- mon one in his time (Co. Litt. 1 b) ; and is followed by Mr. Justice Powell, in Idle v. Cooke (Lord Baym. 1148), and by the Court of King's Bench in Martin v. Straohan (reported 5 T. B. 107, in notis). It is to be observed, however, that the two last classes are both referred by Lord Coke to a more general head of fees simple determinable. Thus, in Edward Seymour's case (10 Bep. 97 b) estates of inheritance are distributed with great clearness and precision, as follows: — First, they are eii^er fee aimple or fee tail. Estates in fee simple are either absolute (i.e., indeterminable) or de- terminable. Those which are de- terminable are either derived out of an estate in fee simple absolute, or derived out of an estate in fee tail. The first of these are created either by way of condition, or by way of limitation; the first sort called fees simple conditional, the second, fees simple limited and qualified. The fee simple derived out of an estate taU, Lord Coke at the same place proceeds to ex- emplify by the case where tenant in taU bargains and sells to W. H. and his heirs ; in such a case W. H . used to take an estate in fee simple, as long as the tenant in tail had heirs of his body, derived out of the estate tail, and which fee simple in W. H. would now be called exclusively a base fee. But at the present day W. H. would clearly take in such a case a mere fee simple estate during the Uf e of the tenant in taU himself, for there would be no bar of the issue of such tenant by the bargain and sale. (See also 'Walsingham' s case, Plowd. 657; Willion v. Berkley,, ibid. 241.) (x) Co. Litt. 18 a. 240 BK. II. OF RIGHTS OF PEOPERTY. — PT. I. THINGS REAL. 1. The fee simple absolute is free from all qualification, and requires no particular remark ; the two others involve considerations of some intricacy. 2. [A qualified fee is such a one as, having a qualifi- cation subjoined thereto, must be determined whenever the qualification annexed to it is at an end(?/). As in the case of a grant to A. and his heirs, tenants of the manor of Dale; here, whenever A. or the heirs of A. cease to be tenants of that manor, the grant is entirely defeated. Thus, when Henry the sixth granted to John Talbot, lord of the manor of Kingston-Lisle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lisle; — in this instance John Talbot had a qualified fee in that dignity^ and the instant he or his heirs quitted the seigniory of this manor, the dignity was at an end(s).J Such an estate is a fee simple, because it is limited to the heirs general, and may by possibility endure for ever ; yet, as that duration depends upon the concurrence of collate!ral circumstances, which qualify the donation, it is therefore not an absolute, but a qualified or (as it has occasionally been called) a base fee {a). 3. A conditional fee seems properly to comprise every fee simple granted upon condition (i), but the term is usually understood to refer to that particular species called a conditional fee at common law. {^) As to a qualified fee simple, and Ms heirs, and which Lord see Lord Cardigan v. Armitage, 2 Coke desoribeff aa a determinable Bam. & Cress. 202. fee derived out of an estate tail ; (z) Co. Litt. 27 a. and in the Act for the Abolition (a) It is proper to observe, with of Fines and Recoveries, 3 & 4 respect to this use of the term hcise Will. 4, u. 74, the meaning of the fee, that it has also a more restricted phrase base fee is by express pro- application, viz., to that species of vision so confined (so far as that qualified fee which is created where statute is concerned) . tenant in tail conveys his estate by (i) Edward Seymour's case, 10 a conveyance barring his issue, but Rep. 97 b. not the remainderman, to another CHAP. Ill, — OF FREEHOLD ESTATES OF INHERITANCE. 241 [A conditional fee at common law was a fee restrained in its form of donation to some particular heirs, exclusive of others: "donatio stricta et coarctata; sicut certis hcere- (Uhiif:, quibusdam a successione exchsis " (c) : as to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of his collateral heirs; or, to the heirs male of his body, in exclusion both of collaterals and of lineal females also {d).] We say restrained in the form of donation ; because, in point of legal effect, such a gift was construed by the judges of former days, as con- ferring not an estate descendible to some particular heirs, but as conferring a fee simple, though a fee simple subject to some condition (e). For they held that a gift to a man and the heirs of his body was a gift upon condition that it should revert to the donor, if the donee had no heirs of his body (/). They therefore called it a fee simple on con- dition that the donee had issue. So that, as soon as he had any issue born, his estate was supposed by the per- formance in some sense of the condition, to become abso- lute {g) ; at least for these three purposes : — 1. To enable the tenant to aliene the land, and thereby to bar the interest not only of his own issue, but also of the donor in the reversion {h). 2. To subject the tenant to forfeit his estate for treason, which tiU issue bom he was not able to do, except for the period of his own life; for otherwise the inheritance of the issue, and reversion of the donor, might have been defeated («). 3. [To empower him to charge the land with rents, commons, and certain other ineum- (c) Plet. 1. 3, 0. 3, 8. 5. BerHey, Plowd. 241. (d) Blaokstone remarks here (vol. (g) It was performed, says Lord ii. p. 110), that there are strong Coke, "to some intent"; Nevil's traces of such particular hmitation case, ubi sup. in our earliest Saxon laws, and (A) Ibid. ; Co. Litt. 19 a; 2 cites LI. JElfred, c. 37. Inst. 333 ; and see Doe v. Clark, 5 («) Nevil's case, 7 Bep. 34 b. B. & Aid. 461. (/) Stat. J)e donis (13 Edw. 1, («) Co. Litt. ubi sup. ; 2 Inst. Stat. West. See. c. I) ; "WiUion v. 334. VOL. I. W 242 15K. II. OF RIGHTS OF PKOFERTT.— PT. I. THINGS REAL. [branoes, so as to bind his issue {k) . And this was thought the more reasonable, because, by the birth of issue, the possibility of the donor's reversion was rendered more distant and precarious : and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect, without much regard to the right of succession intended to be vested in the issue.] However, if the grantee survived his issue, and afterwards died without mating any alienation, the land by force of the condition reverted to the donor, and therefore the performance of the condition by the birth of issue did not alter the course of descent till alienation in fact took place [1). For which reason, in order to subject his land to the ordinary course of descent, the donee of a conditional fee-simple took care to aliene as soon as he had performed the condition by having issue ; and, afterwards, by repurchase of the land to obtain a fee simple absolute therein that would descend to his heirs general, according to the course of the common law. And thus stood the old law with regard to condi- tional fees : a subject of no great practical importance, this kind of gift having been long since construed (as we shall presently see) in a diSerent manner. But, as Lord Coke observes, these things, though they seem antient, are yet necessary to be known ; as well for the declaring how the common law stood in such cases, as for the sake of annuities, and such-hke inheritances, which are not within the statutes of entail, and therefore remain as at the common law {m). II. The subject of conditional fees leads us, by a natural introduction, to our second general division of estates of inheritance {n) — namely, estates in fee-tail, or, as they are [k) Co. Litt. 19 a. Co. Litt. by Harg. 20 a, n. (3), (?) Nevil'a case, 7 Eep. 34 b ; n. (5) ; Moore v. Lord Plymouth, 7 Williou V. Berkley, Plowd. 247. Taimt. 614. (m) Co. Litt. ubisup. As to the («) Vide sup. p. 234. things capable of being entailed, see CHAP. III. — OF FREEHOLD ESTATES OF INHERITANCE. 243 more eonoisely termed, estates tail. An estate tail is that which, a man hath to hold to him and the heirs of his body, or to him and particular heirs of his hody (o) ; being, as to the form of donation, the same kind of estate that we have just been considering under the name of fee- simple conditional ; and indeed in that light it was at first contemplated (p). But by force of a statute to be pre- sently mentioned, and of the judicial construction which that statute received (g'), another character has been long attached to an estate thus limited — ^viz. that of an estate fail; the incidents or consequences of which are very different from those of a fee-simple conditional. The history of the change is as follows : — [It was the inconveniences which attended a limited and fettered inheritance which probably induced the judges to give way to the subtle finesse of construction (for such it undoubtedly was), by which a limitation to a man and the heirs (or some particular heirs) of his body, was con- strued as a conditional estate in fee simple. But, on the other hand, the nobility (who were willing to perpetuate their possessions in their own families), in order to put a stop to this construction of the limitation, procured the statute of "Westminster the second (commonly called the statute De donis conditionalibus) to be made (r) ; which Act paid a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever.] This statute enacted that thenceforth the will of the donor should be observed secundum formam in cartd doni expressam ; and that tene- ments given to a man and the heirs of his body, or to the heirs male of his body, or the Kke, should, notwithstanding any alienation by the donee, go to his issue, if there were (o) As to thia estate, see Co. Litt. (?) 2 Inst. 335. 18 b— 28 b. {r) 13 Edw. 1 (stat. Westm. {p) Willion V. Berkley, Plowd. See.), u. 1 (a.d. 1285). 237. r2 244 BK. II. OF RIGHTS OF PKOPERTY. PT. I.' THINGS REAL. any ; or, if issu^ failed, should revert to tlie donor or his heirs. Upon the construction of this act of parliament, the judges determined that, under such a limitation, the donee had no longer a conditional fee simple ; but they divided the fee simple into two parts (s), vesting in the donee a new kind of particular estate, which they denominated a fee-tail (t) ; and leaving in the donor the ultimate fee simple of the land, expectant on the failure of issue of the donee (u). And hence it is that Littleton teUs us, that tenant iq fee-tail is by virtue of the statute of "Westminster the second («)). The expectant estate of the donor by virtue of this statute, is considered as of a different nature from the right which belonged, at the common law, to the donor of a fee simple conditional : for his reverter was only in possibility, being dependent on the contingency of the donee's estate determining by force of the condition ; but the reversion of the donor of an estate tail is the residue of a fee, and therefore a fixed or vested interest {x). By the express provision of the statute De donis, the alienation of the tenant in tail was not to defeat the suc- cession of the issue, or the reversion of the donor and his heirs. Such alienation was not, however, a void act, — for his leases, though liable to be defeated after his death by those claiming under the entail, were in other respects efEeetual; and if he conveyed his estate to another and his heirs, the alienee took a base fee (y), that is to say, a («) 2 Inst. 335; Willion ii. Berk- -which the iPrenoh tailler and the ley, Plowd. 241; Butler's Peaine, Italian tej?sara areformed.—Spelm, 382 (n.), 9th edit. Gloss, ad verb. Peoduin. (t) The expression/se-tei?, oxfeo- [u) Inst, uhi sup. Aum iaUiatum, was horrowed from (u) S. 13. the feudists ; (see Craig, 1. 1, t. 10, (x) Inst, ubi sup. ; Co. Litt. 22 a. ss. 24, 25 ;) among whom it signi- See the remarks on this subject in fled any mutilated or truncated in- Bao. Abr. tit. Eemaiader and Ee- heritanoe ; being derived from the version, barbarous verb taliare, to out ; from (y) Vide sup. p. 239, n. (u). CHAP. III. — OF i'KEEHOLD ESTATES OE INHERITANCE. 245 fee simple to hold as long as the tenant in tail lived or had heirs of his hody (z). But such fee was determinable at an earlier period, as it might be avoided on the death of the tenant in tail by the entry of his issue (a). Estates-tail are either special or general. Tail-general IS where lands and tenements are given to one and the heirs of his body begotten : and. this is caUed tail-general, because, how often soever such donee in tail be married, his issue, by all and every such marriage, is, in successive order, capable of inheriting the estate tail per formam cloni{h). Tenant in tail-special is where the gift is re- strained to the heirs of the donee's body by a particular person ; as where lands and tenements are given to a man and the Jieirs of his hody, on Mary his now wife to be begotten ; here no issue can inherit but such special issue as is engendered between them two ; not such as the husband may have by another wife : and therefore it is called special tail (c). And here we may observe that the words of inheritance (to him and his heirs) give Mm an estate in fee ; but they being heirs of his body this makes it a fee-tail; and the person being also limited on whom (2) Such alienation, though his marriage with the daughter wrongful, did not work a /or/eiiwre, or kinswoman of the donor, such but, if made by certain modes of donees are tenants in special tail, conveyance, was » disaoniinuance, These estates are now out of use ; which deprived both the issue and but Blaokstone tells us (vol. ii. the reversioner of their right of p. 115) that the word " frankmar- entrj/, and left them only to their riage " ex vi termini, not only cre- right of action. (See Co. Litt. 328 a; ated an inheritance, but likewise 2 Inst. 335.) limited that inheritance, supplying (a) Co. Litt. by Butler, 331 a, not only words of descent, but of n. (1) ; MaoheU v. Clarke, Ld. procreation also. He adds, that Eaym. 778; Salk. 618, S. C. ; Sey- such donees were liable to no ser- mour's case, 10 Eep. 97 b; Wal- vice but fealty ; for a rent reserved singham's case, Plowd. 557; Good- thereon would have been held void, right V. Shilson, Burr. 1703. tiU the fomth degree of consari- (i) Litt. ss. 14, 15. guinity were passed between the [c] In the particular case where respective issues of the donor and an estate in frankmarriage {in libera of the donee. (See Litt. ss. 19, 20.) maritagio) is given to a mam on 246 BK. It. OF RIGHTS OF PEOPEETY. — PT. I. THINGS EEAL. such heirs shall be begotten, (viz. Mary his present wife,) this makes it a fee-tail special. [Estates in " general " and " special " tail are further diversified by the distinction of sexes in such entails ; for both of them may either be in tail male or in tail female. As if lands be given to a man and the heirs male of his body begotten, this is an estate in tail male general ; but if to a man and the heirs female of his body on his present icife be- gotten, this is an estate in tail female special. And in case of an entail male, the heirs female shall never inherit, nor any derived from them ; nor e converso the heirs male, in case of the gift in tail female {d). Thus, if the donee in tail male hath a daughter who dies leaving a son, such grandson in this case cannot inherit the estate tail ; for he cannot deduce his descent wholly by heirs male (e). And as the heir male must convey his descent wholly by males, BO must the heir female wholly by females. And therefore if a man hath two estates-tail, the one in taU male, the other in tail female ; and he hath issue a daughter, which daughter hath issue a son ; this grandson can succeed to neither of the estates; for he cannot derive bis descent either wholly in the male or wholly in the female line (/). As, in a deed, the word heirs used to be necessary to create a fee, so, in further imitation of the strictness of the feudal donation, the word body, or some other word of procreation {g), used to be necessary to make it a fee-tail, and to ascertain to what heirs in particular the fee was limited. If therefore either the words of inheritance or the words of procreation were omitted in the grant, albeit the others were inserted, this would not make an estate- tail. As if the grant were to a man and the issue of his body, to a man and his seed, to a man and his children or offspring ; all these were only estates for life, for there {d) Litt. ss. 21, 22. (/) Ibid. (e) lb. s. 24 ; Co. Litt. 25 b. (?) Beresford's case, 7 Eep. 40. CHAP. III. — OF FREEHOLD ESTATES OF INHERITANCE. 247 [were wanting tlie words of inheritance, " his heirs" (A).] So, on the other hand, a gift to a man and his heirs male or heirs female, was an estate in fee-simple, and not in fee- tail ; for there were no words to ascertain the body out of which they should issue ; which was indispensable to an estate of the latter description («) ; and every estate in fee, which was not in tail, must of necessity have been and be fee simple (fc), as all fees consisted and consist either of one kind or the other {I). Upon such a limitation, too, as last supposed, heirs both male and female should inherit {m) ; for a descent in fee simple is inconsistent (by our defini- tion) with a restriction to heirs of either sex (h) . But this antient necessity of using both the word heirs, and also the word body, for the grant of an estate tail, after having obtained for centuries, has been abolished by the Convey- ancing Act, 1881 (44 & 45 Vict. c. 41), s. 51, which has enacted, that for the creation of an estate tail it shall not be necessary to use the words " heirs of the body," but it shall suffice to say " in fee tail," with or without the word male ox female, as may be required. It is to be observed that in last wills and testaments a greater indulgence has always been allowed as to the manner of expounding a donation than in a conveyance inter livos (o) ; and there- fore an estate tail may be created by a devise to a man and his seed, or to a man and his heirs male ; or by other irregular modes of expression {p), provided the words of the will be sufficient to indicate an intention to confer an (/j) Co. Litt. 20 ; Frogmorton v. {I) Vide sup. p. 234. Wharrey, 2 W. Bla. 728 ; 3 Will. W Litt. ubi sup. 125, 144, S. 0. («) Vide sup. p. 234. («) Litt. s. 31; Co. Litt. 7 a; (o) Vide sup. p. 238. Abraham ». Twigg, Cro. Eliz. 478 ; [p] 2 Bl. Com. p. 115 ; Co. Litt. Earl of Oxford's case, W. Jones, 9 b, 27 a ; see MeUish v. Mellisb, 105. A grant ia suob terms by the 2 B. & Cr. 620 ; Doe d. Jearrad v. Croivn, has been held void.— Ibid. Bannister, 7 M. & W. 298 ; Good Co. Litt. 27 a. v. Good, 7 El. & Bl. 295. (Ic) Co. Litt. 27 b. 248 BK. II. OF BIGHTS OF PROPERTY. — PT. I. THINGS REAL. inheritance, but to restrain it to the descendants of the devisee. We have seen that lands cannot (since the statute Quia emptores) be conveyed in fee simple, to be holden of the grantor ; but that the holding must be of him to whose seigniory the fee belongs (g). It is otherwise, however, with respect to a gift m tail. For if a tenant in fee simple grants an estate tail out of it, (the reversion remaining in the donor,) the donee in tail shall hold of the donor, by fealty and such other services as may be reserved ; or if none be reserved, then by fealty and such other services as the donor himself renders to the next lord paramount (r). But the tenure thus created between the donor and the donee in tail is described as imperfect, whereas that which subsists between the tenant in fee and the chief lord is said to be perfect in its kind (s) . [Thus much for the nature of estates tail: the establish- ment of which family law, as it is properly styled by Pigott {t), occasioned infinite difficulties and disputes («). Children grew disobedient when they knew they could not be set aside : farmers were ousted of their leases made by tenants in tail; for if such leases had been held valid, then under colour of long leases the issue might have been virtually disinherited: creditors were defrauded of their debts ; for if tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth ; innumer- able latent entails were produced to deprive purchasers of the lands they had fairly bought ; of suits in consequence of which our antient books are full ; and treasons were encouraged ; as estates tail were not originally liable to (?) Vide sup. p. 235. 2 Rep. 92 b. \r) Litt. B. 19 ; Co. Litt. 23 a, (s) Co. Cop. 8. 31. 93 a, 143 a, 68 b, n. (5), by Harg. ; \i) Com. Reoov. 5. 2 Inst. 501, 505 ; Williou v. Berk- («) Chudleigh's ease, 1 Rep. ley, Plowd. 237; Bingham's case, 131 b. CHAP. III. — OF FREEHOLD ESTATES OF INHERITANCE. 249 [forfeittire longer than for the tenant's life. So that they were justly branded as the source of new contentions and mischiefs unknown to the conunon law, and almost univer- sally considered as the common grievance of the realm (2;). But as the nobility were always fond of the statute Be donis, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal of it by the legislature ; and therefore, by the connivance of an active and politic prince, a method was devised to evade it. Nearly two hundred years intervened between the making of the statute De donis and the application of common recoveries to this intent, in the twelfth year of Edward the fourth {y) ; but these were then openly de- clared by the judges to be a sufficient bar of an estate tail {%). For though the courts had, so long before as the reign of Edward the third, very frequently hinted their opinion that a bar might be effected upon these principles (a), yet it never was carried into execution, until Edward the fourth — observing (in the disputes be- tween the houses of York and Lancaster) how little eifect attainders had upon traitors protected by the sanctuary of entails— contrived (&), that Taltarum's case should be brought before the court (c) ; wherein, m consequence of the principles there laid down, it was ia effect determined, that a common recovery suffered by tenant in tail should convert his estate into a fee simple absolute ; and bar all persons whatever claiming the estate tail, or any estate ulterior thereto {d). What common recoveries were, both («) Co. Litt. 1913; Hunt ». Gate- brought, but the expression of ley, Moor, 156; MaryPortington's Kgott is, that he "brought it on case, 10 Kep. 38. the stage." (y) A.r. 1472. (c) Year Book, 12 Edw. 4, 14, («) Ohudleigh's case, IRep. 131; 19; Ktzh. Abr. tit. Faux Reoov. Mildmay's case, 6 Eep. 40. 20 ; Bro. Abr. ibid. 30; tit. Eeoov. (a) Mary Portington's case, 10 in Value, 19 ; tit. Taile, 36. See Eep. 37, 38. Hist. Eng. Law, by Eeeves, vol. iii. (4) Pigott, 8. Blaokstone (vol. ii. p. 328. p. 117) says he suffered it to be [d) Martin v. Straohan, 5 T. E. 250 BK. II. OF RIGHTS OF PEOPEBTY. — PT. I. THINGS HEAL. [in their nature and consequences, and why they were allowed to be a bar to the estate tail, must be reserved to a subsequent inquiry. At present it may suffice to say, that they were fictitious proceedings, introduced by a kind of pia fraus, to elude the statute Be donis ; an Act which was found so intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal; and that these recoveries, however clandestinely introduced, afterwards became by long use and acquiescence a most common assurance of lands ; and were looked upon as the legal mode of conveyance, by which a tenant in tail might dispose of his lands and tenements, so that no court would suffer them to be shaken or reflected on (c). This expedient having greatly abridged estates tail with regard to their duration, others were soon invented to strip them of their other privileges. The first of these to be attacked was their freedom from forfeiture for treason. For, notwithstanding the large advances made by re- coveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them re-settled in a similar manner to suit the convenience of families, had address enough to procure a statute to be passed (26 Henry YIII. o. 13), whereby all estates "of inheritance," under which general words estates-tail in possession were covertly included, were declared to be forfeited to the king upon any conviction of high treason. The next attack which they suffered in order of time was by the statute 32 Henry VIII. c. 28; whereby certain leases made by tenants in tail not tending to the prejudice of the issue, were allowed to bind the issue in 107, n. ; Willes, -449 ; Taylor v. [e) As to recoveries, see 11 Hen. Horde, 1 Burr. 115 ; Smith v. Clif- 7, o. 20 ; 7 Hen. 8, o. 4 ; 34 & 36 ford, 1 T. K. 738 ; and see First Hen. 8, c. 20 ; 14 EUz. o. 8 ; 14 Real Property Eeport, p. 22. Geo. 2, o. 20 ; et post, bk. h. pt. i. CHAP. 111. — OF FREEHOLD ESTATES OF INHEKITANCE. 251 [tail, thougli not the remainderman or reversioner (/). But ttey received a more violent blow, in the same session of parliament, by the construction put upon the statute "of fines" (4 Henry YII. c. 24), by the statute 32 Henry VIII. c. 36 ; which declared that mode of con- veyance called &fine (which was another species of fictitious proceeding), when duly levied by tenant in tail, to be a complete bar to him and his heirs claiming under such entail. This was evidently agreeable to the intention of Henry the seventh, whose policy it was (before common recoveries had obtained their fuU strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles : but as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched in his Act under covert and obscure expressions : and the judges, though willing to construe that statute as favourably as possible for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute De donis had expressly declared that they should not be a bar to estates- tail. But the statute of Henry the eighth, when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention.] By ah enactment of the succeeding year (33 Hen. YIII. c. 39, s. 75), estates-tail were rendered liable to be charged for payment of debts due to the king by record or specialty contract ; and afterwards (by 21 Jac. I. c. 19, s. 12) they were subjected to be sold for the benefit of the creditors, if the tenant became bankrupt {g). But the most extensive and effectual relaxation is that introduced by the statute 3 & 4 Will. IV. c. 74 (usually (/) Go. Litt. 46 b. rendered, by 43 Eliz. o. 4, good {0) Blaokstone remarks (vol. ii. without either fine or reooveiy; p. 119) that an appointment by and he cites Attorney- General v. tenant in tail to a eharitahle use was Eye, 2 Vem. 433 ; Chan. Preo. 16. 252 BK. II. OF EIGHTS OF PROPEETY. PT. I. THINGS REAL. called the Act for the Abolition of Fines and Eecoveries), passed in the year 1833 ; for this enables a tenant in tail, by an ordinary deed of conveyance, provided it be duly enrolled in chancery within six months after execution, and without any resort to the indirect and operose expedient of a fine or recovery (which the statute wholly abolishes), to aliene the lands entailed in fee-simple absolute, or for any less estate ; and thereby either in Mo or pro tanto to bar himself and his issue, as well as all persons having any ulterior interest therein (A). Tet this provision is subject to an important qualification, designed for the protection of family settlements. For in these, it is usual to settle a life estate (which is a freehold interest) on the parent, prior to an estate tail limited to his children ; and the nature of a recovery, by which alone interests ulterior to such estate tail could formerly be barred, was to make the concurrence of the immediate tenant of the freehold indispensable to the validity of that proceeding. In order, therefore, to continue to the parent (or other prior taker of the life estate) a control of the same general descrip- tion, the Act provides that where, under the same settle- ment which created such estate tail, a prior estate of freehold, or for years determinable with life, shall have been conferred, — it shall not be competent for the tenant in tail to bar any estate taking effect upon the determina- tion of the estate tail, without consent of the person to whom such prior estate was given : who receives for that reason the appellation of protector of the settlement (») . But, the object not being to restrain the power of the tenant in tail over the estate tail itself (which he could have barred, before the statute, hy fine, without any other person's con- currence), his alienation, in the manner prescribed by the Act, is allowed to be effectual even without the consent of (A) 3 & 4 Wm. 4, 0. 74, s. 15. {») 3 & 4 WiU. 4, o. 74, a. 22. Some few species of estates tail The estates, however, of a dowress, are, however, excepted from this of a hare trustee, and of some Act. (Vide post, u. sis.., where others, do not qualify for the pro- this subject is further explained.) tectorship (ss. 26, 27). CHAP. III. — OF FREEHOLD ESTATES OF INHERITANCE. 253 the protector, so far as regards the barring of such tenant in tail and his own issue {k). Even subsequently to the passing of this Act, however, one of the antient and justly obnoxious immunities of the owner of an entailed estate still remained without disturbance, viz. that such estate (save only in the case of his becoming bankrupt) was not Uable to his general debts. But this also was removed by the statute 1 & 2 Vict. c. 110, in the year 1838 — by the effect of which a man's entailed estates are now equally liable to satisfy his judgment debts, as any other estates of which he may be possessed or in which he may have an interest (/) ; but for this purpose execution must have issued during the judgment debtor's life, — a particular respect in which the estate tail stUl continues (as regards general debts) differently situated to an estate in fee simple. And there is this further difference between them, namely, that a fee tail is not liable at all, whereas a fee simple is expressly made liable, under the statute 3 & 4 Will. IV. c 104, as legal assets for the payment of debts in an administration of the deceased tenant's estate in the Chancery Division or Court of Chancery. Finally, with reference to leases of entailed estates, we may remark that the effect of the statute 3 & 4 Will. IV. c. 74, above referred to, is to enable a tenant in tail in possession to make effectual leases without the necessity of enrolment in Chancery, for terms not exceeding twenty- one years, if made at a rack-rent or not less than five-sixth parts of a rack-rent (m). And that still more recently, by the Settled Estates Act, 1877 (40 & 41 Vict. c. 18), it has been enacted (m), that any person entitled to the possession, (A) 3 & 4 Will. 4, c. 74, b. 34. subject of settled estates, namely, (I) 1&2 Vict. c. 110, s. 13. the 19 & 20 Vict. c. 120 ; 21 & 22 (ot) 3 & 4 Will. 4, c. 74, ss. 15, Vict. c. 77 ; 27 & 28 Vict. o. 45 ; 40 41. 37 & 38 Vict. c. 33; and 39 & 40 {«) This Act repeals and consoU- Vict. o. 30. dates a group of enactments on the 254 BK. II. OF EIGHTS OF PKOPEKTY. — PT. I. THINGS REAL. or to the receipt of rents and profits under a settlement made after 1st November, 1856 (p), either for life, or for a term of years determinable with any Hfe or lives, or for any greater estate (which brings an estate tail within the provision), either in his own right, or in right of his wife, may demise the same from time to time (unless the settle- ment shall contain an express declaration that it shall not be lawful to make such demise), for any term not exceed- ing twenty-one years, in such form and with such restric- tions as in the Act prescribed [p). But all these last- mentioned provisions as regards leases by tenants in tail maybe regarded as having now lost much of their practical efficiency and value, since the Settled Land Act, 1882 (45 & 46 Yict. 0. 38), which enables tenants in tail not only to lease, but also to sell the entailed lands, for any term of years or estate, provided the requisites prescribed by the last-mentioned Act are complied with ; and in these cases the deed need not even be enrolled in order to bar the tail. The Settled Land Act, 1882, is, however, of such wide application in the law of real property as to require (and it will hereafter receive) more particular treatment in this volume {q). (o) As to the term " settlement " owners of settled estates to make asusedinthe Act, see40 & 41 Vict. permanent improvements on the 0. 18, s. 2. same (as by the erection of a smt- (j>) Sect. 46. In addition to this able residence for themselves), and general provision, the Act contains to charge a portion of the expense others enabling the High Court of on those who come after them. See Justice to authorize almost any 27 & 28 Vict. o. 114 (Improvement lease, sale, or act in respect of a of Land Act, 1864) ; 33 & 34 Vict, settled estate which may seem ex- c. 56 (Limited Owners' Residences pedient for the interests of aU Act, 1870), as amended by 34 & 35 parties- entitled under the settle- Vict. c. 84 ; 40 & 41 Vict. u. 31 ment, and being such as the settlor (Limited Owners' Eeservoirs and himself might have authorized. Water Supply Further Facilities (See 40 & 41 Viot. u. 18, ss. 4, 39.) Act, 1877) ; and see also the Settled It may be convenient here to Land Act, 1882 (45 & 46 Viot. notice that by certain modem sta- c. 38). tutes, facilities are also given to (y) See bk. n. pt. i. c. xxrv. ( 255 ) CHAPTEE IV. OF FREEHOLD ESTATES NOT OF INHERITANCE. We are next to consider estates of freehold whioh are not of inheritance, hut /or life only {a). And of these estates for life, some are conventional, or expressly created hy the act of the parties, and others are merely legal, or created hy construction and operation of law (J). I. [Those estates for life are termed conventional which are expressly created by some deed or will ; and they arise when an estate is limited to a man to hold for the term of his own life, or for that of any other person, or for more lives than one ; in any of which cases he is styled tenant for life : only, when he holds the estate by the life of another, he is usually called tenant pur autre vie (c) . These estates for life are, like iaheritances, of a feudal nature : and they were for some time the highest estate that any man could have in a feud ; for feuds were not, at first, hereditary. They were, accordingly, origiiiaUy conferred with the same feudal solemnities, the same investiture or livery of seisin, as fees themselves were ;] and as in an estate of inheritance in possession, the tenant is said to be "seised in his demesne as of fee," or of " fee-tail " {d), — so ia an (a) Vide Bup. p. 231. It may be wood, 1 Hurl. & 0. 745; Loathes woith remarking, that the legal v. Loathes, 5 Ch. D. 221.) tenant for life (and not the re- (i) Wright's Tenures, 190. mainderman) is, as the general (c) Litt. s. 56. rule, entitled to the custody of the (d) Vide sup. p. 234. title-deeds. (See Allwood v. Hey- 256 BK. II, OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. estate for life in possession, he is said to he " seised in his demesne as of freehold." [Estates for life may be created, not only by the express words before mentioned, but also by a general grant, ■without defining or limiting any specific estate. As if one by deed grants to A. B. the manor of Dale, this makes him tenant for life (e). For though, as there are no words of inheritance, or heirs, mentioned in the grant, it cannot be construed to be a fee, it shall however be construed to be as large an estate as the words of the donation will bear, and therefore an estate for life. Also such a grant at large, or a grant for term of life generally, shall be con- strued to be an estate for the life of the grantee, in case the grantor hath authority to make such a grant (/) ; for an estate for a man's own life is more beneficial and of a higher nature than for any other life : and the rule of law is, that aU grants are to be taken most strongly against the grantor, unless in the ease of grants by the crown (gr). Such estates for life will, generally speaking, endure as long as the life for which they are granted (A) : but there are some estates for life, which may determine upon future contingencies, before the life for which they are granted expires. As if an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice ; in these and similar cases, whenever the con- tingency happens, — when the widow marries, or when the grantee obtains a benefice, — ^the respective estates are absolutely determined and gone («). Yet, while they subsist they are reckoned estates for life {k) ; because the time for which they will endure being uncertain, they may by possibility last for life, if the respective (c) Co. Litt. 42 a, 183 a. arises, vmder stat. 18 & 19 Car. 2, (/) Ibid. u. 11 (in Euffhead, c. 6), and 6 {g) Co. Litt. 36 a, 183 a. Anne, o. 72 (in Euffhead, c. 18). (A) If tenant for life has not been (t) Co. Litt. 42 a; Boraston's heard of for the space of seven case, 3 Eep. 19 a. years, a presumption of his death {k) Co. Litt. 42 a. CH. IV. OF FREEHOLD ESTATES NOT OF INHERITANCE. 257 [contingencies upon which they are to determine do not sooner happen.] And, moreover, in case an estate were granted to a man for his life generally, it might also .have determined by his civil death ; that is to say, as already explained, by his becoming outlawed or attainted (/). On the gift of an estate tail we may remember that the donee holds of the donor, by fealty and such other services as may be reserved between them ; or if none be reserved, then by fealty, and the same services as are due from the donor to the next superior lord (m). In like manner, upon a lease for life, a tenure (of the imperfect kind) is thereby created between the lessor and lessee, and the latter will hold of the former, by the nominal obligation of fealty, and such other services as may be reserved ; and if no others be reserved, the lessee will hold by fealty only («). The incidents of an estate for life (whether conventional or legal) are principally the following: — 1. Every tenant for life, unless restrained by covenant or agreement, may of common right take, upon the land demised to him, reasonable estovers or 6ofes,that is, an allowance of wood for fuel, repairs, and the like : the term estovers being derived from the French word estoffer, to furnish ; and hole, which is of Saxon derivation, being used by us as synonymous with estovers. And. when this allowance is for fuel, it is called house-bote, and sometimes fire-bote ; when for making and repairing the instruments of husbandry, plough-bote and cart-bote ; when for repairing hedges and fences, it is termed hay-bote or hedge-bote (o). 2. While a tenant for life has this privilege of botes, he is, on the other hand, answerable by law for waste, that is, for any spoil or destruction which he does, or allows to be done, to the premises during his tenancy, to the injury of (Z) Vide sup. p. 145. 68 b, n. (5), by Harg. ; Litt. s. (»>) Vide sup. p. 248. 132. \n) Co. Litt. 143 a, 23 a, 93 a, (o) See 2 Bl. Com. 35. VOL, I. S 258 BK. II. OF RIGHTS OF PEOPEB.TY. — PT. I. THINGS KEA.L, the person entitled to the inheritance (p). And there are two kinds of waste ; that which is voluntary and that which is permissive ; the first bj the tenant's voluntary act, as where he pulls down a wall, or cuts down timher {q) ; the other by his default, as by sufiering a wall to faU down for want of necessary repair (r). Estates for life are sometimes limited, however, with a clause expressing that the tenant shall hold the land vnthout impeachment of waste, the effect of which is that he is not liable for legal waste of either kind, whether voluntary or permissive ; but even in such a case the court of equity interfered to restrain the gratuitous felling of ornamental timber, and any other like unwarrantable and gratuitous injury to the inheritance, although such acts were not, under the circumstances, legal waste at all, but only waste in the view of a court of equity (s). And now, by the Judicature Act, 1873, it has been provided that an estate for life, without impeachment of waste, shall not confer, or be deemed to have conferred, on the tenant for life any legal right to commit waste of the description known as "equitable" waste, unless an intention to confer such right shall expressly appear by the instrument creating the estate {t). 3. Tenant for life cannot, apart from statute, make leases to bind those in remainder. But a person entitled [p) Co. Litt. 63 ; 2 Bl. Com. Ch. Div. 408 ; Coles v. Courtier, 34 281 ; 3 Bl. Com. 223. See Sea- Ch. Div. 136 ; Davies v. Daviea, gram v. Knight, Law Eep., 2 Ch. 38 Ch. Div. 499 ; Avis v. Newman, App. 628. 41 Ch. D. 432. (j) The question of what timber («) Herlakeuden's case, 4 Eep. is, depends, first, on general law ; 63 a; Dowman's case, 9 Eep. 10 h; and, secondly, on special custom. Pyne v. Dor, 1 T. E. 55. See Honywood v. Honywood, Law («) 36 & 37 Vict. o. 66, s. 26, Eep., 18 Eq. Ca. 346 ; Harrison v. sub-s. (3). As to equitable waste, Harrison, 28 Ch. Div. 220. see Ashtou v. Ashton, 1 Ves. sen. (>•) As to permissive waste, see 264 ; Burgess ». Lamb, 16 "Ves. TeUowly v. Grower, 11 Exch. 274 ; 174 ; Lnshington v. Boldero, 6 Powys V. Blagrove, 4 De Gexj M. Madd. 149 ; Morris v. Morris, 16 & G. 448 ; Ereke v. Calmady, 32 Sim. 505 ; 1 Fonb. Eq. 33, n. CH. IV. OF FREEHOLD ESTATES NOT OF INHERITANCE. 259 to tlie poBsession or to the receipt of the rents and profits of land Tinder a settlement made after 1st Novemher, 1856, as tenant for Hfe, or for term of years determinable with his life, — either in his own right, or in right of his wife, — is now by statute enabled to make an effectual lease of the lands, for the period of twenty-one years (m) ; and also to effect permanent improvements on the land (as by draining it, or by erecting thereon a suitable residence for himself), and to charge a portion of the expense on the remainderman or reversioner (v) ; all which powers have been confirmed and enlarged by the Settled Land Act, 1882, hereinafter more particularly discussed (»). 4. [Tenant for life, or his representatives, shall not be prejudiced by the determination of his estate, where such determination is sudden and unforeseen. There- fore, if a tenant for his own life sows the lands, and dies before harvest, his representatives shall have the emble- ments, or profits of the crop : for the estate was detenmned by the act of God ; and actus Dei nemini facit injuriam {y). The emblements, therefore, are given to compensate for the labour and expense of tilling, manuring, and sowing the lands, — and also for the encouragement of husbandry, which, being a public benefit, ought to have the utmost security and privilege that the law can give (z). So, if («) There are, however, certain Weld, 5 Barn. & Aid. 105; Davis ». restrictions, and in particular the Eyton, 7 Bing. 154. As to emble- principal mansion house and de- ments as between the executor and mesnes are excepted. (See 40 & 41 devisee, see Shep. Touch, by Pres- Viot. c. 18, s. 46.) Under the ton, p. 472 ; Williams on Execu- Settled Land Act, 1882, even the tors, p. 634 ; Cooper v. Woolfit, 2 mansion house and demesnes may H. & N. 122. now be leased, subject to observing («) By the feudal law, a tenant the provisions of the Act. for life dying between the 1st Sep- («) See the statutes cited sup. tember and the 1st March had no p. 263, n. («) ; and see also the emblements, but the lord took the Settled Land Act, 1882. whole; secus, if the tenant died (x) See bk. n. pt. i. o. xxiv. between the 1st March and the 1st (j/) As to emblements generally, September. See Feud. 1. 2, t. 28. see Co. Litt. 65 a, 66 b ; Graves v. 82 260 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. [a man be tenant for the life of another, and cestui que vie, that is to say, he during whose life the land is held, dies after the corn sown ; the tenant pur autre vie shall have the emblements.] The same is also the rule, if a life estate be determined by the act of law; e.g., where a lease was made to husband and wife during coverture, whereby they acquired a determiaable estate for life, and the husband sowed the land ; after which they were divorced ; it was held that the husband should have the emblements ; for the sentence of divorce was the act of law (a). [But l£ an estate for life be determined by the tenant's own act (as by forfeiture for waste committed, or if tenant during widowhood should think proper to marry), in these, and similar cases, the tenants having thus determined the estate by their own acts, shall not be entitled to take the emblements (6). The doctrine of emblements extends not only to com sown, but to roots planted, or other annual, artificial profit ; though not to fruit trees, grass, and the Kke, which are not planted annually at the expense and labour of the tenant, but are either a permanent or natural profit of the earth (c). For when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of its being useful to himself in. future, and to future successions of tenants. The right to emblements was extended to the parochial clergy by the statute 28 Hen. VIII. c. 11, s. 6; for a parson may be considered as tenant for his own life.] 5. [A fifth incident to estates for life relates to their under-tenants or under-lessees. For if tenant for life under-let, the lessee, by the common law, has the same, nay greater, indulgences than his lessor. The same, — for the law of estovers and emblements, with regard to the tenant for Hfe, is also law with regard to his under- {») Gland's case, 5 Eep. 116. (c) Co. Litt. 56 a, 65 b ; 1 Roll. (b) Enevett v.. Pool, Cro. Eliz. Abr. 728. 461 ; 1 Roll. Abr. 727. CH. IV. OF FREEHOLD ESTATES NOT OF INHERITANCE. 261 [tenant {d) : and greater, — for in those cases wliere tenant for life shall not have the emhlements, hecause the estate determines by his own act, the exception shall not reach his under-lessee. Thus, too, in the case of a woman who holds durante mduitate : her taking husband is her own act, and therefore deprives her of the emblements : but if she has leased to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the under- tenant of his emblements (e) .] And now as regards tenants at a rack-rent — that is, at a rent equal to the full value of their lands — who hold under landlords entitled for life or other uncertain interest, a more ample protection than was afforded by the doctrine of emblements at the common law has been provided by the statute 14 & 15 Vict. c. 25, s. 1 (/), by which it has been enacted that where in such cases the lease or other tenancy shall determine by the death or by cesser otherwise of the estate of the landlord, the tenant shall, instead of a claim to emblements, con- tinue to hold until the expiration of the current year of his tenancy; at which time he shall (without being re- quired or entitled to give or to receive any notice) quit upon the terms of his holding, in the same manner as if his tenancy were determined by effluxion of time or other lawful means during the continuance of his landlord's estate : and the succeeding owner shall be entitled to recover (as the landlord could have done if his interest had continued) a fair proportion of the rent for the period elapsed from the termination of the landlord's interest to the time of the tenant's quitting : and the succeeding owner and tenant respectively shall be entitled (as against each other) to all the benefits, and be subject to all the terms, to which the landlord and tenant respec- tively would have been entitled or subject, in case the tenancy had determined in manner aforesaid at the espira- {d) Co. Litt. 85 b. (/) See Haines *. Welch, Law (e) Ibid. Eep., 4 0. P. 91. 262 BE. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. tion of such ourrent year. This provision was made in favour of the lessees of life tenants ; but a previous statute had remedied an injustice, to which at common law the representatives of life tenants (being landlords) were on their side exposed. Eor the lessees of such tenants might, if they had pleased, on the deaths of their lessors, have quitted the premises, and paid no rent to anybody for the occupation of the "land since the last quarter-day, or other day assigned for payment of rent, — a most unreasonable advantage {g), and which was put an end to [by 11 Greo. II. 0. 19, which enacted that in such a case the executors or administrators of tenant for life, on whose death any demise determined, might recover of the lessee a rateable proportion of the rent, from the last day of payment to the death of the lessor (^).J And by 4 & 5 WiU. IV. c. 22, where any demise in writing shall determine by the death either of the person making the same (though he may not have been strictly tenant for life), or of the life or lives on which he held (*) ; — a proportion of the rent shall, in like manner, be recoverable from the lessee. And now, by the Apportionment Act, 1870 (33 & 34 Yict. o. 35), it has been provided generally, and not merely in refer- ence to life tenants and their under-lessees, that all rents, annuities, dividends, and other periodical payments in the nature of income, (whether reserved or made payable under an instrument in writing or othernnse^ shall, like interest on money lent, be considered as accruing from day to day ; and shall be apportionable (in the absence of an express stipulation to the contrary) in respect of time accordingly; and shall be recoverable by the representatives of the person who would have been entitled to the entire portion, had no such apportionment taken place {j). is) Clun's case, 10 Eep. 127. G-. & Sm. 470 ; Llewellyn v. Roue, (A) See Jenner v. Morgan, 1 P. Law Eep., 2 Eq. Ca. 27. Wms. 392 ; Mills t). Tminper, Law ■ (y) See Clive v. Olive, Law Eep., 4 Oh. App. 320. Eep., 7 Ch. App.. 433 ; Jones o. (i) See Look v. De Burgh, 4 De Ogle, ib., 8 Ch. App. 192 ; White- OH. IV.— OF FREEHOLD ESTATES NOT OF INHERITANCE. 263 II. We have next to consider estates for life [of the legal kind, as contradistinguished from the conventional. Now, (1) the first of these legal life estates is that of tenant in tail after the possibility of issue extinct (k). This happens ■where one is tenant in special tail, and the person from whose body the issue was to spring dies without issue ; or, having left issue, that issue hecomes extinct : in either of which cases the tenant in special tail hecomes, for the residue of his life, tenant in tail after possibility of issue extinct (/) ; and the law makes use of this long periphrasis in order to give an adequate idea of his estate ; for he has no longer an estate of inheritance, or fee, seeing that he can have no heirs capable of taking per formam doni («) ; nor yet is he tenant in tail without issue, for that wotdd not have excluded the possibility of future issue ; and lastly, he is not tenant in tail without possibility of issue, but he is tenant in tail after possibility of issue extinct, which phrase not only takes in the possibility of issue iu tail which he once had, but also states that this possibility is now ex- tinguished for ever. This estate must be created by the act of God; no limitation, conveyance, or other human act can make it ; e.g., if lands be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced with- out issue, they shall neither of them have this estate, but be barely tenants for life, notwithstanding the inheritance once vested in them («).j This estate is, moreover, of an amphibious nature, partaking partly of an estate taU, and partly of an estate for life. For besides the name of head v. Whitehead, ib., 16 Eq. Ca. 15 Ves. 419 ; Piatt v. Powles, 2 528 ; Capron v. Capron, ib., 17 Eq. Man. & Sel. 65. Ca. 288. (0 Litt. s. 32. (Je) As to the estate of tenant in (m) Bowles v. Berrie, 1 Eol. tail after possibility of issue extinct, Eep. 184; Lewis Bowles's case, 11 see Co. Litt. 27 b— 28 b ; Lewis Bep. 80. Bowles's case, if Eep. 79 b ; WU- (») Co. Litt. 28 a. liams V. Williams, 12 East, 209 ; 264 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. tenant in tail, the tenant is so far in the condition of a tenant in tail properly so called, as to he dispunishable for waste (o) ; and he formerly possessed some other of the privileges of a tenant in tail, connected with tranches of the law which have now become extinct {p). But, on the other hand, his estate has always been considered for prac- tical purposes as equivalent to an estate for life only {q) ; and therefore the law permits a tenant in tail of this de- scription, and an ordinary tenant for life, to make mutual alienation of their estates, by that particular method of conveyance called an exchange; which can take place, as we shall see hereafter, only in the case of estates that are equal in their nature (r). (2.) Another estate for life of the legal kind, as contra- distinguished from the conventional, is the estate hy the curtesy of England ; that is to say, the estate which a man has, on the death of his wife, in the lands and tenements of which during the marriage she was seised in fee simple or fee tail; provided always he had issue by her bom alive during the marriage, and capable of inheriting her estate (s). If the lands, however, be in gavelkind, the rule is so far different that he shall hold no more than a moiety, and that only while he lives unmarried ; and, on the other hand, his title in this case attaches whether he has issue bom or not (^). [This estate is said, in the Mirrour, to have been intro- (o) Co.Litt. 27 b ; seeWhitaeldi;. (45 & 46 Viot. u. 38), b. 38, oontains Bewitt, 2 P. Wms. 240 ; Williams a similar provision. V. Williams, 12 East, 209. {>•) As to an exchange, vide post, {p) Co. Litt. ubi snp. ; Lewis bk. n. pt. i. o. xvn. Bowles's case, 1 1 Eep. 80 a. («) As to estate by the curtesy, ((?) By the Settled Estates Act, see Co. Litt. 29 a— 30 b ; Men- 1877 (40 & 41 Viot. c. 18), s. 2, it is viU's estate, 13 Eep. 23 ; 2 Saimd. expressly provided, that tenant in by Williams, 45, n. (5), 46, n. (q), tail after possibility of issue ex- 382, a, b ; Buckworth v. TMrkell, tinot, shall be deemed a tentmt for 3 Bos". & Pul. 652, n. life for the purposes of that Act ; (i) Kobins. Gavelk. bk. ii. o. 1 ; and the Settled Land Act, 1882 and see Co. Litt. 30 a. CH. rv. — OF FREEHOLD ESTATES NOT OF INHERITANCE, 265 [duoed by King Henry the first («) ; and, notwithstanding its appellation, it is not peculiar to this realm : for it ap- pears to have obtained also in Normandy; and to have been likewise used among the antient G-ermans («) ; and some of the doctrines concerning it are of a feudal character {y). For if a woman seised of lands hath issue by her husband, and dies, the husband is the natural guardian of the child, and as such is in reason entitled to the profits of the lands, in order to maintain the child ; for which reason the heir apparent of a tenant by the curtesy could not be in ward to the lord of the fee during the life of such tenant (s). As soon therefore as any child was bom, and the father began to have a permanent interest in the lands, he became one of the pares curire, did homage to the lord, and was called tenant by the curtesy initiate ; and this estate being once vested in him by the birth of the child, was not suffered to determine by the subsequent death of the infant ; and as tenant by the curtesy, he was considered to bold of the next lord of the fee («).] There are four requisites necessary to make a tenancy by the curtesy ; marriage, seisin of the wife, issue, and («) Cap. 1, s. 3. "this is used ia no other realm (a:) 2 Bl. Com. p. 126, citing "but in England only." (Litt. Grand Coustum. o. 119, and Lin- o. 35.) And the manner in which denbrog. LL. Alman. t. 92. It is the tenant is described in the old said by Blackstone (citing Craig, pleadings, " Tenatmt per lei d'Eng- 1. 2, t. 19, s. 4), that the estate by ^^^^"(Year-Book.Trin. lEdw. 2J, the curtesy obtained also in Scot- seems to confirm that etymology, land, where it was called Ciiria- See also Co. Litt. by Harg. 33 a, litas ; and hence he infers that n. (5), and the Patent Koll of probably our word cmrtesy signified Hen. 3, there cited, which speaks an attendance by the husband on of this estate as the comuetttdo et the lord's court (or curia), in the lex Angliee. capacity of vassal or tenant in (y) See Wright's Ten. 194. respect of the wife's land. Tenant (z) E. N. B. 143. by curtesy is said, however, by (o) 2 Inst. 301 ; Paine's case, 8 Littleton, to be so called, "because Bep. 36 (a). 266 BK. II, OP RIGHTS OF PROPEKTY. — PT. I. THINGS REAL. death of the wife (b) : — 1. The marriage must he a legal one, and suhsisting at the death; so that if void ipso facto, or ayoided by a divorce, no estate hj the curtesy can in either case be claimed (c). 2. The seisin of the wife must be an actual seisin, that is, possession of the lands : not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed (d) ; nor may it be an estate in reversion on a freehold (e). On the other hand, her estate may be either legal or equitable (/). 3. The issue must be born alive. [Some have had a notion that it must be heard to cry, but that is a mistake. Crying, indeed, is the strongest evidence of its being born alive : but it is not the only evidence (g). The issue also must be born during the life of the mother ; for if the mother dies in labour, and the Csesarean operation is performed, the husband in this case shall not be tenant by the curtesy ; because, at the instant of the mother's death, he was clearly not entitled, as having had no issue born, but the land descended to the child while yet in the mother's womb ; and the estate being once so vested, shall not afterwards be divested (A). The issue must also be such as is capable of inheriting the mother's estate (i) . Therefore, if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the curtesy; because such issue female can never inherit the estate in tail male {h). The time when the issue was bom is imma- terial, provided it were during the coverture ; for whether it were born before or after the wife's seisin of the lands, (i) Co. Litt. 30 a. The requisite (/) Watts v. Ball, 1 P. "Wms. of "issue" does not (sis lias been 108; Oasbome v. Soarfe, 1 Atk. already pointed out) apply to lands 603; Moore <;. Webster, Law Kep., bdd in gmeVcmd. 3 Eq. Ca. 267 ; Appletoa v. Row- (e) See Eennington i». Cole, Noy, ley, ib., 8 Eq. Oa, 139. 29. (y) Dyer, 25 ; Paine' s case, 8 (rf) Co. Litt. 31 a, 29 a. Eep. 34. (.«) 2 Bl. Com. 127. (h) Co. Litt. 29 b. («) Litt. s. 62. . CH. IV. OF-FBEEHOLD ESTATES NOT OP INHERITANCE. 267 [and whether it be living or dead at the time of the seisin, or at the time of the wife's decease, the husband shall be tenant by the curtesy (/). The husband by the birth of the child becomes, as was before observed, tenant by the curtesy initiate, and may do many acts to charge the lands (k) ; but his estate is not consummate till, 4. The death of the wife, which is the last requisite to make a complete tenant by the curtesy (/).] To complete our view of this species of interest, it must be added that by the 40 & 41 Yiot. c. 18 (an Act passed chiefly in reference to estates held under a settlement), a power, though subjected to certain restrictions, is conferred upon tenants by the curtesy to demise for twenty- one years the lands which they hold under that title; and such leases will consequently be good as against those in remainder (m) ; and this power of tenants by the curtesy has been confirmed and enlarged by the Settled Land Act, 1882, hereinafter more particularly discussed. (3.) A third estate for life of the legal kind, as contra- distinguished from the conventional, is the estate in dower ; that is to say, the estate which, by the common law, a woman, on the death of her husband, has, for the term of her natural ILEe, in a portion of his lands and tenements (n). This portion amounts to the third part in value of such lands and tenements ; except the amount be otherwise by particular custom ; as in gavelkind, whereby she is entitled to a moiety ; but subject, in this instance, to the condition of remaining chaste and umnarried. And by the custom {J) Co. Litt. 29 b. Colleton- v. Gareb, 6 Simon, 19 ; (A) Co. Litt. 30 a. Stoughton v. Leigh, 1 Taunt. 402 ; {I) Ibid. ; see Jones v. Davies, Ray v. Pung, 5 B. & Aid. 561 ; per cur., 5 H. & N. p. 779. Moody v. King, 2 Bing. 447 ; Bex (m) 40 & 41 Vict. c. 18, s. 46. v. Northweald Bassett, 4 Dow. & (») Ab to dower, see Co. Litt. By. 276 ; Jones v. Jones, 2 Tyrw. 30b— 41a; Eowe«).Bower,2N.B. 531. 1 ; Slatter v. Slatter, 1 Scott, 82 ; 268 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. of some places she is entitled to claim the whole ; and in others, again, only a quarter (o). [Dower is called in Latin hy the foreign jurists doarium, but by Bracton and our English writers dos : which among the Romans signified the marriage portion which the wife brought to her husband, but which with us is applied to signify the interest in his lands which the wife takes from her husband, and to which the civil law had nothing that bore any resemblance. Some have ascribed the introduc- tion of dower to the Normans, as a branch of their local tenures {p) ; and it appears to have been first introduced into the system of feuds (wherein it was called triens, tertia, and dotalitium) by the Emperor Frederick the second, who was contemporary with our King Henry the third {q). It may therefore be that dower is with us the relic of a Danish custom ; since, according to the historians of that country, dower was introduced into Denmark by Swein, the father of our Canute the Ghreat, out of grati- tude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by the Vandals (r). However this may be, the reason which our law gives for adopting it, is a very plain and sensible one : viz., for the sustenance of the wife, and the nurture and education of the younger children (s). In treating of this estate, let us first consider who may be endowed; secondly, of what she may be endowed; thirdly, the manner how she shall be endowed; and fourthly, how dower may be barred, or otherwise defeated.] 1. Ajid, first, the dowager must be the actual wife of him under whom she claims at the time of his decease. If there have been a dissolution of the marriage (or, as it (o) 2 Bl. Com. 129 ; Robinson on (r) Mod. Un. Hist, xzxii. 91. Gavelkind, bk. ii. u. 2. {«) Bract. 1. 2, o. 39, s. 1 ; Co. {p) Wright's Ten. 192. Litt. 30 b. (?) Craig, 1. 2, t. 22, s, 9. CH. IV. OF FREEHOLD ESTATES NOT OF INHERITANCE. 269 was formerly called, a divorce a vinculo matrimonii), she shall not be endowed ; for ubi nullum matrimonium, ibi nulla dos {t). But a divorce a mensa et thoro (or, as we should now say, a judicial separation) did not, by our common law, destroy the dower, not even though decreed for adultery itself (m). [Yet by the statute of West- minster the second (13 Edw. I.) st. 1, c. 34, if a woman voluntarily left her husband, and lived with an adulterer, she lost her dower, unless her husband was voluntarily reconciled to her (»). By the antient law, the wife of a person attainted could not be endowed ; to the intent, says Staunforde, that if the love of a man's own life cannot restrain him from such atrocious acts, the love of his wife and children may {y) : . though Britton gives it another turn, viz., that it is presumed the wife was privy to her husband's crime (z). However, the statute 1 Edw. YI. c. 12, abated the rigour of the common law in this parti- cular, and allowed the wife her dower. But a subsequent statute (5 & 6 Edw. VI. c. 11, s. 13) revived this severity against the widows of attainted traitm-s, and barred them of their dower, but not the widows of attainted /efows {a). 2. We are next to inquire of what a widow may be endowed. And supposing no act to have been done to {t) Bract. 1. 2, c. 39, s. 4. But she ^^^ otlier hand, among the antient didnotloaeherdowermerely because Goths, an adulteress was punished the marriage was voidable, if there ^7 t^e loss dotalitii et trientis ex ■was no actual divorce. (Co. Litt. *««»« moUUbus mri. (Stiemh. 1. 3, 33 a.) Nor by reason of her hav- c 2.) ing been married under the age of [x) 2 Inst. 435 ; Hetherington v. twelve, or to a husband under the Graham, 6 Bing. 135 ; Woodward age of fourteen ; provided (says ». Dowse, 10 0. B. N. S. 722. Blackstone, vol. ii. p. 131) she was iv) I"- 0. b. 3, o. 33. above nine years old at her hus- (s) C. 110. band's death. In Braoton's time, (a) An alien woman, married the age was indefinite, and dower without the royal licence, might arose si uxor posait dotem promereri, not have claimed dower (Co. Litt. et vinm sustmere. (lb. s. 3.) by Harg. 31 b) ; but by 33 & 34 («) Co. Litt. 33 a, 33 b ; Sidney Vict. c. 14, s. 10 (1), this would V. Sidney, 3 P. Wme. 276. On now seem to be altered. 270 BK. II. OF RIGHTS OF PEOPEKTY. — PT. I. THINGS REAL. [defeat or abridge her rights, she is by law entitled to be endowed of all lands and tenements of which her husband was seised in fee simple or in fee tail at any time during the coverture, and of which any issue, which she might have had, might by possibility have been heir (i). There- fore, if a man seised in fee simple hath a son by his first wife, and after marries a second wife, she shall be endowed of his lands ; for her issue might by possibility have been heir on the death of the son by the former wife. But, if there be a donee in special tail, who holds lands to bim and the heirs of his body, begotten on Jane his wife; though Jane may be endowed of these lands, yet if Jane dies, and he marries a second wife, that second wife shall never be endowed of the lands entailed ; for no issue that she could have could by any possibility inherit them (c). A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife dowable (») Cap. 7. (A) 3 & 4 Will. 4, c. 105, s. 13. (») Co. Litt. 34 b, 35 a. Dower de la plus belle, was a conse- 272 BK. II. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. [fee to demand his services of the heir, in respect of the lands so holden. For the heir by his entry became tenant to the lord, and the widow became immediate tenant to the heir by a kind of subinfeudation or under-tenancy, completed by this investiture or assignment (p). : and such tenure might still be created notwithstanding the statute of Quia emptores, because the heir parted not with the fee simple, but only with an estate for life. If the heir or his guardian did not assign the widow her dower within the term of quarantine, or assigned it unfairly, she had her remedy by action of dower, and the sheriff was directed to assign it {q). If the thing of which she was endowed was divisible, her dower must have been set out by metes and bounds : but if it was indivisible, she must have been endowed specially ; as of the third presentation to a church, the third toU-dish of a mill, the third part of the profits of an office, the third sheaf of tithe, and the like (r). 4. Lastly, we are to inquire how dower may be barred, or otherwise defeated. A widow may be barred of her dower not only by elopement and adultery, by divorce, the treason of her husband, and other disabilities before mentioned, — ^but also by detaining the title-deeds or evi- dences of the estate from the heir ; that is, she will be barred until she restores them (s).J She may also lose her right to dower by a jointure settled on her at the time of marriage. A jointure signified a joint estate limited to both husband and wife(!!), and was defined by Sir Edward {p) Gilb. Ten. 173. {>•) Co. Litt. 32 a. (?) Co. Litt. 34 b, 35 a. If the (s) Anne Bedingfield's case, 9 heir (being under age), or his guar- Eep. 15 b. dian, assigned more than she ought {t) See Dennis's ease, Dy. 248 a ; to have, this was formerly remedied Vernon's case, 4 Eep. 3 b ; Earl of by writ of admeasurement of dower. Buckinghamshire v. Drury, 3 Bro. (See F. N. B. 148 ; Pinch, L. 314 ; P. C. 492 ; Duchess of Somerset's Stat. Westm. 2, 13 Edw. 1, o. 7.) case, Dy. 97 b. But this writ is now abolished. CH. IV.— OF FREEHOLD ESTATES KOT OF INHERITANCE. 273 Coke (ic) as being " a competent livelihood of freehold for " the wife, of lands and tenements ; to take effect presently, " in possession or profit, after the decease of the husband ; "for the life of the wife at least;" which description appears to have been framed from the purview of the stat.^ 27 Hen. VIII. c. 10, commonly called the Statute of Uses, of which we shall speak more fully hereafter, and regarding which it is suflScient for the present to observe, that [before the making of that statute the greatest part of the land of England was conveyed " to uses," the property or pos- session of the soil being vested in one man, and the use or profits thereof in another ; and in such a case, though a husband had the profits conveyed to his use in absolute fee simple, yet the wife was not entitled to any dower in the lands, her husband not being seised thereof ; wherefore it became usual, on marriage, to settle by express deed some special estate io the use of the husband and his wife, fw their lives, in joint-tenancy or jointure ; which settlement would be a provision for the wife in case she survived her husband. But at length the Statute of Uses ordained that such as had the use of lands should, to all intents and purposes, be reputed and taken to be absolutely seised thereof ; and in consequence of such legal seisin, aU wives would have become dowable of such lands as were held to the use of their husbands, and entitled at the same time to any special lands that might be settled in jointure; wherefore the same statute provided that, upon the husband's making or pro- curing to be made such an estate in jointure to the wife before marriage, she should be for ever precluded from her dower («). But then these four requisites must have been observed. — 1. The jointure must have been limited to take effect immediately on the death of the husband. 2. It must have been for the wife's own life at least, and not pur autre vie, or for any term of years, or other smaller (m) Co. Litt. 36 b; see Cresswell [x] Vernon's case, 4 Eep. 1, 2. V. Byron, 3 Bro. C. C. 362. vor,. I. T 274 BK. II. OF EIGHTS OF PROPEIITY. — PT. I. THINGS EEAL. [estate. 3. It must have been made to herself, and to no other in trust for her. 4. It must have been made, and must have appeared by the deed to be made in satisfaction of her whole dower, and not of any particular part of it {y). On the other hand, if the jointure was made to her after marriage, she had her election after her husband's death, to either accept it, or to refuse it and betake herself to her dower at common law ; for she was not capable of con- senting to it during the coverture. And if, by any fraud or accident, a jointure made before marriage, proved to be on a bad title, and the jointress was evicted, or turned out of possession, then, by the provisions of the same statute, she was to have her dower pro tanto at the common law (z). There were some advantages attending tenants in dower that did not extend to jointresses ; and so vice versd, join- tresses were in some respects more privileged than tenants in dower. Tenant in dower, by the old common law, was subject to no tolls or taxes ; and hers was almost the only estate on which, when derived from the king's debtor, the king could not distrain for his debt, if contracted during the coverture (a). But, on the other hand, a widow might enter at once, without any formal process, on her jointure land ; whereas no small trouble, and a tedious method of proceeding by way of process in the courts, was necessary to compel an assignment of dower (b). So, though dower was forfeited by the treason of the husband, or by the wife's elopement and adultery, yet the title to lands settled imjfiinture remained imimpeaohed (c).] Eidependently of the bar of dower by way of jointure, if the husband makes any provision for his wife by will or otherwise, in, such a manner as clearly to indicate an inten- tion that it shall be taken in lieu of dower, she will be (y) See Tiimey v. Tinney, 3 (as) Co. Litt. 31a; F. N. B. 150. Atk. 3. (b) Co. Litt. 36 b. (z) See Beard v. Nuthall, 1 Vem. (c) lb. 37 a ; Sidney v. Sidney, 428. 2 P. "Wms. 277. CH. IV. — OF FREEHOLD ESTATES NOT OF INHERITANCE. 276 barred by her acceptance, after his death, of the provision so made ; but she is allowed her option or election whether she will accept it or not (d) . Dower would also be barred if the husband, on acquiring his estate, took the conveyance of the land ia a form of what was called a conveyance to uses to bar dower (e), which conveyance (the exact nature of which will be hereafter expounded) was a contrivance founded on the Statute of Uses, and which, while it gave the husband a clear dominion over the property, yet did not give him pre- cisely such an estate as by the rules of law entitled his widow to her dower. On the other hand, if the husband neglected, on acquir- ing an estate subject to dower, to bar his widow's claim by taking a conveyance in the proper form, the wife's right (up to a late period) could not have been defeated by any aKenation or devise which her husband might think fit to make of his estate — ^her title to dower remaining para- mount ; and her release of dower by means of a Jine was therefore necessary to a valid conveyance of such lands by the husband (/) ; which necessity operated as a clog on the transfer of property, and eventually, when by the great increase ia modern times of personal property, the husband could make ample provision otherwise for his wife, and could also provide for her by wiU out of his real estate, no sufficient reason for continuing this iaconvenient restraint on the husband's alienation remained ; and by the Dower Act (3 & 4 Will. IV. c. 105), it was accord- iagly provided, that all dispositions of his land (whether absolute or partial, and whether by conveyance in his life- time, or by wUl), and all debts and incumbrances to which' his land might Ids subject, should be valid and effectual, as ((?) Co.Litt.byHarg. 36b,ii. 1; («) Butler's Fearne, 346—349, Thompson v. Nelson, 1 Cox, 447 ; 9tli ed. Ayres v. Willis, 1 Ves. sen. 230, and {/) As to a fine, vide post, bk. n. see 3 & 4 Will. 4, o. 105, ss. 9, 10. pt. I. o. xrs. t2 276 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. against the widcw's right to dower (gf). The same Act also increased the facilities for barring dower, a simple declaration for that purpose, introduced into the deed by which the land was conveyed to the husband, or into any deed executed by him, or into his last will and testament, being made sufficient to defeat the dower. The same Act further enacted, that where the husband devised for his wife's benefit any part of his land that was subject to her dower, she should be thereby barred of her dower unless a contrary intention was declared by the will {h) ; but a bequest of personalty, or a devise of land on which her claim would not attach, would not have operated as a bar of dower («). And it is to be borne in mind that none of the provisions of this Act apply to the ease of women married on or before 1st January, 1834 ; so that as to all such the former law of dower remains in force. [The wife's dower seems at first to have extended to a moiety of the husband's lands, but to have been forfeitable by incontinency or a second marriage ; then by the charter of Henry the first, the condition of widowhood and chastity was only required in case the husband left any issue (A) ; and afterwards the condition appears to have been lost sight of altogether. Under Henry the. second, according to Glanvil, the dower ad ostium eccksim was the most usual species of dower {I) ; and was binding upon the wife, if by her consented to at the time of marriage (w) ; but in those days of feudal rigour, the husband was not allowed to endow his widow ad ostium ecclesice with more {g) SeeLaoeyp. Hill, La-wEep., [k) " Si mortuo viro uxor ejus re- 19 Eq. Oa. 346. manserit, et sine liberis fuerit, dotem [h) See Ro-vrland v. Cathbertsou, mam hahehit; si vera uxor cum liheris Law Rep., 8 Eq. Oa. 466 ; In re remanserit, dotem quidem halehif, Thomas, Thomas v. Howell, 34 dum corpus suum legitime sermve- Ch. Div. 166. n<."— Cart. Hen. 1, a.d. UOl. (4 ) See Chalmers K.Storil, 2 Ves. Introd. to Great Charter, edit. & Bea. 244 ; Dickson v. Kobinson, Oxon. p. iv. Jacob, 503. (^ Glanv. 1. 6, co. 1 and 2. (m) Q-r. Coustum. o. 101. CH. IV. OF FREEHOLD ESTATES NOT OF INHERITANCE. 277 [than the third part of the lands whereof he then was seised (though he might endow her with less), for hy a too literal endowment the lord might have heen defrauded of his wardships and other feudal profits (w) . But if no dower ad ostium eccksice was made to her, then she was endowed hj the common law of the third part (which was called her dos rationabilis) of such lands and tenements as the hushand was seised of at the time of the espousals, and no other ; unless he especially engaged hefore the priest to endow her of his future acquisitions (o) ; and, if the hushand had no lands, an endowment in goods, chattels, or money, at the time of espousals, was a bar of any dower in land which he afterwards acquired {p). In King John's Magna Charta, and the first charter of Henry the third (in the year 1216), no mention is made of any alteration of the common law, in respect of the lands subject to dower ; but in the charters of 1217 and 1224, it is parti- cularly provided, that a widow shall be entitled for her dower to the third part of all such lands as the husband had held in his lifetime ; though in case of a specific en- dowment of less, ad ostium eccksice, the widow had stiU no power to waive it after her husband's death. And this (h) Bract. 1. 2, o. 39, s. 6. psalmus iste, &o." When the wife (o) I)equestosuo(Gc\a,n\.-abie,wg.); was endowed generally ("wSi quia de terris acquisitis et acquirendis. uocorem suam dotaverit in gcnerali, (Bract, ubi sup.) de omnibus terris et tenementis" — (p) Glanv. ubi sup. When spe- Bract. 1. 2, c. 39, s. 6), the hus- cial endowments were made ad band seems to have said, "witEall ostium eeelesice, the husband, after my lands and tenements I thee afB.anc6 made, and troth plighted, endow ; " and then they all became used to declare with what specific liable to her dower. When h^ en- lands he meant to endow his wife, dowed her with personalty only, " quod dotat earn de tali manerio cum he used to say, "with all my pertinentiis, &c." (Bract, ubi sup.) ; worldly goods, (or, as the Salisbury and therefore in the old York ritual, ritual has it, with all my worldly (Seld. TJx. Hebr. 1. 2, o. 27,) there chattel,) I thee endow ; " which en- is at this part of the matrimonial titled the wife to her thirds, or service, the following rubric : " sa- pars rationabilis, of his personal cerdos interroget dotem mulieris ; et si estate; which is provided for by terra ei in dotem detur, tunc dicatitr Magna Charta, c. 26. 278 BK. II. OF BIGHTS OF PKOPERTY. FT. I. THINGS HEAL. [contimied to be the law during the reigns of Henry the third and Edward the first {q). In Henry the fourth's time it was denied to be law, that a woman should be endowed of her husband's goods and chattels (r) : and, under Edward the fourth, Littleton lays it down expressly, that a woman might be endowed ctS, ostium ecclesiw with more than a third part (s) ; and should have her election, after her husband's death, to accept such dower, or to refuse it and betake herself to her dower at the common law (t).] As to the existing law, the reader will have observed, that the right to dower is now, in regard to women married after 1st January, 1834, reduced to one of the most precarious description which the husband may bar or defeat at his pleasure ; though if he fails to do so, the widow is still in a condition to assert her title against the heir. And to this it may be added that, by 40 & 41 Vict, c. 18, s. 46, a dowress has a right to demise any unsettled estate (under certain restrictions specified in the Act, and with the exception of the principal mansion house and demesne lands) for a term not exceeding twenty-one years, and that a lease so granted will consequently be good agaiast those in remainder, notwithstanding her death. But a dowress is not a tenant for life within the meaniag of the Settled Land Act, 1882, although (as we have seen) a tenant by the curtesy is (««) ; and therefore a dowress as such may not exercise the powers of a tenant for life under that Act. (q) Bract. uM sup.; Britton, oo. {«) Litt. s. 39; F. N. B. 150. 101, 102; Met. 1. 5, u. 23, ss. 11, {t} Litt. a. 41. 12. (») Vide sup. p. 267. {r) P. 7 Hen. 4, 13, 14. ( 279 ) CHAPTER V. OF ESTATES LESS THAN FREEHOLD. Having now investigated the nature of freehold estates, we arrive at the consideration of those which are less than freehold, otherwise chattek real {a), chattels (or goods and chattels) expressing any kind of property which, having regard either to the subject-matter, or to the quantity of interest therein, is not freehold {b). The appellation " chattels " was originally derived from the technical Latin word " cafalla," which, among the Normans, primarily signified only heasts of husbandry, but, in a secondary sense, was applicable to all moveables in general, and indeed to whatever was not a fief or feud (c). And the English law adopts the term, considering as a chattel whatever amounts not to a freehold, which is lite the Norman fief, requiring immobility in respect of the subject-matter, and duration for a life at least, as regards the quantity of interest or estate (d). Any estate in lands and tenements, which amounts not to freehold, is conse- quently a chattel ; but inasmuch as it concerns, or savours of, the realty (e), it is denominated a chattel real, to dis- tinguish it from things which do not concern, or savour of, the realty, and which are described as chattels ^ersowa? (/). Chattels, whether real or personal, form a subordinate class of property, and receive the common denomination of personal estate, to distinguish them from estates of freehold, which are denominated real estate ((/). And as regards («) Vide sup. p. 169, n. (a). (e) Co. Litt. 118 b. (5) Co. Litt. 118 b. (/) 2 Bl. Com. p. 387. (c) 2 Bl. Com. 386. iff) lb. 386 ; vide sup. p. 169, n. {d) Vide sup. p. 231. 280 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. the incidents distinguisliing the two denominations, though "livery of seisin" was a ceremonywithoutwhich.no estate of freehold could pass at the common law {h), it was no more requisite to the ti^nsfer of a chattel real, than to the transfer of a chattel personal ; also, a chattel real belongs, on the death of the owner, to his executor or administrator, like a chattel personal, and does not descend, like a free- hold of inheritance, to his heir ; again, the interest in a chattel real, as in a chattel personal, may be made to com- mence infuturo, which was not allowed, at common law,r as to the freehold in a corporeal hereditament («') ; also, the tenant of a chattel real is not said to be seised, like the tenant of a freehold, but to be possessed only, as if it were a chattel personal ; moreover, there can be no estate tail in a chattel real, any more than in a chattel personal, but only in a freehold {k). Of estates that are less than freehold, there are three sorts : I. Estates for years ; II. Estates at will ; III. Es- tates by sufferance. I. An estate for years is where a man has an interest in lands and tenements, and a possession thereof by virtue of such interest, for some fixed and determinate period of time {I); as in the ease where lands are let for the term of a certain number of years, agreed upon between the lessor and the lessee {m), and the lessee enters thereon (m) ; and (A) This rule of the common law " — ee " obtain, in law, the one is now altered by 8 & 9 Vict. u. an active, the other a passive 106, s. 2, as to which vide post, signification. The feoffor is he 0. xvn. that maketh a feofiment, and the (i) But a freehold interest might feoffee is he to whom it is made ; be made to commence in fnturo by the donor is he that giveth land in way of remainder; vide post, pp. tail, and the donee is he who re- 319, 320. oeiveth it ; and the lessor is he that [k) 2 Bl. Com. 398. grauteth a lease, and the lessee is [Vj As to this estate, see Co. Litt. he to whom it is granted.— Litt. 43 b— 54 b. s. 57. (m) We may here remark, that («) lb. s. 58. the terminations " — or" and CHAP-. V. — OF ESTATES LESS THAN FREEHOLD. 281 this amounts but to a chattel real, however long the period of time for which the lands are demised ; for, in contem- plation of law, no interest for a certain and determinate period of time, — even for 1,000 years, — is as large as an estate for life, which, as we have seen, is the lowest description of freehold (o). [Though the lease he but for half a year, or a quarter, or any less time, the lessee is for some purposes reputed a tenant for years, a year being the shortest term of which the law for these purposes takes notice [p). And concern- ing the division and calculation of time by the English law, it is proper here to observe : That a year is a deter- minate and well-known period, consisting commonly of 366 days ; for, though in bissextile or leap-years it con- sists properly of 366, yet by the stat. 40 Hen. III. the increasing day in the leap-year, together with the preced- ing day, shall be accounted for one day only. That a month is a more ambiguous term, being either a lunar month which consists of twenty- eight days ; or a calendar month of unequal lengths, according to the Julian division in our common almanacks, and whereof in a year there are twelve.] By the old common law, a " month " used to be, in matters temporal, a lunar month, or twenty-eight days ; in matters ecclesiastical, a calendar month (q) : though this was a rule of the most general description, and yielded easily to exception where custom or the ob- vious meaning of the parties, or any other special con- sideration, made it reasonable to depart from the usual construction of the term month (r) ; e. g., if money were lent for three months, these should be intended calendar (o) Co. Litt. 46 a. Tte Interpretation Act, 1889 (52 & {^) Litt. B. 67. 53 Vict. o. 63), repealing but re- (j) See Lacon v. Hooper, 6 T. E. enacting 13 & 14 Vict. o. 21, enacts, 226 ; Simpson v. Margitson, 11 that in all statutes "the word Q. B. 23. 'month' shall mean 'calendar' {r) Davy v. Salter, 3 Salk. 346 ; month, unleaa -worcls be added Eex V. Cussons, 1 Sid. 186 ; Hip- showing lunar mouth to be in- weU V. Knight, 1 T. & Col. 401. tended." 282 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. montlis, whether a bill of exchange or a promissory note timed to matm-e with the three months was given or not (s) ; also, in all statutes, a month has long meant a calendar month {t) ; also, in the Orders and Eules of 1883 of the Supreme Court of Judicature, and generally in all judgments and orders made hy the Court, the word month denotes a calendar month (m). [The old rule, however, continues to apply to a lease ; and consequently, a lease for " twelve months " is only for forty-eight weeks ; and a lease for six months is not a lease for half a year (x). But where the lease was for " a twelvemonth," in the singular number, it was held to be good for the whole year; for herein the law receded from its usual calcu- lation, because the ambiguity between the two methods of computation ceased, — it being generally understood, that by the space of time called thus, in the singular number, a twelvemonth, is meant the whole year, consisting of one solar revolution («/).] As regards the legal significance of a day, all the twenty-four hours are usually reckoned therein (s) ; therefore, if I am bound to pay money on any certain day, I discharge the obligation (as a general rule) if I pay the money any time before twelve o'clock at night, after which the following day commences {a) ; and with a view to convenience, the law considers the ordinary periods of time without regard to their fractional parts {b). Thus, half a year consists of 182 days, and a quarter of a year of 91 ; the remaining hours being in either case rejected (c) ; also, the fractions of a day (s) Str. 446. 135 a ; Maund's case, 7 Eep. 28 b ; (i!) 52 & 63 Vict. 0. 63, s. 3, Duppa v. Mayo, 1 Saund. 287. repealing but re-enacting 13 & 14 («) Bl. Com. uM sup. ; and see Vict. u. 21. 43 & 44 Viot. o. 9 (Greenwicb (m) Order LXIV. r. 1. time). [x) Consider Wilkinaon v. Cal- . [b) See Wright v. Mills, 4 H. & vert, 3 C. P. D. 360 ; Barlow v. N. 488. Teal, 16 Q. B. D. 403. (c) Co. Litt. 135 b; Bishop of {y) Oatesby's case, 6 Rep. 62 a. Peterborough v. Catesby, Cro. Jao. («) 2 Bl. Com. p. 141 ; Co. Litt. 167 ; Telv. 100 ; Dy. 345 a. CHAP. V. OF ESTATES LESS THAN FREEHOLD. 283 will not usually be regarded; nevertheless, when justice requires it, this rule of convenience will he put aside, and a more accurate discrimination of time will be observed ; e.g., for the purpose of determining priorities in the case of successive mortgagees, and especially of deeds regis- tered in the Middlesex and Yorkshire Registries, the difference of an hour or of a minute may have to be and will be regarded {d). But to return to estates for years. [These estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent in money, provisions, or other rent, to the lessors or land- lords ; and in order to encourage them to manure and cul- tivate the ground, they had a permanent interest granted them, not determinable at the will of the lord. And yet their possession was esteemed of so little consequence, that they were rather considered as the bailiffs or servants of the lord, who were to receive and account for the profits at a settled price, than as having any property of their own in their lands (e). And therefore they were not allowed to have a freehold estate ; but their interest, such as it was, vested after their deaths in their representatives, who were to make up the accounts of the deceased with the lord and the other creditors, and were entitled to the stock upon the farm. The lessee's estate might also, at one period of the antient law, be at any time defeated by a collusive recovery suffered by the tenant of the freehold, in an action brought against him for the pur- pose (/). So long as estates for years were thus precarious, it is no wonder that they were usually short, and indeed by the antient law, no leases for more than forty years were {d) See Yorkshire Registries Act, (/) Co. Litt. 46 a; 2 Inst. 321 ; 1884 (47 & 48 Vict. c. 64), s. 5, Flower v. Eigdeu, Cro. Eliz. 284 ; (2), E. ; and see Clarke v. Brad- Pledgard v. Lake, ib. 718 ; Hist, laugh, 7 Q. B. D. 151 ; 8 Q. B. Eng. Law, by Reeves, vol. iv. p. p. 63. 232. As to a recovery, vide post, («) Bac. Ab. Leases. bk. ii. pt. i. u. xxi. 284 BK. II. OF EIGHTS OF PROPEKTY. PT. I. THINGS REAL. [allowable : because any longer possession, especially wlien given without any livery declaring the nature and dura- tion of the estate, tended to defeat the inheritance (g). Yet this law was soon antiquated ; for in Madox's collec- tion of antient instruments, some leases for years of a pretty early date are found which eonsiderahly exceed that period (h) ; and long terms — for three hundred years or a thousand — were certainly in use in the time of Edward the third (»), and prohahly of Edward the first (k). At all events, when by the stat 21 Hen. VIII. c. 15, the lessee, otherwise called the termor, was protected against fictitious recoveries, and his interest rendered more secure and permanent, long terms began to be more frequent than before, and were afterwards extensively introduced, being found extremely convenient for family settlements and mortgages (l). Every estate which expires at a period certain and prefixed, by whatever words created, is an estate for years ; whence this estate is frequently called a term, terminus, because its duration or continuance is limited and deter- mined ; for every such estate must have a certain beginning and certain end (w). But id cerium est, quod cerium reddi potest : therefore, if a man make a lease to another, for so many years as J. S. shall name, it is a good lease for years {n) ; for though it is at present uncertain, yet, when J. S. hath named the years, it is then reduced to a cer- tainty. If no day of commencement is named in the creation of this estate, it begins (provided the lease be by deed) from the making or delivery of the lease (o). A ig) Mirrour, o. 2, b. 27 ; Co. Litt. [t) See Asoougt's case, 9 Rep. 45 b, 46 a. 135 ; Brediman's case, 6 Rep. 57. [h) See Madox, Formulare An- (m) Co. Litt. 45 b. glican. No. 239, fol. 140 ; ib. No. (n) Bishop of Bath's case, 6 Kep. 245, fol. 146 ; ib. No. 248, fol. 148, 35 b. &o. (o) Co. Litt. 46 b ; and see Doe (i) 32 Ass. pi. 6 ; Bro. Abr. t. v. Benjamin, 9 Ad. & El. 644 ; Miordauncestor, 42 ; Spoliation, 6. Marshall v. Berridge, 19 Ch. Div. [k) Stat, of Mortmain, 7 Edw. 1. 233. CHAP. V'. OF ESTATES LESS THAN FREEHOLD. 285 [lease for so many years as J. S. shall live, is (regarded as a mere term) Toid from the beginning ; for it is neither certain, nor can ever be reduced to a certainty, during the continuance of the lease {p). And the same doctrine holds, if a parson make a lease of his glehe for so many years as he shall continue parson of Dale ; for this is still more uncertain. But a lease for twenty or more years, i£ J. S. shall so long live, or if he shall so long continue parson of Dale, is good ; for there is a certain period fixed, beyond which it cannot last ; though it may determine sooner, on the death of J. S. or his ceasing to be parson there (g). As already observed, the word term, when applied to this description of estate; signifies the estate itself which the grant confers, and not merely the period of time specified in the grant ; and therefore the term may expire during the continuance of the time, as by surrender, forfeiture and the like. For which reason, if I grant a lease to A. for the term of three years, and after the expiration of the said term to B. for six years, and A. surrenders or forfeits his lease at the end of one year, B.'s interest shall immediately take effect ; but if the remainder be to B. from and after the expiration of the said " three years," or from and after the expiration of the said "time," in this case B.'s interest will not commence till the time is fully elapsed, whatever may become of A.'s term (r).J An estate for years not being created by livery of seisin, the tenant, in proper technical language, is not said to be seised, but to be possessed thereof ; also, for the crea- tion of this estate it is not proper to limit it to a man and his " heirs," but to a man and his " executors and adminis- trators ; " and indeed it is sufficient if it be granted to himself only, without mention of his personal representa- {p) Co. Litt. 45 b. W Ibid. (q) Ibid. 286 BK. II. OF EIGHTS OF PEOPEETY. PT. I. THINGS EEAL. tives; for in these, on his death, the law will vest it without any special words of limitation. Again, as it required no livery of seisin, so at common law this estate, for whatever length of duration, miglit he constituted by mere agreement, verhal or written, if fol- lowed up by the entry of the lessee. But by the Statute of Frauds. (29 Car. II. c. 3), it was enacted that no lease for more than three years, or at a lower rent tban two- thirds of the improved value of the thing demised, should be effectual, unless put into writing and signed by the party demising or his agent thereunto lawfully authorized by writing (s). And by 8 & 9 Vict. c. 106, s. 3, it has been further provided that a lease required to be in writing (if made after the 1st of October, 1845) shall be void at law unless not only reduced to writing, but also made by deed{t). A bare demise by the common law, as contradis- tinguished from a bargain and sale under tbe Statute of Uses, does not iu itself vest a complete estate for term of years, ia the lessee : it only gives him a right of entry on the tenement; which right is called his "interest in the term," or interesse termini ; and when he has actually so entered, the estate is then, and not before, completely vested in him. However, the interesse termini is so far in the nature of an estate, that, even before entry, the lessee may grant his interest over to another; though, on the other hand, a lessee is not, before entry, in a con- dition to maintain an action of trespass for an injury to the land («). [Tenant for term of years hath incident to and insepa- (a) 29 Car. 2, o. 3, as. 1, 2. See («) 2 Bl. Com. 144 ; Plowd. 198. Edge V. Strafford, 1 Tyrwi 295 ; See Doe v. Walker, 5 Barn. & Lord Bolton v. Tomlin, 6 Ad. & Cress. Ill ; Co. Litt. 338 a, 270a; El. 856. Neal v. Mackenzie, 1 Mee. ftWels. (*) As to the efEect of this enact- 747 ; WiUiams o. Bosanquet, 1 ment, vide post, c. xvii. Brod. & Bing. 248 ; Edge v. Straf- ford, 1 Tyrw. 295. CHAP. V. OF ESTATES LESS THAN FREEHOLD. 287 [rable from his estate, imless by special agreement, the same estovers as a tenant for life {x) ; that is to say, house-bote, fire-bote, plough-bote, hay-bote (j/), and the like ; and the doctriae of waste, also, applies generally to tenants for years (s).] With regard to emblements, where his term depends upon a certainty, as if the tenant holds from Midsummer for ten years, and in the last year he sows a crop of com, and it is not ripe and cut before Midsummer, by the com- mon law, the landlord shall have it, in the absence of any special contract or custom to the contrary ; for the tenant knew the expiration of his term, and therefore it was his own folly to sow that of which he never could reap the profits (a). But where the lease for years depends upon an imcertainty, as upon the death of the lessor, being himself only tenant for life, or being a husband seised in right of his wife, or if the term of years be determinable upon a life or lives (6) : in these and similar cases, the estate for years not being certainly to expire at a time foreknown, but by the act of God, — the tenant for years, or his representatives, shall have the emblements in the same manner that a tenant for life, or his representatives, are entitled thereto (c) . But it is otherwise if the term determine by the act of the party himself ; as if he does anything that amounts to a forfeiture : in which case the emblements shall go to the lessor, and not to the lessee, who hath determined his estate by his own default (<^). The operation of the common law right to emblements, however, is now much more limited than it once was, {x) Vide sup. p. 257. titled as tenant by the curtesy, is (y) Co. Litt. 41 b. now in general by the Settled («) As to waste, vide sup. p. 260, Estates Act, 1877, and the Settled et post, bk. V. 0. vm. Land Act, 1882, of a certain and (a) 2 Bl. Com. p. 145 ; Litt. s. determinate duration. Vide sup. 68. pp. 259, 267, 278. (i) But a lease for years by a (c) 2 Bl. Com. p. 145. tenant for life, or by a husband (. Ward, 1 Ves. sen. 420 ; Brooke 765. V. Spong, 15 Mee. & "W. 153. [r) Feame, by Butler, 381, n. (a), {p) As to re-entry by a lessor on 9th ed. As to the rights of the breach of condition, see Roberts v. grantor or his heirs on re-entry, in Davey, 4 Bam. & Adol. 664 ; Hill respect of the emblements, see Davis V. Kempshall, 7 0. B. 975. v. Eyton, 7 Bing. 154. («) Litt, 8. 347. CHAP. VI. OF ESTATES UPON CONDITION. 301 had made a lease for life, reserving a rent, with proviso for re-entry in case of non-payment, and the lessor granted over his reversionary estate to another, the latter could take no benefit from the condition (t). But by the statute 32 Hen. YIII. c. 34 (m), the law in this respect was altered, and the grantee of the reversion, upon a lease for life or years, it was thereby enacted, should have the same benefit of a condition, in case of a subsequent breach, as the grantor himself would have had — provided that such condition related to the payment of rent, the restriction from waste, or other like object tending to the benefit of the reversionary interest (x) ; and this provision has been extended by the statutes 22 & 23 Vict. e. 35, s. 3, and 44 & 45 Yict. c. 41, ss. 10 — 12, to the severance of the reversionary estate. As regards conditional limitations, a stranger (i.e., even an assignee of the original grantee of the estate in remainder or expectancy) could in all oases have taken advantage of these, even without the aid of the statute of Henry YIII. ; for, as regards these limitations, they are spent and determined when the condition happens, and the next estate comes into possession, whether it be a reversion or an expectancy upon, or a remainder after, the conditional limitation, and in whomsoever such reversion or remainder may then be vested (y). [In all instances of estates upon express condition, it is to be observed that so long as the condition remains un- broken the grantee may have an estate of freehold ; for the breach of the condition being contingent and uncertain, this uncertainty preserves the freehold, and the estate may last for ever, or at least for the life of the tenant, supposing the condition to remain unbroken (z). But where the (!!) Co. Litt. 215 a. 685. («) As to this statute, BeeThursby {x) Co. Litt. 205 b; 1 Saimd.by V. Plant, 1 Saund. by Wms. 237, Wms. 287, n. (16). and tbe notes thereto ; Buckworth (t/) Co. Litt. 214 b ; Mary Por- V. Simpson, 5 Tyrw. 354 ; Standen tington's case, 10 Eep. 42. V. Chrismas and another, 10 Q. B. (z) Co. Litt. 42 a. 135; Wright ^>. Burroughes, 3 C. B. 302 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. [estate is at the utmost a chattel interest, which must determine at a time certain, and may determine sooner (as a grant for ninety-nine years, provided A., B., and C, or the survivor of them, shall so long live), this still continues a mere chattel, and is not, by reason of such its uncertainty, ranked among estates of freehold. These express conditions are void if they be impossible at the time of their creation, or afterwards become impos- sible by the act of God or by the act of the grantor him- self ; or if they be contrary to law, or repugnant to the nature of the estate. In any of which cases, if they be conditions subsequent, that is, to be performed after the estate is vested, the estate shall be absolute at once, and the condition subsequent discharged. As, if a feoffment be made to a man in fee-simple, on condition that unless he goes to Rome in an hour, or unless he marries with Jane S. by such a day (within which time the woman dies, or the feoffor marries her himself) ; or unless he kills another; or in case he alienes in fee; that then and in any of such cases, the estate shall be vacated and deter- mined : here the condition is void, and the estate is at once made absolute in the feoffee; for he hath by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant (6). But if the condition be ^recerfew^ or to be performed before the estate vests, as a grant to a man that if he kills another or goes to Eome in an hour, he shall have an estate in fee; here, the void condition being precedent, the estate which depends thereon is also void, and the grantee shall take nothing by the grant ; for he hath no estate until the condition be performed (c).] On the other hand, even where the condition is valid (J) Oo.Litt.206a; MaiyPortmg- 26 Oh. Div. 801. ton's case, 10 Rep. 42 ; Doe v. Eyre, (o) Co. Litt. 206 a. See Shrews- 5 0. B. 741 ; Clifford v. Watts, Law bury v. Soott, 6 C. B. (N. S.) 179.' Rep., 5 C. P. 577 ; Rosher v. Rosher, CHAP. VI. — OF ESTATES UPON CONDITION. 303 and capable of being enforced, it is also capable of being waived by the grantor at bis pleasure (d) ; and as tbe law always leans against forfeitures (e), it wiLL consider bim as having waived his right to enter for breach of a condition subsequent, if, after notice of the breach committed, he does any act inconsistent with an intention to avaU. himself of the forfeiture. Thus, if a lease be made with a proviso that, in the event of the lessee's assigning his interest, the lessor shall be at liberty to enter on the land demised, as of his former estate ; he will nevertheless not be entitled to enter, if, after an assignment made, he accepts rent from the assignee (/). By a modern enactment however (23 & 24 Vict. c. 38, s. 6), an actual waiver of the benefit of any covenant or condition in a lease by the lessor shall not (in the absence of any intention appearing to that effect) be assumed to extend to any breach other than that to which the waiver specially relates, nor to operate as a general waiver of the covenant or condition in ques- tion (g). ■ Such being the general nature of estates upon condition, specific notice is due to certain specific varieties of them, principally three in number, namely, mortgage estates, estates by statute merchant and statute staple, and estates by elegit. And, firstly, as to mortgage estates: — These were of two kinds, being either vivum vadium, or mortuum vadium. [ Vivum vadium, a term not now much in use, was when a man borrowed a sum (suppose 200/.) of another, and () If the money be not repaid his possession cannot of course he hy the day assigned, the mortgagee disturbed; but he may be com- is entitled to receive from the polled to pay over his rents to the mortgagor six calendar months' notice mortgagee. If there be a tenant in writing of his intention to pay in possession under a lease granted oS the mortgage. (See Shrapnell by the mortgagor mhsequenth/ to f- Blake, 2 Eq. Ca. Ab. in tit. the mortgage, and without the Mortgage, pi. 34.) privity of the mortgagee, he may («) Prior to this provision the be ejected without notice, unless period of limitation was twenty indeed such subsequent lease was years (3 & 4 Will. 4, u. 27, s. 28). VOL. I. ^ 306 BK. II. OF EIGHTS OF PROPERTY. PT. I. THINGS REAL. person, entitled to or claiming under any mortgage of land, may make an entry or tring an action or suit to recover the same -within twelve years next after the last payment of any part of the principal or interest secured by such mortgage ; — and this he may do although more than twelve years may have elapsed since his right to enter or sue shall have first accrued (o). The estate of the mortgagor, after default, is called his equity of redemption (p) ; and he may take proceedings " to redeem " in a proper court of equity, by virtue of such his estate (q). If the mortgagee be not in possession, this proceeding merely calls upon the mortgagee to re-convey on payment of principal, interest, and costs (r) : but if the mortgagee has obtained possession, it prays that an account may be taken of all the rents and profits on the one hand, and of the principal, interest, and costs on the other ; and that, on payment of what may appear due on such account, a reconveyance may be made, and the possession of the premises restored (s). On the other hand, the mortgagee, (o) See Doe d. Palmer v. Eyre, death the mortgaged estate comes 17 Q. B. 366; and Pugh v. Heath, to his devisee (or heir) encumbered 7 App. Ca. 235. with this debt. Before "Locke {p) In certain casesof accidental King's Acts" (17 & 18 Vict. o. 113, or formal difficulty in obtaining a 30 & 31 Vict. u. 69, and 40 & 41 reconveyance (as where the mort- Viet. c. 34), the estate so encum- gagee died intestate and without bered and devised or descending, an heir), the court might have for- in the absence of an expressed in- merly made an order having the tention, was entitled to be dis- efEect of » reconveyance (13 & 14 charged of the debt, at the expense Vict. u. 60, s. 19) ; but the personal of the personal estate of the de- representative of such deceased ceased mortgagor. (Maxwell v. mortgagee may now make the re- Hyslop, Law Sep., 4 Eq. Ca. 407 ; conveyance (44 & 45 Vict. c. 41, Brownson v. Lawyance, ib., 6 Eq. B. 30). Ca. 1 ; Nelson v. Page, ib., 7 Eq. (j) See Scotto «. Heritage, Law Ca. 25 ; Coote v. Lowndes, ib., 10 Rep. 3 Eq. Ca. 212. Eq. Ca. 376 ; Lewis v. Lewis, ib., . (r) During the continuance of ISEq.Ca. 218; Sackvilletf. Smyth, the equity of redemption, the mort- ib., 17 Eq. Ca. 153.) ffagor is regarded in equity as the (») See Parkinson v. Hanbury, owner of the estate, subject only Law Rep., 2 H. of L. Ca. 1. By to the mortgage debt : and on his 37 & 38 Vict. o. 78, s. 4, the legal CHAP. VX. OF ESTATES UPON CONUITION. 307 where his debt remains unpaid for more than a reasonable time after the time agreed on, may (although the time for redeeming be still running) take proceedings "for fore- closure," calling upon the mortgagor to redeem his estate presently, or in default thereof to be for ever foreclosed from redeeming the same ; that is, to lose his equity of redemption •without possibility of recall (^). And also, in some cases of fraudulent mortgages (m), such as twice mortgaging the same lands without giving notice of the mortgage already effected, the fraudulent mortgagor for- feits all equity of redemption whatsoever (»). The mort- gagee may also bring the estate to sale in satisfaction of his debt, (paying over the surplus proceeds, if any, to the mortgagor,) even without resorting to proceedings in equity, provided the security be taken in such form as to authorize that course of proceeding («), and which is usTially a deed ; and even if no power of sale be conferred by the terms of the instrument, he may still bring the estate to sale in such manner as is provided by the Convey- ancing Act, 1881, 44 & 45 Vict. c. 41, ss. 19—21 {y). personal representative of a mort- («) Seestat. 4 feSW. &M. c. 16. gagee might, on payment of the (») In cases where the land is moneys secured by the mortgage, mortgaged to several persons, each convey or surrender the mort- ignorant of the other incum- gaged estate ; but that section of branoes, the maxim qui prior est this Act has been repealed by the tempore, potior est jure, prevails, Conveyancing Act, 1881 (44 & 45 -where all the mortgages are equit- Viot. u. 41, s. 30), -which has able (see Jones v. Jones, 8 Sim. enacted that such personal repre- 633 ; WUmot v. Pike, 5 Hare, 14) ; sentative shall (not merely may) in but preference is given, in the such a case reconvey the estate, general case, to the mortgagee in ■whether the mortgagee die testate possession of the legal estate. (God- or intestate. dard ». Complin, 1 Cha. Ca. 119.) {t) Campbell v. Holyland, 7 Ch. {x) The concurrence of the mort- D. 166. In such a suit, however, gagor is not required in such a sale, the court may direct a sale instead (See Corder v. Morgan, 18 Ves. of a foreclosure (see 15 & 16 Vict. 344.) 0. 86, s. 48 ; Newman v. Selfe, 33 («/) By this Act a mortgagee has Beav. 522 ; and 44 & 45 Viet. o. 41, now several powers incident to his g 25). estate, though not in form con- x2 308 BK. II. OF RIGHTS OF PKOPERTY. FT. I. THINGS REAL. It forms one of the proYisions of the Judicature Act, 1873, that a mortgagor entitled for the time being to' the possession or receipt of the rents and profits of any land, as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have heen given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises on a lease or other con- tract made by him jointly with any other person (s). The state of the law, as above explained, with respect to mortgages, afPords the reader an example of the dis- tinction referred to in a former place between legal and equitable estates [a). At law, the ownership of the land, as we have seen, is considered as absolutely vested, on the mortgagor's default, in the mortgagee ; but in equity, the mortgagor continues to be, and to be regarded as, the true owner until a foreclosure shall have taken place {b). Secondly, estates by statute merchant and statute staple (c) : — [These are nearly related to the mvum vadium before mentioned {d). For both the statute merchant and the statute staple are securities for money ; the one entered into before the chief magistrate of some trading town, pur- suant to the statute 13 Edw. I., Be mercatoribus, and thence called a statute merchant : the other pursuant to the statute 27 Edw. III. stat. 2, c. 9, before the mayor of the " staple; " that is to say, the grand mart for the principal commodi- f erred by tte deed. These relate {a) Vide sup. p. 231 ; 1 Sand, to the selling, &o., the insuring Uses, 203, 2nd ed. against fire, and the appointment (A) Cashom v. Soarfe, 7 Vin. Ah. of a reodmr, who shall receive the 156 ; 2 Eq. Ca. Ab. 728, S. 0. j rents and profits as agent of the Amherst v. Bawling, 2 Vem. 401.' person entitled to the property [c) See 2 Inst. 322 ; 2 Saund. by subject to the charge. (44 & 45 Wms. 69 c, n. (3) ; Reeves's Hist. Vict. c. 41, ss. 19—24.) Eng. Law, vol. ii. pp. 161, 393. (2) 36 & 37 Viet. o. 66, s. 25 (5). [d) Vide sup. p. 304 CHAP. VI. OF ESTATES UPON CONDITION. 309 [ties or manufactures of the kingdom, formerly held by Act of Parliament in certain trading towns : from whence this security was called a statute staple. They are both securi- ties for debts acknowledged to be due, and were originally permitted only among traders for the benefit of commerce ; and, when entered into, not only the body of the debtor might be imprisoned, and his goods seized in satisfaction of the debt, but also his lands might be taken by the creditor, till out of the rents and profits of them the debt was satisfied; and, during such time as the creditor so held the lands, he was termed tenant by statute merchant or statute staple.] The benefit of this mercantile transac- tion was afterwards, by -virtue of the statute 23 Hen. YIII. 0. 6, extended to all the king's subjects, whether traders or not (e). And such recognizance in the nature of a statute staple was directed by the Act to be acknowledged before either of the chief justices, or (out of term) before their substitutes, the mayor of the staple at Westminster and the recorder of London ; and to be enrolled and certified into chancery (/). Thirdly, the estate by elegit : — [What an elegit is, and why it is so called, will be fully explained in a subsequent part of this work (g). At present it is sufficient to men- tion that it is the name of a writ, founded on the statute of Westminster the second (h), by which, after judgment in an action has been obtained, the sheriff gives the judg- ment creditor possession of the lands and tenements of the opposite party, to be occupied and enjoyed until the (e) This Act was amended by to incur, in certain cases, the same 8 Geo. 1, 0. 25. liability as «/they were bound in a (/) It has been remarked (see statute staple. Burt. Compend. 298) that the law {ff) Vide post, bk. v. c. x. relative to statute staple is still so (A) 13 Edw. 1, c. 18. See 2 far of practical importance, that by Saund. by Wms. 68 a, n. (1) ; Hist. 33 Hen. 8, c. 39, and 13 Eliz. u. 4 Eng. Law, by Reeves, vol. ii. p. (see Reg. -o. EUis, 4 Exoh. 652), 187. persons indebted to the crown are 310 BK. II. OF EIGHTS OF PKOPERTY. PT. I. THINGS HEAL. [money due on such judgment is fully paid ; and during the time the judgment creditor so holds them, he is called tenant hy ekgit, his estate being a mere conditional estate, defeasible as soon as the judgment debt is levied (i).] And by this writ, at one period, only one-half of the lands and tenements of the judgment debtor could be seized in execution, the statute of Westminster the second (a.p. 1285) not extending (just as voluntary alienation did not then extend {k)) to the whole of his lands, but permitting them to be only partially affected by the process of law for his ordinary debts (/) ; though, on the other hand, by the statute Be mercatoribus, passed in the same year, the whok of a man's lands were made liable on a statute merchant, for a debt contracted in trade. So much more readily did the feudal restraint on alienation yield to considerations of a commercial kind, than to any others. And such continued to be the state of the law as to the writ of elegit, until the modem statute 1 & 2 Vict, c. 110, for the first time enabled the judgment creditor to seize by that writ the whole of the judgment debtor's lands and tenements {m). [And regarding all these estates by statute merchant, statute staple, and elegit, and also (since the Convey- ancing Act, 1881) regarding even the mortgagee's estate, though the tenants are said to hold ut Uberum tenementum (i) Dighton t'. Greenvil, 2 Vent. Vict. i;. 112, s. 2, provide, in effect, 327 ; Price v. Vamey, 3 Bam. & that decrees and orders and rules Cress. 733. of court (including such as are (*) Wright's Ten. 154. Black- made in equity, lunacy, or bank- stone says, that ' ' before the statute ruptcy) , ' ' whereby any money shaU " of Quia emptores, 18 Edw. 1, c. 1, be payable to any person," shall " it is generally thought that the hare the effect oi judgments in ac- " proprietor of lands was enabled tions; and the persona to whom " to aUenate no more than a moiety money is thus payable are conse- " of them."— 2 Bl. Com. p. 161. quently, as judgment creditors, en- (?) 13 Edw. 1, 0. 18. titled to become tenants by elegit. [m) 1 & 2 Viet. o. 110, b. 1 1. The See further as to an elegit, post, same statute (s. 18), and 27 & 28 bk. v. u. x. CHAP. VI, — OF ESTATES UPON CONDITION. 311 [until their claims are satisfied, yet are their estates but chattels, and pass to their personal representatives {n) : which is probably owing to this: that, being a security and remedy provided for personal debts due to the de- ceased, to which debts his personal representative is entitled, the law has therefore thus directed their suc- cession ; as judging it reasonable from a principle of natural equity, that the security and remedy should be vested in those to whom the debts, if recovered, would belong. And, upon the same priaciple, if lands be de- vised to a man's executor, untH out of their profits the debts due from the testator be discharged, this , interest in the lands is only a chattel interest, and on the death of such executor shall go to his executors (o) : because they, being liable to pay the original testator's debts, so far as his assets will extend, are in reason entitled to possess that fund out of which he has directed them to be paid.] (») Co. Litt. 42 a, 43 b ; 2 Inst. (o) Co. Idtt. 42 a. 322. 312 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. CHAPTEE VII. OF ESTATES IN POSSESSION, KKVERSION, AND REMAINDER. Hitherto we have considered estates solely with regard to their duration, or the quantity of interest which the owners may have therein. We are now to consider them with regard to the time of their enjoyment (a) ; and when contemplated in this light, they are either estates in pos- session or estates in expectancy. Where a man is entitled immediately to the possession, by virtue of any of the estates or interests which we have been considering, his estate is said to be in possession (b) ; when entitled to it, not immediately, but at some future time, his estate is said to be in expectancy. Of expectancies, again, there are, at the common law, two sorts ; one called a reversion ; the other a remainder. I. Of estates in possession not much remains to be said. What has heretofore been stated has been stated of these estates, for in laying down general rules we assume that the estates are estates in possession. Nevertheless, it is material further to remark, that a man may have an estate in possession in land,. and may yet not be in actual (a) Vide sup. p. 231. " subsequent oiroumstanoe or con- (i) Blaokstone (vol. ii. p. 163) " tingency." So it is said in 2 defines estates in possession as Cruise, Dig. 258, " that estates in " those -whereby a present interest " possession are those where the " passes to and resides in the " tenant is entitled to the actual " tenant, not depending on any " pernancy of the profits." CH. VII. OF ESTATES IN POSSESSION, REVERSION, ETC, 313 possession of the land ; for he may he disseised (c), that is, put out of the actual seisin, supposing his estate to he freehold; or may he deprived or ousted of the actual possession (whatever may he the nature of his estate), in some one of the wrongful ways which will hereafter he desorihed when we come to treat of the various modes of civil injury (d) ; hut, however ousted, he will stiQ retain an estate in possession, according to the sense in which that term is ahove used. In such a case the true owner is also said to have the right of possession (e) ; as opposed to the mere naked possession of the wrongdoer : and this right of possession involves also the right of entry (/), that is, the right of entering upon and taking possession of the land withheld, if he can do so without hreach of the peace, or the right to hring the action of ejectment ; while, on the other hand, the naked possession of the wrongdoer is capahle — hy length of time and the neglect of the true owner to assert his right — of ripening, after a certain period (fixed, in general, at twelve years), into a lawful and indefeasible estate {g). II. An estate in reversion {h) is where any estate is derived, by grant or otherwise, out of a larger one, leaving in the original owner an ulterior estate immediately expectant on that which is so derived ; the derivative estate is called the particular estate (as being only a small part or particula of the original one), and the ulterior interest is called the reversion (i). Thus, when the owner of the fee creates an ((■) As to disseisin, see Co. Litt. recovered, were, withi some very 181a; Taylor v. Horde, 1 Burr. 60 ; few exceptions, abolished by 3 & 4 Williams v. Thomas, 12 East, 141 ; Will. 4, i;. 27, s. 36 (vide post, Doe V. Perkins, 3 Mau. & Sel. 275. bk. v. o. vm.). {d) Vide post, bk. v. c. vm. {ff) See 37 & 38 Vict. o. 57. (e) Bl. Com. vol. ii. p. 195 ; ib. (A) Lord Coke treats of remain- vol. iii. p. 177 ; Grilh. Ten. 21. ders before reversions, and is fol- (/) The antient forms of pro- lowed ia this by Blaokstone. oeedmgoaHei real actions, hjwiiiob. (i) Lord Coke says, "A rever- land might also formerly have been " sion is where the residue of the 314 BK. 11. OF RIGHTS OF rROPEETY. — FT. I. THINGS REAL. estate in tail, for life, or for years, the residue of the fee simple which is Txndisposed of is the reversion expectant upon the particular estate in tail, for life, or for years, so created, and continues vested in him who was before the owner of the whole, ipso facto and without any special reservation for the purpose (J) ; for where a smaller estate is merely taken out of a larger, the residue remains, of course, in the original proprietor. This reversion is an actual interest or estate {k) ; but it is an estate in ex- pectancy only, and not in possession, because the rever- sioner has no right to the possession until the particular estate is determined. The tenant of a particular estate in tail, for life, or for years, holds, of the reversioner, by fealty and by such ser- vices as are reserved between them (/). Hence the usual incidents to reversions are said to be fealty and rent {m) ; rent being the usual description of service. [When no rent is reserved, fealty is reserved as an inseparable incident, and where rent also is reserved, it is also incident, though not inseparably so, to the reversion. The rent may be granted away, reserving the reversion; and, by special words, the reversion may be granted away, re- serving the rent ; but by a general grant of the reversion, the rent will pass with it as incident thereto, though by the grant of the rent generally, the reversion wiU not pass. The incident passes by the grant of the principal, " estate always doth continue in " out by him." " him that made the particular [j) Litt. a. 19. "estate, or where the particular {k) Wisoot's case, 2 Eep. 61 ; see " estate is derived out of his estate, Doe i). Gataore, 5 Bing. N. C. " as in the case tenant in fee simple 619. " maketh gift in tail, &o." (Co. (I) Vide sup. pp. 236, 248. Litt. 22 b.) A reversion is defined {m) "An incident," says Lord by Blackstone (vol. ii. p. 176) as Coke, " is a thing appertaining to "the residue of an estate left in "or following another, as more " the grantor, to commence in pos- " worthy or principal." — Co. Litt. '-' session after the determination 161 a. " of some particular estate granted CH. VII. — OF ESTATES IN POSSESSION, REVERSION, ETC. 315 [but not e converso ; for the maxim of law is accessorium non ducit sed sequitur suum principale (w).] Where a freehold reversion (that is, a reversion in fee, in tail, or for life) is expectant on a particular estate of freehold, the reversioner is said to be " seised of the reversion as of fee " (or, if his estate be for Hfe, " as of freehold") : and not to be "seised of the land in his demesne as of fee " (or " as of freehold "), as in the case of an estate in possession. But if a freehold reversion be ex- pectant on a particular estate for years, it is in that case correct to describe the reversioner as " seised of the land in his demesne as of fee ; " for his estate is considered (owing to the small regard paid to chattel interests) as amounting for many purposes to a freehold estate in possession, and the possession of the termor constitutes the seisin of the freeholder (o) ; and of a reversion expectant on a particular estate of freehold, no dower or curtesy can be claimed ; but it is otherwise of a reversion expectant on a term of years (j>). By the principles of the common law, if the tenant of the particular estate for life or years made a conveyance by feoffment, for an estate not warranted by the nature of his interest ; as where tenant for life made a feoffment in fee, or tenant for years a feoffment for life ; it de- stroyed the particular estate, by converting it into a new and wrongful one ; and by consequence it displaced or divested the reversion in expectancy thereon. And, on the other hand, it also operated as a forfeiture to the person in reversion, and gave him an immediate right to enter and take possession, in defeasance of the wrongful estate so created (g). The law, however, on these points (») Co. Litt. 151 b, 162 a. Com. 127 ; Stoughton v. Leigh, 1 (o) Wrotesley li. Adams, Plowd. Taunt. 410; vide sup. pp. 266, 191 ; Butler, Co. Litt. 330 b, n. (1) ; 270. Co. Litt. 17 a ; 16 East, 350 ; Doe (?) Litt. s.416; Co. Litt.251 a,b; V. Finch, 4 B. & Add. 305. Chudleigh's case, 1 Eep. 135 b ; {p) Co. Litt. 29 b, 32 a; 2 Bl. Archer's case, ibid. 66 b ; 2 Bl, 316 KK. II. OF EIGHTS OF PROPERTY. PT. I. THINGS REAL. is now to be understood as subject to the effect of the statute, 8 & 9 Yict. c. 106, hy which it is provided (sect. 4), that " a feoffment made after 1st October, 1845, shall not have any tortious operation" (r). [Another doctrine, connected with the law of estates in reversion, is that of " merger." It is a general principle of law, that where a greater estate and a less estate coincide in one and the same person, without any inter- mediate estate (s), the less estate is immediately anni- hilated or merged, that is sunk or drowned, in the greater. Thus, if there be a tenant for years, and the reversion in fee simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more (t) . But in order to this merger of estates, the estates must come to one and the same person, in one and the same right ; for i£ the freehold be in his own right, and he has a term in right of another {en autre droit), there is no merger (je). Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, Com. 153, 274 ; Doe v. Howell, 10 (t) By 8 & 9 Vict. c. 106, s. 9, Bam. & Cress. 191 ; and see Co. ■when the reversion expectant on a Litt. 356 a, 251 b ; Doe v. Gataore, lease (made either before or after 5 Bing. N. C. 609. the passing of that Act), shall, (»•) The Act 7 & 8 Vict. c. 76, after the 1st October, 1845, be sur- which was repealed by the Act rendered or merge, "the estate 8 & 9 Vict. u. 106, was in force " which shall for the time being from the 31st December, 1844, to " confer, as against the tenant the Ist October, 1845, and oonse- " under the same lease, the next quently still affleots titles acquired " vested right to the same tene- by deed during that period ; but it " meuts or hereditaments, shall,— was an Act of which Mr. Justice " to the extent and for the pur- Maule (in the case of Stratton r. " pose of preserving such inoi- Pettit, 16 C. B. 432) remarked, " dents to, and obligations on, " that it was incongruous and im- " the same reversion, as, but for "possible of operation; and its " the surrender or merger thereof , "absurdities were so great that " would have subsisted — be deemed " the framers themselves had no " the reversion expectant on the " very distinct notion of its mean- " same lease." " ing." (m) See Jones v. Davies, 5 H. & (s) Duncombr. Dunoomb, 3Lev. N. 766. 437. CH. VII. OF ESTATES IN POSSESSION, EEVEKSION, ETC. 317 [whereby the term of years vests also in him, the term shall not merge : for he hath the fee in his own right, and the term of years in the right of the testator, suhjeot to his debts and legacies. So, also, if he who hath the reversion in fee marries the tenant for years, there is no merger : for he hath the inheritance in his own right, the lease in the right of his wife (©). Moreover, an estate tail' is an excep- tion to the general law of merger ; for a man may have, in his own right, both an estate tail and a reversion in fee; and the estate tail, though a less estate, shall not merge in the fee {x) ; for estates tail are protected and preserved from merger by the operation and construction, though not by the express words, of the statute De donis ; which operation and construction have probably arisen upon this consideration, that in the common cases of merger of estates for life or years, by uniting with the mheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion ; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate (y) ; but in the case of an estate tail, the tenant for a long time had no power at all over it, so as to bar or to destroy it, and to this day cannot bar or destroy it except in a special method : it would therefore have been strangely improvident to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate taU. and defeat the inheritance of his issue; and hence it has become a maxim that a tenancy in tail, which cannot be surrendered, cannot be merged in the fee (s).] (») Braoebridge v. Cook, Plowd. {x) Wiscot's case, 2 Rep. 61 a ; 418 ; Piatt v. Sleap, Cro. Jac. 275 ; Lord Stafford's case, 8 Rep. 74 b. Co. Litt. 338 b. Generally, as to («/) Hugbes v. Robotbam, Cro. cases in -which a merger -will be Eliz. 302. prevented, see Feame's Cont. Rem. (z) Where a tenant in tail, how- 341, 9th edit. ; and 36 & 37 Vict. ever, acquired a base fee, and bad 66 s. 25. ^'^° *^^ immediate reversion, the 318 BK. II. OF EIGHTS OF FROPEBTY. — FT. I. THINGS REAL. Merger, it is to be observed, is not confined to cases where one of the coinciding estates is greater than the other in point of quantity of interest; for a term of years will merge in the immediate reversion, though that he a chattel interest also ; and even where the term of years in rever- sion is of shorter duration than the term on which it is expectant, the merger will equally take place {a). So a fee simple conditional wiU merge in the possibility of reverter (J). III. An estate in remainder arises where after the creation of one estate out of a larger one an ulterior estate immediately expectant on that prior estate is at the same time and by the same conveyance also created out of the same larger estate ; and in the case of such successive estates so created, the prior one is called the particular estate, and the ulterior one the remainder (c). [As if a man seised in fee simple granteth lands to A. for twenty years, and, after the determination of the said term, then to B. and his heirs for ever ; here A. is tenant for years, remainder to B. in fee, — an estate for years being created or carved out of the fee, and given to A., and the residue or remainder being given to B. ; both which interests are in fact only one estate, the term of years and the re- mainder, when added together, being equal only to one estate in fee {d), the prior estate being in possession, the ulterior in expectancy. So, if land be granted to A. for base fee would formerly merge in as " a remnant of an estate in lands the reversion; and by 3 & 4 WiU. "or tenements, expectant upon a 4, 0. 74, s. 39, a base fee mUnow " particular estate created together be enlarged, under such oircum- "-with the same at one time," stances, into a fee simple absolute. (Co. Litt. 143 a): Blaokstone, as (a) See Bao. Abr. Leases, &o. "an estate limited to take effect (S.) 2 ; 3 Prest. CouT. 182 ; Doe D. "and be enjoyed after another Walker, 5 Bam. & Cress. 111. "estate is determined." (3 Bl. (i) Simpson v. Simpson, 4 Bin-g. Com. 164.) N. 0. 333. id) Co. Litt. 143 a; Feame, by (c) I/Ord Coke defines a remainder Butler, 308, 9th ed. CH. ^'TI. OF ESTATES IN POSSESSION, REVERSION, ETC. 319 [twenty years, and after the determination of the said term, to B. for life, and after the determination of B.'s estate for life, to 0. and his heirs for ever : this makes A. tenant for years, with remainder to B. for Ufe, remainder over to 0. in fee. Now here the estate of inheritance undergoes a division into three portions; there is first A.'s estate for years carved out of it; and after that B.'s estate for life ; and then the whole that remains is limited to C. and his heirs ; and yet here also the first estate, and the two remainders are one estate only, being nothing but parts or portions of one entire inheritance; and if there were a hundred remainders, it would still be the same, for aU the parts are equal, and no more than equal, to the whole. And therefore, no remainder can be limited after the grant of an estate in fee simple (e) ; because he that is tenant in fee hath in him the whole of the estate.] But until the whole fee simple is granted away, any quantity of interest may be carved out of it, expectant on the determination of some preceding interest. Therefore, a remainder, like an estate in possession, may be either in fee, in tail, for life, or years. From what has been premised, it appears that a rever- sion and a remainder are both estates in expectancy, but differ in this respect, that the former remains in the grantor, by act or construction of law, as part of his former estate, but a remainder is an estate newly created by the act of the grantor. And here it is very material to remark, that it is only by way of remainder that, by the old common law, a man can create a new freehold estate in expectancy, in a corporeal hereditament ; for by that law, a freehold in hereditaments corporeal cannot be created to commence in futuro (/) — that is, without the interposition of a particular estate on which it shall depend and be expectant. Thus if A., seised in fee of lands, («) Colthirst V. BejuaHn, Plowd. (/) Barwiok's case, 5 Eep. 94 b; ?9 ; Gardner v. Sheldon, Vaugh. 2 BI. Com. 165. 269. 320 BK. II. OF EIGHTS OF PROPERTY. PT. I. THINGS REAL. convey them to B. to hold to him and his heirs, after the end of the three years next ensuing, in fee simple for ever, that is, by the common law, a void conveyance ; and the reason of the rule is this, that no freehold can be created at common law, in a corporeal hereditament, without livery of seisin ih), a ceremony in its nature incompatible with any grant of the freehold in futuro ; for livery imports a delivery of possession, and consequently supposes that a right to the immediate possession, and not merely to a future estate, is conveyed by the feoffor. And as it is the necessity for this livery which constitutes the reason of the rule, so the rule itself extends not to mere chattel interests («') ; and accordingly, chattel interests are capable (even at common law) of being made to commence in futuro ; e.g., a lease for seven years from next Michaelmas would be good. But when a particular estate is first created, a freehold in remainder can be readily limited thereon, for the livery of seisin is made to the particular tenant, and (when so made) enures also to the remainder- man, since his estate and that of the particular tenant are one and the same estate in law. [Thus a man may convey to A. in tail, remainder to B. in fee, and the same livery which conveys the estate tail to A. will also pass the re- mainder expectant thereon to B. The whole estate passes at once from the grantor to the grantees, and the re- mainder-man is seised of his remainder, at the same time that the particular tenant is seised of his estate tail (A). J And the case is the same where the particular estate is for years only; e.g., where one leases to A. for three years, with remainder to B. in fee, and makes livery to A. Here (A) Videsup. p. 232. The reason other rule of the common la-w, here assigned, for the rule that a according to which the freehold freehold cannot commence in futuro, must never be in abeyance ; as to is that usually given in the books. -which see the argument of Mr. See Co. Litt. 217 a ; Plowd. 156 ; Justice Blaokstone in the case of Barwick's case, 5 Eep. 94 b ; 2 Bl. Perrin v. Blake, Harg. LawTraots. Com. 165; Bac. Ab. Remainder (0) . («) 5 Eep. 94 ; Bl. Com.ubi sup. By others, it has been based on that (Je) Co. Litt. 143 a. CH. VII. 01' ESTATES IN POSSESSION, EEVEUSION, ETC. 321 the livery indeed is not necessary for the lessee himself, because he has but a chattel : but it enures to the benefit of him in remainder, and the freehold is immediately created thereby and vested in B. during the continuance of A.'s term of years (/). With respect to the creation of a remainder, the follow- ing rules may be laid down, which, though they amount to no more than an exposition of the different properties expressed in the very definition of this kind of estate, may yet serve to convey a more precise idea of its character : — 1. Thsre must he some particular estate precedent to the estate in remainder (m). The necessity of this is suffi- ciently indicated by the term itself; for remainder is a relative expression, and implies that some part of the thing is previously disposed of. [And as no remainder can be created without such a precedent partictdar estate, therefore the particular estate is said to support the re- mainder. But a lease at will is not held to be such a particular estate as will support a remainder (w) ; for an estate at wiU is of a nature so slender and precarious that it is not to be looked upon as a portion of the inheritance at all.] 2. A remainder must commence or pass out of the grantor, at the time of the creation of the particular estate (o). As where it is proposed to give to A. an estate for life, with remainder to B. in fee : here B.'s remainder in fee must pass from the grantor, at the same time with A.'s life estate in possession ; for if the estate, ulterior to that for life, continues in the grantor, it is a reversion, and no remainder ; and B. can take only by subsequent grant of this reversion. 3. Eemainders must be limited to take effect in possession immediately upon the determination of the particular estate, {T) Co. Litt. 49 a, 49 b. 75 a. \m) Fearne, by Butler, p. 390, (o) 2 Bl. Com. 167 ; Plowd. 25 ; gth edit. Litt. ». 721 ; Bao. Ab. Kemain- («) Lord Stafford's case, 8 Hep. der (C). VOL. I. Y 322 BK. II. OF BIGHTS OF PROPERTY. PT. I. THINGS REAL. and neither later nor earlier (p). Thus if A. be tenant for life, remainder to B. in tail, here B.'s remainder is to take effect in possession immediately upon A.'s death ; or if A. and B. be tenants for their joint lives, remainder to the survivor in fee, here, on the death of either, the remainder comes into possession instantly ; and therefore both these are good remainders. But if the future estate is to take effect in possession at any period later than the deter- • mination of the first, as if an estate be granted to A. during his hfe, and upon his death and one day after to B. and his heirs, this is no remainder (q) . So the future estate will be no remainder if it is not to await the proper and regular determination of the first, but to take effect in defeasance or abridgment of it ; as ■where an estate is limited to A. for life, but if B. pays him a certain sum of money, then immediately to B. and his heirs (?•). But though a remainder cannot be limited to take effect in possession until the particular estate regularly determines, yet eventually it may do so before that period. Thus if the particular estate determine by act of law (as by forfeiture) before its natural expiration, the remainder limited upon it wiU. come into immediate possession, and is not required to wait until the expiration of the period originally assigned. A remainder, when created, is subject to many of the rules already stated with regard to reversions. Thus, in the ease of a freehold remainder, the remainder-man is- seised as of fee (or as of freehold), but not "in his demesne ;" unless the particular estate be a term of years, when seisin in demesne may be properly alleged. So curtesy or dower may be claimed of a remainder in fee, if expectant on an estate for years, but not if expectant [p) 1 Sand. Uses, 148, 2nd edit. ; {q) Colthirst v. Bejushin, Plowd. Chudleigli's case, 1 Eep. 135 a; 25 ; Feame, by Butler, 307, 9tli ed. Boraston's case, 3 Eep. 21 a; Co. (r) 1 Sand. Uses, 143, 149 ; Sugd. Litt. 298 a. Gilb. 152, n. ; Feame, by Butler, p. 261, 9th ed. CH. VII, OF ESTATES IN POSSESSION, REVERSION, ETC. 323 on a freehold. Thus, too, the wrongful feoffment of the tenant for life or years, where the estate immediately expectant is not by way of reversion but remainder, had, at common law, the effect of displacing the remainder, and occasioning a forfeiture to the remainder-man, as in the other case to the reversioner is). Moreover, the union of an estate in remainder with the particular estate on which it is expectant, will produce a merger in the same cases (in general) and on the same principles, as if it were an estate in reversion it). Hitherto our remarks have related to remainders gene- rally considered ; but it is now time to turn our attention to the distinction which exists between remainders, as being either vested or contingent. 'Vested remainders, or remainders executed, are where the estate is invariably fixed to remain to a determinate person after the par- ticular estate is spent. As if A. be tenant for twenty years, remainder to B. in fee ; here B.'s is a vested re- mainder. Contingent remainders (sometiines but very infrequently called also executory remainders) are those limited either to an uncertain person, or upon an imcer- tain event (u) : that is, to a person not in esse or not ascertained («) ; or upon an event which may not happen at all, or not happen until after the particular estate is determined (y). The first kind, or those limited to an («) But it is otherwise since the " estate may chance to be deter- passing of the statute 8 & 9 Vict. "mined, and the remainder never 0. 106 (s. 4), as to which, vide sup. " take effect." (And see Roberts v. p. 316. Roberts, 2 Bulst. 130.) Mr.Peame {t) As to the merger of a term enumerates four different Mnds of years in another term of years, of contingent remainders (Fearne, •where the second is in remainder, by Butler, p. 5, 9th ed.) ; but all see Bac. Leases, &c. (S) 2. the four may be reduced to two, as (m) Blaokstone says (vol. ii. p. in the text. 169) that they are where the re- (.2:) Feame, ubi sup. p. 9. See mainder is " limited to take effect Doe d. BiUs v. Hopkinson, 5 Q. B. " either to a dubious and uncertain 228. "person, or on a dubious and uncer- (y) Feame, ubi sup. p. 8. "tain event; so that the particular y2 324 13K. ir. OF RIGHTS OF PROPERTY. PT. I. THINGS EEAi. unoertain person, may be exemplified by a limitation to A. for life, remainder to the first son of B., wbo has then no son born (s) ; for here the person is not in esse : or to A. and B. for their joint lives, remainder to the survivor in fee ; for here the person is not ascertained (a). The second kind, or those limited on an uncertain event, may he exemplified by a lease to A. for life, remainder to B. for life, and if B. should die before A., then the remainder to 0. for life (J) ; for B.'s dying before A. is an event that may never happen, and therefore the remainder to C. is contingent : or, as another instance, by a lease to A. for life, and after the death of B. the lands to remain to another in fee (c) ; for though it is certain that B. must die, his death may not happen until after A.'s life estate shall be determined. On the other hand, if there be no uncertainty either in the person or in the event, the mere uncertainty whether the remainder will ever take effect in possession, is not sufficient to give it the character of a contingent remainder (d). Thus in the case of a lease to A. for life, remainder to B. for life, the limitation of the remainder is to a person in being, and ascertained, and the event on which it is limited is certain, viz. the determination of A.'s life estate : it is therefore a vested, and not a contingent, remainder (e) : and yet it may possibly never take effect in possession ; because B. may die before A. So, also, an estate limited to an existing and ascertained person upon the determination of an estate tail, is a vested and not a contingent remainder; for it is considered in law, that the estate tail, being a particular estate, is sure to come to an end, and that the failure of issue is con- sequently not a contingency, but a certain event (/). The case falls, therefore, within the definition of a vested remainder; the estate limited to B. being one that is («) Peai-ne, by Butler, p. 9, 9th ed. {d) lb. p. 216. (a) Ibid. («) Ibid. ; see Doe v. Soudamore, (J) lb. p. 7. 2 Bos. & Pul. 296. (c) lb. p. 8. (/) Vide sup. pp. 243, 244. CH. VII. — OF ESTATES IN POSSESSION, REVERSION, ETC. 325 invariably fixed to remain to a determinate person after the particular estate is spent. It was laid down in a former- place, that no remainder can be limited after a fee simple () ; though in some points of view the law considers them as together making only one heir (q). Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &o. (r).J An estate in coparcenary resembles, in some respects, that in joint-tenancy, there being the same unity of title and similarity of interest. But in the following respects they materially differ : — 1. Parceners always claim by descent, whereas joint-tenants always claim by the act of parties. Therefore, if two sisters purchase lands, to hold to them and their heirs, they are not parceners, but joint- tenants (s) ; and hence it likewise follows, that no lands can be held in coparcenary but estates of inheritance, which are of a descendible nature ; whereas not only estates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no entirety of interest among coparceners. They are properly entitled each to a distinct share (<), and of course there is no jus accrescendi or sur- vivorship between them, for each part descends severally to their respective heirs, though the undivided tenancy continues. And as long as the lands continue in a course of descent, and are held pro indiviso, so long are the tenants therein, whether male or female, called parceners. 3. Though the interest of coparceners accrue by the samfe title, yet they may accrue at different periods. For if a man hath two daughters, to whom his estate descends in co- (i>) Litt: ss. 241, 242. (»•) Litt. s. 265. \q) Co. Litt. 163 b, 164 a ; Vin. («) lb. s. 264. Ab. Parceners (Q) ; and see E. v. {<) Co. Litt. 163, 164. BonsaU, 3 B. & 0. 173. CH.VIII. — ESTATES IN SEVERALTY, JOINT-TENANCY, ETC. 345 parcenary, and one dies before the other, the surviving daughter and the heir of the other, or when both are dead, their two heirs, are still parceners (m) ; the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title. 4. And lastly, though persons related in equal degree to the ancestor are entitled in equal shares, yet as their heirs wiU represent them, or stand in their place, there is no necessary equality of interest among parceners. Thus, if a man die leaving four grand-daughters, three of them the issue of an elder daughter, and one of a younger, all four shall inherit; but the daughter of the younger shall take as much as all the other three {x). [With respect to ap estate in coparcenary, the following rule deserves notice : that if one of two or more sisters, to whom lands descended in coparcenary, held an estate which had been given to her in frankmarriage {y) by the same ancestor from whom the lands thus descended to her, she could not take her share of them without first adding to them her estate in frankmarriage, in order that the whole property might be equally divided between all the sisters (s). This mode of division was known in the law of the Lombards, which directs the woman so preferred in marriage and claiming her share of the inheritance, " mittere in confusum cum sororibus, quantum pater aut frater ei dederit, quando ambulaverit ad maritum" {a). With us it is denominated bringing those lands into hotchpot {b) ; which term shall be explained in the very words of Littleton (c) : " It seemeth that this word, hotch- " pot, is in English a pudding; for in a pudding is not " commonly put one thing alone, but one thing with other "things together." By this housewifely metaphor our ancestors meant to inform us that the lands, both those (m) Co. Litt. 164, 174. bs. 266—273. (a:) lb. 164 t. («) L. 2, t. 14, o. 15. (y) Vide sup. p. 245, n. ifi) Britton, o. 72. («) Braoton, 1. 2, o. 34 ; Litt. (c) Litt. s. 267. 346 BK. II. OF RIGHTS OF PROPBKTY. PT. I. THINGS REAL. [given in frankmarriage and those descending in fee simple, should be mixed and blended together, and then divided in equal portions among all the daughters {d). But this was left to the choice of the donee in frankmarriage ; and if she did not choose to put her lands into hotchpot she was presumed to be sufficiently provided for, and the rest of the inheritance was divided among her sisters. The law of hotchpot took place, then, only when the other lands descending from the ancestor were fee simple ; for if they descended in tail, the donee in frankmarriage was entitled to her share, without bringing her lands so given into hotchpot (e). And the reason is, because lands descending in fee simple are distributed by the policy of the law, for the maintenance of all the daughters ; and if one has a sufficient provision out of the same inheritance equal to the rest, it is not reasonable that she should have more ; but lands descending in tail are not distributed by the operation of the law, but by the designation of the donor, «. e., performam doni; it matters not, therefore, how unequal this distribution may be. Also, no lands but such as are given in frankmarriage shall be brought into hotchpot; ■for no others are looked upon in law as given for the advancement of the woman, or by way of marriage por- tion (/). And, therefore, as gifts in frankmarriage are fallen into disuse, the law of hotchpot would hardly have been worth notice, had not this method of division been revived and copied by the statutes " for the distribution of the personal estates of intestates," which we shall hereafter consider at large {g). The modes of dissolving an estate in coparcenary are as follows :—l. By partition Qi). Parceners are so called, (d) Litt. s. 268. (A) Though the partition dis- (e) lb. s. 274. solves the coparcenary, the par- (/) lb. s. 275. oeners are still i« by (feswwJ; Hoed, {g) As to the Statutes of Diatri- Crosthwaite v. Dixon, 6 Ad. & El. bution, -ride post; bk. n. pt. n. 834. c. vn. CH.VI1I. — ESTATES IN SEVERALTY, JOINT-TENANCY, ETC. 347 [saitli Littleton, because they may be constrained to make " partition" (i) ; and he mentions many methods of making it, four of which are by consent and one by compulsion (k). The first is, where they agree to divide the lands into equal parts in severalty, and that each shall have such a determinate part. The second method is, when they agree to choose some friend to make partition for them, and then the sisters shall choose each of them her part according to seniority of age, or otherwise, as shall be agreed. The privilege of seniority is in this case personal ; for if the eldest sister be dead, her issue shall not choose first, but the next sister. But, if an advowson descend in copax- cenary, and the sisters cannot agree in the presentation, upon the first turn the eldest and her issue, nay, her husband, or her assigns, shall present alone, before the younger, to whom the next turn wiU in that case be- long (l). And the reason given is, that the former privi- lege, of priority in choice upon a division, arises from an act of the parceners, the agreement to make partition; and, therefore, is merely personal : the latter, of presenting to the Kving, arises from the act of the law : and is annexed not only to the person of the eldest, but to her estate also. A third method of partition is, where the eldest divides, and then she shall choose last ; for the rule of law is, cufus est divisio, atterius est electio. The fourth method is, where the sisters agree to cast lots for their shares.] And these are the methods by consent ; with regard to all of which, however, the enactment of 8 & 9 Vict. o. 106, s. 3, which requires that a partition, in order to be effectual, must now be by deed, should be borne in mind {m). Partition by compulsion (the other method mentioned by Littleton) used at the common law to be, where one or more parceners sued out a writ of partition against the others; but that (j) Litt. s. 241. Eep. 22 ; Buller v. Bishop of (A) lb. 88. 243—264. Exeter, I Ves. sen. 340. {I) Co. Litt. 166 b, and see note (»») Vide sup. p. 341. (2) by Harg. ; Walker's case, 3 348 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. writ being now abolished («), partition of an estate beld in coparcenary can at present be compelled only by a decree in equity, as in the case of a joint-tenancy (o). It is, however, to be noticed that there are some things which are in their nature impartible. The mansion-house, for example, and certain hereditaments of an incorporeal kind, shall not be divided ; but the eldest sister, if she pleases, shall have them, and make the others a reasonable satis- faction in other parts of the inheritance ; or if that cannot be, then they shall have the profits of the thing by turns, in the same manner as they take the advowson {p). Besides the method of partition, the estate in coparce- nary may be dissolved, 2, bi/ the alienation of one of the parties, which destroys the unity of title; or, 3, by the ■whole at last descending to and vesting in a single person, which brings it to an estate in severalty {q). IV. A tenancy in common is, where two or more hold the same land, with interests accruing under different titles; or accruing under the same title (other than descent), .but. at different periods ; or conferred by words of limita- tion, importing that the grantees are to take in distinct shares (r). In this tenancy there is not necessarily any unity of title ; for one may hold by descent and the other by pur- chase ; or the one by purchase from A. and the other by purchase from B. ; nor any unity in the time of vesting, for the one's estate may have vested fifty years ago, and the other's but yesterday ; nor any necessary similarity or equality of interest, for one tenant in common may hold . («) Vide sup. p. 341. [p) Co. Litt. 164 b, 165 a. (o) The powers of the court in (j) 2 BI. Com. 191 ; Doe i). Dixon, regard to decreeing a sale instead 5 Ad. & El. 839. of dividing the property, are the (»•) As to tenants in common, see same as in the case of a joint Co. Litt. 188 b — 201 a ; Murray v. tenancy : sup. p. 342, n. (c). Hall, 7 0. B. 441. CH. VIII. ESTATES IN SEVERALTY, JOINT-TENANCY, ETC. 349 in fee-simple, and the other in tail or for life ; one may he entitled to two-thirds, and the other to one-third. Nor is there any entirety of interest, for each is seised or pos- sessed of a distinct (though undivided) share ; from which also it follows that there is no survivorship (s). The union consists only in this, that they hold the same land pro [Tenancy in common may he created hy the destruction of an estate held in joint-tenancy, or of one held in copar- cenary, or hy special limitation in a deed. By destruction is here meant not such a destruction as hrings the joint estate into two or more estates in severalty, hut such as puts an end only to the jointure or coparcenary : as if one of two joint-tenants in fee alienes his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common ; for they now have several titles, the other joint-tenant hy the original grant, the alienee hy the new alienation {t). So, if one joint-tenant gives his part to A. in tail, and the other gives his to B. in tail, the donees in tail are tenants in common, as holding hy different titles and conveyances (m). If one of two parceners alienes, the alienee and the remaining parcener are tenants in common {x) ; heoause they hold hy different titles, — ^the parcener by descent, the alienee hy purchase. So like- wise, if there he a grant to two men, or two women, and the heirs of their bodies, here the grantees shall be joint- tenants of the life estate, but they shall have several in- heritances {y) ; because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten (z) ; and in this, and the like cases, their («) Land, ho-wever, may be given (») lb. s. 295. to two persons in such manner as (x) lb. s. 309. to make them tenants in common (y) Doe v. Green, 1 E. &H. 314; with benefit of survivorship. (Doe vide sup. p. 338. , V. Abey, 1 Mau. & Sel. 428.) W Litt. s. 283. (<) Litt. s. 292. 350 BK. 11. OF RIGHTS OF PKOPERTY. FT. I. THINGS RKAL. [issues shall be tenants in common ; because they must claim by different titles, one as heir of A., and the other as heir of B. ; and those, too, not titles by purchase, but descent. In short, whenever an estate in joint tenancy or coparcenary is dissolved, so that there be no partition made, but the undivided tenancy continues, it is turned into a tenancy in common.] A tenancy in common may also be created by express limitation in a conveyance : but here care must be taken to insert words implying that the grantees are to take distinct, though undivided, shares ; for a grant without such words would give a joint estate. And it is laid down in our books that the common law, in its rules of construc- tion, favoured joint-tenancy rather than tenancy in com- mon (b) ; because the divisible services issuing from land (as, for example, rent,) are not divided, nor the entire services (as fealty) multiplied, by joint-tenancy, — as they must necessarily be upon a tenancy in common. Tet where land was given to two, to be holden the one moiety to one, and the other moiety to the other, this was an estate in common (c) ; and, where one granted to another half his land, the grantor and grantee were also tenants in common {d) ; — ^because, as has been before observed, joint- tenants do not take by distinct halves or moieties (e) ; and by such grants the division of the estate is so plainly expressed, that it is impossible that they should take a joint interest in the whole of the tenements. But, on the other hand, an estate given, in a conveyance infer vivos at common law, "to A. and B. equally to be divided between them, was said to be a joint-tenancy (/), as it implies no more than what the law has annexed to that estate, viz. divisibility {g). Such a limitation, however, in a will or in a conveyance founded on the Statute of Uses, (of (J) Kslier V. Wigg, Salk. 392. (/) 1 Eq. Oas. Abr. 291. («) Litt. s. 298. ijsi) Fisher v. Wigg, 1 P. Wms. \d) lb. 8. 299. 17. (e) Vide sup. p. 338. CH.VIII. — ESTATES IN SEVERALTY, JOINT-TENANCY, ETC. 351 ■wMch we shall have occasion to treat hereafter,) is certainly a tenancy in common (A) ; for if the tendency of the antient law was to favour a joint-tenancy, the leaning in later times — and particularly of equity — has been the other way (»■) ; the right of survivorship being often incon- venient and harsh in its effects. Ajid therefore in wills and the conveyances above referred to — both of which came into use in comparatively modern times, and with regard to which a more liberal construction is in some respects allowed than in the case of common law con- veyances — a tenancy in common will be created by words which at common law would operate as a limitation in joint- tenancy. We may take this opportunity of remarking, that when lands are given to two or more as tenants in common, it frequently happens that a particular estate is limited to each of the grantees in his share, with remainder over to the other or others of them — as if a man give lands to his two children as tenants in common in tail, and direct that upon failure of the issue of one of them his share shall go over to the other in- tail, and vice versd. Such ulterior estates as these are called cross-remainders, be- cause each of the grantees has reciprocally a remainder in the share of the other ; and it is a rule respecting them, that in a deed they can be given only by express Kmita- tion, and shall never be implied {k) ; though it is other- wise with respect to mils, which are here, again, expounded more liberally, with a view to the presumable intent of the donor. Hence in these, cross remainders may be raised not only by actual limitation, but by any expression {h) SeeCo. Litt.byHarg. 190 b, (») See JolifEe v. Bast, 3 Bro. ii. (4) ; 1 Sand. Uses, 126 ; Eat- C. 0. 25 ; Ksher v. Wigg, 1 P. oUfEe's case, 3 Eep. 59 b; 1 Ventr. Wme. 14. 32; Goodtitle v. Stokes, 1 Wils. (A) ISaund.byWms.lSS.n. (6); 3^j_ Cole V. Levingston, 1 Vent. 224 ; Doe V. Wordey, 1 East, 416. 352 BK. II. OF EIGHTS OF PROPERTY. PT. I. THINGS HEAL. from which the design to create them can reasonahly be inferred (/). A tenancy in common may be dissolved, in the first place, by partition; for tenants in common, like joint- tenants, were compellable by the statutes of 31 Hen. YIII. c. 1, and 32 Hen. YIII. c. 32, (though not at common law,) to divide their lands by writ of partition (in) ; and since the abolition of that writ, they may be driven to a partition by means of proceedings in equity (»). They may also ejBEect a partition by mutual agreement without having recourse to the court, though by 8 & 9 Yict. c. 106, s. 3, it is now made essential that such partition shall be hj deed{o). A dissolution of the common tenancy may also be brought about by uniting all the titles and interests in the estate held in common in one tenant, by purchase or otherwise, which brings the whole to one severalty. [1] A learned disqiiisition on the the partition of an estate, whether nature of cross-remainders will he joint or held in common. It may- found in 1 Prest. Est. 94, 115 ; and he noticed here that partitions may- see Co. Liitt. 195 h, n. (1), hy also he effected, in some cases, hy Butler. the orders of the Inolosure Commis- (m) Vide sup. p. 341. sioners, as to whom -ride post, cap. (») Vide sup. p. 342, n. The xxm. provisions mentioned there apply to (o) Vide sup. p. 341. ( 353 ) CHAPTER IX. OP USES AND TRUSTS. The modes of ownership hitherto considered all helong to the division of legal estates, to which our attention was in the first instance to he directed (a) ; it is now time to take notice of those of the equitable kind ; which as compared with estates of the legal kind, are of a posterior and derivative character, and little (if at all) affected by those principles of feudal tenure which have hitherto received our chief consideration. The only example of an equitahle estate to which we have hitherto had occasion to refer, is that which is called the equity of redemption, the estate (that is to say) which resides in the legal owner after he has conveyed away his legal estate by way of mortgage (&). But other equitahle interests of a miscellaneous and somewhat intricate nature remain to he examined; and all of these are embraced under the general appellation of Uses and Trusts. Uses and trusts were in their origin closely united, but not identical (c). A trust was the confidence reposed by one man in another when he invested him with the nominal ownership of property, to be dealt with in some particular manner, or to be held for some particular person or purpose. (a) Vide sup. p. 231. (c) As to tlie manner of the in- (i) Videsup. p. 305. An equity troduotion of uses into our law, of redemption is said to be k title vide Hist. Eng. Law, by Beeves, in equity, and not merely a trust ; vol. ui. p. 364, vol. iv. pp. 340, 1 Sand. Uses, p. 203 ; Plnnket v. 516, 520 ; Co. Litt. by Butler, Penson, 2 Atk. 290. 271 b, n. (1), 290 b, n. (1). VOL. I. A A 354 BK. II. OF BIGHTS OF PEOPEKTY. — PT. I. THINGS HEAL. If the trast was to hold land for the henefit of another person generally and to let him receive the profits, this sort of interest or right in the latter person was called a use or trust to distinguish it from the legal estate in the trustee {d). [The general idea of a use or trust answered more to that of the fidei commissum than to the usus fructus of the civil law (e) ; for the latter was merely the temporary right of using a thing without any dominion over the substance (/) ; but the fidei commissum was the disposal of an inheritance to one in confidence, that he should dispose of it or of the profits, at the will and for the benefit of another {g) ; which right of the latter was originally a jus precarium (h) — that is, dependent on the good con- science of the fiduciary (or trustee), — but by subsequent institution it acquired a diEEerent character («'), and was recognised as a Jus fiduciarium, and had a legal remedy given to it, and a particular magistrate, the prcetor fideicom- missarius, assigned to enforce its observance {k).] This notion of a use was transplanted into England from the civil law, about the close of the reign of Edward the third (l) ; and the people who introduced it were the foreign ecclesiastics, their object being to evade the statutes of mortmain. To explain this, we must remark that the religious houses to which these ecclesiastics belonged, were (d) Blaokstone says tliat "Uses Ld. Oh. Baron Gilbert says, " That " and trusts -were ia their original " a use is the equitahle right to " of a nature very similar, or rather " have the profit of lands, the legal " exactly the same " (vol. ii.p.327). " estate whereof is in the feoffee, Lord Bacon expressly distiBguishes " only to the trust and confidence a use from a " special" or " transi- " reposed in him." — (GUh. Uses, toij" trust. — (Bao.Read.Us.) And ed. by Sugd. 374.) againhesays, Lord Bacon remarks, (c) Gilb. Uses, by Sugd. 3, (n.). " Tor a trust, which is the way to a (/) Fi. 7, 1. 1. " use, it is exceedingly well defined (jt) Inst. 2, t. 23, es. 1, 2. " by a civilian of great under- (A) 1 Cruise, Dig. 394. " standing, — Fides est obligatio eon- (i) Ibid. 395. " soientiee unius ad intmtionem (A) Inst. 2, tit. 23, s. 1. " alierius." — (Bao. Eead. Uses.) {l) 1 Sand. Uses, p. 17. CHAP. IX. OF USES AND TRUSTS. 355 coiyorations (m)-, and as corporations never dieythe lands -whioli belonged to thena were consequently said to be m mortud manu, or in mortntam, because they produced no advantage to the feudal lord by way of escbeat or other- wise (w) : and therefore, by the pohoy of the antient law, corporations were prohibited from the purchase of land, unless a licence in mortmain was obtained for the purpose. This principle was enforced by a variety of statutes, called the statutes of mortmain, which the clergy {soil, the lawyers) of the day were constantly exerting their ingenuity to evade. One of their expedients was to obtain grants of land, not to their religious houses directly, but to some person to hold to the use of such religious houses. A gift of this kind conferred no estate or interest whatever, in contemplation of law, on the corporations themselves ; for the feudal tenure looked no further than to the legal estate which was in the actual and ostensible tenant (o). The use, therefore, declared upon such a gift, being, in the view of the ordinary courts of justice, a non-entity, escaped the operation of the statutes of mortmain ; while the clerical chancellors of those days maintained the doctrine that the use, though it was nothing at law, was binding in conscience, and ought, like ihejideicommissum of the Eomans, to be enforced ; and just as the fideicommiss of the civil law were placed under the protection and jurisdiction of a special magistrate, so the uses or trusts in question were protected by the chancellors in their Court of Chancery ; a tribunal which administered justice upon the principles of equity, as contradistinguished from the common law {p). As regards the religious houses themselves, this evasive contrivance of uses proved to be of little avail, being crushed in its infancy by the statute 15 Eich. II. c. 5, which enacted that, for the future uses should be subject to (m) See as to corporations, [p) Vide sup. p. 82 ; 3 Bl. Com. bk. IV. pt. rn. o. i. 61 ; Hist. Eng. Law, \>j Beeves, (») Co. Litt. 2 b. vol. iii. p. 192. (o) 1 Cruise, Dig. 402. A a2 ^56 BK. II. OF RIGHTS OF PEOPEKTY. ^PT. I. THINGS KEAL. the statutes of mortmaiii, and forfeitable like the lands themselves, unless the licence of the crown was first duly- obtained. Tet the idea, being once introduced, was after- wards applied to purposes not contemplated by its inven- tors, and took root in our system of jurisprudence ; being chiefly recommended by two considerations — first, that uses were, as to the manner of their creation and transfer, and the modifications of interest to which they might be subject, free from the restrictive rules which applied to the old feudal estates ; and secondly, because uses were not, in general, liable, Hke the feudal estates, to forfeiture (q), originally, indeed not even in cases of treason (r). [And owing to this latter exemption in particular, it happened that, during our long wars in IVance and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal, through the desire that men had of securing their estates from forfeiture when each of the contending parties, as they became uppermost, alter- nately attainted the other. And about the reign of Edward the fourth, before whose time Lord Bacon remarks that there are not six cases to be f oimd relating to the doctrine of uses, the courts of equity began to reduce them to some- thing of a regular system (s).] With respect to the kinds of property that might be the subject of a use, we may observe, in general, that all cor- poreal hereditaments, whether in possession, remainder, or reversion, — and many that are incorporeal, for example, rents and advowsons, — ^might be granted to a use ; but not those of which the use was inseparable from the possession, as ways, commons, and the like, or things quce ipso mu eomumuntur it). The use was commonly created as follows : — The owner or actual tenant of the land conveyed it by feoffment, upon (?) Vide sup. p. 201. p. 70; 1 Cruise, Dig. 408; W. (r) See 33 Hen. 8, c. 20. Jones, 127; Ld. Willoughby's case, («) See Bao. Head. Uses. per Doddridge, J., Gilb. Uses, 485, \t) 2 Bl. Com. 330 ; 1 Sand. Uses, 3rd ed. by Sugd. CHAP. IX. OF USES AND TRUSTS. 357 the trust or oonfldence, wMcli often rested upon merely oral agreement (m), that the feoffee should hold the land to the use of some third person, or it might be to the use of the feoffor himself (x) . The effect of this transaction was that the legal seisin or feudal tenancy of the land became severed from the beneficial ownership or use ; the former being vested in iiie trustee, otherwise called the feoffee to uses, the latter, in the person to whose use it was held, and who received the appellation of cestui que use. Of these divided interests, that of the feoffee alone obtained protection in the courts of common law, where he was considered the absolute owner ; but in equity, the cestui que use was regarded as the true proprietor, and might compel the feoffee to uses to account to him for the rents and profits, and to hold the land at his disposal. Uses might also be created by implication, from the nature of the conveyance itself ; e. g., if a man made a feoffment in fee to another, without any consideration, equity presumed that he meant it to the use of himself, and therefore raised an implied use for his benefit (y) ; unless, indeed, the feoffor expressly declared that the feoffment was to the use of another, and then of course nothing was presumed contrary to such express declara- tion (z) ; and uses which thus returned by way of impli- cation to the grantor himself, were called resulting -ases («). Uses might also be raised upon mere contracts, without the formality of any conveyance, and this either expressly or by implication {b) ; for if a man, in consideration of natural affection, covenanted to stand seised of his land to the use of some near relative named, or to the use of a wife, actual or intended, a court of equity, even though no («) 1 Sand. Uses, p. 17. («) Cruise, Dig. ubi sup. ; 2 Bl. (x) 1 Cruise, Dig. 392. Com. 335 ; Doe v. EoHe, 8 Ad. & (y) 1 Sand. Uses, p. 68 ; Vin. El. 650. Uses, F. ; 1 Cruise, Dig. 442, 446, (4) 1 Sand. Uses, p. 118 ; vol. 2, 450; Gilb. 118. P- 50; Cliudleigli's case, 1 Rep. {z) 2 Bl. Com. 330. 139 b. 358 BK. II. OF RIGHTS OF PROPEKtY. — PT. 1. THINGS REAL. valuable consideration passed, would enforce the use, and treat the covenantor thereafter as a mere trustee for the cestui que use (c) ; also, if a man bargained and sold his land to another for a pecuniary consideration, but made no actual feoffment or conveyance, equity would consider the estate as belonging to the party who had paid the money, and would consequently hold the bargainor to be seised of the land from thenceforth to the use of the bar- gainee {d). In general aU persons were of capacity thus to become trustees and to hold to a use (e). There were, however, some exceptions. For persons attainted and aliens were for this (as for all other purposes), disqualified from hold- ing land (/) ; and the doctrine was also established, that neither the king nor queen, on account of their dignity royal, — ^nor any corporation aggregate, on account of its limited capacity, — could be seised to any use but their own(g'). As the person seised to uses was considered at the com- mon law as the absolute owner, his estate was of course subject originally to all the incidents which attached to the legal estate in ordinary cases ; and therefore it devolved to his legal representative at bis death ; and might be aliened or forfeited by his act while living ; or might become subject to execution for his debts, or to escheat for want of an heir ; and his wife also was entitled to dower therein : and where the person so seised was a married woman, her husband surviving her, took an estate by the curtesy therein (h). And the alienee or other person so deriving title from the person seised to uses, was in some eases entitled to hold free from the trust ; for the Court of Chancery gave relief {c) 2 Bl. Com. 304 ; Gilb. Uses, (g) 2 Bl. Com. 330 ; Sand. Uses, 93 ; Sugd. Introd. to Gilb. xlvii. ubi sup. {d) 2 Sand. Uses, p. 50. {h) 1 Sand. Uses, pp. 75, 76 ; («) 1 Sand. Uses, p. 62. 1 Cruise, Dig. 403 ; aUb. Uses, by (/) lb. 65. Sugd. 3rd ed. p. 15 ; 2 Bl. Com. 330. CHAP. IX. — OF USES AND TRUSTS. 359 originally only against the person himself in whom the trust was first reposed, and not against his alienees ; hut [this was altered in the reign of Henry the sixth with respect to the heir of the original trustee («), and afterwards by parity of reason with respect to such alienees as had purchased from the trustee either without consideration, or with express notice of the trust or use {k). But a purchaser for value without notice, or a creditor obtaining execution, might stiU have held the land discharged of the trust or use (/) : and so if the person seised to uses died without an heir, or committed a forfeiture, or married, neither the lord who entered for his escheat or forfeiture, nor the. husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned, — were liable to perform the trust or use ; because they ,were not parties to the original trust, but came in by act of law, and this, although their title, in reason, was no better than that of the heir (w).j The capacity of becoming a cestui que use, was even more extensive than that of becoming a trustee ; for all persons competent to take a conveyance of land might also take an interest by way of use («). The nature of this use, constituting as it did a new sort of ownership wholly distinct from the legal estate, demands particular consideration. It was in its nature so exclusively equitable, that the courts of common law accounted the cestui que use, if out of possession, as a mere stranger to the land ; and if in possession, as a mere tenant at sufEerance. They consequently allowed no effect to his ahenation or demise of the land, if made without the consent of the trustee ; and they held it not liable to forfeiture for his default, nor to execution for his debts (o). In equity, however, the properties or incidents of this kind of owner- (0 Keilw. 42 ; gee the Tear- («) See 1 Sand. Uses, p. 229. book, 22 Edw. 4, c. 6. \n) Ibid. [k) Keilw. 46. (o) 2 Bl. Com. 331; 1 Sand. Uses, \l) Gilb. Uses, by Sugd. ubisnp. pp. 73, 74. 360 BK. II. OF RIGHTS OF PKOPERTY. — PT. I. THINGS KEAL. ship were in a great measure assimilated to those of the legal estate ; while on the other hand they were settled, in certain respects, upon principles more advantageous to the owner ; and these properties or incidents of the use or equitable estate were principally as follows : — 1. Contrary to the course of the common law with respect to freehold estates, uses even for life, or for a greater interest, might be created or assigned by secret deeds between the parties, and might be devised (p) ; for as the legal estate in the soil was not transferred by these transactions, no Ikeri/ of seisin was necessary. 2. Uses might be limited for future freehold estates, not only by way of remainder, but also without any prior particular estate to support them, — estates in possession, reversion, or vested remainder, being palled uses in esse, and these other future estates being called uses in futuro, contingent uses, or uses in possibility (q). 3, [A use was not subject to forfeiture (r) ; and did not escheat upon attainder, or other defect of blood ; for escheats and the like are the consequences of tenure, and uses are not the subjects of tenure. 4. Again, no wife could claim dower, or husband curtesy, of a use (s) ; for no trust was declared for their benefit, in the original grant of the estate. And therefore it became customary, when uses became general, to settle before marriage some joint estate to the use of the husband and wife for their lives, which was the origin of jointures (t). 5. Lastly, a use could not be extended by writ of elegit, or other legal process, for the debts of the cestui que use ; though the legal estate «f as liable to such execution for the debt of the legal tenant.] The state of things above described was, however, at- tended with the following inconveniences, namely: — A (p) Bao. Eead. Uses, 312, 308 ; (r) Vide sup. p. 356. 1 Sand. Uses, p. 72. («) Vernon's case, 4 Eep. 1 b ; 2 (q) Chudleigh's case, 1 Eep. 136b, And. 75. As to dower and curtesy, 211 b ; Levies' case, 10 Eep. 85 a ; vide sup. pp. 264, 267. Bao. Eead. Uses ; Bao. Ab. Uses, («) Vide sup. p. 272. (G). CHAP. IX. — OF USES AND TRUSTS. 361 person in possession of the land as apparent owner, would often, in reality, be a mere cestui que use, and consequently no more than a tenant at sufferance in regard to the legal estate ; or he might, on the other hand, he a mere trustee, the equitable ownership and the right to receive the profits residing in another (u) : and as putting an estate into use was often a secret transaction, with which strangers had no means of becoming acquainted, they were in con- stant danger of being deceived as to the true state of the title («). [We cannot therefore be surprised at Lord Bacon's complaint that this course of proceeding "was " turned to deceive many of their ju^t and reasonable " rights. A man that had cause to sue for land, knew " not against whom to bring his action, or who was the " owner of it. The wife was defrauded of her thirds, the " husband of his curtesy, the lord of his wardship, relief, " heriot, and escheat, the creditor of his extent for- debt, " and the tenant of his lease " (y). These inconveniences were gradually remedied more or less, by a succession of statutes ; which made the lands liable to be extended by the creditors of the cestui que me (z) ; allowed actions for the freehold to be brought against him if in actual per- nancy or enjoyment of the profits («) ; made him liable to actions of waste {b) ; established his conveyances and leases made without the concurrence of the trustee (c) ; and gave the lord the wardship of his heir, with certain other feudal perquisites (d). These statutes aU tended more or less to make the cestui que Mse the real owner of the estate (e) ; and this idea was (m) Bao. Ab. Uses ajad Trusts, 7 ; 11 Hen. 6, o. 3 ; 1 Hen. 7, ij. 1. p. 83. (*) 11 Hen. 6, c. 5. {x) 1 Sand. Uses, pp. 17, 18, 23 ; (c) 1 Eich. 3, o. 1. Preamble of Stat, of Uses. {d) i Hen. 7, o. 17 ; 19 Hen. 7, (y) Bac. Use of the Law, 153. o. 15. {z) See 50 Edw. 3, >;. 6 ; 2 Rich. (e) Seel Rich. 3,o. 5, the primary 2, St. 2, u. 3 ; 19 Hen. 7, o. 15. object of which was to preserve to '(a) I'sich. 2, 0. 9; 4 Hen. i, o. the cesiuis que use such of their 362 BK. II. OF EIGHTS OP PKOPEKTY.— PT. I. THINGS REAL. [carried out (in intention at least) by that celebrated Act passed in tlie reign of Henry the eighth, (27 Hen. VIII. 0. 10,) which is commonly called the Statute of Uses. That statute, after reciting the various inconveniences before mentioned, and many others, enacts that, where any person or persons shall be seised of lands, tenements, or other hereditaments (/) to the use, confidence, or trust of any other person or persons, or body politic, by any means whatsoever, (whether the use, confidence, or trust be in fee simple, fee tail, for life or for years, or otherwise, and whether it be in possession, remainder or reverter,) the estate of the person or persons so seised to uses shall be deemed to be in him or them that have (i. e., are bene- ficially entitled to) the use, trust, or confidence : and he or they shall thenceforth stand and be seised or possessed of the said lands or other hereditaments of and in the like estates as he or they had in the use, trust, or confidence. The effect of this statute, wherever it comes into operation, is therefore to execute the use : that is, it instantaneously, and as " by a kind of parliamentary magic," transmutes the equitable interest of the cestui que use into a legal estate of the same nature, and makes him the actual or legal tenant of the land in lieu of the feoffee to uses, or trustee : whose estate, on the other hand, is, at the same moment, annihilated ((/). The use is also said to be trans- ferred into possession (h) ; that is, the legal estate conferred on the cestui que use is considered as an estate in actual seisin or possession (according to its nature), and such as requires no further ceremony for its completion (»). Thus estates of -which Richard the Third s. 1. (before his aoceasion to the crown) {g) 2 Bl. Com. 333. had been a trustee. And see (A) 1 Saund. 251, n. (2), 234 b, p. 361, supra. n. (4). (/) The -words in the Act are (i) As to the effect upon the sta- " honours, castles, manors, lands, tutory seisin, of the cestui que use " tenements, rents, services, rever- disclaiming the use, see Burdett v. " sions, remainders, or other here- Spilsbury, 6 Man. & Grr. 456, in "ditaments:" 27 Hen. 8, c. 10, notis. CHAP. IX. — OF USES AND TRUSTS. 363 [if a f eofEment be made to A. and his heirs to the use of B. and his heirs, an estate in fee simple in possession is eo instanti vested by force of the statute, and without livery of seisin, in B. ; and A. takes nothing {k) : or if a person seised in fee bargains and sells to A. for a year, for a pecuniary consideration — which we may remember con- stitutes a seisin in the bargainor to the use of A. {I) — A. immediately becomes, by force of the statute and with- out entry, possessed of the land for the term of one year ; the reversion remaining in the bargainor. Here we must observe, however, that to bring the statute into operation, it is essential that there should not only be a use, but a person seised to the use (m) ; for its provisions are confined to the case where " one person shall be seised to the use of any other person." And therefore, where an existing term ^of years is limited to a use, as where a term of 1,000 years is assigned to B. to the use of C, the provisions of the statute do not apply, and the use will consequently remain unexecuted ; for of such estates as these, (being mere chattels,) the termor is not seised, but only possessed («) ; and therefore there is no person "seised to a use" as the statute requires (o). Upon the' same principle of close adherence to the words of the statute, the seisin must be vested in a different person from the cestui que use himself ; for otherwise the case does not arise of one person being seised to the use of another (jp). And the seisin should be for an estate as extensive as the use itself ; for the statute only executes the use so far as there is a corresponding seisin. Thus if {k) A.'b momentary seisin vests DUlon v. I^aine, Poph. 76. THs no estate in him. (James v. Plant, limitation of a term of years to a in error, 4 Ad. & El. 766.) use is a wholly different thing from (I) Vide sup. p. 358. ■ the limitation of the freehold to a [m) 1 Sand. Uses, pp. 97, 113, use for a term of years; for the 133_ latter is executed by the statute. . («) Vide sup. p. 280. (Grilb. Uses, 80.) (o) 1 Sand. Uses, p. 198 ; Gilb. {p) 1 Sand. Uses, p. 96. Uses, 79 ; Bao. Bead. Uses, 335 ; 364 BK. II. OF BIGHTS OF PKOPEBTY. — PT. I. THINGS REAL. [land he conveyed to A. for life to the use of B. in fee; the statute will vest the legal estate in B. only during the life of A. (r). The Statute of Uses has been, in other respects also, very rigorously construed by the judges. Thus : — 1. It was held that no use can be limited upon a use (s). Thus where A., being seised, bargains and sells for a pecuniary consideration to B., the legal estate passes by force of the statute to B., to whom the use is limited by the effect of the bargain and sale ; and where A. bargains and sells to B., to the use of C, the judges held that in this case also the legal estate passes to and remains in B., and that 0. takes nothing; for the statute executes the first use limited to B., but not the second use limited to 0. ; the latter use being a mere nullity, inasmuch " as no use can be engen- dered of a use" {t). Upon the same principle, a feoffment (r) 1 Sand. Uses, p. 113 ; GUb. Uses, 430. Tlie curious doctrine of scintilla juris arose in this way, namely, wliere land is conveyed by feoffment to A. and his heirs, to the use of B. for life, remainder to the use of his unborn sons successively in tail, remainder to the use of C. in fee, it is necessary, in order that the statute should transmute all these uses into legal estates, that there should be a seisin out of which to execute not only the uses in esse to B. and C, but also the uses in futuro to the sons of B. ; where then was the seisin out of which to execute the uses in futuro, or out of which these latter uses were to arise? The actual seisin of the feofEee A. is exhausted be- fore any son of B. is bom, being drawn out of A. to execute the uses in esse to B. and C. ; which uses, taken together, make up the entire inheritance. To meet this difficulty, it was considered that there remained in the feoffee, though not an actual seisin, yet a scintilla juris, or possibility of future seisin, to serve the future uses as they came into esse, — an opinion which, however, was not generally assented to. (See Sugd. Pow. 8th ed. p. 19.) The contro- versy, however, is now disposed of by the Act 23 & 24 Vict. o. 38, s. 7, which has enacted, that such uses shall take effect when and as they arise by force of, and by re- lation to, the original seisin to the uses ; and that no scintilla juris shall be necessary or deemed to re- main for the purpose in the original feoffee to uses. (s) Glib. Uses. 347; 1 Sand. Uses, p. 198 ; 2 Bl. Com. 335. See per curiam, Gilbertson v. Richards, 4 H. & N. 297. («) Tyrrell's case, Dy. 16S. CHAP. IX. — OF USES AND TRUSTS. 365 [to A. to the use of B. in trust for C, -was held to vest the legal estate in B. ; and C. was allowed to take nothing (m) ; and yet, when the first use was executed in B., he might, without much impropriety, have heen considered as seised to the use of C. : which second use the statute might as well have been permitted to execute as it did the first (x) ; hut it was otherwise determined by the judges. 2. It was held also that where the person entrusted has ani/ active dut^ to perform, he cannot be considered as holding to a use, or at least not to such a use as the statute executes {y). Thus, if lands be given to B. and his heirs, with a direction to receive and pay over the profits to C, this shall be no use in C. ; though, on the other hand, if the direction were to permit C. to take the profits, this would be a use executed in G. ; for in the case last supposed, there is no active duty ap- pointed for B. as a trustee to perform (a). The uses which were thus excluded from the operation of the statute, did not fail to obtain protection from the courts of equity ; for it was evident that the person directed to hold to the uses was never intended by the parties to have any beneficial interest, and that his capacity was merely fiduciary (a). Therefore the Court of Chancery («) 2 Bl. Com. 336 ; Gilb. Uses, take the profits, the legal estate is Sugd. Ix. vested in B. during C.'s life, but {xj Bl. Com. ubi sup. on C.'a death it vests in D. who ((/) Bro. FeofE. al Uses, 52. See has the legal estate in virtue of the also 2 Saund. by Wms. 11 a, n. (17) Browne v. Ramsdon, 8 Taunt. 564 Doe -u. Homfray, 6 A. & E. 206 statute. (See Barker v. Greenwood, i Mee. & W. 429 ; Adams v. Adams, 6 Q. B. 860 ; Doe d. Muller v. Doe :). Scott, 4 Bing. 607. Olaridge, 6 C. B. 641.) As to the («) In these cases, the trustee to case where land is given to B. and whom such active duty is appointed his heirs, with directions to permit takes only a legal estate, commen- C, a married woman, to take the surate in duration with the period profits, see Doe d. Stevens v. Scott, during which the duty continues. 4 Bing. 505 ; Doe d. Shelley v. Thus, if land be given to B. and Edlin, 4 Ad. & El. 582 ; Williams his heirs, with directions to pay v. Waters, 14 Mee. & W. 166. over the profits to C. during the (a) See 2 Bl. Com. 336. life of C, and then to permit D. to 366 BK. II. OF RIGHTS OF PROPEKTY. — PT. I. THINGS REAIj. [determined, that thougli the purposes pointed out were not uses executable by the statute, yet a trust subsisted in the person directed to perform the purpose ; and that such trust was binding, if not at law, yet in equity; and ■accordingly, the interests in question, though rejected at law as uses, became established in equity, as trusts (&). A similar protection was also given in equity to all those con- fidences which imposed aotiye duties on the trustee ; and these seem always to have been described as trusts, or special trusts, and never to have received the appellation of uses (c) ; and they were obviously of a very different nature from the uses aimed at by the Statute of Uses. It is evident, that if it is intended to give C. a trust (or equitable) estate, and not a legal one, it will not suSice to convey by feoffment to B. and his heirs " to the use of," or even " in trust for," 0. and his heirs ; for that use or trust would be executed by the statute, and the legal estate would vest in 0. ; but to accomplish the intention, it is necessary to convey by feoffment to "A. and his heirs to the use of B. and his heirs, in trust for, or to the use of, C. and his heirs : " for there being in this case a use upon a use, the first use only will be executed by the statute, and 'the second use or trust estate wiU be un- disturbed. The intention may also be accomplished by enfeoffing "A. and his heirs to the use of A. and his heirs, in trust for C. and his heirs;" for though the first use is not such a use as the statute executes (the seisin and the use being vested in the same person), yet there cannot be a use upon a use, whether the statute executes the first use or not ; and therefore the interest of C. is not a use executed, but a trust («?). In like manner, if an existing term for 1000 years be assigned " to A. to the use of 0. and his heirs;" here A. not being seised, but (J) See 2 Bl. Com. 336. (d) Tipping v. Cousins, Comb. (c) Bac. Bead. Uses, 805; 1 Sand. 312; 1 Sand. Uses, p. 97 ; 2 ib. Uses, pp. 2, 6, 10, 203. p. 72 ; and see Doe d. Lloyd v. Passingham, 6 Barn. & Cress. 306, CHAP. IX. — OP USES AND TRUSTS. 367 [possessed only, to the use of C, the statute will not execute the use, and A. remains trustee for 0. And as to personal estate generally, it was never considered capahle of being held to a tcse, in the proper meaning of that term (e) ; and the Statute of Uses is inappHoahle to it (/).] ' The courts of equity having thus acquired jurisdiction in the matter of trust estates in lands, have by a long series of uniform decisions with some assistance from the legislature, raised up a new jurisprudence, by which trusts are made to answer all the beneficial ends of uses, without their inconveniences (g) ; and of this new jurisprudence, it falls properly to us to consider in this place, in somewhat greater detail, the nature of the estate of the trustee, and that of the cestui que trust. First, with respect to the word "trust" itself: it has varied somewhat from its antient meaning, in which it was synonymous with use ; and it now denotes a confidence (not amounting to a use within the statute) reposed by one man in another with respect to property committed to him as the nominal owner, the term trust, as well as trust estate, being applied to express the beneficial interest of the cestui que trust, as well as the confidence reposed in his trustee. Besides being distinguished as active and passive, trusts are also frequently distinguished as executory or executed, being executory, where the party, whose benefit is designed, is to take through the medium of a future instrument of conveyance which the trustee is directed to execute for the purpose; and being executed, where no such future convey- ance is contemplated, but the trust estate is completely limited in the first instance (A). Again trusts may be either («) Gilb. Uses, by Sugd. 485 ; 1 hams, 4 Q. B. 159. Sand. Uses, p. 70 ; per Doddridge, {g) See 2 Bl. Com. 337. W. Jones, 127. (*) 1 Fonbl. Treat. Eq. 441, n. ; (/) 1 Sand. Uses, 10 ; 2 Fonbl. Bao. Abr. Uses, A. ; Butl. Feame, Treat. Eq. 1, n. (a) ; 3 Bl. Com. 90, 118, 139, &o., 9th ed. 432 ; and see The Queen v. Abra- 368 BK. II. OP RIGHTS OF PEOPERTY.-— PT, 1. THINGS REAL, express or they may be implied. Thus, if the legal estate in land be oonTeyed to A. upon such trusts as the grantor shall thereafter appoint ; as such trusts are, prior to appointment, incapable of taking effect, and as it is clear that A. is not intended to hold the land for his own benefit; there arises, by necessary implication, until the appoint- ment be made, a trust for the grantor («') : and such trusts, so raised by implication for the benefit of the grantor himself, are called resulting trusts (A). So if an estate be purchased in the name of one person, and the consideration- money belongs to or is paid by another, the land purchased will be subject to a trust for the person to whom the money belonged or by whom it was paid (/). And an agreement for the sale of land, when once concluded, will make the vendor a trustee in equity for the purchaser (w). Though neither the crown nor a corporation aggregate could be seised to any use but their own (n), the case is otherwise with respect to a trust (o) ; and' it may be laid down generally, that every description of person capable of holding land, is capable also of being a trustee. It is also a maxim in equity, that a trust shall never fail on account of the disability of the person appointed to per- form it, or even from the omission to appoint a trustee ; the court wiU consider the trust, when once substantially constituted, as fixing itself upon the person who, by reason of such disability or omission, becomes entitled to the legal estate, and will compel him to observe the trust {p). The estate of the trustee at law is subject to aU. the incidents which attend an ordinary ownership of land. It devolves, therefore, when he dies, to his legal representa- tive; and is liable, while he lives, to alienation by himself; but the claim of the representative, and in general also of (i) 1 Cruise, Dig. 477. (»>) Sugd. Vend. 164, 6th ed. IJc) As to a resulting trust in («) Vide sup. p. 358. stock, see Sayre v. Hughes, Law (o) 1 Sand. Uses, p. 227. Eep., 5 Eq. Ca. 376. \p) lb. 226. (?) 1 Sand. Uses, p. 212. CHAP. IX. — OF USES AND TRUSTS. 369 tlie alienee, is subject, in contemplation of equity, to the original trust (q) ; but witli regard to alienees, the same rule is established as formerly \yith respect to uses, that a person who becomes alienee by purchase, for valuable con- sideration, and without notice of the trust, is not com- pellable in equity to its observance (r). As his claim is not inferior, in point of natural justice, to that of the cestui que trust, equity will not interpose between them ; the consequence of which is, that the legal title of the purchaser takes effect for his own benefit, while the cesttd que trust is left to his remedy against the alienor per- sonally, for his breach of trust. On the other hand, where the legal estate still remains in the trustee or his heir, but the purposes of the trust are satisfied, he is always com- pellable to divest himself of it in favour of the person beneficially entitled, by executing a proper conveyance. And under the Trustee Act, 1850 (13 & 14 Yict. c. 60), amended by the 15 & 16 Vict. c. 55, if the trustee should refuse or neglect to convey when required (s), or if he should be an infant (t), or out of the jurisdiction, or cannot be found («) ; or if it should be uncertain (where there are several trustees) which was the survivor («) ; or whether the trustee last known to have been seised is living or dead, or, if dead, who is his heir or devisee (y) ; or if a person seised of land in trust dies intestate as to such land and without an heir (z), — ^in all these cases the court may either make an order vesting the estate in such person or persons as it shall direct (a) ; or may appoint some person to execute the necessary conveyance in lieu of the trustee or his heir (b). (?) lb. 227 ; GUb. Sugd. 13, (y) Sects. 14, 15. n. (5). (2) Sect. 15. (r) 1 Sand. Uses, p. 228 ; vide (a) Where the trust fund does sup. p. 358. not exceed 5001., the like jurisdic- (») 15 & 16 Vict. 0. 55, s. 2. tion is conferred on the county {<) 13 & 14 Vict. c. 60, 88. 7, 8. court. (m) Sects. 9, 10. (i) 1 3 & 14 Vict. 0. 60, s. 20. (a:), Sect. 13. See also 37 & 38 Vict. 0. 78, a. 6 VOL. I. KB 370 BK. II. OF EIGHTS OF PROPERTY. PT. I. THINGS REAL. It is further to be noticed that, at law, the estate of the trustee was liahle to be taken in execution for his debts (c) ; and his wife was entitled to dower (d) ; and the husband of a female trustee was entitled to curtesy (e). Upon these points it will be recollected that the position of the feoffee to uses, before the statute of Henry YIII., was the same ; while, on the other hand, cestui que use remained without protection from the effect of these claims (/) ; but the modem trust is different from the use in all these respects, and is protected against all such claims both at law and in equity. Formerly, also, the estate of the trustee was liable to forfeiture and escheat (g) ; but even prior to the Act 33 & 34 Yict. c. 23, by which escheat and forfeiture for treason or felony were taken away, it had been pro- vided by 13 & 14 Vict. c. 60, ss. 46, 47, that no land, stock, or chose in action, held in trust or by way of mort- gage, should escheat or be forfeited so as to affect the interest of the cestui que trust or mortgagor, by reason of the attainder or conviction of the trustee or mortgagee for any offence (A) ; and by the 15 & 16 Yict. c. 55, s. 6, a new trustee may be appointed in the place of any trustee becoming convicted of any treason or felony. If we turn now to the cestui que trust, his interest was not originally the subject of protection at all at law, but subsisted only in contemplation of equity (?) ; being some- times a mere charge on the land ; the ownership of the land (and, since 31st Deo. 1882, 45 & 46 (a!) 2 Ves. sen. 634. Aatodower, Vict. u. 75, ss. 1, 18), as to the case vide sup. p. 267. of a bare trust estate becoming (e) 7 Viu. Ab. 169. As to cur- Tested in a married -woman ; and tesi/, Tide sup. p. 264. 44 & 45 Vict. u. 41, s. 30, as to the (/) Vide sup. p. 358. caseof a sole trustee dying, whether (y) 1 Sand. Uses, p. 230. testate or intestate, and the trust (h) And see 46 & 47 Vict. c. 52, estate vesting in his legal personal a. 147, authorizing the like ap- representative as his heir. pointment in the case of a trustee {c) 1 Sand. Uses, pp. 230, 231 ; becoming bankrupt. 1 P. Wms. 278. (j ) See Britten v. Britten, 4 Tyrw. 473 ; Roe v. Eead, 8 T. R. 118. CHAP. IX. — OF USES AND TEUSTS. 371 being vested in another person ; but at otter times and more usually amounting, in contemplation of equity, to the substantial and actual ownership ; and then the cestui que trusfs estate is modelled, in general, upon the rules of the common law with regard to legal estates, for wquitas sequifur kgem (k). Thus, there may be an equit- able estate (just as there may be a legal estate) for life or years, or in fee or in tail ; and in the case of an equitable estate tail, the method of barring the entail is the same as if the estate were legal. So an equitable interest may be either in possession or in expectancy, as in the case of a legal estate ; but where the equitable estate in expectancy is in the nature of a contingent remainder, it was never subject, and is not subject, to the common law rule whereby it was defeated in the event of the determination, before the contingency happened, of the particular estate upon which it depended (J,). The doctrine of " merger " also seems to apply to equitable as well as to legal estates, — providing the coalescing estates be both of the equitable description, and the merger will not be pro- ductive of any injustice or inconvenience {m). So, the same rules of construction wiU in general apply to equit- able as to legal estates ; and particularly the rule in Shelley's case («). A trust of inheritance is also subject to the curtesy of the husband of cestui que trust, as if it were an estate at law (o) ; but until a comparatively recent period, it was not subject to dower, a peculiar anomaly {p), which has now been swept away by the Dower Act, 1834 (3 & 4 WiU. IV. c. 105), s. 2 {q). [k) 2 Bl. Com. 330. Hps v. Phillips, 1 P. Wms. 41. As (?) 1 Prest. Est. 241 ; Hopkins to merger, vide sup. p. 317, n. (z). „. Hopkins, Gas. temp. Talb. 44; («) E'eame,l)7Butl. 124, 9tlied.; 1 Atk. 590 ; Astley ». Mioklethwait, Bale v. Coleman, 1 P. Wms. 142. 15 Ch. Div. 89 ; ATobiss v. Bnmey, (o) 1 Sand. Uses, p. 205. As to 17 Ch. Div. 211. curtesy, vide sup. p. 264. (m) See 3 Prest. Conv. 558 ; Hop- {p) 2 Bl. Com. 337. kins V. Hopkins, 1 Atk. 592 ; PhU- (?) Vide sup. p. 270. B b2 372 BK. II. OF RIGHTS OF PROPERTY.— PT. I. THINGS REAL. Again, a trust estate, tliough formerly protected like a use from execution for debt, is now (with more regard to justice) made subject to such execution ; for, by the Statute of Frauds (29 Oar. II. o. 3), s. 10, it was made Uable to the extent of one-half, and by 1 & 2 Yict. c. 110^ it has been made liable to the extent of the entirety, to be taken in execution on a judgment (s). But a trust estate may also be subjected, like a use, to limitations unknown to the common law ; and it has always been capable of being created or assigned (even for an estate of freehold),, by deed without livery, or by last will and testament ; and originally even by parol ; although now, by the Statute of Frauds, all trusts and confidences of lands, tenements or hereditaments, except such as arise by implication or construction of law, must be manifested and proved by some writing signed by the party, or by his last will in writing [f) ; and the same statute prescribes writing for any grant or assignment of a trust estate {u). The estate of the cestui que trust was never subject to forfeiture, unless for treason (a;) ; and it did not escheat to the crown for want of inheritable blood, for the defect of an heir conferred no title on the crown, but merely enabled the trustee to hold the land discharged of the trust and for his own benefit {y) ; and when the lands were held of a mesne lord, the rule was the same ; for neither on the attainder of the cestui que trust (unless for treason) (s), nor on the failure of heirs {a), did the estate of the cestui que trust escheat to the lord, but the trustee took it for his own benefit, as in. the case where the crown was lord. ,(s) See bk, v. c. xi., as to judg- Sands, Hard. 490 ; 33 Hen. 8, mmt and execution. o. 20 ; 13 & U Vict. o. 60, ss. 46, it) 29 Car. 2, c. 3, ss. 7, 8. 47. (m) 29 Car. 2, o. 3, s. 9. See {y) 2 Bl. Com. 337 ; Burgess v. Harris v. Ptigh, 4 Bing. 335; Wteate, IW. Bl. 123; 1 Eden, 177. Harris n. Booker, ibid. 96 ; Scott (z) See 1 Sand. Uses, p. 288 ; 1 V. Scholey,'8 East, 467. Hale, P. C. 249. (») 1 Sand.' Uses, pp. 206, 207; (a) GaUard ». Hawkins, 27 Ch., Hob. 214 ; Attorney-General v. Div. 298. CHAP. IX. — OF USES AND TRUSTS. 373 However, now by the Intestates' Estates Act, 1884 (47 & 48 Vict. e. 71), it has been provided, that upon the death intestate of the cestui que frimt without heirs, the lands shall not remain beneficially to the trustee, but shall escheat to the crown, like as the legal estate would have done, — an enactment which, semble, applies to mesne lords as well as to the crown as lord paramount. We have now touched the principal points in the law of Uses and Trusts, considered as a species of estates; and for the present may dismiss them from our view. With respect to Uses, indeed, there is another aspect under which they will very soon require to be again examined, viz., in their important (but incidental) connection with our system of conveyances. But this is a subject which wiU find a more proper place when we are engaged in the con- sideration of Title, or the manner in which estates may be acquired or lost (6). [b) As to conveyances under tlie Statute of Uses, vide post, o. xviii. 374 BK. 11. OF BIGHTS OF PROPERTY. PT. 1. THINGS REAI.. CHAPTER X. OF TITLE IN GENERAL. Having said thus imioh of tlie tenures by which lands are held, and of the estates that may he had ia them, we are now, in pursuance of the division before laid down, to consider the title to them, or the manner of acquiring and losing estates therein (a), — a consideration which wiLL ex- tend to equitable as well as to legal estates, but will be principally concerned with the latter ; for equitable estates (as we have just seen) are capable of being created or transferred by much simpler methods than those in use at the common law (6) ; although, iudeed, conveyances of the same kiad are commonly used, whether the estate dealt with is legal or equitable ; and the rules of descent are the same in both (c). [In treating of the manner in which estates may be acquired and lost, we shall not have occasion to detach the consideration of loss from that of acquisition, for they are reciprocal ideas ; by whatever method one man gaias an estate, by that same method, or its correlative, some other man at the same time losing it. For where the heir acquires by descent, or the devisee by wiU, the ancestor or testator has first lost or abandoned his estate by death ; where the lord gains land by escheat, the estate of the (») Vide sup. p. 174. {e) Goodright v. Wells, Dong. (S) Vide sup. p. 372. 771. CHAP. X. — OF TITLE IN GENERAL. 375 [tenant is first of all lost by the extinction of Ms hereditary blood ; where a man gaias an interest by occupancy, the former owner has previously relinquished his right of pos- session. So, in case of forfeiture, the tenant by his own mistaken view or neglect has renounced his interest in. the estate ; whereupon it devolves to that person who by law may take advantage of such default.] The acquisition of an estate in land is sometimes said to be either by descent or by purchase ; and at other times the acquisition is said to be either by the act of the law or by the act of the party (d). Title by act of laiv expresses all those modes of acquisi- tion, where the law itself casts the right to the estate upon the acquirer, independently of any act or interference of his own, or of any other person for that purpose. Of these the principal kiad is title by descent ; but the term wUl also properly include title by escheat, and also that of tenant by the curtesy, and of tenant in dower (e). Purchase, on the other hand, though in its vulgar and confined acceptation it is applied only to such acquisitions of land as are obtained by buying it for money or some other valuable consideration (/) ; yet it properly iacludes every lawful mode of coming to an estate by the act of the party, as .opposed to the act of law {g) : among which, our attention ^dll chiefly be directed to the title by occu- pancy, by forfeiture, and by voluntary transfer; which (rf) Co.Iitt. 18 b, u. (2), byHar- meaning of the wotA. purchase, grave. Blaokstone (vol. ii. pp. 201, in the Inheritance Act (3 & 4 WiU. 241,) considers aU title as either by 4, o. 106), is settled by a definition descent ai pu/rcliase; and according oontainedintheAotitself,— butthis to him, purchase comprises escheat. definition is, of course, only for the On the other hand, Lord Coke re- purposes of that Act : vide post, marks "that an escheat is not said p. 379. " to be a purchase, because the in- («) Co. Litt. 18 b. " heritance is oast upon, or a title (/) 2 Bl. Com. 241. " vested in the lord, by act in law", {g) According to Lord Coke, the ' ' and not by his own deed or agree- term purchase imports only a lawful "ment." (Co. Litt. 18 b.) The acquisition. (Co. Litt. 18 b.) 376 BK. li. OF RIGHTS OF PKOPERl'Y. — PT. I. THINGS REAL. last is usually described as that by alienation or con- myance {h) . This use of the term purchase {perquisitio), by which it is distinguished from title by mere act of law, and more particularly from descent, corresponds with that of conquest {conqucestus or conquisitio) in use among the feudists («), and in the law of Scotland {k). [And in like manner, the first purchaser (or he who first brought the estate into the family which at present owns it) was styled, among the Norman ]'urists, the conqueror or conquereur {I) ; wherefore, also, "William the Norman is called William the Con- queror, signifying that he was the first of his family who acquired the crown of England, and from whom therefore all future claims by descent must be derived.] Among the different titles that have been enumerated, we have already been led incidentally to discuss those of tenant by the curtesy and tenant in dower (ni). At pre- sent, therefore, we may confine our attention to descent, escheat, occupancy, forfeiture, and alienation : the two first being (as has been pointed out) titles by act of law ; the three last, titles by purchase. (A) There are other methods of as to the purchase of personal pro- acquiring land, which fall under party, vide post, bk. n. pt. n. o. v., Hhe head ot purchase ; but these are where the contract of sale is dis- reserved for discussion to subse- cussed at large, quent divisions of this work. We (i) Craig, 1. 1, t. 10, s. 13. refer to (among others) the seizure (A) Dalrymple on Feuds, 10. of land under an elegit (vide post, {I) Grr. Coustum. Grloss. c. 26. bk. v. ex.), and the vesting of the (m) As to tenancy by the curtesy, estate of a bankrupt in his trustee vide sup. p. 264 ; as to dower, vide (vide post, bk. n. pt. n. o. vi.) ; and sup. p. 267. ( 377 ) CHAPTER XI. OF TITLE BY DESCENT. We have seen that an estate of inheritance is, on the death of the owner without having disposed of it during his Hfe- time, or by will, cast by the law on his heir by a title called descent («) ; and we have now to consider the nature of such descent, and the rules by which it is governed (5). And in pursuing this subject, we shall pass over descents by particular custom, such as gavelkind and borough- English (c) ; and we shall confine ourselves (in the first place at least) to the subject of descent in fee simple, accord- ing to the ordinary universal law. [And first we must remark, with respect to the nature of the heir's title, that no inheritance can vest, nor can any person be the heir of another, tiU that other is dead ; for nemo est hceres viventis; and until such death, he can be at the most but an heir apparent or heir presumptive. An heir apparent is one whose right of inheritance is inde- feasible, provided he outlives the ancestor: as the eldest son, who must by the course of the common law be heir to the father whenever the latter happens to die. An heir presumptive is one who, if the ancestor should die imme- diately, would be his heir ; but whose right of inheritance may be defeated by the contingency of some nearer heir being bom: as a brother or nephew, whose presumptive (a) Vide snp. p. 238. 237 a— 250 a. (i) As to descent, see Co. Litt. [c) Vide sup. pp. 63, 211—213. 378 BK. II. OF EIGHTS OF PKOPEETY. PT. I. THINGS KEAL. [succession may be destroyed by the birth, of a child ; or a daughter, whose present hopes may be hereafter out ofE by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother or nephew, or daughter : in the former cases the estate shall be divested and taken away by the birth of a posthumous child ; and in the latter, it shall also be totally divested by the birth of a posthumous son (e).] The law of descents is founded for the most part on the custom of the realm ; being in point of antiquity referable (as regards some of its rules) to a period at least as early as the reign of Henry the second (/) ; and having at- taiaed to a comparatively mature development as early as the reign of Henry the third, or at the latest that of Edward the first {g) ; after which it underwent no change for the space of more than five hundred years, that is to say, until the year 1833, when it was amended in some material respects by the Act of 3 & 4 Will. IV. c. 106, passed " for the amendment of the law of inheritance." The rules of descent which were applicable to the case of persons dying before the 1st day of- January, 1834, — rules which are still of occasional importance in the practice of the law, — will be found stated in the foot-note (?) ; but we (c) 2 Bl. Com. 208. lineally descend to tlie issue of the (/) This appears from the treatise person who last died actually seised, of Glanville (written ahout the year in infinittim, but shall never lineally 1181), whose account of the law of ascend. inheritance comprises all the f ea- Eule 2. That the male issue shall tures of the law of descents prior be admitted before the female, to 1833. Eule 3. That when there are two (j') Hale's Hist. C. L. c. 11; or more males iu equal degree, the Hist. Eng. Law, by Reeves, vol. i. eldest only shall inherit, but the p. 311 ; vol. ii. pp. 246, 317. females altogether. («) ¥01 these old rules, we must Eule 4. That the lineal descen- ref er to the system of Blackstone, dants in infinitum of any person de- according to which the annexed ceased shall represent their ancestor; Table of Descent (No. I.) is ar- that is, shall stand in the same place ranged, and of which the Eules as the person himself would have (or Canons) are as follows — done had he been living. Eule 1. That inheritances shall Eule 5. That, on failure of lineal .=>-2^^^^' .Appt\in/7loL! >hnth oiTnrrin<^ prior to 1 January .183^: StepTien's CoTmncniarics cTvtkt Laws afJ^n^land. Tell ^a^e 37.9. MkrillCTr GilLert StUri S«lf» cldcsf Scc^rU Scr. Sen loni^tv.J'nntedfcrMess'^'BuUerm^rlJh.Ee.rMajestysIawFublis'hers. 7,FU-d: Si. reel. CHAP. XI, OF TITLE BY DESCENT. 379 need concern ourselves in the text with only those rules or (as they are sometimes called) canons of descent which are applicable to descents (by far the most numerous class of cases) taking place on a death on or after 1st January, 1834, and which rules or canons are as follows : — I. In every case the descent shall be traced from the purchaser. This primary law of descent is laid down in the form here propounded by 3 & 4 Will. IV. c. 106, s.'2 ; and that Act gives its own definition of the sense in which the expression " the purchaser- " is to be understood — a defi- nition not harmonizing with that of the word purchase, as given in the last chapter, but meaning and denoting " the person who last acquired the land otherwise than by descent" (/c). Wherefore, if the deceased owner of an estate in fee simple came to it by purchase, that is, in any other manner than by descent, the party claiming it as heir must make him the propositus, or person from whom consanguinity is to be traced ; while, on the other hand, if he came to it by descent from some purchasing ancestor, that ancestor must be made the propositus. Thus, if John Stiles, in the annexed Table of Descent (No. II.), die the owner of an estate, which he acquired by purchase, any desoendaats or issue of the person the Hood of the female, however last seised, the inheritance shall near), unless where the lands have descend to his collateral relations, in fact descended from a female. being of the blood of the first pur- (A) 3 & 4 Will, i, c. 106, s. 1. chaser, subject to the three last pre- The Act says, — "Otherwise than ceding rules. ' ' hy descent, or than by any escheat, Kule 6. That the collateral heir " partition, iaienehsureyhj the eSeot of the person la;st seised must be " of which the land shall have be- his next collateral kinsman of the " come part of , or descendible in the whole blood. " same manner as, other land ac- Rule 7. That in collateral in- "quired by descent." It need heritances, the male stocks shall be hardly be mentioned, that the Act preferred to the female (that is, does not afiect the mode of tracing kindred derived from the blood of descents in a manor subject to a the male ancestors, however remote, particular custom of descent (Mug- shall be admitted before those from gleton v. Bamett, ?, H. & N. 653). 380 BK. II. OF BIGHTS OF PKOPERTY. PT. I. THINGS REAL. person claiming it as heir must prove that he is heir to John Stiles ; that is, stands in such relation of con- sanguinity to John Stiles as the laws of descent here- after laid down make sufiScient in the particular case : but if John die owner of an estate which descended to him from G-eoffrey his father, by whom it was originally purchased, the claimant must prove that he is heir to G-eo£Erey the father ; who becomes in that case the pro- positus instead of John, the last owner, the effect of which is, that (in the first instance, at least) no relation of John ex parte maternd can, as such, inherit. Again, if the estate descended to John from Lucy Baker, his mother, who was the purchaser, the descent must in that case be traced from Iier; and John's relations ew parte paternd are, on the same principle, necessarily excluded, at least in the first instance. It often happens, however, especially in long descents, that it is uncertain by whom an estate was originally purchased ; and against this difficulty of proof the Act of Parliament provides by the following rule of evidence, which is to be understood as a necessary supple- ment to the rule of descent under consideration ; viz. that the last owner, or person "last entitled to the land" (m), shall be considered to have been the purchaser, unless it shall be proved that he inherited it; and that the same rule shall be constantly applied at every step upwards of the pedigree (»). Therefore if John Stiles is the person last entitled to an estate, and dies, and it does not appear whether he purchased it or not, the claimant must prove descent from him. So, if he inherited it from his father Geoffrey, but it is unknown whether Geoffrey purchased it or not, the claimant must make himself heir to Geoffrey ; (m) The expression "the person c. 106, s. 1) ; and the word "land" last entitled," extends "to the last extends to all hereditaments, " person who had a right thereto " whether corporeal or incorporeal, (sc>;., to the land), "whether he did of whatever tenure, and whether " or did not obtain the possession, in possession, reversion, or remain- "or the receipt of the rents and der, &o. (3 &4'Will. 4, u. 106, s. 1.) "profits thereof" (3 & 4 "Will. 4, («) Sect. 2. CHAl'r XI, — OF TITLE BY DESCENT. 381 and, on the same principle, if it can be shown that Geoffrey took by descent from George, then George must be made the propositus. This 1st canon, though newly introduced by the Act of 1833, is mainly founded on the antient maxim, that none shall claim as heir tvho is not of the blood of the purchaser (o), [a maxim which was entirely unknown among the Jews, Greeks, and Romans, none of whose laws looked any further than the last owner of the estate, but in the adoption of which the antient law of Normandy agreed with ours, the law of descent in both being of feudal origin ; and this rule or maxim is one which can- not otherwise be accounted for than by recurring to feudal principles {p). When feuds first began to be hereditary, that is, subject to succession according to consanguinity, it was made a necessary qualification of the heir who would succeed to a feud, that he should be lineally descended from the first feudatory or purchaser {q). In consequence whereof, if a Tassal died seised of a feud of his own acquiring, OTfeiidum novum, it could not descend to any but his own offspring, — not eyen to his brother, — ^because he was not descended, nor derived his blood, from the first acquirer. But if it -vi&s feudum antiquum, that is, one descended to the vassal from his ancestors, then, on failure of his own descendants, his brother, or such other collateral relation as was de- scended, or derived his blood, from the first feudatory, might succeed to such inheritance. ■ To this purpose speaks the following rule : " frater fratri sine legitimo hcerede defimcto, in beneficio quod eorum patris fidt, succedat ; sin autem unus e fratribus a domino feudum acceperit, eo defuncto sine legitimo hcerede, frater ejus m (o) "And note, it is an old and see 2 Bl. Com. 220. " true maxim in law, that none (p) Grand Coustum. o. 25. "shaU inherit any lands as heir, -^ (?) 1 Feud. 20. And see "Wood «>. ''but only the blood of the first Douglas, 30 Ch. Div. 327; Moore " purchaser."— Co. Litt. 12 a ; and v. Simkin, 31 Ch. D. 95. 382 BK. II. OF BIGHTS OF PROPERTY. — PT. I. THINGS REAL. \^/eudmn non mccedit " {r). The true feudal reason for whioli rule was this, that what was given to a man for his personal service and personal merit, ought not to descend to any but the heirs of his person ; and therefore, as now in estates tail, (which a proper feud very much resemhled,) so in the feudal donation, " nomen hceredis in primd investiturd expressum, fantum ad descendentes ex corpore primi uasalU extenditur, et non ad coUatemles, nisi ex corpore primi vasalli sive stipitis descendant" (s). The wiU of the donor or original lord, when feuds were turned from life estates into inheritances, not being to make them absolutely here- ditary, like the allodium, but hereditary only sub modo (t) ; not hereditary to the collateral relations or liueal ancestors, or husband or wife of the feudatory, but to the issue descended from his body only, j Under this system therefore it was necessajy that a person claiming by descent on the death of the last pro- prietor should prove himself not only to be of the blood of, but lineally descended from, the purchaser ; for neither in afeudtim novum nor in afeudum antiquum were the col- lateral relations of the purchaser entitled to succeed. How- ever, in process of time, when the feudal rigour was in part abated, a method was invented to let into the inheritance the- collateral relations, on failure of the descendants of the grantee, by granting him a feudum novum to hold utfeudum antiquum ; that is, with all the qualities annexed to a feud derived from his ancestors (m) ; and then though the lineal ancestors themselves were always excluded, for reasons which will hereafter appear, yet the collateral re- lations of the purchaser, — that is, the descendants of those ancestors, — were admitted to succeed, even in infinitum, because they might have derived their blood from the first imaginary purchaser. [For since it was not ascertained in such general grants whether this feud should be held (r) 1 Feud. sect. 2. [t) As to allodium, vide sup. pp. («) Craig, 1. 1, tit. 9, sect. 36. 176, 187. (w) 2 Bl. Com. 221. CHAP. XI. — OF TITLE BY DESCENT. 383 [uf feudum paternum or feudum avitum, b.ut merely that it slioiild be held td feudum antiquum, as a feud of indefinite antiquity, — that is, since it was not ascertained from which of the ancestors of the real purchaser this feud should he supposed to have descended, — the law would not ascertain it either, but would suppose any of his ancestors pro re natd to have been the first purchaser. And therefore it admitted any of his collateral kindred (who had the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors (v).] Of this nature, it is said, were all the feudal grants of fee simple estates in this kingdom («) . They were no other than grants of a feudum novum, to be held ut antiquum, or feud of indefinite antiquity : while, on the other hand, a gift in tail (where none but the lineal descendants of the first donee are admitted) proceeded on the principle of a feudum strict^ novum. But while the old feudal requisite of a lineal descent from the real purchaser was thus substantially set aside, it continued nevertheless to be necessary that the claimant should be of his blood; for no person, without being related to- him either lineally or collaterally, could be sup- posed to be lineally descended from the imaginary pur- chaser. And as it was necessary that the claimant should be of his blood, so it was from him, as a root, that the descent was in some cases to be traced. For if the estate which descended was of a kind in which the owner could not acquire actual seisin of the land, (as in a reversion or remainder expectant upon a freehold, in which case the actual seisin belonged to the particular tenant,) the rule was that the claimant must trace his descent from (or, as it was usually expressed, make himself heir to,) the pur- chaser (y). Supposing the estate descended, however, to (») See the case of Kynnaird v. 2 Bl. Com. 222. Leslie, Law Eep., 1 C. P. 389. («/) RatolifEe's case, 3 Eep. 42 a ; (x) See Wright's Tenures, 180; Co. Litt. 15 b, 191 b; Burton's 384 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. have teen of a. kind in which the owner could acquire actual seisin, as in the case of an estate in possession, or a reversion or remainder expectant on a term of years (s), the rule was different; for here another antient maxim intervened, and required that the claimant should make himself heir to the person last actually seised of the inherit- ance [a) ; every person who obtained an actual seisin, whether he were an original purchaser, or derived his title by descent, heing considered as a new root, from which all future claimants were to spring ; a principle that was briefly expressed in the adage seisina fadt stipi- tem (i). Thus if Geoffrey Stiles, the father, died seised of land of which he was the purchaser, and which de- scended to John as his heir, and John died before entry, the next claimant was to make himself heir to Geoffrey ; but if John entered and obtained actual seisin, it would then be necessary to claim as heir not to Geoffrey, but to John ; and the difference was material ; because the heir to the person last seised and the heir to the purchaser were not necessarily the same person. If John, for example, died leaving a half brother, his father's son, the latter might possibly, on John's decease, be next heir to Geoffrey the father ; but it was impossible, as the law then stood, that he should be heir to John, descent not then being allowed between those related by the haK blood (c). The rule of which we speak did not make it the less necessary, indeed, that the claimant should be of the Mood of the purchaser ; for this, in every case of descent, was univer- sally required : but if he had that qualification, and could Compend. 112; Doe v. Hutton, " actual freehold and inheritance." 3 Bos. & Pul. 649, 656; Roe d. -Co.Litt. lib; and see Ratcliffe's Thome v. Lord, 2 Bl. Hep. 1099. case, 3 Rep. 41 b, 42 a. (2) As to an estate in possession, (4) Hale's Hist. C. L. c. 11 ; and and one in reversion, vide sup. pp. see 2 Bl. Com. 209, where the noto- 312—319. riety of this actual seisin is stated (a) "Aman thatolaimethasheir to have become the equivalent of " in fee simple to any man by de- the old feudal investiture. " scent must make himself heir to (c) Co. Litt. 15 b. "him that was last seised of the CHAP. XI.— OF TITLE BY DESCENT. 385 make himself heir to the person last seised, he was entitled to succeed, whether he could make himself heir to the purchaser or not ; while, on the other hand, his being heir to the purchaser was not sufficient, unless he was also heir to the person last seised (d). Thus if John Stiles had purchased land and died, leaving no other kindred than his father's brother and his own brother of the half blood, (his father's son), the uncle would have been his heir, as the brother (by the rule already noticed) could not have claimed in that character; and if the uncle had also obtained seisin and died, without other kindred than John's half brother, the latter would then have been entitled to succeed, for he would have been heir to the person last seised, and of the blood of the purchaser, though not the heir of the purchaser (e). On the other hand, if John Stiles had inherited land purchased by Q-eoffrey, and died seised vnthout other kindred than his half brother (his father's son), the latter could not have inherited, because unable to make himself heir to John ; and yet he would have been heir to Geoffrey. It is to be observed, however, that in many cases to trace descent from the person last seised amounted in effect to the same thing as tracing descent from the purchaser. For where the last owner (or person on whose death the succession became vacant) happened to have been in fact the purchaser of the estate, he would also be the person last actually seised. Thus, if it were an estate in posses- sion acquired by feoffment, this implied a real delivery to him of the actual seisin (/) ; and supposing it to have been acquired by devise (under the Statute of Wills), or by a conveyance under the Statute of Uses (of the nature of which we shall speak hereafter), the case would be in effect the same; for the actual seisin (so far at least as would suffice to make him the root of descent) would here be transferred to him, without entry, by mere construction (0) Hale's Hist. 0. L. o. 11. (/) Vide sup. p. 234. (e) H. Chit. Desc. 115. VOL. I. CO BK. XI. OF RIGHTS OF PKOPEKTY. — PT. I. THINGS BEAL. of law (g). So if His estate were a reversion or remainder in fee expectant on a term for years, he would be clothed with an actual seisin of the fee, through the medium of the possession of the particular tenant (h). In all such cases, therefore, if the claimant made himself heir to the purchaser, he would also make himself heir to the person last actually seised; and so would satisfy hoth the con- ditions required to make out a descent in fee simple. The new rule of descent discards in effect the antient maxim Seisina facit stipitem, and establishes that descent shall be traced from the purchaser, — a rule simple and uniform, and at the same time easy and certain in its application ; while, under the old maxim it was sometimes difficult to determine what would amoimt to a seisiu sufficient to constitute a stipes ;■ and it was highly unsatis- factory besides, that the right to the succession should in any case depend on so unimportant a circumstance as the omission of the owner to make entry, before his death, on the land he had acquired by inheritance {i). Before we dismiss this first rule or canon of descent, it is necessary to remark, that where a man devised land to his heir for an estate of precisely the same quality that he would have taken by descent, it was the rule of the common law that the descent would take effect, and not the devise ; for the descent was the elder and preferable (as being the more feudal) title {j). The contrary rule, however, is now established by the legislature, it being provided by the Inheritance Act (sect. 3), "that when any " land shall have been devised by any testator who shall {ig) Per Holt, 1 Show. 74 ; R. -i/. intestate leaving a Bon, this sou is Sutton, 3 A. & E. 611 ; and see the heir to his mother's moiety, Watk. Deso. c. 1, s. 6 ; Co. Litt. for (as to that) he is the heir of the 111 a, 266 h. purchaser. (See Cooper ». Prance, {h) Vide sup. p. 320. 14 Jur. 214 ; 19 L. J. (N. S.) (i) See First Eeal Prop. Eep. Chanc. 313; and Lord St. Leonards p. 15. Under the new rule, where on Keal Property Statutes, p. 282.) a man purchases lands in fee (y) 2 Bl. Com. 242 ; 2 Saund. by simple, and dies intestate leaving Wms. 7, n. (4) ; 1 Roll. Abr. 626 ; two daughters, whereof one dies Doe v, Timius, I Bam. & Aid, 630. CHAP. XI. — OP TITLE BY DESCENT. 387 " die after 31st December, 1833, to the heir, or to tHe " person who shall he the heir of such testator, such heir " shall be considered to have acquired the same as a " devisee, and not by descent " (k) ; and accordingly such heir will now be the purchaser within the definition of that expression in the Act. Again, where land was limited by any assurance to the grantor or feoffor, or to his heirs, or to the right heirs of the testator, the rule of the common law was that such grantor, feoffor, or testator acquired nothiag by such assurance, but was entitled as of his former estate (I). But the contrary has here also been established by the legislature, it being provided by the Inheritance Act (sect. 3), "that when any land shall " have been limited by any assurance executed after the " 31st of December, 1833, to the person or to the heirs " of the person who shall thereby have conveyed the same " land, such person shall be considered to have acquired " the same as a purchaser by virtue of such assurance, *' and shall not be considered to be entitled thereto as of " his former estate or part thereof." II. The second rule or canon of descent is, that inherit- ances shall in the first place lineally descend to the issue of the purchaser, in infinitum. The principle of placing the lineal descendants first in succession to their ancestor is, under all systems of descent, invariably adopted, and may be said to be of universal obligation or propriety. The possessions of the parents naturally go, upon their decease, in the first place to their offspring, as those to whom they have given being, and for whom they are therefore bound to provide {m). III. The third rule or canon of descent is, that the children of the purchaser are preferred to the grand- ' {k) See Biokley v. BicHey, Law [1) See Co. Litt. 22. Eep., 4 Eq. 216 ; and 'Wood v. {m) 2 Bl. Com. 210. Donglas, 30 Ch. Div. 327. cc2 '388 BK. II. OF KIGHTS OF PROPERTY. — PT. I. THINGS REAL. cMldren or rembter issue ; that, among such children, mailes are preferred to females ; and that an elder male is pre- ferred to a younger ; but that females take together. 1. The children of the purchaser are preferred to the grandchildren or remoter issue, because they are nearer to him in blood ; accordingly, if any child of the purchaser, living at his decease, has issue also living at the same period, the estate will descend to the child (who is more nearly related to the purchaser), and not to the grandchild or other descendants, who are more remote. 2. Among the children of the purchaser, males take before females ; or, as our law has expressed it, the worthiest of blood shall be preferred (w). Thus if John Stiles hath two daughters, Margaret and Charlotte, and afterwards two sons, Matthew and Gilbert, and dies: first Matthew, and (in case of his death without issue) then Gilbert, shall be admitted to the succession, in prefer- ence to both the daughters. [This preference of males to females is entirely agree-' able to the law of succession among the Jews (o), and also among the Greeks, or at least among the Athenians (p) ; but it was almost totally unknown to the laws of Eome, wherein brethren and sisters were allowed in general to succeed to equal portions of the inheritance (q). The preference itself appears with us to have had its source in the feudal law ; for though our British ancestors (the Welsh) appear to have given a preference to males (r), yet our Danish predecessors who succeeded them seem to have made no distinction of sexes, but to have admitted all the children at once to the inheritance (s). But the feudal law of the Saxons on the continent gave preference to the male over the female sex. "Pater aut mater " defuncti,fiKo nonfilice hcereditatem relinquent. Qui defunctus («) Hale'sHist.Com.Law.o. II. (r) Stat. 'Wall. 12 Edw. 1. (o) Numbers, chap, xxvii. («) WiUrins, Leges Anglo-Sax. (p) Petit. LL. Attic, lib. 6, tit. 6. LL. Canut. o. 68. (ff) Inst. iii. 1. 6. CHAP. XI. — OF TITLE BY DESCENT. 389 [" non filios sed fiUas reliquerit, ad eas omnis hcereditas per- " tineat" (t). It is possible, therefore, that this preference among us was a branch of that imperfect system of feuds ■which obtained here before the Conquest, especially as it subsists among the customs of gavelkiud; and we find that in the laws of King Henry the first, it is plainly recog- nized (m), and the rather as it consisted with the policy of the feudal law, according to which females could never succeed to a proper feud, being incapable of performing those military services for the sake of which that system was established («). Nevertheless, our law does not extend to the total exclusion of the female, as the Salic law does ; but it only postpones them to males ; for though daughters are excluded by sons, yet they succeed where there is no son: our law thus steering a middle course between the actual rejection of females and the putting them on a level ■with males.] 3. Primogeniture obtains among the male children of the purchaser, but not among the female. [As if a man hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; Matthew, his eldest son, shall alone succeed to his estate, in exclusion of Gilbert, the second son, and of both the daughters ; but if both the sons die without issue before the father, the daughters, Margaret and Charlotte, shall both inherit the estate as coparceners («/). Primogeniture in males appears to have obtained to some extent among the Jews, in whose constitution the eldest son had a double portion of the inheritance (s) ; and with us, by the laws of King Henry the first, the eldest _son had the capital fee or principal feud of his father (a) ; .and afterwards the eldest daughter (in the case of female (t) Tit. 7, ss. 1 and i. u. 11. As to coparceners, vide sup. (m) Leg. Hen. 1, u. 70. p. 343. (x) 1 Feud. 8. W Selden de Suco. Ebr. c. 5, (j/) Litt. s. 6; Hale's Hist. C, L. («) I'eg. Hen. 1, o. 70, 390 BK. II. OF BIGHTS OF PROPERTY.— PT. I. THINGS REAL. [heirs) had the prinoipal mansion (b). But, save to the extent aforesaid, the practice rather was, among all nations originally, to divide the lands equally ; some among all the children at large, some among the males only; and this practice had the appearance at least of natural, justice. But when the emperors hegan to create honorary feuds or titles of nobility, it was found necessary, in order to pre- serve their dignity, to make them impartible, or, as they styled them, fetida individua, and in consequence descendible to the eldest son alone (c). This example was further enforced by the inconveniences that attended the splitting of estates : namely, the division of the military services, the multitude of infant tenants incapable of performing any duty, the consequential weakening of the strength of the kingdom, and the inducing younger sons to take up .with the business or idleness of a country life ; instead of being serviceable to themselves and the public, by engaging in mercantile, in military, in civil, or in ecclesiastical em- ployments (t^). These reasons occasioned an almost total change in the method of feudal inheritances abroad, so that the eldest male began universally to succeed to the whole of the lands, in all military tenures ; and in this condition the feudal constitution was established in England by William the Conqueror. Yet we find that socage .estates frequently descended to all the sons equally, so late as when Grlanville wrote, in the reign of Henry the second (e) ; and it is mentioned in the Mirrour, as a part of our antient- constitution, that knight's fees should descend to the eldest son, and socage fees should be partible among the male children (/). However, in Henry the third's time, we find from Braoton, that socage lands, ia imitation of lands in chivalry, had almost entirely fallen into the right of succession by primogeniture, as the law {b) Glauv. 1. 7, 0. 3. {e) Glanv. 1. 7, o. 3. (c) 2 Feud. 66. (/) Mirrour, o. i. s. 3. [d) Hale's Hist. 0. L. o. 11. CHAP. XI.— OF TITLE BY DESCENT. 391 [now stands (g) ; except, indeed, in Kent, where they gloried in the preservation of their antient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons {h), — and except, also, in some particular manors and townships, where their local customs continued their descent, sometimes to the youngest son only, or in other more singular methods of succession. As to the females, they are still left as they were by the antient law ; for being all equally incapable of performing any personal service, and therefore one main reason for preferring the eldest not applying, such preference would have been injurious to the rest ; and the other principal purpose (the prevention of the too minute subdivision of estates) was left to be considered and provided for by the lords, who had the disposal of these heiresses in marriage. However, the succession by primogeniture, even among females, takes place as to the inheritance of the crown; wherein the necessity of a sole and determinate succession is as great in the one sex as in the other («). And the right of sole succession, though not of primogeniture, is also established with respect to female dignities and titles of honour. For if a man hold an earldom to him. and the heirs of his body, and die, leaving only daughters, the eldest shall not, as a matter of course, be cotmtess, but the dignity is in suspense or abeyance, tiU the king shall declare his pleasure ; for he, being the fountain of honour, may confer it on which of them he pleases (k) ; in which disposition is preserved a strong trace of the antient law of feuds, before their descent by primogeniture even among the males was established ; viz. that the lord might bestow them on which of the sons he thought proper ; "progres- sum est ut ad filios deveniret, in quern scilicet dominus vellet beneflcium confirmare" {I).'] {g) Bract, lib. ii. oo. 30, 31. (*) Ibid. (A) Sonmer, Gavelkind, 7. W 1 Feud. 1. , (i) Co. Litt. 165 a. 392 BK. II. pV RIGHTS OF PEOPBRTY.— PT. I. THINGS REAL. IV. The fourth rule or canon of descent is, that the issue of the children of the purchaser represent or take the place of their deceased parents in infinitum, subject always to the third rule or canon having full operation among them. [Thus the child, grandchild, or great-grandchild, either male or female, of the eldest son, succeeds before the younger son, and so in infinitum; and these represen- tatives shall take neither more nor less, but just so much as their principals would have done (w). As if there be two sisters, Margaret and Charlotte, and Margaret dies, leaving six daughters; and then John Stiles, the father of the two sisters, dies without other issue; these six daughters shall take among them exactly the same as their mother Margaret wpuld have done had she been living, — that is, a moiety of the land of John Stiles, in coparcenary ; so that upon partition made, if the land be divided into twelve parts, thereof Charlotte, the surviving sister, shall have six, and her six nieces, the daughters of Margaret, shall have one a-piece. This taking by representation is called succession ^er stirpes, according to the roots ; since all the branches in- herit the same share that their root, whom they represent, would have done. And by dividing the inheritance ac- cording to the roots or stirpes, the rule of descent is kept uniform and steady ; the issue of the eldest son excludes all other pretenders, as the son himself, if living, would have done ; but the issue of two daughters divide the in- heritance between them, provided their mothers, if living, would have done the same : and among these several issues or representatives of the respective roots, the same prefer- ence to males and the same right of primogeniture obtain, as would have obtained at the first among the roots them- selves — the sons or daughters of the deceased. As if a man hath two sons, A. and B., and A. dies, leaving two (m) Hale's Hist. C. L. c. 11. CHAP. XI. — OF TITLE BY DESCENT. 393 [sons, and then tlie grandfather dies : now the eldest son of A. shall succeed to the whole of his grandfather's estate ; and if A. had left only two daughters, they should have succeeded also to equal moieties of the whole, in ex- clusion of B. and his issue. But if a man hath only three daughters, C, D., and E., and C. dies, leaving two sons, D. leaving two daughters, and E. leaving a daughter and a son, who is younger than his sister ; here, when the grandfather dies, the eldest son of 0. shall succeed to one- third, in exclusion of the younger ; the two daughters of D. to another third, in coparcenary ; and the son of E. to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downwards in in- finitum. Yet this right does not appear to have been thoroughly established in the time of Henry the second, when Glan- ville wrote : and therefore, in the title to the crown espe- cially, we find frequent contests between the younger (but surviving) brother and his nephew (being the son and. representative of the elder deceased), in regard to the inheritance of their common ancestor ; for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew, though the nephew, by repre- senting his father, has in him the right of primogeniture. The uncle also was usually better able to perform the services of the fief, and besides had frequently superior interest and strength to back his pretensions and to crush the right of his nephew. And even in times compara- tively modem, we find that proximity, of blood occasion- ally took the place of representative primogeniture, e.g. in lower Saxony, where the younger surviving brother was admitted to the inheritance before the son of an elder deceased, — which occasioned the disputes between the two houses of Mecklenburg-Schwerin and StreHtz, in 1692 (n). in) Mod. Un. Hist. xlii. 334. 394 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. [Tet Grlanville -with us, even in the twelfth century, seems to declare for the right of the nephew by representation ; provided the eldest son had not received a provision in lands from his father, or (as the civil law would call it) had not heen forisfamiliated in his lifetime {p). King John, however, who kept his nephew Arthur from the throne, by disputing the right of representation, did all in his power to abolish it throughout the realm (q) ; but in the time of his son. King Henry the third, we find the rule indisputably settled in the manner we have here laid it down (r).J And thus much for descents to the issue of the purchaser. Y. The fifth rule or canon of descent is, that on failure of the issue of the purchaser, the inheritance shall descend to the nearest lineal ancestor then living in the preferable line ; — supposing no issue of a nearer deceased ancestor in that line to exist. And upon this rule, these various points are to be remarked : — 1. After the issue, the next descent is to the lineal ancestor. This principle, although it appears to have prevailed among the Anglo-Saxons (s), has been only recently intro- duced into the laws of England, which, on failure of descendants of the deceased, would have admitted the descendants of his lineal ancestor (that is, his own collateral heirs), under colour of a fiction formerly explained {t), but always excluded the lineal ancestor himself : so that the land would rather have escheated to the lord than have ascended to a fattier or a grandfather (m) ; to illustrate which the inheritance of an estate used to be compared to the descent of a faUing body. " Descendit jus (says Bracton) quasi ponderosum quid, cadens deorsum recta [p] Glanv. 1. 7, o. 3. vol. ii. p. 467, 7th ed., citing Leges (?) Hale's Hist. C. L. o. 11. Hen. 1, o. 70. (r) Bract, lib. ii. o. 30, s. 2. (i!) See Rule I. (s) See Hallam's Middle Ages, [u) Litt. s. 3. CHAP. XI. — OF TITLE BY DESCENT. 395 lined; et nunquam re-ascendit ed vid qud descendii" (x). This resulted from the feudal tenure; [for it was an express rule of the feudal law, that " successionis feudi talis est natura quod ascendentes non sticcedunt" (y) ; and we find the same principle recognized in the old law of France (a). Our Henry the first indeed, among other restorations of the old Saxon laws, restored the right of succession in the ascending line (a) ; but this soon fell again into disuse ; for so early as Glanville's time we find it laid down as an established law, that hcereditas nunquam ascendit, which from that time remained an invariable maxim {b) ; and the maxim was not in itself unreasonable. For if the feud of which the son died seised was really feudum antiquum, or one descended to him from his an- cestors, the father could not possibly succeed to it, because it must have passed through him in the course of its descent to the son ; unless indeed it yfexe feudum maternum, or one descended from his mother, and then the father would have been excluded by the feudal maxim already considered, as he did not derive his blood from the pur- chaser. And if it were feudum novum, or one newly acquired by the son, the father would still be excluded by the same maxim : which was founded not only upon the personal merit of the vassal which might be transmitted to his children, but also upon this consideration of military policy, that the decrepit grandsire of a vigorous vassal would be but indifferently qualified to succeed him in his feudal services. Nay, even if this feudum novum were held by the son ut fmdum antiquum, such a feud must in all respects have descended as i£ it had been really an antient feud; and therefore could not go to the father, [x) Braot. Hb. ii. o. 29. The W 2 Feud. 50. words e& md qud descendit are the (z) Domat. part 2, lib. 2 ; Mon- gist of this q^uotation ; for the in- teeq. Esp. des Lois, lib. 31, u. 33. heritanoe might always have as- {a) LL. Hen. 1, c. 70 ; Black- cended indirectly, as from the son borough v. Davis, 1 P. Wms. 40. to the uncle.— Coleridge's Black- [b] See Glanv. (temp. Hen. 2), stone, vol. il. p. 212, n. lib. 7, u. 1. 396 BK. II. or RIGHTS OF PBOPERTY. PT. I, THINGS REAL. [because if it had been an antient feud, the father must have been dead before it could have come to the son. Thus, whether the feud were strictly novum, or strictly antiquum, or novum ut antiquum, in none of these cases could the father possibly succeed (c).] Such at least have been alleged, (and apparently with truth,) as the reasons of the rule which excluded the ascending hne [d). The reasoning, however, was not consistently applied : for the elder brother should, upon the same principles, never have been heir to the younger, nor the father's eldest brother have been heir to his nephew ; and yet a succes- sion in both these collateral lines was always permitted by law (e). The rule was felt, in later times, to be opposed to natural justice, which seemed to dictate that a man's progenitors should be allowed to inherit his estate, by a right second only to that of his posterity ; and such accordingly is now the rule ; for by the Inheritance Act, 3 & 4 Will. IV. c. 106, it is provided, " that every lineal ancestor shall be " capable of being heir to any of his issue ; and in every " case where there shall be no issue of the purchaser, his " nearest lineal ancestor shall be his heir, in preference to " any person who would have been entitled to inherit, " either by tracing his descent through such lineal an- " cestor, or in consequence of there being no descendant " of such lineal ancestor (/) : so that the father shall be " preferred to a brother or sister, and a more remote lineal " ancestor to any of his issue other than a nearer lineal " ancestor or his issue " (g). 2. The descent is to the nearest living ancestor in the preferable line. How the preference is to be settled between two different (c) 2 Bl. Com. 212. ancestor (3 & 4 Will. 4, c. 106, (d) See Co. Litt. byHarg. 11a, s. 1) ; in other words, this fifth n. (1). rule or canon is read subject (e) Bl. Com. ubi sup. always, and at every step, to the (/) The expression "descend- first four rules or canons. ants" extends to aU persons who {g) Sect. 6. trace their descent through an CHAl». XI. OF TITLE BY DESCENT. 397 lines of ancestry, will appear by the next Eule. But in the meantime we are to observe, that in the same line the nearest of blood has the precedency. Thus, if on failure of the issue of John Stiles, we pro- ceed to inquire for his heir, among his lineal ancestors, we are to prefer Geoffrey Stiles, his father, to George, his grandfather (supposing both to be hving) ; and so we are to prefer Lucy, his mother, to Esther, his maternal grand- mother {h). This branch of the Rule, though in a direct sense also resting on the same positive enactment, is not, like the other, new in its principle, but agrees in substance with the law as it stood prior to the Inheritance Act, For though the lineal ancestors were not themselves permitted to succeed, yet they were always regarded as the fountains of inheritable blood, and the stocks from which the next succession must spring, so that their issue were admitted, in right of descent from them, to the inheritance («) ; and as to their issue, the rule was, that the descendants of a nearer lineal ancestor, in the preferable line, were pre- ferred to those of one more remote [j). Very similar to which, as Blackstone observes, was the law of inheritance among the antient Germans our progenitors, " hceredes successoresque sui cuique liberi, si nullum testamentum : si liberi non sunt, proadmus gradus in possessione, fratres, patrui, avunculi" (k). 3. The rule applies only in the event of the issue of every nearer deceased ancestor in the same line being extinct. For if the issue of any such ancestor exist, the order of succession is governed, as we shall see hereafter, by a different rule. VI. The sixth rule or canon of descent is, that, among .the Uneal ancestors of the purchaser, the paternal line (k) See Table of Descent (No. 0') Ibid. II.). (X;) Ibid, citing Tacitus de Mor. (s) 2 Bl. Com. 226. Germ. 21. 898 BK. II. OJP RIGHTS OF PROPERTY. — PT. I. THINGS REAL. (whether of the purchaser, or of any ancestor, male or female,) is always preferred to the maternal. Therefore Geoffrey, the father, in the annexed Table of Descent, (No. II.,) will succeed rather than Lucy, the Ktother; and if Greoffrey be dead, any of his male ancestors, George, Walter, and Richard (according to their proximity) will have the preference to any of his maternal •ancestors, or to the maternal ancestors of George, or Walter respectively ; though, on the other hand, all these maternal ancestors will take precedence of Lucy, the mother, or any ancestor of hers. Upon the same prin- ciple, when upon failure of the male line of John's paternal ancestry, by the extinction of the blood of Richard, we inquire for the next heir — ^we are to select Ann Godfrey, the mother of the more remote male paternal ancestor, in preference to Christian Smith, the -mother of a male paternal ancestor less remote ; for if we were to give the preference to Christian, we should be resorting to the maternal line of George, instead of his ■paternal, which would be contrary to our rule. This preference of the paternal line is founded on the express enactment of the Inheritance Act (3 & 4 Will. IV. c. 106) ; which provides (by sect. 7), "that none of the " maternal ancestors of the person from whom the descent "is to be traced, nor any of their descendants, shall be " capable of inheriting, until all his paternal ancestors and " their descendants shall have failed (l) ; and also that no " female paternal ancestor of such person, nor any of her " descendants, shall be capable of inheriting until all his -" male paternal ancestors and their descendants shall have " failed ; and that no female maternal ancestor of such " person, nor any of her descendants, shall be capable of "inheriting until aU his male maternal ancestors and their " descendants shall, have failed ; " and which further pro- vides (by section 8), " that where there shall be a failure (I) As to such failure, see Gf^reaves v. Greenwood, 2 Ex. D; 289. CHAP. XI. — OF TITLE BY DESCENT. 399 " of male paternal ancestors of the person from whom the " descent is to be traced, and their descendants, the mother " of his more remote male paternal ancestor, or her de- " scendants, shall be the heir or heirs of such person in " preference to the mother of a less remote male paternal " ancestor, or her descendants ; and where there shall be a " failure of male maternal ancestors of such person, and " their descendants, the mother of his more remote male " maternal ancestor, and her descendants, shall be the heir " or heirs of such person in preference to the mother of " a less remote male maternal ancestor, and her de- " scendants." The first of these two sections (viz., sect. 7) (it may be observed) is a mere adoption of the principle of the former law, under which the blood of the paternal ancestor was preferred to that of the maternal ; and the blood of the male paternal ancestor to that of the female paternal ; and the blood of the male maternal to that of the female maternal (w). The feudal maxim, it will be remembered, was that the heir must in all cases derive his blood, that is, be lineally descended, from the purchaser ; but where the purchaser's estate was in fee simple, his collateral rela- tions were (as we have seen) let in by the aid of a fiction, which supposed the feud to be of indefinite antiquity {n) ; in other words, which supposed the feud to have descended upon the purchasers from some remote supposititious ancestor ; and upon the basis of that fiction the collaterals of the last tenant, ex parte pafernd, would be more probably of the blood of this supposititious purchaser than those ece parte materna ; because the estate presumably came to the last tenant through his male rather than through his female progenitors. The second of the two sections in question (viz., sect. 8) settled a question which had formerly been the subject of much dispute, namely, whether the issue of the paternal grandfather's maternal (ot) 2 Bl. Com. 234. («) Vide sup. p. 382. 400 BK. II. OF EIGHTS OF PROPERTY. PT. I. THINGS REAL. grandfather, or the issue of the paternal grandmother's father, were the true heir of the purchaser (o). According to many old authorities, including Lord Bacon and Sir Matthew Hale, the latter had the hetter claim, it being held by these writers (in conformity with a more antient opinion), that all the female ancestors, on the part of the father, were equally worthy of blood, and that in that case prooovmity shoiild prevail {p). Blaokstone, however, dissented from that doctrine {q) ; and his view (which is the one adopted by the Inheritance Act) appears to be, on the feudal principles above expounded, the more correct one ; for, reverting to the fiction by which collaterals were introduced into the succession, as we are led by a chain of successive presumptions to suppose the estate of John Stiles, in the annexed Table of Descent (No. II.), to have descended from his father Geoffrey, rather than from his mother Lucy, and from his grandfather George Stiles, rather than from his grandmother Cecilia Kempe ; so, if it did not descend to George, from Walter his father, the next presumption would be, that it descended from his mother Christian Smith, who again would presumably derive it from her father WiUiam ; so that the issue of William Smith, the paternal grandfather's maternal grandfather, would necessarily have a better title than the issue of Luke Kempe, the paternal grandmother's father. VII. The seventh rule or canon of descent is, that where an ancestor, to whom, if living at the purchaser's death, the inheritance would, according to the fifth Eule, descend, dies before the purchaser, leaving issue, the issue of such ancestor in infinitum shall represent him, according to the same law of succession laid down with respect to the issue of the purchaser; but with this addition, that (o) See Krst Eeal Property Eep. Com. Law, o. 11. PP- 11. 14- (?) 2 Bl. Com. 238 ; see Daviea [p) See Bao. Elem. o. 1 ; Hist. v. Lowndes, 5 Bing. N. 0. 169. CHAP. XI. OF TITLE BY DESCENT. 401 those related by the whole blood to the purchaser, are pre- ferred to those related by the half-blood. It is obvious from the nature of consanguinity, that, as regards the purchaser, the issue of his lineal ancestor are necessarily his collateral kindred; and on the subject of collateral inheritance (which this rule or canon first intro- duces us to), it deserves remark, in the first place, that the right of collaterals no longer depends on the fiction of the feudum novum ut feudum antiquum, but on the positive en- actment of the Inheritance Act (r) ; so that now an estate purchased in fee simple need no longer be considered as granted to hold ut feudum antiquum, but rather as a new feud, with inheritable properties different from those which attached to a new feud under the antient system, soil., being descendible not only to those who derive their blood from the purchaser, but to those also from whom he derives his, and to their descendants. And this second point is to be remarked, regarding collateral inheritance, namely, that the right of collaterals is now referable uni- versally to that of the ancestor from whom they descend, and only through him can they ever be considered as heirs to the purchaser ; so that the old law, which held that between brothers and sisters the descent was to be considered, for some purposes, ^s immediate is), is now ex- ploded, the Inheritance Act having now expressly provided that no brother or sister shall be considered to inherit im- , mediately from his or her brother or sister, but that every descent from a brother or sister shall be traced through the parent {t). And now reverting to the Eule under consideration, — First, the issue of the purchaser's lineal ancestor repre- sent biTifi in infinitum; and that according to the same law of succession as prevails among the issue of the pur- chaser. if) 3 & 4 Will. 4, c. 106, 8S. 7, 8. Kynnaird v. Leslie, Law Rep., 1 («) 2 Bl. Com. 226 ; Watk. Deso. C. P. 389. Ill, n. ; H. Chit. Deso. 64, 354 ; (<) 3 & 4 Will. 4, u. 106, s. 5. • VOL. T. D n 402 BK. II. OF EIGHTS 01' PROPERTV. PT. I. THINGS REAL. Thus, if John Stiles, in the annexed Tahle of Descent (No. II.), purchases land, and dies entitled to the same, without issue, and his father Geoffrey be dead; it descends to Francis (the eldest son of Geoffrey, and the brother of John), rather than to George the grandfather; or if Francis be also dead, leaving several children, then to the eldest son of Francis, the nephew of John, and does not pass to any remoter ancestor of John, unless the issue of Geoffrey are exhausted. So, it wiU descend to a son, or even a daughter of Francis (if he left no son), rather than to OUver Stiles, the brother of John ; for such son or daughter represents the father, who, as the eldest son of Geoffrey, represented him. Secondly, collaterals of the whole blood are preferred to collaterals of the half-blood. [A kinsman of the whole blood, is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For every man's blood is compounded of the bloods of his respective ancestors ; and he only is of the whole or entire blood with another, who hath, so far as the distance of degrees will permit, all the same ingredients in the composition of his blood, that the other hath. Thus, the blood of John Stiles being composed of those of Geoffrey Stiles his father and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parents, has entirely the same blood with John Stiles, that is to say, he is his brother of the whole blood (m) . But if, after the death of Geoffrey, Lucy Baker the mother marries a second husband, Lewis Gay, and hath- issue by him, the blood of this issue, being compounded of the blood of Lucy Baker (it is true) on the one part, but that . of Lewis Gay instead of Geoffrey Stiles on the other part, it hath therefore only half the same ingredients with that of John Stiles, so that he is only his brother of the half- blood.] So also if- the father has two sons, A. and B., by («) Table of Descent (No. II.). CHAP. XI. OF TITLE BY DESCENT. 403 different wives (or, according to the technical expression, by different venters), now these brethren are not brethren of the whole blood, but of the half-blood only. The Inheritance Act assigns to such of the purchaser's collateral kinsmen as are of the whole blood, and their issue, the preference to those who are of the half-blood only, in the same degree, but admits the latter to the next place in the succession (x). Thus if the father have a son A., by one wife, — and two sons, B. and 0., and a daughter, by a second wife, — and B. purchase land, and die without issue, and the father be also dead, 0., the younger brother, or, on failure of 0. and his issue, the sister, shall succeed in preference to A., the elder brother. But the latter (though only of the half-blood) and his issue, will succeed in preference to any collateral relation not descended from B.'s father, though of the whole blood with B. So on the death of John Stiles the purchaser, in the annexed Table (No. II.), without issue, his father Geoffrey being also dead, he will be succeeded, not only by his elder brother Francis, or his second brother Oliver, but even by his sisters Bridget and Alice, in preference to his half-brother, the son of his mother Lucy and Lewis Gray, who cannot indeed inherit until the paternal line are exhausted ; for his mother, whom he represents, could not (by the sixth Eule) have taken whUe any of the paternal line remained. But the son of Lucy and Lewis Gay (and his issue after him) will stand next to his mother, in the order of succession, and in preference to any other col- lateral relation of John Stiles ea- parte maternd, though of the whole blood with John Stiles. In the admission of the half-blood, the Inheritance Act had introduced a new principle of inheritance ; for, as the . law before stood, the half-blood (Hke the lineal ancestor) were totally excluded, and the land would rather have escheated to the lord than have gone to any kinsman (how- {x) 3 & 4 'Will, i, 0. 106, B. 9. 1>D 2 404 BK.n. QF EIGHTS OF PKOPERIT. PT. I. THINGS REAL. ever near) of the half-blood. Nay, even when a father died, and his lands descended to his eldest son A., who entered thereon, and died seised without issue, still B., the son of the same father hy another wife, could not have been heir to these lands, because he was only of the half- blood to A., the person last seised ; but they would have descended to a sister (if any) of the whole blood to A., for in such cases the old maxim applied, that possessio fratris- facit sororem esse hmredem. Yet if A. had died without entry, then B. might have inherited ; not as heir to A. his half-brother, but as heir to their common father, who was the person last actually seised {y). . ,This exclusion of the half-blood was a feature almost peculiar to the law of England ; and it rested entirely upon, and was in fact auxiliary to, that principle of the feudal law, which required the heir to derive his blood from the purchaser, — which a kinsman of the half-blood did not do, or at all events did not so certainly do as a kinsman of the whole blood. To illustrate this by example {z) : — ^Let there be John Stiles and his brother Erancis, by the same father and mother, and another brother born of the same mother by Lewis Gay, a different father. Now if John die seised of lands, but it is uncertain whether they descended to him from his father or mother, in this case his brother Francis of the whole blood is sure to be in the line of descent from the first purchaser, whether it were the line of the father or of the mother. But his half-brother by Lewis Gay is to the full as likely not to be descended from the original purchaser as to be descended from him, and there is consequently no reasonable presumption of his having derived his blood from the original purchaser at all ; therefore the antient rule (which was itself founded on a fiction) proceeded upon this uncertainty to disinherit altogether a kinsman who was only of the half-blood ; for (y) 2 Bl. Com. 227. (b) 2 Bl. Com. 228. CHAP. XI. OF TITLE BY DESCENT. 405 there was no fair reason to believe that such a kinsman had in him the blood of the supposititious first purchaser (a). The antient law, in this respect, appears to have overlooked the fact, that a kinsman of the half-blood to the deceased, supposing him to have derived the estate from some un- known ancestor, would in some instances have the same chance of being descended from that ancestor as a kinsman of the whole blood in a remoter degree, and in other instances a much greater. Thus a brother of the half- blood would have the same chance as an uncle of the whole, on the same side, and more than a great uncle ; and yet, in these instances, the remoter kinsman was always admis- sible, while the nearer was incompetent to succeed. The antient law excludiug the half-blood operated with especial severity in this respect, namely, that it applied even where the deceased tenant did not take by purchase, but by descent, and had a relative of the half-blood known to be descended as well as himself from the purchaser ; — as in the case already noticed, where upon the death of A. with- out issue, seised of lands which had descended to him from his father, his half-brother B., son of the same father, was debarred from the inheritance, — a severity which may have been the logical, but certainly it was an extreme, result of the feudal principle, and which (the better opinion seems to be) was not originally involved in that principle at all. [For originally the custom of excluding the half-blood, in Normandy, extended only to exclude a f rater uterinum where the inheritance descended a patre, and vice versd ; and in England it appears to have remained a doubt in the time of Bracton and of Fleta, whether the half-blood on the father's side was excluded from the inheritance which originally descended from the common father, or only from such as descended from the respective mothers, and from newly-purchased lands; and the rule, as laid down by Fortescue, extends no further than this, /rater fratri uterino (a) See 2 Bl. Com. 231, note by Christian, 406 BK. II. OF IIIGHTS OF PROPERTY. PT. I. 'rHITSGS REAL. Ijiion succedet in hcereditate pater na (b). It is moreover -worthy of observation that the crown has always been held capable of descending to the half-blood of the pre- ceding sovereign (c), provided he be the blood of the first monarch of the reigning family who was conqueror (which in feudal language is the same as purchaser) of the realm («f). Thus it actually did descend from King Edward the sixth to Queen Mary, and from her to Queen Elizabeth, who. were respectively of the half-blood to each other.] Eor though none can be a claimant to the crown unless known to be descended from the original stock — which was at one period King WiUiam the Nor- man, and is now, by Act of Parliament (12 & 13 Will. III. c. 3), the Princess Sophia of Hanover (e) — yet, when such descent is known, the feudal rule is satisfied, whether he be related to the last sovereign by the whole, or by the half-blood. An d upon the same principle, in titles of honour (/) and in aU estates tail {g), half-blood was never an impediment to the descent ; because, in these cases, the pedigree from the first donee must be strictly proved : and the feudal maxim is consequently carried into effect, with- out resorting to any auxiliary rule. And now, by the Inheritance Act, it has been provided (as regards fee simple inheritances generally) : — " That any person related " to the person from whom the descent is to be traced by " the half-blood shall be capable of being his heir ; and the " place in which such relation by the half-blood shall stand " in the order of inheritance, so as to be entitled to inherit, " shall be next after any relation in the same degree of " the whole blood and his issue, where the common ances- " tor shall be a male ; and next after the common ancestor, " where such common ancestor shall be a female ; so that " the brother of the half-blood on the part of the father (S) Fort. De Laud. Leg. Aug. («) 2 Bl. Com. 233 ; and see post, 0. 5. bk. r7. pt. I. 0. in. (c) Plowd. 245 ; Co. Litt. 15 b. {/) Co. Litt. 15. («) As regards the descent of Conveyancing Act, 1881, s. 30, as trust and mortgage estates from a regards deaths on or after 1st Janu- sole (or last surviving) trustee or ary, 1882, whether the deceased mortgagee, by the 37 & 38 Vict. trustee or mortgagee dies testate or 0. 78, s. 5, as regards deaths be- intestate, and whether he is a bare tween 7th August, 1874, and 1st trustee or not, freehold lands de- January, 1876, and by 38 & 39 Vict. soend on his legal personal repre- 0. 87, 8. 48, as regards deaths in- sentative ; and the same rule applied testate between 1st January, 1876, as to copyholds, until the Copyhold and 1st January, 1882, in case the Act, 1887, ». 45, confined the ope- trustee or mortgagee was a hare ration of sect. 30 of the Conveyano- trustee, the lands (freehold or copy- ing Act, 1881, to freeholds. (See hold) descended upon his legal In re Mills' Trusts, 37 Oh. Div. personal representative; and by 312 ; 40 Ch. Div. 14.) 412 BK. II. OF KIGHTS OP" PROPERTY. PT. I. THINGS REAL. any action of trespass qiiare elausum /regit for injuries com- mitted to the land («) . If the estate be one in expectancy, he has of course no right of entry until the particular interest determines : hut if it be a reversion or remainder immediately expectant on an estate for years, the possession of the particular tenant operates, upon a principle before explained, as that of the heir or remainderman or rever- sioner ; whose seisin is in that case considered as a seisin in deed, and not in law only (o) . 2. As regards the phrase " breaking the descent," — it is to be observed that where a man acquires lands by descent, they retain the inheritable quality which they had in the purchaser or propositus ; wherefore a paternal inheritance never passes over to the maternal heirs of the person last entitled ; nor will a maternal inheritance pass over to the paternal heirs of such person. And in this respect the title by descent differs remarkably from that by purchase ; for by the latter the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, that is, first to those of the paternal, and then to those of the maternal line. It follows, that if a person who has acquired an estate by descent conveys it to a new purchaser, the line of descent is broken ; and even if that purchaser conveys it back again to him, the interruption still con- tinues; for the former owner will then hold it as by purchase, and not as by descent, and will therefore be able to transmit it to his heirs on either the paternal or the maternal side. Thus, if a man seised of lands as heir on the part of his mother (and which consequently no relation on the father's side can, as such, inherit), con- veys them to another, and afterwards obtains a recon- veyance of them, to hold to him and his heirs, and then (n) Bao. Ab. Trespass (C). seisin in law only and seisin in deed [o) Co. Litt. 15 a ; Doe v. Keen, (wHoh latter is the only proper 7 T. R. 390 ; Doe v. Whichelo, 8 seisin), see Leach v. Jay, 9 Ch. D. T. E. 213. And on the practical 426. efleot of this distinction "between CHAP. XT. OF TITLE BY DESCENT. 4l'i dies without issue, his heirs on the part of his father shall inherit, and in preference to those on the mother's side (p). But a mere alteration in the quality or circumstances of an estate wlII not hreak the descent ; and therefore, if parceners make partition of their land, they are still in of their respective shares by inheritance, though those shares are no longer held in coparcenary, hut in seve- ralty. 3. An estate in fee simple descending on the heir, comes to him charged with the debts of the ancestor from whom it descended (q). This liability has always been recog- nized in respect of such of the ancestor's obligations as (in legal language) have accrued by specialty, a term which includes an obligation accruing by " matter of record " (such as a judgment or other proceeding recorded in a court of justice) as well as an obligation arising on a deed, i, e., a contract under seal ; though, unless the ancestor bound his heirs eo nomine, their liability was not held to be such as could be enforced in the courts of law {r). And the heir is not liable (whatever the kind of obligation of his ancestor may have been) to be charged as of his own proper debt ; but only so far as he has taken, in his character of heir, an estate sufficient to satisfy the debt ; which suffi- cient estate is called, in law, assets, from the French word assez, enough (s). But the assets which descend to an heir may consist either of legal or of equitable estate; and though equitable interests are not in general noticed at law, yet in this case it is otherwise : for by the Statute of Frauds (29 Car. II. c. 3), s. 10, if any cestui que trust shall die, leaving a trust in fee simple to descend to his heir, the trust shall be assets by descent, and the heir liable to (^) Co. Litt. 12 b; Doe jj. Mor- (r) See Harbert's case, 3 Eep. gan, 7 T. E. 105 ; 1 Prest. Est. 420, 12 b ; but see now 44 & 45 Vict. 458, 459 ; Wood v. Douglas, 28 Ch. o. 41, s. 59, whereby all specialty Div. 327 ; Moore v. SimMn, 31 Ch. debts now bind the heir. pj^' gg_ ' [s) 2 Bl. Com. 243, 244 ; 2 Saund. (j) See Bnshby v. Dixon, 3 Bam. by Wms. 7, n. (4). & Cress. 298. 414 BK. II. OF BIGHTS OF PROPERTY. PT, I. THINGS REAL. be charged with the ohligation of his ancestor by reason of such assets, as if the legal estate had descended in posses- sion upon him. But though the heir was thus subject to liability for the specialty debts of his ancestor (to the extent of the estate inherited), no such 'liability at one tinae attached to a devisee; and therefore, to protect creditors from such devises as might tend to their prejudice, it was proTided by statute 3 Wilham and Mary, c. 14, called "The Statute of Fraudulent Devises," that where a deceased person had devised any real estate, without making it subject to the payment of his debts, his devisee should be liable to be charged in respect of the real estate so devised, in the same manner as, and jointly with, the heir : and a creditor, bringing an action for that purpose, should be entitled either to make the devisee a joint defendant with the heir, or to sue the devisee alone, where there was no heir liable {t) . Still, however, no remedy existed against the real estate of a deceased person (whether in the hands of an heir or devisee), for creditors claiming upon simple contract {i.e., not under deed), or claiming under deeds in which the heirs were not expressly bound ; but this is no longer the case ; for the claims of creditors of every class have now been effectually secured through the medium of proceed- ings in equity. At first, this equitable redress was con- fined to cases where the deceased was a person carrying on trade within the meaning of the bankrupt laws, it being provided by 47 Greo. III. sess. 2, c. 74, and aiterwards by 11 Geo. IV. & 1 WiU. IV. c. 47 (m), that, in such a case, the creditors by simple contract should be entitled by pro- ceedings in equity, in such manner as therein mentioned, to enforce payment out of the real estate descending on (*) See Farley v. Briant, 3 Ad. & App. 112 ; also, Order xvi. rule 45 Ell. 839; Hunting v. Sheldrake, 9 (1883). Mee. (few. 256; Coope«'..Oresswell, {«) SmaU v. Hedgeley, 34 Oh. Law Sep., 2 Eq. Ca. 106 ; 2 Oh. Div. 379. CHAP. XI. OF TITLE BY DESCENT. 415 Ills heir, or devised by his Avill, — and not made suhject to the payment of his debts. Subsequently, however, by 3 & 4 Will. IV. 0. 104, it was enacted more extensively — that when any person should die entitled to any real estate, not by his wiU made subject to his debts, such estate should be considered as assets to be administered in equity, for payment of his debts as well on simple contract as on specialty ; but the last mentioned Act stiU gave a priority to those who in their lifetime had placed their claims upon a basis of stronger obligation, for it provided, that, in the administration of the assets in equity, all creditors by specialty in which the heirs were bound eo nomine, should be paid in full before any creditors by simple contract, or claiming on specialties in which the heirs were not so bound. However, by the statute 32 & 33 Yict. c. 46, it has been enacted that, in the administration of the estate of any person who shall die on or after 1st January, 1870, no debt or liabihty of such person shall be entitled to any priority or preference by reason merely that the same is secured by an instrument under seal, or is otherwise made a specialty debt ; but that all his creditors, as well specialty as simple contract, shall be treated as standing in equal degree, and be paid accordingly out of his assets, whether they be legal or equitable ; but, of course, this enactment does not prejudice any lien, charge or other security which any creditor may hold for his debt («). And by the Judicature Act, 1876 («/), s. 10, it has been provided that as from the 2nd November, 1875, iu the -administration of the estates of deceased insolvents, the Kke rules shall prevail as in bankruptcy, as regards the mode of proof by secured and unsecured creditors, and as to the classes of debts and kinds of liability that are provable, and as to the valuation of annuities and con- [x) This Act is commonly known ^270; Shirrefl v. Hastings, 6 Ch. as "Hinde Palmer's Act." As to D. 610. its construction, see WiUiams v. { may aliene, and to whom : and, secondly, fiow a man may aHene, that is to say, to discuss the several modes of conveyance. I. Who may aliene, and to whom : or, in other words, who is capable of conveying and who of accepting such conveyance. And herein we must consider rather the incapacity than the capacity of the several parties ; for all persons are priwA facie capable both of making and of accepting conveyances, -unless the law has laid them imder any particular disabilities. It is clear that at one period of our law attainted per- sons, though they might purchase lands, were disabled irom holding them (6), — ^the lands so purchased being subject to escheat and forfeiture, as already explained (c). They were also incapable of conveying, so as to afEect the crown and the lord, and that from the time of the offence committed ; for such conveyance might tend to defeat the crown of its forfeiture, or the lord of his escheat {d). But as regards the present state of the law, these positions require to be considered in connection with the modem statutes affecting escheat and forfeiture, which have been noticed in a former chapter (e). In like manner corporations, religious or other, may purchase lands ; yet, unless they have a licence to hold in mortmain, they cannot retain such purchase, but it shall be forfeited to the lord of the fee (/). As to their power of alienation, they might in general, at the common law, make estates at their pleasure of any lands and tenements they held in their corporate right {g) — though, as to ecclesiastical corporations sole, this power was somewhat (J) 2 Bl. Com. p. 290 ; BoUook v. [e) Vide sup. p. 427. Dodda, 2 B. & Aid. 275. (/) See however the exceptions («) Vide sup. p. 424. noticed sup. pp. 433 — 448. -- {d) Co. Litt. 42 b ; Doe v. Prit- (y). 2 Bl. Com. 318. chard, 5 B. & Adol. 782, CHAP. XV. — OF TITLE BY ALIENATION. 455 restrained by the necessity of obtaining tbe confirmation of certaia other parties to make the alienation binding on their snooessors ; — and with this general right of alienation the legislature has only interfered in particular instances {h). Thus the powers of alienation belonging at the common law to ecclesiastical corporations — as well as to such lay corporations as are colleges or hospitals — are now regulated by a variety of Acts, of which an account will be found in that chapter of this work which treats of the endowments and provisions of the Church («). The powers of aliena- tion belonging at the common law to corporations, have also been restrained in the case of such lay corporations as are called municipal (viz., incorporated towns) ; for these were disabled by 5 & 6 Will. IV. c. 76, s. 94, from selling or mortgaging any lands, tenements, or hereditaments, (and in general also from demising them for any term exceeding thirty-one years,) except in pursuance of some agreement entered into by the body corporate before 5th June, 1835 (k) : though by the same Act, and by 6 & 7 Will. IV. c. 104, s. 2, it was provided, that any dis- position whatever of such lands, tenements, or heredita- ments might be made with the approbation of the lords of the treasury, or any three of them; and on such terms as they might think fit to sanction {}) ; and like [h) Colchester v. Lowten, 1 Ves. borougli prisons or court houses, or & B. 226. for the sites of schools for the poor, (»)'vide post, bk. iv. pt. n. &o., and as to charging municipal g_ ju_ land with the expenses of improve- (A) By 2 & 3 Will. 4, c. 69, s. 3, ments by way of drainage. As to municipal corporations were re- the sale, by municipaJ coi-porations, strained from selling lands, Sec, to of their church patronage, see 5 & defray the expenses of parUament- 6 Will. 4, c. 76, s. 139 ; 6 & 7 Will, ary elections. 4, c. 77, s. 26 ; o. 104, s. 3 ; 1 & 2 (Z) See also 4 & 5 Vict. u. 38, Vict. c. 31. As to grants, by cor- B. 6 • 5 & 6 Vict. c. 98 ; 8 & 9 Vict. porations of seaport towns, of sites 0. 66; 12 & 13 Vict. o. 49 ; 14 & 16 for Sailors' Homes, 17 & 18 Vict. Viot.'o. 24 ; 16 & 16 Viot. o. 49 ; c. 104, s. 546 ; and as to grants by 23 & 24 Vict. c. 16, as to the mort- any municipal corporation of lands gage or sale of municipal oorpo- for pubUc recreation or play- ratl land for the purposes of grounds, 22 Vict. c. 27, s. 3. 456 BK. II, OF RIGHTS OF PROPEBTY. PT. I. THINGS REAL. restrictions and provisions are contained in the Municipal Corporations Act, 1882 (m). The conveyances of insane persons (except during a lucid interval) are also, generally speaking, void (w) ; and the conveyances of idiots are altogether void. It is said, indeed, that the feoffment of a lunatic is not absolutely ■void but voidable only, owing to the solemnity of the livery, which is an essential part of that conveyance — the pracr tical difference between a void and a voidable transaction being chiefly this, that the former is a mere nullity, and therefore incapable of confirmation, but the latter may be either avoided or confirmed ex post facto {o). The feoff- ment may be avoided during the lunatic's life by the person legally authorized to act for him ; or, after his death, by his heir, or any other person interested (p) ; there is, however, a somewhat antiquated idea that it cannot be avoided by himself, on the ground of his own past insanity, there being a maxim in the law, in regard to transactions merely voidable, that no man shall be allowed to stultify himself, that is, to plead his own unsoundness of mind in a court of justice {q). But the maxim in question has undoubtedly no application; where the transaction by one non compos is absolutely void (r), which it is in the case of all conveyances other than a feoffment. Such being the state of the law with respect to alienation by one insane, it is laid down, on the, other hand, that he is competent to purclmse (s), though he cannot be compelled to retain what he purchases, — ^the transaction (if found to be disadvantageous to him) being {»») 46 & 46 Viot. 0. So, SB. 105— (j) lb. ; Beverley's case, 4 Eep. 110. 123b; Stroud ».M:ar8haU,Cro.Eliz. («) Thompson v. Leach, Comb. 398 ; Sugd. Pow. p. 395. 468. (r) 2 Bl. Com. 291; Yates ». (o) 2 Bl. Com. 293 ; Whelpdale's Boen, 2 Stra. 1104 ; F. N. B. 202 ; ease, 5 Eep. 119 ; 2 Inst. 483 ; Moor, Lltt. s. 406 ; Jenk. 40 ; 3 Mod. 310 ; 43. 1 Eq. Ca. Ab. 279. {p) 2 Bl. Com. 292. (s) Co. Litt. 3 b. CHAP. XV. — OF TITLE BY ALIENATION. 457 liable to subsequent avoidance on the ground of bis in- sanity (<), The conveyances and purchases of infants, that is, per- sons under twenty-one, were in general not void, but void- able; and they might be avoided either by themselves in their lifetime, or by their representatives after their death (m). But if one that was voidable had been con-i firmed by the infant on his coming of age, and he should then have died, it could not afterwards have been im- peached by his representatives, on the ground of its having been effected during infancy («). And in this we are to be understood as speaking of conveyances strictly so called, as distinguished from matters of contract only; for the contracts of an infant (unless for necessaries) are now, by the Infants' Eelief Act, 1874, absolutely void in all cases, and are not confirmable by the infant even upon his attaining full age {y) ; but apparently the Act in question does not extend to conveyances properly so called. [The case of a married woman is somewhat different. She might purchase an estate without the consent of her husband ; and the conveyance was good during the cover- ture, till the husband avoided it by some act declaring his dissent (2). And though he did nothing to avoid it, or even if he actually consented, the feme covert herself might, after the death of her husband, have waived or disagreed to the same ; nay, even her heirs might have waived it after her, if she died before her husband, or if in her widowhood she did nothing to express her ratifica- tion of the transaction (a) ;] but, of course, the mamed woman is now bound by her purchase equally as any other (1!) See 2 Bl. Com. 292 ; Sugd. riU, 3 Taunt. 307. Puroh. vol. ii. p. 107, 9tli edit. ; (x) 2 Bl. Com. 292 ; 2 Inst. 483 ;. Beavan v. M'Donnell, 9 Exoh. 309 ; 5 Eep. 119. 10 Exch. 184. W Infants' Eelief Act, 1874 (37 («) SeeZoueh». Parsons, 3 Burr. & 38 Vict. c. 62). 1794; Moor, 43; Baylisji. Dineley, (2) Co. Litt. 3, a. 3 Mau. & Sel. 477 ; Gibbs v. Mer- (e) Ibid. 458 BK. II. OF RIGHTS OF PROPERTY. — ^PT. I. THINGS REAL. purchaser ■would be (J). But all conveyances of her estate by a married woman (except so far as regards her interest in land settled or otherwise belonging to her for her sepa- rate use) are absolutely void, unless made in such particular method as the law has specifically appointed for that purpose (c). And this was formerly, for the most part, by fine or recovery ; but by 3 & 4 WiU. IV. e. 74, it is provided that in lieu of these proceedings (which the Act abolishes) her conveyance shall, after 31st December, 1833, be by deed acknowledged (after having been first examined thereupon apart from her husband) in such form as therein directed, and executed with the concurrence of her hus- band {d). And in this method she may now in general dispose of any estate (not being separate estate) which she either alone, or she and her htisband in her right, may have in lands of any tenure (e). And by 8 & 9 Yict. c. 106, s. 7, it is moreover provided, that an estate or interest in any tenements or hereditaments in England, of any tenure, may be disclaimed by a married woman by deed made conformably to the above provisions. Of course, as regards her separate estate, she may freely dis- pose of that, like any other person, and without a deed acknowledged. The case of an alien is peculiar (/). For though he has always been able to acquire property of any description by purchase, yet after purchase he could, at one time, hold no land, house, or other tenement, save only a lease for years of a house, — provided he were an alien friend and mer- chant ; for all other purchases, when found by an inquest of office, were immediately forfeited to the Mng, whether (S) Married Women's Property Bancks v. Ollerton, 10 Exoh. 168 ; Act, 1882 (46 & 46 Vict. c. 75). In re Hannah Packer, Law Rep., (c) 2B1. Com. 293. 6 C. P. 424; Doowra v. Faith, (i) 3 & 4 Will. 4, c. 74, 88. 77, 29 Ch. Div. 693. 79, 91; 17 & 18 Vict. o. 75; and (e) Vide post, bk. ii. pt. i. o. xix. 45 & 46 Vict. c. 39, s. 7 ; see In (/) See the definition of an re Sarah Woodcock, 1 C. B. 437 ; alien, sup. pp. 146, 421. CHAP. XV. OF TITLE BY ALIENATION. 459 in the meantime conveyed away by the alien or not {g) ; and even this limited capacity was subject to exception, for if the lease was made to an alien artificer, then by the statute 32 Hen. YIII. c. 16, s. 13, it was altogether void {h). The state of the law, however, on this subject has been recently brought into accordance with more enlightened views ; for by the Naturalization Act, 1870 (33 & 34 Yict. c. 14), an alien, although being and re- maining an alien, may now not only acquire and hold real and personal property of every description in the same manner in all respects as a natural-born British subject, but may also as freely dispose of the same. But this provision does not apply to any estate or interest acquired before the passing of that Act («). Having now considered the capacities of persons as alienors and alienees respectively, we may advert, in con- nection with the capacity or incapacity of alienors, to cer- tain legislative provisions which have been made at various times to prevent the inconveniences apt to arise from the disability of parties, (through insanity, infancy, coverture, or otherwise, as above explained,) to exercise such powers of alienation as would otherwise be incident to their estates. And here we may refer, in the first place, to a variety of statutes which, in respect of the alienation of estates gene- rally considered, empowered the Lord Chancellor (or com- mittees, guardians, and others acting under his authority) to execute instruments for a lunatic or infant, where loss or disadvantage would be sustained by his incapacity to execute them for himself {j). To these, however, a very [g) 2 Bl. Com. 293 ; Anon., 4 this Act a previous statute (7 & 8 Leon. 84. Vict. o. 66), which allowed aliens (A) SeeCo. Litt. 21d, andnote(7), to hold leases for residence or trade by Harg. ; Jevens v. Harridge, 1 for a term of twenty-one years, is Saund. by Wms. 6, and n. (1) ; repealed. Lapierre v. M'Intosh, 1 Per. & U) See 3 & 4 Will. 4, o. 74, ss. Day. 629. 33,91; 8 &9 Viot.c. 97, s. 3; c. 118, (i) 33 & 34 Vict. 0. 14, s. 1. By ss. 20, 137 ; 13 & 14 Vict. oo. 35, 60 ; 460 BK. U, OF EIGHTS OF PROPERTY. PT. I. THINGS REAL. important addition was made, in the year 1856 by the 19 & 20 Yict. c. 120, with reference chiefly to the alienation of " settled estates " (k). It is in the case of these, that (by reason of limitations in favour of parties yet unborn, or owing to the infancy, coverture, or other disability of various parties in existence,) the inconveniences, above re- ferred to, were chiefly felt; and particularly as regards the impossibility, under such circumstances, of making effectual leases or sales as the interest of the settled pro- perty was found from time to time to require. And though the Act of 1856, together with some subsequent ones passed for its amendment, has been repealed, the Settled Estates Act, 1877 (40 & 41 Vict. c. 18), has been substituted for it with the same general object, but with more systematic and comprehensive provisions, it having been thereby enacted, in order to facilitate leases and sales of settled estates, that the High Court of Justice — upon the application by petition, in a summary way, of any person entitled to the possession or to the receipt of the rents and proflts of any such settled estate, for a term of years determinable on his death, or for Kf e, or for any greater interest (1) — ^may authorize leases or sales to be made of such estate (m). The enactments of the statute, however, are qualified by a direction that the application shall be made only with the consent of certain specified parties («), unless such consent should, as it may in particular cases, be dispensed with by the court (o) ; and that the powers conferred on the court shall not be exercised where a similar application has been rejected by parliament, or where an express declaration to the contrary is contained 16 & 17 Vict. c. 70 ; 18 & 19 Viet. oiroTimstaiices, be made under the CO. 13, 43 ; 20 & 21 Vict. u. 13 ; Act -without application to the 25 & 26 Viot. 0. 86, ss. 12—17. court (see sects 46—48) ; but these (A) Astothese, videsup. pp. 253, provisions extend only to settle- 259, 267, 278. ments made after 1 Nov. 1856. (?) 40 & 41 Viot. u. 18, s. 23. [n) Sect. 24. (m) Demises of settled estatesfor (o) Sects. 25' — 28. twenty-one years may, in certain CHAT>. XV.— ^OF TITLE BY ALIENATION. 461 in tlie settlement ; or so as to authorize any lease, sale, or other act beyond the extent to which, in the opinion of the court, the same might have been authorized by the: settlor {p). And by the Settled Land Act, 1882 {q), hereinafter particularly dealt with, alienation, whether by sale or leasing, has been still further facilitated in aU such cases. And in connection with the capacity or incapacity of alienees, it may be fit here to remark, that no person can be compelled to take an estate by purchase against his will. If land, therefore, be conveyed in invitum,, (as not unfre- quently happens, where it is given in trust by will, without the consent of the proposed trustee having been first ob- tained,) the effect of the conveyance may always be avoided, by the execution of a deed of disclaimer on the part of the dissentient alienee (r) ; the heir alone may not disclaim. II. How a man may aliene or convey ; and hereunder the several modes of conveyances. [A transfer of property being once admitted by law, it became necessary that this transfer should be properly evidenced : in order to prevent disputes, either about the fact, as whether there was any transfer at all ; or concern- ing the persons by whom and to whom it was transferred ; or with regard to the subject-matter, as of what the thing transferred consisted ; or lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words, for what estate and interest) the conveyance was made. The legal evidences of this transfer are called the common assurances of the kingdom; whereby every man's estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed.] These common assurances or conveyances (as they are (p) Sects. 38, 39, 55, 56. Wordsworth, 2 Swanst. 365 ; Beg- (y) 45 & 46 Vict. c. 38. 'biet;. Crook, 2 Bing. N. C. 70. As (»•) See Townson v. Tickle, 3 to diaolaimer by a married woman, Bam. & Aid. 31 ; Nicholson v. vide sup. p. 458. 462 BK. II. OF EIGHTS OF PROPEETY. PT. I. THINGS EEAT. otherwise termed) we shall, in succeeding chapters, examine in due order; but tecause they are usually transacted by means of that particular kind of instrument called a deed, we purpose to consider the nature of deeds separately, and in the first instance, before we enter upon the different kinds of conveyances. ( 463 ) CHAPTEE XVI. OF DEEDS. In treating of deeds we shall consider, first, what a deed is ; secondly, its requisites ; thirdly, how it may be avoided ; and lastly, the general rules which the law has laid down for its construction. I. Krst, then, a deed. — This is a writing sealed and delivered and is used in a great variety of different transac- tions : among which, one of the most important is the alienation of real estates {a). We shall, accordingly, ia the present chapter speak more particularly (though what is said will generally apply to others also) of such instruments as are intended to carry out that object — it being indeed, by 8 & 9 Vict. c. 106, s. 3, expressly provided, that certain con- veyances in that Act specified, made after the 1st October, 1845, shall be void at law, unless made by deed (b). [Such a writing under seal and delivered is sometimes called a charter, carta, from its materials (c) ; but most usually, (ffl) Co. I/itt. 171b. chattel interest, not being copy- (4) The conveyances required by hold, in any hereditaments ; and a 8 & 9 Viet. 0. 106, to be by deed " surrender " in writing of an in- are a " feoffment " (other than one terest in any hereditaments, not made under a custom by an infant) ; being a copyhold interest, and not a "partition" or an "exchange" being an interest which, prior to of hereditaments, not being copy- the Act, might have been by law hold; a "lease," required by law created without writing, to be in writing, of any heredita- («) Co. Litt. by Harg. 9 b, n. (1). ments ; an "assignment" of a 464 BK. II. OF EIGHTS OF PROPERTY. PT. 1. THINGS REAL. [when applied to the transactions of private subjects, it is called " a deed," factum, y.u.t' iXo%h, because it is the most solemn and authentic act that a man can possibly perf onn, with relation to the disposal of his property ; and therefore a man shall always be estopped by his own deed, that is, shall not be permitted to aver or prove any thing in con- tradiction to what he has once so solemnly and deliberately avowed {d).'] And for the same reason, when an engage- ment has been made by way of simple contract (that is, without deed), and afterwards the very same engagement is made between the same parties by deed, the first con- tract is merged in the second (e) ; to which may be added this further rule, that a contract by deed is not capable of beiag contradicted or explained by any other contract or declaration between the same parties, which is not itself also under seal (/). If a deed be made by more parties than One, there ought to be regularly as many copies of it as there are parties ; and the deed so made is called an indenture, because each part used formerly to be cut or in- dented in acute angles {instar dentium, or serrated) on the top, or side, to tally or correspond one with the other {g). [d) There are two other species Saund. by "Wins. 148 ; Smith's of estoppel besides estoppel hydeed, Leading Cases, toI. ii. pp. 436, 460; viz. estoppel by record, and estoppel Pargeter v. Harris, 7 Q. B. 708 ; De by matter in pais. The first obtains Mora v. Concha, 29 Ch. D. 268. in the case where any fact is alleged As to the effect in equity of a mis- ijl a court of record, or any judgment taken recital in a deed, see Brooke given therein : the second where an v. Haymes, Law Eep., 6 Eq. Ca. act is done out of court. By such 25 ; and as to recitals modifying matter of record, persons who were the operative parts of deeds, see parties to the suit — and by such Danby p. Coutts, 29 Ch. Div. 500. matter in pais persons who were (e) See Byfes on Bills, 8th ed. parties to the act in question — are p. 216 ; Sharpe v. Gibbs, 16 C. B., in general precluded Jrom after- N. S. 527. wards alleging matters which would (/) Gwynne v. Davy, 1 Man. & be contradictory to what the record G. 857. or act imports. For further infer- {g) See Co. Litt. 47 b ; Litt. s. mation as to estoppel, see Plowd. 371. The history of the practice of 434 ; Co. Litt. 260, 352 a ; 1 Saund. indenting is given in Co. Litt. by by Wms, 325 a, n. (4) and (c) ; 2 Butl. 229 a, n. (1). CHAP. XVI. — OP DEEDS, 465 [At one time, too, when deeds were comparatively concise, it was usual to write both parts on the same piece of parchment, with some word or letters of the alphabet written between them ; through which the parchment was cut, either in a straight or in an indented liiie, in such a manner as to leave half the word on one part and half on the other. Deeds thus made were denominated syngrapha by the canonists [h) ; and with us chirographa, or hand- writings (j) ; the word cirographum or cyrographum, being usually that which was divided in making the indenture ;] and in the indentures of a fine, this custom continued to be observed until the abolition of that species of convey- ance. But for a long time past the practice of cutting through any letters became, in all other instances, disused, and even that of indenting saw-wise: the more modern method being to cut the top of the parchment in a waving line. And neither this nor any other method of indenting is now necessary to the legal validity of the instrument (/). [When the several parts of an indenture are interchange- ably executed by the several parties, that part or copy which is executed by the grantor is usually called the original, and the rest are termed counterparts (k) ; though of late it is most frequent for all the parties to execute every part; which renders them all originals. A deed made by one party only, is not indented, but polled or shaved quite even ; and is therefore called a deed-poll, or a single deed (l), (A) Lynde-w. I. 1, t. 10, o. 1. ing to be an indentute, is to hare (i) Mirrour, o. 2, s. 27 ; Co. Litt. the effect of an indenture though by Harg. 143 b, n. (4). not actually indented. Etyidesup. {J) In certain cases a deed in- p. 442, n. (i). dentfd is made by statute essential (*) As to discrepancies bet-ween to the validity of the transaction. the lease and its counterpart, see (Co. Litt. by Butl. 229 a, n. (2).) BurcheU v. Clark, 2 C. P. D. 88. And in such oases it was, tUl lately, (?). Mirrour, o. 2, s. 27; Litt. necessary that the deed should have ss. 371, 372; Gardner v. Laohlan, been actually indented ; but by 8 & 8 Sim. 123. 9 Vict. 0. 106, s. 5, a deed purport- VOL. I. H H 466 BK. II. OF RIGHTS OF PKOPERTY. PT. I. THINGS REAL. [11. Secondly, the recLxdsites of a deed.— And of these the first is, that there be persons ahle to contract and to be contracted with, for the purposes intended by the deed ; and also a thing, or subject-matter, to be contracted for: and all these must be expressed by sufficient names (m). Thus in every grant there must be a grantor, a grantee, and a thing granted ; in every lease a lessor, a lessee, and a thing demised. And the second requisite is, that the deed must be written ot printed (in any character or ia any language) either upon paper or on parchment ; and it has been said that if on stone, board, linen, leather, or the like, it is no deed.(w). Wood or stone may be more dur- able, and Hnen less liable to rasures, but -writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qualities; for there is nothing else so durable, and at the same time so little liable to alteration. It must also have the regular stamps .imposed on it by the several statutes for the increase -of the public , revenue : else it cannot be given in evi- dence (o). And it is a third reqidsite, that the matter of the deed be kgatty and orderly set forth; that is, there must be (w) Go. Lira. 35 b. tions on other grounds, on pay- ■ («) lb. 229 a J !F. N. B. 122. ment of the amount of the unpaid (o) 2 Bl. Com. 297. The prin- duty, and of the penalty payable by oipal enactments now regulating law on stamping after execution — the stamps on deeds, are contained which penalty is fixed, by the 15th in the Stamp Act, 1870 (33 & 34 section of the Act, at the sum of Vict. c. 97), and 51 Vict. u. 8, Wl., together with interest at 51. ss. 10-r^20 ; 52 & 53 Vict. u. 7, per cent. On the amount of the nn- ss. 5-^17; and 62 & 53 Vict. u. 42, paid duty where it exceeds 10?. By SB. 15 — 20. By the 16th section of the 18th section of 61 Vict. c. 8, the Stamp Act, 1870, it ip provided, the person who by the Act is made that on the production of an in- liable to pay the duty, if he strument chargeable with any neglects to pay same, forfeits 10?., duty, as evidence in any court of and in addition pays the above- oivilju^oature, if the instrument be mentioned penalty of 10?. and one which may legally be stamped interest, and a further penalty after execution it may be received equal to the amount of the stamp in evidence, saving all just excep- duty. CHAP, XVI. — OP DEEDS. 467 -[•words sufficient to specify the agreement and to bind the parties ; whicli sufficiency must be left to the courts of law to determine (p). It is not indeed absolutely necessary in law to have all the formal parts that are usually drawn out in conveyances, so as there be sufficient words to declare clearly and legally the party's meaning. But as these formal and orderly parts are calculated to convey that meaning in the clearest, distiuctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity ; and there- fore they shall be here mentioned in their usual order (j).] 1. The premises may be used to set forth the number and names of the parties, with their additions or titles; and, in the case of an indenture, the deed is always for- mally described as made inter partes, that is, as made between such an one of the one part, and such another of the other part. As to which, this distinction was formerly established, that one named as party in an indenture could not covenant therein with a stranger (or person not named as party), nor could the latter take an estate under the deed, except by way of remainder (r) ; though, on the other hand, a stranger might covenant with one who was a party, and bind himself by executing the deed (s). But {p) Co. Litt. 225 a. the purchaser also prepares an en.- (^) Co., Litt. 6 a. In 1845, two grossment of the deed properly "Acts Tss^ere passed to enable parties stamped, and sees to its due exe- to abridge the language in which cution ; but where the transaction ^eeds relatipg to real property' is a lease, the draft- and engross- have been usually drawn,- -viz., ment, properly stamped, of the 8 & 9 Vict. c. 119. and o. 124 ; and lease are usually prepared not by more efEectiTe proTJsions in the the lessee but by the lessor. ^ same behalf are contaijied in the {»•) See Keeves v. Watts, I^aw statute 44 & 45 Vict. o. 41. Where Eep., 1 Q. B. 412. the transaction is a purchase, the (<) Co. Litt. 259 b ; Salter «. purchaser prepares the draft of Kidgley, Carth. 76 ; Storer v. Gpr- the conveyance ; and when that don, 3 M. & Sel. 322 ; Berkeley v. draft is approved by the vendor, Hardy, 5 B, & Cress. 355. H H 2 468 BK. II. OF UieitTS OB* PEOPBRTY.— PT. 1. THINGS REAL. by 8 & 9 Vict. o. 106, s, 5, it is now provided, tEat an immediate estate and interest in any hereditaments, and the benefit of a condition or covenant respecting any here- ditaments, may be taken, though the taker be not named a party to the same indenture. The premises also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded ; and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted (^). With respect to the last, that is, the description of the thing granted, a conveyance of any tec? will suffice (as we have elsewhere seen) to pass also the. structures or buildings thereon, as well as all mines below the surface (m) ; but a conveyance of certain specified land, or of a certain house, (even adding the words with the appurtenances,) will not pass other land not specified, although it may have been usually occupied together with the property conveyed : unless indeed the land not specified should consist of the orchard, garden, or curtilage of a house conveyed, in which case it would pass under a grant of the house and its appurtenances, or even (as it should seem) under a grant of the house simply (v). 2, 3. [Next come the habendum and tenendum. The office of the habendum is properly to determine what estate or interest is granted by the deed (w). Though this may be performed, and is sometimes performed, in the pre- mises ; in which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict, or be re- pugnant to, the estate granted in the premises («). As if if) 2 Bl. Com. 298. the statute 44 & 45 Vict. c. 41, s. 6 («) Vide sup. p. 171. (as to general -words), s. 7 (aa to (») See Co. Litt. by Hatg. 5 b, implied covenants), and s. 63 (as to 11. (1) ; 2 SaTmd.byWnis. 401, n.(2). the estate clause), in deeds. 'As to the word appurtenances, see [iv) See Burohell v. Clark, 2 C ■Co. liitt. 121.b ; Hinohliffe v. Kin- P. D. 88. noul, 5 Bing. N. C. 1, 25 ; Bolton {x) See Shaw v. Kay, 1 Exch,412. V. Bolton, 11 Ch. Div. 970. And see CHAP, XVI. — OF DEEDS, ' 469 [the premises describe a grant to be "to A. and the heirs of his body," habendum " to him and his heirs for ever," or vice versd ; here A. has an estate tail and a fee simple expectant thereon (y). But had it been in the premises " to him and his heirs," habendum " to him for life," the habendum would be'utterly void ; for an estate of inherit- ance is vested in him before the habendum comes, and shall not afterwards be taken away or divested by it (z). The tenendum " and to hold " is now of very little use, and is only kept in by custom, Formerly it sometimes went on to express the tenure by which the estate granted was to be holden ; viz, " tenendum per sermtium militare, in burgagio, in libera socagio, 8,-c." But all these being, as we have seen, now reduced to free and common socage, the tenure is never specified, excepting in the case of copy- hold or customary-hold lands. Before the statute of Quia emptores (18 Edw, I.), it was also sometimes used to denote the lord of whom the land should be holden; but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use also of the tenendum hath been antiquated ; though for a long time after we find it mentioned in antient charters, that the tenements shall be holden de capitalibics dominis feodi ; but as this expressed nothing more than the statute had already provided for, it gradually grew out of use (a). 4, Next follow the terms of stipulation, if any, upon which the grant is made ; the first of which is the redden- dum, or reservation whereby the grantor doth create or reserve some new thing to himself out of what he had before granted (5), As "rendering for the same, yearly, the sum of 10s.," or a peppercorn, or two days' ploughing, or the like. Under the pure feudal system, this return or (y) Co. Litt, 21 a; ThurmamJ. («) Baldwin's case, 2 Eep. 23; Cooper, 2 Eoll. Eep. 19, 23 ; Cro. Earl of Rutland's case, 8 Kep. 56. Jac. 476 ; Goodtitle v. Gibbs, 5 B, (a) Madox, Formul. passim. & Cress. 709. . . (i) Burchell r. Clark, 2 C, P. D, 47Q BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [rent consisted, in cMvaliy, principally of military services; and, in villenage, of the most slavish offices. But in socage it has usually consisted of money, though it may still con- sist of services, or of any other certain profit (c). To make a reddendum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some or one of them, and not to any stranger to the deed. But if it be of antient services or the like, annexed to the land, then the reservation may be to the lord of the fee (d). 5. Another of the terms upon which a grant may be made is a condition ; which is a clause of contingency, on the happening of which the estate granted may be defeated ; as " provided always, that if the mortgagor shall pay the " mortgagee 600?. upon such a day, the whole estate ^' granted shall determine," and the lik&(e).] 6. As to the clause of warranty formerly inserted in conveyances, it has fallen into disuse, but in its connection with the previous state of the law it stOl deserves some attention from the student (/). By this clause the grantor did for himself and his heirs "warrant" and secure to the grantee the estate conveyed. And the origin of this practice seems to be in the feudal constitution, whereby, if the vassal's title to enjoy the feud was disputed, he might " vouch," or call the lord or donor to warrant or ensure his gift; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense (g). And so, by our antient law, if a man enfeoffed another in fee (a mode of assm-anee analogous to the original feudal donation), the law annexed a warranty to the grant (h). [So, also, after a partition or exchange of lands of inheritance, if either party or his heirs were evicted of his share, the other and his heirs (c) Vide sup. pp. 188, 206. (/) As to warranty, see Co. Litt. • [d) Browning v. Beaton, Plowd, by Butl. 365 a, n. (1), 373 Tj, n. (2). 132 ;WMtlock's case, 8 Eep. 71. (?) 2Bl.Ooni.300; Peud.l. Z^t. 8 ■ "(^) As to mortgages, vide sup. and 25. p. 304. . (A) Co. Litt. 384 a. CHAP. XVI. — OF DEEDS. 471 [were bound to -warranty («'). And, again, upbn a gift in tail or lease for life, rendering rent, the donor (or lessor) and his heirs were bound to warrant the title {j). But in other forms of alienation bearing no sort of analogy to the gift of a feud, no warranty whatsoever was ever held to be implied ; and therefore in such cases it became necessary to add an express clause of warranty in order to bind the grantor and his heirs ; though where such clause was in fact superadded, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, or yield him other lands in their stead, but that it also bound the heir of the warrantor to the same effect — ^provided he had other sufficient lands by descent from the warranting ancestor {k) ; and this, whether the warranty was lineal, or collateral to the title of the land. Lineal warranty was, where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty, as where a father, or an elder son in the life of the father, released to the disseisor of either themselves or the grand- father, with warranty, — this was Hneal to the younger son (/). Collateral warranty was, where the heir's title to the land neither was, nor could have been, derived from the warranting ancestor ; as where a younger brother released to his father's disseisor, with warranty : — rthis was collateral to the elder brother (w).] But though the heir was only bound to insure the title of the grantee on his ancestor's warranty, provided he had assets, yet he was, whether assets descended or not, per- petually debarred from claiming the land himself (n). But this doctrine being found under certain circumstances to (i) Co. Litt. 174, 384 a. By 8 & 9 (j) Co. Litt. 384 K Viot. 0. 106, s. 4, it is now enacted, (k) lb. 102 a. that an exohango or partition made (Q Litt. ss. 703, 706, 707. by deed executed after 1st October, (m) lb. ss. 705, 707. 1845, shall not imply any condition (») As to assets, vide sup. p. 413. in law. 472 BK. II. OF SIGHTS OF PROPERTY. — ^PT. I, THINGS REAL. produce inooiivenieiit and unjust results, statutes were passed to restrain the force of a warranty in this respect in a variety of instances ; and the practice itself, of in- serting in deeds any clause of warranty, fell by degrees out of use (o). 7. [A deed of conveyance usually also contains cove' mnts, — which are clauses of agreement {conventiones), whereby either party may stipulate for the truth of certain facts, or may bind himseH to perform or to abstain from something, or to give something to the other. Thus the grantor may covenant that he hath a right to convey ; or for the grantee's quiet enioyment, or the like ; the grantee may covenant to pay his rent, or keep the premises in repair, or not to use them in a certain manner, and the like (i?).] By the common law, the use of the words " demise,"." grant," or " give," raised an implied covenant on the part of the grantor for quiet enjoyment, &o., except BO far as it might be controlled by some express covenant in the same deed {q) ; but (so far at least as regards the words " grant " and " give ") the law on this head is now altered : it being enacted by 8 & 9 Yict. c. 106, s. 4, that neither of those words in any deed executed- after 1st October, 1845, shall imply any covenant, except so far as they may by force of any Act of Parliament imply a cove- nant {r). A covenant in any deed gives to the covenantee and his representatives, in case of its breach, a right of action for damages against the covenantor and his repre- sentatives ; and in a deed of conveyance, a covenant directly relating to the land conveyed wiU also, in general, run with the land; that is, not only will the original parties or their representatives, but each successive owner of the land, be (o) See 6 Edw. 1, o. 3 ; 1 1 Hen. 7, (y) See Cro. Eliz. 674 ; MerriU v. c. 20 ; 4 & 5 Ann. o. 3, s. 21 ; 3 & 4 IVame, 4 Taunt. 319 ; Baber v. Wm. 4, c. 27, 8. 39 ; o. 74, s. 14. Harris, 9 Ad. & El. 532. {p) As to the effect of an impos- (»•) See, for example, 8 & 9 Vict, wife covenant, see Clifford »; Watts, e. 18, s. 132. Lavltep., 5 0. P.577. CHAV. XVI. — OF DEEDS. 473 entitled to its benefit, or liable (as tbe case may be) to its obligation (s) . It is consequently usual, so far as covenants for title are concerned, for a person who sells land ■which, he himself bought, to covenant only against his own acts ; or if he did not acquire it in that method, then to extend the covenant as far back as to the acts of the last buyer, but no further : and this is a sufficient security to the vendee, where aU former vendors have .entered into a similar covenant ; because all these engagements run with the land, and consequently operate for his protection (^). However, in the case of a mortgage, the mortgagor's covenants for title are not so limited, but are absolute. And this distinction between the covenants of a vendor and a mortgagor is preserved in the Conveyancing Act, 1881 (m), s. 7, by the effect of which, if the parties are expressed to convey respectively as beneficial owner and as mortgagor, the covenants for title are implied; and the benefit of all such implied covenants runs with the land conveyed (v). 8. [Lastly, comes the conclusion, which mentions the execution and date of the deed, or the time of its being given or executed ; but a deed is good, although it men- tion no date, or hath a false date ; or even an impossible date, as the 30th of February : provided the real day of its execution can be proved («). (s) As to covenants running with tinguish Haywood v. Brunswick the land, see Co. Litt. 384 b, 385 a ; Building Society, 8 Q. B. D. 403 ; Shep. Touch. 161 ; Spencer's case, Austerberry v. Oldham (Corpora- 5 Rep. 16 a ; Mayor of Congleton tion), 29 Ch. Dir. 750. V. Pattison, 10 East, 130 ; Vyvian (<) "Browning v. "Wright, 2 Bos. V. Arthur, 1 Barn. & Cress. 410 ; & Pul. 22 ; and Sugd. Law Vend. Easterby v. Sampson, 6 Bing. 644 ; vol. ii. p. 450, 10th ed. Lambert v. Norris, 2 Mee. & W. («) 44 & 45 Vict. c. 41. 333 ; Simpson v. Clayton, 4 Bing. (») See Conveyancing Act, 1881, N. C. 780 ; Marshall v. Oakes, 2 s. 7, sub-s. 6, ss. 10—12. H. & N. 793 ; Wilson v. Hart, Law {x) Co. Litt. 46 b ; Dyer, 28. As Eep., 1 Ch. App. 463 ; Morland v. to the " date " of a deed, see Styles Cook, ib., 6 Eq. Ca. 252 ; and dis- v. Wardle, 4 Bam. & Cress. 908. 474 BK. II. OF BIGHTS OF FKOPERTY. — PT. I. THINGS EEAL. ^A fourth requisite to a deed is the reading of the deed, which is necessary, wherever any one of the parties desires it; and if it be not done on request, the deed is void as to him (y). If he can, he should read it himself; if he be blind or illiterate, another must read it to him. If it be read falsely, it wiU be void ; unless, indeed, it be so read by collusion on purpose to make it void, in which case it will be good(z). . A fifth requisite to a deed is, that the party, whose deed it is, should sea^ (a), and now in most cases shoxild sign it also. The use of seals is extremely, antient. We read of it: among the Jews and Persians, in the earliest and most sacred records of history (b). And in the book of Jeremiah there is a very remarkable instance, not only of an attes- tation by seal, but also of the other usual formalities attending a Jewish purchase (e). In the civil law, also, seals were required,, on the part of the witnesses at least, at the attestation of every testament (c?). But.in the times: of our. Saxon ancestors, they were not much in use in England (e). For though Sir Edward Coke relies on an instance of King Edwin's making use of a seal about an hundred years before, the Conquest, yet it does not follow (y) Eeading is not necessary un-, ■with the intent of sealing it. (See less the party executing the deed The Queen v. Trustees of Covent wquires it. (Rex v. Longman, 1 Grarden, 7 Q. B. 238, n.) Nev. & M. 576.) • (*) 1 Kings, o. 21 ; Daniel, o. 6 ; - (z) Manser's case, 2 Eep. 3 ; Esther, c. 8. Thoroughgood's case, 2 Eep. 9; (c) "And I bought the field of Pigot's case, H Eep. 27. ' " Hanameel, and weighed him the . {a) JMerely placing the finger on "money, even seventeen shekels of a seal or wafer already attached, is " silver. And I subscribed the. equivalent, to . sealing, and is the '.' evidence, and sealed it and tooi. usual practice. (Shep. Touch. 57.) " witnesses, and weighed hi-m the And thera is indeed no necessity " money in the balances.'' — Jerj that there should be either wax o. 32. or wafer, if only an impression be () ; for men would always affect ambiguous and intricate expressions, if they were afterwards at liberty to put their own construction upon them. But, in general, this rule, being a rule of some strictness and rigour, is the last to be resorted to, and is never to be relied upon but where aU other rules of exposition fail ; and it does not apply to a grant by the Crown, at the suit of the grantee (c).] (z) See Co. Litt. 56 a; Shep. Touch. 89 ; Liford's case, 11 Eep. 52; LordDarceyf. Askwith, Hob. 234 ; Earl of Cardigan w. Annitage, 2 Bam. & Cress. 211 ; Harris v. Byding, 5 Mee. & W. 60 ; Hinch- liff fi V. Kinnoul, 2 Bing. N. C. 24. (a) 2 Bl. Com. 381 ; Step. Touch. 88; Hard. 94; Doe d. Leicester, 2 Taunt. 113 ; Doe d. Spencer v. Pedley, 1 Mee. & W. 677. The rule, however, in such case, -when arising on a devise, seems to be to consider the latter clause as the one to be followed. (See Co. Litt. 1126 ; Plowd. 541 ; Doe d. Spencer V. Pedley, ubi sup.) (i) Co. Litt. 36 a; Bac. Max. Eeg. 3 ; 2 Bl. Com. 380 ; Doe v. Edwards, 1 Mee. ftW. 556; BuUen V. Denning, 5 Bam. & Cress. 842. (c) Bae. Max. Reg. 3 ; Elphin- stone, Norton & Clark on the In- terpretation of Deeds (1885). ii2 484 BK. II. or RIGHTS OF PKOPERTY. PT. I. THINGS EEAl. CHAPTER XVII. OF ORDINARY CONVEYANCES — AND FIRST, OF THOSE AT THE COMMON LAW. The branch of the law which relates to " conveyances," otherwise called " assurances" and which are the instru- ments of voluntary alienation, is in its own nature of great simplicity ; and yet it involves considerations of a very complex and subtle kind, and has been elaborated into a highly artificial system, known as the law of conveyancing, with its own separate body of practitioners, who are called conveyancers (a). In the earKer times, and indeed down to the reign of Henry the eighth, the chief distinction between convey- ances was this, that they were either by matter of record or by matter in pais (b) ; and those which were in pais were conveyances of the ordinary class transacted between two or more persons in pais (i. e., in the country), according to the old common law, and upon the spot ; while on the other hand, those which were matter of record were efEected by assurances in the superior courts of justice (c). But in and subsequent to the reign just mentioned, various Acts of Parliament have successively been passed, the effect of which has been to introduce from time to time new classes of conveyances, deriving their force and authority, from these particular statutes ; and, in discussing the general subject [a) See 44 Geo. 3, c. 98, s. 14 ; {b) As to records, Tide sup. pp. and as to conveyancers, see 23 & 24 63, 464, n. (d). Vict. c. 127, s. 34. (c) 2 Bl. Com. 294. CHAP. XVII. — OF CONVEYANCES AT COMMON LAW, 485 of conveyances, it is necessary to keep these distinctions in view, dividing conveyances, first, into conveyances of the ordinary kind, being in effect the same with those antiently described as in j^ais : and, secondly, into conveyances by matter of record; and, again, dividing those of the former class into conveyances at common law, and conveyances by statute law. Firstly, conveyances at common law : — The first of these is The Feoffment. — This method of conveyance was for ages the only method in ordinary use by which our ancestors were wont to convey the freehold of land in possession ; and we shall proceed now to giVe a somewhat fuller account of its nature and properties than its actual importance would seem to justify, it having now fallen, in great measure, into disuse, and having been almost entirely supplanted in fact by more modem forms of conveyance. A feoffment, then, is derived from the verb to enfeoff, feoff'are or infeudare, to give one a feud, and is a method of alienation applicable to the purpose of conveying an estate of freehold in possession in a corporeal hereditament, and applicable to that purpose only {d). [This conveyance was itself the very mode of the antient feudal donation, the aptest word of feoffment being "do," give, or " dedi," given {e). And it is still directed and governed by the same feudal rules ; insomuch that the principal rule re- lating to the extent and effect of the feudal grant, " tenor est qui legem, dat feudo," is, in other words, become the maxim of our law with relation to feoffments, "modus legem dat donationi " (/). And therefore, as in pure feudal donations, the lord, from whom the feud moved, must {d) A reversion or remainder, the eonaent of the particular tenant, however, and the particular estate (Co. Litt. 48 b.) But v^here his on which it is expectant, may he consent was not given, the convey- created by the same feoffment (vide ance must have been by grant, sup. p. 320). And so a freehold re- (Litt. s. 567 ; Co. Litt. ubi sup.) versionalready created, if expectant («) Co. Litt. 9 a; vide sup. p. on a particular estate for years, may 178. be transferred by feoffment, with (/) Wright's Ten. 21. 486 BK, II. OF EIGHTS OF PROPERTY. PT. [, THINGS REAL. [have expressly limited and declared the continuance or quantity of estate whicli lie meant to confer, "ne qitispliis donasse prasumatur, quam in donatione expresserit;" so, if one grants by feoffment lands or tenements to another, and limits or expresses no estate, the grantee or feoffee hath barely an estate for life (/*). For as the personal abilities of the feoffee were originally presumed to be the immediate or principal inducement to the feoffment, the feoffee's estate ought to be confined to his person, and subsist only for his life ; unless the feoffor, by express provision in the creation and constitution of the estate, hath given it a longer continuance. It has therefore been the practice in all feoffments, from time immemorial, to limit, by express words, the nature of the estate intended to be conveyed. But by the mere words of the donation the feoffment was by no means perfected ; there remained a very mate- rial ceremony to be performed, called livery of seisin, without which the transaction could not operate as a feoffment (») ; and such is stiU the law when this mode of conveyance is used. This Kvery of seisin is no other than the pure feudal investiture, or delivery of the corporal possession of the land or tenement, which was held abso- lutely necessary to complete the donation (A). "Nam feudum sine investiturd nulla modo constitui potuit " (/) ; and an estate was then only perfect in our law when, as the author of Meta expresses it, "fit juris et seisince con- jiinctio" (ot). Investitures were probably intended origiaally to de- monstrate ia conquered countries the actual (firm and peaceable) possession of the lord : and they were retaiaed apparently at a later date, to signify by some public and notorious act the transfer of the estate, so that such as claimed title by other means might know against whom to (/i) Co. liitt. 42 a. (i) Wright's Ten. 37. W Litt. s. 70. (,«) L. 3, >;. 15, s. 5. {k) Vide sup. p. 179.- CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 487 [bring their actions. And in fact, in all well-governed nations, some notoriety of this kind has been ever held requisite, to acquire and to ascertain the property of lands. In the Roman law, plenum clominiiim required and com- bined both the right and the corporal possession, which possession again was acquired by the intention to possess, coupled with the actual taking of the possession (m) ; and the intention by itself was not sufficient. In like manner, in ecclesiastical promotions where the freehold passes to the person promoted, corporal possession is required even to this day to vest the property completely in the new pro- prietor ; who, according to the distinction of the canonists, acquires the jus ad rem, or inchoate and imperfect right, by nomination and institution ; but not the jus in re, or complete and full right, until induction, i.e., corporal pos- session (o). Therefore in eoolesiastioal dignities, possession is given by " instalment ; " in rectories and vicarages, by " induction ; " without which no temporal rights accrue to the minister, though every ecclesiastical power is vested in Tiim by institution. So also even in descents of lands by our law, which are cast on the heir by act of the law itself, the heir has not plenum dominium, or full and com- plete ownership, till he has made an actual corporal entry into the lands {p). The corporal tradition of lands being sometimes incon- venient, a symbolical delivery of possession was in many oases antiently allowed, by transferring something near at hand, in the presence of credible witnesses ; which, by agreement, should serve to represent the very thing («) " Nam apiscimur possessionem remm, non mtdis pactis, transferun- corpore et animo ; neque per se cotpore, tur." — Cod. 2, 3, 20. negue per se animo. Nbn auiem ita (o) Decretal. 1. 3, t. 4, c. 40. aceipiendum est, ut qui fundum pos- [p) Vide sup. p. 411, where it is sidere velit, omnes gUbas circumam- noticed that an heir before entry buletj sed suJioH quamlibet partem cannot maintain an action of tres- ejus fundi introire." —'Ei. 41, 2, 3.— pass. And again: " traditionibus dominia 488 BK. II. OP EIGHTS OF PROPERTY. — ^PT. I. THINGS REAL. [designed to he conveyed. Among the Jews, we find in tlie book of Euth that a man plucked off his shoe, and gave it to his neighbour (q) ; and among the antient Goths and Swedes, that the seller of land cast a clod into the ex- tended cloak of the buyer, or delivered a staff or a wand (r). Thus, too, with our Saxon ancestors, the delivery of a turf was a necessary solemnity to establish the conveyance of lands (s).] And to this day, the conveyance of copyhold estates is usually made by the seller's delivery of a rod or verge to the lord or his steward, who re-deHvers the same to the purchaser. Conveyances in writing were an improvement on this primitive mode of transfer. For the transaction, when depending on the remembrance and testimony of witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and necessities introduced by the advancement of com- merce, required means to be devised of charging and encumbering estates, without an absolute sale thereof ; and of making them liable to a multitude of conditions and minute designations. Writings were consequently introduced, in order to specify and perpetuate the peculiar purposes of the party who conveyed: and now, by the Statute of Frauds (29 Car. II. c. 3), s. 1, no estate created by livery of seisin only, and not in writing signed by the party, or his agent by writing lawfully authorized, shall be of any force except to constitute an estate at win. Since this statute, therefore, a feoffment has not been effectual unless evidenced by writing ; though the transac- tion has been nevertheless considered as deriving its legal force from the livery, and not from the written instru- ment {t). And now, by 8 & 9 Vict. c. 106, s. 5, a feoffment made after 1st October, 1845, other than a (?) Euth, ch. iv. V. 7. (s) Hiotes, Dissert. Epistolar. 85. (*•) Stiemhook, de Jure Sueon. (*) Co. Litt. 48 a; et vide sup. 1. 2, 0. 4. p. 474, n. (c). CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 489 feoffment made under a custom by an infant, shall be void at law unless evidenced hy deed (u) , [Livery of seisin is either " in deed " or " in law." Livery in deed is thus performed. The feoffor, lessor, or his attorney for the purpose, together with the feoffee, lessee, or his attorney, come to the land, or to the house ; and there, in the presence of witnesses, declare the contents of the feoffment or lease on which the livery is to be made. And then the feoffor, if it be of land, doth deliver to the feoffee (all other persons being out of the ground) a clod or turf, or a twig or bough there growing, with words to this effect : " I deliver these to you in the name of seisin of all the lands and tenements contained in this deed." But if it be of a house, the feoffor must take the ring or latch of the door (the house being quite empty of people), and deliver it to the feoffee in the same form: and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others («). And in all these cases it is prudent and usual to indorse the livery of seisiu on the back of the deed, specifying the manner, place, and time of making it, together with the names of the witnesses (y). And thus much for livery in deed. Livery in law is where the same is not made on the land, but ia sight of it only ; the feoffor saying to the feoffee, " I give you yonder land, enter and take posses- sion." Here, if the feoffee enters during the life of the feoffor, it is a good Uvery, but not otherwise.] By the antient law, indeed, if he dared not enter through fear of his life or bodily harm, his continual claim — made yearly (m) As to feoffment by an infant, as to the oaaea in whioh more than in gavelkind, vide sup. p. 214. A one livery will be required, in con- deed of feoffment is also called a sequence of the lands lying in dif- cAartej- of feoffment. (Co. Litt. 9 b, ferent counties or the like. 36 a n. (11.) (v) ^ *° ^^^ manner of making (x) Co. Litt. 48 a; "West. Symb. livery of seisin, see also Eoe v. 251. Further information will be Rashleigh, 3 Bam. & Aid. 156; found in Blackstone (vol. ii. p. 315) Doe v. Taylor, 2 Nev. & M. 608. on this subject; and particularly 490 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. in due form — would suffice without an entry (z). But this was altered by 3 & 4 Will. IV. c. 27, s. 11, which provides that no right of entry or action shall in future be preserved by continual claim. Livery in law cannot be given or received by attorney, but only by the parties themselves (a). By feoffment, not only a fee simple may be conveyed, but an estate tail or an estate for Hfe, these being all estates of freehold. But the term " feoffment" is con- sidered as importing more properly a conveyance of the fee simple; while the conveyance of an estate tail is more technically called a gift ; and that of an estate for life, a demise or lease {b). Up to a recent period the feoffment was distinguished from other conveyances by the following peculiarity, namely, that when made by a person in actual possession, it would always have the effect of passing to the feoffee a freehold, either by right or by wrong (c). For it was a delivery of the actual seisin, that is, of the actual posses- sion, as for an estate of freehold, in fee, in tail, or for life ; so that if the feoffor was himself lawfully seised to the full extent of the estate that he conveyed, a freehold as of right would pass ; but if he was not lawfully seised, or not lawfully seised to that extent, a freehold would still pass, though a freehold by ivrong{d). And when by such means, or by any other, a wrongful or tortious freehold was created, the effect was, that the person lawfully en- titled to the freehold in possession was disseised; and if there were any persons in reversion or remainder, such re- version or remainder was displaced or divested, so that each of these parties ceased to retain (strictly speaking) an (z) Litt. s. 421 ; Co. Litt. 48 b ; Taylor v. Horde, 1 Bun-. 60 ; Co. 2 Inst. 483. Litt. by Butl. 330 b, n. (1) ; 2 Sand. (a) Co. Litt. 52 b. Us. pp. 18, 20 ; Doe v. Hall, 2 Do-w. (J) Litt. s. 69 ; Co. Litt. 9 a. & Ey. 38 ; Doe v. Lynes, 3 Bam. & (e) Vide sup. pp. 446 et seq. Cress. 388 ; Doe v. Taylor, 6 Bam. ( ^ l^ase not under tp) 2 Bl. Com. 317. seal, made for one year with an (q) Litt. s. 59. option to the tenant, at the end 494 BK. n. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. same statute, (sect. 2,) providing that all corporeal here- ditaments shall, as regards the conTeyance of the imme- diate freehold thereof, be deemed to lie in grant as weU as in liYery — a lease even for life may now be effected by grant, -without hvery of seisin. It results, however, from the former observations with respect to estates for years, that a lease of land for years will not vest in the lessee a complete estate for all purposes, until he has made entry on the land demised ; and that in the meantime he takes nothing beyond an interesse termini («). When the lease is for years only, the estate may be granted to take effect in possession either immediately, or at some future time ; and, in the latter case, the lessee has of course no right to enter until that future time has arrived (»). But it is important carefully to distinguish these leases in futuro. from mere agreements to let ; for an intending lessor may, without using such words as actually to divest himself of any interest present or future, simply engage to grant a lease at a future period; and as no interest in the mean time passes, this will be a mere agreement, and no lease («). And with respect to such agreements, it is material to remark, that by 29 Oar. II. c. 3, s. 4, they are required, even where the term agreed for is less .than three years, to be in writing (y). [The usual words of operation in a lease are " demise, grant, and to farm let," demisi concessi et ad fir mam tradidi{s). For farm or feonne is an old Saxon word signifying provisions (a) ; and it came to be used instead of rent or render, because antiently the greater 'part of rents were reserved in provisions — m corn, in poultry, and the like, — till the use of money became more fre- of that term, to take on the pre- [x) See Rollason v. Leon, 7 H. & misea for three years and a half N. 73. more, was held valid by the Court (y) See Inman v. Stamp, 1 Starkie, of Appeal. N. P. C. 12 ; Edge v. Strafford, 1 (m) Vide sup. p. 286. Tyrw. 293. W Vide sup. p. 320. (z) Co. Litt. 45 h. (o) Spelm. Gloss. 229. CHAP. XVII. — OF CO^'VEYANCES AT COMMON LAW. 495 [quent : so that a farmer, firmarius, was one who held his lands upon payment of a rent or feorme ; though at present, hy a gradual departure from the original sense, the word farm is brought to signify the very estate or lands so held upon farm or rent.] Neither the words " to farm let," however, nor any of the others ahove speci- fied, are necessary to effect a demise; any expressions sufficiently indicating the intention of one of the parties to divest himself of the possession, for a determinate period, in favour of the other, being clearly sufficient to constitute a lease (b). With reference to the covenants contained in a lease, we may here observe, that it results from what has been before stated as to such as run with the land{c), that the lessee is liable not only to the ori- ginal landlord or reversioner, but in case of the grant of the reversion, then to the grantee also, for the future per- formance of all such covenants contained in the lease, on the part of the lessee ; and is entitled, on the other hand, to enforce against the grantee, as well as the original landlord, the future performance of aU such as are con- tained in the lease, on the part of the lessor {d). As to the covenants in a lease, it is also material to notice, that, to improve the landlord's security, the lease usually contains a proviso that, on breach of any of the covenants by the tenant, the landlord shall be at liberty to re-enter, and resume and hold possession of the premises as if no lease of them had ever been made. Such a proviso constitutes, in case of a breach of covenant by the tenant, a most advantageous addition to the landlord's remedies, which would otherwise be confined, in some cases, to a right of action for damages on the covenant (e). (J) Bao. Abr. Leases, &c. ; Doe Saund. by Wms. 230 b ; Wright v. V. Asbbumer, 5 T. E. 163 ; Barry Burroughes, 3 0. B. 344. V. Nugent, 5 T. R. 166, n. ; Poole [e) It may be noticed, with re- V. Bentley, ISBast, 168. gard to the non-payment of rent, (e) Vide sup. p. 472. that the landlord, in addition to ((?) See Thursby v. Plant, 1 his remedy by re-entry and his 496 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. It may be here obserred, that where lands are let for agricultural purposes, the custom of the country has, in many parts of England, secured to the tenants of such holdings an adequate compensation, at the determination of the tenancy, from the landlord for what has been ex- pended by them on the land demised during the tenancy, in the way of seed, manure, and labour (/). Such com- pensation, under the name of tenant-rigljt, has been usually adjusted on a certain recognized scale by valuers selected by the parties ; but in the year 1875, an endeavour was made to place these matters on a more satisfactory basis than local and occasionally discrepant customs, by direct legislation ; and, at the same time, to include within the provisions of the Act, in favour of the tenant, certain improvements not usually allowed for, but in respect of which it was nevertheless felt right that he should have a proper return from his landlord — and moreover to make obligatory in farm leases a longer notice to quit than is necessary and sufficient by the general law of landlord and tenant as described in a former part of this volume. With these objects in view the Agricultural Holdings Act, 1875 (38 & 39 Vict. o. 92), was passed, which Act has since been repealed and re-enacted with certain amend- ments by the Agricultural Holdings Act, 1883 (g) ; and the provisions of the last-mentioned statute (which came into force the first day of January, 1884) are to the following efEect: — In the first place, it is to be noticed that its enactments only apply to cases where the holding is either wholly agricultural or whoUy pastoral, or partly one and partly the other (h), and do not apply to any action on the covenant, has also a the contrary is bad. (See Bradburn right of distress, as to -which vide v. Foley, 3 C. P. D. 129 ; Mansell post, bk. V. c. 1. V. Norton, 22 Ch. Div, 769.) (/) The landlord, and not the (g) 46 & 47 Vict. c. 61. incoming tensmt, is, in the absence (A) Sect. 54. The section is very of a special agreement binding the ambiguous in -what it says of market latter, liable to the outgoing tenant gardens. See 50 & 61 Vict. c. 26 for tenant-right, and a custom to (as to compensation in the case of CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 497 holding even of that class -which is let to the tenant during his continuance in office under the landlord {h). Secondly, it IS to he noticed that any agreement hetween landlord and tenant which would have the effect of excluding the Act is void (j). Thirdly, with regard to all lettings to which it applies, the Act enahles the tenant, on the deter- mination of the tenancy, to claim from his landlord com- pensation in respect of any improvement he has executed on his holding which shall come within either of the three classes specified in the first schedule to the Act {j), accord- ing to an amount agreed upon between the parties ; or, in case of dispute, settled, according to certain ixdes laid down in the Act in reference to the particular class to which the particular improvement belongs {k), by referees and an umpire (/), from whose award an appeal lies to the judge of the county court of the district in which the holding or the larger portion of it is situate; and should any cottage gardens and allotments not exceeding two acres). (A) See last note. (i) Sect. 56. (j) Sect. 1. Class I. (for making ■which the landlord's previous con- sent must have been obtained) in- cludes erection and enlargement of buildings, formation of silos, laying down permanent pasture, making and planting osier beds, making ■water meadows, or -works of irriga- tion, Inaking gardens, making or impro-ying roads or bridges, making or impro-nng -water courses, ponds, ■wells, reservoirs, or of ■works for the application or supply of water for agricultural or domestic purposes, making fences, planting of hops, or of orchards or fruit bushes, reclaiming of waste land, warping of land, and embankment and sluices against floods. Class II. (in respect of which notice to land- VOL. I. lord is required) includes drainage only. Class III. (in respect of which notice to landlord is not required) includes appUoation to land of purchased manure, arti- ficial or otherwise, and consump- tion by cattle, sheep, or pigs, of cake or other feeding stuff not pro- duced on the holding ; also, boning of land ■with undissolved bones, chalking of land, clay- burning, claying of land, liming of land, and marling of laud. (k) Sects. 6—22. [I) If the parties agree there may be a single referee appointed by them jointly. If there are two referees they may themselves ap- point an umpire, or he may be appointed by the county court or by the Board of Agriculture, Land Commissioners' Department. (46 & 47 Vict. c. 61, ss. 9—11; 52 & 63 Vict. c. 30.) K K 498 BK. 11. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. question of law arise there is an ultimate appeal, by way of special case, or by motion to the High Court of Justice (m). The Act also, among many others which our limits forbid us to specify, contains the following provisions: — 1. In cases to which it applies, where a half-year's notice ex- piring with a year of the tenancy is by law necessary and sufficient for the determination of a tenancy from year to year, a i/ear's notice so expiring shall by virtue of the Act be necessary and sufficient for the same — except only in the case of the tenant being adjudged a bankrupt or filing a petition for composition or arrangement with his cre- ditors («). 2. A tenant shall not be entitled to claim compensation under the Act and also under any custom of the country or contract, in respect of the same work or thing ; but when he is not entitled to compensation under the Act, he retains his right to compensation under any custom or contract, or under any other Act of Parliament (o). 3. A tenant shall not (save as expressly excepted by the Act {p) ) be entitled to compensation under the Act in respect of improvements (other than manures) begun by him, if a tenant from year to year, within one year before quitting or any time after final notice to quit given or received, and, if a tenant for years, within one year before the expiration of his lease (p). IV. [An Exchange is the fourth conveyance by the common law, and is a mutual grant of equal interests, the one in consideration of the other. The word "exchange" is so individually requisite and appropriated by law to this case, that it cannot be supplied by any other word or expressed by any circumlocution (q). The estates ()«) 46 & 47 Vict. 0. 61, s. outed before the commencement 23- of the Act, and compensation for («) Sect. 33. See Wilkinson v. -which is recoverable or not under Oalvert, 3 C. P. D. 360 ; Barlow v. the Agricultural Holdings Act, Teal, 15 Q. B. D. 403 ; also, In re 1875, or otherwise by custom or Paul, 24 Q. B. B. 247. contract. (o) Sect. 57. And see also sects. (p) Sect. 59. 2 and 62 as to iraproTemeuts exe- (7) Co. Litt. 50, 51 ; Eton Col- CHAP. XVII. OF CONVEYANCES AT COMMON LAW. 499 [exchanged must be equal in quantity, not of value (for that is immaterial), but of interest : — as fee simple for fee simple, a lease for years for another lease for years, and the like(s). And no livery, even m exchanges of free- hold, -was, at the common law, necessary to perfect the conveyance {t) ; for each party stood ia the place of the other, and occupied his right, and each of them had already had corporal possession of his own land.] On the other hand, by the Statute of Frauds, (29 Car. II. -c. 3,) ss. 1, 3, an exchange was required to be in writing ; and by the statute 8 & 9 Yiot. c. 106, s. 3, it must now be by deed, in every case except that of an exchange of copyhold. [More- over, by the common law, entry must have been made on both sides ; for if either party died before entry, the exchange was void for want of sufficient notoriety (ti). And it was held, that if two parsons, by consent of patron and ordinary exchanged their preferments, and the one was presented, instituted, and inducted, and the other was presented and instituted, but died before induction, — ^the former should not keep his new benefice, because the exchange was not completed, and therefore he must return back to his own (ii;). It was also held, that if after an exchange of lands or other hereditaments, either party was evicted of those which were taken by him in exchange, through defect of the other's title, he should return back to the possession of his own, by virtue of the implied warranty contained in aU exchanges (y).] But this doctrine seems now to be affected by the provision of 8 & 9 Vict. c. 106, s. 4, whereby it is enacted, that an exchange of any tene- ments or hereditaments made by deed executed after 1st lege V. Bishop of Winchester, 3 (t) Litt. s. 62. Wila. 468. («) Co. Litt. 51 b. {») Litt. SB. 64, 65. As to whether («) Perk. h. 288. As to ex- an exchange by lessee for twenty change of preferments, see Downes years with lessee for thirty or forty v. Craig, 9 Mee. & W. 166. yearswouldbegood, see Perk. sect. M As to warranty, vide sup. 275 ; 2 Shep. Touch. 296. p. 470. kk2 600 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. Ootober, 1845, shall not imply any condition in law. It is not an exchange by the common law, where the parties execute mutual conveyances of their respective lands, the one to the other ; and the doctrines above laid down, as to exchanges, have no appHoation to any such mutual con- veyances (s). V. [A Partition is the fifth mode of conveyance by the common law, .and is where two or more joint-tenants, co- parceners, or tenants in common, agree to divide the lands so held among them and thereafter to hold in severalty, each taking a distinct part (a). Here, as they all origi- nally hold pro indimso, it is necessary that they shall all mutually convey and assure to each other the several estates, which they are to take and enjoy separately (J).] By the common law, coparceners might make partition by parol only, accompanied by livery ; but joint-tenants and tenants in common could not make it otherwise than by deed ; though it would appear that, if perfected by liveryj such deed did not require to be signed (c). However, under the Statute of Frauds (29 Car. II. c. 3), an instru- ment in writing, signed by the payty or his agent, was made necessary in every case of partition by way of agree- ment {d) ; and by the statute 8 & 9 Vict. c. 106, s. 3, par- titions of all hereditaments (not being copyhold) made after 1st October, 1845, shall be void at law, unless made («) See Eton College v. Bishop & 13 Vict. c. 83 ; 14 & 15 Vict. e. Of WinolieBter, 3 Wils. 491. Ex- 53; 15 & 16 Vict. o. 79; 17 & 18 changesof land, and also partitions, Viot. u. 97; 22 & 23 Vict, c, 43.) may now te effected, tlirough the (a) As to partition, see Co. Litt. Board of Agriculture, luolosure 165b. Commissioners' Department, not (J) Vide sup. p. 335. only in oases of inclosure, but even [c) 2 Bl. Com. 324. In the case as regards lands not subject to be of a partition between >4»< taumts, inclosed, ot in respect of which no a mutual Release is the proper proceedings for inclosure arepend- method of assurance ; but a grant ing. (See 8 & 9 Vict. c. 118, ss. 92, would be equaUy efficacious. 147 ; 9 & 10 Viot. c. 70 ; 10 & 11 . (rf) Co. Litt. by Harg. 169 a, n. Vict.o.lll; ll&12Vict. c.,99; 12 (4). See, however, sup, p. 476, n. (/J. CHAP. XVII, OF CONVEYANCES AT COMMON LAW. 501 not only in writing, but by deed ; and (by sect. 4) such partitions do not now imply any condition in law. The common law conveyances which have been hitherto considered, are all of a primary or original character; those which remain are of a secondary or derivative sort, which presuppose some precedent conveyance, and which only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original convey- ance. As, — VI. A Release ; which may be defined as a conveyance of an ulterior interest in lands or tenements to a particular tenant, or of an undivided share therein to a co-tenant (the relessee being in either case in privity of estate with the releasor^) — or of the right to such lands or tenements, to a person wrongfully in possession thereof (e). It was always effected without livery of seisin, even though the interest conveyed were freehold ; for the doctrine of release is founded on this principle, that though the freehold in possession could not pass at common law without livery, yet where another person was abeady in the possession, the reason and propriety of that ceremony failed ; and the grantor might consequently convey such right or interest as he had by mere deed (/). A deed, however, is essen- tial to the efficacy of this conveyance {g) ; and the proper operative word to be employed in it is that of " release." The release of a right may, of course, not only be express, but may also be implied by law from circumstances ; and when it is of this latter kind, it may take place without a deed (A). (e) As to releases, see Co. Litt. . (/) 2 Bl. Com. 325 ; Gilb. Ten. 264 a. Some account of the early 53. state of the law respecting them (?) Co. Litt. 264 h. will he found in Hist. Eng. Law, [h) Co. Litt. uhi sup. by Beeves, vol. iii. p. 354. 502 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. A release may enure in several ways, being principally five, namely : — (1.) [By way of enlarging an estate, or enlarger Vestate ; which is the species of release that most frequently occurs, and it consists of a conveyance of the ulterior interest of the remainderman or reversioner to the prior particular tenant : as if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee. But to the validity of such releases as these, it is necessary that' the estate of the relessee should be a compute and vested one (/), for if there be lessee for years, and, before he enters and is in possession, the lessor releases to him all his right in the reversion, such release is void ; and this because the lessee has, in such case, a mere interesse termini, and not an estate upon which a reversion can pro- perly be expectant (»»). J And further, there must be a privity of estate between the relessor and relessee ; that is, the one of their estates must be so related to the other as to make but one and the same estate at law : as in the case where the ulterior estate conveyed is a reversion or remainder mediately or immediately expectant upon the particular estate of the relessee ; all which, in contempla- tion of law, form parts of the same estate, as being derived, at the same time, out of the same original seisin (w). (?) Co. Litt. by Butl. 270 a, n. 270 a, 270 b. (3). If the estate of the relessee, (««) "Before entry," says Lord therefore, is an estate in possession, Coke, "the lessee has but j»fer«ss« he ought to be in actual possession " termini ; and therefore a release, of the laud (see Litt. ss. 455, 456, " whichenuresby way of enlarging 459); for otherwise his estate is "an estate, cannot work wiliout incomplete. But otherwise actual " a possession : for before posses- possession of the land is not neces- " sion, there is no reversion." sary : for " if a man make a lease (Co. Litt. 270 a.) " for years, with remainder for («) See 2 Prest. Conv. 324 ; 2 "years, and the first lessee doth Bl. Com. 325; Gilb. Ten. 70, 71 ; "enter, a, release to him in the Goodright v. Forrester, 1 Taunt. " remainder for years is good to 602. " enlarge his estate." — Co. Litt. CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 503 Thus, if a man seised in fee make a lease for years, witli remainder over for life, a release to the lessee for years is good ; for he hath toth a privity and an estate ; and a release to him in the remainder for life is good also (o) . But if A. makes a lease to B. for life, and B. makes a lease for years : and afterwards A. releases to the tenant for years, this release is void to enlarge his estate, hecause there is no privity between A. and the lessee for years {p). Upon the same principle a release to a tenant at wOl is good, hecause he has a sufficient estate for the purpose, and a privity with the lessor ; but a release to a tenant at sufferance is void, because he has a possession without privity {q). (2.) [A release may enure by way of passing an estate, or mitter V estate; as where one of two copar- ceners releases all her right to the other, this passeth the fee simple of the whole (/•). But in this species of release, as well as in the former, there must be a privity of estate between the relessor and relessee (s) ; and therefore one tenant in common cannot release to his companion, because they have distinct freeholds, and there is no necessary unity of title between them {t). (3.) A release may enure by way of passing a right, or mitter le droit ; as if a man be disseised, and releaseth to his disseisor all his right ; hereby the disseisor acquii'es a new right, which changes the quality of his estate, and renders that lawful which before was tortious or wrongful (t^). (4.) A release may enure by way of extinguishment ; as if my tenant for life makes a lease to A. for hfe, remainder to B. and his heirs, and I release to A. ; this extinguishes my right to the reversion, and shall enure to the advantage of B.'s re- mainder as well as of A.'s particular estate («). (5.) A (o) Co. Litt. 273 a. (s) 2 Bl. Com. 325; Co. Litt. (p) lb. 272b. 273b. \q) lb. 270 b. As to tenants by (<) Co. Litt. 200 b ; Gilb. Ten. sufferance, vide sup. p. 292. 74 ; vide sup. p. 348. (r) Co. Litt. 273. («) Litt. 8. 466. (x) lb. s. 470. 604 Bk. II. OF KIGHTS OF PROPERTY. PT. I. THINGS REAL. [release may enure byway of entry and feoffment; as if there be two joint disseisors, and the disseisee releases to one of them, he shall he sole seised, and shall keep out his former companion ; which is the same in effect as if the disseisee had entered, and thereby put an end to the dis- seisin, and afterwards had enfeoffed one of the disseisors in fee («/).] And here we may observe, with respect to the four last species of release, that the fee may be conveyed by any of them without the use of words of inherit- ance (s) : in which respect they differ from releases to enlarge the estate ; and indeed from feoffments also, and from grants ; for as to all these, it is a general rule (though subject to exception in particular cases) that an estate of inheritance cannot be created without the word heirs («), Or the phrase heirs of the body, or since the Conveyancing Act, 1881 (S), the equivalent words " in fee simple" or " in fee tail." VII. [A Confirmation is of a nature nearly allied to a release (c). Sir Edward Coke defines it to be a con- veyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a par- ticular estate is increased (d) ; and the words of making it are these, " have given, granted, ratified, approved, and confirmed "(e). An instance of the first branch of the definition is, if tenant for life leasetli for forty years, and dieth during that term ; here the lease for years, is void- able by him in reversion ; yet if he hath confirmed the estate of the lessee for years, before the death of the tenant for life, it is no longer voidable but sure (/). The latter branch, or that which tends to the increase of a particular (i/) Co. Litt. 278 a. Litt. 295 b, 308 b ; Hist. Eng. (z) lb. 9 b. Law, by Keeves, vol. iii. pp. 354, • («) Litt. s. 1 ; Co. Litt. 8 b ; vide 355. sup. p. 238. (d) Co. Litt. 295 b. (i) 44 & 45 Vict. u. 41. (e) Litt. ss. 515, 531. (o) As to confirmations, see Co. (/) Litt. s. 516. CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 505 [estate, is the same in all respects with that species of re- lease which operates by way of enlargement.] It is to be observed that a confirmation (like a release, and for the same reason) has always been effectual without livery of seisin, even though a freehold estate be the subject {g). Moreover, a deed is essential to the validity of a convey- ance of this kind {h) ; though there may be a confirmation implied hy law from circumstances, as well as a confirmation by deed(i). YIII. [A Surrender, (sursum redditio, or rendering up,) is of a nature directly opposite to a release ; for as that operates by the greater estate's descending upon the less, a surrender is the falling of a less estate into a greater {k). It is defined as a yielding up of an estate for life or years to him that hath an immediate reversion or remainder ; wherein the particular estate may merge or drown, by mutual agreement between them (l). And accordingly it is held, that the surrenderee must have such an estate, that the estate surrendered may be capable of merging in it ; so that tenant for life cannot surrender to him in remainder for years (jw). A surrender is done by these words, " hath surrendered, granted, and yielded up," or the like (m). And though the estate surrendered be for life, there was not, at common law, any occasion for livery of seisin (o) ; for there is a privity of estate between the surrenderor and the surrenderee ; the one's particular estate and the other's remainder are one and the same estate ; and livery having been once made at the creation of it, there is no necessity for having it afterwards.] Nor (ff) 2B1. Com. 326. 373 b. (A) Shep. Touch, by Preston, (Z) Co. Litt. 337 b; Burton v. vol. ii. p. 312. Barday, 7 Bing. 757. (i) See Co. Litt. 295 b ; Doe v. (m) Perk. «. 589. Jenkins, 5 Bing. 469 ; Jenkins v. («) 2 EoU. Ab. 497. Church, Co-wp. 482 ; Ludford v. (o) See Farmer ■„. Rogers, 2 Barber, 1 T. E. 86 ; Doe v. Archer, Wils. 26 ; Co. Litt. 338 a ; Shep. IBos. &Pul. 531. Touch. 307; Sleigh v. Bateman, (4) As to surrender, see Co. Litt. Cro. Eliz. 487. 606 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. was either deed or other writing required, at common law, to efPect the surrender of land {p). But by the Statute of Frauds (29 Oar. II. c. 3), s. 3, no lease (except of copy- hold) shall be surrendered otherwise than by deed or note in writing, signed by the party or his agent lawfully authorized by writing (j) : though this provision did not prevent there being a surrender created without writing by operation of law ; for a surrender, like a confirmation, may be implied by law from circumstances {r). And now by the statute 8 & 9 Vict. c. 106 (s. 3), a surrender in Writing of an interest in any tenement or hereditament, — not being a copyhold interest, and not being an interest which might by law have been created without writing, — made after the Ist October, 1845, shall be void at law unless made not only in writing but by deed. It is laid dovm that, upon a surrender, no entry is required to com- plete the title of the surrenderee, except for the purpose of bringing an action for any trespass committed ; so that if a tenant for life or years surrender at a place off the land, to him in reversion, and the latter agree to it, he has the land in him without further ceremony (s). As to the effect of this conveyance, we may also remark that if a lessee for life or years make a lease for years, re- serving rent, and then surrender his estate to his landlord, the estate for years made out of the estate so surrendered will continue notwithstanding the surrender ; but the under-tenant at common law, was, by such surrender of the original lease, held discharged (in general) from the rent (p) Co. Litt. ubi sup. ; Shep. (r) Shep. Touch. 301 ; Bao. Ab. Touch, ubi sup. Leases (S.) 3 ; Davison v. Stanley, ■ (j) See Roe v. Archbishop of 4 Burr. 2210 ; Phipps v. Soul- York, 6 East,' 86 ; Gore v. Wright, thorpe, 1 Bam. & Aid. 50 ; Dodd 8 Ad. & El. 118. As regards the v. Acklom, 6 Man. & G. 672 ; mere cancellation of the lease, see NickeUs v. Atherstone, 10 Q. B. Doe V. Thomas, 9 Bam. & Cress. 944. ■288 ; Walker v. Richardson, 2 Mee. (s) Shep. Touchstone, 307, 308 ; & W. 882 ; Lord Ward v. Lumley, Thompson v. Leach, 2 Vent. 198. 5 H. & N. 87, 656. CHAV. XVII, OF CONVEYANCES AT COMMON LAW. 507 a,nd other covenants of his lease ; for the reversionary estate to which they were annexed ceased, on the surrender, to exist {t). And hence in the case of leases, surrendered for the purpose merely of heing renewed, it was in the power of the under-lessees (hy refusing to surrender, in their turn, notwithstanding they had covenanted to do so), greatly to prejudice their immediate landlords, the first lessees. But by the statute 4 Geo. II. c. 28, it was provided in the particular case of a lease surrendered for the purpose of renewal, that the new lessee should (without a surrender of the under-lease) have the like remedy as to the rent and covenants, and the under-lessee should hold, as if the original lease had been kept on foot : and that the chief landlord should have the like remedy, by distress or entry on the lands and hereditaments comprised in such under- lease, for the rents and duties reserved by the renewed lease (so far as they exceeded not those reserved by the original lease), as he would have had if such original lease had been kept on foot {it). And by 8 & 9 Yict. c. 106, {s. 9,) it is now provided more generally, that when the reversion expectant on a lease (made either before or after the passing of that Act) of any tenements or hereditaments of any tenure shall, after the 1st October, 1845, be sur- rendered 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. IX. An assignment of land or real estate is properly a transfer, or making over to another, of a person's whole {t) Lord Treasurer ■u. Barton, Ad. 715; Cousins v. Phillips, 35 Moore, 94 ; "Webb v. EusseU, 3 L. J., Ex. 84. As to the renewal T. B. 402. of leases of crown lands, see 8 & 9 (k) See Doe v. Marohetti, 1 B. & Vict. c. 99, s. 7. 508 BK. II. OF EIGHTS OF PKOPEKTY. — FT. I. THINGS REAL. interest therein, whatever that interest may he ; but it is more particularly applied to express the transfer of an estate for life or years. And an assignment for life or years differs from a lease only in this, that by a lease a man grants an interest less than his own, reserving to him- self a reversion; by an assignment, he parts with the whole property, and the assignee consequently stands in the place of the assignor {y). Thus where a lease is assigned, the assignee (as well as the lessee) is liable to the landlord or reversioner, for the future performance of the covenants made by the lessee : and such assignee remains liable until he assigns over in his turn to another person (z). And this liability attaches to him even with- out entry {a), soil., where the assignment is by deed. How- ever, he is not liable by force of the assignment, except on such covenants as run ivith the landifi). And he is also entitled to' enforce against the reversioner any covenant of that kind which the lease contains in favour of the lessee ; and in case the reversioner conveys his interest to another, then to enforce it, also, against such grantee of the rever- sion (c). But if the transfer be for a single day short of the residue of the term, no liability or claim on the origi- nal covenants can arise between the transferee on the one hand, and the reversioner or the grantee of the reversion on the other hand, for it is then an under-lease and no assignment ; and the alienee, not coming precisely into the place of the alienor, is in no privity with the rever- sioner {d). No deed or other writing was necessary, at (y) 2 Bl. Com. 326. (a) 'Williams v. Bosanquet, 1 (a) Taylor ». Shum, 1 B. & Pul. Brod. & Bing. 248. 21 ; Burnett j>. Lymd, 5 B. & C. (i) Wiitton v. Peacock, 2 Bing. 689 ;' Moule v. Garrett, Law Eep., N. C. 411. 6 Exch. 132 ; and on app., 5 Exch. (c) 32 Hen. 8, c. 34 ; Thursby v. 101. As to the lessee continuing Plant, 1 Saund. by Wms. 230 b- liable notwittstanding the assign- Wright v. Burroughes, 3 C. B. 685. ment, see Barnard v. Godsoall, Ore. (d) HoUord v. Hatph, Doug. Jao. 309. 182 ; Baker v. Gostling, 1 Bing. N. C. 19. CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 509 common law, to the validity of an assignment (e) ; though, in the case of a lease for life, it could not be efEected without livery of seisin (/) ; but by the Statute of Frauds, (29 Oar. II. c. 3,) the same provision as to the necessity of a deed or written instrument was made, with respect to an assignment, as before mentioned in the case of a sur- render {g). And now, by 8 & 9 Vict. c. 106, s. 3, an assignment of a chattel interest not being copyhold, in any tenements or hereditaments, made after 1st October, 1845, shall be void at law, unless made not only in writing but by deed ; while on the other hand, by the effect of the same statute, sect. 2, an assignment even of a lease for life may now be efEected by deed of grant without livery of seisin. The proper operative words in an assignment are " assign, transfer, and set over ; " but it may be efEected by any words which are suflBcient to express the intention {h). X. [A defeasance is a collateral conveyance, made at the same time with another conveyance, containing certain conditions, upon the performance of which the estate then created inay be defeated, or totally undone («). And in this manner mortgages were in former times usually made ; the mortgagor enfeoflSng the mortgagee, and he at the same time executing a deed of defeasance, whereby the feoffment was rendered void on repayment of the money («) Noke V. Awder, Oro. Eliz. lease, if the intention of the parties 373, 436 ; Moore, 419, S. 0. can be so effected. (See Poulteney (/) Earl of Derby v. Taylor, 1 v. Holmes, 1 Stra. 406 ; PoUock v. East, 602. Stracey, 16 Law Joum. (Q. B.) (^) Vide sup. p. 506. 132.) An under-lease /or Me wAofe [h) Panninter v. Webber, 8 Taunt. term -will operate as an assignment. 593. As to an agreement to assign, (Beardmau v. Wilson, Law Eep., not amounting to an assignment, 4 0. P. 67.) see Hartshorn v. Watson, 6 Bing. («) The term is derived from the N. C. 477. A transaction which French verb, defaire, infeetum red- would be void as an assignment dere. As to a defeasance, see Co. may still be held valid as an under- Litt. 236 b. 510 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. [boiTOwed at a certain day (k).'] And this, lohen executed at the same time with the original conveyance, was considered as part of it by the antient law : and, on that account only, indulged (/). For a conveyance of the freehold, at common law, could not be defeated or recalled by a deed of defeasance executed afterwards ; and if such conveyance (being a conveyance by the common law) contained a proviso that it should be lawful for the grantor by subse- quent act to revoke the same, the proviso was void for repugnancy (m). But things that were merely executory, or to b& completed by matter subsequent, — as rents, of which no seisin could be had tiU the time of payment, and so also annuities, conditions, warranties, and the like, — ^were always liable to be recalled by defeasances made subsequent to the time of their creation {n). Defeasances of land are now of rare occurrence : the practice in modem times being (as in the case of a mortgage) to include in the same deed both the conveyance of the land to the alienee, and the conditions (if any) to which it is to be subject, and by which its efEeot may be defeated. XI. We wiU conclude this chapter by mentioning that- there was also a common law conveyance termed a kase and release (o). It obtained where one, desirous to convey in fee, first made a lease to the proposed alienee — for example, for one year — which demise, if perfected by actual entry, conferred on him a complete leasehold estate {p). The lessee then became capable of receiving a release of the reversion, for he would be tenant of the particular estate on which that reversion was expectant {q), (A) Vide sup. p. 470. (o) See 2 Sand. TJs. p. 70, where (?) Co. Litt. 236. it is said not to have been frequent. (m) lb. 237 a. See Hist. Eng. Law, by Beeves, («) 2 Bl. Com. p. 327 ; Co. Litt. vol. iii. p. 357 ; vol. iv. p. 356. 237a; Co. Litt. by Butler, 237 a, (p) 2 Bl. Com. 144. n. (1). (q) Vide sup. p. 502. CHAP. XVII. 0¥ CONVEYANCES AT COMMON LAW. 511 and tlie next step therefore was to execute a release of the land to him and his heirs, so that by the conjoint operation of the two conveyances he became without livery of seisia tenant in fee in possession. The release ia this case operated by way of enlargement of the estate of the lessee. This common law conveyance by lease and release was the foundation of the conveyance (mentioned in the next chapter), also called a lease and release, but which we shall see operated under the Statute of Uses. 512 BK. n. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. CHAPTEE XVIII. OF CONVEYANCES UNDER THE STATUTE OF USES. The subject of conveyances by tbe common law having now sufficiently engaged our attention, we have to exa- mine — Secondly, conveyances which derive their force from the statute law ; and of these the first place is due to Convey- ances founded on the Statute of Uses. This statute, as we have already seen, entirely failed to accomplish the object, or the primary object, contemplated by its provisions {a) ; instead of extinguishing equitable ownerships, it changed their name from mes to that of trusts; and under the latter name they took root more firmly, and flourished in greater vigour than before. But the statute led to secondary results of a most important character, the nature of which we shall here proceed to explain. The methods employed for creating or raising uses at the period when the statute passed, were principally three : viz. feoffment, covenant to stand seised to uses, and bargain and sale (6). A feoffment transferred the legal estate in the manner already explained when we treated of common law conveyances ; and it was applied to the purpose now in question, by declaring in the deed of feoffment or some other collateral instrument to whose use the feoffee was to hold, and defining the estate or interest for which such use (a) Vide sup. pp. 353 — 366. (*) Hist. Eng. Law, by Eeevea, vol. iv. pp. 161—163. C. XYIII. OF CONVEYANCES UNDER STATUTE OF USES. felS was to subsist (c). The covenant to stand seised, and the bargain and sale, emanated from the doctrine of equity that the owner of land who covenanted to stand seised of it to the use of some near relative, or who entered into a bargain and sale of it for a pecuniary consideration, — was thenceforward to be considered as holding it to the use of such covenantee or bargainee respectively (d). As soon as this doctrine was established, the object of putting land into use was accomplished with the greatest facility, by the mere execution on the part of the owner of a deed of covenant to stand seised (or of a deed of bargain and sale), for such estate as therein mentioned, to the use of the intended cestui que use : because a use conformable to that estate immediately arose in favour of the covenantee or bargainee (e). And though the original owner continued seised, (there being no transfer of the legal estate,) his ownership became nominal only, for he held subject to the use. In these two latter modes, therefore, as well as by feoffment, it had become the common practice to raise uses before the Statute of Uses passed. After that event, it became obvious that uses had now become capable of being turned to a new purpose (though one that had not been designed by the legislature), viz. the conveyance of the legal estate upon a principle un- known to the common law. For we may remember that by the effect of the statute, whenever there is a seisin to a use, that use is executed, or (in other words) transmuted into the equivalent legal estate (/). A party, therefore, who desired to aliene his land after the passing of this Act, had only to create (by whatever means) a seisin to the use of the proposed alienee, . for such interest as intended {g) ; and a legal estate of the same description was then trans- ferred to such alienee by force of the statute, as effectually (c) 1 Sand. Uses, pp. 172, 173; (e) 1 Sand. Uses, p. 172; Fox's Sugd. Gilb. Introd. xlii. case, 8 Eep. 941, n. {S) Vide sup. p. 357. (/) Vide sup. p. 362. [g) 1 Cruise, Dig. 440. VOL. I. X. L 514 BK. II. OF RIGHTS OF PEOPEBTY. PT. I. THINGS REAL, as if it had been conveyed by one of the ordinary methods of the common law. It was also obvious that this new prin- ciple of conveyance enabled parties to escape from the many restrictions of the common law, with respect to the modification of estates; for uses might be limited with greater freedom than the land itself {/*) ; and as by a covenant to stand seised, or a bargain and sale, a seisin to uses might be created without any solemnity beyond the simple execution of a deed, — those who were desirous to avoid the publicity and other inconveniences connected with livery of seisin, effected their purpose with ease, by resorting to one of these methods, and making it a medium for the operation of the new principle («'). Under these circumstances it naturally happened that the same three methods which, before the statute, had been ordi- narily employed to raise uses, now began to be employed as modes of transferring the legal estate for the benefit of the transferee ; and in connection with this they were also made, as often as occasion required, to fulfil their former oflBce of creating equitable interests. And to effect this nothing more was necessary than to insert in them a limi- tation of one use upon another, in the manner described in the chapter on TJses and Trusts ; for while the first use was executed by the statute, and became the legal estate, the second use retained, under the name of trust, the equitable character designed (f). Such is the principle of conveyances under the Statute of TJses, considered as a class. They comprise not only the feoffment to uses, the covenant to stand seised, and the bargain and sale, but also that species called a lease and release, (added to their number soon after the statute passed,) and a fifth of com- paratively recent introduction, and which may be denomi- nated a grant to uses. And this last, as we shall have occasion presently to explain, nearly superseded all the rest, in the practice of conveyancing ; and modified as it (A) Vide sup. p. 360. Com. 337. (») 2 Sand. Uses, p. 40 ; 2 Bl. (j) Vide fup. p. 366. G. XVIII. — OF CONVEYANCES UNDER STATUTE OF USES. 515 has been lay the Oonveyancing Act, 1881 (k), it is in fact available in aU cases of conveyance whatsoever. Yet as some acquaintance with the foux former will contiaue to be of importance, so far as the investigation of antient titles to land, and the history of the law in general, is con- cerned, it will be necessary here to examine, individuaEy and in some detail, the whole that have just been enume- rated. And we will begin with — I. A Feoffment to Uses (/). This was simply the ordi- nary conveyance by the common law, with a limitation to uses superadded (m), Thus, if A. were desirous to convey to B. in fee, he might do so by enfeoffing a third person, C, (of course with livery of seisia,) to hold to him and his heirs to the use of B. and his heirs ; the effect of which was to convey the legal estate in fee simple to B. For the legal estate passed to 0. by means of the livery, ia like manner as it would have done before the statute ; but no sooner had this taken place, than the limitation to uses began to operate, and 0. thereby became seised to the use limited ; the consequence of which was, that, by force of the statute, the legal estate was eo instanti taken out of C. and vested in B., for the like interest as was limited in the use, that is, in fee simple. B. thus became the legal tenant as effectually as if the feoffment had been made to himself, and without the intervention of a trustee. This method, however, involving as it did the necessity of making livery of seisin, was never of frequent occurrence in modem practice {n). ■ II. A Covenant to stand seised to TJses(o). This was a conveyance adapted to the case where a person seised of land in possession, vested remainder, or reversion, (A) 44 & 46 Vict. 0. 41. («) 2 Sand. Uses, p. 13. ^ {t) See 1 Sand; Uses, p. 173 ; 2 (o) See Eoe «'. Tranmaer, Willes, ilj. p. 13. 682 ; Doe v. Davies, 2 Mee. feW. [m) "Vide sup. p. 485. 503. L I. 616 BK. II. OF RIGHTS OF PROPERTY.— PT. I. THINGS REAL. proposed to convey his estate to his wife, child, or kins- man ( p) ; and in its terms it consisted of a covenant by the owner to stand seised to the use of the intended trans- feree {q). Before the Statute of Uses, this would merely have raised a use in favour of such party ; but since that Act, the legal estate was transferred to hiid; for, the covenantor being by the effect of his covenant seised to the use of the covenantee, the statute immediately exe- cuted that use. But the conveyance in question was held to be ineffectual, unless the parties to it stood to one another in the relation of marriage or of near consangui- nity ; for no use was raised in contemplation of equity, in case of ia mere contract, unless such contract was founded on proper consideration, such as natural affection, and therefore, imless the parties were connected as above, there was no use for the statute to take effect upon(»'). On account of inconveniences connected with this principle,, and for other reasons, this species of conveyance became by degrees wholly laid aside (s). III. A Bargain and Sale. This was a conveyance adapted to the case where a person seised of land in pos- session, vested remainder, or reversion, proposed to convey it to some other person. In its terms it consisted of a bargain and sale for money by the owner to the intended alienee ; and at common law such bargain and sale might be a verbal one merely. By the effect of this contract, the bargainor became seised to the use of the bargainee, in fee, in tail, for life, or for years (according to the nature of the limitation) ; and this, before the statute, was the whole effect of the instrument; but afterwards the {p) 2 Sand. Uses, pp. 34, 94. («) 2 Poub. Tr. Eq. 28 ; 2 Bl. (?) 2 Bl. Com. 338. Com. 338 ; 2 Sand. Uses, p. 91 ; 2 (>•) 2 Sand. Uses, pp. 90, 94 ; Saund. by Wms. 97 a, n. (b). See Sharrington ». Stratton, Plowd. Doe d. Starling v. Prince, 10 L. J. 300 ; Hist. Eng. Law, by Reeves, (0. P.) 223. vol. iv. p. 162. , C. XVIII. OF CONVEYANCES UNDER STATUTE OF USES. 517 statute executed that use, and clothed the alienee with a commensurate legal estate. But as it was essential to the efficacy of a covenant to stand seised, that it should be made in consideration of natural affection, so, for the like reason, it was requisite in the case of a bargain and sale, that it should he founded on pecuniary consideration ; for otherwise no. use would be raised, and there would be nothing for the statute to operate upon. With respect to this conveyance, it is to be observed, that it possessed in a peculiar degree the recommendation to which we before adverted, of enabling parties to transfer a freehold without livery of seisin. For the covenant to stand seised could rarely be made available to the purpose, as it operated only between persons standing in particular relations to each other ; but in the extensive class of con- veyances which take place between seller and purchaser, a bargain and sale afforded the ready means of dispensing with livery of seisin and attornment; since by the insertion into the deed of a small sum of money, as the nominal consideration of a transfer, it was easy, even when the transaction was not really of the pecuniary kind, to obtain the benefit of this mode of conveyance (if). And not only the freehold in possession might be thus conveyed without livery, but a remainder or reversion might also be passed by the same method (as indeed it might also by covenant to stand seised), without attornment {u) . But secret transfers of land being opposed to the policy of the law, the legislature as soon as it perceived that these might be accomplished with facility, by means of a bargain and sale, hastened to provide a remedy («) ; and accordingly it was enacted by the statute 27 Hen. VIII. o. 16 (called the Statute of Inrohnents), that no bargain and sale should enure to pass a freehold, unless the same were by deed (t) 2 Sand. Uses, p. 41. vide sup. p. 450. \u) lb. p. 40 ; 1 Sauud. by Wms. (a) 2 Sand. Uses, pp. 43, 44, 51 ; 234 b, n. (4) ; Shove v. Pinoke, Bao. Use of Law ; 2 Bl. Com. 338. 5 T. R. 124. As to attornment, 518 BK. II. OF EIGHTS OF PROPERTY. FT. I. THINGS KEAL. indented, and enrolled withm six montlis after its date, in one of the courts of Westminster Hall, or else with, the ciistos roiulorum of the county (y). A hargain and sale, it is to be observed (and the remark is equally applicable to a covenant to stand seised), was also capable of conferring a complete estate for years, without entry ; a property that belonged not to a convey- ance at common law: for a common law lease for years , gives no complete estate until entry has been made (z). It is, therefore, to be understood that if a man bargained and sold (or covenanted to stand seised of) his land for a term of years, the use thus raised was executed and became a complete estate for years, by force of the statute, without any additional ceremony («) ; upon the same principle "that a bargain and sale, or covenant to stand seised, in respect of a freehold interest enured to pass the freehold, without livery of seisin {b). Amd though the Statute of Inrolments provided compensation for the tendency of -bargains and sales to dispense with livery in freehold con- veyances, it made no similar provision to guard against their effect in conveying a term of years without entry; for these chattel interests, being then but of a precarious nature, were not thought of sufficient importance to be included in its enactment (c) . A bargain and sale for term of years was therefore effectual without inrolment {d) ; and differed, in this respect, from a bargain and sale for an estate of freehold. It is material to observe, that no particular form of words was held essential to the legal efficacy either of a (y) 2 Sand. Uses, p. 41. Here- required by the Statute of Frauds ditaments lying within any city (29 Car. 2, c. 3) to be in writing ; or town corporate, the ofBcers of and is now required by 8 & 9 Vict, which had authority to make in- o. 106, to be by deed, robnent of deeds, were excepted (J) Barker v. Keate, 2 Mod. 249 ; fern this statute. (lb. p. 66.) Mallory's case, 5 Rep. 286. • (a) Vide sup. p. 510. (c) 2 Bl. Com. 338. [a) Every bargnin and sale was [d) Ibid, a XVIII. — OF CONVEYANCES UNDER STATUTE OF USES. 519 bargain and sale or of a covenant to stand seised (e). " Bargain and sell " were the words of transfer ordinarily- used in the one case, and " covenant to stand seised " in the other. But other words would have the same efEeot (/) ; and the distinctive character of each of these conveyances was determined by the consideration on which it was founded {g). Where the use was raised upon a pecuniary consideration, the conveyance was good as a bargain and sale, whatever the terms used : where it arose on the con- sideration of natural affection, it availed as a covenant to stand seised (^). If the words employed, however, were such as to indicate that there was no intention of trans- ferring the property by the instrument in which they were contained ; for example, if they amounted merely to an engagement to convey by a future instrument, no use would arise, and consequently no estate would pass (i). The rule, which required a bargain and sale to be founded on pecuniary consideration, was held to be matter of form only, and sufficiently complied with if the convey- ance purported to be so founded ; and for this purpose any trivial sum might be inserted, though the consideration which reaUy passed between the parties were of larger amount, or even though it were in fact not of a pecuniary nature (A). It was also immaterial whether the sum so inserted were actually paid or not (/). IV. A Lease and Eelease. The conveyance so de- scribed was of a compound description, consisting of two separate parts ; first, a bargain and sale ; secondly, a com- mon law conveyance by release : and, (like the bargaia and sale,) it was adapted to the case where a person seised of land in possession, vested remainder, or reversion, pro- posed to convey his interest to another. (e) 2 Sand. Uses, pp. 56, 90 ; Doe (A) Sand, ubi sup. ; 2 Saund. by V. Davies, 2 Mee. & W. 503. Wms. 96 b, n. (1), n. (2). (/) 2 Sand. Uses, p. 90. (i) 1 Sand. Uses, pp. 118, 120. [g) 2 Fonb. Tr. Eq. 47. (*) 2 ib. p. 64. {T) Sugd. ailb. 96. 520 BK. II. OF EIGHTS OF PKOPERTy. PT. I. THINGS REAL. A conveyance by lease and release obtained occasionally at the common law ; and by its means an estate migbt be conveyed by lease and entry to a proposed alienee, without livery of seisin, in the manner explained in our last chapter (w). Now when the Statute of Inrohnents rendered it impossible to effect a secret conveyance of the freehold, by the method of bargain and sale («), the prac- titioners of the day were left to devise some new means of attaining that object : and they accordingly invented for the purpose a new conveyance under the Statute of Uses ; the hint and name of which was supplied by the common law lease and release (o). Instead of a lease, the conveying party was made to execute a bargain and sale for some leasehold interest, for example, for the term of one year. This, without any inrolment, passed the legal estate for a year to the bargainee, (the Statute of Inrol- ments extending to freeholds only,) and the estate so trans- ferred was complete without actual entry {p). The trans- feree therefore was capable of receiving a release of the freehold and reversion {q) ; which release was accordingly granted to him on the next day (r). This compound con- veyance — which is said to have been invented by Serjeant Moore soon after the Statute of Uses (s) — was called, like its common law prototype, a lease and release ; though, properly speaking, it was rather a bargain and sale with release; and as it was competent to pass the freehold •without livery of seisin, entry, or inrolment, or any other ceremony than the execution of the deeds themselves {t), ■and was in some other technical points more advantageous than a bargain and sale, it soon grew into familiar use (m) ; and became so generally established as almost entirely (ot) Vide sup. p. 510. (j) Sand, ubi sup. ; 2 Prest. («) Vide sup. p. 517. Conv. 219. . (o) 2 Sand. Uses, p. 71 ; 2 Brest/ (>•) Ibid. Conv. 219. (s) 2 Bl. Com. 338 ; Hist. Eng. (p) Vide sup. p. 618. See Sand. Law, by Eeeves, vol. iv. p. 355. ubi sup. {t) 2 Sand. Uses, p. 72. {«) 2 Sand. Uses, p. 60. C. XVIII. — OF CONVEYANCES UNDER STATUTE OF USES. 521 to supersede every other method of conferring a freehold estate, whether at the common law, or under the Statute of Uses. It is almost superfluous to add, that its legal validity, though formerly doubted by great lawyers, he- came, in progress of time, too firmly settled to be shaken (x). On the release, some use was ordinarily engrafted. If it was one to the relessee himself in fee, he took the legal estate as at common law {i/) ; for this was not such a use as the statute executed (s) ; but if the use were declared to a third person, it would be executed by the statute, and the legal estate in the freehold conveyed would pass accord- ingly to Mm. The lease (or bargain and sale) and the release, in practice, used always to constitute separate deeds, the former bearing date the day before the latter ; but if com- prised in the same deed, they were understood to be equally effectual (a). V. A Grant to Uses. By reason of the provision of the 8 & 9 Vict. c. 106, s. 2, to the effect that corporeal here- ditaments " shall, as regards the conveyance of the imme- " diate freehold thereof, be deemed to lie in grant as well "as in livery," — all conveyances of hereditaments, (whether corporeal or incorporeal, whether in possession or in expec- tancy, . and whether for an estate of freehold or for an inferior estate,) may now be brought within the range of that common law conveyance discussed in the last chapter under the head of grant ; though, in its antient and proper application,- the conveyance by grant was confined to the transfer of incorporeal hereditaments and estates in expec- tancy : and this being the case, a grant in fact supplanted, generally speaking, all these methods, and became the {x) 2 Bl. Cora. 339. (a) Sugd. Gilb. 229, (n.). By4& 5 (t/) Sand, ubi sup. Vict. o. 21, a release expressed to be (2) Vide sup. p. 363. made under that Act had the same eflect as a lease and release. 522 BK. II. OF EIGHTS OF PKOPEBTY. PT. I. THINGS KEAL, almost universal expedient for conveying real estate inter vims. It is the practice of conveyancers to import into a grant of corporeal hereditaments limitations to uses, and a conveyance so framed (when the use is not limited to the grantee) takes effect under the Statute of Uses ; for while the seisin to the use is created hy force of the statute 8 & 9 Vict. c. 106, the use is converted into the legal estate hy force of the statute 27 Hen. YIII. c. 10 {b) ; and the operation is the same of a conveyance under the Conyey- ancing Act, 1881, which has made the use of the word " grant " unnecessary (c). Having thus considered each of the different eonveyr anees under the Statute of Uses, it is now time to make some remarks applicable to those conveyances as a class. . We may remark then, in the first place, that conveyances to uses must of course comprise all the circumstances necessary to bring the Statute of Uses into operation. Some use, therefore, (either in esse or otherwise,) must be raised by them, and some sufficient seisin to such use must be constituted (d) ; or, in the language of conveyancers, there must be a seisin proper to support or serve the use (e). And from this necessity of a seisin to a use it follows, that an existing term of years cannot be transferred by any method of conveyance depending on the Statute of Uses for its operation ; for of a mere chattel interest there can be no seisin : though, on the other hand, the owner of the freehold may convey it by these methods, for a term of years ; for he has a seisin out of which the use for the term may be served (/). For the same reason it has also been supposed that a corporation aggregate could not aliene (i) In the case of a grant of land (c) 44 & 45 Viot. o. 41, s. 49. containing no use, as if A. grant {d) Vide sup. p. 363. land to B. and his heirs,— the con- (e) 2 Sand. Uses, p. 59 ; 1 Sand, yeyanoe takes effect, not under the Uses, pp. 97, 133, 140. statute of Uses, but simply by (/) 2 Sand. Uses, p. 59. forceof.8&9 Viet. c. 106. C. XVin. OF CONVEYANCES UNDER STATUTE OV USES. 623 land by a conveyanoe under the Statute of Uses (gr) ; for it was part of the antient doctrine with respect to uses, that such bodies as these could not be seised to any use but their own (A). When corporations aggregate, therefore, had occasion to make conveyances of their lands, the method adopted was commonly that of a feoffment ; or a lease with actual entry, followed by a release (»). But of course a corporation, equally with an individual, can now make an effective conveyance whether for a freehold or for a lease- hold interest, either by grant under the 8 & 9 Vict. o. 106, or by simple conveyance under the Conveyancing Act, 1881. The use which is required for the purpose of a convey- ance under the statute may be either expressly declared or implied by law. Thus, if A. convey by feoffment or lease and release to B. in fee, without consideration, and without declaring any use, there will be a resulting use, by con- struction of law, to A. himself ; and such use the statute will execute accordingly (J). A limitation of the legal estate by way of use, that is to say, in a conveyance operating under the Statute of Uses, is governed by the same principles that apply to the creation of estates by a common law assurance (k). Thus the word heirs used to be necessary, at common law, to create an estate of inheritance (/) ; and in like manner if a man bargains and sells to A., without adding and his heirs, or the equivalent expression in fee simple, A. has only an estate for life (w). So an estate may be limited by way of use (as well as in a common law conveyance) in possession, in remainder, or in reversion (») ; and, if in (?) lb. p. 58 ; 4 Cru. Dig. 175 ; p. 357. Sugd. Gab. 7, (n.). (A) 1 Sand. Uses, pp. 123, 124 ; (A) Vide sup. p. 358. Corbet's case, 1 Eep. 87 b. (j) 2 Sand. Uses, p. 59 ; Sugd. (?) Vide, sup. p. 238 ; 2 Bl. Com. Gilb. 7, n. (1). 109 ; Nevell v. Nevell, 1 Eoll. Ab. (y) Co. Litt. 271 b ; 1 Sand. 837. Uses, pp. 106, 109 ; Doe v. EoMe, M 1 Sand. Uses, p. 124. 3 Nev. & Per. 648. Vide sup. («) Sugd. Gilb. Ivii., Iviii. 524 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. remainder, must be limited to take effect in possession immediately on the determination of the particular estate (o). So the remainder may be either vested or con- tingent ( p) ', and is subject (if contiugent) to the common law rule, that if it amount to a freehold, it cannot be limited on a particular estate less than a freehold {q). Legal estates created by way of use are also subject, in general, to the same incidents as if created by the methods of the common law (r) ; e.g., where a particular estate was limited by way of use, it was formerly liable to forfei- ture if the tenant made a feoffment for a larger estate than his interest warranted ; and if a contingent re- mainder was limited by way of use, and the particular estate was destroyed before the co'ntingency happened, the remainder was defeated (s), — and the Contingent E,e- mainders Amendment Act, 1877, applies equally to a remainder limited by way of use, as to a remainder limited at the common law {t). But while a limitation by way of use, is thus in general subject to common law principles, there are some very material particulars, in which it has always been allowed a greater latitude (««) ; that is to say, the following : — 1. By the common law, a man could not in any case be a purchaser, (that is, take an estate,) under his own conveyance; for he could not, in the nature of things, unite the opposite capacities of grantor and grantee, feoffor and feoffee («). Thus A., seised in fee, could not (o) Sugd. Gilb. ib. 164; vide 2 Mod. 210 ; 1 Sand. Uses, 131, 132; sup. p. 329. 2 Prest. Est. 20. As to [p) Sugd. Wilb. Iviii. 153. property, (including chattels real,) {q) Ib. 164, 165 ; vide sup. p. a man may assign it directly to 326. himself and another, just as he {?•) 1 Sand. Uses, p. 166. may assign it to another (22 & 23 («) Sugd. Gilb. p. 298. Vict. c. 35, s. 21) ; and so for [t) Vide sup. p. 331. ohoses in action (44 & 45 Vict. («) 1 Sand. Uses, p. 130. u. 41, s. 50) ; such assignments are (.1;) Per Hale, Pibus v. Mitford, only made on the appointment of 1 Vent. 378 ; Southcot v. Stowell, new trustees. C. XVm. — OF CONVEYANCES UNDER STATUTE OF USES»- 525 convey to himself for life, remainder over to B. in fee ; nor to B. for life, remainder over to himself in fee. In the first ease, the whole conveyance would he void ; in the second, the remainder; A. in such case taking no re- mainder, hut continuing in the reversion, as of his former estate (y). And the distinction involved this practical difference, that the reversion, heing the old estate, was in its descent confined to the hlood of the same purchaser as hefore ; whereas if A. had taken it as a remainder, it would (according to the general law of inheritance) have been descendible to his heirs general, whether his former title to it had been by purchase or by descent (s). But indirectly, and through the medium of a limitation to uses, it has always been practicable for a man to become a purchaser of his own estate (a). Thus, A. may by feoffment, or lease and release, convey to a third per- son, C, to the use of himself, the grantor, for life, with remainder to the use of B., in tail or in fee ; or to the use of B. for life, with remainder to the use of himself, the grantor, in tail ; and in all these cases he wiU take the legal estate by purchase accordingly (6). Yet if the remainder were to the use of himself in fee, he would not at one time have taken by purchase ; at least not in such a sense as to have made himself a purchasing ancestor. For such a use was considered as amoimting only to the old use in reversion, so that it would have been converted by the statute into a legal estate in reversion, which would have descended to the blood of the same purchaser as before (c). And such was the state of the law at the time (i/) See Co. Litt. 22 b; Read v. by Harg. 13 a, n. (2); 1 Sand. Errington, Cro. Eliz. 321 ; 2 Bl. Uses, p. 135 ; Sugd. GUb. pp. 160, Com. 176 ; et sup. pp. 314 et seq. 151. (2) 2 Bl. Com. 176 ; Watk. Deso. (c) 1 Rep. 129 b, 130 a ; Co. 169 ; vide sup. p. 387. Li**- 23 a ; Eead v. Errington, (a) Per Hale, Kbus v. Mitford, Cro. Eliz. 321 ; Lord Eaym. 802 t 1 Vent. 378 ; Southoot v. StoweU, Godolphin v. Abingdon, 2 Atk. 57 ; 2 Mod. 210 ; Watk. Deso. 180. and see Wood v. Douglas, 28 Ch. (b) Co. Litt. ubi sup. ; Co. Litt. Div. 327 ; and Moore v. Simkin, 526 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. of the passing of the Inheritance Act (3 & 4 Will. IV. c. 106) ; hut that Act (sect. 3) has enacted, " that when " any land shall have been limited by any assurance, exe- " cuted after the 31st December, 1833, to the person or to " the heirs (e) of the person who shall thereby have con- " veyed the same land, such person shall be considered to " have acquired the same as a purchaser by virtue of such *' assurance, and shall not be considered as entitled thereto " as of his former estate, or part thereof." And just as a man could not, at the common law, convey to himself, so he could not convey to his wife, for she was considered as the same person with him (/) ; but the object was effected through the medium of a limitation to uses ; that is, by creating a seisin in another person, and declaring a use to the wife(g'); and now, under the Conveyancing Act, 1881, a man may convey freeholds directly to his wife, either alone or jointly with another or others (A); and may also convey freeholds directly to himself and another. 2. At common law, a freehold could not be created to commence in futuro; or, in other words, could not be limited to take effect at a future period, except by way of remainder upon some particular estate also passing at the same time out of the grantor (»). But this might be effectually done by a conveyance under the Statute of Uses : for a use was never subject to the like restriction, but might be limited for any extent of interest to com- mence in futuro (j) ; and the statute, taking effect on such future interest, transmuted it into the legal estate {k) . Thus 31 Ch. D. 96. The case used to be (/) Oa. Litt. 112 a; Moyse v. the same where the use in fee G-iles, 2 Vem. 385 ; Lucas v. Lucas, resulted to the grantor, instead of 1 Atk. 271 ; Arthur v. Bokenham, being expressly limited to him. 1,1 Mod. 156. («) A limitation by a man to his (g) 1 Sand. Uses, p. 132. own heirs, is equivalent to a limi- (A) 44 & 45 Viot. u. 41, s. 50. tation to himself and his heirs; (i) Videsup. pp. 319, 320; Sugd. " for," says Lord Coke, "Aaresesi Gilb. 163, (n.) ; 1 Sand. Uses, "pars antecessoris." (Co. Litt. p. 138. 22 b ; 1 Vent. 378 ; 2 Bl. Com. 176 ; (J ). Vide sup. p. 360. I Rep. 129 b, 130 a.) (A) Sugd. Gilb. 161, (n.). C. XVIII. — OF CONVEYANCES UNDER STATUTE OF USES. 527 a man mlglit covenant to stand seised in fee to the use of another (or bargain and sell to him in fee) seven years hence, and such conveyance would he efEectual (/). So by feoffment, or lease and release, an estate might have been conveyed to A. and his heirs to the use of B. and his heirs, at the death of 0. (m). A use thus limited infuturo, independently of any preceding estate, is called a spring- ing use (w). Such a use is also often described as an executory use, because it is not executed by the statute until it comes into esse by the arrival of the period con- templated. Thus, in the two first examples, the whole fee would remain in the covenantor or bargainor, till the seven years expired (o) ; in the two latter, a use resulted to the feoffor or releasor, till the death of C. [p). But on these events happening, the springing use would be executed, and the cestui que use would become clothed with the legal estate in fee. 3. By a common law conveyance, an estate could not be limited, upon a future event, to one person, in abridg- ment or defeasance of an estate of freehold, first limited to another {q) ; which is often expressed, where the dis- positions are both in fee simple, by the maxim that a fee cannot be limited on a fee (r). Thus, land could not be con- veyed to B. in fee, or for life, with a provision that when 0. returned from Rome, it should thenceforth immediately go over to C. in fee (s). For this would have been to defeat the first estate by force of a condition, which could (t) 1 Sand. Uses, p. 139. other by way of remainder, even (m) lb. 140. -where the first fee is a qualified fee («) Sugd. Gilb. 163. simple (Feame, by Butl. p. 372) ; (o) lb. 161, (n.), 163, (n.). and the maxim applies even to {p) 1 Sand. Uses, p. 140. conveyances by way of remainder (?) Co. Litt. by Butl. 203 (b), n. imder the Statute of Uses ; but, of (1); Coganj;.Cogan,Cro.Eliz.360; course, there may be alternate or Feame, by Butl. pp. 14, 15, 18, 264. substituted limitations of the fee, (r) Feame, by Butl. p. 372 ; 1 each of which would, or might, be Sand. Uses, p. 143 ; 2 Bl. Com. vested. (See Egerton v. Massey, 3 173, 164. Thismaxim applies also 0. B. (N. S.) 338.) to limitations of one fee upon an- («) Fearne, by Butl. pp. 14, 16. 528 BK. II. OF RIGHTS OF PROPERTY.^ — PT. I. THINGS REAL. only be done by the entry of the grantor, or his heirs; and the effect of such entry would have been to destroy the second limitation as well as the first, and to have restored the grantor and his heirs to their former estate (m). But a use might always be made to shift, in this manner, from one person to another {x) ; and therefore, since the statute, land may be conveyed through the medium of a use, in like manner ; as by limiting it to A. and his heirs, to the use of B. and his heirs, with a proviso, that when 0. returns from Rome, the land shall be to the use of C and his heirs (y). A use so limited in derogation of a pre- ceding estate, is called a shifting or secondary use (s) ; and this also is of the executory kind, the operation of the statute -being suspended till the event arrives (a). Thus, in the example juSt given, there is a use first executed by the statute in B., and when 0. returns from Rome, the use to C. comes into esse, and is executed in him. It is, how- ever, to be observed, that upon questions of legal construc- tion, a preference used always to be given to the modifica- tions of the common law ; wherefore, it was firmly settled, that no estate capable of being considered as a remainder (according to the rules by which remainders are limited) should ever be construed as a shifting or springing use (6). But this maxim has been slightly broken in upon by the enactment, that every contingent remainder created by any instrument executed after 2nd August, 1877, or by any will or codicil revived or republished by any will or codicil after that date, 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 prior («) Co. Litt. 379 a ; Litt. ss. 721, (z) lb. 152 ; Sugd. Gilb. 152, (n.). 722, 723; 1 Sand. Uses, p. 151 ; (a) Sugd. Gilb. 154, 155, (n.) ; 1 vide sup. p. 300. Sand.. Uses, p. 144, («) Sugd. GUb. 153, 154, (n.) ; 1 («) 2 Saund. by "Wms. 388 ; Sand. Uses, p. 152. Fearne, by Butl. 393, 9th edit. "(y) 1 Sand. Uses, p. 149. , C. XVIII. — OF CONVEYANCES UNDER STATUTE OF USES, 529 particular estate of freeliold detenniiiiiig before the con- tingent remainder vests, be capable of taking effect in aU respects as if the contingent remainder bad originally been created as a springing or shifting use or executory devise or other executory limitation (c). 4. The grantor, in a common law conveyance, could not reserve to himself, nor confer on any other person, the power of revoking or altering the grant, by any future act or instrument : for that was deemed repugnant to the conveyance itself (d). The utmost that the common law allowed, was a deed of defeasance (coeval with the grant, and therefore esteemed a part of it) upon events specifically mentioned (e). But the limitation of a use, subject to a power of this description, was not considered as involving any repugnancy ; for a use was a mere direction to the trustee how he was to deal with the legal estate; which might well be recalled or changed (/). Therefore, in a conveyance under the Statute of Uses a proviso giving to the grantor, the grantee, or a stranger, authority to revoke or alter, by a subsequent act, the estate first granted, would be valid ; for it is in effect no more than an authority to revoke the use first limited, or to declare a new one (g). Such provisoes are called poicers (A), — a term properly ap- plicable to all authorities, as distinguished from estates («') : and such powers are either mere powers of revocation (k), enabling the grantor simply to recall what he has be- stowed ; or they are powers of revocation and of new appoint- ment (/), authorizing the grantor, or some other person, (c) 40 & 41 Vict. 0. 33 ; vide sup. " came from equity into the com- gg]^ "men law ■with the Statute of ' {d) Co. Litt. 237 a ; 2 Bl. Com. " Uses."— (1 Burr. 120.) 327, 335 ; 2 Fonb. 158, 159. W Vide sup. p. 230. {e) 2 Bl. Com. 335 ; vide sup. (A) A power of appointment im- g, Q plies a power of revocation, but not " (/)' Sugd. Cilb. 158, (n.). ^ oonverso. (4 Cruise, Dig. 232.) i) Ibid (^) ^ S"""^- ^^^^' P- ^^^' * (A) ' ' The limitation and modify- Cruise, Dig. 228 . «' ing of estates by virtue of powers, MM VOIj. 1. 530 BK. II. or RIGHTS OF PROPERTY. FT. I. THINGS RKAL. not only to recall the estate first granted, but also to make a new disposition of the estate. The first will of course hardly find a place except in grants of a gratuitous nature, (or voluntary conveyances as they are called,) though in these they are naturally to he expected {m) ; mankind, according to the remark of Lord Bacon, having always affected to have the disposition of their property revocable in their own time, and irrevocable ever afterwards (w). But with respect to powers of revocation and of new appointment, they are of frequent occurrence in family settlements ; their object not being to indulge the caprice of any party, but to carry into effect with greater con- venience the arrangements actually contemplated. Thus, if a Hfe estate be limited to the settlor, with remainder over, it is common to insert a power enabling biTn from time to time to make effectual leases of the property in possession, for terms not exceeding twenty-one years ; a privilege reasonable and convenient in itself, but such as is not incident to the estate of a tenant for Hfe generally (o). Of the same nature, in general, are the usual powers of jointuring, selling, charging land with the payment of sums of money, and the like {p) ; and all these are technically described as powers of revocation and of new appointment, — because, in authorizing a new dispo- sition not made by the conveyance itself, they operate pro tanto as a revocation of those which it contains {q). Such a power, if closely considered, will be found to amount to an authority to create a use, to take effect in derogation, (m) 2 Fonb. 156, n. (q). vocation and of new appointment is («) 'Bl. Com. ubi sup. not, however, usually applied to a (o) Such, a lease may, ho-wever, mere power of leasing, jointuring', now be made by the tenant for Hfe, or the like ; but to powers of a either under the Settled Estates different nature, as where a man Act, 1877, or under the Settled conveys his estate to trustees to Land Act, 1882; (vide sup. p. 253). certain uses, with a proviso that it {p) 2 Sand. Uses, p. 81. shall be lawful for them at any {q) 1 Sand. Uses, p. 155; 4 Cruise, future time to revoke these uses Dig. 228. The phrase poiver of re- and to declare new ones &o. C. XVIII. OF CONVEYANCES UNDER STATUTE OF USES. 531 to a certain extent, of the uses first limited ; or rather tO the virtual limitation of an executory use of that description, in favour of such person, and for such estate, as shall he defined hy the suhsequent act of the donee of the power (r) . The subsequent exercise of the power is called an appoint- ment (s) ; and its effect (when it correctly pursues the authority) is to raise, in favour of the appointee, a use corresponding to the estate appointed {t) ; which being served out of the original seisiu, is immediately executed by the statute, and transmuted into the equivalent legal estate (m) . An appointment is not considered as an inde- pendent conveyance (,r). It is merely ancillary to the former deed; which (as already observed) contains, in effect, a prospective limitation of the new use. The ap- pointee, therefore, is considered for most purposes as deriving his title under the original conveyance ; and to be in the same position as if that instrument had actually contained a limitation in his favour, to the extent of the estate appointed {y). And with regard to such powers generally, the Conveyancing Act, 1881 (s), sect. 62, enables the donee of the power, whether coupled with an interest or not, to release the power by deed, or by deed to contract not [r) Sugd. Grilb. 152, 163, (n.) ; 2 Garth v. Townsend, Law Eep., Sand. Uses, p. 81. 7 Eq. Ca. 220.) As to illuam-y [s) Sand, ubi sup. ; Sugden on appointments so-called, see 11 Powers, p. 457 ; Williamson v. Geo. 4 & 1 WiU. 4, u. 46 ; and Farwell, 35 Ch. D. 128. as to the execution of non-ex- it) As to the mode of attesting elusive powers as if they were ex- the execution of a power to appoint elusive, see 37 & 38 Vict. o. 37 ; by will, see 7 Will. 4 & 1 Vict. and In re Capon's Trusts, 10 Ch. c. 26, ss. 10, 27 ; and of a power Div. 484. to appoint by deed, see 22 & 23 Vict. («) 2 Sand. Uses, p. 82 ; 4 Cruise, u. 35, s. 12. Courts of Equity have Dig. 228. been in the habit of granting relief {x) 2 Sand. Uses, p. 84. against the defective execution of (y) See 4 Cruise, Dig. 282, 497 ; powers, but only in favour of pur- Bringloe v. Goodson, 4 Bing. N. C. chasers and creditors ; or in favour 734 ; Sugd. on Powers, p. 470. of a wife, chUd, or charity. (See (a) 44 &46 Vict. c. 41. Lucena v. Lucena, 5 Beav. 249 ; ■» M M 2 532 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. to exercise the power ; and the Conveyancing Act, 1882 («), sect. 6, enables him to disclaim the power. Not only as to the limitation of estates, but in other particulars, there are differences between conveyances to uses, and conveyances at common law. The possession was indeed given by the conveyance to uses quite as effectually as if the alienee had received livery of seisin, or had made actual entry (6) ; but as the conveyance to uses, e.g., a bargain and sale, conveyed the possession by construction of law only, so it differed from a feoffment, in such incidents as resulted from delivery of possession in poiut of fact. Therefore, though a feoffment, when made by the tenant in actual possession, was capable of passing a wrong- ful estate of freehold, and, when made by a particular tenant for a greater estate than he could lawfully convey, occasioned a forfeiture (or, in the case of a tenant in tail, a discontinuance) of the particular estate, and the con- tingent remainders dependent on that estate used to be defeated (c), — no such results followed from any con- veyance by way of use {d). Eor by the feoffment, there was an actual investiture of the possession, as for an estate of freehold; which, it was held, must take effect either de jure or de facto ; but conveyances by way of use could, in their nature, pass no more than the grantor might lawfully transfer (e). For this reason they received, by way of distinction from the feoffment, the appellation of innocent conveyances (/). But the statute 8 & 9 Yiot. (a) 45 & 46 Vict. o. 39. ing no estate beyond what the (4) 2 Sand. Uses, p. 52. grantor may properly transfer he- [c) Vide sup. p. 315. longs also to a grant at common ((?) 2 Sand. Uses, p. 73. law ; also, to a grant under the {«) Fearne by Butler, p. 322; statute 8 & 9 Viot. c. 106, and Smith V. ClyfEord, 1 T. R. 744. generally to any conveyance under (/) Fearne, by Butler, p. 322; the statute 44 & 45 Vict. c. 41. in Smith v. Clyfiord, 1 T. E. 744, (Co. Litt. 332 a; 2 Sand. Uses, p. they are termed lawful convey- 49.) anoes. The same property of pass- C. XVllI. — OF CONVEYANCES UNDER STATUTE OF USES. 533 0. 106, s. 4, having (as we have seen) provided that a feoffment made after the 1st October, 1845, shall not have any tortious operation, the whole learning on the suhject to which we have here referred (so far as regards con- veyances executed after that date) has, by the effect of this provision, been swept away. The reader who reflects attentively on the nature of a conveyance under the Statute of Uses, will not fail to be impressed with the importance of the changes which this Act of Parliament incidentally occasioned. It has been said to have had little other effect than to make a slight altera- tion in the formal words of a conveyance, — a remark alluding to the practice it introduced of Kmiting one use upon another, when the intention was to give a trust estate {g) . So far indeed as the creation of that species of interest is concerned, such, and such only, was its result ; but the remark puts altogether out of sight its operation in regard to the legal estate. We have seen that the statute enabled the owner to dispose of the legal estate in methods obviously more suitable to the exigencies of social life than the conveyances formerly employed, and exempt from the harsh and inconvenient effects with which these latter were sometimes attended; and (what is of still greater consequence) that it materially enlarged the power of alienation itself, by affording the owner the means of subjectiag his property to a variety of limitations of which it was before incapable. In thus affording escape from the rigours of the antient law, the statute would, however, have opened the door (unless closely watched) to inconveniences of a different description. For it would have enabled owners of land, through the medium of springing and shifting uses, and powers of revocation and of new appointment, to prescribe the course in which their property should devolve, and (y) 2 Bl. Com 336. 534 BK. II. OF RIGHTS OF PROPBKTY. PT. I. THINGS REAL. prevent its effectual alienation, for any period of time however extended ; and therefore to curb this licence, it was found necessary to establish a rigid rule of restriction. In order to explain this, we shall be led into some examination, before we close the chapter, of a subject which now for the first time presents itself, viz. that of perpetuity {h). In family settlements, e.g., grantors have always been prone to regulate the succession to an estate at very distant periods : — the earliest known arrangement of this nature having been the creation of the estate tail, which once operated as a sure and perpetual settlement of the property, in the hne of the first donee, to the remotest generations. But as all such arrangements, while they continue in force, tie up the property, or in other words prevent its free alienation, they have been considered in later times with reasonable jealousy and dislike, as tending to embarrass the transactions of mankind, and to frustrate the purposes for which property was first established {{). To these feelings was doubtless in some measure attribut- able (A) the doctrine established by Taltaxum's case, in the reign of Edward the fourth, by which a common recovery was allowed to have the effect of unfettering an estate tail {I) ; and in the same spirit, when limitations by way of springing and shifting uses, and powers of revoca- tion and of new appointment, came into practice, the courts soon began to contemplate with alarm the tendency of these devices to & perpetuity. It was thought necessary, therefore, to fix some period as the latest at which an estate limited by way of executory use should be allowed to vest. Such a period has been accordingly established (A) On the subject of perpetuity, N. S. 547 ; Monypenny v. Dering, see Co. Litt. by Butler, 379 b citing 16 Mee. & W. 418. 327a; 1 Sugd.Pow.491, edit. 1836 ; (t) See 2 BI. Com. 173. 1 Pow. Dev. 388 ; ffist. Eng. Law, (A) See Taylor v. Horde, 1 Burr, by Reeves, vol. iii. p. 324 ; 1 60 ; 5 Cruise, Dig. 328. Smith's Leading Cases, 183; Cadell (J) See as to this case, 5 Cruise, V. Palmer, 10 Bing. 140 ; Tolle- Dig. 422, 423 ; et sup. p. 249. mache v. Lord Coventry, 8 Bligh, C. XVIII. OF CONVEYANCES UNDER STATUTE OF USES. 535 by a series of judicial decisions ; and it is one derived from the state of the law applicable to entails. Even upon the most permanent plan, that of strict settlement, to which we adverted in a former place, the estate entailed could not, after the doctrine established by Taltarum's case, be preserved from alienation longer than during the life of the taker of the first estate of freehold, and the nonage of the tenant in tail next in remainder; for on attaining the age of twenty-one, the latter was competent, with the concurrence of the former, to suffer a recovery (m). By analogy to this (n) it has become the rule that the latest period at which an estate limited by way of executory use can be allowed to vest, is (with one particular exception) the expiration of some life or Eves in being, and twenty- one years afterwards (o) ; as if a man be seised in fee of lands, and gives them to the first son of J. S. that shall attain the age of twenty-one, and his heirs, — ^here the estate vests, at the latest, on the expiration of J. S.'s life and the infancy of such son ; and this infancy, generally speaking, cannot expire later than twenty-one years after J. S.'s death; but if the son is born posthumomly (which brings the case within the exception above alluded to) it will expire later by the addition of the time of gestation in utero which follows upon such death {p) ; and when the period at which the estate is limited to vest comprises no life or lives in being, it is not allowed to exceed twenty- one years from the time when the limitation is created [q). Such being the rule, in these different oases respectively, as to the latest period at which an estate by way of execu- tory use is allowed to vest, — we have now to add that it (ot) Vide sup. p. 329. (,p) 2 Bl. Com. 174. See also («) Co. Litt. by Harg. 20 a; Long v. Blackall, 7 T. R. 100; note (5). Wilkinson v. South, ibid. 558; (o) 2 Bl. Com. 174; Long v. CadeU v. Palmer, 10 Bing. 140; Blaokall, 7 T. E. 100 ; OadeU v. S. C, 7 Bligh, N. S. 202 ; Stuart Palmer, 10 Bing. 140 ; S. C. 7 -n. CookereU, Law Rep., 7 Eq. Ca. Bligli, N. S. 202; Gilbertson v. 363. Richards, 5 H. & N. 453. (?) Palmer v. Holford, 4 Rues. 403 ; 1 Jarman on Wills, p. 205, 536 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. has been long established as a general principle, and one not applicable to executory uses only, that the law abhors a perpetuity (»•) ; that is (according to the usual meaning of the term) any Kmitation, either for a legal or for an equitable interest, by way of executory use, or otherwise, of such a nature as to lead to the possibility, if it were allowed, of making a future estate vest at a later period than is warranted by such rule ; and that it uniformly annuls every such limitation (s). Nor is this principle confined to dispositions of the freehold. It applies also to terms of years and to personal property (t). And by the Conveyancing Act, 1882 (45 & 46 Viet. c. 39), s. 10, it has been recently enacted, with regard to instruments coming into operation on or after the 1st January, 1883, that an executory interest to take effect in default of issue, or on failure of the issue, of the tenant of the executed estate, shall become void as soon as any of such issue attains the age of twenty-one years. In connection with the rule against perpetuities, the law with respect to the accumulation of the income of property, whether real or personal, may properly be considered. A remarkable instance having occurred, in which, to secure an immense fortune to his distant descendants, a testator had recourse to the expedient of directing the income of his property to be accumulated during the lives of all his children, grandchildren, and great-grandchildren, who were living at the time of his death, for the benefit of some future descendants to be living at the death of the survivor (r) 2 Bl. Com. 174 ; 10 Rep. the creation of oontingent remain- US b. ders to a single unborn life and (s) Long V. BlaokaU, ubi sup. ; making void such limitations to a Doe V. E-wart, 7 Ad. & EU. 648 ; double unborn life, is essentially CadeU v. Palmer, ubi sup. ; Gil- different from the latter rule ; still bertson v. Eiohards, 5 H. & N. there is a common principle at the 453. The rule against perpetuities bottom of each rule ; and the two in the ease of executory interests, rules have also the same common although in some respects (see object. ChaUis V. Doe d. Evans, 18 Q. (t) See Peame, Cont. Rem. pp. B. 231, and Cattlin ^. Brown, 11 320, 371; Atkinson ii. Hutchinson, Haire, 375) it is Uke the rule limiting 3 P. Wms. 262. C. XVIII. OF CONVEYANCES UNDER STATUTE OF USES. 537 (thus keeping well -withiii the rule of perpetuities),— it was thought expedient to put a check, for the future, on dispositions of this description (m) ; consequently, the Act 39 & 40 Geo. III. c. 98, commonly called the Thellusson Act, has enacted, that no such accumulation shall be allowed for a longer term than the life of the grantor, or twenty-one years from the death of the grantor or testator, or during the minority of any person living or in ventre sa mhre at the death of such grantor or testator, or during the minority only of any person who, under the uses or trusts of the instrument directing such accumulation, woidd for the time being, if of full age, he entitled to the income so directed to he accumulated : and, further, that where any accumulation is directed contrary to the Act, such direction (if it specify a time that would be in excess of the limit prescribed by the rule of perpetuities) shall be totally void ; and (if it express a time that would not be in excess of that limit) shall be void for the period which is in excess of the limit prescribed by the Thellusson Act ; and in the latter case the income during the time the pro- perty is directed to accumulate contrary to the Act, shall go to such person as would have been entitled thereto, if no such accumulation had been directed {x). But the Act does not extend to any provision for payment of debts, or for raising portions for children, or to any direction touch- ing the produce of wood or timber {y). («) ThiswastheoaseofMr.Thel- Dom. Proc, 28 L. J. (Ch.) 505; lu8Son'swill,aBtowhioliseereame, Maopherson v. Stewart, ib. 177; byButler,p.436,(n.). Theproperty Simmons v. Pitt, Law Eep., 8 is said to have consisted of landed Ch. App. 978 ; Jagger v. Jagger, estates of about £4,000 a year, and 25 Ch. Div. 729. personalty of above half a million ; [y) As to these exceptions, see and the probable amount of the Halford v. Stains, 16 Sim. 488 ; accumulated fund was estimated at Edwards v. Tuck, 3 De Gex, M. above £19,000,000. & G-. 40 ; Drewett v. Pollard, 27 [x] Curtis V. LuMn, 5 Beav. 147 ; Beav. 196 ; Clulow's Trusts, 28 Boughton u. James, I CoU. 26 ; L. J. (Ch.) 696 ; Varlo v. Fadeu, Scarisbrick v. Skebnersdale, 17 29 L. J. (Ch.) 230 ; Matthews v. Sim. 187 ; Williams v. Lewis, in Keble, Law Eep., 3 Ch. App. 691. 638 BK. II. OF RIGHTS OF PROPEETY. PT. I. THINGS REAL. OHAPTEE XIX. OF CONVEYANCES BY TENANTS IN TAIL, AND BY MARRIED WOMEN, The ordinary conveyances, as well those at common la-w- as also those tmder the Statute of Uses, are capahle of being applied to transfer the interests of tenan-ts in tail and of married -women, but are not effectual for these purposes, except by virtue of particular Acts of Parliament, the solemnities of -which must be strictly observed ; and accordingly the conveyances by tenants in tail and by married women may properly be considered by themselves as a separate class of conveyances. For though a tenant in tail has an estate of inheritance, yet by none of the convey- ances hitherto examined, unaccompanied by the solemnities referred to, can any indefeasible interest be granted by him (apart from statute) beyond the period of his own life (a) : for whatever estate he grants, must either determiue -with his life, or at least is liable to be defeated, after his decease, by his issue, or by the remainderman or reversioner. And again, a married woman is not capable by any of these conveyances, in their simple form (b), to make any aliena- tion of her lands and tenements (not being her separate estate) for any estate whatever (c). (a) Vide sup. p. 253. formanoe of a condition; as -where (4) 2 Bl. Com. 292. land is vested ia her on condition (c) A married woman may, of to convey to others. (Co. Litt. by course, convey in execution of a Harg. 112, n. (6).) mere power or authority, or in per- CH. XIX. OF CONVEYANCES BY TENANTS IN TAIL, ETC. 539 These incapacities of the tenant in tail arise from the Statute de Donis (d) ; hut the incapacities of the married woman are imposed upon her by the common law in con- sequence of her being subject to the control of her hus- band, and presumably deprived of her freedom of agency. In both cases, however, the law has long allowed the power of alienation through the medium of particular methods of assurance ; in former times by Jines and re- coveries, which were altogether of a special nature, and now by disentailing deeds and deeds acknowledged; and which two varieties of conveyance we have now to con- sider. This branch of the law is regulated chiefly by the stat. 3 & 4 WiU. IV. c. 74, being the Act for abolishing Fines and Recoveries and for substituting more simple modes of assurance. By this Act, a tenant in tail is empowered to bar the estate tail, that is, to convey the land entailed as a fee simple absolute (or for any less estate), indefeasible by his issue, or (according to the effect of the conveyance) by the remainderman or reversioner or other persons entitled infuturo; and a married woman also may, with her hus- band's concurrence, dispose of any estate which she alone, or he in her right, may have, as fully and efl"ectually as if she were a feme sole(f). The modes of proceeding to be adopted for these purposes are by way of substitution for the antient methods of fine and recovery (/) ; which being now abolished, and of a character besides peculiarly abstruse and uninviting, we would gladly pass by without further notice. The learning, however, which they in- volve, is still so material to the history of existing titles, and even to the correct apprehension of the present system, that they cannot with propriety be left unexamined ; and before we attempt to give any further account of the new and simpler methods which have been substituted for {d) 13 Ed. 1, c. 1 ; vide sup. («) 3 & 4 Will. 4, e. 74, s. 77. p. 243. {/) Sect. 2. 640 BK. II. OF RIGHTS OF PROPEKTY. PT. I. THINGS REAL. them, the nature of a fine, and also of a recovery, shall first be explained. Now fines and recoveries were, hoth of them, convey- ances by matter of record ; and both consisted of fictitious suits iu the Court of Common Pleas at "Westminster, in which the intended alienee was supposed to recover the estate by process of law. In their origin they were, in fact, actual suits commenced at law for the recovery of the possession of the land; but being found competent to confer a title, in cases where the ordinary conveyances would not suffice, they were eventually adopted as mere means of conveyance between persons not really standing in the relation of adverse litigants {g). It will be neces- sary, however, to consider them in detail. And, first, of Fines. _ [Fines were so called, because they put an end, not only to the suit then commenced, but also to all other suits and controversies concerning the same matter Qi). They were assurances of equal antiquity with the first rudiments of the law itself ; are spoken of by Grlanvil and Bracton, in the reigns of Henry the second and Henry the third, as things then well known and long established (i) ; and in- stances are produced of them even prior to the Norman invasion (A). So that the statute 18 Edw. I., called Modus levandi Fines, did not give them origiaal, but only declared and regulated the manner in which they should be levied.] Now the mode of levying a fine was as follows: (1.) The party to whom the land was to be conveyed commenced an action at law against the intended vendor, by suing out a writ denominated, from its initial words, a vn-it of prmcipe quod ieneat conventionem. {I) ; the foundation of which was ig) 2 Bl. Com. 349, 357. (1) A fine might also te levied (/i) See 2 EoU. Abr. 13. on a " writ of mesne," of warrantia (i) Glan. 1. 8, c. 1 ; Br. 1. fl, t. 5, chartee, or de conswtudinibus et ser- 0. 28, B. 7. vitiis. (Pinch, L. 278.) (A) Plowd. 369. CH. XIX. OF CONVEYANCES BY TENANTS IN TAIL, ETC. 541 a supposed agreement or covenant tliat the defendant should convey the lands to the plaintiff, and for the breach of which agreement the action was brought. On this writ there was due to the crown, by antient prerogative, a primer fine, or a noble for every five marks of land sued for ; that is, one tenth of the annual value {m). The suit being thus com- menced, then followed, (2.) The licentia concordandi, or leave to agree the sait. For as soon as the action was brought, the defendant, knowing himself to be in the wrong, was sup- posed to make overtures of peace to the plaintiEE, by whom they were accepted ; but having, upon suing out the writ, given pledges to prosecute his suit, which he endangered if he now deserted it without licence, he therefore applied to the court for leave to make the matter up. This leave was readily granted, but on payment to the king of another fine, sometimes called the king^s silver, and sometimes called the post fine, to distinguish it from the primer fine before mentioned. And it was as much as the primer fine and half as much more, or 10s. for every five marks of land; that is, three-twentieths of the supposed annual value («). (3.) Next came the concord, or agreement itself, after leave obtained from the court ; and this was usually an acknowledgment from the deforciant that the land in question was the plaintiff's. And from this recog- nition or acknowledgment of the plaintiff's right, the party levying the fine was called the cognizor, and he to whom it was levied was called the cognizee. The acknowledgment was to be made in the Court of Common Pleas — either openly ia the court, or else before one of its judges, or (in the country) before two or more commissioners empowered by a special authority, called a writ of dedimus potestatem ; and these judges and commissioners were required by statute 18 Edw. I. to take care that the cognizors were of fuU age, sound memory, and out of prison. And if there were any feme covert among the cognizors, she was privately (m) 2 Inst. 511. W 5 '^V- 39 I 2Inst. 511 ; stat. 32 Geo. 2, c. 14. 642 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. examined, wlietlier she did it willingly and freely, or by compulsion of her husband. By these acts, all the essen- tial parts of a fine were completed ; and if the cognizor died the next moment after the fine was acknowledged, provided it were subsequent to the day on which the writ was made returnable, still the fine was to be caxried on in all its remaining parts {p). Of these the next was — (4.) The note of the fine, which was only an abstract of the writ and of the concord ; naming the parties, the parcels, and the agreement : and, by direction of the statute 5 Hen. IV. o. 14, this was to be enrolled of record in the proper office. (5.) The fifth and last part was the foot of the fine, or conclusion of it : which included the whole matter ; and recited the parties, and the day, year, and place when, where, and before whom it was acknow- ledged or levied. Of this conclusion, there were indentures made and engrossed at the ohirographer's office, and de- livered to the cognizor and the cognizee; usually beginning thus : " Hcec est finalis concordia, this is the final agree- ment," and then reciting the whole proceedings at length. And thus the fine was completely levied at common law. To render the fine more universally pubHe, and less liable to be levied by fraud or covin, it was directed by 4 Hen. YII. c. 24 (in confirmation of a previous statute), that a fine, after engrossing, should be openly and solemnly read ^ndi proclaimed in court sixteen times; viz., four times in the term in which it was made, and four times in each of the three succeeding terms; and these proclamations were indorsed on the back of the record {q). Fines thus levied were of four kinds : — 1. The fine sur cognizance de droit come ceo que il ad de son don; that is, a fine upon acknowledgment of the right of the cognizee, as that (p) Price II. Davies, Comb. 71. fines theretofore levied in the (}) The number of proclamations Court of Common Pleas are deetned required was, by 31 Eliz. c. 2, re- to have been levied with prodama- duced to one in each of the three tions. terms. By U & 12 Vict. o. 70, all CH. XIX. OF CONVEYANCES BY TENANTS IN TAIL, ETC. 643 Tvliicli Jie hath of the gift of the cognizor. This was the best and surest kind of fine; for thereby the deforciant acknowledged in court a former feoffment to have been made by him to the plaintiff. This fine was therefore said to be a feoffment of record^ the livery, thus acknowledged in court, being equivalent to an actual delivery : so that this assurance was rather a confession on record of a former conveyance, than a conveyance itself ; for the de- forciant or cognizor acknowledged the right to be in the plaintiff, or cognizee, as that which he had de son don, of the proper gift (i.e., feoffment) of himself, the cognizor. 2. The fine sur cognizance de droit tantum, or upon acknow- ledgment of the right merely, and without mention of a preceding gift from the cognizor. This was commonly used to pass a reversionary interest which was in the cog- nizor. For of such reversion there could be no feoffment {i.e., no don) supposed, as the possession during the parti- cular estate belonged to a third person (r). It was worded in this manner, " that the cognizor acknowledges the right " to be in the cognizee, and grants for himself and his " heirs, that the reversion, after the particular estate deter- " mines, shall go to the cognizee " (s). 3. A fine sur con- cessit, which was where the cognizor, in order to make an end of disputes, though he acknowledged no precedent right, yet granted to the cognizee an estate de novo, usually for life or years, by way of supposed compromise; and this might be done, reserving a rent or the Hke, for it operated as a new grant {t). 4. The fine sur don grant et render, which was a double fine, comprehending the fine sur cognizance de droit come ceo, 8fc., and the fine sur con- cessit, and might be used to create partictdar limitations of estates ; whereas the fine sur cognizance de droit come ceo, 8fc., conveyed nothing but an absolute estate, either of in- heritance, or at least of freehold (u). In this last species of fine, the cognizee, after the right was acknowledged to (r) Danver'soase, Moore, 629. (i) lb. a. 66; Burt. Compend. 24. (») West. Symb. p. 2, s. 96. («) Hunt v. Boimie, Salk. 340. 544 BK. II. OF EIGHTS OF PROPERTY. PT. I. THINGS REAL, be in him, granted back again, or rendered to the cognizor, or perhaps to a stranger, some other estate in the premises. But the first species of fine, that sur cognizance de droit come ceo, 8fc., was the one most used. The effects of a fine were principally as follows (x) : — 1. Like all other conveyances, a fine bound the parties thereto, and also all "privies," that is, persons deriving title under the parties ; and this, whether levied with pro- clamations or not (y) ; and even if one of the parties thereto was a married woman, she would still be bound by the fine ; and (supposing her husband to concur in it) it would effectually pass any estate, or bar any right of dower, that she might have in the lands therein comprised (s), — which peculiarity was justified by the circumstance that the court would not allow a fine, affecting a married woman's interest, to pass without privately examining her as to her voluntary consent (a). 2. A fine with proclamations bound not only parties and privies, but even strangers, if they failed to put in their claims within the time allowed by law, and were during all that period subject to no legal disability sufficient to ex- cuse their acquiescence (J). It was in reference to this property of a fine that rights are said in our books to be barred 5y fine and non-claim (c). This doctrine, indeed, was once abolished by the statute 34 Edw. III. c. 16, which admitted persons to claim and falsify the fine at (a) A fine liad several other (z) 5 Cruise, Dig. 82, 154, 156. efEeots, the enumeration of which (a) Bl. Com. ubi sup. ; Cruise, will be found in the First Real ubi sup. Property Eeport, p. 21 ; and see (4) 2 Bl. Com. 35i. There were Co. Iiitt. by Harg. 121 a, n. (1). antiently four methods of claiming (j/) 2B1. Com. 355 ; see 6 Cruise, so as to avoid being concluded by a Dig. 133, 159, 202. It did not, fine: I. By action; 2. By entering however, unless levied vfith pro- such claim on the record at the foot clamations, bar the issue in tail of of the fine ; 3. By entry on the their right to bring an action of land ; and 4. By continual claim, f ormedon. (Hunt v. Bourne, Salk. But the second of these was not in 340 ; Doe d. Thomas v. Jones, 1 force after the statute of Henry 7. Tyrw. 517.) (c) 2 Bl. Com. 354. CH. XIX. OF CONVEYANCES BY TENANTS IN TAIL, ETC. 545 any indefinite distance of time (d) , But by 1 Eichard III. e. 7, and 4 Hen. YII. o. 24, the bar was agaia restored, though the time of claim was extended (e) ; and aftet the latter statute, and until the modem abolition of these assurances altogether, the state of the law was as follows, — that by a fine, when duly proclaimed, the right of all strangers whatever was bound, unless they made claim by way of action, or lawful entry (not witlun one year and a day, as at the common law, but) within five years after pro- clamations made (/) ; but femes covert, infants, prisoners, persons beyond the seas, and such as were not of sane mind, had a further space of five years allowed to them and their heirs after the death of their husbands, or their attaining full age, reooveriag their liberty, returning to England, or being restored to their right mind {g). By the statute 4 Aime, c. 16, it was also provided, in cases where the claim was made by entry, that it should be of no avail unless an action was brought within one year afterwards, to try the right of the claimant, and unless the same were prosecuted with effect. It is to be observed, however, that, in order to bar by non-claim persons who were not parties or privies, it was necessary that the per- son levying the fine should be seised of the freehold, either by right or by wrong {h) : for if he had nothing in the land, or if his possession were merely as tenant for a term of years or other chattel interest, the fine might be avoided by pleading partes finis nihil habicerunt (i). And it is further to be remarked, that persons having no estate in possession, but only in remainder or reversion, were not bound to make claim within five years after proclamations made, but within five years after their right of entry accrued (k). (d) 2 Bl. Com. 354; Litt. s. 441. {h) Davies v. Lowndes, ubi sup. («) See Co. liitt. by Harg. 121 a, (i) Stat. 4 Hen. 7, o. 24 ; 2 Bl. ii_ n). Com. 356 ; Doe d. Thomas v. Jones, (/) 4 Hen. 7, o. 24 ; Davies o. 1 Tyrw. 506. Lowndes, 5 Bing. N. C. 172. (A) Co. Litt. 372 a. (g) 2 Bl. Com. 356. VOL. I. N N 546 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. 3. A fine levied by tenant in tail, -witli proclamations, barred the issue m tail. It bad indeed been expressly- provided by the Statute Be Bonis, that a fine should have no such effect {I) ; but by 32 Hen. VIII. o. 36, it was declared, that a fine, when levied vdth proclamations according to 4 Hen. YII. c. 24, by any person of full age, should be a sufficient bar and discharge for ever against the tenant and his heirs, claiming only by force of the entail (m). It did not, however, bar those in remainder or reversion upon the entail: who had either a right of entry, or a right of action, according to the distinction to be presently stated («). 4. If tenant in tail of a corporeal hereditament in pos- session levied a fine " sur cognisance de droit come ceo, 8fc.," with or without proclamations, it was a discontinuance of the entail (o) ; the effect of which was, that the issue in tail, and those in remainder, or reversion, lost that right of entry, which, upon the death of the tenant in tail, would othervidse have accrued to them respectively ; but those in remainder or reversion had nevertheless a remedy in a particular form of action called a formedon ; and so had the issue in tail, unless the fine was levied with proclama- tions. But a fine levied by tenant in tail of an incor- poreal hereditament, or of an hereditament corporeal in remainder upon an estate of freehold, was no discon- tinuance {p) ; for such a fine levied in fee only created a base fee ; and the estate of those in remainder or reversion (as well as the right of entry or action of the issue in tail, (?) 2 Bl. Com. 355; Doe J!. Jones, Thomas v. Jones, 1 Tyrw. 506. 1 Tyrw. 517 ; Burton, 239. The principle on -which the dis- {m) See Co. Litfc. by Harg. continuance of an estate tail pro- 121 a, n. (1). ceeded is explained in Co. Litt. hy (») See- 5 Cruise, Dig. 148. Butler, 325 a, n. (1), 326 b, n. (I). (o) Co. Litt. 327 b ; 2 Inst. 335, {p) There could be no disoou- 336 ; Odiame v. Whitehead, Burr. tinuance of things lying in grant. 7U; 1 Saund. by "Wms. 319 o, n. (Co. Litt. 332 a; 5 Cruise, Dig. (1) ; ib. 258 a, u. (8) ; Doe v. Knoh, 236.) 4 Barn. & Adol. 283 ; Doe d. CH. XIX.— OP CONVEYANCES BY TENANTS IN TAIL, ETC. 547 where it was levied without proelamations) remained with- out disturhance {q) ; and by the statute 3 & 4 "Will. IV. 0. 27, no discontinuance can now avail to take away a right of entry. 5. A fine " sur cognizance de droit come ceo, 8fc." levied by a tenant for life ia possession, worked a forfeiture, if for a greater estate than the law entitled him to make; and consequently destroyed the contingent remainders (if any) expectant on his life interest {r). The same result as regards forfeiture also followed, where such fine was levied by a tenant for a term of years (s). Secondly, of Recoveries. A recovery — or a common recovery as it was also called, to distinguish it from a real adjudication in an action {t) — differed from a fine, in that it supposed the suit not immediately compromised, but carried on through all its stages (m). Its nature and progress were as follows : — [Let us, in the first place, suppose Daniel Edwards to have been tenant of the freehold, for example, tenant in tail in possession; and desirous to suffer a common re- covery, in order to bar all entails, remainders and rever- sions, and to convey the same in fee simple to Francis Gtolding. To effect this, Golding was to bring an action against Edwards for the land; and he accordingly sued out a writ called a prcecipe quod reddat. In this writ, the demandant Grolding alleged that the defendant Edwards had no legal title to the land, but that he came into possession of it after one Hugh Hunt had turned the demandant out of it. The subsequent proceedings were made up into a record or recovery roll, in which the writ and complaint of th& demandant were first recited ; whereupon the tenant appealed, and called upon one (?) Co. Litt. by Butler, 331, n. 2 Cruise, Dig. 361. n), (s) Burt. Comjpend. 318. [r] Vide sup. p. 329 ; 2 Bl. Com. [t) 5 Omiae, Dig. 269. 274 ; 5 Cruise, Dig. 203, 236 ; («) 2 Bl. Com. 357. xx2 548 BK. II. OF RIGHTS OF PROPERTY. — FT. I. THINGS REAL. [Jacob Morland, who was supposed, at the original pur- chase, to have warranted the title to Edwards ; and Edwards prayed that Jacob Morland might be called in to defend the title which he had so warranted. This was called the vmcher {voeatio, or calling) of Jacob Morland to warranty, and Morland was called the vouchee. Upon this, Jacob Morland, the vouchee, appeared, was impleaded, and defended the title. Whereupon Grolding, the demandant, desired leave of the court to imparl, or confer with the vouchee in private, which was usually allowed him as a matter of course. And soon after- wards the demandant Golding returned to court, but Morland the vouchee disappeared or made default. Where- upon judgment was given for the demandant Golding (thenceforth called the recoveror) to recover the land in question against the tenant Edwards, who was then the recoveree ; and Edwards had judgment to recover of Jacob Morland land of equal value, in recompense for the land so warranted by him, and lost by his default ; which was agreeable to the doctrine of warranty we have before men- tioned (s). This was called the recompense, or recovery in value. But Jacob Morland having no land of his own, being usually the crier of the court (who from being thus frequently vouched was called the common vouchee), it was plain that Edwards had only a nominal recompense for the land so recovered against him by Golding ; which land was then absolutely vested in the recoveror, by judgment of law, and seisin thereof was delivered to him by the sheriff of the county. So that this collusive recovery operated merely in the nature of a conveyance in fee simple from Edwards the tenant in tail, to Grolding the purchaser. The recovery above described was with a single voucher only ; but sometimes a recovery was vrith double, treble, or further voucher, as the exigency of the case might require. And indeed, in modem times, it was (z) Vide sup. p. 470. CH. XIX. — OF CONVEYANCES BY TENANTS IN TAIL, ETC. 549 [usual always to have a recovery with double voucher at the least, by first conveying, where the person whose estate tail was intended to he barred was immediate tenant in tail, an estate of freehold to any indifferent person against whom the prcecipe was brought (which was called making a tenant to the prcecipe) ; and then the tenant to the prcecipe vouched the tenant in tail, who vouched over the common vouchee. For if a recovery was had immediately against a tenant in tail, it barred only the estate in the premises of which he was then actually seised ; whereas, if the' re- covery were had against another person, and the tenant in tail were vouchee, it barred every latent right and interest which he might have in the land recovered (a). But where there was abeady a tenant for life in possession, with remainder over in tail, of course no other tenant to the prcecipe was required to be made, in order to efPect a voucher of the tenant in tail. If Edwards, therefore, were tenant of the freehold in possession, and John Barker were tenant in tail in remainder; here Edwards first vouched Barker, and then Barker vouched Jacob Morland, the common vouchee ; who was always the last person vouched, and always made default: whereby the demandant Golding recovered the land against the tenant Edwards, and Edwards recovered a recompense of equal value against Barker, the first vouchee; who recovered the like against Morland, the common vouchee, against whom such ideal recovery in value was always ultimately awarded.] In all recoveries it was necessary that the reeoveree should be seised of the freehold in possession, else the recovery was void (6). For all actions to recover the seisin (as distinguished from the mere possession) of land were required to be brought against the actual tenant of the freehold ; otherwise the suit would lose its effect, since the freehold could not be recovered of him who had it not. (a) Bro. Ab. tit. Taile, 32 ; (*) Pigot, 28. Plowd., Manxel's case [8], 550 BK.-ll, OF EIGHTS OF PROPERTY. PT. I. THINGS REAL. And though these recoveries were in themselves fabulous and fictitious, yet it was necessary that there should be actores fahulcB, and that these should be properly qualified. IVom this doctrine resulted two important corollaries ; first, that where the object was to vouch a tenant in tail iu possession, instead of bringing the prwcipe against him, it became necessary that he should previously make a tenant to the prcBcipe in manner already explained, — that is, should convey a freehold estate in possession in the land to some other person, so as to qualify the latter to sustain the character of tenant in the action (d). The second consequence was, that a tenant in tail in remainder, expectant on an estate of freehold, could not resort to a recovery to bar the entail, without the concur- rence of the person in whom that precedent estate was vested ; for unless the latter joined in the proceedings, there could be no sufficient tenant to the preecipe, he alone possessing the necessary qualification. But the nicety once thought to be requisite in conveying the legal free- hold, in order to make a good tenant to the preecipe, was lessened by the provision of 14 Geo. II. c. 20 (e), to the effect that though the legal freehold were vested in lessees, yet those who were entitled to the next freehold estate in remainder or reversion might make a good tenant to the precipe ; and that though the deed or fine which created such tenant were subsequent to the judgment of recovery, yet if it were in the same term, the recovery should be valid in law ; — and that though the recovery itself did not appear to be entered, or were not regularly entered on record, yet the deed to make a tenant to ih.& preecipe, and to declare the uses of the recovery, should, after a possession of twenty years, be sufficient evidence on behalf of a pur- chaser for valuable consideration, that such recovery was duly suffered. In addition to which, provision was at a later period made by 3 & 4 Will. IV. c. 74, establishing W Vide sup. p. 549. &o. ; 1 Prest. Convey. pp. 61 etseq.; (e) As to this Act, see Pigot, 41, Taylor v. Horde, 1 Buit. 115. ,CH. XIX. OF CONVEYANCES BY TENANTS IN TAIL, ETC 551 the validity of recoveries that had heen suffered previously to the statute in several other cases where they were before subject to some fatal objection (/). The effects of a recovery suffered in due form were these : — 1st. It operated to pass to the recoveror an estate in fee simple absolute ; and thereby to bar not only the estate tail itself, but aU remainders and reversions expectant thereon, and all executory limitations and conditions what- ever, to which it had been subject (gr). This was not by virtue of any legislative enactment, but by construction of the courts of law, as explained more at large in a former chapter {h). The reasons which really swayed the judges in allowing this effect to a common recovery, have been also before stated («) ; but the ground on which they attempted to justify the doctrine was the supposed recom- pense in value awarded, in the result of this proceeding, to the tenant in tail. For it was said, that any lands which he might obtain from the common vouchee would supply the place of those which he lost by the recovery, and would descend to the issue in tail {k). Yet it is obvious that this recompense was merely visionary ; and even if realized it was held that it would not extend to reversioners, nor (in some oases) to those in remainder (J) ; and on the whole, therefore, it is impossible not to concur in the opinion expressed by Chief Justice Willes, that it is futile to endeavour to vindicate the principle of a common recovery {m). There were some cases, however, in which this proceeding would not avail for the purpose above described; for by the statute 11 Hen. VII. c. 20, no woman, after her husband's death, unless with the concur- rence of those in reversion, could suffer a recovery of lands (/) 3 & 4 "WiU. i, 0. 74, ss. 8, {h) 2 Bl. Com. 360. g jO_ {t) Lacy v. Williams, 2 Salk. 569 ; ' {g) See 2 Bl. Com. 361. Bl. Com. ubi sup. ih) Tide sup. p. 249. W 1 WUs. 73. See Bl. Com., (i) Ibid. ubi sup., n. by Christian. 652 BK. II. OF RIGHTS OF PROPERTY.-^PT. I. THINGS REAL. entailed on her by her hushand, or on her and her husband by any of his ancestors ; which was called an estate tail ex promsione viri («) ; and by 34 & 35 Hen. VIII. c. 20, no recovery had against tenant ia tail of the king's gift, whereof the remainder or reversion was in the king, could bar such estate tail, or the remainder or reversion of the crown (o). 2. A recovery, like a fine, would bind a married woman when she became a party to it with her husband's concur- rence; and, as in the case of a fine, she was privately examined by the court in such eases, to ascertain that she acted without compulsion {p). 3. And lastly, a recovery suffered by a tenant for life worked a forfeiture of the particular estate, and by con- sequence destroyed all contingent remainders expectant thereon {q). It was, however, expressly provided by 14 Eliz. 0. 8, that a recovery so suffered, without the consent of the persons in reversion or vested remainder, should as agaiast such persons be utterly void (r). Having now considered fines and recoveries separately, it will be convenient to consider one incident which was common to both species of assurance, viz., the deed to lead or to declare their Mses. For as the most usual fine, that stir cognizance de droit come ceo, Sea., conveyed an absolute estate without any limitations to the cognizee, and as common recoveries conveyed the like estate to the recoveror, — these assurances could not in themselves be made to answer the purposes of family settlements, wherein a variety of limi- tations is usually intended. The fine or recovery itself {«) As to this statute, see 5 post, p. 860. Cruise's Dig. 399 ; Kirkman v. [p] 5 Cruise, Big. 392. Thompson, Cro. Jao. 474 ; et post, [q) Doe d. Davies v. Gatacre, 6 p. 560, n. Bing. N. C. 609. (o) See Co. Litt. 372,; Perkins (r) The 14 Eliz. o. 8, extended V. Sewell, 1 Bl. Rep. 654 ; Duke the like provision to tenants in tail of Grafton v. Birmingham Railway after possibiHty of isstte extinct. Company, 5 Bing. N. C. 27 ; et CH. XIX. — OF CONVEYANCES BY TENANTS IN TAIL, ETC. 553 was applied, therefore, through the medium of uses, to give efficacy to an infinite variety of limitations ; and if the deed containing the uses was made previous to the fine or recovery, it was called the deed to lead the uses ; if subse- quent, the deed to declare the uses. As if A. (tenant in tail, with reversion to himself in fee) wished to settle his estate on B. for life, remainder to C. in tail, remainder to D. in fee, — ^he had no power of doing so effectually, while his own estate tail was in being. He therefore usually, after making the settlement proposed, covenanted to levy a fine to (or if there were any intermediate remainders, to suffer a recovery in favour of) E., and directed that the same should enure to the uses in such settlement mentioned. This, then, was a deed to lead the uses of the fine or recovery ; and the fine when levied, or the recovery when suffered, would enure to the uses so specified, and no other. For though E., the cognizee or reooveror, had a fee simple vested in Tnim by the fine or recovery, yet, by the opera- tion of this deed, he became a mere instrument or conduit- pipe, seised only to the use of B., 0. and D. in successive order; which use was executed immediately by force of the Statute of Uses (s). Or, if a fine or recovery were had without any previous settlement, and a deed were after- wards made between the parties, declaring the uses to which the same should be applied ; this would be equally good as if it had been expressly levied or suffered in con- sequence of a deed directing its operation to those parti- cular uses. For by the statute 4 & 5 Aime, c. 3, inden- tures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, were made good and effectual in law ; and the fine and recovery were to enure to such uses, and be esteemed to be only in trust, notwithstanding any doubts to the contrary that had arisen on the Statute of Frauds, passed in the reign of Charles the second (t). (s) 2 Bl. Com. 363. (<) 29 Car. 2, e. 3. 564 BK, II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. The cumbrous fictions, of which a slender abstract only has been here given, constituted, in actual practice, a branch of conveyancing of the most intricate' and costly character; yet, although it had been suggested that re- coveries might be advanta,geously abolished, and the tenant empowered to bar his estate tail, by the more simple expedient of ;a solemn deed to be enrolled in a court of record (s), it was not until a comparatively recent p.eriod that this simplification was effected, that is to say, not until the statute 3 & 4 Will. IV. c. 74, was passed " For the abolition of Fines and Eecoveries, and for the substi- tution of more simple modes of Assurance," — by which statute it was enacted, that after the 31st December, 1833^ no fine should be levied or recovery suffered of lands of any tenure, with the exception of such as should then be in actual progress (a) ; and the statute then proceeded to provide new methods for effectuating, in future, such of ihe results of these assurances as it was deemed right to -preserve, viz., the barring of estates tail, and the passing or binding of the estates or interests of married women. And, firstly, with reference to the barring of estates tail, the statute provides in substance as f oUows (J) : — That every actual tenant in tail (c), whether in possession, remainder, .contingency or otherwise, shall have full power (subject to the provisions hereinafter mentioned as to protectorship) to dispose of the lands entailed {d), for an estate in fee simple absolute, or for any less estate, as against aU persons claiming under the estate tail, or in respect of any ulterior ■estate (e) ; and such disposition may be made by any of the assurances (a wiU only excepted) which would have sufficed for the purpose, supposing the estate to have been («) 2B1. Com. 360. (. Small, 34 Ch. (») Sect. 39. Div. 415 ; 36 Ch. Div. 716 ; and («) Sects. 15, 19. See (as to the see (as to relief in equity generally) rectification of disentailing deeds) Mills v. Fox, 37 Ch. Div. 153. sect. 47 ; HaU-Dare :;. HaU-Dare, {y) S & i Will. 4, c. 74, ss. 29, 29 Ch. Div. 133 ; 31 Ch. Div. 251 ; 30, 31. and (as to the specific performance of 558 BK. II. or RIGHTS OF PROPERTY. PT. I. THINGS REAL. not avail to confer the protectorship on any person, who takes that estate as lessee at a rent ; or as dowress, hare trustee, heir, executor, administrator, or assign (z), — mth the exception, however, as to hare trustees, of such as, under any settlement made before the Act, would have been the proper parties to make a tenant to the prmoipe (a) — the office being, in every case of exclusion, cast upon the owner of the next estate (if any) qualified to constitute a protectorship (b). Nor is the creation of the office always by the mere act of law. For the settlor himself is entitled, in the settlement creating the entail, to appoint any person or persons in esse (nol; exceeding three in number) to act in this capacity (the tenant of the prior estate being included in the ntimber or not, at the pleasure of the settlor) ; and also to insert in the deed a power for the substitution of others, in the event of the death or retirement of those originally nominated (c). The office is intended to be in every case a, personal one; and therefore a protector does not lose his right to act in that capacity by a transfer of the estate in virtue of which it was acquired ; whether that transfer takes place by his own alienation, or by his other act or default (d). But when the person who would otherwise be protector is incompetent by reason of insanity, the Lord Chancellor (or other person deputed to exercise the royal functions with respect to idiots and lunatics) is to become protector in his stead : and where he who would otherwise be protector is disabled by treason or felony, the office is vested in Chancery ; to which latter jurisdiction it is also confided in some other particular cases (e)^ A married woman is competent to be protector; and if the prior (2) Sects. 26, 27. zation Act, 1870, 33 & 34 Vict. (a) Sect. 31. c. 14). (J) Sect. 28. («)-so«aZ estate. (See 708; Bliss v. Smith, 2 H. & N. In re Marsh, Mason v. Thome, 38 105 ; and distinguish Doe d. Cado- Ch. Div. 630; In re Phillips, gan »..Ewart, 7 Ad. & El. 648. Robinson v. Burke, 41 Ch. D. 417 ; (4) As to the cases to which the and PhUlips ». Cayley,W.N. 1889, ahove provision is intended to pp. 134, 227.) applyj see Dawson v. Small, Law (a) See Eearne by Butler, pp. 478, Hep., 9 Ch. App. 661. CHAP. XX. OF THK CONVEYANCE BY DEVISE. 585 " preceding gift shall be born, or if there shall be no issue " who shall live to attain the age or otherwise answer the " description required for obtaining a vested estate by a " preceding gift to such issue." IV. [As to the operation of a devise in conveying and limiting real estate : — ^A will, in regard to its operation on such estate, is considered by the courts not so much in the nature of a testament, as of a conveyance declaring the uses to which the land shall be subject (c) ; with this difference, however, that in other conveyances the subscription of the witnesses is not, in all cases, essential to the validity of the deed((^), though it is a prudent precaution (and one which in practice is invariably observed), in order to assist their memory when living, and to supply their evidence when dead; but in a devise, such subscription is made absolutely necessary by statute, in order to identify a con- veyance which in its nature can never be set up until after the death of the devisor.] By a devise, estates may be limited with the same effect as by a conveyance operating under the Statute of Uses {e). Thns, a man may effectually devise not only an estate in possession, (that is, in possession immediately on the death of the testator when the wiU first takes effect,) or in re- mainder, but also a freehold in futuro, or a fee upon a fee, or any estate in defeasance of a prior estate of freehold, — all which limitations (as we have seen) may be effec- tually made by way of executory use, though not in a con- veyance at the common law (/). So a man may devise to his wife— as he may convey to her by way of use — though his conveyance to her at common law was inoperative {g). His devise moreover in all these cases will be effectual though made by direct gift, and without reference to («) ■Wyndham^.ChetwyndjBurr. («) 2 Bl. Com. 334; Arthur v. 429. Bokenliam, 11 Mod. 154. (d) Vide sup. p. 476. (/) Vide sup. p. 527. {g) Ibid. 586 BK. II. OF EIGHTS OF PllOPERTY. PT. I. THINGS REAL. uses (A). Tet as a devise is considered to be in tlie nature of a conveyance declaring uses, so uses are often expressly introduced into wiUs ; and it has been the practice to in- troduce them in the same form as in conveyances under 27 Hen. VIII. c. 10. It has been doubted, however, whether that statute has any effect in the case of a devise (i) : and though where uses are expressly and formally declared by the will, it may often be inferred that the testator had the statute in view, and intended the conversion of the u^e into legal estate, according to its known mode of operation ; yet it is rather by force of his intention, than of the statute itself, that the legal estate, in such cases, would be deemed to pass. A devise by which any future estate is thus limited con- trary to the rules of the common law, is called an executwy devise {k) ; but upon the same principle to which we had before occasion to advert, in the case of a springing or shifting use, it used to be a rule that no limitation, capable of being considered as a remainder, should ever be con- strued as an executory devise (/). All "executory devises" are also subject, like springing and shifting uses, to the rule against ^er^e^M% (m). And therefore, until the New Wills Act, it was held that if a chattel (real or personal) were bequeathed to A., and upon his dying icithout issue, then to B., the limitation over to B. was void, as being too remote («) ; for such words imported an indefinite failure of issue (o). But in devises of the freehold, similarly ill) 2 Bl. Com. 334 ; Co. Litt. (m) 2 Bl. Com. 173, 334 ; Pearne by Butler, 272 a, n. (1). by Butl. 430, 9th ed. ; Co. Litt. by (i) Ibid. ; 1 Sand. Uses, p. 196. Butl. 271 b, n. (1), vii. 2. As to (k) Feame by Butl. p. 386 ; 2 perpetuity, vide sup. p. 534. Tlie Bl. Com. 172. period allowed for vesting is oom- [l) See Peame by Butl. pp. 386, puted, in the case of a devise, from 394, 525 ; Doe d. Evers v. Challis, the death of the testator, not from 20 L. J. (Q. B.) 113. The rule, the date of his will. (Ibid.) however, must now be taken ru («) Fearne by Butl. p. 460 ; Doe connection with 40 & 41 Vict. c. 33, v. Ewart, 7 Ad. & El. 648 ; Doe v. as to which, vide sup. pp. 331, 528. Duesbury, 8 M. & W. 531. (o) Vide sup. p. 584. CHAP. XX. OF THE CONVEYANCE BY DEVISE. 587 ■worded, the otjectioii of remoteness did not usually arise ; for, in general, the law gave effect, in this case, to the limitation over, by considering the estate of the first taker as amounting, by implication, to an estate tail, — a con- struction which was not admissible in the former case, by reason of there being no estate tail in a chattel {p), — and the ulterior estate was regarded as a remainder : which, as it might always be barred by the recovery of the tenant ia tail, did not fall within the rule against perpetuity. By the express provision, however, of the New WiUs Act, the rule of interpretation as to the words di/ing withoui issue, on which the whole of these doctrines were founded, is now itself abolished (q). With respect to the operation of a devise, it remains only to remark, that it vests in the devisee before and without entry an actual freehold by construction of law (r) ; being similar in this respect to a conveyance under the Statute of Uses; but different from a descent, which does not vest in the heir an estate complete for all pur- poses unless and until he has made entry on the lands descended (s) . (p) 2 Bl. Com. 398; vide sup. has entered on the land (Doe d. p. 280. Winder v. Lawes, 7 Ad. & Ell. (q) Vide sup. p. 584. 212) ; and this is called a disclaimer (r) Co. Litt. Ilia. The devisee by the devisee, may, however, by an express act of («) Vide sup. p. 411. dissent, waive the devise unless he 588 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS HEAL. OHAPTEE XXI. OF EXTRAORDINAKY CONVEYANCES OR THOSE BY MATTER OF RECORD. Having now completed our yiew of conveyances of the ordinary class, vrhether founded on the common law or on the statute law, we proceed next to the examination of conveyances by matter of record (a) : which, being in use on particular and comparatively rare occasions, may therefore be designated as extraordinary conveyances. These are, 1. Private Acts of Parliament; and 2. Eoyal grants; both of which, as connected but slightly with the main body of the law, will be treated with brevity. I. Private Acts of Parliament have been resorted to as a mode of assurance more frequently in modem than in antient times {b). [For it may sometimes happen that, by the ingenuity of some, and the blunders of other prac- titioners, an estate is most grievously entangled by a multitude of resulting trusts, springing uses, executory devises, and the like artificial contrivances.] Or it may sometimes happen, that, by the strictness of family settle- ments, or through some omission therein, the tenant of the («) The now abolished convey- of private bills ; 10 & 11 Vict. 0.69 ; ances by way of fine and recovery 12 & 13 Vict. c. 78 ; 28 & 29 Vict, were also by matter of record ; vide u. 27 ; 42 & 43 Vict. o. 17, as to the sup. p. 640. taxation of costs on private bills; (b) As to private Acts of Parlia- and 21 & 22 Vict. u. 78, as to ad- ment, vide sup. 70. See 7 Will. ministering oaths before committees 4 & 1 Vict. u. 83, as to the deposit of House of Commons on private of plans and documents in the case bills. CHAP. XXI. OF CONVEYANCES BY MATl'EK OF RECOKD. 589 estate is abridged of some reasonable power, (as making a jointure for bis wife, or the like,) wbiob power cannot be given him by the courts even under the liberal provisions of the Settled Estates Act, or be exercised by him under the still more liberal provisions of the Settled Land Act(c). [Or it may be necessary, in settling an estate, to secure it against the claims of infants, or other persons under legal disabilities; who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other cases of the like kind, the transcendant power of parliament is called in, to cut the Grordian knot ; and by a particular law, enacted for this very purpose, to unfetter an estate ; to give its tenant reasonable powers ; or to assure it to a purchaser, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred. This practice was carried to a great length in the year succeed- ing the Eestoration, by setting aside many conveyances alleged to have been made by constraint, or in order to screen the estates from being forfeited during the usurpa- tion. And at last it proceeded so far, that, as a noble historian expresses it (d), every man had raised an equity in his own imagination, that he thought was entitled to prevail against any descent, testament, or act of law, and to find relief in parliament ; which occasioned the king, at the close of the session, to remark, that the good old rules of law are the best security, and to wish that men might not have too much cause to fear that the settlements which they make of their estates shall be too easily unsettled, when they are dead, by the power of parliament (e). Acts of this kind are carried through, in both houses, with great deliberation and caution; particularly in the House of Lords, where it has been the usual practice to have them referred to two of the judges, to examine and report on the facts alleged, and to settle all technical (c) Vide sup. p. 267. («) Ibid. 163. {d) Lord Clar. Oontin. 162. 690 BK. II. OF RIGHTS OF PROVEKTY. PT. I. THINGS REAL. [forms {g) . Nothing also is done without the consent, expressly given, of all parties in being and capable of consenting, that have the remotest interest in the matter ; unless indeed such consent shall appear to be perversely, and -without any reason, withheld. And, as was before hinted, an equivalent in money or other estate is usually settled upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be concluded by the Act. And a general saving is constantly added at the close of the bill, of the rights and interests of all persons whatsoever, except those whose consent is so given or purchased, and who are therein particularly named ; though it hath been holden, that, even if such saving be omitted, the Act shall bind none but the parties {h). A law thus made, though it biads all parties to the bill, is yet looked upon rather as a private conveyance than as the solemn act of the legislature. It is not therefore allowed to be a public, but a mere private statute ; it is not printed or published among the other laws of the session ; and it hath. been relieved against, when obtained by fraudulent suggestions («). J Formerly, too, it was sub- ject in every case to this further distinction, that though all public statutes are noticed by the court ex officio, no private one was entitled to judicial notice unless specially set forth and pleaded. And such is still the rule as to those passed up to 4th Feb. 1851, inclusive ; but by 52 & 53 Yict. c. 63, s. 9, repealing but in substance re-enacting 13 & 14 Yict. c. 21, s. 7, it is provided that every Act passed after the year 1850 shall be judicially taken notice. (y) ■whenever a private bill, in TideWestbyv-KiemaiijAmbl. 697; the nature of an estate bill, is Provost of Eton v. Bishop of Win- brought up from the Commons, and Chester, 3 Wils. 483 ; Chapman «». has not been previously settled in Brown, 3 Burr. 1626. Chancery, it is referred by the («) See Richardson v. Hamilton, House of Lords to be looked into Cano. 8th January, 1773; M'Kenzie by two of the judges. (May's Laws i>. Stuart, Dom. Proo. 13th March, of Pari. pp. 820, 833, 8th ed.) 1754; Biddulphji. Biddulph, 4 Cm (/i) See 8 Eep. 138 a ; Godb. 171 ; Dig. 549. CHAP. XXI. OF CONVEYANCES BY MATTER OF RECORD. 691 of, unless tlie contrary be expressly provided and declared by the statute itself (J). II. Royal grants are also matter of public record (A). [For, as St. Grermyn says, the excellency of the sovereign is so high in the law, that no freehold may be given to, nor derived from, the crown, but by matter of record (/). And to this end a variety of offices are erected, commu- nicating in a regular subordination one with another, through which all the royal grants must pass, and be transcribed, and enrolled : that the same may be narrowly inspected by the officers of the crown, who will inform the sovereign if any thing contained therein is improper, or unlawful to be granted. These grants, whether of lands, honours, liberties, franchises, offices, or aught besides, are contained in charters, or letters-patent, that is, open letters, liter ce patentes ; so called because they are not sealed up, but exposed to open view, with the great seal pendant at the bottom ; and are usually directed or addressed by the sovereign to all subjects of the realm. And therein they differ from certain other letters of the sovereign, which are also sealed with the great seal, but are directed to particu- lar persons, and for particular purposes ; which, therefore, not being proper for public inspection, are closed up, and sealed on the oiitside, and are thereupon called writs close, literm clausm, and are recorded in the close rolls, in the same manner as the others are in the patent rolls.'] The course of proceeding formerly observed with re- spect to the making out of a grant by letters patent was in general as foUows {m) : — They were, first, to pass by bill, prepared by the attorney-general and solicitor-general, [j) As to all private Acts, it may titles are not now enrolled, but the be observed that tip to 25 Hen. 8 Acts themselves are preserved at they were enrolled on the rolls of the Private Bill Office, parliament ; but from that date (A) Vide post, bk. v. c. xv. until 32 Geo. 2, the titles only (/) Doot. and Stud. b. 1, d. 8. usually appear on the rolls. Under (»») See 2 Bl. Com. 343. the existing practice, however, the 592 BK. II. OF RIGHTS OF I'ROPEETY. PT. I. THINGS UEAL. in pursuance of a warrant from the crown, and thereafter signed (that is, superscribed at the top with the sovereign's own sign manual,) and sealed with the pricy signet, which was always in the custody of the principal secretary of state; and then sometimes the hill immediately passed under the great seal, in which case the patent was suhscribed in these words, "per ipsam reginam, by the queen herself "(«). Otherwise, the course was to carry an extract of the bill to the keeper of the privy seal, who made out a writ or warrant thereupon to the Chancery ; so that the sign manual was the warrant to the privy seal, and the privy seal was the warrant to the great seal ; and in this last case the patent was subscribed, "per breve de privato sigillo, by writ of privy seal " (o). But the prac- tice as to gi-ants by patent was latterly greatly simplified by the statute 14 & 15 Yict. e. 82, which (after repealing a statute of 27 Hen. VIII. c. 11, on the subject) provided, that, in every case where any gift, grant, or writing what- soever to be passed under the great seal would have before required a bill from the office of the signet or of the privy seal, her Majesty might, by warrant under the royal sign manual, addressed to the lord chancellor, command him to cause letters-patent to be passed under the great seal according to such warrant; and that such warrant should be prepared by the attorney-general or solicitor-general, and should set forth the proposed letters-patent, and should be countersigned by one of the principal secretaries of state, and sealed with the privy seal [p). Such was the general course of proceeding as established by that statute : but inasmuch as some letters-patent, writs, commissions, or other instruments, might, before the statute, have been passed imder the great seal, by authority of the lord chancellor or otherwise, without passing through the offices of the signet and the privy seal : these were excepted, by an express proviso, from its operation. There are also («) 2 Rep. 17 b. . [p) By 40 & 41 Viot. o. 41, s. 4, (o) lb. ; 2 last. 555. wafer seals might be used. CHAP. XXI. OF CONVEYANCES BY MATTER OF RECORD. 593 some royal grants or appointments which only pass through certain offices, as the admiralty, the home office, or treasury, under the authority of a sign manual without the confirmation of either the signet, the great or the privp seal ; and to these of course the statute had no applica- tion (q). And now, under the Patents, Designs, and Trade Marks Act, 1883 (r), patents for inventions are simply sealed with the seal of the patent office ; and hy the Great Seal Act, 1884 (s), it has been provided generally, that a warrant under the sign manual, countersigned by the lord chancellor or a secretary of state, or the lord high treasurer, or two of the treasury commissioners, shall be a sufficient authority for passing any instrument under the great seal, and that for the future no instrument need be passed under the privy seal ; but where any instrument might before the Act have been passed under the great seal by the fiat of the lord chancellor or otherwise with- out passiag through any other office, it is to continue to be so passed. [The manner of a grant by the crown (as above set forth), does not more differ from that by a subject, than the constmction of such grants when made. For, 1. A grant made by the crown, at the suit of the grantee, shall be taken most beneficially for the crown, and against the party : whereas the grant of a subject is construed most strongly against the grantor {t). Wherefore it is usual to insert in the royal grants, that they are made, not at the suit of the grantee, but "ex speciali gratid, cerfd scientid, et mero motu regince {aut regis) ; " and then they have a more liberal construction (m), as is also the case where they are made upon a valuable consideration (w). Iq) As to commissions in the o. 82; and the Great Seal Act, army, &o., see 25 & 26 Vict. o. 4. 1880 (43 & 44 Vict. c. 10), s. 3. (r) 46 & 47 Vict. o. 57, amended [t) Vide sup. p. 483. by the 48 & 49 Viot. c. 63. («) Knch, L. 100 ; 10 Eep. 112. (s) 47 & 48 Vict. 0. 30, repealing {w) 6 Eep. 6 a. the 27 Hen. 8, c. 11 ; 14 & 15 Viot. VOL. I. « « 594 BK. II. OF RIGHTS OF PKOPERTY. FT. I. THINGS KEAL. [2. A sutjeot's grant is construed to include many tHngs besides what are expressed, if necessary for the operation of the grant (x), e.g. a grant of the profits of land, implied the right of ingress, egress, and regress, to cut and carry away those profits (y) ; and so a feoffment, made by a lord to his villein, operated as a manumission (a). But the grant of the crown shall not enure to any other intent than that which is precisely expressed in the grant. 3. When it appears, from the face of the grant, that the crown is mistaken or deceived, either in matter of fact, or m matter of law, as in case of false suggestion, mis- information, or misrecital, of former grants; or if the royal title to the thing granted be different from what was supposed; or if the grant be informal; or if an estate be granted contrary to the rules of law ; — in any of these cases the grant is absolutely void (a). For instance, if the crown grant lands to one and his heirs male, this is merely void ; for it shall not be an estate tail, because there want words of procreation, to ascertaia the body out of which the heirs shall issue; neither is it a fee simple, as in common grants it would be, because it may reasonably be supposed, that the king meant to give no more than an estate tail (6) ; the grantee is therefore (if anything) nothing more than tenant at VTill {e). And to prevent deceits being practised on the sovereign, with regard to the value of the estate granted, it was particularly provided by the statute 1 Hen. IV. 0. 6, that no grant of the crown should be good, unless express mention was made of the real value of the lands ia the grantee's petition for them (d).] As to the mode (») 1 Sairnd. by 'Wms. 323 a, (c) Bro. Abr. tit. Estates, 33 ; n. (6). tit. Patents, 104 ; Dyer, 270 ; Day. (y) Co. litt. 56 a. 45. (z) Litt. 8. 206. {0) See 10 Geo. 4, o. 50, s. 125, (a) Preem. 172. See Gledstanes as to the Woods and Torests Com- V. Earl of Sandwioh, 4 Man. & G. missioners certifying to parliament, 995. from time to time, the partionlars (i) Knob, 101, 102. of all grants of the crown lands; CHAP. XXI. — OF CONVEYANCES BY MAXTEK OF RECORD. 595 of proceeding for calling in question tlie validity of the crown's grant, it is in general by writ or action of scire facias at suit of tlie crown, issued at the instance, or at least with the sanction, of the attorney or solicitor- general (e) ; but as regards letters-patent for inventions, the proceeding by scire facias to repeal the patent has been abolished, and in lieu thereof a petition to the Court is now provided, praying for the revocation (/). Lastly, we may observe with respect to the subject-matter of royal grants, that — in connection with the provision now usually made by parliament, for the support of the royal dignity — ^restrictions have been placed by legislative enactment on the alienation of the royal domains (g) ; the general effect of which (though subject to a variety of exceptions) is to make such- alienations unlawful for any longer period than thirty-one years (A). But the private property of the Queen, that is, any estate purchased out of the privy purse, or coming to her Majesty, her heirs or successors, by descent or otherwise, from persons not being kings or queens of the realm, may be disposed of by her as freely as any estate belonging to a private individual (i). and 38 & 39 Vict. o. 87, as. 65, 66, as to the registratioii of crown lands under that Act. (e) See on this subject the provi- sions of 12 & 13 Vict. 0. 102, s. 29, &c. (/) 46 & 47 Vict. 0. 57, s. 26. (ff) See 1 Anne, c. 1 ; 10 Anne, 0. 28 ; 10 Geo. 4, e. 50 ; 1 & 2 Vict. 0. 95, 8. 4. (A) Vide sup. p. 428. (e) See 39 & 40 Geo. 3, c. 88 (amended by 47 Greo. 3, sess. 2, c. 24) ; 4 Geo. 4, o. 18 ; 25 & 26 Vict. c. 37; 36 & 37 Vict. u. 61. See also Mr. Thomas's arrange- ment of Co. Litt. vol. i. p. 66, vol. ii. p. 606, where the law relative to crown grants is col- lected. qq2 596 BK. II. OF RIOHTS OF PROPERTY. — PT. I. THINGS REAL. CHAPTBE XXII. OF COPYHOLDS. Ode attention has been Htherto confined to hereditaments of free tenure ; and these we have considered with reference to the estates that may he had in them, and the means by which those estates may be acquired or lost. But the reader will recollect, that lands may also be held by the base tenure of copyhold; a distinction of which some general notice has been already taken in a former chapter of this work (a). And we are now to examine copyhold lands with reference to the same considerations of estate and title, which have already engaged our attention in the course of the disquisition upon hereditaments of free tenure (6). As this, however, is in the nature of a mere variation upon that general scheme of real property, which has been already unfolded, our notice of it may be com- pressed within proportionably narrow limits. It shall be directed chiefly to- the following points : I. The general nature of copyhold estates; and II. Certain incidents peculiar to those estates, and not applicable to such as are of free tenure. And in what we shall have occasion to say on this subject, we are to be understood as speaking of copyhold commonly so called ; the particular varieties of antient demesne, and the rest, not requiring in the pre- sent work a more particular notice than has abeady been bestowed upon them (c). (a) Vide sup. p. 215. (c) Vide sup. pp. 224 et seq. (i) Vide sup. pp. 230, 231. CHAP. XXII. — OF COPYHOLDS. 597 I. As to tlie general nature of these estates, and refer- ring to what we before said of copyhold, we may collect from it, first, that it is in manors only that they are to he found ; all copyholds being, from their nature, necessarily parcel of some manor. Secondly, that it is by the imme- morial custom of the particular manor, that the nature of the copyholder's interest must always be regulated. In some manors, where the custom hath been to permit the heir to succeed to the ancestor, the estates are called copy- holds of inheritance ; in others, where the lords have been more vigilant to maintain their rights, they remain copy- holds for life or years only (d) ; but though the interest of the copyholder may be thus in fee or for life, and consequently may partake of the nature of freehold in respect of the quantity of estate, it is nevertheless, for want of the remaining ingredient, (viz. that of free tenure,) no freehold (e). Indeed, in every case of copyhold, the law still distinguishes between the strictly legal, and the cus- tomary, estate ; for as regards the former, it supposes the seisin and freehold of the land to be vested in the lord, of whose demesnes it is properly parcel ; and the copyholder to be mere tenant at wiU (/) ; but as he is tenant at will according to the custom, that is, to hold in fee, or for life, or years, (as the case may be,) it considers him as having a customary estate to that extent {g) ; and one that is fixed and permanent in its nature, such as it is out of the power of the lord to defeat or encroach upon (A). In consonance {d) 2 Bl. Com. 97 ; 3 Eeal P. R. holders are equally liable with free- 14. It is to be observed, that if holders to serve on juries (6 Geo. 4, the oustomhas been to grant copy- o. 50 ; 33 & 34 Viot. o. 77) ; also, holds of inheritance, the lord may that while a property qualification also grant a less estate ; for, omne in real estate was required (30 & 31 majus in se continet minus. (Co. Viot. c. 102, s. 5), and so far as it Litt. 52 b.) "^ ^'^ required (48 Viot. c. 3, ss. 4 ■(e) Vide sup. p. 290. —7), a copyhold estate was and (/) See Dearden ». Evans, 5 is equally good with a freehold Mee. & "W. 11 ; Duke of Portland estate. V. Hill, Law Rep., 2 Eq. Ca. 765. (A) See Brown's case, 4 Eep. 21 ; (^) It may be noticed that copy- Co. Cop. 5, 58 ; Litt. s. 92, Trespass. 598 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. with the latter view, which assigns to the copyholder the character of a permanent tenant, he is deemed to owe fealty to his lord ; which, as we have seen in a former place, is an obligation from which a mere tenant at will is always exempt («). This complicated kind of interest, according to which the same man shall, with regard to the same land, be at one and the same time tenant in fee simple, and also tenant at the lord's wiU, seems to have arisen, in the manner formerly explained, from the nature of vDlenage tenure (k). In the enumeration of the estates of which a copyhold may consist it will be observed, that we have not included estates tail : it being only by particular custom that copy- holds are capable of being entailed (l). For the statute De donis has been held not to extend to lands of that tenure : from which it follows that a limitation to a man and "the heirs of his body," in a copyhold, will ordinarily create not an estate tail, but a fee simple conditional at common law (m). Not only with regard to the quantity of interest, (as being in fee, for hfe, or for years,) but with regard also to the various modifications to which that interest may be subject, the nature of a copyholder's estate in general resembles that of an estate held in free tenure (m). But rrom these authoritieH it appears find tenements per roll, solonque la that copyholders were formerly volonte de aeigniour ; and in the ousted by their lords at pleasure. reign of Henry the fifth, the term The reformation of this was, in the copyholders occ\irs. (Hist. Eng. opinion of Chief Baron Gilbert, " by Law, by Eeeves, vol. iii. p. 312.) some positive law ; ' ' (GrUb. Ten. And see Soriven on Copyholds, 6th 166, 161 ;) but it is generally sup- ed., by Brown, pp. 12 — 14. posed to have been gradual. Upon («) Vide sup. p. 291, n. the whole, the origin and progress (A) Vide sup. p. 215. of this tenure are involved in sin- {I) Co. Litt. 60 b ; 2 Bl. Com. gular obscurity; but as early as 113. the fourth year of Edward the first, (m) Doe v. Clark, 5 B. & Aid. we find mention of cuatumarii 458 ; vide sup. pp. 241, 242. tenentes; towards the latter end of {») Co. Cop. 110; Gilb. Ten. the reign of Edward the third, we 258 ; 2 B. & Ad. 440. CHAP. XXII. OF COPYHOLDS. 599 as to this, there are some exceptions. Thus, — as to estates in dower and by the curtesy, — ^it is laid down that copy- holds are not, of common right, subject to either of these incidents (o) : though they may each obtain, and in fact do very frequently obtain (the former under the name of free-bench), hj the special custom of particular manors {p). And to this we may add, that as the mode in which copy- holds are conveyed — of which we shall speak hereafter {q) — differs from any of those which are applicable to free- holds ; so the limitation of an estate, in the former, is free from some of the restraints imposed, by the ordinary rules of the common law, in the case of the latter. Thus, in a conveyance of a copyhold estate inter vivos, though no assistance can be here derived from the Statute of Uses(r), — ^yet an estate in fee or for life may be limited in futuro ; or a fee may be limited upon a fee ; or a man may convey to himself, or to his wife (s). And a copyhold has been always capable, in the manner hereafter mentioned, of alienation by will ; in which all the above modes of limita- tion are allowed with as much freedom as in the case of a devise of freehold. II. Next, as to the incidents of a copyhold estate, in which it differs from one of free tenure ; and these regard, first, the estate itself, and, secondly, its title or manner of acquisition. First. As to the estate itself, a copyholder, even where his interest is in fee, has no right (except in particular manors where it may be warranted by a special custom) (o) As to dower, vide sup. p. 267 ; [p) Co. Cop. 110, 111 ; Gilb. Ten. as to curtesy, sup. p. 264. See 4 161. Eep. 22 a, where Sir E. Coke gives (?) Vide post, p. 606. as a reason, that copyhold lands, (r) Ibid. though (^Mcme^JJfebyoustom, never- (s) Boddingfton ti. Abemethy, 5 theless do not possess aU the other B. & C. 782 ; Co. Cop. 81. As to collateral qualities of estates of in- the rules on these points in respect heritanoe simpUeiter. oi freeholds, vide sup. pp. 522, 626, 627. 600 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. to commit waste, — for example, to cut down timber unless for reasonable botes or estovers {t), or to dig for mine- rals (m) ; — for the law considers him, in these respects, in the light of a tenant at will. And yet this restriction is attended with no corresponding benefit to the lord; for the law does not allow the lord (unless there be a special custom for the purpose) to enter on the land to take the timber or minerals to his own use, without the consent of the copy- holder; whose possession, though iu strictness a tenancy at wUl, is nevertheless protected from all invasion {x). By such waste, and by many other acts of a wrongful kind, — such as an alienation in fee, or for Hf e, by a common law mode of conveyance proper to freehold, and not applicable to a base tenure — a demise for more than one year, without the lord's licence — a refusal to perform the proper services, — or a disclaimer of his tenancy in open court, — ^the copy- holder forfeits his estate to the lord {y). Moreover the copyholder is ordiaarily subject to quit rents and fines, and, sometimes, to heriots. The nature of a "quit rent" will be noticed in the following chapter, when we shall have occasion to consider the subject of rents in general (s). " Pines " are payments due, by the custom of most manors, to the lord, upon every descent or aliena- tion of a copyhold tenement {a) ; and they accrue by force of the admittance to which we are about presently to refer more at large ; but are not in general allowed to a larger amount than two years' improved value of the land, after deducting the quit rent (6). In the case of "tenants in {t) As to these, vide sup. p. 257. Com. 284 ; Soriven on Copyholds, (m) See Doe v. Wason, 11 East, 6th ed., by Brown, pp. 178—186; 66 ; Gilb. Ten. 235 ; Duke of Port- where a variety of acts which occa- landti.Hill.LawEep., 2Eq.Ca. 765. sion a forfeiture are enumerated. [x) Whitechuroh v. Holworthy, 4 («) Vide post, p. 643. Mau. & Sel. 340 ; Lewis v. Brent- (a) Vide sup. p. 223. As to fines wate, 2 Bam. & Adol. 438 ; Phillips formerly payable on alienation, &o. V. Hudson, Law Eep., 2 Ch. App. by tenant of lands of free tenure, 2*3. vide sup. pp. 179, 210. (»/) 1 "Watk. Cop. 326 ; 2 Bl. (*) As to the liability of remain- CHAP. XXII. OF COPYHOLDS. 601 common," this fine is paid apportionably — that is, each pays a separate fine according to his share (c) ; but " joint tenants " and " co-parceners " pay a single fine for all (») Vide sup. p. 570. ee2 612 BK. II. OF RIGHTS OF PROPERTY. — ^PT. I. THINGS REAL. devisee, to be admitted (w) ; and, except by special custom, a devise without a previous surrender of this kind was inoperative (o). However, by 55 Geo. III. c. 192 (passed 12th July, 1815, and commonly called Preston's Act)^ every disposition made by wiU, by a person dying after the passing of that Act, was made as effectual without a surrender to the use of his will, as it would have been if such a surrender had taken place {p). And so by the New Wills Act (repealing 55 Geo. III. c. 192, except as to wills made before 1st January, 1838), it is provided that all the real estate of the testator may be devised ; and under that description, aU his copyholds, though he should not have surrendered them to the use of his will, nor have even been admitted to them himself, are expressly in- cluded {q). It is, however, incumbent on the devisee to be admitted (as in the case of a descent) and pay to the lord one or more fines, as the case may be. Copyhold lands may, moreover, pass by a conveyance under the Act for abolishing Fines and Recoveries, 3 & 4 Wm. IV. c. 74 (r). In some manors an estate limited to a man " and the heirs of his body," might (prior to that statute) have been barred by a customary recovery, founded on a fictitious action in the lord's court, according to the analogy of a common recovery in the Court of Common Pleas (s) ; in others, such customary estate tail was capable (») Co. Cop. s. 36. (r) The provisions of this Act as (o) 1 Watk. Cop. 122 ; see Doe v. to land held by copy of court roll, Bartle, S Bam. & Aid. 492 ; Cuth- do not (it -vrould seem) extend to hert V. Lempriere, 3 M. & S. 158. land held as customa/ry freehold. (R. {p) See Doe v. Thompson, 7 Q. v. Ingleton, 8 Dowl. P. C. 693.) B. 897; Grlasse v. Eiohardaon, 2 («) Doe v. Dauncey, 7 Taunt. De G., M'N. & Q-. 659 ; Traherne 674 ; 1 Watk. Cop. 161. As to a V, Gardner, 5 Ell. & Bl. 913. common recovery, vide sup. p. 847. (?) 7 Will. 4 & 1 Viot. c. 26, s. 3. If a fine or recovery of land held (See Garland v. Mead, Law Bep., 6 in antient demesne vrere levied or* Q. B. 441.) This power of devise suffered in the Court of Common extends to a copyhold held pur autre Pleas as though it were freehold, vie (vide sup. p. 432). it might be reversed by a particular form of action brought by the lord. CHAP. XXtl. — OF COPYHOLDS. 613 of being barred 'hj surrender (<). But by the statute in question it was enacted, that a disposition by tenant in tail of the legal estate in a copyhold, shall in every case be by surrender (m) ; subject to provisions as to the consent of the protector of the settlement (where there is one), analogous to those which the statute introduced in relation to the disentailing of freehold lands (x) : but it is provided that such surrender (differing in this respect from a disen- tailing deed of freeholds) shall require no enrolment, other- wise than by entry on the court rolls («/). It is also enacted by the same Act, with respect to the copyhold of a married woman when not tenant in tail — for when she is so, her estate is to pass by surrender as before the statute, i.e. by the surrender of herself and husband, she being at the same time examined apart by the steward (z) — that she may by deed, acknowledged in such manner as therein directed, and executed with the concurrence of her hus- band, convey her estate, or extinguish any interest or power vested in her, as effectually as if she were a feme sole ; though this enactment is expressly declared not to extend to her legal estate in any case in which the object of that provision could, before the passing of the Act, have been effected by a surrender {a). The preceding remarks relate, it will be observed, to the manner of conveying the legal estate in copyhold lands. With respect to equitable interests in lands of this tenure, they do not in general pass by surrender, for none but the owner of the legal estate is tenant to the lord, nor conse- called a torit of diseeit ; and the pp. 35—37.) land consequently restored to its (<) Doe v. Dauncey, 7 Taunt. former state of copyhold : but if 678 ; 1 Watk. Cop. 178. the fine or recovery were not duly («) 3 & 4 WiU. 4, c. 74, s. 50. reversed, the tenure of the land (a;) Sects. 40, 61, 52, 90. would be thereby altered, and con- (y) 3 & 4 Will. 4, «. 74, s. 54. verted into frmk fee or freehold. {z) See 1 Watk. Cop. 63; Kewley (2 Bl. Com. 368 ; and see 3 & 4 v. Kyan, 2 H. Bl. 344 ; Driver v. Will. 4, 0. 74, s. 5 ; also, Scriven Thompson, 4 Taunt. 294. on Copyholds, 6th ed., by Brown, («) 3 & 4 WUl. 4, o. 74, s. 77. 614 BK. II. OF EIGHTS OF PROPERTY, — PT. X. THINGS REAL. quently entitled to surrender (b) ; but by any ordinary mode of conveyance sufficient to pass an equitable interest in other oases : and a mere instrument in writing, signed as directed by the Statute of Erauds, ■will suJ03.ce (c). But as to equitable estates tail, and the eqtdtable estates of married women not tenants in tail, it is provided by the Fines and Eecoveries Act, that they shall pass either by surrender or by a disentailing or other deed, attended with the same formalities in general which are prescribed by that statute with reference to a transaction afEecting legal estates (d). We have thus endeavoured to trace the principal features of the law of copyhold; one of the most unsatisfactory divisions (it is generally considered) of the fabric of our jurisprudence (e). It is obviously open to the observation, that it is (in many important respects) a variation upon the fundamental scheme of tenure; and it was justly remarked by the commissioners appointed in the ninth year of George the .fourth to revise the law of real property, that where the complexity which must always belong to the legal institutions of a civilized country " is wantonly "aggravated by the admission of several concurring " systems, serious mischiefs are likely to arise from the " ignorance or forgetfulness of practitioners ; and even of "judges, however carefully selected." And the learned commissioners (not regarding the original beneficence of the copyhold tenure, but dwelling upon its present em- barrassments) pointed out many specific inconveniences incident to the tenure ; to wit, the multiplicity and un- (I>) 1 Watt. Cop. 60. 1838, that this tenure ia " a blot (c) lb. ; vide sup. p. 372. " on tbe juridical system of the {d) 3&4'Will. 4, 0. 74, ss. 50, "country." More recently, how- 63, 77, 90. ever, statesmen have lamented that («) A Select Committee of the the copyhold tenure never took root House of Commons, appointed to in Ireland ; and generally the oen- consider as to the enfranchisement sures of one age are often the result of copyholds, expressed an opinion of an imperfect knowledge of the in their Report of 13th August, circumstances of an earlier age. CHAP. XXII. — OF COPYHOLDS. 615 certainty of tlie different manorial customs, the check to agricultural improTement occasioned by the state of the law with respect to timber and minerals, — the liability to fines— the numerous payments due to stewards on account of fees, — and the vexatious and oppressive character of heriots. The efforts of legislative reform have, accordingly, since that report was made, been assiduously directed towards this branch of the law ; and have resulted in certain statutes, viz., the 4 & 5 Vict. c. 35, 6 & 7 Vict. c. 23, 7 & 8 Vict. c. 55, 15 & 16 Vict. c. 51, 21 & 22 Vict. 0. 94, 23 & 24 Vict. c. 59, 31 & 32 Vict. o. 89, and 50 & 51 Vict. c. 73, by which new regulations of great importance have been introduced (/). These Acts apply themselves to the following objects : first, to give effect to agreements for the commutation of manorial burthens and restrictions, and to improve, in some other respects, the tenure itself ; secondly, to facilitate the conversion of that tenure into freehold. In promotion of these views the statutes establish a Board of "Copyhold Commissioners" ((/), now merged in the Board of Agriculture, and they enacted, that the future rents, fines, and heriots, and the lord's right in timber, and also (if so expressed) in mines and minerals, might in all cases be commuted by an agreement, which should be compulsory on all parties interested in the manor, or in the lands held of the manor ; provided the parties to such agreement were respectively interested in such manor and (/) By 21 & 22 Viot. o. 94, the all came to be inown as the Land Copyhold Act (16 & 17 Vict. o. 67) Commissioners (45 & 46 Viot. o. 38, is repealed ; and by 23 & 24 Viot. . s. 48) ; and to this board was also 0. 59, s. 4, some of the enactments entrusted the execution of the Im- referred to in the text are amended as provement of Lands Act, 1864 (27 to estates vested in the universities. & 28 Vict. c. 114), and of the lite (a) 4 & S Vict. 0. 35, s. 2. With improvements under the Settled this board, the Tithe Oommis- Land Act, 18S2. The Land Com- sioners and the Inclosure Commis- missioners themselves have now sioners have been consolidated (see been merged in the Board of Agri- 14 & 15 Viot. e. 53 ; 25 & 26 Viot. culture (see 52 & 53 Vict. o. 30). 0. 73 ; 41 & 42 Viot. o. 70), and 616 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. lands to the extent of three-fourths at least in value, and the numher of the tenants were at least three-fourths of the whole : and also provided that all ecclesiastical and other corporations and patrons of livings, interested in such manner as mentioned in the Acts, were parties to the agreement ; and that it was afterwards confirmed by the Commissioners (h) ; but such general commutations have now ceased to be made. The Acts, however, continue to authorize commutation to be made between the lord of the manor and any one or more of his tenants, whatever may be the amount of their respective interests ; so as to be binding (after confirmation by the commissioners) on those parties, and on all other persons connected with them in title; though, in this case (as in the former), notice is to be given to the persons next in remainder, reversion, or expectancy, of any estate of inheritance in the rights to be commuted, — not beiag parties to the agreement, — and such persons are permitted to urge before the commissioners any objection to the proposed arrangement («). And after a commutation duly effected, the lands, although still re- maining copyhold for most purposes, cease to be subject to any customary mode of descent; or to any custom relating to dower, freebench, or tenancy by the curtesy, except as to persons married before the commutation took place : and become liable, in all that regards those matters, to the same law as lands held in free and common socage (/ ). Besides these facilities for commutation, certain im- provements of copyhold tenure are introduced into the above Acts. Thus, to remove doubts before existing on the subject, it is provided, that it shall be lawful for the courts to make partition of copyhold lands, as well as of lands of freehold tenure (k). And to obviate certain iacon- (h) 4 & 5 Vict. 0. 35, ss. 13, 22, from the operation of the Copyhold 23. Acts. (Sect. 80; 15 & 16 Vict, (t) 4 & 5 Vict. u. 35, H. 62. o. 51, s. 34.) (J) Sect. 79. Lands in Kent held (*) 4 & 5 Vict. c. 35, s. 75. in gavelkind are, however, excepted CHAP. XXII. — OF COPYHOLDS. 617 veniences previously attaoliing to the practice of surrenders, admittances and grants, it is enacted, that lords of manors (or their stewards or deputy stewards,) may hold cus- tomary courts, though there should be no copyhold tenant at the time, or none should he present ; and may grant lands to be held by copy, and also admit to lands to be held by copy, at any time or place (whether within or without the manor), and without holding a court (1). And whereas before these statutes it was in many cases neces- sary that a surrender, or other act out of court, should be afterwards presented in court by the homage, or tenants of the manor there assembled {m), — it is provided that every copy of a surrender, will or codicil delivered to the lord, steward, or deputy, and every grant and admission, shall be forthwith entered on the court rolls of the manor ; and that such entry shall be taken to be an entry ia pursu- ance of a presentment : and that it shall not be essential in any case to the validity of an admission, that a present- ment should be made of the surrender, or other matter in consequence of which the admission was granted; with this proviso, however, that when, by the custom of any manor, the lord is authorized, by consent of the homage, to grant parcel of the waste to be held by copy, the consent of the homage assembled at a customary court, duly sum- moned and held according to the custom, shall still be necessary. And whereas by the custom of some manors, a licence from the lord to aUene is required, and iu some of these cases lords were restrained, by the custom, from granting licences to their tenants to aliene their antient tenements, otherwise than by entireties, — it is enacted that licences to aliene parcels may now be granted, and such alienation may be made accordingly (w). With the view of facilitating enfranchisement, that is to {tj Before the Act, a customary (m) 1 Watk. Cop. 79, 80. court could not be held unless two (») See 1 Watk. Cop. 287, n. {x), copyholders at the least were pre- 322 ; 4 & 5 Vict. c. 35, s. 92. sent. (3 Real Property Bep. 20.) 618 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. Bay, the conversion of copyhold into freehold, the Copy- hold Acts provide, in substance (for no minute detail can be attempted in this place), that, with the consent of the commissioners, it shall be lawful for the lord, what- ever may be his interest, to enfranchise all or any of the lands holden of his manor ; and that it shall be lawful for any tenant (whatever, his interest), with the like con- sent, to accept such enfranchisement. And it is also enacted, that even independently and in the absence of any mutual agreement upon the subject, it shall be law- ful for any copyhold tenant — other than one who holds only for life or lives or years, without right of renewal — or for any copyhold lord, to require and compel enfranchise- ment, — ^the amount, nature and particulars of the com- pensation for the manorial rights being ascertained and awarded (unless the parties can agree) under the direction of the Copyhold Commissioners (o). It is also provided, that the expense of a compulsory enfranchisement shall be borne by that party (whether the lord or the tenant) who shall have required the same {p) ; that upon every en- franchisement (whether compulsory or voluntary) being effected, the land shall become in all respects of freehold tenure {q), and cease to be subject to any particular custom whatever ()•) ; but that, on the other hand, no compulsory enfranchisement shall compulsorily affect any right as to mines or minerals; or any right of fair or market ; or in respect of game, fish, or fowl (s) ; or, since the 16th September, 1887, the lord's right of escheat {t). (o) 15 & 16 Viot. u. 51, ss. 1, 7 ; rally Scriven on Copyholds, 6th 21 & 22 Viot. e. 94, s. 6. See ed., by Brown, pp. 284—298 ; also Iiingwood V. Gryde, Law Eep., 2 Brown's Copyhold Enfranohise- C. P. 72. ment Acts. (ij) 16 & 16 Viot. 0. 61, s. 30. (r) 15 & 16 Viot. c. 51, b. 34. Such expenses may be charged on But as to gaveliiud laud in Kent, the manor or on the land enfran- vide sup. p. 616, n. chised. (21 & 22 Vict. c. 94, s. 24.) (s) Sect. 48. (?) See Brabant ii. WiJson, Law (<) 50 & 51 Vict. c. 73, s. 4. Eep., 1 Q. B. 44 ; and see gene- ( 619 ) CHAPTER XXIII. OF INCOKPOREAL HEREDITAMENTS, CALLED ALSO " PURELY INCORPOREAL " HEREDITAMENTS. Incorporeal hereditaments, accordmg to the arrangement formerly laid down, now present themselves for our con- sideration (a). In the widest sense of the word, an incor- poreal hereditament is first of all not the object of the bodily senses, — a thing incapable of being touched, — whence it is called incorporeal; and secondly, it is a hereditament, that is to say, something descendible to heirs (as distinguished from executors or administrators) ; and it may be (but rarely is) personal property, e. g., in the case of a personal annuity descendible to heirs (6) ; most usually, — and, in fact, in almost all cases, — it is real property, and may consequently with propriety be defined as a right annexed to, or issuing out of, or exercisable within, a hereditament corporeal and real(c). Thus, a man may have a right of common of pasture for his cattle, or a right of way (both of which are incorporeal hereditaments) to be exercised over the land of another person; and these rights [a) Vide sup. p. 172. and when tlie term " incorporeal {b) Co. Litt. 20 a. hereditament" is used in this last- . (c) lb. 6 a, 20 b; Plowd. 170. mentioned sense, then the phrase The term "incorporeal heredita- "purely incorporeal heredita- ment" has been also applied so as menta " is a oonTenient phrase to include remainders and reversions to denote the incorporeal here- (as distinct from estates in posses- ditameuts ■vrhich are the subject sion) in corporeal hereditaments of consideration in this chapter. (Hale, Anal. ; 2 Sand. Uses, p. 39) ; 620 BK. II. OF RIGHTS OF PROPERTY. ^PT. I. THINGS REAL. are incorporeal, that is to say, intangible, althougli the profits produced by their enjoyment or exercise may be (and usually are) both corporeal and tangible; as, for example, the grass, which is the fruit or product of the right of common of pasture. Incorporeal hereditaments consist for the most part — though, as we shall see hereafter, not exclusively — of rights in alieno solo; and these are generally either profits a prendre, such as the right to feed cattle, or to take fish, and the like ; or easements, and which are otherwise called privileges without profit, such as a right of way over the land of another man {d). Incorporeal hereditaments include (amongst other species not requiring specific notice) advowsons, tithes, commons, ways, watercourses, lights, offices, dignities, franchises, corodies, pensions, annuities, and rents (e). But for the discussion of many of these subjects, places more distiactly appropriate will be found hereafter ; and therefore in the present chapter we shall direct the reader's attention to the fol- lowiag heads only: — commons, ways, watercourses, lights, franchises, and rents (including annuities) (/). I, Common (or right of common) is a profit which a man hath in the land of another, as to pasture beasts thereon, to catch fish, to dig turf, to out wood, or the ((2) As to this distinction, see 2 & chises, liberties, villeins, dignities.'" 3 Will. 4, 0. 71 ; Robins v. Barnes, (/) Advowsons and tithes are Hob. 131 ; Peers v. Lucy, 4 Mod. hereafter discussed as part of the 365 ; Bailey v. Appleyard, 8 Ad. & law relating to the church (vide 'EX. 167 ; Eace v. Ward, 4 EU. & post, bk. rr. pt. n. o. m.), where Bl. 702. In the case last cited, it also some mention of corodies will was held, that the right of drawing be found ; offices and dignities are off water from a well or spring in hereafter considered as part of the alieno solo was an easement, and not law relating to the civil govem- a profit. ment (vide post, bk. rv. pt. i. («) 2 Bl. Com. 21. The enume- cc. rs., x.) ; and with respect to all ration in Hale's Analysis (p. 48), incorporeal hereditaments of these is as follows : — " Rents, services, peculiar species, see the specific tithes, commons, and other profits in titles in Cowell's Interpreter. alieno solo; pensions, offices, fran- CHAP. XXIII. — OF INCORPOREAL HEREDITAMENTS. 621 like {g). And the right derives its name from the com- munity of interest which thence arises between the claimant and the owner of the soil, or between the claimant and other commoners entitled to the same right; all which parties are entitled to bring actions for injuries done to their respective interests — and that both as against strangers and as against each other (A). There are five sorts of common — common of pasture, common of piscary, common of turbary, common of estovers, and common in the soD.. 1. Common of pastiire is the principal and most fre- quent sort, being the right which a man has to feed his beasts on another's land ; and it is either appendant, appur- tenant, because of vicinage, or in gross (?). Common of pasture appendant is the privilege belonging to the owners or occupiers of arable land holden of a manor, to put upon the wastes of the manor (usually called commons) their commonable beasts {k) ; that is, such beasts as are necessary either for the ploughing of land or for its manuring, viz. horses and oxen, cows and sheep {I). This is a matter of universal right (m) ; and it originally arose in this manner, that where a lord having a certain extent of waste ground, enfeoffed any one of a parcel of arable land to hold of his manor in socage, for services to be rendered, it was found necessary to allow the feoffee to (ff) 2 Bl. Com. p. 32. As to this (?) Year Book, 37 Hen. 7, 34 ; definition, see Lloyd «. Earl Powis, P. N. B. 180; 4 Vin. Ab. in tit. 4 Ell. & Bl. 485. Com. (P.). Swine, goats, geese, (A) See Eobert Marys' s case, 9 and the like, are not commonable Rep. 113 ; I Saund. by Wms. 346 ; animals, as " not being necessary Smith V. Earl Brownlow, L. R., " to plough or compester the soil " Si Eq. 241 ; Warrick v. Queen's (Bro. Ab. tit. Com. 13 ; Fin. Law, College, Oxford, L. R., 6 Ch. App. 56 ; Co. Litt. 122 a) ; but as to 716 ; SoriVen on Copyholds, 6th ed. swine, and the right of pannage for hy Brown, pp. 319, 320, 378, 379. their support, see Ch£ton ». Cor- (i) Co. Litt. 122. poration of London, 7 Ch. D. 562. (*) As to the waste of a manor, M 2 Bl. Com. 33 ; 1 Rol. Ab. •vide sup. p. 216. 396, 1. 44 ; Co. Litt. nbi sup. 622 BK. II. OF BIGHTS OF PROPERTY. — PT. I. THINGS REAL. have cominon of pasture in the waste ground, as incident to his tenancy ; for he could not plough or manure his own land without beasts, nor could he sustain the beasts upon it, while it was sown with com (w). From this of course it follows, that it is only in respect of arable land that cominon appendant can be claimed (o) ; though it may be claimed by that name, as appendant to a farm in fact containing pasture at the present day ; for the land shall be presumed (where there is usage to sustain the claim) to have been originally arable {p). It follows, also, that common appendant is incapable of being created at the present day [q) ; for all manorial tenure must have had existence before the passiug of the statute of Quia empiores, in the eighteenth year of Edward the first (r). Common appurtenant, frequently confounded with com- mon appendant (s), ariseth from no connection of tenure, nor from any absolute necessity ; but may be annexed to lands in other lordships, or extend to other beasts besides such as are generally commonable {t) ; as to hogs, goats, geese, or the like (m). This, not arisiag from any natural propriety or necessity, like common appendant, is not therefore of general right, but can only be claimed by grant, or by the long usage of particular persons to enjoy the same («) ; which latter title is commonly called a title by prescription ; and is supposed by the law to be founded on a special grant or agreement originally made for this purpose. [Common because of vicinage, or neighbourhood, is where («) Tyrmgham's case, 4 Hep. («) See Bennett e. Eeeve, 'Willes, 37 a ; Co. Litt. 122 a ; Bennett v. 232. Eeeve, Willes, 231 ; Hist. Eng. (t) Saeheverill v. Porter, Oo. Law, by Eeeves, vol. i. p. 262. Oar. 482 ; 1 W. Jones, 397, S. C. (o) 1 Eol. Ab. 397, 1. 28, 29. («) Vide sup. p. 621, n. (p) Bao. Ab. Common, (A. 1). {x) Tyringham's case, 4 Eep. (?) 1 Eol. Ab. 396, 1. 42 ; Tear 36 b ; Cowlan n. Slack, 15 East, Book, 26 Hen. 8, 4 a. 108 ; Morley v. Cliffoi-d, 20 Ch. (r) Vide sup. p. 235. Div. 753. As to title by prescrip- tion, vide post, pp. 655 et seq. CHAP. XXIIl. OF INCORPOREAL HEREDITAMENTS. 623 [the mhabitants of two townsHps, ■wMoli lie contiguous to each other, have usually intercommoned with one another ; the beasts of the one straying naturally into the adjoining wastes of the other, without any molestation from either. This, indeed, is only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits ; and therefore either township may inclose and bar out the other, though they have intercom- moned time out of mind. Neither hath any person of one town a right to put his beasts originally into the other's common : but if they escape from the one common and stray into the other and adjoining common of themselves, the law winks at the trespass (y).] In close connection with this, and substantially of the same kind, is the right de- scribed in the books as common of shack — or the right of per- sons occupying lands, lying together in the same common field, to turn out their cattle after harvest to feed pro- miscuously in that field (z) . Indeed, this kind of common, which in the beginning was but in the nature of a pasture " because of vicinage," and founded on the same reason {a), has now long since in many parts of the country insen- sibly changed its nature ; and become, by the force of custom, a right so fixed, that even though the owner of any particular parcel should assume, merely on his own authority, to inclose his land in severalty, it would still continue subject to the antient rights of the intercom- moners (i) ; and the right may properly be classed imder the head of common appurtenant (c). Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man's person, being granted to him and his heirs by (y) Co. Litt. 122 a ; Heath v. Aid. 710 ; Williams on Eights of Elliott, 4 Bing. N. 0. 388 ; Jones Common, pp. 67, 68. V. Robin, 10 Q. B. 581 ; Commis- (a) Corbet's case, ubi sup. eioners of Sewers v. Glasse, L. E., (*) Ibid. 19 Eq. 160. (") H'i^- -^ *° lot-meads or (z) Corbet's case, 7 Eep. 6 ; common meado-ws, see Co. Litt. 4 a. Cheesman v. Hardham, 1 Bam. & 624 BK. 11. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. deed ; or it may be claimed by prescription (d) y it is a separate inheritance, entirely distinct from any other land that may be vested in the person to whom the right of common belongs, and apparently although he should not have any other land at all. Common of pasture, of whatever kind, may, in respect of time, be either limited or unlimited ; that is, may either be confined to particidar seasons of the year, or last all the year round (e). As to the number of beasts to be turned on, the right is in general subject to restriction ; for all commons (except those in gross) must be either claimed in respect of some number in particular, or at least in such manner as tends to limit the number, as for all cattle levant and eouchant on the land to which the common is appendant or appurtenant; that is, for so many as the land is capable of maintaining during the winter. And a claim subject to no limitation of either kind, (except perhaps in the case where an express grant to that effect could be shown,) would be void (/). But with respect to a common in gross, it would seem that it may be either limited to a particular number, or be absolutely unlimited ; which is called a common without stint, or sans nombre {g). 2, 3. Common of piscary is a liberty of fishing in another man's water — as common of turbary is a liberty of digging turf upon another man's groimd {h). And with {d) 2 Bl. Com. 34. And see a common in gross can be sans Shuttleworth v. Le Pleming, 19 nombre, 1 Savmd. 346. But see Co, C. B., N. S. 687. Litt. by Harg. ubi sup. u. (5). (e) Bl. Com. nbi sup. We may observe here, that the (/) 1 Saund. by Wms. 28 b, n. term sans nombre is sometimes ap- (4) ; Bennett v. Reeve, Willes, 231 ; plied to the case of common for Benson v. Chester, 8 T. B. 396 ; cattle levant and eouchant, Saund. Cheesman v. Hardham, 1 Bam. & by Wms. tibi sup. But this is not Aid. 711. As to the number of the sense in which it is used by beasts in the case of common be- Lord Coke. cause of vicinage, see Corbet's (A) Co. Litt. ubi sup. ; "Wilson v. case, 7 Rep. 5. Willes, 7 East, 121. See Peardou {g) Co. Litt. 122 a ; How ». v. TJnderhill and others, 20 L. J. Strode, 2 Wils. 274 ; 3 Bl. Com. 237, (Q. B.) 133. 239. It has been denied that even CHAI*. XXIli. or INCORPOREAL HEREUITAMESTS. 625 respect to common of turbary, in particular, it may be remarked that, like common of pasture, it may be either by grant or prescription ; and may be either appurtenant or in gross ; but it is usually claimed as appurtenant, and by prescription ; and as to a common of turbary of this kind, we may notice that it cannot be claimed as appurtenant to land, but only to a house (i) ; and it authorizes not the taking of turf except for the purpose of using the same as fuel, in the particular house to which the right is an- nexed (k). 4. [Common of estovers or estouviers (from estoffer, to furnish), is a liberty of taking necessary wood, for the use or furniture of a house or farm, from off another man's land (/) ; and, like common of pasture, it may be claimed either by grant or prescription. These several species of common, when originally estab- lished in our law, had all reference, no doubt, to the same object as common of pasture, viz. the maintenance and carrying on of husbandry ; common of piscary being given for the sustenance of the tenant's family; common of turbary for his fuel ; and common of estovers for repairing his house, his instruments of tillage, and the necessary fences of his grounds. 5. In addition to the above-mentioned rights of common, there is also common in the soil; which consists of the right of digging for coals, minerals, stones, and the like {m) ; and this last species, and common of turbary, bear a re- semblance to common of pasture in many respects, though in one point they go much further : common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually; while common of (») Tyringham's case, i Rep. (/) As to estovers, vide sup. 37 a. ' p. 257. (i) Valentine v. Penny, Noy, (w) Co. Litt. 41 b, 122 a ; andsee 145; andseePeppini). Shakespear, Cooke on the Law of Eights of 6 T. R. 748. Common, pp. 8, 37 (2nd edit.). VOL. T. S S 626 BK, II. OF RIGHTS OF PROPEETY. — PT. I. THINGS REAL. [turbary, and of digging for coals, and the like, are a right of carrying away the very soil itself. By the Statute of Merton (20 Hen. III. c. 4) the lord of a manor might inclose against common of pasture (w), though not against common of estovers or of turbary (o), so much of the waste as he pleased, for tillage or wood ground — provided he left common sufEcient for such as were entitled thereto (p). This iaolosure, when justifiable, is called in law "approving," — an antient expression, signifying the same as "improving" (q). And this right is considered as applying equally to any owner of the waste, though he may not fall within the description of lord of the manor (?■).] But no one may now approve even against common of pasture, without first giving one month's notice of his intention to do so by advertisement in the local papers and otherwise (s). But the inclosure of common fields and waste lands, and the consequent extinction of common rights therein, are objects of so much importance to agricultural improve- ment, that they were not left in modem times to depend on this antient statute ; but were introduced very gene- rally, throughout entire manors and parishes in almost every part of the kingdom, by force of local acts of parlia- ment, passed from time to time for the purpose. And in aid of this practice was passed the statute 41 Geo. III. c. 109, commonly called the " General Inclosure Act," to consolidate a number of regulations, and to make them applicable to every case of local inclosure, so far as the («) And see 13 Edw. 1, o. 46 ; 3 Patriots. Stubbs, 9 Mee. &W. 833 ; &4 Edw. 6, 0. 3 ; 29 Geo. 2, o. 36 ; Lake v. Plaxton, 10 Exch. 196 ; 31 Geo. 2, 0. 41 ; 13 Geo. 3, o. 81, Smith v. Brownlo-w, Imw Rep., and tbe statutes cited in footnote (») 9 Eq. Oa. 241 ; Warrick v. Queen's on p. 627. CoU. Oxford, ib. 10 Eq. Oa. 105 ; (o) 2 Inst. 87; Bateson ». Green, and Soriven on Copybolds, 6th.ed., S T. E. 416 ; 1 Saund. by Wms. & by Brown, pp. 307—318. Pat. 363 b, n. {t) ; Arlett v. Ellis, {g) 2 Inst. 474. 7 Bam. & Cress. 369. ' (?•) Glover v. Lane, 3 T. E. 445. {p) Arlett V. Ellis, ubi sup. ; (s) 39 & 40 Vict. c. 56, b. 31. • CHAP. XXllI. — OP INCOKPORBAL HEREDITAMENTS. 627 particular Inclosure Act contained no provision to tte contrary {(). It is not, however, merely by force of local Acts, or of the regulations contained in 41 Geo. III. c. 109, thus connected with them, that improvements of this descrip- tion are now effected ; hut they are carried on under the provisions of certain statutes known as " The Inclosure Acts," of which the chief is the 8 & 9 Vict. o. 118, passed in the year 1845 (m). By this Act (which was in substitution for a previous one on the same subject, the 6 & 7 Will. IV. c. 115), after reciting that " it is " expedient to facilitate the inclosure and improvement " of commons and other lands, subject to rights of pro- " perty which obstruct cultivation and the productive em- " ployment of labour ; and to facilitate such exchanges " of lands, and such divisions of lands intermixed or "divided into inconvenient parcels, as may be beneficial " to the respective owners ; and to provide remedies for " the defective or incomplete execution, and for the non- " execution, of powers created by general and local Acts " of inclosure, and to authorize the revival of such powers " in certain cases " — an extensive and elaborate system of regulations is laid down with reference to these several pur- poses {v) . We can attempt no more, however, in this place, ■{t) See Doe v. Spencer, 2 Exoh. moneys paid on a compulsory 692. taking of the commonB). (m) This Act has been amended (v) As to exchanges and partitions hy 9 & 10 Vict. 0. 70 ; 10 & 11 Vict. of lauds nnder the provisions of o. Ill ; 11 & 12 Vict. c. 99 ; 12 & 13 the Inclosure Acts, see 8 & 9 Viet. Vict. c. 83 ; 14 & 15 Vict. u. 53 ; o. 118, s. 147 ; 9 & 10 Vict. c. 70, 15 & 16 Vict. u. 79 ; 17 & 18 Vict. s. 9 ; 11 & 12 Vict. o. 99, ss. 13, 14 ; u. 97 ; 20 & 21 Vict. 0. 31 ; 22 & 23 12 & 13 Vict. u. 83, s. 7 ; 17 & 18 Vict. 0. 43 ; 31 & '32 Vict. c. 89 ; Viot. c. 97, ss. 2, 3 ; and 20 & 21 39 & 40 Vict. o. 66 (" The Eegxda- Viot. c. 31, ss. 4—11. It is to be tion of Commons Act, 1876"); 41 observed that both an exchange & 42 Vict. 0. 56 ; 42&43 Viot. c. 37; and a partition may now, under and 46 & 46 Vict. c. 15 (which these Acts, take place on the appli- last mentioned Act contains provi- cation of parties interested, even in sions as to the compensation- cases where no proceedings for an ss2 628 UK. II. OF EIGHTS OF FROPEETY. — PT. I. THINGS EEAL. than to give a summary statement of the general principle of the Act ; which is to estahlish a hoard of commissioners under the denomination of " The Inclosure Commissioners for England and Wales " («), who are empowered — on the application of persons interested to the amount of one-third of the value of the lands subject to be inclosed (y), and provided the consent of persons interested to the amount of two-thirds of the value of the land, and of the lord of the manor (in case the lands be waste of a manor), be ultimately obtained, — to inquire into the case, and to report for the information of parliament with regard to the expediency of making such inclosure (z) . And if thereon an Act be passed to the effect that such inclosure be proceeded with, the allotment and inclosure of the lands take place accordingly, — the proceedings being conducted by the aid of a valuer inelosure are pending, or where the lands are not subject to be in- closed. See Minet v. Leman, 24 L. J., Ch. 545. [x) As to the board of wMoh these commissioners now form part, vide sup. p. 615, n. [g). (y) As to the persons deemed "interested" within the meaning of 8 & 9 Vict. 0. 118, see sect. 16 of that Act. The description of lands suijeet to he inclosed given in the 11th section of the Act is as follows: — "All lands subject to any right of common whatever, and whether such rights may be exer- cised at all times, or only at limited times and seasons ; or subject to any suspensions or restrictions in respect of the time of enjoyment ; all gated and stinted pastures in which the property of the soil either is or is not in the owners of the cattle or other gates or stints ; all land held, occupied, or used in common either at all times or during any time or season, or periodically, and either for all purposes or for any limited purpose, and whether the separate parcels of the several owners of the soU shall or shall not be known by metes or bounds, or be otherwise distinguishable ; all land in which the property or right to the vesture or herbage, or any part thereof, during the whole or any part of the year, or to the wood or under- wood growing thereon, is separated from the property of the soil ; and all lot meadows and other lands, the occupation or enjoyment of the separate lots or parcels of which is subject to interchange among the respective owners in any known course of rotation or otherwise." (a) By 11 & 12 Vict. c. 99, s. 1, land not subject to inclosure may be submitted upon terms to the commissioners for inclosure, and it will be inclosed if the commissioners think that course beneficial. CHAP. XXIII. OF INCORPOREAL HEREDITAMENTS. 629 appointed for the purpose, and under the superintendence of the commissioners (a). The 8 & 9 Vict. c. 118, further declares, that imme- diately after such allotment and inelosure of the lands shall have heen made, or from such other time as shall be fixed after proper notice, the common or other rights, which it is the object of the inelosure to commute, shall be extinguished accordingly; and it directs that copies of the award (which is to be under the seal of the commis- sioners) shall be deposited with the clerk of the peace for the county, and also with the churchwardens of the parish, so that recourse thereto may be freely had by any person interested in the premises (b). It may be noticed, in concluding our remarks on this sub- ject, that by one of the group of Inelosure Acts to which we have referred, namely, the " Commons Preservation (or Regulation) Act, 1876," it is provided that an encroachment on, or inelosure of, a town or village green or recreation ground, having a known and defined boundary, is declared to be a public nuisance, and punishable by way of sum- mary conviction before the magistrates ; and that a civil jurisdiction is, by the same statute, given to the county court of the district to hear any case of illegal inelosure, encroachment on, or nuisance affecting any common made after the passing of that Act, and to grant injunctions or make orders of removal or abatement as may be required ; with an appeal from the order of the County Court to the High Court of Justice (c). II. Ways are the second species of incorporeal heredita- («) Allotments to the "indus- compensation for tillage in the case trious poor," commonly called of allotments and cottage gardens) ; " Poor Allotments," may be made and 50 & 51 Vict. c. 48 (as to allot- under 2 Will. 4, c. 42, and 45 & 46 ments for the labouring classes). Vict. c. 80 ; and they are regulated (4) 8 & 9 Vict. c. 118, s. 146. by the 36 Vict. ... 19. See Sutton (c) 39 & 40 Vict. c. 56, sB. 29, 30. Parish to CSburoh, 25 Ch. Div. 173. See also 41 & 42 Vict. c. 71, s. 3 ; See also 50 & 61 Vict. o. 26 (as to and 42 & 43 Vict, c. 37, 630 BK. II. OF EIGHTS OF PROPERTY. PT, I. THINGS REAL. ments whioh we propose to consider ; and by ways, we do not here mean highways, wMoh are common to the public, and which consequently belong to the division of public and not of private rights {d) ; but private ways, in which one man m'ay have an interest and a right, though another be owner of the soil of the ways. Such ways may be grounded on actual grant ; as when the owner of land grants, by deed, to another man the liberty of passing over his (the grantor's) land, to go to church, to market, or the like (e) : or they may be by prescription ; as if all the owners and occupiers of such a farm have long used to cross such a ground for such a particular purpose (/) : or by custom; as if a similar practice has obtained with respect to all the inhabitants of a certain hamlet {g) ; for this antient usage supposes an original grant, whereby a right of way was originally created. And upon whichever of these titles the right may stand, it is capable, like that of common, of being either appurtenant to some particular house or land, or in gross, and annexed to the person of the grantee ; but the existence of easements in gross has latterly been denied (A) ; and the correct view regarding easements so called in gross appears now to be to either regard them as mere Kcences, or else to find for them some possible legal origin, as having been originally appendant or appurtenant to some corporeal hereditament («). A right of way may also arise of necessity ; as if A. grants to B. a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives him a way to come to it (/) ; (d) As to highways, vide hk. iv. (/) See Clarke v. Oogge, Oro. pt. III. oh. vii. Jao. 170 ; Button v. Tayler, 2 (e) See Wood ». Leadbitter, 13 Lutw. 1487 ; Howton v. iFrearson, Mee. & W. 838. 8 T. E. 50 ; Morris «. Edgington, (/) As to title by prescription, 3 Taunt. 24 ; BuUard v. Harrison, ■vide post, p. 665. 4 Mau. & Sel. 392 ; HinohlifiFe ». (?) 2 Bl. Com. 36. Lord Kinnoul, 5 Bing. N. C. 24, (A) Eangeley w. Midland Rail. 25 ; Allan v. Gomme, 11 A. & E. Co., L. E., 3 Ch. App. 306. 759 ; Henning v. Burnet, 8 Exoh. (i) See Seriven on Copyholds, by 187 ; Skull ^. Glenister, 16 C. B., Brown, 6th ed., pp. 379, 380, N. S. 81, CHAP. XXITI. — OF INCORPOREAL HEREDITAMENTS. 631 for that is necessary to its enjoyment (k) ; and he may cross his land for that purpose without trespass {1} . In like manner a tenant at -wUl shall, after the determination of his interest by the lessor, have free entry, egress, and regress into the land, in order to cut and carry away the emblements ; for when the law gives a right, it gives everything necessary to the exercise of the right (w). III. Watercourses are the third species of incorporeal hereditaments. A watercourse may be defined, generally, as the right which a man has to the benefit of the flow of water ; and such right most commonly refers to a river or stream, the banks of which belong either to the claimant on both sides, or to him on one side, and to his neighbour on the other (w) : in which latter case, it may be remarked that, — unless indeed the river be navigable, for then the bed of it, so far at least as the tide of the sea flows, primd facie belongs to the crown (o), — the proprietor of each bank is considered as primA facie the proprietor also of half the land covered by the water ; that is, usque ad medium filum aquce (p). But a watercourse is distinguishable from the right of merely using the water flowing over the soil, which is incident as of course to the property in the soil itself. For the right to a watercourse consists in having the course of the water kept free from any interruption or disturbance (J) See Pomfret v. Bioroft, 1 in both cases, seems to correspond Wms. Saund. 321, n. 6 ; G-ayford with the Koman. As to this pro- V. Moflatt, Law Eep., 4 Ch. App. . position, see Taylor v. Whitehead, 133. Doug. 745. {I) Blackstone (vol. ii. p. 36) says {m) Co. Litt. 55 a, 66 a. As to that by the Law of the Twelve emblements, vide snp. pp. 259, 291. Tables at Rome, where a man had («) See Wright v. Williams, 1 a right of way over another's land Tyr. & Gran. 398 ; Wood v. Waud, and the proper road was out of 3 Exoh. 748. r^air, he might go over any part (o) Williams v. WUoox, 8 Ad. & of the land he pleased; and that El. 333. such was the estabUshed rule in {p) Hale, De Jure Maris, part i. public as well as private ways. c. 1 ; Wright ». Howard, 1 Sim. & He adds, that the law of England, Stu. 190 ; 2 Eol. Ab. 170. 632 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. to the prejudice of the claimant of the right, by the acts of persons from without and in parts not within his own terri- tory, — whether owing to a diversion of the water, or to obstruction of its flow, or to its pollution by any offensive commixture. This right belongs primd facie to every occupier of land over which a stream passes (q) ; for though running water, air and light are all publid juris, yet to a certain extent they are subject to appropriation by force of an actual occupancy (r) ; and he who is in possession of any soil, is primd facie in possession also of the free course of the streams which flow over its surface (s). But the right may be divested by express agreement between the parties interested ; or by loiig usage, which is evidence of some antient agreement of that description. And there- fore my general claim to have the water of such a stream flowing freely and without disturbance over my land, may be successfully opposed by my neighbour, if he can prove that, by some grant of mine or of my ancestors, he is authorized to keep up a mill or the like, and thereby to cause an obstruction in the flow of the stream — or if he can establish a title by long usage to do so. He has then by grant or by prescription a watercourse for such special purpose {t) ; to which the general right I might otherwise have had by occupancy has become subordinate («) ; and (?) Suryt). Piggott, SBulst. 340. see Lumb v. Beaumont, 27 Ch. See Embrey v. Owen, 6 Exoh. 369. Div. 356. [r] Canham v. Eiak, 2 Tyr. 166 ; {t} As to the title by presorip- Taylor v. St. Helen's Corporation, " tion, vide post, p. 655. 6 Ch. DiT. 264 ; vide sup. pp. 160, («) See Ma,son v. HiU, 3 Bam. & -168. Add. pp. 1, 304 ; Sampson v. Hod- {«) As to wells, or springs be- dinott, 1 C. B. (N. S.) 590 ; Kensit neath the ground, see Wood v. v. Great Eastern Kail. Co., 23 Ch. Waud, 3 Exch. 748 ; Race v. Ward, D. 566 ; 27 Ch. D. 122 ; Ormerod v. 4 EU. & Bl. 702; Chasemore v. Todmorden, 11 Q. B. D. 155; and Eiohards, 2 H. & N. 168 ; Acton as to artificial •watercourses, see V. BlundeU, 12 Mee. & W. 324 ; Arkwright v. GeU, 5 Mee. & W. and (where they have » defined 203 ; Magor v. Chadwiok, 11 Ad. channel or location underground) & Ell. 671. CHAP. XXIII. — OF INCORPOREAL HEREDITAMENTS. 633 whicli general right is sometimes called the natural right, the easement being some interference therewith. IV. Lights axe a fourth species of incorporeal heredita- ments {x) ; the term being used to express a man's right to have the access of the sun's rays to his windows, free from any obstruction by the occupier of adjoining land. The element of light, like that of water, is capable to a certain extent of appropriation by mere occupancy — for a man on his own land has a right to all the light which wiU come to him ; and may erect a house (even at the boundary line of his property, and so as to overlook his neighbour) with as many windows as he pleases {y). And by force of a grant, or prescription, he may become entitled to main- tain these windows in freedom from all obstruction (z). But on the other hand, in the absence of any grant, and before the period has elapsed which suffices for the esta- blishment of a prescriptive right to light, it is competent to the owner of the adjoining land in his turn to construct a wall or house on it, so near to the building erected by his neighbour, as to intercept the light, which the latter {x) As to "lights," otherwise 126; Moore v. Hall, 3 Q. B. D. "antient lights," see Aldred's 178; Plate Glass Co. ». Prudential case, 9 Kep. 58 b ; Cross v. Le-wis, 2 Assurance Co., 6 Ch. Div. 767 ; Bam. & Cress. 686 ; Moore v. Eaw- EusseU v. Watts, 25 Ch. Div. 569 ; son, 3 Bam. & Cress. 332 ; Garrit v. 10 App. Ca. 590. Sharp, 3 Ad. & El. 326 ; Hutchin- (y) As to the custom of Lmdon son V. Copestake, 8 C. B. (N. S.) with respect to lights, see Shadwell 102 ; 9 C. B. (N. S.) 863 ; Jones v. v. Hutchinson, 2 Bam. & Adol. 97 ; Tapling, 11 C. B. (N. S.) 283 ; 12 Wynstanly v. Lee, 2 Swanst. 333 ; C. B. (N. S.) 826 ; Clarke v. Clark, Salters' Company v. Jay, 3 Q. B. LawE«p., 1 Ch. App. 16 ; Yates v. 109 ; Cooper v. Hubhock, 12 C. B. Jack, ib. 295 ; Dent v. Auction (N. S.) 456 ; Yates v. Jack, ubi Mart, ib. 2 Eq. C. 238 ; Lanfranohi sup. V. Mackenzie, ib. 4 Eq. Ca. 421 ; (z) Blanchard v. Bridges, 4 Ad. Heath v. Buoknall, ib. 8 Eq. Ca. 1 ; & EU. 195 ; Swansboroughu. Coven- Aynsley v. Glover, ib. 18 Eq. Ca.. try, 9 Bing. 305 ; BuUersv. DicMn- 544 ; Haokett v. Baiss, ib. 20 Eq. son, 29 Ch. D. 155 ; Beddington v. Ca. 494 ; Smith v. Smith, ib. 600 ; Atlee, 35 Ch. D. 317. As to pre- Courtauld v. Legh, ib. 4 Exch. scription, vide post, p. 655. 634 BK. II. OF EIGHTS OF PROPERTY. ^PT. I. THINGS REAL. building would otherwise have received; for Ms right to erect edifices on any part of his own soil, is as clear as that of the first builder (a) . V. [Franchises are a fifth species of incorporeal here- ditaments. Franchise and liberty are used as synony- mous terms; and their definition is a royal privilege, or branch of the crown's prerogative, subsisting in the hands of a subject (J). Being therefore derived from the crown, franchises must arise from royal grant; or in some cases may be held by prescription, which, as has been frequently' said, presupposes a grant (c). The kinds of them are various and almost infinite ; we will here mention some of the principal, premising only that they may be vested either in natural persons or in bodies politic ; in one man or in many ; but the same identical franchise that has be- fore been granted to one, cannot be bestowed on another, for that would prejudice a former grant {d). To be a county palatine is a franchise vested in a number of persons («). It is likewise a franchise for a number of persons to be incorporated, and to subsist as a body politic, with a power to maintain perpetual succes- sion, and to do other corporate acts ; and each individual member of such a corporation is also said to have a franchise.] So there may be a franchise to have a baili- wick or liberty exempt from the sheriff of the county, wherein the grantee only and his officers are to execute all process (/) : and other franchises there are which are (a) Blanohard v. Bridges, nH App. Ca. 633. sup.; Moore v. Eawson, 3 Bam. & (d) 2 Roll. Ab. 191 ; KeUw. 196. Cress. 340 ; Bonner v. Great Wes- (e) As to counties palatine, vide tern Kail. Co., 24 Ch. D. 1. sup. p. 133. (S) Finoli, L. 164. The word is (/) See 13 & 14 Viet. c. 105, for used also in a difEerent sense, facilitating the union of liherties as in the expressions "parlia- with the counties in which they mentary franchise," "municipal are situate; and 21 & 22 Vict, franchise," &c. c. 22, for abolishing certain fran- (c) Co. Litt. 114 a; and see ohise prisons. Goodman v. Mayor of Saltash, 7 CHAP. XXIII. OF INCORPOKEAL HEREDITAMENTS. 635 frequently annexed to manors {g) ; as for a man to hold a court leet, in certain oases, among the tenants and residents of his manor (A). So there may be a franchise to have ■waifs, wrecks, estrays, treasure-trove, royal fish, and for- feitures («■) ; the nature of which will more particularly appear when we come to speak of the crown's preroga- tives (y) : to have a fair, market, ferry, or the Hke, — with the right of taking toU there {k) : or to have forest, chase, park, warren, or fishery. Among these there are many which belong, in point of arrangement, to other parts of the present treatise; but to others more particular notice is due in this place. 1. And, first, as to fairs, markets, and ferries. A man may have a right to hold a fair or market, or to keep a boat for the ferrying of passengers ; and this either by Act of Parliament, by royal grant, or by prescription (/). But no other title than these will suffice (w) ; for no fair, market, or ferry can be lawfidly set up without licence from the crown (w). On the other hand, a man may, imder such titles, lawfully claim to be lord of a fair or market, though he be not the owner of the soil of the (j') As to manors, vide sup. Act, 1847 "), consolidates into one p. 215. statute certain provisions usually (A) As to a court leet, vide post, inserted in such Acts. bk. VI. c. XIV. {m) As to the days for holding (i) Blaokstone (vol. ii. p. 37) fairs and markets, see 27 Hen. 6, adds "deodands" to these instances c. 5, and 36 & 37 Vict. o. 37. As of franchises ; but by 9 & 10 Vict. to Greenwich market, see 12 & 13 0. 62, deodands are abolished. As Vict. o. 28. As to a metropolitan to their nature, vide post, bk. iv. market in lieu of Smithfield, see pt. I. c. vii. 14 & 15 Vict. u. 61. As to pre- {j) Vide post, bk. iv. pt. i. c. vi. venting unlawful fairs in the (A) As to the tolls in fairs or metropolitan police district, see markets belonging to the croMJM, see 31 & 32 Vict. c. 106. As to the 15 & 16 Vict. 0. 62, s. 6. Secretary of State's power to {I) 2 Inst. 220 ; Trotter v. Harris, abolish certain fairs, see 34 & 35 2 T. & J. 285. Fairs and markets Vict. a. 12. are often established, or at least (») 2 Inst. 220 ; K. x/. Marsden, regulated, by Act of ParUament; 3 Burr. 1812 ; Willes, 512, (n.) ; and the 10 & 11 Vict. c. 14 (called Com. Dig. Piscary, B. ; Hale, de " The Markets and Fairs Clauses Jure Maris, part i. u. 2. 636 BK. II. OF KIGHTS OF PROPERTY. — PT. I. THINGS REAL. place whereon it is lield (o) ; or to be tlie proprietor of a ferry (p), thougk lie be not the owner either of the water over which it is exercised (q), or of the land on either side of the river (r) ; but, in such oases, he must possess over the soil such rights, at least, as will authorize him to embark and disembark his passengers thereon (s). The right to take toll, also, from the customers, is usually — though in the case of a fair or market not necessarily — a part of the privilege {t) ; and the tolls of a fair or market are due either in respect of goods sold there (that is, from the seller, not the buyer), or for stallage or piokage, or the like, in respect of stalls or poles fixed in the soil (m). But the right of the crown to authorize the collection of tolls is viewed by the law with a salutary jealousy; so that no burthen of that kind can be imposed on. the public, unless it have had a reasonable commencement (x) ; that is to say, unless it be founded on an adequate consideration, as between the public and the grantee : which consideration, in the case of a fair or market, is the duty incumbent on the grantee to provide ground for the purpose, and to regulate the proceedings ; in that of a ferry, to keep up a boat for passage over a stream not otherwise fordable (y). And it is also essential that the burthen be reasonable in its amount (s) ; for where the tolls granted are outrageous, the franchise is illegal and void (a). It is, however, to be (o) Bao. Ab. rairs, &o. D. n. [a) ; {t) Heddy v. Wheelhouee, Cro, Mayor of Northampton i>. Ward, 2 Eliz. 558, 592 ; Lord Egremont v. Stra. 1238; 1 "Wils. 107; but see Saul,6Ad. &E1.924; K.w.Starkey, per Littledale, J., E. v. Staikey, 7 Ad. & El. 106. 7 Ad. & E. 106. («) 2 Inst. 219. {p) See Newton ». Gubitt, 12 C. {«) 2 Bl. Com. 37; Mayor of B., N. S. 32. As to antient ferries, Nottingham v. Lambert, Willes, see also Letton -ii. Groodden, Law 116. Eep., 2 Eq. Ca. 123. (y) Heddy v. Wheelhouse, Cro. (?) Com. Dig. in tit. Piscary, B. Eliz. 558, 592. ()■) Peter v. Kendal, 6 B. & 0. («) lb. ; 2 Inst. 219. 703. ( Inst. 293, 294. In 4 Inst. 319, the forests in England are said to number sixty-nine. 640 BK. 11. OF RIGHTS OF PKOPEKTY. PT. I. THINGS REAL. vested in a subject {y) ; for if tlie sovereign grants a forest to a private person, witli words expressly authorizing the administration of forest law there, the grantee will have the franchise of a forest to its full extent, with all the appropriate courts and officers (%) ; and a forest is a right which the owner thereof (whether sovereign or subject) may have either in his own lands or in the lands of another («) : and in this respect it differs from a right of common, and the other incorporeal hereditaments above described; for these rights of common, as they issue out of the soil, cannot exist in the same man who is owner of the soil itself, (the latter title superseding all inferior claims like these,) and are consequently rights which a man can claim to exercise only in aUeho solo {b) ; but a forest, and indeed all franchises in general, are inheritances collateral to the ownership of the land (c), and may be claimed by a man either in pvoprio solo or in alieno solo {d). The owner of a forest is also considered (notwithstanding the general rule that title cannot be made to things fercB natures) as having a qualified property in the wild animals of chase and venary there found, so long as they continue there ; and no other person can lawfully take them within those precincts, or chase them from thence and take them in other ground (e). But if a wild animal strays from the forest, it ceases to be the property of the owner of the franchise, and wiU belong to the first taker (/). A chase is a franchise granted by the crown to a sub- ject, empowering the latter to keep for his diversion, (y) Co. Litt. 233 a. (J) See Lloyd v. Earl Powis, 4 El. («) Case of Leicester Forest, Cro. & Bl. 485. Jao. 155 ; see Coleridge's Black- («) 4 Inst. 318. stone, vol. ii. p. 38, n. (19). {d} 2 Bl. Com. 38. (ffl) 4 Inet. 301, 318 ; Lord Dacre (e) Sutton v. Moody, Ld. Baym. V. Tebb, 2 Bl. Rep. 1151 ; Sutton 251 ; 2 Bl. 394, 395, 419. 1). Moody, Ld. Eaym. 251 ; Robin- {/) 12 Hen. 8, f. 10, cited 2 son V. Duleep Singh, 11 Ch. Div. Christian's Black. 419, n. ; and see 798. Keilw. 30 ; Sutton v. Moody, nbi sup. CHAP. XXlir. — OP INCORPOREAL HEREDITAMENTS. 641 within a certain precinct so called, the wild animals of chase, which in a legal sense are the same with those to which the right of forest extends (^) ; but the franchise does not authorize the establishment of forest law within such precinct {h). A park properly signifies an inclosure, and is popularly applied to any ground which a gentleman chooses to sur- round with a wall or paling, and to stock with a herd of deer ; but in the technical sense in which we now use the term, a park is nearly equivalent to a chase, being in effect no other than a chase inclosed (»). A free-warren is a similar franchise (A), granted by the crown to a subject, for preservation or custody of beasts and fowls of warren ; which, according to Lord Coke, are " hare, coney, roe," " partridge, quail, rail, &c.," " phea- " sant, woodcock, &c," "mallard, heron, &c." (/). To this, as well as to chase and park, apply generally the principles which have been before noticed in respect of a forest ; with this exception, however, as to a park, that it is incapable of being claimed in alieno solo, and can exist only in land belonging to the owner of the franchise him- self ; although something analogous to the right of park may possibly be reserved by the owner on the sale of his land (m). (ff) Co. Litt. 233 a. Patrick v. Greenway, 1 Saund. 346 ; (A) Manw. 52 ; 2 Bl. Com. 416. PaimeU v. MiU, 3 0. B. 625. (i) Man-w. 52 ; 2 Bl. Com. 38. (?) Co. Litt. 233 a. Manwood, (A) See Bro. Ab, tit. Warren ; on the other hand, says, " There Dyer, 30 b; Co. Litt. 2 a, 114 b; "are only two beasts of warren, Keilw. 148, n. ; Boulston v. Hardy, ' ' the hare and the coney, and but Cro. EUz. 548; Wadhurst v. " two fowls of warren, the phea- Damme, Cro. Jao. 46 ; Case of " santand the partridge."— Manw. LeioeBterPorest, ib. 155; 1 Saimd. 95; and see Barrington's case, 8 84, II. (3) ; Attomey-Greneral v. Bep. 138 b. It has been held that Parsons, 2 Tyrw. 223; Vere v. " grouse " are not birds of warren. LordCawdor, llEast, 568; Merest (Duke of Devonshire :;. Lodge, 7 V. Harvey, 5 Taunt. 442 ; Lord B. & C. 36.) Daore v. Tebb, 2 Bl. Eep. 1151 ; ('») 2 Bl. Com. 38, 39. VOL. I. T T 642 BK. n. OF RIGHTS OF PEOPERTY. — PT. I. THINGS REAL. A free fishery («), or the exclusive right of fishing in a public river, is also a royal franchise (o). In private rivers (viz. in thos6 not navigable), as the bed or soil, so the right of fishing, presumably belongs to the owners of the land on either side, and to them only(jo). But in those which are public, — that is, navigable, — ^wlule the bed (so far at least as the tide flows) appertains to the crown, the right of fishing belongs primd facie to the public at large {q). But in either public or private rivers, there may be a particular title in some individual, by which such presumptive right may be controlled ; and this may take pliace, in a public river, by force of some royal grant or some prescription entitling a private person and his heirs to the exclusive right of fishing therein (r) : a privilege called ia the books a "free fishery" (s). Grants of this description can no longer be made by the crown {t) ; being («) As to the lav of free fishery, see Hale, de Jure Maris, part i. 0. 4 ; Lord Fitzwalter's case, I Mod. 105 ; Warren v. Matthews, 1 Salk. 357 ; Smith v. Kemp, 2 Salk. 637; Carter v. Meroot, 4 Burr. 2162; Case of River Bamie, Davies, 55 ; Mamiall v. Fisher, S C. B. (N. S.)856; The Free Fishers of Whit- stahle V. Gann, 13 ib. 853. (o) See Seld. Mar. Glaus, i. 24 ; Dufresne, v. 503 ; Craig, de Jure Feod. II. 8, 16. [p) Hale, de Jure Maris, part i. u. 4 ; vide sup. p. 433. (j) Hale, ubi sup. co. 1, 2, 4. (r) As to public rivers, see Ward It. Cress-well, WiUes, 265 ; Mayor;' &c. .of Orf ord v. Richardson, 4 T. R. 437 ; 2 H. Bla. 182, S. C. ; Bagott «/. Orr, 2 Bos. & Pul. 472 ; BlundeU V. Catterall, 5 B. & Aid. 268; Williams v. Wilcox, 8 Ad. & E. 333. («) 2 Bl. Com. pp. 39, 40 ; Pearce v. Seotcher, 9 Q. B. D. 162 ; Neill V. Duke of Devonshire, 8 App. Ca. 135. There are in law, the three different terms of /reejfe/»«r)/, several fishery, and common of fishery or piscary (Smith v. Kemp, Salk. 637) ; and as to a " several fishery," see Holford V. Bailey, 8 Q. B. 1000; Marshall v. UUeswater Steam Navi- gation Company, 3 B. & Smith, 732; Carlisle ». Graham, Law Rep., 4 Exch. 361 ; Bristow v. Cormican, 3 App. Ca. 641 ; and see (as to fisheries generally) RoUe v. White, Law Rep., 3 Q. B. 286 ; audLecon- field V. Lonsdale, ib. 5 C. P. 657. (t) Bl. Com. ubi sup. ; Duke of Somerset v. Fogwell, 5 B. & Cress. 875. As to the re-grant of a former franchise of free fishery, when for- feited to the crown, see The Mayor of Colehestep v. Brooke, 7 Q. B. 386. CHAP. XXIII. — OF INCORPOREAL HEREDITAMENTS. 643 prohibited by King John's great charter (tf), and the second and third confirmations of it in the reign of his successor ; but the right of conferring them was con- sidered, (prior to these charters,) as one of the flowers of the prerogative {x) ; and it is from this origin that the Talidity of a free fishery at the present day must in every case be derived. Free fishery is a franchise, and is wholly different from the right of common of piscary formerly mentioned, the latter not being a franchise at all, but a right created by the grant of a subject {y) ; also, in a free fishery a man has a qualified property in the fish before they are caught ; in a common of piscary, he has no pro- perty till capture (z). yi. Benis (including annuities) are the last species of incorporeal hereditaments that we propose to notice. The word rent, reditus, signifies a compensation or return yielded periodically, to a certain amoimt, out of the profits of some corporeal hereditament, by the tenant thereof. First, it is yielded, that is, paid as a thing due ; and there- fore it is said, by the antient lawyers, to lie in render, in contradistinction to those incorporeal hereditaments, (as common or the like,) which the paxty entitled thereto is to take for himself, and which are, consequently, said to lie in prendre {a). Secondly, it is of certain amount, or that which may be reduced to certainty, by either party ; for certum est, quod certum reddi potest {b). Thirdly, it 'is payable periodically ; as yearly, or in every second, third, or fourth year, or the like (c). Again, it is considered as payable out of the profits of the land, and must conse- quently not be part of the land itself {d) ; wherein it diEEers («) Cap. 47, edit. Oxon. W 2 Bl. Com. 40 ; P. N. B. 88 ; (x) The right of making weirs in Smith v. Kemp, 2 Salt. 637. our pubUe rivers wag also restrained (») Burton, Oompend. 375. by Magna Charta and subsequent (S) Co. Litt. 142 a. statutes (see Williams v. Wilcox, {<>) lb. 47 a. 8 Ad. &E. 314). W lb. 141 b. 142. {y) "Vide sup. p. 624. TT 2 644 BK. II. OF RIGHTS OF SROPERTY. — PT. I. THINGS REAL. from an exception in a grant, wMoh is always part of the thing granted (e). Hence there cannot be reserved, by way of rent, the vesture or herbage of the la,nd demised (/) ; though there is no occasion for rent to be, (as it usually is,) a sum of money ; for spurs, capons, horses, corn and other matters may be rendered by way of rent(g'). Moreover, as ther general rule, it must issue out of hereditaments corpm'eal. Therefore, a rent cannot be reserved out of a common, a franchise, or the Kke (A). And, lastly, the person from whom it is due must be the tenant of the land ; but his tenancy may be either in possession, remain- der or reversion ; for a rent may be as well reserved upon the grant of a reversion or remainder, as on the conveyance of an estate in possession (*). There were known to the common law three manner of rents, viz. rent-service, rent-charge, and rent-seek {k). Bent- senke is where the rent accrues in connection with a tenure, attended (as tenure almost invariably is) by fealty or by fealty and other services {I) ; and this, whether the party to whom the rent is due be entitled to fealty, as having the reversion of the land out of which it issues, or as having the mere seigniory {m). Thus if A., seised iu fee, make a gift of land to B. in tail, — or demise to him for life, or years, — ^reserving a rent ; or if B. be seised in fee of a tenement holden of A. as lord of a certain manor, at a certain antient rent ; siioh rent is, in either case, rent- («) Howd. 13 ; 8 Rep. 71 ; Co. corporeal inheritance will be bind- Litt. 142 a. ing on the lessee, as a contract to (/) Co. Litt. ubi sup. pay so much money. (Cruise, Dig^. (^) lb. ; see Doe d. Benham, 7 Kents ; Musket ». Hill, 5 Bing. Q. B. 982. N. C. 694 ; Martyn v. WiUiamB, 1 (A) Co. Litt. ubi sup. 144 a, 47 a; H. & N. 817; and Aspden v. &Ub. Rents, 20. The sovereign, Seddon, I Exoh. Biv. 496.) however, by prerogative, and in (t) Co. Litt. 47 a, 142 a ; Bac. some cases a subject, by statute, Ab. Rent B. ; vide sup. p. 315. may have a rent issuing out of an {Jc) Litt. s. 213. incorporeal hereditament. (Grilb. {V) lb. ; Co. Litt. 122 a. Rents, 22.) And in every case, («») Vide sup. p. 315. the reservation of rent upon an in- CHAP. XXIII.— OF INCORPOREAL HEREDITAMENTS. 645 service : for it is due as from a tenant owing fealty to His lord {n). To rent of this description, the common law attached as of common right,— and independently of any express provision for that purpose between the parties (o), -the power of distress (p) • that is, the lord was entitled, m the event of the rents falling into arrear, to enforce pay- ment without legal process, by entering upon the land, and seizing the goods and chattels found thereon. The other two species of rent differ from rent-service, in having no connection with fealty. But more particularly-a rent- charge is where the owner of the rent has neither seigniory nor reversion, and can consequently claim no fealty; yet is entitled to distrain, nevertheless, by force of an express contract; as where a man by deed conveys to another his whole estate in fee simple, with a certain rent payable to him thereout, and adds to the deed a covenant or clause of distress; viz.— that, if the rent be in arrear, it shall be lawful to distrain for the same {q) ; or where a man by deed grants out of the land whereof he is seised, a certain rent payable to another, with a like clause of distress (r). In either of these cases the land is liable to the distress, not of common right, but by virtue of the clause in the deed ; and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it (s). As for a rent-seek {reditus siccus), it is («) If a man holds, subject to a " distraining always attended the rent, as tenant at will, such rent " fealty." See further as to the is not rent-service, for there is no law of distress, post, bk. v. c. i. fealty (vide sup. p. 290). The (y) 2 Bl. Com. 42 ; Litt. s. 217. lessor, however, may nevertheless (r) Litt. s. 218. distrain as of common right. (Co. (s) lb. s. 217. By 18 & 19 Vict. Litt. 57 b.) .0. 15, ss. 12 — 14, an annuity or (o) Litt. 8. 214. rent-charge granted after the pass- (p) Lord Chief Baron Gilbert ing of that Act (26th April, 1855), (On Eents, pp. 3, 6) remarks (ia otherwise than hy marriage settle- efleot) that distress for rent was a ment or will, for a life or lives, or mitigation of the old forfeiture for for any estate determinable on a life neglect to perform the services ; or lives required to be registered in and that therefore "the power of the Common Pleas ; and by 51 & 52 646 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. ■where the owner of the rent has neither seigniory nor reversion, nor any such express power of distress as above described. Thus, in either of the cases of rent-charge we have just mentioned, if no clause of distress were inserted in the deed, the rent wOuld be rent-seek (t). We must be careful, however, to distinguish here be- tween the two kinds of rent last above described and an annuity (which, unless charged upon some real estate, is a yearly sum chargeable only upon the person or upon the personal estate of the grantor) (m). Therefore, if a man by deed grant to another the sum of 201. per annum, without expressing out of what lands it shall issue, no land at all shall be charged with it, but it is a mere personal annuity {x) and does not belong to the class of things real ; though, (by an anomaly which has sometimes led to confusion,) a man may have an estate of inheritance in it ; that is, it may be made descendible to his heirs, while personalty in general can devolve only upon the executors or administrators (y). There are also other species of rents mentioned in the books ; which are, however, when examined, reducible to one or other of the three above enumerated. Rents of assize are rents at which the freeholders or copyholders of a manor have held under the lord from time immemorial (z).; [and they cannot be departed from or varied ; those of the freeholders being frequently distinguished as chief rents {reditus capitaks) ^and both sorts being indifferently denomi- nated quit rents {quieti reditus), because thereby the tenant was quit and free of all other services. When these pay- Viot. 0. 51, it now requires to he (t) Litt. ss. 217, 218. registered at the Office of Land («) Co. Litt. 144, 20 a, and n. (4),, Registry. By 22 & 23 Viot. c. 35, by Harg. ; Sollory ». Leaver, Law s. 10, the release from a rent- Eep., 9 Eq. Ca. 22 ; 44 & 45 Vict, charge of part of the land charged u. 41, s. 44. therewith does not now extinguish (a) 2 Bl. Com. 40 ; Co. Lift, the rent-charge (Booth *•. Smith, 147 a. 14Q.B.D.318;Bayntoni'.Morgan, {y) Co. Litt. 2 a, 20 a ; Aubin u. 21 Q. B. D. 101 ; and, on appeal, Daly, 4 B. & Aid. 69. 22 Q. B. D. 74.) («) 2 List. 19. CHAP. XXIII. — OF INCORPOREAL HEREDITAMENTS. 647 [ments were received in silver or white money, they were antiently called white rents, reditm albi, in contradistinction to rents reserved in grain or baser money, which were called reditus nigri, or black mail (a).] Quit rents, being connected with a tenure by fealty, are consequently rent-service ; from which it follows that the lord is entitled, as of common right, to distrain for them when they fall into arrear (h). Back rent is a term expressive only of the proportion a rent bears to the value of the tenement on which it is charged, or in respect of which it is reserved (c) : the rent being so termed when it is of the full value of the tene- ment or near it. A fee farm rent is where an estate in fee is granted subject to a rent in fee, of at least one-fourth of the value of the lands at the time of its reservation {d) ; and such rent appears to be called fee farm, because a grant of lands reserving so , considerable a rent, is indeed only letting lands to farm in fee simple, instead of the usual method of letting them for life or years. It results from former explanations, that such a rent, if created by a subject since the statute of Quia emptores, can never be a rent-service ; for no fealty can be due to the grantor (e) ; but it may be either a rent-seek or a rent-charge (/). These are the general divisions of rent; but though their correct apprehension is still of importance, the dif- ferences which formerly existed as to the remedies to be pursued in case of their non-payment, are, for practical purposes, nearly at an end ; for it has been provided by the stat. 4 Geo. II. o. 28, s. 6, that any rent-seek, rent oi assize, or chief rent, which has been duly answered or paid for a limited period prior to the date of that Act, or which (a) 2 Inst. 19. this statute ; it being in his opinion (i) 2 Watk. Cop. 191. essential to the definition of a fee lo) 2 Bl. Com. p. 43. farm rent, that it should be a rent- ((«) Co. Litt. 143 b ; Co. Litt. by service (Co. Litt. by Harg. 144 a, Harg. 144 a, n. (5). n. (}) ) ; but in this, he is evidently (e) Vide sup. p. 235. According mistaken. to Mr. Hargrave, a fee farm rent (/) Doug. 627, note (1) ; and see cannot be created by a subject since Litt. 217. 648 BK. II. OF RIGHTS OF PROPERTY. ^PT, I. THINGS REAL. shall at any time thereafter be created, — may be recovered by the remedy of distress in the same manner as if such rent had been reserved upon a lease {g). With respect to the manner of creating rents, the owner of land may either grant thereout a rent, or he may grant the land itself, subject to a rent {h). Eent-charge or rent- seek may be constituted in either of these ways ; rent*, service ia the latter only (»). [Rent is due and payable upon the land from which it issues, — ^that is, if no particular place be mentioned in the reservation {k). But in the case of the sovereign, the payment must be either to the crown officers at the Ex- chequer, or to a receiver ia the country {I). And, strictly, rent is demandable and payable before the time of sunset of the day whereon it is reserved (m), though some have said that it is not absolutely due till midnight (w).] By the common law, if the estate or interest of the person entitled to the rent came to an end, in the interval between one of the days of payment and another (as where it determined by death, supposing the lessor to have been tenant for Ufe), the periodical sum then accruing was entirely lost to him and his representatives (o) ; and sup- posing the rent itself not to determine, but to continue payable to some person in remainder or reversion, the whole sum accruing in respect of such interval would have belonged to that person, though the greater portion of such period should have elapsed in the time of his prede- cessor. But, in extension of some prior enactments, passed to amend the common law on this head, it has now been {g) See Musgrave v. Emmerson, (J) i Rep. 73. 16 L. J. (Q. B.) 174. The Agri- (m) Co. litt. 202 a; 1 Anders, cultural Holdings Act, 1883 (46 & 253 ; Aoooks v. Phillips, 5 H. & N. 47 Viot.o. 61), ss. 44—52, has 114; Tutton «. Darke, ib. 647. materially restricted the right of (») Seel Sannd. 287; Prec.Chano. distress. See bk. T. ch. i. infra. 565 ; Salk. 578 ; Lord BocMngham (A) Anon. v. Cooper, 2 Wils. 375. v. Penrice, 1 P. "Wms. 178. (i) See Litt. ss. 217, 218. (o) See Jenner v. Morgan, 1 P. (A) Co. Litt. 201 b. Wms. 392. CHAP. XXIII.— OF INCORPOBEAL HEKEDITAMENTS. 649 provided by « The Apportionmeiit Act, 1870 " (33 & 34 Vict. c. 35), tliat after tlie passing of tliat statute, all rents and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise), shall be considered as accruing from day to day, and shall be apportionahle in respect of time accordingly (^); that the apportioned part of the same shall be payable, in the case of a continuing rent, annuity, or other such payment, as soon as the entire portion of which it forms a part shall become due, and not before ; and in the case of a rent, annuity, or other such payment, determined by re-entry, death, or otherwise, as soon as the next entire portion would have been payable, and not before {q) :• and that aU persons entitled to the same and their respective representatives (and also the representatives and assigns of persons whose interests deter- mine with their own deaths), may recover such apportioned part as they might have done the entire portions, if entitled thereto respectively (r). The Act, however, contains a proviso, that the entire or continuing rent, including such apportioned part, shall be recovered by the heir or other person who, had the rent not been apportionahle, would have been entitled to the entire portion; and that such apportioned part shall be afterwards recoverable by action from such heir or other person, by the executors or other persons entitled under the Act to claim the same (s). There is also another kind of apportionment, as where the tenant imder a lease has been evicted of part of the {p) See Cattley v. Arnold, 1 J. (?) 33 & 34 Vict. c. 35, b. 3. & H. 651 ; WHtehead v. White- {r) Sect. 4. head, Law Eep., 16 Eq. Ca. 628; (s) The Act has no application to Capion V. Capron, ib. 17 Eq. Ca. annual sums {scil. premiums) made 288; In re Cline's Eatate, ib. 18 payable by any policy of assurance ; Eq. Ca. 213. The previous Ap- nor to any case in -which an express portionment Acts were 11 Geo. 2, stipulation has been made that no c. 19 • 4 & 5 Will. 4, 0. 22 ; 6 & 7 apportionment shaU take place. WiU. 4, c. 71 ; 14 & 16 Vict. c. 25 ; (Sects. 6, 7.) 23 & 24 Vict. 0. 164. 650 BK. II. OF BIGHTS OF PEOPEETY. — ^PT. I. THINGS EEAL. land out of whioli tlie rent issues, by a person having title paramount to tkat of the lessor ; or where part of it has been surrendered by the tenant to the lessor; or where the lessor has aliened the reversion as to part. In aU. these eases the rent must be apportioned (u) ; and so much of it only shall be payable to the lessor, as corresponds with the value of what is still held by the tenant under him; though where the tenant has been tortiously expelled by the act of the landlord himself even from a part of the premises only, there shall be no apportionment, but the whole rent will be suspended so long as the expulsion con- tinues («) . The doctrine of apportionment is not, it may be remarked, confined to rent, but applies to some other kinds of incorporeal hereditaments (y). For i£ a man, seised of forty acres of land, to which common of pasture is appur- tenant, aliene five acres of it to another, the aKenee will be entitled to common pro tanto ; that is, for all his com- monable cattle levant and couchant on the five acres (z). With regard to the remedies for the recovery of rent, including the doctrine of distress — ^these belong properly to a subsequent part of these Commentaries; where we shall treat of civil injuries, and the means by which redress for them may be obtained (a). Having thus taken notice of such particular iacorporeal hereditaments as appeared to be fit for the present to en- gage our attention, we shall now advert to some of the principal points of learning relative to this division of things real, considered generally, and without reference to -the individual species of which they are composed. In the first place, then, we may remark, that many (m) Co. Litt. 14:8 a; Bliss v. on lease (or of fine on renewal Collins, 5 Bam. & Aid. 876. thereof) reserved on hereditaments (x) Grilb. Kents, 178 ; Neale v. aoqtdred under the Church Bnild- 1 Mee. & W. 747 ; ing Acts, see 17 & 18 Vict. u. 32. Ba;3rnton v. Morgan, 21 Q. B. D. (z) Wyat Wild's case, 8 Eep. 101 ; and on app. 22 Q. B. D. 74. 78 b. (if) As to apportionment of rent (b) Vide post, bk. v. c. i. CHAP, XXIII. — OF INCORPOREAL HERBDITAMENTS. 661 incorporeal hereditaments are capable either of being annexed as an accessory to some hereditament corporeal or of existing independently, and per se ; being described, in the former case, as appendant or appurtenant, in the latter, as in gross (6). But to be connected as principal and acces- sory, things must be of a nature suitable to that rela- tion, and therefore corporeal hereditaments cannot be appendant or appurtenant to such as are corporeal, nor incorporeal (generally speaking) to incorporeal (c). Where, however, the connection of principal and ac- cessory exists, the effect is that the thing appendant or appurtenant wiU pass (without any particular mention of it) by any conveyance or alienation of the land to which it is annexed; and this whether the land be conveyed " with its appurtenances " or not {d). But if the principal be expressly conveyed without the accessory, or the acces- sory without the principal — as in some instances may be done — the accessory becomes thereafter, in either case, a thing in gross (e). Incorporeal hereditaments are not, in any strict and proper sense, the subjects of tenure, like those of the corporeal kind (/) ; but they satisfy, in general, the legal description of tenements, and are expressly held to be within the meaning of that word as used in the statute De donis, so as to be capable of being entailed {g). And where an incorporeal hereditament is appendant or appur- tenant, it wiU of course, in respect of the land to which it is annexed, be subject to all the rules of tenure. (J) Co. Litt. 121 b, 122 a. The Vent. 386 ; Plowd. 85, 168, 170 ; aceessorium of the civil law is that Capd v. Buazard, 6 Bing. 161. which answers test to our terms [d] Co. Litt. ubi sup.; Barlow w. of appendant 01 appurtenant. Co. Rhodes, 3 Tyr. 280. ; James ». Plant, Litt. by Harg. 121 b, n. (6). Lord 4 Ad. &E1. 749 ; et vide sup. p. 468. Coke remarks, "that appendants {e) Plowd. 381; Com. Dig. Ap- " are ever by prescription, but pend. and Appurt. (D.) ; 2 Saund. "appurtenants may be created, in 32. "some cases, at this day."— Co. (/) Co. Cop. 97; Co. Litt. 20 a; Litt. 121 b. Bao. Ab. Tenure (A). (o) lb. n. (7) ; Potter v. North, 1 (g) Vide sup. p. 243. 652 BK. II. OF BIGHTS OF PKOPERTY. FT. I. THINGS KEAL. The same estates may be had in incorporeal as in corporeal hereditaments, and in many respects they are upon the same footing with regard to title, or the manner in which estates therein may he acquired or lost. More particulaxly we may notice, that though the former subjects of property are intangible in their nature, yet they are substantially in the same predicament with the latter, even in regard to some of those laws of title which are founded upon an actual seisin or occupation. Thus with respect to descent, the rule of seisinafacit stipitem had the same application to things incorporeal as to coi-poreal (A) ; that is, it governed all descents which took place on a death prior to the 1st of January, 1834 — the date of the Inheritance Act (3 & 4 Will. IV. c. 106) (»■). For if a man who died before that day had what is equivalent to corporeal seisin in heredita- ments that were incorporeal and in gross, — ^if , for example, in the case of a rent, he had obtained the actual receipt of ■it^such constructive seisin made him the root of descent with respect to these hereditaments, though he was not himself the purchaser (A;). But upon successions since that Act, the rule which has been mentioned as to corporeal, obtains also as to incorporeal hereditaments, viz. that descent is in all cases to be traced from the purchaser {I). So, hereditaments of the latter as well as of the former description, fall within the doctrine of special occupancy {rn). For though it seems that at common law there could be no title by common occupancy to things of which no corporeal or actual seisin could be had, yet the heir might take as special occupant («) ; and incorporeal hereditaments are now expressly included in all the legislative provisions (h) Vide sup. p. 384. " tohim." (RatcUfEe's case, 3 Rep. (s) Ko descent prior to that day 42 a.) is within the operation of the In- (l) 3 & 4 "Will. 4, o. 106, ss. 1, 2; heritance Act; Tide sup. p. 378, n. vide sup. p. 381. (A) Co. Litt. 16 b ; but of Diff- (m) Vide sup. p. 430. nities, Lord Coke says a man can- («) Bearpark v. Hutchinson, 7 not by any Act "gain more actual Bing. 186 ; see 2 Bl. Com. 259. " possession than bylaw descended CHAP. XXIII. — OF INCORPOREAL HEREDITAMENTS. 653 with respect to estates pur autre vie, which we had occasion to notice in a former part of the work (o). But on the other hand, in some important particulars the law of title to incorporeal things differs frorii that which applies to things corporeal. For the former cannot in their nature pass hj feoffment, this implying, as we have seen, an actual livery {p). But they have always heen capable of passing by grant {q) ; and therefore they were said (like remainders and reversions of hereditaments cor- poreal) to lie in grant, and not in livery, scil., either a grant properly so called or a surrender by deed (»•), or any con- veyance operating under the Statute of Uses (s) ; for existing incorporeal hereditaments may be limited by way of use, and will be executed by that statute accordingly (t) ; and it has been provided by the 44 & 45 Yict. c. 41, s. 62, that easements (together with certain other liberties) may even be created de novo by way of use. Nor is it by grant alone that title may be made to an incorporeal heredita- ment ; for, first, rents may be created by reservation in a lease or other conveyance, as where a man seised in fee demises land to another for life or years, the latter yielding and paying for the same a certain sum of money (m). Again, there are certain incorporeal hereditaments which may be claimed by custom ; as for all the inhabitants of a certain hamlet to have a right of way over a certain field for a particular purpose {x). This species of title, however, is subject to a very important restriction, viz. that no man can in this way claim a profit d prendre in the land of (o) Bearpark ». Hutchinson, uW («) Vide sup. pp. 513 et seq. sup. ; vide sup. pp. 429 et seq. [t] 2 Sand. Uses, pp. 33, 49, 59, {p) Vide sup. p. 485. Ill ; sup. p. 364. (?) 2 Sand. Uses, 33, 36, 37. A («) Bao. A. Kent, C. ; Litt. s. grant, it will be recollected (vide 217 ; see "Doe v. Look, 2 Ad. & El. sup. p. 492), implies a deed. (See 705, 743 ; 'WicMiain v. Hawker, 7 Wood V. Leadbitter, 13 Mee. & W. Mee. & W. 72. 338 \ (a;) Coleridge'sBIaokstone,vol.ii. (r) See Co. Litt. 338 a. P- 36, n. (14). 654 BK. II. OF RIGHTS OF PROPERTY. PT. 1. THINGS REAL. anotlier (s) : and, acoordingly a custom for all tlie inliatit- ants of a certain hamlet to take from a private close, for tlie purpose of manure, sand drifted from the sea, was held to be bad in law (a). Besides these titles, there is also the claim by prescription, which applies to almost every kind of hereditament incorporeal (b) ; and as well to those which are appendant or appurtenant, as to those which are in gross (c). And this last species of title involves so many points of nicety, as to demand our more particular consideration. The subject of prescription indeed has been in some measure unavoidably anticipated, in so far at least that it has been stated to be a title by long usage. But we are now to examine its nature more closely, and, as a pre- liminary point, we would remark, that though depending on usage, it is not to be confounded with custom. The distinction between custom on the one hand — of which we had occasion to inquire at large in a preceding part of these Commentaries {d) — and prescription on the other hand, is this, that custom is properly a local usage, and prescription a personal one, attaching to a man and his ancestors, or to those whose estate he has (e). [As, for example, if there be a usage time out of mind in the parish of Dale, that all the inhabitants of that parish may (z) Gateward's case, 6 Co. Kep. Boman law was called mueapfio. 596 ; Constable v. Nicholson, 14 (Ff. 41, 3, 3.) C. B., N. S. 239 ; Austin v. Am- (c) The title by prescription, hnrst, 7 Ch. D. 689 ; Chilton v. howerer (whether at common law Corporation of London, 7 Ch. D. or under the stat. 2 & 3 "Will. 4, 735 ; llivers v. Adams, 3 Ex. D. c. 71, to be presently noticed), 361; Q-oodman w. Mayor of Saltash, applies to no o^Aer than inoorpo- 7 App. Ca. 733. real hereditaments. (Wilkinson v. {a) Blewittii.Tregouning, 1 Har. Proud, 11 Mee. & W. 35.) & W. 431 . {d) Vide sup. p. 52. (J) " Freseriptio est tituhta ex mu («) Co. Litt. 113 b; Potter v. et tempore, substantiam capiens ab North, 1 Vent. 386 ; 2 Bl. Com. authoritate legis." — Co. Litt. 113 b. 263 ; Austin v. Amhurst, 7 Oh. D. The title of prescription in the 689. CHAP. XXni, — OF INCORPOREAL HEREDITAMENTS. 655 [dance on a certain close at all times for tlteix recreation,— wluoli is held to be a lawful usage,— this is strictly a custom, for it is applied to the place in general, hut not to any particular person (/) : hut if the tenant who is seised of the manor of Dale in fee alleges, that he and aU those whose estate he hath in the said manor have used time out of mind to have common of pasture in such a close ; this is properly called a prescription, for this is a usage annexed to the person of the owner of this estate. J The subject of prescription has been newly regulated by the Prescription Act, 2 & 3 Will. lY. c. 71 ; but the provisions of this statute are of a nature by no means to supersede the former state of the law in regard to this species of title ; and prescription will be best understood by contemplating it in two distinct points of view — first, as it exists at the common law; secondly, as it exists under the Prescription Act. First, with respect to prescription at common law, the following points appear principally to deserve attention: 1. This title is always founded on the actual usage of enjoying the thing in question ; and without this, a mere claim, however often repeated or long continued, and whether its validity has been questioned or not, will not suffice to establish a prescriptive right {g). 2. The en- joyment on which a prescription is founded, must have been constant and peaceable ; for, as a general rule, when it has been subject to interruption or to dispute, no title by prescription arises. Tet where the right is shown to have once attached in consequence of an uniform and tranquil usage for a sufficiently long tract of time, a wrongful interruption of the enjoyment during a subsequent period {/) Abbot V. Weekly, 1 Lev. 176; cases, be presumed. See Manifold Mounsey v. Ismay, 1 H. & C. 729 ; v. Penmngton, 4 Bam. & Cress. Forbes v. Ecclesiastical Oommis- 161 ; De Rutzeu v. Lloyd, 4 Ad. & Bioners, L. B., 15 Eq. 51. El. 466 ; Jones v. Richaxds, 6 Ad. {ff) But a right more extensive & El. 632. than the actual user may, in some 656 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. of comparatively short duration (as for ten or twenty years) will not destroy the prescription (i). 3. As to the length of time sufficient to establish the right, the rule of the common law is, that there must have been a usage from time immemorial, or, as it is technically termed, from time whereof the memory of man is not to the contrary; which period (as before shown in our remarks upon custom) refers to so remote an era as the beginning of the reign of Eichard the first (k). And therefore if the usage can be shown to have commenced at any time since that period, the prescription (where it is claimed at common law) is destroyed [l). But a commencement shown prior to the reign of Richard the first, would constitute no objection ; for all time prior to that era is considered as oiit of the time of legal memory (m). Supposing no evidence to be given as to the time at which the usage commenced, but that it appears, either by the testimony of living witnesses, or by other means of proof (n), that it has had con- tinuance for a period of twenty years or more, this wUl ia general amount, at common law, to a presumption that it is immemorial ; so far, at least, as to sustain the prescription, supposing no circumstances of a contrary tendency to appear (o) ; and even proof of a shorter continuance than twenty years will have the same effect, if corroborated by other attendant circumstances indicative of the existence of an antient right (p). But the presumption of imme- morial right, that would otherwise arise from an enjoy- ment of twenty years, or any other period within legal (i) Co. Litt. 114 b ; 2 Inst. 653; Stark. Ev. 1205. Com. Dig. Prescription, E. ; and («) Stark. Et. 1217, 1st edit. ; see Brodie v. Mann, 10 App. Ca. Co. Litt. 115 a. 378. (o) Hex v. Jolifle, 2 Bam. & {k) Co. Litt. 116 a. Cress. 59 ; Hill v. Smith, 10 East, {;) See Bryant v. Foot, Law 476 ; Daniel v. North, 1 1 East, 372 ; Hep., 3 Q. B. 497 ; Mills v. Col- Chad v. Tilsed, 2 Brod. & Bing. Chester, ib., 3 0. P. 675. 403. (»t) 9 Eep. 27 b; Com. Dig. Pre- {p) Stark. Ev. 1217, Ist ed. Bcription, Praot. lib. ii. c. 22 ; CHAP. XXm. OF INCORPOREAL HEREDITAMENTS. 657 memory, will be defeated by showing that such enjoyment took place by virtue of a grant or licence from the party interested in opposing it, or that it was without his knowledge dtiring the whole time that it was exercised (q). 4. Every prescription must be both certain and reason- able ; therefore a prescription to pay for tithes one penny or thereabouts for every acre of arable land, or to take as much clay as shall be required for making bricks at a certain kiln out of another's field, is bad in law (r) ; and thus, too, a surplice fee claimed on marriage was held unsustainable, on the ground that, according to the value of money at the supposed origin of the prescriptive right, it was excessive in amount (s). 5. All prescription at com- mon law must be laid either in a man and those whose estate he hath in certain lands (as in the example above given of a prescriptive common of pasture), which is called prescribing in a que estate (t), or it must be in a man anc( his ancestors {u). [And here this distinction is to be made — that if a man prescribes in a que estate nothing is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands ; for it would be absurd to claim anything as the consequence or appendix of an estate, with which the thing claimed has no connection ; but if he prescribes in himself and his an- cestors, he may prescribe for anything whatever that might be the subject of grant (x). And, formerly, a man might by the common law have prescribed for a right which had been enjoyed by his ancestors at any distance of time, (g) See Bright v. Walker, i Tyr. see The Queen v. Commissioners 509. of Sewers for Essex, 14 Q. B. D. (r) Com. Dig. Prescription, E. 3 ; 661. Clayton v. Corby, 5 Q. B. 415 ; (<) See Richards v. Fry, 7 Ad. & Hilton ». Granville, ib. 701. El. 704; Padwick v. Knight, 22 (a) See Bryant v. Foot, Law L. J., Exch. 198. Rep., 3 Q. B. 497 ; MiUs v. Col- («) Austin v. Amhurst, 7 Ch. D. Chester (Mayor), 16 "W. R. 987. 689 ; Mellor t>. Spateman, 1 Saund. Asto the liability, by prescription, 342. of frontagers to repair sea-walls, (x) Co. Litt. 121 a. VOL. I. U U 658 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [though his or their enjojanent of it had been suspended for an indefinite series of years. But hj the Statute of limi- tations, 32 Hen. YIII. c. 2, it was enacted, that no person should make any prescription by the seisin or possession of his ancestor, unless such seisin or possession had been within threescore years next before such prescription made. 6. A prescription in a que estate must always be laid in him that is tenant of the fee. A tenant for life, for years, or at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates (y). For as pre- scription is usage beyond time of memory, it is absurd that they should pretend to prescribe for anything, whose estates commenced within the remembrance of man ; and therefore the tenant for life must prescribe under cover of the tenant in fee simple. As if tenant for life of a manor would pre- scribe for a right of common, as appurtenant to the same, he must allege that John Stiles was seised in fee of the manor ; and that he, and all those whose estate he had, had imme- morially used to have this right of common appurtenant to the said manor ; and that John Stiles demised the said manor, with its appurtenances, to him the said tenant, for life. 7. A prescription cannot lie for a thing which could not be raised by grant; for the law allows prescription only to supply the loss of a grant, and therefore every prescription presupposes a grant to have existed. Thus the lord of a manor cannot prescribe to raise. a tax or toll upon strangers; for as such claim oould never have been good by any grant, it shall not be good by prescription (a). 8. Another rule is, that what is to arise by matter of record, cannot be prescribed for : such as, for iastance, the right to for- feitures — being among the franchises to which .we before made brief allusion in the course of this chapter (a) : for these forfeitures are found by the inquisition of a jury, and so made a matter of record : to which prescription (which is a mere usage in pais, says Lord Coke,) cannot extend (6). (j/) i Eep. 31, 32. («) Vide sup. p. 634. (s) Potter V. North, 1 Vent. 387. («) 2 Bl. Com. 265 ; Co. Litt. CHAP. XXUl.— OF INCORPOREAL HEREDITAMENTS, 659 [But the franchises of treasure trove, waifs, estrays, and the like, may he claimed hy prescription; for they arise from private contingencies, and not from any matter of record (c). 9. Lastly, we may observe that a person having title to anything hy prescription, is not to he considered as being himself the purchaser, so as to make it descendible to his heirs general, according to the ordinary rule of inherit- ance (d) • for prescription, inasmuch as it presupposes a grant, is in strictness rather to be considered as an evidence of a former acquisition, than as an acquisition de now: but the rule on this subject is, that where a man prescribes for anything, (for example, a right of way,) in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes : but if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase; — for every accessory followeth the nature of its principal.] Such being the nature of prescription at common law, we are next to regard it as regulated by statute, viz., by the Prescription Act, 2 & 3 "WiU. IV. c. 71, — a subject which the explanations that have been already given will enable us more easily to apprehend. This statute is described in its title as an Act "for shortening the time of pre- scription in certain cases," and originated in a reasonable dissatisfaction with the rule, which required an enjoy- ment from " time immemorial " as the indispensable foundation in every case of a prescriptive right. The effect of that rule (we have seen) was, that while, in general, an enjoyment for even twenty years sufficed to sustain a claim by prescription, because it constituted a presump- tion of immemorial antiquity, yet — if accident should supply the adverse party with the means of proving that, at any period subsequent to the commencement of the 114a; Case of Abbot of Strata (c) Co. Litt. 114 b. Marcella, 9 Rep. 24 a. {d) Vide 8up. p. 379. uu2 6&0 BK. II. OF RIGHTS OF PROPERTY. PI'. I. THINGS REAL. reign of Eichard the first, the alleged right did not in fact exist — the claimant would he defeated, even though he could prove that the usage had lasted for centuries. To obviate the injustice and inconvenience resulting from this doctrine, the Act in question was passed ; and its general object is to dispense (in all the ordinary cases of preseriptiori) with the necessity of making out an immemorial usage, either by presumption or otherwise ; and to allow an enjoy- ment for a certain period to constitute a direct and intrinsic right. In pursuance of this object, the Prescription Act, 2 & 3 Will. IV. c. 71, provides, with respect to rights of common " and all other profits or benefits to be taken and enjoyed " from or upon any land " — with the exception, however, of tithes, rents and services, which it leaves as at common law, — that where there shall have been an enjoyment of them by any person claiming right thereto (e), without interruption (/), for thirty years {g) next before the commencement of any action upon the subject (A), the prescriptive claim shall no longer be defeated (as it would have been before the Act), by showing only that the enjoyment commenced at a period subsequent to the era of legal memory. There is a proviso, however, that it may be defeated in any other way in which it was defeasible before the statute passed («). And therefore («) See Tickle v. Brown, i Ad. c. 71, s. 4.) (& El. 369 ; Kinloch v. Nevile, 6 {g) See Richards ». Pry, 7 Ad. & Mee. & W. 796 ; Magor v. Chad- El. 698 ; Wright v. Williams, Tyr. wick, 11 Ad. & El. 584 ; Earl de la & Gr. 375. Warr». Miles, 17 Ch. D. 535. (A) SeeBailey».Appleyard,8Ad. (/) See Onley v. Gardiner, 1 & El. 161, 778 ; Parker ». Mitchell, Horn. & Hurl. 381; Eaton v. 11 Ad. & El. 788; Clayton D.Corby, Swansea Waterworks Company, 5 Q. B. 415 ; Ward «. Robins, 15 20 L. J., Q. B. (N. S.) 482 ; Carr Mee. & W. 237. V. Foster, 3 Q. B. 581. No act or (») See Mill®. The Commissioners matter is to be deemed an inter- of the New Forest, 18 0. B. 60 ; ruption, unless submitted to and Seddon v. Bank of Bolton, 19 Ch. acquiesced in for the space of one D. 462. year after notice. (2 & 3 Will. 4, CHAP. XXIII. OF INCORPOREAL HEREDITAMENTS. 661 a case of thirty years' enjoyment would still be satis- factorily answered, by showing that it was without the knowledge of the adverse party, or that it was by his mere licence or permission; for either of these circumstances would, before the statute, have rebutted the presumptive right (k). It is also provided, that the time during which the adverse party shall have been an infant, idiot, non compos mentis, feme coverte, or tenant for life, or during which any action as to the claim shall have been pending and diligently prosecuted, — shall be excluded in the com- putation of this period of thirty years (/). But where there has been an enjoyment for as much as sixti/ years, the claim is to be absolute and indefeasible, except only where proof can be brought forward that such enjoyment took place under some consent or agreement in writing, expressly given for the purpose; while, on the other hand, if the period of enjoyment shall have been less than thirty years, it is to be wholly unavailable, even to raise the slightest presumption of right. In addition to these regulations as to the time for a prescription, there are others as to the manner of making it, and among them the following, — that he who prescribes under this Act shall not be required in any case to claim as in right of the owner of the fee {m). In addition to these enactments with regard to pre- scriptive rights of common and the like, the statute makes similar provisions with respect to another class of incor- poreal hereditaments, viz. as to any " way or other ease- " ment (m), or any watercourse, or the use of any water, to [k] See Daniel v. North, 1 1 East, at long intervals of time, see Hollins 372 ; Bright v. "Walker, 4 Tyr. 509 ; v. Vemey, 11 Q. B. D. 715 ; 13 Q. Kinlooh v. NevUe, 6 Mee. & W. 795. B. D. 304. As to fke passage of air, (?) 2 & 3 Will. 4, 0. 71, s. 7. see Webb v. Bird, 13 C. B. (N. S.) See Pye v. Mumford, 11 Q. B. 666. 841 : as to the use of land for the (m) Sect. 5. See Earl de la Warr purposes of mere pleasure, see V. Miles, 17 Ch. D. 535. Mounsey v. Ismay, 3 H. & C. 486 ; (ft) See Battishill v. Keed, 18 C. Mayor of Saltash v. Goodman, 5 B 696 • and as to ways used only C. P. D. 431 ; 7 App. Cas. 633 : as to 662 BK, II. OP RIGHTS OF PROPERTY. PT. I. THINGS REAL. " be enjoyed upon, over, or from any land or water" (o), " and also as to the access or use of light to and for any *' dwelling-house, workshop, or other building "(f). But the periods conferring a prescriptive right in the case of ways or other easements, and waters, are twenty and forty jeais, in lieu of thirty and sixty years respectively ; and an uniatemipted enjoyment of lights for twenty years, constitutes an absolute and indefeasible right to them (q), any local usage or custom to the contrary notwithstand- ing (r). There is, moreover, a proviso as to ways and watercourses, that when the land or water in respect of which the claim is made has been held for term of life or exceeding three years, such term shall be excluded from the computation of the forty years, in the event of the person who may be entitled in reversion resisting the claim within three years after the term determines (s). Besides those which have been above noticed, there still remains another point of title appropriate to incor- poreal as distinguished from corporeal hereditaments; viz. that the former are capable of extinction, in a manner peculiar to themselves. Thus, they may be extinguished an easement of support, see Angus be defeated by showing that the ■u. Calton, 3 Q. B. D. 85 ; on app., enjoyment took place under a con- 4 Q. B. D. 162; and in H. L., 6 sent or agreement in writing. (2&3 App. Ca. 740 ; see also Tone v. WiU. 4, c. 71, s. 5 ; and see Seddon Preston, 24 Ch. D. 739 : and as to v. Bank of Bolton, 19 Ch. Dir. the support of sewers, see 46 & 47 462.) Vict. c. 37. (r) See Trusoott o. Merchant (o) See Beeston v. "Weate, 5 EU. Taylors' Company, 1 1 Exch. 855. & Bl. 986 ; Murgatroyd v. Robin- As to interruption, within this son, 7 Ell. & Bl. 391. section, see Plasterers' Company v. {p) As to light, see Harbidge v. Parish Clerks' Company, 20 L. J., Warwick, 3 Exch. 552; Wheel- Exch. 362; G-lover v. Coleman, don V. Burrows, 12 Ch. Div. 31 ; Law Eep., 10 0. P. 108. RusseU V. Watts, 25 Ch. Div. 559 ; («) 2 & 3 Will. 4, o. 71, s. 8. The 10 App. Ca. 590. word "reversion" in this section (y) The claim (whether in respect does not, semble, include a "re- of a way or other easement, or of mainder ' ' (see Symons v. Leaker, water or light) may, however, as 16 Q. B. D. 629). in the case of a claim of common. CHAP. XXIII. — OF INCORPOREAL HEREDITAMENTS. 663 by release (t) ; as when a person entitled to common, re- leases it to the owner of the soil over which it is claimed («). And after a disuse for twenty years, a release wUl in general be presumed (x). So they may be extinguished by miiy of seisin ; as where the person entitled to a way or common becomes seised in fee, by purchase or other- wise, of the land which is subject to the right. For the dominion of the soil itself, and of an incorporeal right relating to the same soil, cannot in general subsist together in the same individual, because as soon as they are com- bined in his person, the latter right, being merely of a par- ticular and subordinate kind, is absorbed and extinguished in the superior title of general ownership (j/). To this, indeed, there is an exception in the case of franchises ; which, as before remarked, are of a nature collateral to the inheritance itself, and are consequently not aflEected by any unity of seisin (z). Even these, however, may be ex- tinguished by a re-union with the Crown, from which they emanated, or by forfeiture for misuser, that is, such use of them as is contrary to the express or implied condition on which the royal grant proceeded ; or by forfeiture for non- tiser, as if a viU was incorporated by the king, before the commencement of the period of legal memory, and that franchise has never been acted upon since (a). Lastly, we (i) Co. Litt. 270 a, 280 a ; Litt. burton v. Parke, 2 H. & N. 64. As ss. 479, 480 ; see Lovell ». Smith, 3 to the extinguishment of a right 0. B. (N. S.) 127. of way by unity of possession, see (m) As to the extinguishment of Winship v. Hudspeth, 10 Exoh. 5 common by a release of it as i,opart Brett v. Clowser, 5 0. P. Div. 376 of the land over which it is claimed, Allen v. Taylor, 10 Ch. Div. 365 or by purchase of part, see Benson Barkshire v. Grrubb, 18 Ch. Div. V. Chester, 8 T. R. 401. 616. {x) SeeMooreiJ.Rawson, 3Bam. (z) 4 Inst. 318. Vide sup. p. & Cress. 339 ; Ward v. "Ward, 7 640. Exch. 838 ; Oarr v. Foster, 3 Q. B. (a) 3 Cruise, Dig. 302. As to the 681 ; Cook v. Bath, Law Hep., 6 re-grant of a franchise, see Col- Eq. Ca. 177. Chester v. Brooke, 7 Q. B. 385; iy) See 4 Eep. 38 a ; Cro. Eliz. Northumberland (Duke) ». Hough- 570 ; 3 Taunt. 24 ; Whalley ». ton, L. E., 6 Exch. 137. Tompson, iBos. &Pul. 371 ; War- 664 BK. II. or RIGHTS OF PROPERTY. PT. I. THINGS REAL. may remark as to some particular species of incorporeal liereditaments, viz. lights and water-courses, that, as they are acquired by mere occupancy, they are in like manner capable of being extinguished after their acquisition, by a simple act of abandonment; that is, by the mere discontinuance of the enjoyment, though for a period short of twenty years : provided, however, that the aban- donment be absolute, — ^fdr if it take place under circum- stances which imply the intention of future resumption within a reasonable time, the right in that case wiU not be lost (6). (*) See Liggins v. Inge, 7 Bing. 692 ; Stokoe v. Singers, 8 Ell. & Bl. 31. ( 665 ) CHAPTER XXIV. THE CONVEYANCING AND LAND ACTS OF 1881—1889. The statutes relating to the practice of conveyancing and to dealings with land generally, which have been passed in the years 1881, 1882, and 1884, and principally the Conveyancing Act, 1881, the Conveyancing Act, 1882, and the Settled Land Acts, 1882—1889, axe of an import- ance so general and far-reaching as to demand a more particular treatment than they have received in the earlier portions of this treatise ; and inasmuch as these statutes of themselves now almost form a code of conveyancing and real property law, it has heen considered desirable to give them a chapter to themselves, in which their various provisions, and incidentally the provisions of the Vendor and Purchaser Act, 1874, maybe collected and expounded; the statement and exposition of the law which have been given in the previous portions of this volume, being now only briefly referred to as serving to explain the provisions of these modem statutes. Firstly. By the Conveyancing Act, 1881 (a), it has been provided as follows : That the word " heirs," or the phrase " heirs of the body," shall no longer be necessary in a deed as the words of limitation respectively for a fee simple, and a fee-tail estate ; but it shall be sufficient in such deed to say that the estate is in fee simple, or in fee tail, as the case may (a) 44 & 45 Vict. c. 41. 666 BK. n. OF BIGHTS OP PKOPERTY. PT. I. THINGS KEAL, be ; and if in fee tail, that it is in fee-tail male or in fee- tail female, or in fee tail simply i£ the estate intended to be conferred is in fee-tail general (b). That freehold land (also ohoses in action) may be con- veyed by one [or more] person [or persons] to himself [or themselves] jointly with another person [or other persons], in like manner as it might be conveyed (that is to say, directly and without any grantee to uses) to another per- son; also, that a husband may in like manner convey direct to his wife, or a wife to her husband, and in either case either alone or jointly with any other person [or persons] (c). That the word " grant " need not be used in any con- veyance (d) ; that in every conveyance the "estate clause" shall be implied, so that it is no longer necessary in any case to specify " all the estate, right, title, interest, claim, and demand " of the conveying party (e) ; also, in every conveyance the " general words " shall be implied, so that the old enumeration of " buildiags, erections, hedges, fences, .... fixtures, .... sewers, gutters, drains .... privileges, easements, rights, and advan- tages whatsoever," need no longer be inserted in the con- veyance, but the appropriate general words wiU in each case be implied, according as it is land simply that is being conveyed, or is land built upon, or is a manor (/). That as regards the covenants theretofore usually in- serted in purchase and in mortgage deeds of freehold and of leasehold land, these covenants shall be implied, — ^in each instance the covenants thereto appropriate, — provided that the conveyance is expressed to be made by the vendor or mortgagor (as the case may be) in the capacity in which he conveys, that is to say, — If the legal and beneficial owner is the conveying party, then it must be expressed that he conveys (i) Sect. 51. (e) Sect. 63. («) Sect. 60. (/) Sect. 6. {d) Sect. 49. CH. XXIV. — CONVEYANCING AND LAND ACTS OF 1881-9, 667 as " beneficial owner " ; and in that case, if the deed is a purchase-deed of freehold lands, the limited covenants for title are implied ; and if the deed is a mortgage deed of freehold lands, the ahsolute covenants for title are implied, according to the distinction above explained {g), between the covenants given by a vendor and by a mort- gagor respectively. And if the deed is a deed conveying leaseholds, then in addition to the covenants for title above referred to, there shall be implied, by force of the words " beneficial owner," the following further covenant and covenants, that is to say, — If the deed is a purchase-deed, the usual limited covenant that the lease is valid, and that all rents, covenants, conditions, and agreements have been duly paid and performed up to the date of the conveyance ; and If the deed is a mortgage deed, the usual absolute covenants, firstly, that the lease is valid, and that all rents and covenants, &c. have been duly paid and performed up to the date of the conveyance; and secondly, that the mortgagor will, during the continuance of the security con- tinue to pay the rents and to observe and per- form the covenants, conditions, and agreements reserved by and contained in the lease {h). If the conveying party is not the legal and beneficial owner, but is only a trustee or mortgagee («), then it must be expressed in the conveyance that he conveys as " trustee " or " mortgagee," as the case may be ; and thereupon and by force of such express description of his capacity, the usual covenant is implied that he, the conveying party, has not encumbered; and If the conveying party, although both legal and bene- ficial owner, is conveying by way of settlement only, and in the conveyance he is expressly (j/) Supra, pp. 472, 473. lunatic, or a person appointed by (h) Sect. 7. order of the Court to convey, (j) Or a legal personal repre- (Sect. 7, P.) sentative, or the committee of a 668 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. described to convey as "settlor," then and by force of such express description of his capacity, the usual covenant is implied that he wiU make all (if any) necessary further assurance of the pre- mises (/). But it is to be observed that the capacity in which the conveying party conveys must be expressed ; for otherwise no covenant wiU be implied (m). "We have already seen that the benefit of all these implied covenants runs with the land in). That as regards the covenant for production of deeds and for their safe custody in the meanwhile, which was usually inserted in purchase-deeds, where the vendor re- tained the deeds or any specified deeds, in lieu of that cove- nant (which used to run to a great although unavoidable length) it shall be sufficient in future to merely insert in the purchase-deed, — An acknowledgment of the right of the purchaser to their production ; and An undertaking for their safe custody (o). As regards mortgage deeds, if the deed is expressed to be made by way of statutory mortgage, there shall be implied {p) — A covenant to repay the principal and interest of the mortgage debt on the day therein specified, and to pay interest half-yearly thereafter upon the principal remaining unpaid ; and The usual proviso for reconveyance on the full dis- charge of the mortgage debt. Also, whether the mortgage deed is expressed or is not expressed to be made by way of statutory mortgage, there shall be impKed {q) — A power of sale in the mortgagee ; if) Sect. 7, E. sects. 68, 69 of the Conveyanoing (m) Sect. 7, sub-s. 4. Also> Act, 1881. sect. 7 does not include convey- (o) Sect. 9. ances by way of lease. [p) Sect. 26. (m) Supra, p. 473. See also \q) Sect. 19. CH. XXIV, CONVEYANCING ANU LAND ACTS OF 1881-9. 669 A power in him to insure ; A power in him to appoint a receiver ; and A power in him (when in possession) to cut and sell timber ripe for cutting. But as regards the mortgagee's power of sale, it is not to be exerciseable by him unless one or other of the three events specified in the 20th section of the Act have arisen ; but should he duly exercise that power, then he may give receipts for the purchase-money (r) ; also, generally he may apply in the mode and modes heretofore usual, and without any express powers in that behalf, all moneys received by him under the sale, or the insurance, or the cutting of timber or otherwise (s). As regards property in mortgage, the mortgagee (when in possession) may, without the concurrence of the mort- gagor, and the mortgagor (while in possession) may, with- out the concurrence of the mortgagee (t), exercise the following leasing powers, that is to say. May make an agricultural or occupation lease for any term not exceeding twenty-one years, to take effect in possession within one year from its date ; and May make a repairing or a building lease for any term not exceeding ninety-nine years. The best rent obtainable being in every case reserved, and no fine, premium, or foregift being taken (u) ; and the mortgagor (when he is the lessor) delivering the counterpart of the lease to the mortgagee. As regards contracts for sale and the abstract of title to the property sold, the Conveyancing Act, 1881 («), in extension of the Vendor and Purchaser Act, 1874 (y), (r) Sect. 22 ; and see sect. 61 as («) By sub-s. 10 of sect. 18, in to receipts where money expressed the case of a building or repairing to be advanced on joint account. lease, the rent during the first five (s) Sects. 22 24. years of the term may be nominal. (t) Sect. 18. W Sect. 3. (2^) 37 & 38 Vict. c. 78, s. 2. 670 BK. II. OF EIGHTS OF PROPERTY. ^PT. I. THINGS REAL. makes many useful provisions calculated to save the vendor expense ; and by the combined effect of the two Acts, the law now prevailing as to such contracts and abstracts may be stated as follows : — That forty years and not sixty years shall be the length of the abstract (z). Under a contract to grant or assign a term of years, whether derived or to be derived out of a free- hold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title to the freehold (a). Under a contract to sell and assign a term of years derived out of a leasehold interest in land, the intended assign shall not have the right to call for the title to the leasehold reversion (b). Where land of copyhold or customary tenure has been converted into freehold by enfranchise- ment, then under a contract to sell and convey the freehold, the purchaser shall not have the right to call for the title to make the enfran- chisement (c). Where land sold is held by lease (not including under- lease), the purchaser shall assume, unless the contrary appears, that the lease was duly granted; and on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase (d). Where land sold is held by underlease, the purchaser (z) Act, 1874, s. 1. such a receipt as is here intended. («) Ibid. s. 2. (See In re Moody and Tate's Cou- (i) Act, 1881, s. 3, suh-s. 1. tract, 28 Ch. D. 661 ; 30 Oh. D. And see sect. 13 of the same Act 344.) Under the Conveyancing (containing the like provision upon Act, 1882, s. 4, and the Settled a contract to grant a lease). Land Act, 1882, s. 31, sub-s. 4, (c) Act, 1881, s. 3, sub-s. 2. any preliminary contract for or (d) Ibid, sub-s. 4. The last re- relating to the lease is declared no (d) Ibid, sub-s. 4. The last re- relating to the 1( ceipt for a peppercorn rent is not part of the title. CH. XXIV.— CONVEYANCING AND LAND ACTS OF 1881-9. 671 sHall assume, unless the contrary appears, that the underlease and every superior lease were duly granted ; and on production of the receipt for the last payment due for rent under the underlease before the date of actual completion of the purchase, he shall assume, unless the con- trary appears, that aU the covenants and provi- sions of the underlease have heen duly performed and observed up to the date of actual completion of the purchase ; and further, that aU rent due under every superior lease, and all the covenants and provisions of every superior lease, have been paid and duly performed and observed up to that date (e). Eeoitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments. Acts of Parliament, or statutory declarations twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descrip- tions (/). A purchaser of any property shall not require the production or any abstract or copy of any deed, will, or other document, dated or made before the time prescribed by law or stipulated for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser; nor shall he require any in- formation, or make any requisition, objection, or inquiry with respect to any such deed, will, or document, or the title prior to that time, not- withstanding that any such deed, will, or other document, or that prior title is recited, covenanted to be produced, or noticed ; and he shall assume, unless the contrary appears, that the recitals contained in the abstracted instruments of any deed, will, or other document forming part of that prior title are correct, and give aU the (e) Act, 1881, a. 3, sub-a. 5 ; and also, In re Moody and Tates, supra, gee Lawrie v. Lees, 7 App. Ca. 19; (/) Act, 1874, ». 2. 672 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. material contents of the deed, will, or other document so recited, and that every document so recited was duly executed by all necessary parties, and perfected l£ and as required by fine, recovery, acknowledgment, inrolment, or other- ■ wise(g'). On a sale of any property, the expenses of the produc- tion and inspection of all Acts of Parliament, inclosure awards, records, proceedings of courts, court rolls, deeds, wills, probates, letters of ad- ministration, and other documents not in the vendor's possession, and the expenses of all journeys incidental to such production or inspec- tion, and the expenses of searching for, pro- curing, making, verifying, and producing all certificates, declarations, evidences, and informa- tion not in the vendor's possession, and all attested, stamped, office, or other copies or ab- stracts of, or extracts from, any Acts of Parlia- ment, or other documents aforesaid not in the vendor's possession, if any such production, in- spection, journey, search, procuring, making, or verifying is required by a purchaser, either for verification of the abstract or for any other purpose, shall be borne by the purchaser who requires the same ; and where the vendor retains possession of any document the expenses of making any copy thereof, attested or unattested, which a purchaser requires to be delivered to him, shall be borne by that purchaser (h). On a sale of any property in lots, a purchaser of two or more lots, held wholly or partly under the same title, shall not have a right to more than one abstract of the common title, except at his own expense (i). The inability of the vendor to furnish the piirchaser with a legal covenant to produce and furnish copies of documents of title shall not be an objection to title in case the purchaser wiU, on (g) Act, 1881, s. 3, sub-s. 3. Tustin, 28 Ch. Div. 84 ; 30 Ch. Div. (A) Ibid, sub-s. 6 ; Johnson v. 42. (») Act, 1881, sub-s. 7. CH. XXIV.— CONVEYANCING AND LAND ACTS OF 1881-9. 673 the completion of the contract, have an equitable right to the production of such documents {k). Such covenants for production as the purchaser can and shall require shall be furnished at his ex- pense, and the vendor shall bear the expense of perusal and execution on behalf of and by him- self, and on behalf of and by necessary parties other than the purchaser (/). Where the vendor retains any part of an estate to which any documents of title relate, he shall be entitled to retain such documents {m). As regards the conveyance of the property sold, and the parties to such conveyance, and the completion generally of the purchase, the provisions are as follows : — The vendor entitled legally and beneficially wUl of course convey ; and in case of his death, his personal representatives may (in lieu of his heir or devisee) do so (w). Any legal estate outstanding in any trustee or mort- gagee will be conveyed by him ; and in case of his death, his personal representative shall (in lieu of his heir or devisee) do so (o) ; if the trustee is a bare trustee, and a married woman, then he {soil, she) may convey it as if she were a feme sole (p). "When the property sold is subject to any incum- brance, and the incumbrancer either cannot or will not concur to release his charge, the court will in a proper case make an order discharging the land, and substituting some other adequate security, and this whether the incumbrancer assents or not {q). (A) Act, 1874, s. 2. "been declared not to extend to (^ Ibid. copyhold hereditaments. See 50 & {m) Ibid. 51 Vict. o. 73, s. 45 ; In re Mills, (») Act, 1881, s. 4. 37 Ch. D. 312; 40 Ch. Div. 14. (o) Ibid. s. 30, repealiiig and re- He Hughes, W. N. 1884, p. 53, enacting with amplifications the had decided the other way. Vendor and Purchaser Act, 1874, {p) Act, 1874, s. 6. 88. 4, 5, and the Land Transfer (?) Act, 1881, s. 5. Act, 1875, s. 48. But sect. 30 has VOL. I. X ^ 674 BK. II. OF EIGHTS OF PROPERTY.— FT. I. THINGS REAL. ■When the property sold is subject to any quit rent, chief rent, rent-charge, or other annual sum, it may be discharged therefrom uijon certificate of the Land Commissioners specifying the redemp- tion value thereof, and upon payment or tender of that amount, and upon a further certificate of the Land Commissioners, such further certificate certifying simplidter that the rent in question is redeemed (»'). The conveyance need not be executed by the vendor in the presence of the purchaser, but (if the piirchaser requires it) the execution by the vendor must be attested by a nominee of the purchaser (s). A receipt for the purchase-money may be embodied in the purchase-deed, and wiU be sufficient with- out any receipt for same being indorsed on that deed (t) ; and such receipt, whether in the body or on the back of the deed, shall be conclusive evidence of the fact, excepting as between the parties and their privies (m). When the purchase- deed contains such receipt, either in the body or on the back thereof, the purchaser may pay his purchase-money to the vendor's solicitor (v) ; and by reason of the Trustee Act, 1888 («), altering the former law in this respect («/), the purchase-money may in such a case be so paid, notwithstanding that the vendor may be in fact a trustee ; and The Conveyancing Act, 1881 (2), provides generally, in favour of a purchaser (lessee or mortgagee) or intending purchaser (lessee or mortgagee), that any order of the Chancery Division imder any (r) Act, 1881, s. 46. But the pro- {«) Ibid. s. 56, vieion does not extend to tithe (») 51 & 52 Viet. c. 59, s. 2. ;rent- charge, or to a rent reserved (y) Ee Bellamy and Metropolitan on a sale, or on a lease, or to a Board of Works, 24 Ch. D. 387 ; building rent, or to any annual He Flower and Metropolitan Board sum not being perpetual. of "Works, 27 Oh. D. 592. (s) Act, 1881, a. 8. (z) Sect. 70. See In re Hall- (t) Ibid. S..64. Dare's Contract, 21 Ch. Div. 41. («) Ibid. B. 55. i^n. XXIV. CONVEYANCING AND LAND ACTS OF 1881-9. 675 statutory or otlier jurisdiction shall be and con- tinue valid, notwithstanding any alleged want of jurisdiction in the court, or the want of any concurrence, consent, notice, or service alleged to have teen necessary, whether the purchaser has or has not notice of any such alleged want of jurisdiction or other such alleged want ; and this provision applies as well to orders made before as to orders made after the commencement of the Act, unless in the case of orders made before the commencement of the Act the same have been either already set aside or some pro- ceeding is pending for that purpose. And the Conveyancing Act, 1882 (a), in order to further assure the purchaser, once his purchase is com- pleted, provides that if he obtain an official certificate of the result of searches for judgments, deeds, &c., &c., required to be registered or en- rolled, he shall be absolutely protected against everything of that sort not appearing on such certificate, and shall not be affected by notice of anything whatsoever prejudicial to his title, unless he have actual notice thereof, or such constructive notice as in the Act expressed. As regards rent-charges created by deed or will, and with a view to shortening the documents creating same, it has been provided (b) that, without any express provision in the deed or will to that effect, the person entitled to the rent-charge (or other annual sum not being ordinary rent or rent service) issuing out of or charged upon lands or the income thereof, shall have the following remedies for the recovery thereof, that is to say, — If at any time the annual sum or any part thereof is unpaid for twenty-one days next after the time appointed for any payment in respect thereof, the person entitled to receive the annual sum may enter into and distrain on the land charged or any part thereof, and dispose according to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears . (a) Sects. 2, 3. (*) Act, 1881, s. 44. xx2 676 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAI . thereof, and all costs and expenses occasioned by non-payment thereof, may be fully paid ; and If at any time the annual sum or any part thereof is unpaid for forty days next after the time ap- pointed for any payment in respect thereof, then, although no legal demand has been made for payment thereof, the person entitled to receive the annual sum may enter into possession of and hold the land charged or any part thereof, and take the income thereof, until thereby or other- wise the annual sum and all arrears thereof due at the time of his entry, or afterwards becoming due during his continuance in possession, and all costs and expenses occasioned by non-payment of the annual sum are fully paid, and such pos- session when taken shall be without impeachment of waste ; also. In the like case the person entitled to the annual charge, whether taking possession or not, may also by deed demise the land charged or any part thereof to a trustee for a term of years, with or without impeachment of waste, on trust by mort- gage or sale or demise for all or any part of the term of the land charged, or of any part thereof, or by receipt of the income thereof, or by all or any of those means, or by any other reasonable means, to raise and pay the annual sum and all arrears thereof due or to become due, and aU costs and expenses occasioned by non-payment of the annual sum, or iucurred in compelling or obtaining payment thereof, or otherwise relating thereto, including the costs of the preparation and execution of the deed of demise, and the costs of the execution of the trusts of that deed ; and the surplus, if any, of the money raised, or of the income received under the trusts of that deed, shall be paid to the person for the time being entitled to the land therein comprised in reversion immediately expectant on the term thereby created. As regards leases, the Conveyancing Act, 1881, in addition to providing fOr the grant thereof, and for the CH. XXIV.— CONVEYANCING AND LAND ACTS OF 1881-9. 677 assignment (on the sale) thereof as hereinbefore expressed, provides also for the maintenance of the lease and for the restoration thereof as foUows, that is to say,— As regards the maintenance of the lease, it provides :— As regards the right of the lessor and the duties of the lessee (o) : That rent reserved by a lease, and the benefit of every covenant or provision therein contained, having reference to the subject-matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein contained, shall be annexed and incident to and shall go with the reversionary estate in the land, or in any part thereof, imme- diately expectant on the term granted by the lease, notwithstanding the severance of that re- versionary estate, and shall be capable of being recovered, received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part as the case may require of the land leased. As regards the rights of the lessee and the duties of the lessor (d) : That the obligation of a covenant entered into by a lessor with reference to the subject-matter of the lease shall, if and as far as the lessor has power to bind the reversionary estate immediately expectant on the term granted by the lease, be annexed and incident to and shall go with that reversionary estate, or the several parts thereof, notwithstandingthe severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devo- lution in law, or otherwise ; and, if and as far as the lessor has power to bind the person from time to time entitled to the reversionary estate, the obligation aforesaid may be taken advantage of and enforced against any person so entitled; and As regards conditions of re-entry and other conditions, ■when either the reversion is severed or the lease (c) Sect. 10. W Sect, 11. 678 BK. il. OF SIGHTS OF PROPERTY. PT. I. THINGS REAL. as to part of the hereditaments thereby demised is determined (e) : That notwithstanding the severance by conveyance, surrender, or other-wise, of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cesser in any other manner of the term granted by a lease as to part only of the land comprised therein, every condition or right of re-entry, and every other condition contained in the lease, shall be apportioned, and shall remain annexed to the several parts of the reversionary estate as severed, and shall be in force, with respect to the term whereon each severed part is reversionary or the term in any land which has not been surrendered, or as to which the term has not been avoided or has not otherwise ceased, in Kke manner as if the land comprised in each severed part, or the land as to which the term remains subsisting as the case may be, had alone originally been comprised in the lease. And as regards the restoration of the lease (/) and for relieving against any forfeiture of the lease (accruing other- wise than for breach of a covenant or condition against assigning or underleasing, or for banlmiptcy, or for suffer- ing an execution, or breach (in the case of a mining lease) of the covenant for inspection), the Act provides [g) as follows : — That a right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease (other than a covenant for payment of rent) shall not be enforceable by action or otherwise unless and until the lessor serves on the lessee a notice specifying the particular breach complained of, and if the breach is capable of remedy requiring the lessee to remedy the breach, and in any case requiring the lessee to (e). Sect. 12 ; and see 22 & 23 {g) Sect. 14, repealing the simi- Viot. 0. 35, B. 3. lar tut less extensive provisions (/) Lease extends to underlease contained in the 22 & 23 Vict. c. 36, (original or derivative); also, to ss. 4 — 9. See Quilter ». Mapleson, fee-farms, i.e. leases in fee simple 9 Q. B. D. 672. at a perpetual rent. CH. XXIV. CONA'EYANCING AND LAND ACTS OF 1881-9. 679 make compensation in money for the 'breach, and the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy, and to make reason- able compensation in money to the satisfaction of the lessor for the breach. And that where a lessor is proceed- ing by action or otherwise to enforce such a right of re-entry or forfeiture the lessee may in the lessor's action, if any, or in any action brought by himself, apply to the court for relief, and the court may grant or refuse relief as the court, having regard to the proceedings and conduct of the parties and to all the other circumstances, may think fit, and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an in- junction to restrain any like breach in the future, as the court, in the circumstances of each case, thinks fit. As regards infants, the management of their estates, and their maintenance, the Act, with a view principally to shortening the forms in settlements and wills, provides as follows : — That an infant's fee-simple estate or his lease- hold term shall be deemed a settled estate within the meaning of the Settled Estates Act, 1877 (A), so as to in- troduce all the powers of sale and of leasing conferred by that Act upon tenants for life. And that during the in- fancy (if a male), or infancy and discoverture (if a female), the trustees appointed for this purpose by the settlement (if any), or if there are none so appointed, then the persons (if 'any) who are for the time being under the settlement trustees with power of sale of the settled land, or any part thereof, or with power of consent to or approval of the exercise of such a power of sale, or if there are none, then any persons appointed as trustees for this purpose by the court, on the application of a guardian or next friend of the infant, may enter into and continue in possession of (h) Sect. 41. See a similar pro- of rendering applicable to an in- Tision in sect. 59 of the Settled fant's unsettled estates aU the pro- Land Act, 1882, for the purpose yisions of that Act. 680 BK. II. OF RIGHTS OF PUOPERTY. PT. I. THINGS REAL. the land, and in every such case shall exercise the following powers (i), that is to say : — The trustees shall manage or superintend the manage- ment of the land, with fuU power to fell timher or cut underwood, from time to time, ia the usual course, for sale or for repairs or otherwise, and to erect, pull down, rehuild, and repair houses and other buildings and erections, and to continue the working of mines, minerals, and quarries which have usually been worked, and to drain or otherwise improve the land or any part thereof, and to insure against loss by fire, and to make allowances to and arrangements with tenants and others, and to determine tenancies, and to accept surrenders of leases and tenancies, and generally to deal with the land in a proper and due course of management, but so that where the infant is impeachable for waste the trustees shall not com- mit waste and shall cut timber on the same terms only and subject to the same restrictions on and subject to which the infant could, if of full age, cut the same (A), The trustees may, from time to time, out of the income of the land, including the produce of the sale of timber and underwood, pay the expenses incurred ia the management, or in the exercise of any power conferred by this section or other- wise in relation to the land, and all outgoings not payable by any tenant or other person, and shall keep down any annual sum and the interest of any principal sum charged on the land (l) ; also, The trustees may apply at discretion any income, which in the exercise of such discretion they deem proper, according to the infant's age, for his or her maintenance, education, or benefit, or pay thereout any money to the infant's parent or guardian to be applied for the same purposes (m). (i) Sect. 42. See Jackson v. (Ic) Sect. 42, sub-s. 2. Taltot, 21 Ch. Div. 786 ; WUson {[} Ibid, eub-s. 3. v. Turner, 22 Oh. Div. 521 ; Welch (m) Ibid, sub-s. 4. V. Channell, 26 Ch. Div. 68, 63. CH. XXIV. — CONVEYANCING AND LAND ACTS OF 1881-9. 681 The trustees shall lay out the residue of the income of the land in investment on securities on which they are by the settlement (if any) or by law authorized to invest trust money, with power to vary investments, and shall accumulate the in- come of the investments so made in the way of compound interest by from time to time simi- larly investing such income and the resulting income of investments, and shall stand possessed of the accumulated fund arising from income of the land and from investments of income on the trusts following (namely) : If the infant attains the age of twenty-one years, then in trust for the infant ; If the infant is a woman and marries while an infant, then in trust for her separate use independently of her husband, and so that her receipt after she marries, and though still an infant, shall be a good dis- charge; but If the infant dies while an infant and, being a woman, without having been married, then , where the infant was under the settle- ment tenant for life, or by purchase tenant in tail or tail male or tail female, on the trusts, if any, declared of the accumulated fund by that settlement; but where no such trusts are declared or the infant has taken the land from which the accumu- lated fund is derived by descent and not by purchase, or the infant is tenant for an estate in fee simple absolute or deter- minable, then in trust for the infant's personal representatives as part of the in- fant's personal estate ; but the accumulations or any part thereof may at any time be applied as if the same were income arising in the then current year (w). The Act also further provides (o), that where any property («) Sect. 42, Bub-s. 5. 25 Ch. Div. 743 ; Thatcher's Trusts, (o) Sect. 43. See JudMns' Trusts, 26 Ch. Div. 426. 682 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. is held ty trustees in trust for an infant, either for life or for any greater interest, and whether absolutely or contin- gently on his attaining the age of twenty-one years, or on the occurrence of any event before his attaining that age, the trustees may at their sole discretion pay to the infant's parent or guardian, if any, or otherwise apply for or to- wards the infant's maintenance, education, or benefit, the income of that property or any part thereof, whether there is any other fund applicable to the same purpose, or any person bound by law to provide for the infant's mainte- nance or education or not; and that the trustees shall accumulate all the residue of that income in the way of compound interest, by investing the same and the resulting income thereof from time to time on securities on which they are by the settlement, if any, or by law authoriijed to invest trust money, and shall hold these accumulations for the benefit of the person who ultimately becomes entitled to the property from which the same arise, but so that the trustees may at any time, if they think fit, apply those accumulations, or any part thereof, as if the same were income arising in the then current year {p). (p) The provisions of the Con- deeds (s. 16) ; the abolition of the veyancing Act, 1882, are of a oha- consolidation of mortgages (s. 17) ; raoter purely incidental to those of the sale of mortgaged estates on the Conveyancing Act, 1881, and interlocutory order in the Chancery such of them as require special no- Division (s. 2S) ; the appointment tice in the text of this treatise have of new trustees and the retirement heen iueorporated in the statement of the old trustees and the vesting hereinbefore given of the provisions of the trust property (ss. 31 — 34) ; of the last-mentioned Act. These the power of trustees, in selling the two Acts contain, also, some pro- trust property, to use the ordinary visions of great importance, hut conditions of sale (ss. 35, 66), and which are too special to he referred to give receipts (s. 36) ; the power to in the text. Of these more spe- of trustees and of executors (but cial provisions, the Conveyancing not of administrators) to compound Act, 1881, contains the following : and compromise claims (s. 37) ; the — ^The duty of the mortgagee to removal of the restraint on the transfer instead of re-oonveying anticipation of the separate estate (s. 15) ; his duty to permit the of married women (s. 39) ; and the mortgagor to inspect his title- execution by married women of CIl. XXIV. CONVEYANCING ANU LAND ACTS OF 1881-9. 683 Secondly, by the Settled Land Act, 1882 {q), it has been provided as follows : — That " settled land " is land subject to a settlement, the state of facts when the settlement took effect being re- garded ; and that " settlement " is any deed, will, or other instrument, or number of instruments, whether dated before or after, or partly before and partly after, the 1st day of January, 1883 (the date of the commencement of the Act), under which land stands limited to persons in succession, a remainder or reversion not disposed of by the settlement, being for the purposes of the Act deemed to be an estate under the settlement (»•). Also, the land to which an infant is entitled in fee simple, or for other the whole estate, is settled land(s). Tha(t the tenant for life under the settlement shall have the powers in and by the Act expressly given to him ; and the phrase " tenant for life " is to include for this purpose powers of attorney (s. 40) ; and regarding powers of attorney gene- rally (ss. 46—48). The Convey- anoing Act, 1882, contains the following: — The provision (on appointing new trustees) for ap- pointing separate sets of trustees (s. 5) (as to which see Re Hether- ingtpn, 34 Ch. Div. 211 ; Savile «i. Cowper, 36 Oh. D. 520 ; Re Moss, 37 Ch. D. 613) ; the duty of the mortgagee to transfer instead of re-conveying, and to whom (s. 12) ; and regarding powers of attorney generally (ss. 8, 9). Some other points of importance in the Acts have also been incidentally dealt with already in a sufficient manner in the earlier portions of this volume, viz., the following: — the release and disclaimer of powers (Conveyancing Act, 1881, B. 52; Conveyancing Act, 1882, s. 6) ; the acknowledgment of deeds by mar- ried women (Conveyancing Act, 1882, s. 7) ; the restriction on exe- cutory interests (Conveyancing Act, 1882, B. 10) ; and the enlargement of long terms of years into fee simple estates (Conveyancing Act, 1881, s. 66, and Conveyancing Act, 1882, s. 11). (q) 45 & 46 Vict. o. 38, amended by the Settled Land Act, 1884 (47 & 48 Vict. 0. 18), the Settled Land Act, 1887 (50 & 51 Vict. c. 30), the Settled Land Act, 1889 (52 & 53 Vict. c. 36), and by sect. II of the 48 & 49 Vict. c. 72 (Housing of the Working Classes Act, 1885) ; and see Re KnatohbuU's Settled Estates, 29 Ch.D. 588 ; and Re Lord Sudeley's Settled Estates, 37 Ch. Div. 123. See also the Board of Agriculture Act, 1889 (52 & 53 Vict. c. 30), s. 2, transferring the office of the Land Commissioners to that Board. (r) Sect. 2. \s) Sect. 59. 684 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. not merely the person entitled beneficially for his life (whether subject to any incimibranee or not) to the possession or to the receipt of the rents and profits of the land, but also two or more persons entitled as co- tenants for life to such possession or receipt {t), and also the following persons, that is to say, persons entitled to a fee-simple defeasible, to a base fee, to an estate for years (not being a lease at a rent) determinable with life, to an estate pur autre vie, to a defeasible life estate, or pur autre vie estate, or estate for years determinable on Kfe, to an estate by the curtesy, to an estate tail generally (whether the reversion thereon is in the Crown or not), to an estate tail after possibility of issue extinct; but the phrase " tenant for life " is not to include a dowress nor a tenant in tail of lands purchased with moneys provided by par- liament in consideration of public services {u). An infant entitled in fee-simple or for other the whole estate in the land is a " tenant for life" for the purposes of the Act (x) ; and during his infancy (if a male), or during her infancy and discoverture (if a female), the trustees of the settle- ment (and failing any, the nominees of the court) are to act for him or her {y). A married woman (being or being deemed a tenant for life), as regards her estate not being separate, acts with her husband (s), and as regards her separate estate, acts by herself as a feme sole, and is not (so far as regards any of the purposes of the Act) restrained by even an express restraint on anticipation (a). A lunatic, so found by inquisition (being or being deemed a tenant for Hfe), acts by his or her committee with the sanc- (<) Sect. 2, sub-s. 6. 605; 31 Ch. Div. 577; In re («) Sect. 58. See In re Morgan, Strangways, 34 Ch. Div. 423. 24 Oil. Div. 114 ; In re Jones, 24 (») Sect. 59. Ch. Div. 683 ; 26 Ch. Div. 736 ; In (y) Sect. 60. See In re Countess re Clitheroe Estate, 28 Ch. Div. of Dudley's Contract, 35 Ch. Div. 378 ; 31 Ch. Div. 135 ; and dis- 338. tinguish In re Hazle, 26 Ch. Div. (z) Sect. 61. 428 ; In re Atkinson, 30 Ch. Div. (ff) Ibid. CH. XXIV. CONVEYANCING AND LAND ACTS OF 1881-9. 685 tion of the Lord Chancellor or Lords Justices sitting in lunacy (6). That the tenant for life (in the extended sense of that word, as above expressed) may exercise the following powers : — (A.) As regards absolute alienations of the settled land : A power to sell the settled land or any part thereof, or any easement in or over the same ; A power to enfranchise ancient freehold lands hy selHng the seigniory thereof, or customary freeholds or copyhold lands, by selling the freehold and inheritance thereof, with or without the mines and minerals ; A power to exchange the settled land or any part thereof; and A power to concur in making partition of the settled land (c). (B.) As regards leases of the settled land : A power to make building (including repairing) leases for ninety-nine years ; A power to make mining leases for sixty years ; and A power to make any other lease for twenty-one years. In any of these three cases, either with or without impeachment of waste ; and either of the settled land or of any part thereof, or of any easement over it{d). A power to accept surrenders of leases, and either in respect of the whole land leased or of any part thereof, or in respect of the mines and minerals only comprised therein (e). A power (when the tenant for life is the lord of a manor) to grant licences to the copyholders to demise their copyhold lands, — the licence being for such periods only as the lease (in the case of freehold lands) might have been made under the Act (/). (i) Sect. 62. (e) Sect. 13. {c) Sect. 3 ; and see sect. 19. (/) Sect. 14. {d) Sect. 6. 686 BK. ir. OF EIGHTS OF PROPERTY. PT. I. THINGS REAL. (C.) As regards improvements of the settled land : A power to apply the capital moneys, arising under the Act in or towards the making and efi&cient construction of any of the twenty different species of improvements speci- fied in the Act (/), heing improvements on or in connexion with or for the benefit of the settled land, and consisting of drainage, sewage, irrigation, embanking, reclamation, inclosing, road-making, clearing, planting, cottages-con- struction, machines (sawing, &c.), reservoirs, jetties, market- places, streets, and the Hke, — the improvements specified in the Improvement of Land Act, 1864 (g), being as from the 1st January, 1883, extended so as to include all the twenty classes of improvements specified in the Settled Land Act, 1882(A). And (D.) As regards absolute alienations, leases, and im- provements generally : A power to enter into any contract or contracts prelimi- nary thereto, and to vary and rescind the same, in all respects as if he was the absolute fee simple owner, every such contract enuring for the benefit of the settled land («). And the Act expressly declares and enacts that the afore- said powers may not be assigned or released by the tenant for life, and that they shall continue exerciseable by him although he should have assigned his estate, and that any contract of his not to exercise them shall be void (J), with- out prejudice to the rights of any assignee for value of the estate of the tenant for life {k). The Act further provides that anything in the settlement excluding, or contriving to exclude, or tending to exclude, the powers given by the Act to the tenant for life, or containing anything designed to induce him to abstain from exeroisiug these powers, shall be void, so much so that an estate limited to bim by (/) Sect. 25 ; and see sect. 27, as (_/) Sect. 60. to oonouiring -with other persons. (A) Ibid. See In re Paget' s iff) 27 & 28 Vict. 0. 114, s. 9. Settled Estates, 30 Ch. Div. 161 ; (A) Sect. 30. In re Sebright's Settled Estates, (i) Sect. 31. 33 Ch. Div. 429. CH. XXIV. CONVEYANCWfG AND LAND ACTS OF 1881-9, 687 way of conditional limitation until he does exercise or attempt to exercise the powers of the Act, or any of them, is discharged of the condition altogether, and is to be deemed an estate to continue for the longest possible time for which it would continue if no such condition was annexed thereto (/) ; also, no forfeiture is to result to the tenant for life from the exercise of these powers or any of them. (ot). The powers conferred by the Act may be exer- cised from time to time, and everything incidental to their full and effective execution may be done, as incidentally comprised in the power («). The settlor may by the settle- ment confer larger powers either on the tenant for life or on the trustees ; and if so, then these powers are to be exerciseable as if the Act had conferred such larger powers, with all incidental consequences (o). Lastly, the powers of the Act are not to interfere with other powers, howso- ever given, but are to be cumulative ; but in case of con- flict, the powers of the Act are to prevail (jo) ; and in case of doubt, the court will give its judicial opinion on sum- mons under the Act (q) . The pendency of an administration action does not prevent the tenant for Hfe exercising these powers or any of them ; and he may therefore, in such a case, sell without the sanction of the court (r). A tenant for life when intending to make a sale, ex- change, partition, or lease, or a mortgage or charge inci- dental thereto, is to give notice of his intention in that behalf to each of the trustees of the settlement by posting registered letters containing the notice addressed to the trustees severally, each at his usual or last-known place of abode in the IJnited Kingdom, and is to give like notice to the solicitor for the trustees, if any such solicitor is (/) Sect. 51 ; disting. Kemp v. Chaytor, 25 Ch. Div. 661 ; la re Haynes, 37 Ch. D. 306. Clitheroe Estate, supra. (»i) Sect. 52. (?) Sect. 56 ; also sects. 44—46. (n) Sect. 65. The county court has jurisdiction lo) Sect. 57. -within the limit of 600?. {p) Sect. 56. See In re Duke of (r) Cardigan v. Curzon-Howe, Newcastle, 24 Oh. Div. 129 ; In re 30 Ch. Div. 531. 688 BK. II. OF RIGHTS OF PliOPERTT. PT. I. THINGS REAL. known to the tenant for life, by posting a registered letter containing the notice addressed to the solicitor at his place of business in the United Kingdom, every letter being posted not less than one month before the making by the tenant for life of the sale, exchange, partition, or lease, or of the mortgage or charge incidental thereto, or of any contract for the same. And the Act expressly provides that at the date of notice given the number of trustees shall not be less than two, unless a contrary intention is ex- pressed in the settlement; but that any person dealing in good faith with the tenant for life is not concerned to inquire respecting the giving of any such notice (r). And further, as regards such notices, it has been re- cently provided by the Settled Land Act, 1884 (s), s. 5, to meet the decision to the contrary la. Bay's Settled Estates{t), that the notice required by section forty-five of the Act of 1882 of the intention to make a sale, exchange, partition, or lease, may be notice of a general intention in that behalf ; nevertheless the tenant for life is, upon request by a trustee of the settlement, to furnish to him such particu- lars and information as may be reasonably required by him from time to time with reference to sales, exchanges, par- titions, or leases effected, or in progress, or immediately intended; and further, the amending Act provides that any trustee by writing under his hand may waive notice either in any particular case or generally, and may accept less than one month's notice ; and the now-stating section applies to a notice given before, as well as to a notice given (>-)Seot. 45. The trustees of the be the trustees thereof for the pur- settlement are defined as the trns- poses of the Act ; and (failing any tees with a power of sale (pre- such) the persons who under sently exeroiseable, "Wheelwright v. sect. 38 of the Act shall have been Walker, 23 Ch. Div. 752, 761) over appointed by the court (sect. 2, the settled land, or with power of sub-s. 8). See Orme and Har- consent to or approval of the exer- greaves' Contract, 26 Ch. Div. 595. cise of such a power of sale ; and (») 47 & 48 Vict. o. 18. j(failing any such) the persons who (<) 25 Ch. Div. 464. by the settlement are declared to CH. XXIV.— CONVEYANCING AND LAND ACTS OF 1881-9, 689 after, the 3rd day of July, 1884, being the date of the passing of the amending Act, not being a notice to the sufficiency of which objection has been taken before the 3rd day of July, 1884. But it is not incumbent on the trustees (after or in con- sequence of receiving such notice) to do anything by way of interfering with or controlling the proposed exercise by the tenant for life of the powers conferred upon him by the Act, or of any of such powers, excepting so far as the Act expressly requires their consent or concurrence; and the trustees are not to be liable for either giviag or re- fusing their consent where such consent is required by the Act to the tenant for life's exercise of his powers («). A tenant for life, as regards the powers conferred upon him by the Act, is to be deemed to stand in a fiduciary relation to the persons entitled under the settlement, and he must accordingly have regard to their interests (v) ; nevertheless, on any sale, exchange, partition, lease, mort- gage, or charge, a purchaser, lessee, mortgagee, or other person dealing in good faith with the tenant for life, shall, as against all parties entitled under the settlement, be con- clusively taken to have given the best price, consideration, or rent (as the case may require) that could reasonably be obtained by the tenant for Hfe, and to have complied with all the requisitions of the Act («) ; and in particular, a statement contained in a lease or in an indorsement thereon signed by the tenant for life, respecting any matter of fact or of calculation under the Act in relation to the lease, shall, in favour of the lessee and of those claiming under him, be sufficient evidence of the matter therein stated (y). The remedy (if any) wiU, therefore, in all cases, be a per- sonal one against the tenant for life himself (2) . Having stated the provisions of the Act which are of (m) Sect. 42. iv) Sect. 7, sub-s. 6. (») Seot. 63. (s) See, e. g., sect. 28, sub-s. 5. (;;;) Seot. 54. VOL. I. Y Y 690 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. general appKoation, we may now proceed to state the pro- visions of the Act which relate specially to the exercise of the specific powers conferred by the Act. And firstly, as regards sales. — ^Every sale is to he made for the best price that can reasonably be obtained («). The sale may be in one lot or in several lots, and either by public auction or by private contract (6), and with or without a reserve price or power to buy in (c), and subject or not sub- ject to any stipulations regarding title, evidence of title, or otherwise (d) ; and the sale may be made subject to any restriction regarding the subsequent user of the land, or regarding building thereon, and subject to any reservation of mines and minerals or mining rights (e). When the sale is of land subject to any incumbrance, the tenant for life may (with the consent of the incumbrancer) charge the incumbrance oil other part of the settled land in exoneration of that sold (/). The sale may extend even to the principal mansion house and to the demesnes thereof, but in that case either the trustees of the settle- ment must consent to the sale, or an order of the court must be obtained to sanction it {g). Also, on or in con- nection with a sale (if the same is for building purposes), the tenant for life may, for the benefit of the residents on the settled land or on any part thereof, make the following provisions {h), that is to say : (1) may cause or require any parts of the settled land to be appropriated and laid out for streets, roads, paths, squares, gardens, or other open spaces, for the use (gratuitously or on payment) of the public or of individuals, with sewers, drains, watercourses, fences, paving, or other works necessary or proper in con- nection therewith ; and (2) may provide that the parts so (a) Sect. 4, sub-s. 1. But see (as («) Ibid.sub-s.6; andseeseot.17. to sites for dwellings for the work- (/) Sect. 5. ing classes) 48 & 49 Vict. o. 72, (g) Sect. 15. See In re Brown's s. 11, snb-3. 1. -Win, 27 Ch. Div. 179; In re (A) Sect. 4, sub-s. 3. Sebrigbt's Settled Estates, 33 Ch. (c) Ibid, sub-s. 4. Div. 429. (rf) Ibid, sub-s. 5. (A) Sect. 16. CH. XXIV, — CONVEYANCING AND LAND ACTS OF 1881-9. 691 appropriated shall be conveyed to or vested in the trustees of the settlement, or in other trustees, or in any company or public body, on trusts or subject to provisions for securing the continued appropriation thereof to the purposes afore- said, and the continued repair or maintenance of streets and other places and works aforesaid, with or without pro- vision for appointment of new trustees when required; and (3) may execute any general or other deed necessary or proper for giving effect to the foregoing provisions (which deed may be enrolled in the Central Office of the Supreme Court of Judicature), and thereby declare the mode, terms, and conditions of the appropriation, and the manner in which, and the persons by whom, the benefit thereof is to be enjoyed, and the nature and extent of the privileges and conveniences granted. Also, upon any sale and in completion thereof, the tenant for life may, as regards the land sold (including copyhold or customary or leasehold land vested in trustees), or as regards easements and the like, convey or create the same by deed for the estate or interest the subject of the settlement, or for any less estate or interest, to the uses and in the manner necessary for giving effect to the sale (i) ; and the deed shall accordingly operate to pass the land conveyed, or the easements, rights, or privileges created, discharged from all the limitations, powers, and provisions of the settlement, and from all estates, interests, and charges subsisting or to arise thereunder, subject of course to all estates which have priority to the settlement, and to all estates made under powers in the settlement for secur- ing moneys actually raised at the date of the deed, and to all leases or other alienations already made for value and binding the settlement (k) ; and if the deed comprises copyhold or customary land, the same is to be entered on the court rolls, and the purchaser admitted thereupon without any surrender or other act, so nevertheless that (i) Sect. 20, 8ub-s. 1. (*) Sect. 20, sub-s. 2. YY 2 692 BX. il. OF BIGHTS 01? PKOPEETY. FT. I. THINGS KEAL. the lord's fines and the steward's fees be not thereby pre- : judioed(e). Secondly, as regards exchanges and partitions. — Every exchange and every partition is to be made for the best consideration in land, or in land and money, that can reasonably be obtained (/) , or in consideration of or sub- ject to the reservation of an undivided share in mines or niinerals {ig), and may be made subject or not subject to any stipulation regarding title, evidence of title, or other- wise (A), and subject to any restriction regarding the sub- sequent user of the land, or regarding building thereon, and subject to any reservation of mines and minerals or mining rights («') ; and when the exchange or the partition is of land, or the exchange is for land subject to any incum- brance, the tenant for life may (with the consent of the incumbrancer) charge the incumbrance on other part of the settled land in exoneration of that given ia exchange or partition or received in exchange (A). Also, where money is required for equality of exchange or of par- tition, the tenant for life may raise the same on mort- gage of the settled land or of any part thereof, by a mortgage thereof, either in fee simple or for a term of years (^). And upon any exchange or partition, and in completion thereof, the tenant for life may, as regards the land given in exchange or on partition (including copyhold or customary or leasehold land vested in trustees), or as regards easements and the like, convey or create the same by deed fot the estate or interest the subject of the settle- ment, or for any less estate or interest, to the uses and in the manner necessary for giving effect to the exchange or the partition {m) ; that is to say, the deed will operate to (e) Sect. 20, sub-s. 3. See In re (i) Ibid, sub-s. 6 ; and see Naylor and Spendla, 34 Ch. D. 217. sect. 17. (/) geot. 4, sub-s. 2 ; and supra, {;i;) Sect. 6. p-. 690, n. [a). (?) Sect. 18. ig) Sect. 17, sub-s. 2. \m) Sect. 20, sub-s. I. {!>) Sect. 4, sub-s. 5. CH. XXIV.— CONVEYANCING AND LAND ACTS OF 1881-9. 693 pass the land conveyed, or the easements, rights, or privi- leges created, discharged from all the limitations, powers, and provisions of the settlement, and from aU estates, interests, and charges subsisting or to arise thereunder, subject of course to all estates which have priority to the settlement, and to all estates made under powers in the settlement for securing moneys actually raised at the date of the deed, and io all leases or other alienations already made for value and binding the settlement («) ; and if the deed comprises copyhold or customary land, the same is to be entered on the court roUs and the party admitted thereupon without any surrender or other act, so never- theless that the lord's fines and the steward's fees be not thereby prejudiced (o). Thirdly, as regards enfranchisements. — Every enfran- chisement may be made either with or without a re-grant of any right of common or other right, easement, or privi- lege theretofore appendant or appurtenant to, or held or enjoyed with the land enfranchised, or reputed so to 'he(p). And, when money is required for enfranchise- ment, the tenant for life may raise the same on mortgage of the settled land, or of any part thereof, by a mortgage thereof either in fee simple or for a term of years (q). Fourthly, as regards leases. — Every lease is to be by deed, and to take effect in possession not later than twelve months after its date (r), and it is to reserve the best rent that can reasonably be obtained, regard being had to any fine taken (s), and to any money laid out, or to be laid out, for the benefit of the settled land, and generally to the circumstances of the case {t), and it is to contain a («) Sect. 20, sub-s. 2. W This fine is capital, not in- (o) Ibid, sub-s. 3. corns. (See Settled Land Act, {p) Sect. 4, sub-s. 7. 1884, s. 4.) (q) Sect. 18. (0 Sect. 7, sub-s. 2 ; and supra, (>•). Sect. 7, sub-s. 1. P- 690, n. (a). 694 BK. II. OF RIGHTS OF PROPERTY. — PT. 1. THINGS HEAL. covenant by the lessee for payment of the rent, and a condition of re-entry on the rent not heing paid within a time therein specified, not exceeding thirty days (u) ; also, a counterpart of every lease is to he executed by the lessee and delivered to the tenant for life, of which execution and delivery the execution of the lease by the tenant for life is sufficient evidence (v). As regards building leases (x) : Every building lease is to be made partly in consideration of the lessee, or some person by whose direction the lease is granted, or some other person, having erected, or agreeing to erect, build- ings, new or additional, or having improved or repaired, or agreeing io improve or repair, buildings, or having executed,, or agreeing to execute, on the land leased, an improvement for or in connection with building purposes. A peppercorn rent, or a nominal or other rent less than the rent ultimately payable, may be made payable for the first five years, or any less part of the term. The building lease may give the lessee an option of purchase, to be exercised within any agreed number of years, not exceed- ing ten years («/). Also, where the land is contracted to be leased in lots, the entire amount of rent to be ultimately payable may be apportioned among the lots in any manner; save that — (1) The annual rent reserved by any lease is not to be less than ten shillings ; and (2) The total amount of the rents reserved on all leases for tibe time being granted is not to be less than the total amount of the rent which, in order that the leases may be in con- formity with the Act, ought to be reserved in respect of the whole land for the time being leased; and (3) The rent reserved by any lease is not to exceed one fifth part of the fuU annual value of the land comprised in that lease, with the buildings thereon, when completed. As regards mining leases (s) : (1) The rent may be {«) Sect. 7, sub-s. 3. (y) 62 & 53 Vict. c. 36 (Settled (d) Ibid, sub-s. 4. Land Act, 1889), b. 2. {x) Sect. 8. {s) 45 & 46 Vict. o. 38, s. 9. CH. XXIV.— CONVEYANCING AND LAND ACTS OF 1881-9. 695 made to be ascertainable by, or to vary according to, the acreage worked, or by or according to the quantities of any mineral or substance gotten, made merchantable, con- verted, carried away, or disposed of, in or from the settled la,nd or any other land, or by or according to any facilities given in that behalf; and (2) A fixed or minimum rent may be made payable, with or without power for the lessee, in case the rent according to acreage or quantity in any specified period does not produce an amount equal to the fixed or minimum rent, to make up the deficiency in any subsequent specified period, free of rent, other than the fixed or minimum rent. Also, the lease may be made partly in consideration of the lessee having executed, or his agreeing to execute, on the land leased an improve- ment of the kind authorized by the Act for or in connec- tion with mining purposes. And generally, as regards both building and mining leases, where it is shown to the court with respect to the district in which any settled land is situate, either — (1) That it is the custom for land therein to be leased or granted for building or mining purposes for a longer term or on other conditions than the term or conditions specified in that behalf in the Act, or in perpetuity ; or (2) That it is difficult to make leases or grants for building or mining pur- poses of land therein, except for a longer term, or on other conditions than the term and conditions specified in that behalf in the Act, or except in perpetuity; the court may {a), if it thinks fit, authorize generally the tenant for life to make from time to time leases or grants of or affecting the settled land in that district, or parts thereof, for any term or in perpetuity, at fee-farm or other rents secured by condition of re-entry, or otherwise, as in the order of the court ex- pressed, or may, if it thinks fit, authorize the tenant for life to make any such lease or grant in any particular case. Thereupon the tenant for life, and, subject to any direc- tion in the order of the court to the contrary, each of his {a) Sect. 10. 696 BK. II, OF EIGHTS OF PROPERTY. PT. I. THINGS REAL. successors in title, teing a tenant for life witliin tte' mean- ing of the Actj may make in any case, or in the particular case, a lease or grant of or affectiag the settled land^ or part thereof, in conforniity -with the order. Also, on or in connection with any hmlding lease, the tenant for life (5), for the general benefit of the residents on the settled land, or on any part thereof — (i) May cause or require any parts of the settled land to be appropriated and laid out for streets," roads, paths, squares, gardens, or other Open spaces, f6r the use, gratuitously or on payment, of the public or of individuals, with sewers, drains, water- courses, fencing, paving, or other works necessary or proper in connection therewith; and (ii) May provide that the parts so appropriated shall be conveyed to or vested in the trustees of the settlement, or in other trustees, or in any company or public body, on trusts, or. subject to provisions for s&cuiing the continued appropriation thereof to the purposes aforesaid, and the continued repair or maiatenance of streets and other places and works aforesaid, with or without provision for appointment of new trustees when required; and (iii) May execute any general or other deed necessary or proper for giving effect to the fore- going provisions (which deed may be enrolled in the Central Office of the Supreme Court of Judicature), and thereby declare the mode, terms, and conditions of the appropriation, and the manner in which, and the persons by whom, the benefit thereof is to be enjoyed, and the nature and extent of the privileges and conveniences granted. Also, a mining lease may be made with or without an exception or reservation of other mines or minerals, and with or without a lease of the settled land or any part thereof, and with or without a grant or reservation of powers of working, and of wayleaves or rights of way, rights of water and drainage, and other powers, ease- ments, rights, and privileges for or incident to or con- (») Sect. 16. CH. XXIV.— CONVEYANCING AND LAND ACTS OF 1881-9. 697 nected with mining purposes, in relation to the Settled land or any part thereof, or any other land (c). But no lease, either of the principal mansion-house and of the demesne lands oooupied therewith, for huilding or other purposes, or of the mines and minerals thereimder, or under any part thereof, may he made by the tenant for life under the leasing powers of the Act, imless he first obtain either the consent thereto of the trustees of the settlement, or else an order of the court authorizing the same (d). And upon any lease, and iq completion thereof, the tenant for life may, as regards the land leased (including copyhold or customary or leasehold land), and as regards easements or other rights or privileges leased, convey the lands or create the easements by deed for the term of the lease (not exceeding the estate or interest the subject of the settlement), to the extent of giving full effect to the lease; and for this purpose may discharge all the limi- tations, powers, and provisions of the settlement, and all estates subsisting or to arise thereunder, not being estates, interests, and charges having priority to the settlement, and not being estates, interests, and charges already con- veyed or created under powers in the settlement for secur- ing money actually raised at the date of the lease, and not being other leases already made thereunder, or tmder the powers conferred by the Act (e). And as regards the leasing powers generally of a tenant for life, these extend (/) to the making of (i) a lease for giving effect to a contract entered into by any of his pre- decessors in title for making a lease which, if made by the predecessor, would have been binding on the successors in title ; and (ii) a lease for giving effect to a covenant of renewal, performance whereof could be enforced against the owner for the time being of the settled landj and . (a) Sect. 17. {«) Sect. 20. {d) Sect. 15. See In re Brown's (/) Sect. 12. Will, 27 Ch. Div. 179. 698 BK. II. OF RIGHTS OF PROPERTY. ^PT. I. THINGS REAL. (iii) a lease for confirming, as far as may "be, a previous lease, being void or voidable ; but so that every lease, as and when confirmed, shall be such a lease as might at the date of the original lease have been lawfully granted, under the Act, or otherwise, as the case may require. Also, the tenant for life may (g) accept, with or without consideration, a surrender of any lease of settled land, whether made under the Act or not, in respect of the whole land leased or any part thereof, with or without an excep- tion of all or any of the mines and minerals therein, or in respect of mines or minerals, or any of them ; and on a surrender of a lease in respect of part only of the land or miaes and minerals leased, the rent may be apportioned. Also, on a surrender the tenant for life may make of the land or mines and minerals surrendered, or of any part thereof, a new or other lease, or new or other leases in lots ; and the new or other lease may comprise additional land or mines and minerals, and may reserve any apportioned or other rent. Also, on a surrender and the making of a new or other lease, whether for the same or for any ex- tended or other term, and whether or not subject to the same or to any other covenants, provisions, or conditions, the value of the lessee's interest in the lease surrendered may be taken into account in the determination of the amount of the rent to be reserved, and of any fine to be taken, and of the nature of the covenants, provisions, and conditions to be inserted in the new or other lease. And, by way of concluding this exposition of the tenant for life's power of leasing, it should be mentioned that, in the case of mining leases, the Act expressly provides (h), {g) Sect. 13. -waste, wHch timber lie may fell (A) Sect. 11. See In re Duke of -witli the consent of the trustees of Newcastle's Estates, 24 Ch. Diy. the settlement or under an order of 129. See also sect. 35, as to treat- the court. And distinguish the ing as capital three fourth parts of case of such timher when sold as the produce of timber-sales, when parcel of the land {Llewellia v, timber ripe for cutting is felled by Williams, 37 Ch. Div. 317). a tenant for life impeachable for Cti:. XXIV.— CONVEYANCING AND LAND ACTS OF 1881-9. 699 (unless the settlement itself provides to the contrary), that there shall he from time to time set apart, as capital money arising under the Act, part of the rent, and that, whether the mines have been already opened or in work or not, that is to say, where the tenant for life is impeachable for waste, three fourth parts of the rent, and where he is not impeachable for waste, then one fourth part thereof, and in either case the residue only of the rent is to be dealt with as income. Fifthly, as regards improvements. — Where improve- ments are proposed to be made by the tenant for life with capital money arising under the Act, the Act provides as follows («') : that the tenant for life shall submit for approval to the trustees of the settlement, or to the court, as the case may require, a scheme for the execution of the improve- ment, showing the proposed expenditure thereon ; and that where the capital money to be expended is in the hands of trustees, then, after a scheme is, approved by them, the trustees may apply that money in or towards payment for the whole or part of any work or operation comprised in the improvement, on — (1) a certificate of the Land Com- missioners (k), certifying that the work or operation, or some specified part thereof, has been properly executed, and what amount is properly payable by the trustees in respect thereof, which certificate shall be conclusive in favour of the trustees as an authority and discharge for any payment made by them in pursuance thereof ; or on (2) a like certificate of a competent engineer or able practical surveyor nominated by the trustees and approved by the commissioners, or by the court, which certificate shall be conclusive as aforesaid ; or on (3) an order of the court directing or authori2dng the trustees to so apply a specified (t) Sect. 26 ; and supra, p. 690, procedure, ss. 48, 49. Their office , V ia now transferred to the Board of ' (k) See, as to the Land Conums- Agriculture (52 & 53 Vict. o. 30, sioners, their title, duties, seal, and s. 2). 700 BK. II. OF RIGHTS OF PROPERTY. PT. 1. THINGS REAL. portion of the capital money ; and where the capital money to be expended is in court, then, after a scheme is approved by the court, the court may, if it thinks fit, on a report or certificate of the commissioners, or of a competent engineer or able practical surveyor, approved by the court, or on such other evidence as the court thinks sufficient, make such order and give such directions as it thinks fit for the application of that money, or any part thereof, in or towards payment for the whole or any part of any work or operation comprised in the improvement. And as regards the subsequent maintenance of' the improvements so made, the Act provides {I), that the tenant for Hfe, and each of his successors in title, having under the settlement a limited estate or interest only in the settled land, shall, during such period, if any, as the Land Commissioners by certificate in any case prescribe, maintain, and repair, at his own expense, every improvement executed under the Act, and where a building or work in its nature insurable against loss or damage by fire is comprised in the improve- ment, shall insure and keep insured the same, at his own expense, in such amount, if any, as the commissioners by certificate in any case prescribe. Also, that the tenant for life, or any of his successors as aforesaid, shaU not cut down, or knowingly permit to be cut down, except in proper thiiming, any trees planted as an improvement under the foregoing provisions of the Act. Also, that the tenant for hfe, and each of his successors as aforesaid, shall from time to time, if required by the commissioners, on or without the suggestion of any person having under the settlement any estate or interest in the settled land in possession, remainder, or otherwise, report to the commis- sioners the state of every improvement executed imder the Act, and the fact and particulars of fire insurance, if any. And if the tenant for life, or any of his successors as aforesaid, fails in any respect to comply with the requi- . [1) Sect. 28. CH. XXIV. — CONVEYANCIXG AND LAND ACTS OF 1881-9. 701 sitions aforesaid, or does any act in contravention thereof, any person having under the settlement any estate or interest in the settled land in possession, remainder, or reversion, shall have a right of action, in respect of that default or act, against the tenant for life ; and the estate of the tenant for hfe, after his death, shall he liahle to make good to the persons entitled under the settlement any damages occasioned hy that default or act. And with a view to enabling the tenant for life not only to execute in the first instance, but also thereafter to maintain in good repair, the improvements aforesaid, the Act provides (m) that he may commit waste (not being equitable waste) with impunity, either as regards minerals, timber, or otherwise. The capital moneys arising under the Act, that is to say, capital moneys arising in respect of any dealings with the settled land under the powers conferred by the Act on the tenant for life, and which are therefore receiv- able upon the trusts and for the purposes of the settlement, are to be paid either to the trustees of the settlement or into court, and the tenant for life has the option as to which of these modes of payment shall be used(w). "Where the capital moneys are paid to the trustees, there must be two trustees at the least (unless the settlement authorizes one trustee to receive them) (o) ; the trustees or (if the case is so) the trustee may give an effective receipt for the moneys so paid to them or him(^), and each trustee is to be answerable for his own receipts only, and not for any loss of capital moneys, even when received by him, unless the loss arises through his own wilful default (q). Every trustee may reimburse himself his charges and expenses "out of the capital moneys (r). Capital moneys ai-ising under the Act will be applicable primarily for the specific purpose (if any) for which they {m) Sect. 29. (p) Sect. 40. (») Sect. 22. See Cookes v. (?) Sect. 41. Cookes, 34 Ch. Div. 498. {»•) Sect. 43. , (o) Sect. 39. 702 BK. II. OF EIGHTS OF PROPERTY. PT. I. THINGS REAL. were raised, e.g., to pay for equaKty of exchange, or to pay tHe consideration-moneys on an enfranchisement ; subject thereto, and to any other payments {e.g., for costs and expenses) («), primarily payable out of the capital moneys, they are to be applied (representing in fact, and being a substitute for, the settled land) in aU or some or one of the' following ways {t), that is to say : (i) In investment on Government securities, or on other securities on which the trustees of the settlement are by the settlement or by law authorized to invest trust money of the settlement or on the securities of the bonds, mortgages, or debentures, or in the purchase of the debenture stock of any railway company in Great Britain or Ireland incorporated by special Act of Parliament, and having for ten years next before the date of investaient paid a dividend on its ordinary stock or shares, with power to vary the investment into or for any other such securities : (ii) In discharge, purchase, or redemption of incum- brances affecting the inheritance of the settled land, or other the whole estate the subject of the settlement, or of land tax, rent-charge in lieu of tithe, Crown rent, chief rent, or quit rent, charged on or payable out of the settled land : (iii) In payment for any improvement authorized by this Act : (iv) In payment for equality of exchange or partition of settled land : (v) In purchase of the seignory of any part of the settled land, being freehold land, or in purchase of the fee simple of any part of the settled land, being copyhold or customary land : (vi) In purchase of the reversion or freehold in fee of any part of the settled land, being leasehold land (s) As to raising such costs and In re EnatohbiiU's Settled Estate, expenses, see sect. 47, authorizing 27 Ch. Div. 349 ; 29 Ch. Div. 588 a mortgage or charge on the settled see Settled Land Act, 1887 (50 & land, either in fee simple or for a 51 Vict. c. 30). And as to capital term. moneys under the Lands Clauses it) Sect. 21. See Clarke «. Thorn- Act, 1846, and other Acts, see ton, 35 Ch. Div. 307; and as to Settled Land Act, 1882, ss. 32, 33. CH. XXIV.— CONVEYANCING AND LAND ACTS OV 1881-9. 703 held for years, or life or years deterininable on life: (vii) In purchase of land in fee simple, or of copyhold or customary land, or of leasehold land held for sixty years or more tmexpired at the time of purchase, subject or not to any exception or reservation of or in respect of mines or minerals therein, or of or in respect of rights or powers relative to the working of mines or minerals therein or in other land : (viii) In purchase, either in fee simple, or for a term of sixty years or more, of mines and minerals con- venient to be held or worked with the settled land, or of any easement, right, or privilege convenient to be held with the settled land for mining or other purposes : (ix) In payment to any person becoming absolutely entitled or empowered to give an absolute dis- charge : (x) In payment of costs, charges, and expenses of or incidental to the exercise of any of the powers, or the execution of any of the provisions of the Act: (xi) In any other mode in which money produced by the exercise of a power of sale in the settlement is applicable thereunder (m). Capital moneys received by trustees of the settlement are to be invested by them according to the direction of the tenant for Ufe, and failing any such direction, at their (the trustees') own discretion, but with such (if any) con- sents as the settlement requires {v) ; and no investment is to be altered or varied unless with the consent of the tenant for life (x) ;- capital moneys paid into court are to be invested, or otherwise applied, under an order of the court to be obtained by the tenant for life, or by the trustees (y). The investments, and the moneys until in- vested, are to be considered as land for all purposes of («j) In re Lord Aylesford's Settled {x) Ibid, sub-s. i. Consider In Estates, 32 Ch. Div. 162. re Clitheroe Estate, 28 Ch. Div. (v) Sect. 22, sub-s. 2. 378 ; 31 Ch. Div. 135. (y) Sect. 22, sub-s. 3. 704 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. alienation or devolution (s), and the income thereof is to go and be paid as the rents and profits of the settled land (a). And, in particular, when the capital money is purchase-money paid in respect of a lease for years, or life, or years determinable on life, or in respect of any other estate or interest in land less than the fee simple, or in respect of a reversion dependent on any such lease, estate, or interest, the trustees of the settlement, or the court, as the case may he, and in the case of the court on the application of any party interested in that money, may, notwithstanding anything in the Act, require and cause the same to be laid out, invested, accumulated, and paid in such manner as in the judgment of the trustees or of the court, as the case may be, will give to the parties interested in that money the like benefit therefrom as they might lawfully have had from the lease, estate, interest, or rever- sion in respect whereof the. money was paid, or as near thereto as may be (b). Lands acquired by purchase with capital moneys arising under the Act, or acquired by exchange or on partition, are to be settled to, for, and upon the uses,, purposes, and trusts of the settlement (c) ; and in particular (1) freehold land is to be conveyed to, the uses, on the trusts, and sub- ject to the powers and provisions which, under the settle- ment, or by reason of the exercise of any power of charging therein contained, are subsisting with respect to the settled land, or as near thereto as circumstances permit, but not so as to increase or multiply charges or powers of charging; and (2) copyhold, customary, or leasehold land is to be conveyed to and vested in the trustees of the settlement, on trusts and subject to powers and provisions corresponding, as nearly as the law and circumstances permit, with the uses, trusts, powers, and provisions to, on, and subject to which freehold land is to-be conveyed as aforesaid; so, nevertheless, that the beneficial interest in («) Sect. 22, sub-s. 5. (J) Sect.. 34. (a) Ibid.. (c) Sect. 24. CH. XXIV.— CONVEYANCING AND LAND ACTS OF 1881-9. 705 land held by lease for years shall not vest absolutely in a person who is by the settlement made by purchase tenant in taU, or in tail male, or in tail female, and who dies under the age of twenty- one years, but shall on the death of that person under that age go as freehold land conveyed as aforesaid would go. Also, land acquired as aforesaid may be a substituted security for any charge in respect of money actually raised and remaining unpaid from which the settled land or any part thereof, or any undivided share therein, has theretofore been released on the occasion and in order to the completion of a sale, exchange, or partition. Regarding heir-looms and personal chattels settled in trust so as to devolve with land until a tenant in tail of the land entitled thereto by purchase (as opposed to descent) is born or attains the age of twenty-one years, or so as otherwise to vest in some person becoming entitled to an estate of inheritance in the land, the Act provides {d), that the tenant for life of the land may (but only with the sanction of the court) sell the heir-looms, or chattels, or any of them ; and the sale proceeds are to be dealt with as capital moneys arising under the Act, and in addition may be invested in the purchase of other chattels of the like or any other nature, to be settled upon the like trusts as the heir-looms or chattels sold. In a trader's settlement (as it is called, to distinguish, it from a strict settlement), the settled land is usually settled upon trust for sale, and the rents and profits of the land until sale, and the income of the sale-proceeds when invested, are usually given to one or more persons for his, her, or their lives, and the capital moneys are afterwards divisible among the children of the marriage and their (d) Sect. 37. See Tane v. Fane, Div. 179 ; In re Houghton's Estate, 2 Ch. Div. 711 ; D'Eynoourt v. 30 Oh. Div. 102 ; In re Duke of Gregory 3 Ch. Div. 635 ; also, Ke Marlborough's Settlement, 30 Ch. Oamac, 30 Ch. Div. 136 ; and con- Div. 127 ; 32 Ch. Div. 1. aider In re Brown's WiU, 27 Ch. VOL. T. ^ ^ 706 BK. II, or EIGHTS OF PEOPEUTY. PT. I. THINGS EEAL. descendants. To sucli a settlement, all the beneficial pro- visions of the Settled Land Acts are applicable, mutatis mutandis (e), it being obvious that such land is for all pur- poses of transmission and devolution merely personal estate ; consequently the trust funds are not to be invested in the purchase of land, unless there is an express provision in the settlement authorizing such an investment (/) ; and there is also this great distinction between strict settle- ments and the trader's settlements now under considera- tion, that by the provisions of the Settled Land Act, 1884 (g), a tenant for life under a trader's settlement can only exercise under the sanction of the court the powers conferred upon the tenant for life under a strict settlement. («) Sect. 63; and see Settled Land (/) Sect. 63, sub-s. 2. Act, 1884 (47 & 48 Vict. c. 18), s. 6. {g) 47 & 48 Vict. u. 18, a. 7. ( 707 ) CHAPTEE XXV. OF REGISTRATION OF TITLE TO LAND. In former parts of the present volume we have explained the methods by which estates in land are at the present day transferred from one owner to another. But in these conveyances, however otherwise effectual and convenient, it is generally admitted that there is one palpable defect, or rather inconvenience — the want of sufficient noto- riety ; so that purchasers or creditors cannot know, with absolute certainty, what the estate and the title to it in reality are, upon which they are to lay out or lend their money. In the antient feudal manner of conveyance (by giving corporeal seisin of the lands), this notoriety was in some measure attained, — as it was, also, by the old Saxon custom of transacting aU. conveyances at the sheriS's county court, and entering a memorial of them in the chartulary or leger-book of some adjacent monastery (a). But since the disuse of both of these methods, our transfers of land have been for the most part private, only a very few of them req[uiring enrolment ; and the inconveniences resulting from this were, at an early period, strongly felt ; and more particularly in the important districts of Middlesex and Yorkshire. In the former of these two (a) 2 Bl. Com. p. 342. Anamtient " blished by King Richard 1, for method of similar character, though "the stars, or mortgages made only of partial appKcation, is also "to the Jews iii the capiiula de noticed by Blaokstone, -viz., the " Judais, of which Hoveden has '« general register which was esta- " preserved a copy." z z 2 708 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. counties (/*), accordingly, that is to say, in Middlesex, a guard was provided against secret deeds, conveyances, wills, and other incumbrances, by the statute 7 Anne, c. 20, which statute is still in force, and has been recently amended by the statute 37 & 38 Yict. c. 78 («) ; and as re- gards Torkshire, the like guard or protection was provided by the statutes 2 & 3 Anne, c. 4, and 6 Anne, o. 20 (for the West Riding of that county), and by the statute 6 Anne, c. 62 (k) (for the East Riding), and by the statute 8 Greo. II. c. 6 (for the North Biding), all which four last- mentioned statutes have been recently repealed, and their provisions, with certain amplifications and modifications, have been re-enacted, promiscuously for the whole county, in and by the Yorkshire Registries Act, 1884 (/). These enactments have provided that any deed, conveyance, or devise which shall affect land of freehold tenure, situate in either of those two counties (but not including leases at rack rent, or for twenty-one years or under, where the actual possession goes along with them), shall be fraudulent and void against a subsequent purchaser or mortgagee (m), unless a memorial thereof shall have been registered in such manner and within such period as the Acts direct (w) ; and the Acts, especially that of 1884 for the county of York, contain also many provisions regarding priorities, notices, intestacies, and the like, which are of too special a (A) As to parts of Bedfordshire, E, 142 ; Sumpter v. Cooper, 2 B. & see 15 Car. 2, c. 17, s. 8 ; Willis v. Add. 223 ; Queen v. Registrars of Brown, 10 Sim. 127. Middlesex, 7 Q. B. 156 ; "WoUaston (j) Commonly called the Vendor v. 'H.akeweO., 3 Man. & Gr. 297 ; and Purchaser Act, 1874, s. 8. Hall v. Warren (Dom. Proc), 10 (A) SeeChadwickv. Turner, Law W. R. p. 66; Credland «/. Potter, Rep., 1 Ch. App. 310. Law Rep., 18 Eq. Ca. 350 ; Brad- (/) 47 & 48 Vict. c. 54, amended ley i>. Riches, 9 Ch. Div. 212. by the 48 Vict. o. 19, and the 48 & («) As to the effect of a regis- 49 Vict. 0. 26. tered assurance, hy the devisee of (m) As to the construction of land in Middlesex or Yorkshire these Acts, see L'Neve v. L'Neve, under a wiU not duly registered, 1 Ves. sen. 64 ; Tmistall v. Trappes, see 37 & 38 Vict. o. 78, s. 8. 3 Sim. 301 ; Doe v. Allsop, 5 A. & CHAP. XXV. OF REGISTRATION OF TITLE TO LAND. 709 character to be entered upon in this work. The policy of the above-specified statutes has, however, never been extended to other parts of England; and "it has been doubted by very competent judges whether more disputes have not arisen in those counties by the inattention and omission of parties, than prevented by the use of regis- ters ' (o) ; also, owing to the great increase and sub- division of tenements in Middlesex and Yorkshire, es- pecially on building estates, the registers have grown very cumbrous and difficult to search through, the guiding par- ticulars which were sufficient in the reign of Q,ueen Anne having now become glaringly insufficient, and necessitating in some cases weeks of searching through the register, upon the sale of a single house, e.g., in Kensington. Yet, in our own times, many have been of a different opinion, and it has been urged that a system of registration of title might be devised which, by the advantages it offered, should induce landholders to avail themselves of its pro- visions ; and which by its operation should not merely protect purchasers and mortgagees against insecure titles, but should also subserve the more general object of sim- plifying titles and facilitating the transfer of land in England. These views have been at different times, and with more or less division of opinion, adopted by the legislature, and more than one attempt has been made to carry them into effect, but invariably without much success. Thus, in the year 1862, by the 25 & 26 Vict. c. 53, an office, under the name of the " Land Eegistry," was established ; and in the same year, by the 25 & 26 Vict. c. 67, enactments were made enabling persons under certain circumstances to obtain a judicial " declaration of title ; " but the great and favourable expectations which attended the establishment of the " Land Eegistry" by the first of these statutes have not been altogether confirmed by experience, and little (o) 2 Bl. Com. 343. 710 BK. II. OF IIIGHTS OF PROPERTY. PT. I. THINGS REAL. reeoiirse has been had to their provisions. A fresh en- deavour, however, has been recently made to devise a system of registration which shall be more effectual ; and some extracts from the new statute, and from those which are contained in the Declaration of Title Act, 1862, may be here acceptable, though a detailed account of them would be improper in a work such as the present. The Land Transfer Act, 1875, (38 & 39 Viet. c. 87,) deals separately with freehold and with leasehold pro- perty; and it affects only lands of freehold tenure as distinct from copyhold {p). Firstly, as \a freeholds : — It is provided by the Act that application to be put on the register, either in his own name or in the name of a nominee or nominees, may be made by any person, 1, who has contracted to buy for his own benefit an estate in fee simple (subject or not to incimabrances) ; or, 2, who is entitled for his ovm benefit at law or in equity to such an estate ; or, 3, who is capable of disposing for his own benefit by way of sale of such an estate {q). But in the case first supposed, he must have obtained the con- sent of the vendor to the application being made (;•). In its terms, the application (which is to the registrar of the office established by the Act) is for registration as pro- prietor of the fee simple of the estate in question ; and the applicant may apply to be registered either with an absolute or with a title possessory only (>•) . Where the title required is "absolute," the application is not to be granted by the registrar unless he approves of the title (s) ; but where it is possessory only, then it is sufficient for the purpose of registration if the applicant shall give such evidence of (p) "Customary freehold " (as veyance -within the meaning of the to -which -vide sup. p. 226) shall Registry Acts (see The Queen v. not, for the purposes of the Act, Middlesex Begistrar, 21 Q. B. D. be deemed to be land of freehold 655). tenure (38 & 39 Vict. c. 87, s. 2). (?) Sect. 5. But an enfranchisement deed of (r) Ibid, copyhold land is a freehold con- (s) Sect. 6. CHAP. XXV. — OF REGISTR.'i.TION OF TITLE TO LAND. 711 title, and serve suoli notices, as may for the time beiag be prescribed by rules made to carry out tbe Act {t). With regard to the effect of registration, the Act provides that in the first registered proprietor with an absolute title shall vest an estate in fee simple, free from all other estates and interests (including those of the Crown), but subject to certain qualifications specified in the Act (m). These refer — 1. To any incumbrances entered on the register. 2. To such HabiKties, rights, and interests as are declared by the Act not to be incumbrances (a;). 3. To any ^xn.- registered estates, rights, interests, or equities to which any persons may be entitled who claim under such proprietor. And it is further provided that registration with a posses- sory title only, shall have the same effect as registration with an absolute title, except that it shall not affect or prejudice the enforcement of any estate, right, or interest adverse to or in derogation of the proprietor registering (y). It is also enacted that, in certain cases, where the applica- tion is for an absolute title, and it appears to the registrar on examination that it can be established only for a limited period, or subject to certain reservations, the title may be registered as a qualified one (z). And, further, that on the registration being completed, the proprietor shall be sup- plied with a " land certificate " in a prescribed form, which shall, amongst other particulars, state whether the title of the proprietor mentioned therein is absolute or qualified or possessory {a) . Secondly, as to leaseholds .-—A separate register is to be kept {b) ; and, as in the case of freeholds, application for registration, either in his own name or in the name of a nominee or nominees, may be made by one who has con- tracted to buy the leaseholds, or who is entitled thereto for W Sect. 6. tail- ^. ^ „^ „ M Sect. 7. (y)38&39Viot.c.87,s.8. {x) See sect. 18, where the several («) Sect. 9. liabilities, rights, and interests {not (a) Sect. 10. incumbrances) are set forth in de- (*) Sect. 11. 712 BK. II. OF EIGHTS OF PEOPERTY. PT. I. THINGS REAL. his own benefit either at law or in equity, or who is ca- pable of disposing of the same for his own benefit by way of sale (c). And where the lease under which the land is held is derived immediately out of freehold land, and the applicant for registration is able to submit for examination the title of the lessor, it may form part of the application that the registration shall contain a declaration of the title of the lessor to grant the lease under which the land is held (c). In a leasehold, however, as in a freehold, if the application be made by one who has only contracted to buy the land, the vendor must consent to its being made (c). Every applicant for registration of leasehold land must deposit with the registrar the lease of the land, and no applicant or his nominee can be registered as proprietor unless and until the title thereto shall be approved by the registrar {d) ; nor if the application shall include a declaration of title, unless and until the lessor, after his title is examined by the registrar, is declared by him to have an absolute or qualified title to grant the lease in question (e). With regard to the effect of registration of leasehold land, the Act provides that in the first registered pro- prietor who has obtained a declaration that the lessor had an absolute title to grant the lease, shall vest the posses- sion of the land for all the estate therein described free from all other estates and interests (including those of the Crown), but subject to certain qualifications specified in the Act, viz. : — 1, Covenants, express and implied, obliga- tions, and liabilities incident to the estate ; 2, any incum- brances entered on the register ; 3, liabilities, rights, and interests declared by the Act not to be incumbrances; 4, unregistered estates, rights, interests, and equities of persons claiming under the first registered proprietor ( f). {c) 38 & 39 "Viet. o. 87, b. 11. {«) Ibid. (rf) Sect. 12. (/) Sect. 13. CHAP. XXV. OF KEGISTRATION OF TITLE TO LAND. 713 And, further, that registration as the proprietor idthout a declaration of title of the lessor shall have the same effect, except that in that case the registration is not to affect or prejudice any estate, right, or interest affecting or in derogation of the title of the lessor to grant the lease under which the land is held(gr). In the case of lease- holds also (as in freeholds), in certain cases the declaration of the title of the lessor may be qualified only {h) ; and on registration the proprietor is to receive from the registrar an " oflace copy" of the registered lease, endorsed with a statement as to whether any declaration of title has been made, and as to any other particulars which may have been entered on the register {i). With land registered under the Act according to the above distiuctions, there may be subsequent dealings which may themselves also be registered or unregistered, and, according as they belong to the one class or the other, it is provided that certain consequences shall attach. And, first, with regard to mortgages of registered land, either freehold or leasehold, every registered proprietor may charge such land with the payment of any principal simi of money at an appointed time, either with or without interest, and includiug a power of sale in default of pay- ment (k). Such a charge is to be completed by a simple entry by the registrar on the register, who is to deliver to the proprietor of the charge, a certificate in the prescribed form ; and a registered charge, thus created, carries with it, by force of the Act, implied covenants for payment of principal and interest, as well as a right of entry and seizure of rents and profits in default of payment, and a power to enforce foreclosure or sale as if the land had been transferred by way of mortgage (/). And secondly, with respect to the transfer of registered land, whether free- hold or leasehold, from one proprietor to another, the Act (?) Sect. 14. W Sect. 22. (A) Sect. 15. (l) Sects. 22, 23. (») Sect. 16. 714 BK. II. OF RIGHTS OF PROPEETY. FT. 1. THINGS REAL. declares that it may be effected by a similar entry on the register, which shall confer on the transferee such an estate as mentioned in the Act, according as the transfer was for or without valuable consideration; and according as the land transferred has been registered with an absolute, qualified or possessory title, or (if leasehold) with a decla- ration of title absolute or qualified, or without any decla- ration at aU. Also, thirdly, a simple entry on the register is also made sufficient to transfer a charge from one pro- prietor to another, and to evidence the transmission of interest arising on death, bankruptcy, or marriage (m). As to unregistered dealings with registered land, any person, whether the registered proprietor or not, with a sufficient estate in the land, may, subject to the mainte- nance of the estate and right of the registered proprietor, create estates, rights, interests, and equities therein in the same manner as he might do if the land was not registered; and any person entitled to or interested in any unregistered estates, rights, interests, or equities in registered land, may protect the same from being impaired by any act of the registered proprietor, by entering on the register such notices, cautions, inhibitions or other restrictions as in the Act mentioned (n). It would be beyond our limits to explain the provisions of the Act which are intended to regulate and assist the registrar in matters of practice.; but it may be right to add, with reference to the previous Act of 1862, that ap- plications for the registration of an estate under it are not for the future to be entertained (o) ; and though a person interested in an estate registered under that Act may, if he please, re-register under the new statute, yet he is not obliged to do so, and until he does, the previous Act shall apply thereto, as if the more recent one had not been passed (p) ; and, finally, that as regards the proprietors of land in Yorkshire and Middlesex, the plan of the new (m) Sects. 29—39. (o) Sect. 126. («) Sect. 49. Ip) Sect. 126. CHAP. XXV.: — OF REGISTRATION OF TITLE TO LAND. 715 Act is not attended with tlie inconvenience of subjecting them to two different systems of registration; for it is enacted that any land situate within the jurisdiction of the local registries in those counties {q), shall, if registered under the statute now in question, he exempt from the necessity of registration in the local registry (r). The other Act mentioned above, viz., the 25 & 26 Vict. c. 67, — after reciting that it is expedient to enable per- sons having interests in land to obtain, in certain cases, a judicial declaration of their title so as to enable them to make an indefeasible title to persons claiming under them as purchasers for a valuable consideration {s), — directs (among other things) that every such person as is autho- rized by the Act in that behalf, may make application by petition, in a summary way, for a declaration of title {t). And it proceeds to enact that the court, on hearing of the petition, and beiug satisfied that the petitioner has proved such a possession and stated such a title, as if established would entitle him to a declaration as prayed, shall make an order for an investigation of the title in the same way as if he had obtained, as vendor, a decree for a specific perform- ance of an agreement for sale of the land in question, for the estate claimed in his petition (m). And that after such an investigation, if the court is satisfied that the petitioner has shown such a title as it would have compelled an un- Iq) Vide sup. p. 708. " tenure, either absolutely or sub- (r) Sect. 127. " jeot to any iaoumbranoes, estates^ (a) The -word "land" in this " rights or interests, vested or con- Act shall not, unless the provisions "tingent, or claiming to have a require a different construction, in- " power of disposing of laud for elude any incorporeal hereditament. "his own benefit for an estate in (25 & 26 Vict. c. 67, s. 48.) "fee simple in possession, either U) The prasons by whom the " absolutely or subject to any in- appUcation may be made are ex- " cumbrances, estates, rights or pressed in the Act to comprise "interests, vested or contingent." " every person claiming to be en- (25 & 26 Vict. o. 67, ss. 1, 4.) ' ' titled to land in possession for an (») Sect. 6. " estate in fee simple in freehold 716 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. willing purcliaser to accept, it shall (on the conditions in the Act mentioned) make an order, that on some day not less than three months afterwards, a declaration shall be made establishing the petitioner's title; unless, in the meantime, cause is shown to the contrary {x) : but that no such order shall be made, until the petitioner and his soli- citor, and any other person whom the court may require, shall have made and filed an affidavit, that, to the best of their respective knowledge and belief, all instruments and papers relating to the title have been produced to the court, or that the cause of their non-production has been fully and fairly explained, and that aU facts material to the title have been fully and fairly disclosed to the court ; it being, however, also provided that such affidavit may be dispensed with or modified by the court, according to cir- cumstances («/). In order to secure the object of apprising aU proper persons of the opportunity of showing cause against the making of the declaration, it is further enacted, that a copy of the order shall be served on such persons, and deposited in such places, as the Act describes, for in- spection ; and that notice of such deposit shall be also affixed in such places as it describes (z) : and that after such deposit has been made, the petitioner shall cause advertisements to be inserted, three times at least, in such newspapers and on such days as the court shall direct, stating the order, and also stating where any copy has been so deposited for inspection (a). And that, unless the last of such advertise- ments is made within four weeks next after the date of the order, the time thereby fixed for showing cause against the same shall be enlarged as the court shall direct (6). And further, that if no petition shall be presented against the proposed declaration of title within the time limited (k) Sect. 8. As to the practice (z) See schedules subjoined to 25 of tlie courts herein, see In re & 26 Viot. o. 67 — scheds. 4, S. Eoherts, Law Rep., 10 Eq. Ca. (a) Sect. 7. 402. (J) Sched. 8. (y) Sect. 10. CHAP. XXV. OF REGISTRATION OF TITLE TO LAND. 717 for that purpose, or if one lias been presented, but the court is of opinion that no sufficient ground has been shown for refusing to make the declaration, then the court, upon being satisfied that all requisitions have been duly complied with, shall make a declaration that the petitioner has such title to the lands in question, as he sought to establish by his petition, or such title subject to any quali- fications which it may deem necessary or proper to intro- duce (c). A declaration of title to the land being thus obtained, in pursuance of the proprietor's petition, the effect of it is stated as follows : — " that such declaration of " title, as soon as it shall have become final for the purpose " of this Act, shall in favour of any person thereafter " deriving title as a purchaser, for valuable consideration, " of the land therein referred to, or of any part thereof, or " of any estate, right or interest therein, from or under " the person whose title has been so declared, be deemed " and taken to have correctly declared the same : but, " save as aforesaid, such declaration shall have no force " or effect whatever as to the title of the land comprised " therein "(rf). And -while upon the subject of registration, we wiE here refer to the " Land Charges Eegistration and Searches Act, 1888" {e), by which it has been enacted: Firstly, as regards "writs and orders affecting land," that there shall be established and kept at the office of Land Eegistry a special register, called " the register of writs and orders affecting land," and that in such register there may be registered any writ or order affecting land issued or made tc) Sect. 15. courses, rights of water and other fd) 25 & 26 Vict. 0. 67, s. 24. easements or servitudes, manorial By sect. 29 the declaration of title rights and franchises, leases or shall not affect land tax, suocession agreements for leases for any term duty, tithe rent-charge, rights of not exceeding twenty-one years, common, rents payable to the where there is occupation under the crown, pubUo rights of way, Ua- same, bility to repair highways by reason (e) 51 & 52 Vict. o. 51. of tenure, rights of way, water- 718 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. by any court for the purpose of enforcing a judgment, statute or recognizance, or any order appointing a receiver or sequestrator of land (sect. 5), the entry being made in the name of the person whose land is affected, and the registration enduring for five years, and being in lieu of the registration of such writ or order in the central office ; and any such writ or order, unless registered, is void agaiust a purchaser for value, mortgagee, or lessee of the land (sect. 6), existing registrations in the central office (during the remainder of their currency), and Ktes pendentes duly registered at the central office, being ex- cepted. And secondly, as regards "deeds of arrange- ment," that there shall be kept at the offioe of Land Registry a special register, called " the register of deeds of arrangement," and that deeds of arrangement may be registered therein in the name of the debtor (sect. 7), on the application either of the trustee of the deed, or of any creditor taking the benefit of the deed (sect. 8) ; and any such deed, unless registered, is void against a purchaser for value, mortgagee, or lessee of the land. And thirdly, as regards "land charges" (/), that there shall be kept at the office of Land EiCgistry a special register, called " the register of land charges," and that land charges may be registered therein, — ^the registration (in the case of free- hold lands) being made in the name of the person bene- ficially entitled to the first estate of freehold at the time of the creation of the land charge, and (in the case of copy- {/)" Zand charge" is ie&Reihj under suoh Act, or the moneya the Act (sect. 4) as meaning a rent advanced by him for repaying such or annuity or principal moneys moneys, or such costs, charges, and payable by instalments or other- expenses ; also, a charge under wise with or without interest, sect. 39 of the Land Drainage Act, charged (otherwise than by deed) 1861, or under sect. 29 of the Agri- upon land under the provisions of cultural Holdings Act, 1883 : but any Act of Parliament for securing not a "rate" or "scot." As to to any person either the moneys charges under the Public Health spent by him, or the costs, charges. Acta, see Eeg. v. Land Registry and expenses incurred by him, (Vice-Eegistrar), 2i Q. B. 1). 178. CHAP, XXV. — OF REGISTRATION OF TITLE TO LAND. 719 hold lands) being made in the name of the tenant on the court rolls at that time, and also (if it should so happen) in the name of the person who (beiag entitled only to a lease for life or Uves, at a rent, or for a term of years) has procured the rent-charge to he created (sect. 10), and every land charge created after 31st December, 1888, imless registered, is void against a purchaser for value, mortgagee, or lessee of the land (sect. 12) ; and a land charge theretofore created must be registered within the year after the first assignment thereof, which shall be executed after the 31st December, 1888 (sect. 13) {g). The whole law relative to the rights of property in things real (exclusively of what relates to their violation, and to the remedies in such case provided) has now come in due order under discussion ; and the second part of the present book of these Commentaries-— that which relates to Things Personal — will be entered upon in the next volume. The subject which has thus employed our attention is of very extensive use and importance, but, it must be con- fessed, not very attractive at the first aspect. [To say the truth, the vast alterations which the doctrine of real pro- perty has undergone from the Conquest to the present time; the infinite determinations upon poiats that con- tiauaUy arise, and which have been heaped one upon another for so many centuries without much order or method ; and the multiplicity of Acts of Parliament, which have amended, or sometimes only declared, the common law, — ^these causes have made the study of this branch of our national jurisprudence at once laborious and intricate. It has been our endeavour principally to select such parts of it as were of the most general use, where the principles were the most simple, the reasons of them the most ob- vious, and the practice the least embarrassed. Yet it is (ff) An alphabetical index is also appointed. (Sect. 15.) 720 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. [not to be presumed that we have always been thoroughly intelligible to such readers as were before strangers even to the very terms of art of which we have been obliged to make use, though whenever those have first occurred, we have generally attempted a short explication of their meaning. These are indeed the more numerous on account of the different languages which our law has, at different periods, been taught to speak : the difficulty arising from which win insensibly diminish by use and familiar ac- quaintance. And therefore we shall close this branch of our inquiries with the words of Sir Edward Coke, — " albeit the student shall not, at any one day, do what- he " can, reach to the full meaning of all that we have laid " down, yet let him no way discourage himself, but " proceed ; for on some other day, in some other place," (or perhaps upon a second perusal of the same,) "his " doubts will be probably removed " (h).] [h] Froeme to 1 Inst. END OF THE FIRST VOLUME. INDEX TO THE FIRST VOLUME. Abbtanob, 237, 238, 325, n. Abjuration, 145. Abolition, of fines and recoveries, 554. of colonial slavery. 111. of military tenures, 206. Abridgments (or digests), 67, 58. Abstract of title, 671, 672. Accumulation of income, 536. Acknowledgment, by mortgagee of mortgagor, 306. of married women, 457, 661. of vassalage, 179. of right to production, 668. Actions, real, 313, n. Active trusts, 366. Act of Parliament, how cited, 69, n. local and personal, 70. pubUo and private, ib. Admeasurement, of dower, 272, n. Admiralty, jurisdiction of, 60, 119, n. Admittance, to copyhold, 600. Ad ostium ecclesisB, 270, 277. Ad quod damnum, writ of, 438. Adultery, effect of, on dower, 274. Advowsons, 620. Africa, Acta relating to, 107, n. VOL. I. After possibility of issue extinct, tail estate, 263, 560. Aggregate, corporation, 354, 365. Agnati, 400. Agreement — see Conteaot ; Lease. Agricultural Holdings Act (1876), 289, II., 496. Agricultural Holdings Act (1883), 289, n., 496. Agricxdture — see Peopbety. Agriculture, Board of. Act (1889), 683, 699. Aids, in knight service, 197. in socage, 209. parliamentary, 167. Air, right to, 163, 661, n. Alderman, 127. Aldemey, 102. Alfred, his laws, 46, 127, n. Alienation, in general, 204, 210, 449. in mortmain, 436. by corporations, 464. to corporations, 436. by infants, 457. by married women, ib. by particular tenants, 445. in case of copyholds, 223, 606. fines on, 179, 201, 210, 223. forfeiture by, 279, 316, 446. Ucenoe for, 204. of settled estates, 253, 267, 278, 460, 683 et seq. restraint upon, 450, 451. 3a 722 INDEX. Aliens, can hold real properly, 468. can take hy descent, 421. naturalization of, 422. tracing descent through, ib. Allodial property, 176, 187, 233. Allodium — see AxLODiAi Peopeett. Allotments, under Inclosure Acts, 627. for labouring classes, 629, n. AUuvion, 433. Alteration, in deeds, 479. in -nTllB, 675. Ambiguity, in a deed, 481, 483. in a -will, 483, 676. latent and patent, 483. Ambulatory, character of will, 664. American colonies, Acts relating to, 107, n. revolt of, 106. Ancestors, 234, 377, 659. Ancient monuments, 441, n. Anglo-Saxon Laws, 46. Animals feree naturse, 163, 638. Annuities, 643. Antient demesne, 224—226. Antigua, Act relating to, 108, n. Apparent heir, 377. Appeal, to House of Lords, 6. Appellate Jurisdiction Act (1876), 6, 89, 99. Appendant — see Common. Appointment — see Powee. Apportionment Act (1870), 262, 649. Apprentioii ad legem, 16. Appropriation, of tithes, 121. Approving common, 626. month's notice before, ii. Appurtenances, 468. Appurtenant — see Cojoion. Arbitrary tithes, 120, 121. Archbishop's province, 120. Archdeaconry, 120. Aristocracy, government by, 31. Arms, right to carry, 154. training to the use of, ii. Arrangement, deeds of, registry of, 718. Articles of union, with Ireland, 99. with Scotland, 89. Ascending line, formerly excluded from inheriting, 397. may now inherit, 396. Assensu patris, 270. Assent, Koyal, 72. Assets, in equity, 414, 603. Assignment, of contingent interests, 463. of dower, 271. of lease, 301, 507. of right of entry, 453. of satisfied terms, 294 — 296, conveyance by, 507. Assisa utrum, 227, n. Assize of arms, 199. Assize, rents of, 646. Assurances, common, 461. Atholl, Duke of, rights of, in Isle of Kan, 101. Attainder, nature and effect of, in general, 145, 426, 454. effect of, on dower, 269. of trustee, 427. Attendant term, 294—296. Attestation, of a deed, 477. of a will, 571—673. Attornment, 450 — 452, 492. Augmentation, of poor livings, 441, 442. INDEX. 723 Aula regis, 15, 16. Australasia, defence of, 107, n. federation of. Act for, 110, n. Australian colonies, Acts relating to, 107, n. Autre droit, -laud held in, 317. Autre vie, tenant pur, 255, 260. Averium, 602. Avoidance, of a deed, 478. Bacon, references to, 58. Bail, excessive, 160. Bailiffs, of hundreds, 129. Baooishment, 162, 163. Bankrupt trustee, 370, n. Bankruptcy, of tenant in tail, 251. Bar, of dower, 272. of estate tail, 249, 261, 556. Bar students, 18, 20. Barbuda, Act relating to, 107, n. Bare possibility, 230. Bargain and sale, 358, 612, 516. Baronies, 215. Barristers, 16, 20. Base fee, 240, 646. Bastard, cannot be heir, 429. eigne may be heir, ii. Basutoland, 107, n. Battery, 144, 148. Beasts of forest, &c., 638. Beohuanaland, 107, n. Bed of river, 642. Bedfordshire, 708, n. Benchers, 19. Benefice, 175. Beneficial owner, 666. Benevolences, 168. Bequests — see Dbviseb. Berwick-upon-Tweed, 92, 93, n. Bishoprics, English, 120. colonial, 104, n. Indian, 114. Bissextile year, 281. Black Mail, 647. Blood, of the purchaser, 383. whole and half, 400 et seq. inheritable, 419. corruption of, 425. Board of Agriculture, 683, 699. Board of Control, 113, 116. Bodily rights, how protected, 144. Body corporate, 358. Bombay, Bishop of, 114. Bombay Civil Fund, 117, n. Borough, definition of, 127. municipal, 128, n. parliamentary, ib. Borough Electors Act (1868), 128, n. Borough English, tenure by, 213—216. Borough rate, 132, n." BoTsholder, 127. Botes, by tenant for life, 257. by tenant for years, 287. Boundaries, of parishes, 126, n. Braoton, references to, 16, 57, 188. Breach of covenant, 472, 495. 3a2 724 INDEX. Break in descent, 412. Brehon law, 93. Brevia testata, 477. Bridgman, references to, 329. British Columbia, Acts relating to, 107, n. British constitution, 32. British Honduras, Acts relating to, 107, n. British Islands, 100. British KaSraria, Acts relating to, 107, n. British possessions, 103. British Settlements, 108, n. British subjects, 137. Britons, laws of antient, 45. Brooke's Abridgment, 68. Brothers, descent between, 401, 422. Building leases, 694. Burgage, tenure in, 212. Caicos Islands, Act annexing, 108, n. Calcutta, Bishop of, 114. Calendar month, 282. Call to the bar, 19. Canada, Acts relating to, 107, n. Cancelling, deed, 479. will, 576. Canon law, origin and growth of, 42, 43. sources of, 42, 44. obligation of, 44, 51, 62. Canons of 1603.. 44. Canons of Convocation, 44. Canons of descent, prior to 1st January, 1834, .378, n. since 1st January, 1834 . , 378 et seq. Capacity, to purchase or convey — see AxIENATION; CONVBTiirOBB. Cape of Good Hope, Acts relating to, 107, n. Capita, succession per, 397.- Capital moneys, 699, 703. Capital punishment, 147. Oapite, tenants in, 187, 198, 210, 236, n., 450. Cart-bote, 257. Catalla, 279. Cayman Islands, Acts relating to, 108, u. CentenaiiuB, 129, n. Central Criminal Court, 131, ii. Certain services, 189. Certificate of acknowledgment, 661. of searches, 675. of redemption, 674. Cession, colonies gained by, 104. Cestui que trust, 366. use, 357. vie, 260. Chancery, inns of, 18. Channel Islands, 102. Charge in equity, 372, 603. Charging real estate, with debts, 414. Charitable uses, 261, n., 440, 568. Charta de Foresta, 638. Chaita, Magna, 67, 68. Charter or deed, 463. Chase, 641. Chattels, personal, 279. real, 279, 280. INDEX. 725 Chattels real, diBtiiiguished from freeholds, 280 et seg. varieties of, 280. estate for years, ib. from year to year, 288. at -will, 290. at Bufierance, 292. by elegit, &o., 309. Chester, county palatine of, 133. Chief rents, 646, 674. Child in ■womb, 143. China, Acts relating to, 107, n., 117, n. Chirograph, 465. Chivalry, tenure by, 190. abolition of, 206. Churches, parish, 120. Circuits, 130. City, definition of, 128. Civil death, 146, 257. Civil government, origin of, 28. varieties of, 29 — 32. in England, 32, 33. sovereign power in, 34. Civil injury, distinguished from crime, 142. Civil law, origin and growth of, 40, 41. sources of, 41, 42. obligation of, 51, 52. Clementine Constitutions, 42. Clergy, U. Clerks, 10. Close rolls, 591. Close writ — see Wbtp. Code, of Justinian, 40. of Theodosius, 41. CodioU, 666. Cognati, 400. Cognizance, fine BUT, &o., 542. Cognizee, of a fine, 541. Cognizor, of a fine, 641. Coke, 56, 58. Coke upon Littleton, 58. Collateral inheritance, 402. Collateral warranty, 471. College leases, 70, 456. Colonies, Acts relating to the, 107, n., 110, n. bishops in, 104, u. church in, ib. governors of, ib. legislators of, 105, 105, n. slavery in. 111. making of, 161. Comes, 130. Comites, 175. Commissioners, copyhold, 615. ecclesiastical, 113. inolosure, 615, n., 628. tithe, 615, n. land, 61 5, n., 699. Common, appendant, 621. appurtenant, 622. because pf vicinage, 623. in gross, ib. approvement of, 626. inolosure of, 627. of estovers, 625. of pasture, 623, 624. of piscary, 624. of shack, 623. of turbary, 624. sans nombre, ib. without stint, ib. in the BoU, 625. Common assurances, 463. Common law, 9, 45, 81. Common Pleas, fixed at Westminster, 15. Common possibility, 326. Common recovery, 249, 438, 651. Common, tenancy in, 349. Common vouchee, 438. 726 INDEX. Commonable beasts, 624. Commons Preservation Act (1876), 629. Commonwealtb, 166. Communion of goods, 1S3. Compensation, under Agricultural Holdings Act (1883), 496. in case ot cottage gardens, &c., 629, n. in case of commons taken, 627, n. Compulsory admittance, 609. Computation of time, 281. Comyns' Digest, 58. Concessit, fine sur, S43. Conclusion, of a deed, 473. Concord, of a fine, 542. Condition, breach of, 300, 303. estate upon, 297. express, 298. illegal, 302. implied, 297. impossible, 302. in deed, 298, 470. precedent, 293. repugnant, 302. subsequent, 298, 302. waiver of, 303. Condition, Estates upon, ■what are, 297. implied, 297, 298. expressed, 298, 299. condition subsequent, 299. impossible, 302. precedent, 302, 303. concurrent, 299. forfeiture of, 303. of mortgagees, 303 — 309. Conditional fee — see Pee. Conditional limitation — see Titmtta- TION, CoNDmONAL. Conditional surrender — see Sttebenbee. Conflrmatio ohartarimi, 198. Confirmation, deed of, 504. implied, 504, 506. Conflict of customs, 67. Conies, 641. Conqueror — see CoNauEST. Conquest, colonies gained by, 103. of Ireland, 91. of Wales, 84. technical meaning of, 376. Conscience, a sanction of laws, 38, 39. Consideration, 479. Consolidated regulations, of Inns of Court, 18, u., 19, n. Constable, high, 127. Constitution, English, 32, 149. Constitutions, legatine, 43. provincial, ib. Construction, of deeds, 481. of devises, 676. of royal grants, 594. of statutes, 73. Contingency, with a double aspect, 326. Contingent interest, aJienation of, 453. Contingent remainder, nature of, 323. examples of, ib. with double aspect, 325. rules regulating, 326—328. destruction of, 328. preservation of, 329, 331. Contingent Kemadnders Act (1877), 331, 528. Contingent uses, 360. Continual claim, 489. Contract, heir's liability on specialty, 413. merger of simple, 464. Contract, social — see Goveenmbmt. Control, Board of, 113, 115. Conveyances, generally, 163, 449 et seq. at common law, 484, 486. by aliens, 458. by attainted persons, 454. INUEX. 727 Conveyances— i!o«<8»««rf. by corporations, 454. by idiots, 456. by infants, 457. by lunatics, 466. by married -viroineu, 457, 560. by matter of record, 484, 588. by statute law, ib. by tenants in tail, 538. by the crown, 391. in pais, 484. innocent, 532, 533. of copyholds, 606, 607. origin of, 163. practice as to preparing, 467, ii. to uses to bar dower, 276, 277. under the statute of uses, 512. under Conveyancing Acts, 665. under Settled Land Acts, 683. Conveyancing Acts (1881, 1882), 238, 247, 296, 369, n., 666—682. Conveyancing, system of, 484. Coparcenary, 343. Copyhold Acts, 615. Copyhold Commissioners — see CoM- UISSIONEBS. Copyhold tenure, origin of, 215. no new creation of, 222. incidents of, 222, 223. commutation of, 616. extinguishment of, 618. Copyholders, formerly villeins, 220. Copyholds, admittance to, 608, 617. alienation of, 604. assets, 603. commutation of, 616. descent of, 223, 599, n., 608. devise of, 611. dower in, 699. enfranchisement of, 617. deed of, 710, n. equitable interests in, 613. estate tail in, 598. execution against, 603. extinguishment of, 222, n., 618. fines, heriots, &o. in, 223, 600. forfeiture of, ii. for life or years, 598. freebench in, 599. liability of, to debts, 603. licence to demise, 605. mortgage of, 610. Copyholds — continued. of inheritance, 223, 598. of married woman, 613. partition of, 342, n. quit rents in, 600, 646. rents of assize in, 646. surrender of; 606, 613. title to, 604. waste in, 600. Comage, tenure by, 202. Corodies, 621, n. Corporate counties, 136. Corporations, aggregate, 354. sole, ii. municipal, 128, 455. purchases by, 436 — 443. alienations by, 454. Corporeal hereditaments, 172. Corpus juris, canonici, 43. civilis, 42. Corruption of Uood, 424. Council of Governor- Greneral in India, 114. Council of India, 116. Counsel, 16, 18. Count, 130. Counterpart, 465. Counties, corporate, 136. palatine, 133, 634. County courts, 130. County of a town, 136. County palatine — see Counties. County rate, 132. Court, Inns of — see luifS. Courts, baron, 216,221. customary, ii. of wards and liveries, 193. of great session in Wales, 85. of the counties palatine, 133. Covenant to stand seised, 357, 515. Covenant, writ of, 540, 728 INDEX. Covenants, in a conveyance, 472. in a lease, 495. implied, 473, 666—668. miming witli land, 473, 496. waiver of, 302. Creditors, simple contract, 413, 414. specialty, 413. Crime, distingTiislied from civil injury, 142. Croke's Beports, 57, n. Cross, signing by, 474, 475. Cross remainders, 351. Crown, succession to, 406. grants by, 428, 588 et aeq. Cujus est solum, ejus est usque ad coelum, 171. Curialitas, 265, u. Curtesy, tenant by the, 264, 359, 370. Customary court, 216, 606. Customary dower — see Fbbbbenoh. Customary freehold, 226, 605, u. Customary heiiot — see Hbeiot. Customs, source of unwritten law, 46, 47. must be of immemorial antiquity, 49, 50. some derived from Civil Law, 60. some derived from Canon Law, 60, 51. are either general or particular, 52. general, examples of, 52, 53. validity of, 53. expression of, 56. proof of, 55 — 59. old forgotten statutes, 59, 60. particular, examples of, 60 — 64. origin of, 60. varieties of, 60 — 62. proof of, 63. validity of, 64. See BosoTTQH Bnoush; GtAvel- EINI). Customs of London — see London, Cus- toms OF. Customs of merchants, 62. D. Dane-Lage, 47. Date of deed, 476. Day, computation of, 282. fractions of, 282, 283. Deanery, rural, 120. Death, civil, 145, 267. Debts, simple contract, heir's liability on, 413, 414. specialty, liability of the heir on, , 413. payment of, out of realty, 413, 414. in banlcruptcy, 414, 415. Deceit — see Disobit. Decennaries, 127. Declaration of Title Act (1862), 710, 715. Declaratory statutes, 71 . Declaring uses, of fine or recovery, 552, 553. Decretals, 43. ' Decretum Gratiani, 42. Dedimus potestatem, writ of, 541. De donis, statute, 244, 249, 316, 639, 546, 698, 651. Deed, acknowledgment of, 457, 661. alteration in, 479. ambiguity in, 481, 483. attestation of, 477. avoidance of, 478. cancelling of, ih. conclusion of, 473. condition in, 298, 470. consideration of, 479. construction of, 481. counterpart of, 466. covenants in, 472. date of, 476. INDEX. 729 Deed — eontimted. definition of, 463. delivery of, 476. disoharge of, 481. execution of, 474. habendum in, 468. inconsistent clauses in, 483. indented, 464. in general, 463. inter partes, 467. of defeasance, 509. of exchange, 498. of partition, 500. of release, 501. original and counterpart, 466. or escrow, 477. poU, 465. premises in, 467. reading of, 474. recitals in, 468. reddendum in, 469. registration of, 710. release of, 481. requisites of, 463 et seq. sealing of, 474. signing of, ii. stamps on, 466. tenendum in, 468, 469. to declare or lead uses, 652, 563. voluntary, 479. -warranty in, 470, 471. where requisite, 463. without consideration, 480, n. witnesses to a, 477. written or printed, 466. Deforciant, 543. De la plus belle, dower, 271, n. Delivery, of a deed, 476. De Meroatoribus, statute, 308. Demesne lands, 216. Demesne, seisin in, &c., 235. Demise — see Lease. Demi-vills, 127. Democracy, 31. Dependencies, colonial, 103. Deposit, of title deeds, 304, n. Derby, earls of, 101. Dereliction, lands acquired by, 433. property lost by, 162. De religioBiB, statute, 437. Derivative conveyances, distinguished from primary, 601. Descent, origin of, 163. in feuds, 181. in freeholds, 238, 375, Zltet seq. in copyholds, 223, 599, n., 608. breaking the, 412. before Inheritance Act, 378, n. since Inheritance Act, 379 et aeq. tables of, 378, 408. special cases of, 407, 408. Descent, canons of, from purchaser, 379, 401, 407. preference of males, 388. primogeniture, 389. representation, 392. lineal ancestors, 394. paternal preferred to maternal, 397. haH-blood admitted, 400, 401. from last person entitled, as quasi purchaser, 408. as regards trust estates, 673. Descent, customs of, 377. Descent or purchase, 375, 376. Detached parts of counties, 131, n. Determination, of estates at will, 291. Devisee, liability of, for debts, 414. Devises, on wills generally, 564 et seq. history of, 668. New WiUs Act, 569. solemnities of, 570. construction of, 576. operation of, 585. by married women, 670, n. — see ExECTTEOET Devise ; Lapsed De- vise; KBsrDtrABT Devise; Diura wiTHOiiT Issue ; Copsholds. Digest, Justinian's, 40. Dignities, nature of, 619, 620, n. descent of, among females, 391. Diocese, 120. 730 INDEX. Directory part, of lav, 36. Disabling statutes, 71. DisafEorestment, 639. Disoeit, ■writ of, 612, n. Disdiarge, of deed, 481. Disclaimer, of estate, 456. of tenure, 447. of use, 362, n. of powers, 631, 532. Discontinuance, of estate tail, 245, n., 446, n., 491, n. Diseutailing deed, 554 et aeq. Disparagement, of ward, 194. Displacement, of reversion, &c., 316, 490. Disseisin, 312, 490. , Distress, 648. Districts, ecclesiastical, 126. Divesting, reversion, &o., 316. Divine law, 23. Divine service, tenure by, 228. Divisions, of counties, 130, n. Divorce, effect of, on dower, 269. Doctor and Student, treatise known as, 58. Dom-Boc, of AHred, 46. Domesday Book, 184. Don, grant et render, fine sur, 543. Donis, statute de, 244, 249, 316, 639, 546, 698, 651. Dos (or dower), 268. Dos rationabiUs, 277. Dotalitium, 268. Double possibility, 326. Double voucher, 549. Dower, at common law, 267. by particular custom, 268. assignment of, 272. alterations in law of, 277. ad ostium ecclesiae, 270. de la plxis belle, 271, n. ex assensu patns, 27l. out of wbat hereditaments, 276, 371. how barred, 272. Dower Act (3 & 4 Will. IV. o. 105) (1833), 276. Dower, action of, 271, 272. Dowress, not within Settled Land Act (1882), 278, 684. Druids, 10. Duchy of Lancaster, 133. Durante viduitate, 260. Duress^ of imprisonment, 144. per minas, ib. Durham, county palatine of, 133, 134. university of, 19. Duties, 140, 141. Dyer's Reports, 67. " Dying without issue," in a devise, 584, 587. E. Easement, 619, 620, 661. East Lidia Company, constitution of, 112. dissolution of, 115, n. East Indies, 112. Ecclesiastical courts, 60. Ecclesiastical Divisions, 120. Ecclesiastics, aUenation by, 454. Edgar, king, hU laws, 47. INDEX. 731 Edward the Confessor, his laws, 47, 185.. Ejectment, action of, 544, n. Elegit, estate by, 309. Elopement and adultery, 269, 272. Ely, bishop of, 136. Ely, isle of, 136. Emblements, 259, 287. Emphyteusis, 178, n. Empress of India, title of, 117. Enabling statutes, 71. Enclosure commissioners, 615, n., 628. Endowment — see Doweb. Enfranchisement, of copyholds, 223, 604, 617, 618, 670, 685. of slaves, 111. of -villeins, 219. England, laws of, 1—20. divisions of, 119 — 136. ecclesiastical, 120. civil, 127. countries subject to, 84 — 118. English constitution, 32, 148. English laws, when in force in a colony, 104. Enlargement of term, into fee simple, 296. Enlarger I'estate, release by way of, 602. Enlarging statutes, 71. Enrolment, of bargain and sale, 517. of disentailing deed, 251, 554. of deed dedicating land for gar- dens, &c., 691. EutaUs, origin of, 243. varieties of, 245, 247, 551, 560. Entails — continued. bar of, by recovery, 249. by fine, 251, 644. by diseutaiUng deed, 252, 554. no merger of, 317, 318. effect of judgments on, 253. in copyholds, 598, 599. in incorporeal hereditaments, 652. 663. quasi, 431. where reversion in crown, 560. Entireties, tenants by, 339. husband and wife no longer, inter se, 339, 340. Entry, of heir, 383, 411, 487. of lessee, 494. on breach of condition, 297, 302, 303. or of covenant, 495. right of, 286, 494. Entry and feoffment, release by way of, 501. Equitable, dower, 276, 371. estates, 232, 310, 353. mortgage, 304, n. waste, 258. Equity, of a statute, 73. of redemption, 306. various meanings of, 81. origin of, ib. business of, 81 — 83. Escheat, nature of, 163, 180, 201, 211. propter defectum sanguinis, 418. propter delictum tenentis, 423. title by, 417. under Intestates' Estates Act (1884), 373. not now valued in, upon enfrau- chisements, 604. Escrow, 477. Escuage, 203. Estate, definition of, 230. distinguished from a possibility, ib. from a power, 230, 231. at sufferance, 292. at will, 290. 732 INDEX. Bst&te — continued. by degit, 309. by statute merchant, 308. by statute staple, ib. by tbe curtesy, 264. for life, 285, 683. for years, 280. from year to year, 288. in antient demesne, 224. in common, 348. in coparcenary, 343. in dower, 267. in expectancy, 312. in fee simple, 235. in fee tail, 235, 244. in gage, 304. in joint tenancy, 336. in lands, 231. in mortgage, 304. in pledge, ib. in possession, 312. in remainder, 319. in reversion, 313. in severalty, 335. in trust, 366. in vadio, 304. legal or equitable, 223, 308, 353. not of inberitance, 255. of inberltance, 232. on condition expressed, 298. on condition implied, 297. particular, 314. privity of, 503. pur autre vie, 255. real and personal, 279. tail ex provisione viri, 660, n. upon condition, 297. Estate clause, 666. Estates, settled, 254, 259, 267, 278, 460, 605, n., 683. Estoppel, 464, n. Estovers, rights of particular tenants to, 257, 287. common of, 625. Ex assensu patris, dower, 271. Ex provisione viii, estate tail, 560, n. Exchange of lands, 498, 628. under Settled Land Acts, 685. Execution of deed, 474. Executory, devises, 584. trusts, 367. uses, 526. Exile, 152. Expectancy, estates in, 312. Extinguishment, of copyhold, 222, u., 615. of incorporeal hereditaments, 645, n., 664. release by way of, 503. Extra-parochial places, 123, 123, n. Extravagantes, communes, 43. Johannis, ib. E. Failure, of heirs of the purchaser, 408. •of issue of the purchaser, 394. Eairs and markets, 635. Falkland Islands, Acts relating to, 107, n. Farm (or feorme), 494. Fealty, 178, 248, 257, 698. Fee, base — see Babe Fee. Fee farm rent, meaning of word, 235. words necessary to create, 239! mode of creating, 648. Fee simple, what it is, 234. how created, 234, 238, 665. how held, 235, 236. incidents of, 236, 237. abeyance of, 237, 238. varieties of, 240. absolute, ib. qualified, ib. conditional, ib. Fee tail, what it is, 243. origin of, 243—245. varieties of, 245, 246. special, ib. general, ib. male, ib. female, ib. INDEX. 733 Fee tail — eontintteii. how created, 247, 665. how held, 248. evil effects of, 248, 249. decline of, 249—231. barring of, 251, 252. leases derived out of, 253, 254. Felony — see Escheat ; Fokpeitttbe. Felony Act (1870), 61, 212, 214, 224, 372, 425, 435. Female wards, marriage of, 195. Feme covert, conveyances by or to, 457, 554, 560. will by, 570, n. Feodum, miUtare, 190. talliatvmi, 244, n. Feofiee, 233, 280, n. Feoffee to uses, 357. Feoffment, by a limatio, 456. forfeiture by, 316, 447. in gavelkind., 216. must be by deed, 488. operation of, by wrong, 490. to uses, 866, 515. Feoffor, 233, 280, n. Feorme, 494. Ferse nature, 163, 638. Ferries, 635. Feudal system, origin of, 174. introduction of, into England, 183. hardships of, 185. Feuds, origin of, 174. nature of, 175. utility of, 176, 177. grant of, 178. incidents of, 178-181. varieties of, 182. introduction of, into England, 183. Feudum, antiquum, 382, 396. apertum, 418. Feudum— continued. improprium, 182, 183. individuum, 390. novum, 382. novum ut antiquum, 384, 396. patemum, 384. proprium, 182. Fidei commissum, 355. Fief — see FEBua. Fief d'haubert, 189. Fine, nature of, 540. varieties of, 542, 543. effect of, 546. with proclamations, 543, 546. discontinuance by, 546. forfeiture by, 547. non-claim on, 644. by married women, 646. on aUenation, 180, 201, 212, 223. in copyholds, 600, 615. abolition of, 252, 539, 554. Fines and Kecoveries Act, 554. Fire-bote, 257, 287. First fruits, 200. Fish, property in, 640. Fisheries, 642. Fitzherbert's Abridgment, references to, 58. Fleta, references to, 15. FoMand, 217. Foot of a fine, 542. Foreclosure, 307. Foreign dominions, 118. Foreign Jurisdiotion Acts, 106. Forensic medicine, 8. Forest, franchise of, 639. laws of, 638. Forfeiture, incident to feuds, 180, 201, 211, 297, 316, 327. nature of, 180, 358, 446. in copyholds, 223, 600. in mortgages, 305. 734 INDEX. Forfeiture — continued. relief from, 305. in case of leases, 678. on attainder, 201, 369, 423. title by, 435. Formedon, 646. Fortesoue, references to, 9. Fovls of warren, 641. Fraction of time, 283. Franchises, 297, 635. Frank tenement, 188, 232. Frankalmoign, 227. Frankmarriage, 245, ii., 345. Frankpledge, 127. Frauds, statute of, 286, 372, 413, 488, 494, 506. Fraudulent devises, statute of, 414. Free fishery, 642, 643. Free services, 189. Free socage, character of, 189, 206, 207. incidents of, 208, 211. Free warren, 642. Freebench, 699. Freehold, generally, 232, 232, n. by wrong, 491. customary, 227. in abeyance, 228, n., 238, 325, n. in future, 319, 320; in remainder, 321. Freehold estate, of inheritance, 232, 254. not of inheritance, 232, 266. Freehold tenure, 211. Frontagers, 657, n. FutuTO, estates in, 321, 322. a. Gage, estates in, 304. GUme, 639, 640. Gavelkind, 214, 215. General Inolosure Act (41 G«o. lU. 0. 109) — see Inolosttee Acts. General Vestry Act, 124. General words, 666. Gift of lands, 490. Gilbert, Chief Baron, references to, 58. Glanville, references to, 67. Glebse asoriptitU, 189. Good consideration, 479. Goods and chattels, 279. Government, forms of, 30. origin of, 29. Governor-General, of India, 114. Grrand coustumier, of Normandy, 49, m., 103 Grand serjesmty, 202, 211. Grant, at common law, 491. to uses, 521. now conveyance, 666. Grant, Eoyal — see EoTAii Geant. Grantee of reversion, 301, 493. Grantee to uses, 357, 521, 666. Gratian's decree, 42. Great Britain, defined by Act of Union, 88. Great charter, 68, 186, 203. Great seal, 691, 692. Gregorius, 41. Gregory's decretals, 42. Gross, common in, 623. villein in, 217, 220. Ground game, 637. INDEX. 735 Guardian, in chivalry, 191. in copyhold, 223. in socage, 208. Guernsey, 103. H. Habeas corpus, 149. Habeas Corpus Act, provisions of , 150, 153. suspension of, 161. Habendum, 468. Habitations, property in, 159, 160. Hsereditas jaoens, 430. Haareditas uunquam asoeudit, 395. Hale, Sir Matthew, 58. Half-blood, 402. former exclusion of, 406. new rule as to, ii. Hamlet, 129, Hares, beasts of warren, 641. Hawkins, Pleas of the Crown, 58. Hay-bote, 257, 291. Headborough, 127. Health, injuries afiecting, 148. Hedge-bote, 257, 291. Heir, general, 233, 247, 377. apparent, 377. presumptive, id. capacity to be, 419. is a word of limitation, 239, 665. when he takes by purchase, 407. is liable to ancestor's debts, 413. Heir, entry of — see Entet. Heir of the body — see Entails. Heirlooms, 703. Hereditament, meaning of, 172. corporeal, ib. incorporeal, 172, 619. Heriot, 223, 601, 602. Heriot service, 601. Hermogenes, 41. High constable, 129. High seas, 117. Highways, 630. ; Hinde Palmer's Act (1870), 416. Hobart's Eeports, 67. Hobhouse's Act (1827), 125. Holding over, » by tenant, 292. in freeholds, 179. in copyholds, 697, 698. Hong Kong, Acts relating to, 107, u. Honor, 216. Honorary feuds, 181. Hotchpot, 345, 346. House-bote, 267, 287. Human laws, obligation of, 37. Hundred, compensation by the, 129, n. division of counties into, 127. Husband and wife, 339. Idiots, conveyances by, 465. devise by, 570. Illegal condition, 302. Illegal consideration, 480. Illusory appointments, 631, n. Immediate descent, 401, 422. Immemorial usage, 49, 64, 666. Imparl, 648. Impaitible, 348. Impeachment of waste, 268. 736 INDEX. Imperial constitutioiis, 40, 51. Imperial Titles Act (1876), 117. Implied condition, 297. Implied covenant, 473, 666, 667. Implied trust, 368, 369. Implied rise, 3S7. Implied warranty, 472, 499, 500. Impossible condition, 301. Imprisonment, illegal, 149. Improper feuds, 182. Improvement of Lands Act (1864), 254, n. Improvements, Settled Laud Acts, 699. In alieno solo, 654. In pais, matter, 484. In pari materiEt, statutes; 77. Incidents to reversions, 314. Inolosure Acts, 627. Inclosure conunissioners, 615, n., 627. Inolosure of common, 627, 630. Incorporeal hereditaments, nature of, 172, 619. are tenements, 662. extinction of, 662, 663. how conveyed, 653. Indenture, 464. Indentures of a fine, 541. India, acquisition of, 112. Acts relating to, 116, n., 117, n. imperial assumption of, 115. bishops of, 114. mutiny in, 116. presidencies of, 114. Induction, to a benefice, 487. Infants, conveyances by and to, 457. devise by, 568, 570. provisions of Conveyancing Act (1881), regarding, 679—682. provisions of Settled Land Act (1882), regarding, 684. Inheritable blood, 418. Inheritance, canons of, 379. collateral, 395. copyhold of, 597. estates of, 233. origin of, 163. Inheritance Act, 379. Initiate, tenant by curtesy, 265. Injury, civil, 142. Innocent conveyances, 532, 533. Inns, of Chancery, 16. of Court, ii. Inquisitio post mortem, 193. Lirohuent, of bargain and sale, 513. of disentailing deed, 251, 554. of deeds dedicating gardens, &c., 691. Insane persons, conveyance by and to, 455. devise by, 570. Insecure titles, provisions aa to, 707. Instalment, in dignities, 487. Institutes, of Graius, 41, n. of Justinian, 40. Interesse termini, 286, 494, 502. Interest of witnesses to will, 572. Interests, reversionary, 334. Interlineation, of a deed, 479. of a will, 676. Interpretation Act (1889), 69, n., 70, 72, n., 75, n., 80, 100, 104, 110, 281, 690. Interpretation of statutes, 70. Investiture, antient, of land, 487. Investments, 701. IXDEX. 737 Ireland, aoquisition of, 83. laws applicable to, 96. Act of Union, 98. Irish Church, disestablishment of, 98, n. Islands, adjacent to Great Britain, 100. Channel, 102. rising of, in the sea or a river, 433, 434. Isle of Man, 100. Isle of Wight, a. Issue, equivalent to heirs, 245, 246. dying without, words of, in a de- vise, 584, 587. of the purchaser, 401. failure of, 394. J. Jamaica, Acts relating to, 108, n. — see West InDiAs. Jersey, island of, 102. John, king, 186. Joint tenan6y, nature of, 336. how dissolved, 341. Jointure, 272, 336, 360. Judges, the depositaries of the law, 53. Judgment, elegit upon, 360. Judicature Acts (1873, 1875, &c.), 83, 134, 258, 308, 318, 481. Judicial separation, effect of, on dower, 268. Jurats, 103. Jiuis, scintilla, 364, n. Jus aoorescendi, 340, 344. Jus ad rem, 487. Jus fiduciarium, 364. Jus gentium, 24. TOI,. T. Jus in re, 487. Jus preoarium, 354. Justinian, laws of, 40, 42. K. Keys, House of, 100. Bang, grant by, 691, 594. King's silver, 541. Knight of the shire, 131, 132. Knight service tenure, character of, 190. incidents of, 190, 201. oppressions of, 202. abolition of, 206. Knight's fees, 190. Knighthood, 198, 205, 210. L. Labour, property founded upon, 161. Lancaster, county palatine of, 133. Land, meaning of the term, 170, 171. origin of property in, 161. holdeu of crown, 233. Land charges, definition of, in Act (1888), 718. registration of, 717—719. Land Charges Eegistration and Searches Act (1888), 717—719. Land registry — see Reoisteation. Land tax, origin of, 204. Land Transfer Act (1875), 710. Lands Clauses ConsoUdation Act (1845), 167, n. Lapsed devise, 580. Latent ambiguity, 483. 3b 738 INDEX. Lathes in Kent, 130. Iiaw, definition of, 26. varieties of, — canon, 8, 12, 42, 44. civil, it. common, 9, 45. divine, 23. feudal, 174. merchant, 62. municipal, 25, 39. of nations, 24. of nature, 21. of revelation, 23. Boman, 40. statute, 68. unwritten, 45, 68. written, 68 et aeq. Law and equity, fusion of, 82, 83. Lawful conveyances, 632, n. Laws in general, law of nature, 21, 23. law of revelation, 23, 24. law of nations, 24, 26. municipal law, 25. Laws of England, importEmce of the knowledge of, 1—9. antient neglect of, in universities, 9—12. rivalry between, and civil and canon laws, 12 — 15. study of, in London inns, 15 — 20. countries subject to, 84— rll8. Wales, 84. Scotland, 87. Berwick, 92. Ireland, 93. Isle of Man, 100. Channel Islands, 102. Colonies, 103. India, 112. Le grand ooustumier, 49, n., 102. Leading the uses, of fine or recovery, 662, 653. Leap year, 281. Lease and release, 510, 519. Leases, in writing, 286. by deed, ib., 493. Leases- operative words in, 494. practice as to preparing, 467, n. by tenant for life, 264, 269, 685, 693. by tenant in dower, 278. by tenant by the curtesy, 267. by husband of wife's lands, 287, n. by tenant in tail, 253. by cities and boroughs, 466. in future, 494. long, 293—296. forfeiture of, 678. Leasing powers, 254, 530. under Settled Land Act, 686, 693. Lectures, at Inns of Court, 19, n. Leeward Islands, Acts relating to, 107, n. Legal education, 16. Legal estate, 308, 370. Legal memory, 65, 656. Legatine constitutions, 43. Leges scriptse, 45, 68. Legislative powers, distinguished from executive, 32. Lessee — see Leases. Letter of statute, 73. Letters close, 691. Letters patent, ib. Levant and couchant, 624, 650. Levinz's Keports, 67. Levying money, withoutconsentof parliament, 168. Lex mercatoria, 62. Lex non scripta, 45, 68. Lex scripta, 68, 80. Liber judicialis, of Alfred, 46. Liberi socmanni, 208. Liberties and franchises, 634. INDEX. r39 Liberty, personal, 148. Llbemm, maritagimn, 245, n. tenemeutum, 231, 232. Licence, to alienate, 201. to demise copyhold, 600. to hold in mortmain, 436, 440. is usually revocable, 230, 231. Licentia concordandi, 641. Life, right to, 143, 148. forfeiture of, for crime, 147. Life, estate for, conventional, 255. under deed or will, 255, 266. duration of, 256. incidents of, 257—263. legal, 263. tenant in tail after possibility of issue extinct, 263. tenant by the curtesy, 264. tenant in dower, 267. under Settled Land Act (1882), 685. Light, 163, 633. Limbs, defence of, 144. Limitation, conditional, 299. Limitation, Statutes of — see Peesoecp- TION." Limitation to uses, 364, 527, 628. Limited Owners, Residences Act (1870), 264, n. Eeservoirs, &o. Act (1877), ii. Settled Land Act (1882), ib., 683. LineaJ ancestors, admitted to descent, 394. Lineal warranty— see WABEANrr. Littieton's tenures, 59. Livery, in deed, 489. in law, ii. lying in, ib., 653. of seisin, 232, 304, 489. or ousterlemain, 193. Local and personal Acts, 70. Local customs, Gl. . Local Inclosure Acts, 626. Local taxes, 123. Locke King's Act, 306, n. London, customs of, 62, 64. Lord and vassal, 176. Lord Brougham's Act, provisions of, 70, 70, n. repeal of, 70, 71. Lordships, 216. Lunar month, 282. Lunatics, sales by and to, 455, 670, 683. Lying in grant, or in livery, 489, 653. Lyndewood's Provinoiale, 43, n. M. Madmen — see Lttnatios. Madras, bishop of, 114. Magna Charta, 68, 186, 203, 271. Main sea, 119. Mala, in se, 38. prohibita, ib. Malacca, Acts relating to — see Steaits Settlements. Males, preference of, in descent, 389. Man, island of, 100. Manors, 215, 216. Manumission, of viUeins, 218, 219. Manx children, 100, n. Harcheta, 213. Maritagimn, 194, 209. 3 b2 740 INDEX. Mark, signing deed by a, 571, 572. Market, fair and ferry, 635. Market towns, 128. Marriage, in chivalry, 194. in'socage, 209. Marriage settlement, 329. Married women — see Feme Coveet. Married Women's Property Acts (1870, 1882), 457, 670, n. Master of the Bolls, custody of records, 63, u. Mayhem, 144. Medical jurisprudence, 8. Memory, time of legal, 65, 666. Menaces — see Theeats. Mercen-lage, 47. Merchant laws, 62. Merchant, statute — see Statute Mee- OHAHT. Merchants, custom of, 62. Mercheta, 213. of term in freehold, 316. in term, 318. of freehold in freehold, ib. of fee simple conditional, ii. none of estate tail, 317, 318. Merton, statute of, 13, 626. Mesne lords, 187, 188. Middlesex, registration in, 707, 708. Military, courts, 50, n. feuds, 181, 189. tenures, 189, 206. Minas, duress per, 144. Mining leases, 694, 695. Mirrour, The, 67. Miscarriage, procuring, 144. Misuser, forfeiture for, 663. Mitter le droit, 503. Mitter 1' estate, ii. Mixed government, 31. Modus levandi fines (18 Edw. I.), 640, 646. Monarchy, 31. Monk, 146. Monmouth, county of, 86. Monster, cannot be heir, 419. Month, calendar, 282. lunar, ii. Mortgage, legal, 304. eqniteble, 304, n., 305. provision in Judicature Act as to, 308. statutory, 668. Mortgagee, his estate, 304. his powers, 668, 669. Mortgagor, his equity of redemption, 304. his powers of leasing, 609. Mortmain — see Moetuain Acts. Mortmain Acts, history of, 355, 436. provisions of, 442. relaxations of, ib. alienation under, 434, 442. Mortuo vadio, estate in, 304. Mother churches, 121. Moveables, property in, 162. right of disposing of, by will, 165. Mulier puisn^, 420. INDEX. 741 458, Municipal corporations, 127, 466. Municipal lav, is a rule, 25, 26. of civil conduct, 26, 27. prescribed by sovereign, 27, 28. is either (1) declaratory, 36. or (2) directory, 36. or (3) remedial, 37. Mutual conveyances, 500. N. Kations, law of, 24. Nativi, 218. Katural affection, 479. Katural liberty, 148. Natural life, 143, 256. Naturalization, 137, 458. Naturalization Act (1870), 422, 568, n. Nature, law of, 21. Navigable rivers, 642. Ne exeat regno, writ of, 154. Negro davery, 110. Neife, 218. Nemo est hseres viventis, 377. Nephew, in descent, 394. New Brunswick, Acts relating to, 107, u. New code of Justinian, 41. Newfoundland, Acts relating to, 107, n. New South "Wales, Acts relating to, 108, n. New Zealand, Acts relating to, ib. Non-claim, bar by, 544, 546. Nou compos — see Ltjnatios. Non obstaate clause, 441. Non-user, forfeiture for, 663. Norfolk Island, Acts relating to, 108, n. Norman conquest, 183, 376. Norman jurisprudence, 49. Note of a fine, 542. Notice, to pay ofF mortgage, 305, n. to quit, 289. under Settled Land Acts, 688. Nova Scotia, Acts relating to, 108, n. Nova statuta, 69, n. Novels of Justinian, 41. Nullus clericuB, nisi causidicus, 10. O. Oath of fealty, 179. Obligation of laws, 38. Occupancy, colonies gained by, 104. common, 429, 652. special, 430, 652. title by, 163, 429, 652. Of&ce of Land Eegistry — see Regis- THiTION. Operation of statute, 71. Option of purchase, in lease, 694. Orders and writs, affecting land, 717, 718. Origin, of common law, 45. of equity, 80. of property, 163. 742 INDEX. Original deed, 464, 465. Ostium eoolesise, dower ad, 270. Ousterlemain, 193. Outstanding terms, 294 — 296. Owen's College, 20. Pais, conveyances in, 484. matter in, ii. Palatine counties, 133. Palmer, Sir GeofErey, 329. PandecfB, 11, n., 42. Papirius, 41. Paramount, lord, 187. Paravail, tenant, ib. Parceners, 343. Pares curise, 265. Parisli, meeting, 123. ofSces, 123, 124. origin of, 120.' boundaries oi, 126, u. common, right's of, compensation for, 126, n. Park, 641. Particular customs, 61. Particular estate, 314. Parties, to a deed, 464. to a fine, S44. Partition, of coparcenary, 346. of joint tenancy, 341. of tenancy in common, 352. suit for, 341. deed of, 600. under Settled Land Acts, 692. Partnerships, 82, 83. Partridge, a fowl of warren, 641. Passive trusts, 364, 365. Pasture, common of, 623, 624. Patent ambiguity, 481. Patent rolls, 691. Patents — see Leitebb Patent. Paternal line in descent, 396. Pecuniary consideration of bargain and sale, 616. Peers of Ireland, 99. of Scotland, 89. Penal servitude, 153, n. Penal statutes — see Statutes, Vaeib- TIES OP. : Pensions, 621, 621, n. for colonial services, 110, n. Peppercorn rent, 670, n. Per capita, 391, 392. Perfect and imperfect, tenures are, 248. Permissive waste, 257, 287, 291. Per my et per tout, 338. Perpetuity, doctnne of, 634. Personal, Act of Parliament, 70. annuity, 298. bequest, 573. - chattels — see Chattels. estate, 169. liberty, 143, 148. rights, 139. security, 143. things, 169. Personal property — see Peesonal. Personal rights, personal security, 143. personal liberty, 148. Per stirpes, 393, 394. Petit serjeanty, 211, 212. Petition of right, 149, 168. INDEX. 743 Pheasant, a fowl of ■warren, 641 . Kokage, 636. Ksoary, common of, 624. Hedge, estates in, 304. Pledges en bloo, of securities, 63, n. Plenum dominium, 487. Plough-bote, 257, 287. Ploughlaud, 190. Plowden's Reports, 57. Poll, deed, 468. Poor, rate, 123. laws, 123, 124. Poor livings, augmentation of, 442. Portland, isle of, 100. Possessio fratris, &c., 405, 406. Possession, estates in, 312. naked, 313. held over, 292. right of, 158. Possessions, colonial, 103. Possibility, distinguished from estate, 230. common, 329. coupled with an interest, 230, n. double, 329, 330. of reverter, 245, 314, n. remote, 329. upon a possibility, 330. Possibility of issue extinct, tail after, 263, 660, 684. Post fine, 541. Posthumous child, 328. Potentia,. propinqua, 329. remota, ib. Power, distinguished from estate, 230, 231. to appoint, executed by devise, 531, n. Powers, of revocation and new appoint- ment, 529, 531, n. release of, 532. disclaimer of, ii. of mortgagee, 668, 669. of tenant for life, 685. Poynings' Laws, 96. Practice as to preparing deeds, 467, n. Prsecipe, in a fine, 540. in a recovery, 560. tenant to the — see Tenaht. Praemunire, 163. Praetor fideicommissarius, 355. Prayer Book Act (1871), 90, n. Precedent, condition, 297. Preferments, exchange of, 499, 600. Preliminary bar examination, 18, n. Premises, of a deed, 467. Prescription, at common law, 655. by statute, 669. in a que estate, 667. Presentment, by the homage, 611. Presidencies, Indian, 115. Presumptive heir, 377. Primaria ecclesia, 121. Primary conveyances, distinguished from derivative, 601. Primer fine, 541. Primer seisin, 200, 211. Primitise, 200, 201. Primogeniture, 389. Prince of Wales, 85. Prince of Wales' Island, see Stbahs Private Acts, 69, 690, 693, 594. Acts relating to - SjneiLEnmsTS. 744 INDEX. Private relations, rights in, 140. Friyies to a fine, 644. Privileged villenage, 189, 225, 226. Privity of estate, 502, 503. Privy purse, 695. Privy seal, 593. Proceedings, in personam, 50. in rem, ib. Proclamations, fine with, 642, 544. Production, of cestiiis que vie, 333. of title-deeds, 668. Profession, monkish, 145. Professorships of law, 19, n. Profits in alieno solo, 653. Prohibition, to leave the realm, 162. Promulgation of laws, 27. Proper feuds, 182. Property, origin of, 157. transfer of, 163. personal— see Pbrbosai Peopbett. real — see Eeai, Peopbett. rights of, 140, 141, 166. Protection, of purchasers and mortgagees, 707. Protector, of the settlement, 253, 554, 665. Prothonotaries, 66. Province of an arohhishop, 120. Provincial constitutions, 43. Proviso for re-entry, 495. PubUo, Act of Parliament, 70. rights, 140, 142. Public bar examination — see Bae SlUBENTS. Publication of will, 674. Punishment, capital, 147. Pur autre vie, tenant, 265, 260, 429. Purchase, title by, 331, 375, 376. Purchaser, blood of the, 382. by conveyance to self, 387, 624. descent from the, 379. meaning of term, 375, 379. quasi, 408, 412. Pure villenage, 189. ParUeus, 639. Q. Qualified fees, 241. Quarantine, thevridow's, 271. Quasi entail, 431. Quasi purchaser, 408, 412. Que estate, prescribing in, 667. Quebec, Acts relating to — see Canada. Queen, her claim to India, 115. Empress of India, 117. Queensland, Acts relating to, 108, n. Quia emptores, statute of, 200, n., 230, 236, 272, 461, 647. Quick vdth child, 143. Quiet enjoyment, covenant for, 473. Quit rents, 600, 646, 674. Quousque, seizure, 609. INDEX. 745 Back rents, 647. R. in SuBsex, 130. Easure in a deed, 479. Kate, county, 132. local, ib. Beading of deed, 473. Beal action, 313, u. Beal chattels — see Chattels. Beal estate — see Bnix Peopeety. Beal property, land, 170. water, ib. mines, 171. Beal Property Statutes — see Statues Cited. Bealm, prohibition to leaye, 152. Eealty, 169. Beasonable fine, 223. Beceipt, for rent, 670. for purchase-money, 674. Beceiver, under mortgage, 308, n., 462, n., 668. Becitals, in deed, 468. Becognizance, 309. Becord, nature of, 53. conveyances by, 484, 689. estoppel by, 464, n. Record office, public, 63, n. Becords and Writs, transfer of, 53, n. Eeooveree, 649, 5S0. Becoveror, 649, 550. Becovery, nature of common, 249, 438, 647. force of, 651. abolition of, 252, 664. Becovery in value, 648. Becreation grounds, 442, n., 691. Bectification, of disentailing deed, 557, n, Beddendum, of deed, 470. Bedemption, equity of, 306. Reditus, meaning of the word, 643. albi, 647. capitales, 646. uigri, 647. quieti, 646. sicci, 645— see Bent. Ee-entry, for breach of covenant, 298, 300, 490, 679. Eeeve's History of the English Law 57, n., etpaaaim. Begardant, villeins, 218. Begiam majestatem, 87, n. Eegistration, of conveyances, 708. of English companies in colonies, 110, n. of title, 710. of writs and orders, 717, 718. of deeds of arrangement, 718. of land charges, 718, 719. Begno, ne exeat, writ of, 152. Belease, deed of, 502, 513, 524. efiectual as a lease and release, 521, n. of powers, 531, 532. extinction of incorporeal heredita- ments by, 662. from rent-charge, 645, n., 673. 746 INDEX. Belief, feudal, 179. in copyhold, 224. in knight service, 193. in socage, 210. BeUgious houses, 3S6, Remaitider, definition of, 311, 318, distioguished from reversion, 312, 319, 320, 662, n. varieties of, contingent, 324, 325. vested, 321. cross, 3S1. none after fee simple, 319. creation of, rules for, 321. displacement of, 323. Bemedial, statutes, 71. Benewable leases, 507. Kent, nature of, 643. origin of, 181. incident to reversion, 644. apportionment of, 649, 650. varieties of, chief, 646. g^uit, 600, 646. fee farm, 647. rent-charge, 645. rent of assize, 646. rack rent, 647. rent service, 644. rent seek, 645. receipt for, 670. Bepeal, of statutes, eSeot of, 80. of obsolete statutes, 69, n. Eeports, law, S6. Bepresentation, in descents, 400. Bepreaentative assembly, 105. Bepublication, of will, 575, n. Bepugnant, clauses in a deed, 483. clauses in a devise, 483, n. conditions, 302. enactments, 79, 80. Beputation, security of, 148. Bequisltes of a deed, 460 et seq. Bere-fiefs, 182. Beservation of rent, 648. Eesiduary devise, 682, 683. Besponsa prudentmn, 40. Bestraining statutes, 72. Bestraints on alienation, 449, 686. Besulting, trust, 368, 369. use, 368, 525. Bevealedlaw, 23. Beversion, definition of, 313, 314. distinguished from remainder, 319, 662, n. incidents of, 314. varieties of, 316. displacement of, 316. Beversionary interests, sale of, 333. Beverter, possibility of, 246, 314, n. Bevision of statute law — see BefeaIi. Bevival, of Act, 80. of will, 575, n. Bevocable licence, 232. Bevocation, . of a wiU, 670. of uses, 529, 530. Bidings, 130, 708. Bight dose, writ of, 226. Bight of common — see Common. Bight of entry, 286, 330. Bight of possession, 168, 313. Bight of re-entry, 494. Bight of way, 629. Bights — see EiQHia and 'WBOinjs. INDEX. 747 Eights and wrongs, personal, 139, 140. private, ib. public, 140—142. Bights of property, 140, 166. Elvers, 642. EoUe's Abridgment, 68. Roman law, 11, 16. Boot, of descent, 384—386. of title, 670. Eoyal, assent, 72. forests, 640. grants, 691. Eule in SheUey's case, 331, 371. Bules of Stock Exchange, 62, n. Banning with land, covenants, 472, 495, 668. Bnral deanery, 120. Sale of property, origin of, 163. by mortgagee, 307, 668. practice on, 467, n., 668, 674. under Settled Land Acts, 688. Sanctions, vindicatory, compel and ohUge, 37, 38. remunerator}/, persuade and allure, 38. St. German's "Doctor and Student," 58. St. Helena, 114. St. Vincent, constitutions of, 107, n. Sana nombre, common, 624. Sark, island of, 102. Satisfied terms, 294—296. Saunders' Beports, 67. Savouring of the realty, 279. Saxon laws, 47. Sceevola, reference to, 6. Sciatilla juris, 364, n. Scire facias, 695. Scotland, Act of union, 87. church of, 91. law of, 91, n. universities of, 20. Soutage, 203. Sea-bed, 123, n. Sea, high — see HiOH Seas. Sea-shore, portion of realm, 119. alteration of, 433. is extra-parochial, 123, n. Sea-wall, 657, n. Seal, antiquity of, 474. on deed, ib. great, 591. privy, 692. Searches, 674, 717. Seek, rent — see Ebnt. Secondary use, 531. Secretary of State, for India, 116. for Scotland, 91. See, Bishop's, 120, 128. Seigniory, 236. Seisin, in deed, 266. in law, ib. livery of, 192, 280. primer, 199, 211. Seisina facit stipitem, 386, 389, 652. Select vestry, 126, n. SeU-defence, 144. Senatus, consnlta, 70, n. decreta, ib. Sepoy revolt, 115. 748 INDEX. Serjeant-at-law, 16. Serjeanty, grand, 202. petit, 211. Service de ohivaler, 189. Service, heriot — see Hebiot Seeviob. Services, free or base, 188. certain or uncertain, ii. in knight's tenure, 190. in socage tenure, 207. in villein socage, 218. in antient demesne, 224. Servitium militare, 190. Session, great, courts of, in Wales, 86. Settled Estates Act (1877), 254, 259, 267, 460, 605, n. Settled Land Act (1882), 254, n., 259, n., 460, n., 605, u.., 683 et seq. Settlement, family, 254, 329, 554, 658. protector of the, 262, 554, 558. strict, 331. under Settled Land Acts, 683. trader's, 706. Several fishery, 642, n. Severalty, estates in, 335. Severance, of jointure, 341. of reversion, 678. Shack, common of, 623. Shelley's case, rule in, 331, 371. Sheppard's Touchstone, 58. Sherifi, nature of office, 140. in "Wales, 86, n. Shifting use, 531. SHre, 140. Shore of the sea — see Sea Shobe. Sierra Leone, Acts relating to — see Apeioa. Sign manual, 591, 592. Signet, privy, 691, 592. Signing, deeds, 473. wills, 571. Simple contract debts, of deceased,' 414 et leq. Singapore, Acts relating to — see Steatts Set- tlements. " Six months," 282. Slave trade, - history of, 110. repression of, 112, n. meaning of the term, 207, n. free, 207. villein, 189. Social contract, 29. Society,- origin of civil, 28. Sokemans, 208, 237. Sole, corporations, 356. Sovereign, grant by, 591. Sovereign power, 30, 34. Special occupant, 430, 652. Special tail — see Entails. Specialty debts, nature of, 414. no priority in administration of assets, 415. Specific performance, 82. Spebnan, references to, 16. Spiritual tenure, 227. Spring Assizes Act (1879), 132, n. Springing use, 629. Stallage, 636. Stamp Acts, 466, n. Stamps on deeds, 466. IXDEX. 749 Staple commodities, 308. Staple, mayor of the, 308. Staple, statute — see Statute Staple. Statute of Uses — see Uses, Statute of. Statute law, revision of, 69, n. repeal of, 80. Statute merchant, 308. Statute staple, 308. Statute, interpretation of, general rules for, 72. particular rules for, 72 — 80. Statute, varieties of, public and private, 70, 71. declaratory, 71. penal or remedial, ii. disabling and enabling, 72. Statutes, judicially noticed, 71. relating to India, 116, u. repeal of, 80. revision of, 69, u. Statutes cited : Agricultural Holdings Act (1883), 496. Agriculture (Board of) Act (1889), 497, 615, 683, 699. Allotments Act (1887), 629. Appellate Jurisdiction Act (1876), 6, 88, 99, n. Apportionment Act (1870), 262, 649. Charta de Foresta, 638. Commons Preservation Act (1876), 629. Contingent Kemainders, Act as to (1877), 332, 528. Conveyancing Acts (1881, 1882), 238, 247, 296, 301, 369, n., S31, 665 et aeq. Copyhold Acts, 615. Customs and Inland Bevenue Act (1889), 466. Declaration of Title Act (1862), 710, 715. De donis conditionalibus, 244, 245, 249, 317, 539, 546, 698, 651. De meroatoribus, 308. De religiosis, 355, 438. Satutes cited — continued. Dower Act (1834), 72, 171, 270, 271, 275, 276, 371. Felony Act (1870), 62, 212, 220, 369, 427, 435. Fines and Recoveries Act, 554. Foreign Jurisdiction Acts, 105. Frauds, Statute of, 286, 372, 413, 488, 493, 500, 506. Fraudulent Devises, Statute of, 413. General Inolosure Act, 627. General Vestry Act, 124. Great Seal Act (1884), 593. Habeas Corpus Act, 154. Hinde Palmer's Act (1870), 414. Hobhouse's Act (1827), 124. Imperial Titles Act (1876), 117. Improvement of Lands Act (1864), 254, n. Inclosure Acts, 627. Inheritance Act, 379. Interpretation Act (1889), 69, 72, 76, 80, 100, 104, 590. Intestates' Estates Act(1884), 373. Judicature Acts, 83, 134, 258, 307, 318, 481. Land Charges (Kegistration and Searches) Act (1888), 646, 717. Land Transfer Act (1875), 707, 710 et seq. Lands Clauses Consolidation Act (1845), 167, n. Limited Owners' Reservoirs Act (1877), 254, n. Limited Owners' Residences Act (1870), 254, n. Local Government Act (1888), 92, 130 137 Locke King's Acts (1864, 1867, 1877), 306, n. Married Women's Property Acts (1870, 1882), 458, n., 671, u. Merton, Statute of, 13, 626. Modus levandi Fines, 640. Mortmain Acts, 365, 437, 442, 444. Naturalization Act (1870), 423, 459. NewWiUsAct, 566, 573. Of Uses, 273, 362. Parliamentary and Municipal Re- gistration Act (1878), 129, n. Patents, Designs, and Trade Marks Act (1883), 593. Prayer Book Act (1871), 90, u. Quia Emptores, 230, 236, 272, 310, n.,'439, 450, 469, 622. 760 INDEX. Statutes cited — ooittmued. Real Property Limitation Act (1874), 305. Bedistribution of Seats Act (1883), 87, 89, 98, 132, 137. Kepreseutation of ihe People Act (1884), 87, 89. Revenue Act (1889), 466. Revision (Statutes) Act (1888), 69. Sea Fisheries Act (1883), 119, n. Settled Estates Act (1877), 264, 259, 267, 278, 460. Settled Land Act (1882), 254, 259, 11., 267, 278, 460, n., 683 et seq. Spring Assizes Act (1879), 132,n. Stamp Acts, 466, n. Sturges Bourne's Act, 124. Submarine Telegraphs Act, 119, n. Territorial Waters Jurisdiction Act (1878), 119, n. Trustee Act (1860), 369, 423, 427. Trustee Act (1888), 416, 674. Uniformity, Acts of, 90. tTniversities Tests Act (1871), 90. Vendor and Purchaser Act (1874), 666, 669. Yorkshire Registries Act (1884), 708. Statutory mortgage, 668. Staundf orde on criminal law, references to, 68. Stint, common 'without, 624. Stipendiary estates, 175. Stirpes, succession per, 392. Stocks of descent, 395. Straits Settlements, Acts relating to, 108, u. Streams, 631. Strict settlement, 330. Study of the law, 1—20. Sturges Bourne's Act, 124. Subinfeudation, 176, 187, 236. Subscription, to a deed, 473. to a will, 571. Subsequent condition, 297, 298. Subsisting terms, 294—296. Succession, per stirpes, 392. Successors, 436. Sufferance, estate at, 292. Suffragan bishops, 120, n. Suit and sendee, 182. Sulpitius, reference to, 6. Superstitious uses, 442. Support, 661, n. Supreme Court of Judicature, 82. Supreme power, 28. Sur concessit, fine, 543. Sur don, grant et render, fine, ib. Surrender, nature of, 605. may be by operation of law, 506. express, must be by deed, ih. of outstanding terms, 294 — 296. of renewable leases, 507. under Settled Land Acts, 685, of copyhold, 606. to the use of will, 611. Survey of Great Britain, 88, n. Survivorship, 339, 349. Suspension of Habeas Corpus Act, 161. Syngrapha, 464. T. Tails — see Entails. Taltarum's case, 260. INDEX. 761 Tasmania, Acts relating to— see Vau Deb- men's Lant. Taxes, parliamentary, 167. Tenant, at suSerance, 292. at will, 290. by copy of court roU, 223. by elept, 309. by knight service, 190. by the curtesy, 264, 360, 376. copyhold, 223. for life, 255, 683. for years, 280. from year to year, 288. holding over, 292. in antient demesne, 224. in common, 348. in dower, 267. in fee, 236. jn frankalmoign, 228. in tail, 242. after possibility of issue extinct, 263. joint, 337. _ pur autre Tie, 256. to the prseoipe, 647. Tenant right, &o., 226, n. Tenement, 171. Tenements, varieties of, frank tenements, 188. villein tenements, ii. Tenendum, of a deed, 468. Tenures, varieties of, 188. free or base, ib. certain or uncertain, ib. enumeration of particular, by oornage, 203. .by divine service, 228. copyhold, 216, 599. customary, 226. in burgage, 213. in oapite, 188, 206. in chivaliy, 189. in frankaunoign, 228. in grand serjeanty, 202, 212. in petit serjeanty, 212. socage, 189, 207. villein, 189, 208. Term of years, 280. enlargement of, into fee simple, 296. Terms attendant, on the inheritance, 294, 296. Territorial "Waters Jurisdiction Act (1878), 119. Testament — see Devises. Testator, capacity to be, 667. Teste of a deed, 477. Thanet, Isle of, 100. The New Wills Act, 667, 571, 579. Thellusson's case, 637, n. Theobald, 11. Theodosian code, 41. Things, real, 169. personal, ib. Threats, 144. Tidal river, 642. Timber, sale and cutting of, 698. Time, computation of, 281. Tithe Commission, 616, n. Tithes, 120. Tithing, 127. Title, abstract of, 466, n., 670. Act to facilitate proof of, 466, n., 716. by act of law, 374. by act of party, ib. by descent, 377 et seq. by escheat, 417. by purchase, 332, 374, 408, 524. declaration of, 716. for last forty years, when to be shown, 466, n., 670. 752 INUliX. Title — continued. in general, 374. of nobility, 391, 393, 406. registered, 707. to corporeal hereditaments, 374. to cro^wn, 466. to incorporeal hereditaments, 655. 3orpi ■of, unity of, 337, 348. Title deeds, custody of, 256, n,, 668. production of, 668. Tobago and Grenada, constitutions relating to, 108, n. Tobago and Trinidad, ib. Tolls, 636. Tortious operation of a feoffment, 492. Torture, 148. Town, definition of, 127. Towns, corporate, 136. Towns being counties — see County of A Town. Training to arms, 156. Transfer of land. Acts to simplify, 316, u. Transfer of Land Act (1875), 710. Transportation, 162. Treason, corruption of blood in, 424. law as to forfeiture for, 201, 369, 423. Tribonian, 41. Trinidad, 108, u. Triens, 268. Trinoda necessitas, 228. Trithing, 130. Trust, cestui que, 367, 370. Trust estate, 367. Trust of personal chattels, 369. Trustee, attainder of, 370. bankruptcy of, 370, n. capacity to be, 368. conviction of, 370. devise to, 680. dying intestate and without heir, 370. his estate in the land, 364, 369. under Intestates' Estates Act (1884), 373. statutory provisions vrith regard to, 370. Trustee Act (1850), 370, 423, 427. Trustee Act (1888), 416, 674. Trusts, active, 367. cognizable in equity, 82, 367. curtesy in, 370, 372. declared, 367. dower in, 370. escheat of, 370, 373. executory, 367. forfeiture of , 370. how limited, 371. how created or assigned, it. implied, 368. in equity, 365. origin of, ib. passive, 367, 368. resulting, 368. special, 367. to attend inheritance, 294, 295. to support contingent remainders, 329. Turbary, common of, 624. Turks Islands, annexation of, 108, n. Twelve Tables, 40. Uncertain services, 188, Uncle in descents, 393. Undertaking as to title-deeds, 668. INDEX. 753 irniformity, Acts of, 91. Uninhabited country, 104. Union, ■with Ireland, 98. with Scotland, 88. Unity of title, 337, 348. Universities of Cambridge and Oxford, 9, 16, 19. Universities Tests Act (1871), 90, n. University of London, 19. University, Victoria, 20. Unwritten law, nature of, 4S. codifications of, 47, 48. added to, by Norman law, 48, 49. equity in, 81. largely composed of local customs, 46 — 47 — see Customs. Usages of trade, 63. Use, cestui que, 357, 359. Use upon a use, 364. Uses, charitable, 442. contingent, 359. curtesy in, ii. distinguished from trusts, 353. dower in, 360. executory, 516. feoffee to, 357. feoffment to, 515. grant to, 521. history and origin of, 354. implied, 367. in esse, 359. in futuro, ii. in possibility, ili. manner of creating, 366. nature of, 358. properties of, 360. reduplication of, 366. repugnant, 364. resulting, 357. secondary, 529, 530. shifting, ib. springing, 627. superstitious, 442. vor,. I. XJaea— continued. what is capable of being held to, 366. what may be conveyed by, 356, 653. what the statute executes, 362, 653. who capable of holding to, 358. Uses, seisin to, 361, 522. Uses, Statute of, provisions of, 361, 520. conveyances under, 513, 538. Usque ad filum aquee, 631. Usucapio, 654, n. Ususfructus, 354. Ut de coronlt, 187. Ut de honore, ib. Uterinus, frater, 403, 404. V. Vacarius, 12. Vadium, mortuum, 304. vivum, ib. Valuable consideration, 479. Value of marriage, 194, 209. Valuers, inolosure, 628. Vancouver's Island, 108, n. Van Dieman's Land, ib. Vassal, 176. Vaughan's Reports, 57. Ventre sa mfere, children in, 143. Vested remainder, 323. Vesting, of legal estate, 369. ;3(; 754 INDEX. Vestry, 124. Vestry clerk, 124, 126, u. Vetera statuta, 68, n. Viceoomes, 130. Vicinage, common because of, 621. Victoria, Acts relating to colony of, 1 03, j Victoria University, 20. ViU, 129. Villanum socaginm, 224. Villeins, origin of, 216. varieties of, 217. enfranchisement of, 218. develope iato copyholders, 219. Villenage, pure, 188. privileged, 189. extinction of, 220. Vindicatory sanction of laws, 37. Viner's Abridgment, 68. Vivo vadio, estate in, 304. Void and voidable, 455. Voluntary deed, 479. Voluntary waste — see Waste. Volunteers, 155, u. Voting at vestries, 125. Vouchee, common, 651. Voucher to warranty, 650. W. Waiver, of condition, 303. Wales, subjugation of , 84. members for, 86. Wales, Prince of, 86. Wapentakes, 130. Wardholding, 205. Wards and liveries, court of, 193. Wardship, iu chivalry, 191. in copyholds, 223. in socage, 2U9. Warrant, arrest on, 150, 151. Warranty, collateral, 471. Uneal, i6. Warren, fowls of, 641. Warren, free, ib. Waste, legal, 258. equitable, ib. voluntary, ib. permissive, ib, under J udicature Acts, ib. in copj'holds, bUO. by tenant at will, 291. for years, 287. for life, 258. impeachment of, ib. Waste lands, of manor, 217, 611, 621, 622. grant of, 611. consents to, ib. inclosure of, 627. Waste, year, day, and — see Yeab, Day, and Waste. Water, 160, 170, 631. Watercourse, 631, 661. Way, rights of, 629. West Indies, Acts relating to, 107, n., 111. Westminster, formerly a bishop's see, 128, n. INDEX. 755 West-Saxon lage, 47. ■Wlite rents, 647. Whole blood, 402. Wight, Isle of, 100. Will, estates at, 291. Will of the lord, 224. Wills, statute of, 565. WUls — see Devises ; Beqtjesxs. Windward Islands, 108, n. Witnesses, to a deed, 476. to a wiU, 668, 570. Worthiest of blood, 391. Writ, close, 591. of deceit, 612, n. of elegit, 309. of ne exeat regno, 164. of partition, 341, 347, 352. of right, 225. Writs and orders, affecting land, registry of, - 718. 717, Written conveyances, 488. Written laws, are statutes, 69. varieties of, 70 — see Statutes. Wrongs, 140, 141, 142. Tear, 282. Tear and a day, in iines, 545. in forfeitures, 425. Tear, day, and waste, ib. Tear, tenancies by — see Teablt Ten- AMOT. Tear to year, tenancies from, 288. Tear-books, 56. Tearly tenancy, 288. Tears, estates for, 280. Telverton's Keports, 67. Torkahire, registration of deeds in, 708. Torkshire Registries Act (1884), ib. LONDON : PRINTED BY C. F. ROWORTH, GREAT NEW STREET, FETTER LANK. s(."M^^^^" m i*ii' iwrWi :^ Mm, \^^fK-'\^.^'>rs, |f\P^^^A^A^' Si's '^rv', &... £.AA^,A^